FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33375/03 by Hans-Gerd H Ü LSMANN against Germany

The European Court of Human Rights (Fifth Section), sitting on 18 March 2008 as a Chamber composed of:

Peer Lorenzen , President, Snejana Botoucharova , Karel Jungwiert , Rait Maruste , Renate Jaeger , Mark Villiger , Isabelle Berro-Lefèvre , judges, and C laudia Westerdiek , Section Regi strar ,

Having regard to the above application lodged on 2 October 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Hans-Gerd Hülsmann, is a German national who was born in 1960 and lives in Xanten ( Germany ) . He was represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case and proceedings concerning paternity

a. The relationship between the parties

Ms S. B. has been living with her partner, Mr B., since 1997. In March 1999 she entered into an intimate relationship with the applicant and they met on a regular basis. She became pregnant in August 1999. According to the applicant, she confirmed to him and their relatives that he was the child ’ s father but met him less often due to health problems caused by her pregnancy.

On 17 March 2000 B. acknowledged paternity of the child to be born (M.) with S. B. ’ s consent.

On 8 May 2000 M. was born. The applicant visited S. B. and the child on several occasions in hospital and at their home up to August 2000.

On 22 August 2000 the Wesel Youth Office informed the applicant on his request that B. had already acknowledged paternity of M.

On 25 September 2000 S. B. and B. married.

The applicant saw M. again on nine occasions between September 2002 and January 2003. In the applicant ’ s submission, S. B. and/or B. had prevented further contact before and after that period.

On 29 April 2003 the applicant declared in an instrument certified by a notary that he acknowledged paternity of M., even though he had been informed by the notary that a declaration of paternity was not valid as long as another man was the child ’ s father.

b. The proceedings for determination of paternity

On 24 June 2003 the Düsseldorf Court of Appeal dismissed an appeal by the applicant against the judgment of the Rheinberg District Court, which had dismissed the applicant ’ s action to establish by declaratory judgment that he, and not B., was M. ’ s natural father. It found that pursuant to Article 1600d § 1 of the Civil Code (see Relevant domestic law and practice below), the applicant did not have a right to determination of paternity, as B. was M. ’ s father pursuant to Article 1592 no. 2 of the Civil Code (see Relevant domestic law and practice below). Likewise, the applicant did not have a right under Article 1600 § 1 of the Civil Code (see Relevant domestic law and practice below) to challenge the acknowledgement of paternity made by B.

On 25 July 2003 the applicant lodged a constitutional complaint with the Federal Constitutional Court against these decisions (file no. 1 BvR 1548/03). The case is currently still pending before the Federal Constitutional Court .

2. The proceedings before the Rheinberg District Court

On 10 December 2002 the Rheinberg District Court, having heard the applicant, S. B. and B. as well as a representative of the Youth Office, refused a request by the applicant on 14 March 2002 to be granted contact with M. twice a month. It noted that S. B. contested the applicant ’ s submission that he was M. ’ s natural father. The applicant was not entitled to contact under Article 1684 § 1 of the Civil Code (see Relevant domestic law and practice below), as he was not a parent within the meaning of that provision. It was the legal representative of the child who was the father.

Moreover, contrary to his submissions, the applicant did not have a right of contact under Article 1685 § 2 of the Civil Code (see Relevant domestic law and practice below), applied by analogy, for presumably being M. ’ s natural father. A child ’ s right of contact protected his or her interest in having social contacts. However, the applicant was a total stranger to M. It was also not in M. ’ s best interests to have contact with the applicant in view of his right to know his descent.

The District Court did not consider it necessary to appoint M. a curator ad litem as it were questions of law which were in dispute between the parties and as there was no obvious conflict between M. ’ s interests and those of his parents.

3. The proceedings before the Düsseldorf Court of Appeal

On 15 September 2003 the Düsseldorf Court of Appeal dismissed an appeal by the applicant against the District Court ’ s decision. It found that the applicant did not have a right of contact under Article 1684 of the Civil Code, as, according to Articles 1592 et seq. of the Civil Code, it was B. who was M. ’ s father.

