FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42550/05 by Petra KNEIPP against Germany

The European Court of Human Rights (Fifth Section), sitting on 2 October 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mr V. Butkevych , Mr R. Maruste , Mrs R. Jaeger , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 25 November 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Petra Kneipp, is a German national who was born in 1970 and lives in Reichelsheim in Germany . She was represented before the Court by Mr R. Eschstruth, a lawyer practising in Bad Wildungen.

A. The circumstances of the case

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

1. Background of the case

The applicant is the mother of a son born out of wedlock on 10 July 2000. The applicant, who had full parental authority, raised the child until the age of one. Subsequently, the child was placed in the care of foster parents.

On 25 June 2002 the Büdingen District Court ( Amtsgericht ) withdrew the applicant ’ s parental authority over her son and transferred it to the District Youth Office. Following expert opinion, that court considered that the applicant was permanently unable adequately to raise her child as she suffered from borderline-syndrome or a comparably serious personality disorder.

Since October 2002 the child lives with the foster parents Mr and Mrs L., who have special pedagogical training.

2. Proceedings on access rights

The applicant, represented by counsel, lodged a request with the Büdingen District Court to be granted weekly access rights to her son.

On 29 November 2002 the District Court, following an oral hearing, granted the applicant monthly visits of a duration of one hour and a half within the premises of a social institution and in the presence of a staff member of that institution.

On the basis of the expert opinion submitted in the custody proceedings and of the result of the oral hearing, that court considered that the applicant was permanently unable to take care of the child and that the child was to remain permanently with the foster family. It was presently of eminent importance that the child formed bonds with the foster parents which came close to those existing between parents and their natural children. An extension of access rights would seriously disturb the formation of such bonds and would be contrary to the child ’ s best interests.

On 20 December 2002 the applicant lodged a complaint with the Frankfurt Court of Appeal ( Oberlandesgericht) with the aim of being granted more extensive access rights. She argued that the monthly access rights were not sufficient to maintain the parental relationship to her son. Conversely, the foster parents opposed further access rights on the grounds that the child was very much disturbed following contacts with the applicant and that they could not cope with further visiting contacts having regard to the problems which were likely to arise.

The Court of Appeal held three hearings in the presence of the applicant, the foster parents and a representative of the social institution supervising the exercise of access rights.

On 11 December 2003 the Court of Appeal ordered the preparation of an expert opinion as to which extent of access rights were in the child ’ s best interests.

On 26 May 2004 the psychological experts submitted their expert opinion. Having examined the applicant and attended one meeting between the applicant and her son, they considered that the applicant ’ s psychological disorders had been confirmed by their examination. According to the experts, the applicant displayed erratic behaviour and lacked, in particular, the capability adequately to react on a social and emotional level. There was no evidence of an emotional bond between the applicant and her son. The child did not seem to feel at ease with his mother and was relieved to return to his foster parents.

Having regard to the applicant ’ s psychological disorder, the experts considered that intensive contacts with his mother would jeopardise the child ’ s development. More frequent visiting contacts would disturb and destabilise the child. Conversely, it was presently important for the child to build a stable relationship to his foster parents.

It followed that the present regulations on access rights best served the child ’ s interests. Having regard to the child ’ s further development, an extension of access rights could be envisaged in the future.

On 21 December 2004 the Frankfurt Court of Appeal rejected the applicant ’ s appeal. Referring to the written expert opinion and the statement given by one of the experts during the oral hearing, the Court of Appeal considered that an extension of access rights was not completely excluded, but should not be envisaged before the child had reached the age of six to nine years. Following the expert recommendations, the Court of Appeal considered that the child was too young to cope with the applicant ’ s rapid mood swings, which also became apparent during the court hearing, and her inability adequately to respond to her social counterpart. This did not mean that the present access rights had to be further restricted. While the meetings between the applicant and the child could be described as harmonious during the allotted hour and a half, the child was content to say good-bye after the visits and looked forward to see his foster parents. As had been confirmed during the oral hearing, the applicant was much better able to concentrate during the first hour and a half. Under these circumstances, it was understandable that the visiting contacts took place in a harmonious way within the given time-frame, while further contacts would presently not be favourable to the child ’ s development.

On 14 October 2005 the Federal Constitutional Court , sitting as a panel of three judges, refused to admit the applicant ’ s constitutional complaint for adjudication. This decision was served on the applicant ’ s counsel on 26 October 2005.

B. Relevant domestic law

According to section 1684 of the Civil Code , a child is entitled to have access to his or her parents; each parent is obliged to have contact with, and entitled to have access to, the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child ’ s welfare.

A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child ’ s well-being would be jeopardised (section 1684 § 4).

COMPLAINT S

1. The applicant complained under Article 8 of the Convention about the restrictions imposed on access to her son .

2. Invoking in substance Article 8 in conjunction with Article 14 of the Convention, the applicant further complained that the child ’ s natural father enjoyed more generous access rights than herself.

