FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13301/05 by Volker BUSSMANN against Germany

The European Court of Human Rights (Fifth Section), sitting on 25 September 2007 as a Chamber composed of:

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

Having regard to the above application lodged on 1 April 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Volker Bussmann, is a German national who was born in 1945 and lives in Frankfurt ( M ain ) . He was represented before the Court by Mr K. Petzel, a lawyer practising in Frankfurt ( M ain ) .

A. The circumstances of the case

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

The applicant has a daughter born in 1991. In 1998, he divorced the mother of the child who has obtained the sole right to custody ( alleiniges Sorgerecht ) and with whom the child is living. In 1998, both parents agreed that the applicant should have access to the child on a weekly basis. The relationship between the parents subsequently deteriorated. In summer 2000, the mother refused the applicant ’ s access because the child suffered from headaches and bad dreams. In November 2000, the child ’ s mother filed a claim in order to exclude the applicant ’ s access rights.

On 17 December 2003, the Frankfurt ( Main ) District Court suspended the applicant ’ s access rights to his child for a period of two years. The District Court had heard the child in 2002 in the presence of the curator ad litem ( Verfahrenspflegerin ). After the competent judge at the District Court had changed, it heard the child again in 2003. Moreover, it considered an expert opinion and heard the expert, a psychologist, in person. On this basis, the District Court concluded that the exclusion of the applicant ’ s access rights was necessary for the child ’ s welfare pursuant to section 1984 § 4 of the Civil Code (see Relevant domestic law, below). It reasoned that the child, being almost thirteen years old and going through the period of puberty, severely suffered from the fact that her mother was unable to give her the necessary support to deal with the applicant ’ s visits. The District Court observed that the mother had reacted very agitated during a court hearing because of the applicant ’ s presence. According to the expert, that situation was emotionally extremely difficult for, and harmful to, the child. The child had testified during the last court hearing that she wanted to decide for herself when to see the applicant, a view that was also confirmed by the curator ad litem . During the visits, the applicant would constantly talk, mostly in a derogatory way about the mother, and seek to manipulate the child ’ s views, even in the presence of a neutral third person. Because of his age and his lack of understanding, the applicant could not be expected to change his behaviour, as could be seen by the content of a letter which he had sent for the child ’ s twelfth birthday. Moreover, the applicant had approached the child at school on two occasions which had been very embarrassing for her. The District Court also ordered the mother to ensure that the child would write to the applicant every three months. Considering that the child did not obtain the emotional support from her, the District Court ordered the mother to bring the child to a psychological clinic for juveniles in order to start a therapy with a view to teach the child that affection and sympathy was not inevitably connected with the intrusive and manipulative conduct which the applicant had shown. As results of that therapy could not be expected earlier, it was necessary to exclude the applicant ’ s access rights for the period of two years.

On 8 April 2004, the Frankfurt ( Main ) Court of Appeal dismissed the applicant ’ s appeal, granted the mother legal aid and refused to grant legal aid to the applicant because his appeal lacked any prospects of success. The Court of Appeal found that the District Court had rightly excluded the applicant ’ s access rights for the period of two years, in particular taking into account that during the proceedings the child had clearly stated that she felt hassled and not taken serious by the applicant, that she did not want any further visits (even in the presence of third persons) and that she wanted the applicant to respect her decision. The present proceedings however showed that the applicant was incapable of accepting this. The applicant had paid two uninvited visits to the child ’ s school which had been very awkward for the child. Moreover, the letter which the applicant had sent to the child showed his negative attitude towards the mother and put the child under massive pressure. The content of the father ’ s letter indicated that the child ’ s objections had not been manipulated by the mother. The District Court had rightly found that there was no indication that the applicant would show comprehension and change his behaviour. The applicant did not appear to be aware or interested in the child ’ s needs. Moreover, the District Court had rightly taken the view that the mother ’ s behaviour had also not contributed to a normal relationship between the child and the applicant either. At the same time the mother had been willing to accept the help offered by the District Court. Taking into consideration the age of the child, the Court of Appeal considered it best to give the child the opportunity to reflect on her situation without the distress of the applicant ’ s visits and to decide for herself about any future contacts with the applicant to whom she still had a clearly visible relationship.

The Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint on 22 September 2004.

B. Relevant provision of the German Civil Code

Section 1684

“1. The child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child.

2. T he parents must not do anything that would harm the child ’ s relationship with the other parent or seriously interfere with the child ’ s upbringing. ...

3. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties. T hey may order the parties to fulfil their obligations towards the child.

4. The family courts may restrict or suspend th e right of access or the enforcement of previous decisions on access if this is necessary for the child ’ s welfare. A decision restricting or suspending the right of access or its enforcement for a longer period of time or permanently may only be taken if the child ’ s well-being were endangered otherwise. The family courts may order in particular that contacts may only take place in the presence of a cooperating third party . ”

COMPLAINTS

The applicant complained under Articles 6 and 8, also read in conjunction with Article 14, of the Convention about the allegedly erroneous court decisions removing his access rights to his child for the period of two years.

THE LAW

I. The applicant complained under Article 8 of the Convention that the German court decisions which suspended his access rights to his child violated his right to respect for his family life. Article 8 of the Convention 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.”

The applicant submitted that the decisions which temporarily removed his access rights amounted to a disproportionate interference with his right to respect for his family. The German courts had disregarded the agreement the applicant had made about this access rights with the mother of the child in 1998. Moreover, the reasons for the child ’ s psychological problems had remained unknown even after an expert opinion by a psychologist had been obtained by the courts. Since the child lived with the mother, it was more likely that the cause for the problems lay in her sphere. The District Court had wrongfully obtained an expert opinion from a psychologist who had not been a specialised medical doctor, and the expert opinion did not address whether the child ’ s problems were caused by the applicant ’ s lack of access to the child. The decision to exclude his access rights was ultimately a decision to the child ’ s detriment. The domestic courts had ignored the express will of the child to decide for herself about any future contact with the applicant and they had abused its powers and furthered the conflict between the parents. As a parent, he was discriminated against the other parent as the German courts gave priority to the mother. The applicant further complained that he did not have an oral hearing before the Court of Appeal, which prevented him from having a hearing on several issues such as his motion for a new expert opinion, the flaws of the expert opinion obtained by the District Court, violations of his fundamental rights by the District Court, a personal statement by the youth office as well as the possibility to hear the child before the Court of Appeal.

The Court recalls that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures which hinder such enjoyment amount to an interference with the right protected by Article 8 (see, amongst others, Johansen v. Norway , judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, pp. 1001-1002, § 52, and Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII). The impugned measure, namely the decisions of the German courts excluding the applicant ’ s right of access to his child temporarily, amounted to an interference with the applicant ’ s right to respect for his family life as guaranteed by paragraph 1 of Article 8 of the Convention.

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

The relevant decisions had a basis in national law, namely section 1684 § 4 of the Civil Code. Moreover, the Court is satisfied that the court decisions were aimed at protecting the interests of his child. Therefore, the court decisions were aimed at protecting the “health or morals” and the “rights and freedoms” of the applicant ’ s child and thus pursued legitimate aims within the meaning of paragraph 2 of Article 8.

In determining whether the impugned measure was “necessary in a democratic society”, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind (see Nekvedavicius v. Germany (dec.), no. 46165/99). Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows 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 margin of appreciation (see Görgülü v. Germany , no. 74969/01 , § 41 , 26 February 2004 , Hokkanen v. Finland , judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55, Bronda v. Italy , judgment of 9 June 1998, Reports 1998-IV, § 59, and, mutatis mutandis , Elsholz cited above, § 48).

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 cited above, § 50, and T.P. and K.M. v. the United Kingdom , no. 28945/95, § 71).