Likewise, he did not have a right of contact under Article 1685 of the Civil Code, as that provision did not have to be interpreted as also including the natural father of a child. In so far as the Federal Constitutional Court, in its decision of 9 April 2003 (1 BvR 1493/96 and 1724/01; see Relevant domestic law and practice below) , had declared Article 1685 of the Civil Code to be incompatible with the right to respect for family life under the Basic Law, this judgment was irrelevant to the applicant ’ s case.

Even assuming that the applicant was M ’ s natural father, which was in dispute between the parties, the Federal Constitutional Court had only considered Article 1685 of the Civil Code to be incompatible with the Basic Law in so far as it did not allow contact between a child and his or her natural father who had or had had a social bond with the child. Even assuming that the applicant ’ s submissions as regards his contacts with M. were correct, there was no social or family relationship between him and M. Such a social bond developed if a natural father had borne responsibility for the child at least for some time. In the applicant ’ s case, such a relationship has not developed, because he made only sporadic visits in hospital and at S. B. ’ s home, between May and August 2000. Moreover, there was no contact between the applicant and M. thereafter until September 2002. There was nothing to indicate that nine further contacts between the applicant and M. from September 2002 until January 2003, which, in S. B. ’ s and B. ’ s submission, had taken place partly without their consent, had created a family relationship between them.

4. The proceedings before the Federal Constitutional Court

On 2 October 2003 the applicant lodged a constitutional complaint with the Federal Constitutional Court . He complained that the family courts ’ refusal to grant him access to M. and to appoint the child a curator ad litem for the proceedings and their failure sufficiently to investigate the actual relationship between him and M. had infringed his right to respect for his family life and his right to be heard. Moreover, the difference in treatment between him and persons having an express right of access under Articles 1684 § 1 and 1685 § 2 of the Civil Code disregarded his right to equality.

On 31 August 2004 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint (file no. 1 BvR 2073/03) as the decisions of the family courts did not infringe his right to respect for his family life. It reiterated that pursuant to its leading decision of 9 April 2003 (1 BvR 1493/96 and 1724/01; see Relevant domestic law and practice below), a natural father ’ s right to respect for his family life is infringed if he has no right of contact even if there is or has been a social and family bond between him and the child. In the applicant ’ s case, the family courts had not overlooked the fact that the scope of the right to respect for one ’ s family life also covered natural fathers. They had, however, found that there had never been a social and family relationship between the applicant and M.

B. Relev ant domestic law and practice

1. Relevant provisions of the Civil Code

a. Provisions on paternity

Articles 1592 et seq. of the Civil Code, in their versions in force at the time when the family courts took their decisions, lay down rules on paternity of children.

According to Article 1592 of the Civil Code, a child ’ s father is either the man who at the date of the child ’ s birth was married to the child ’ s mother (no. 1), or the man who acknowledged paternity (no. 2) or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3).

Article 1594 § 2 of the Civil Code provides that the acknowledgement of paternity is not effective as long as the paternity of another man exists. The acknowledgement of paternity is valid only if the child ’ s mother consents to it (Article 1595 § 1 of the Civil Code).

Paternity may be challenged. Pursuant to Article 1600 § 1 of the Civil Code, entitlement to challenge the paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, the mother and the child.

If there is no paternity under Article 1592 nos. 1 or 2 of the Civil Code, it is to be established by the family court (Article 1600d § 1 of the Civil Code). The legal consequences of paternity may only be claimed as of the time of its establishment unless the law provides otherwise (Article 1600d § 4 of the Civil Code).

b. Provisions on access

Pursuant to Article 1684 § 1 of the Civil Code, a child has a right of access to each parent, and each parent in turn has the right and the duty to have contact with the child.