THE LAW

1. Alleged violation of Article 8 of the Convention

The applicant alleged that the domestic courts ’ decisions dismissing her request to grant her a broader right of access to her son violated her right to respect for her family life, as guaranteed by Article 8 of the Convention, which provides:

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

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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

According to the applicant, the monthly access rights were insufficient to maintain the parental relationship to her son, who had become alienated from her. She maintained that she had never disturbed the relationship between her son and his foster parents. She further alleged that the foster mother had exercised undue pressure on the court and on the court-appointed expert. She finally complained that the Court of Appeal had failed to ask her attending physician to submit his medical opinion on her state of health.

The Court finds that the domestic courts ’ decision not to grant the applicant ’ s request for a broader right of access interfered with her right to respect for her family life, as guaranteed by Article 8 § 1.

Any such interference will constitute a violation of this Article unless it is in accordance with the law, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”.

The Court considers that the decision at issue had a basis in national law, namely section 1684 of the Civil Code, and that it was aimed at protecting the best interest of the child, which is a legitimate aim within the meaning of paragraph 2 of Article 8 (see Keegan v. Ireland , judgment of 26 May 1994, Series A no. 290, p. 20, § 44; and Görgülü v. Germany , no. 74969/01, § 37, 26 February 2004 ).

It therefore remains to be determined whether the decision could be regarded as “necessary in a democratic society”. In this respect, the Court has to consider whether, in the light of the case as a whole, the reason s adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin and Sommerfeld v. Germany [GC], nos. 30943/96 and 31871/96, § 64 and § 62 respectively, ECHR 2003-VIII; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 71, ECHR 2001-V ; Gör gülü , cited above, § 41; and Wildgruber v. Germany (dec.), no. 32817/02, 16 October 2006 ).

Furthermore, a fair balance must be struck between the interests of the child and those of the parent and, in striking such a balance, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular, the parent cannot be entitled under Article 8 to have such measures taken as would harm the child ’ s health and development (see Elsholz v. Germany [GC], no. 25735/94, § 50 , ECHR 2000 ‑ VIII ; and T.P. and K.M. , cited above, § 71).

The Court finally recalls that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see T.P. and K.M . , cited above, § 72 ; Sahin, cited above, § 68; and Sommerfeld , cited above, § 66) .

The Court notes at the outset that the question of parental authority and the child ’ s place of residence, namely that he should stay with the foster family, had been decided in June 2002, and that the ensuing court proceedings were only to determine access rights.

In reviewing whether the domestic courts, in the exercise of their margin of appreciation, based their decisions on relevant grounds, the Court observes that the German courts considered that additional personal contacts with the applicant would jeopardise the child ’ s welfare. The Frankfurt Court of Appeal, basing its decision on expert opinion and on the result of the oral hearing, considered that it would jeopardise the child ’ s development to grant more extensive visiting rights. Having regard to the child ’ s young age, that court considered that the child was not able to cope with the applicant ’ s rapid mood swings and her inability adequately to respond on a social level. The Court further notes that the restriction on access rights was not devised as a permanent measure, but remained open to review, having particular regard to the child ’ s increasing age.

In view of this, the Court is satisfied that the domestic courts ’ decisions can be taken to have been made in the child ’ s best interests, which, due to their serious nature, must override the applicant ’ s interests. Therefore, the national courts adduced relevant reasons to justify their decisions refusing to grant the applicant a broader right of access.

Turning to the procedural aspect of the case, the Court observes that both in the proceedings before the District Court and before the Court of Appeal the applicant, who was represented by counsel, was placed in a position enabling her to put forward all arguments in favour of obtaining a broader visiting arrangement. The evidential basis for the District Court ’ s decision included the applicant ’ s written and oral submissions and the statements made by the foster parents and by the social organisation supervising access rights. The Court of Appeal, in addition to the contents of the case-file, based its findings on the results of three fresh oral hearings and consulted psychological experts.

Under these circumstances, the Court considers that the decision-making process, seen as a whole, was based on a sufficiently broad evidential basis and provided the applicant with the requisite protection of her interests. Even applying a strict scrutiny as the applicant ’ s access rights were concerned, the Court cannot find that the German courts did not sufficiently take into account the applicant ’ s interests. In this respect, the Court attaches particular weight to the fact that the domestic courts did not exclude an extension of visiting rights for the future. The interference can therefore be regarded as “necessary in a democratic society”.

It follows that this complaint must be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The complaint about unequal treatment

Invoking in substance Article 8 in conjunction with Article 14 of the Convention, the applicant further complained that the fact that the child ’ s father enjoyed more favourable access rights than her amounted to discriminatory treatment.

The Court, having regard to all material in its possession, finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that also this complaint must be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these r easons, the Court - unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President