The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. In particular when deciding on custody, the Court has recognised that the authorities enjoy a wide margin. However, a stricter scrutiny is called for as regards any further limitations . Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Görgülü cited above, § 42, Elsholz cited above, § 49 , and Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002-I).

In the present case, the German courts based their decisions on the consideration that the exclusion of the applicant ’ s access rights was necessary for the child ’ s welfare pursuant to section 1984 § 4 of the Civil Code. At first instance, the District Court had regard to an expert opinion and heard the expert, a psychologist, who stated that the situation was emotionally extremely difficult and harmful to the child. The child had testified that she wanted to decide for herself when to see the applicant. The latter would seek to manipulate the child ’ s views, even in the presence of a neutral third person. Because of his age and his lack of understanding, the applicant could not be expected to change his behaviour.

Upon the applicant ’ s appeal, the Court of Appeal confirmed that view and considered it best to give the child the opportunity to reflect on her situation without the distress of the applicant ’ s visits and to decide for herself about any future contacts. The Court of Appeal however also mentioned that the child still had a clearly visible relationship with the applicant.

The Court considers that, having regard to the circumstances of the case, particularly the child ’ s age (thirteen years) and the fact that the District Court heard the child itself who explicitly opposed the applicant ’ s access, the decision to suspend his access rights appears to be based on relevant and sufficient grounds which do seem to be neither arbitrary nor manifestly erroneous. In particular, the Court notes that the District Court also took a critical attitude towards the mother ’ s behaviour and ordered her to let the child start a therapy and write a letter to the applicant every three months.

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. The applicant has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests (see mutatis mutandis , Elsholz v. Germany , cited above, § 52). Bearing in mind that the national courts were in a better position than the Court to strike a fair balance between the interests of the child in living in a peaceful environment and those motivating the steps taken by their father (see mutatis mutandis , Söderbäck v. Sweden, judgment of 28 October 1998, Reports 1998-VII, pp. 3095-96, §§ 30-34), the courts did not exceed the margin of appreciation afforded to them under paragraph 2 of Article 8.

The case does not raise any additional issues as far as Article 14 of the Convention is invoked in conjunction with Article 8 of the Convention.

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

II. The applicant further complained under Article 6 § 1 of the Convention about the allegedly erroneous court decisions.

The relevant part of Article 6 § 1 provides that:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. “

The applicant submitted that that the courts had been prejudiced and did not sufficiently consider the applicant ’ s arguments. By having taken three years to decide on the issue, the District Court deliberately delayed the proceedings, effectively prolonging his lack of access to a period of five years. Therefore, they further estranged the child which will make future contacts even more difficult. The applicant also complained that the Court of Appeal refused his motion for legal aid.

The Court considers that the overall length of the proceedings, which commenced in November 2000 and ended in September 2004, amounted to a period of three years and ten months and involved three instances. Therefore, the length of the proceedings cannot be regarded as excessive.

As to the applicant ’ s complaint about the Court of Appeal ’ s refusal to grant him legal aid for lack of any prospect of success, the Court reiterates that there is no obligation under the Convention to make lega l aid available for all disputes . The refusal to grant legal aid may however amount to a denial of access to court if a Contracting State which sets up a judicial system does not ensure that persons within its jurisdiction enjoy the fundamental guarantees in Article 6 § 1 of the Convention (see Del Sol v. France , no. 46800/99, judgme nt of 26 February 2002, § 21). Considering that a legal aid system can only operate if machinery is in place to enable selection to be made of those cases qualifying for it (see Del Sol v. France , cited above, § 23) , it is compatible with the Convention to refuse legal aid on the ground that a claim lacks reasonable prospects of success . As the German legislature moreover provides that a motion for legal aid is examined by a court, there is no appearance of a viol ation of the applicant ’ s right to a fair trial under Article 6 § 1 of the Convention.

The remainder of the applicant ’ s complaints under Article 6 § 1 do not raise any separate issues from the procedural requirements already dealt with under Article 8 § 1 of the Convention.

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

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer L orenzen Registrar President