Article 1685 § 1 of the Civil Code provides that grandparents, brothers and sisters have a right of access to a child if this serves the child ’ s welfare. The same applies to a (former) spouse or civil partner of a parent where this person lived in domestic community with the child for a long period, and to persons with whom the child has spent a long period as a foster child (Article 1685 § 2 of the Civil Code).

2. The Federal Constitutional Court ’ s leading decision of 9 April 2003

On 9 April 2003 the Federal Constitutional Court took a leading decision on the rights of a (presumed) natural father of a child who is not the legal father (file no. 1 BvR 1493/96 and 1 BvR 1724/01).

It found, in particular, that neither Article 1684 nor Article 1685 of the Civil Code could be interpreted as granting the natural father right of contact. However, a natural father who is not the legal father of a child also forms a family with the child which is protected by the Basic Law if there is a social relationship between him and the child which arises from the fact that the father bore responsibility for the child at least for a certain period of time. Article 1685 of the Civil Code was incompatible with the right to protection of family life under the Basic Law in so far as it excluded the natural father of a child who has or had a social and family relationship with his child from contact with the child even if such contact was in the child ’ s best interests.

COMPLAINTS

The applicant complained under Article 8 of the Convention that the German courts had refused him access to his child M . He argued that he and M. were a family, that he had borne responsibility for M. as much as was possible in view of the prevention of contact by B. and S. B. and that he continued to be willing to take responsibility for M. Contact between him and M. was in M. ’ s best interests as the latter had a right to know his descent.

Moreover, in the applicant ’ s submission, the domestic courts had infringed his procedural rights under Article 8, read in conjunction with Article 6, of the Convention. They had failed to appoint M. a curator ad litem even though the parties had been unable fully to set out the child ’ s interests and they had not sufficiently investigated the actual relationship between him and his child.

Relying on Article 14, read in conjunction with Article 8, of the Convention, the applicant further claimed that, being a natural father whose paternity was not acknowledged, he had been discriminated against compared to parents mentioned in Article 1684 of the Civil Code. The latter ’ s contact could only be refused if it was contrary to the child ’ s best interests whereas his contact, as it depended on the strength of the actual relationship between him and his child, could be determined by the legal parents. Furthermore, he had been discriminated against compared to grandparents, brothers and sisters who, unlike him, had a right of contact under Article 1685 § 1 of the Civil Code without having to show that there was a pre-existing family relationship between them and the child.

THE LAW

A. Complaints under Articles 8 and 6 of the Convention

The applicant claimed that the refusal of the German courts to grant him contact with M. and the conduct of the contact proceedings had infringed his right to respect for his family life and his procedural rights as guaranteed by Articles 8 and 6 of the Convention. The Court considers that these complaints fall to be examined under Article 8 alone which, in so far as relevant, reads:

“1. Everyone has the right to respect for his private and family life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court must establish at the outset whether the decisions of the domestic courts disregarded the applicant ’ s “family life” within the meaning of Article 8.

The Court reiterates that the notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that “family” unit from the moment, and by the very fact, of its birth (see Keegan v. Ireland , judgment of 26 May 1994, Series A no. 290, pp. 17-18 , § 44; L. v. the Netherlands , no. 45582/99, § 35, ECHR 2004-IV; and Znamenskaya v. Russia , no. 77785/01, § 26, 2 June 2005).

However, a biological kinship between a natural parent and a child alone, without any further legal or factual elements indicating the existence of a close personal relationship, is insufficient to attract the protection of Article 8 (compare L. , cited above, § 37). As a rule, cohabitation is a requirement for a relationship amounting to family life. Exceptionally, other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto “family ties” (see Kroon and Others v. the Netherlands , judgment of 27 October 1994, Series A no. 297-C , pp. 55-56, § 30, and L. , cited above, § 36).

Moreover, the Court has considered that intended family life may, exceptionally, fall within the ambit of Article 8, notably in cases in which the fact that family life has not yet fully been established was not attributable to the applicant (compare Pini and Others v. Romania , nos. 78028/01 and 78030/01, §§ 143, 146, ECHR 2004-V). In particular, where the circumstances warrant it, “family life” must extend to the potential relationship which may develop between a child born out of wedlock and its natural father. Relevant factors which may determine the real existence in practice of close personal ties in these cases include the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the father to the child both before and after its birth (see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999-VI ; Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003 ; and L. , cited above, § 36 ).

The Court notes that in the present case it is disputed between S. B. and the applicant whether the latter is M. ’ s natural father. The applicant has to date been unable to have his paternity acknowledged. He brought an action in the family courts aimed at establishing his paternity, but these courts found that under the applicable provisions of the Civil Code, he did not have a right to determination of paternity as B. had previously acknowledged paternity of M. with S. B. ’ s consent. The applicant ’ s constitutional complaint against these decisions is currently still pending before the Federal Constitutional Court . The Court further observes that in the contact proceedings here at issue, the domestic courts examined the applicant ’ s request on the assumption that he was M. ’ s natural father. Therefore, the Court will equally assume for the purposes of the present proceedings that the applicant is M. ’ s biological father.

In examining whether, in addition to the assumed biological kinship, there are any further legal or factual elements indicating the existence of a close personal relationship between the applicant and M., the Court notes that S. B. and the applicant have never formed a “de facto” family by living together out of wedlock. The applicant had an intimate relationship with S. B. at least in 1999, but she has been cohabiting with another man, B., since 1997, and throughout the relationship with the applicant (contrast Keegan , cited above, p. 18 , § 45, Różański v. Poland , no. 55339/00, § 64, 18 May 2006 ; Görgülü v. Germany , no. 74969/01, §§ 10 , 35, 26 February 2004; Nekvedavicius , cited above; and L. , cited above, § 38). Thus M. was part of another family unit from the moment of his birth. Furthermore, at no point in time did the applicant cohabit with M. (compare a contrario Yousef v. the Netherlands , no. 33711/96, § 51, ECHR 2002-VIII). Moreover, S. B. consented to the acknowledgement of paternity made by B., with whom she lived throughout the years and whom she later married, and contested the applicant ’ s paternity in the proceedings before the domestic courts (compare M. B. v. the United Kingdom , no. 22920/93, Commission decision of 6 April 1994, Decisions and Reports (DR) 77-A, p . 115 and Nylund , cited above; contrast Boughanemi v. France , judgment of 24 April 1996, Reports of Judgments and Decisions 1996-II, pp. 607-608, § 35).

The Court does not overlook that the applicant ’ s family ties with M. depend, inter alia , on his relationship with the child ’ s mother and may thus be – as in other cases concerning access of fathers to their children – codetermined to a certain extent by the latter. However, in the present case, M. ’ s family situation is even more determined by the fact that since his birth he has been living with his mother and his legal father, later the husband of his mother, who have been taking care of him together, and thus in a different and stable family relationship. The Court is accordingly not in a situation (such as the one at issue, for instance, in the case of Kroon , cited above, p. 58, § 40 ) in which respect for family life require d that biological and social reality prevail over a legal presumption .

It is true that other factors than cohabitation may reveal that the relationship between a father and his child has sufficient constancy to qualify as “family life”. However, the applicant visited S. B. and M. only four times in hospital and on some occasions at S. B. ’ s and B. ’ s home from M. ’ s birth in May 2000 to August 2000. Two years later he saw M. on nine occasions until January 2003, when S. B. and/or B. prevented further contact. In the Court ’ s view, the fact that the applicant visited M., a young child, or rather his mother before her marriage with B., several times over a period of four months, and again two years later over a period of five months does not suffice to create between them a relationship of sufficient intensity and constancy to qualify as family life (compare a contrario Kroon , cited above, pp. 55-56 , § 30).

It therefore remains to be determined whether, in the circumstances of the present case, “family life” must extend to the envisaged relationship between the applicant and his presumed child, having regard to the fact that the child ’ s legal parents have been preventing further contact and thus the development of a closer relationship between them.

The real existence in practice of close personal ties in such cases is determined, on the one hand, by the demonstrable interest in and commitment by the applicant to M. both before and after the child ’ s birth. The Court observes in this respect that the applicant visited mother and child several times of his own accord and attempted to acknowledge paternity of him. He pursued his attempts both to be recognised as M. ’ s natural father and to have regular contact with him by bringing proceedings in the domestic courts when M. was almost two years old. However, on the whole he must be considered to have shown a certain interest in the child.

Nevertheless, the Court finds that it is doubtful in the circumstances of the present case whether the applicant ’ s link with M. has a sufficient basis in law and fact to qualify as “family life” within the meaning of Article 8 § 1 of the Convention. However, this matter can be left open as the applicant ’ s complaint is in any event inadmissible for the reasons which follow.

The Court observes that the German courts examined the applicant ’ s request in the light of the Civil Code as interpreted by the Federal Constitutional Court . The domestic courts found that, by occasional visits at the legal parents ’ home, the applicant did not establish sufficient social bonds with M. in order for contacts to be in the child ’ s best interests. Having regard to the circumstances of the case, the domestic courts must be considered to have based their decisions refusing the applicant ’ s request for access on relevant and sufficient reasons.

It remains to be determined whether the German courts can be taken to have respected the applicant ’ s procedural rights under Article 8, that is, whether the decision-making process has been fair and such as to ensure due respect for the interests safeguarded by Article 8 (compare Görgülü , cited above, § 52; Haase v. Germany , no. 11057/02, § 94, ECHR 2004-III). The Court notes in this respect that the applicant was heard in person by the District Court and availed himself of the opportunity to set out his arguments in writing before that court, as well as before the Court of Appeal and the Federal Constitutional Court which, for their part, addressed his submissions in their decisions.

As to the applicant ’ s complaint that the family courts had not sufficiently investigated the actual relationship between him and M., the Court observes that the Düsseldorf Court of Appeal, in particular, examined the case on the assumption that the applicant ’ s submissions as regards his contacts with M., which were partly contested by S. B., were correct. Moreover, in so far as the applicant complained that the family courts had failed to appoint M. a curator ad litem , the family courts, having duly established the facts of the case, considered that the relationship between the applicant and M. was too weak to constitute a family relationship requiring access rights. In these circumstances, safeguarding the child ’ s best interests did not require appointing a curator ad litem in the proceedings. Therefore, the procedure followed by the domestic courts duly respected the applicant ’ s interests safeguarded by Article 8 in these respects.

Accordingly, the Court concludes that the decisions of the domestic courts did not disregard the applicant ’ s rights under Article 8. It follows that this part of the application must be dismissed as manifestly i ll-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Complaints under Article 14 of the Convention, read in conjunction with Article 8

In the applicant ’ s submission, he had further been disadvantaged in his right of contact with M. compared to all persons having a right of access under Articles 1684 § 1 and 1685 § 1 of the Civil Code. He relied on Article 14, taken in conjunction with Article 8, of the Convention. Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification (see Inze v. Austria , judgment of 28 October 1987, Series A no. 126, p. 18, § 41; Thlimmenos v. Greece [GC], no. 34369/97 , § 44, ECHR 2000-IV).

The Court considers that the applicant, in his position as the presumed natural father of a child with whom he never lived, did not find himself in an analogous situation compared to parents whose paternity has been legally established or compared to persons who have lived in domestic community with the child concerned for a long period. Likewise, he failed to demonstrate that in a similar situation, that is, in a situation in which the family relationship between the persons concerned has not yet been determined and in which there has not been a stable relationship with the child concerned, grandparents, brothers or sisters of the child would have been treated more favourably.

It follows that this part of the application must equally be dismissed as manifestly i ll-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President