FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6600/05 by Ismail BAYAR against Germany

The European Court of Human Rights (Fifth Section), sitting on 11 September 2007 as a Chamber composed of:

Mrs S. Botoucharova , President , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , 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 19 February 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ismail Bayar, is a Turkish national who was born in 1964 and lives in Herzebrock-Clarholz in Germany . He was represented before the Court by Mr H. Glass of the lawfirm Rumpenhorst – Gockel – Rettig, practising in Beckum.

A. The circumstances of the case

1. Background to the case

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

The applicant is the father of a son (M), born on 17 January 1999. The applicant and the child ’ s mother divorced in 1996, but lived together at the time of M ’ s birth and held joint parental authority over the child. In November 1999, M lived with his mother.

On 2 November 1999 the Gütersloh municipal authority informed the Gütersloh District Court ( Amtsgericht ) about tensions and physical violence between the parents. Following two court hearings the parents agreed that the mother should be granted the right to decide about the child ’ s place of residence and that the father should be granted supervised access rights within the premises of the child protection agency ( Kinderschutzbund ). The mother declared that she would accept social-pedagogical family support.

On 17 April 2000 the municipal authority informed the District Court that the parents had refused to accept further support by the child protection agency and that the mother had refused to accept family support, which she did not deem necessary.

On 17 July 2000 the Gütersloh District Court, following expert recommendation, withdrew by interim order the mother ’ s rights to decide about the child ’ s place of residence and to care for the child and transferred these rights to the municipal authority. The municipal authority placed the child temporarily in a children ’ s home. On 26 July 2000 M was placed in a foster family.

On 2 August 2000, following an oral hearing, the Gütersloh District Court confirmed its interim order. All parties to the proceedings waived their right to appeal.

On 21 February 2001 the applicant and the child ’ s mother lodged separate requests to be restored parental authority, alternatively to be granted access rights.

On 27 November 2001 the psychological expert O., having examined the child, both parents and the foster parents, submitted her expert opinion. She considered that, while the mother was not able adequately to take care of the child, the father was in principle able to take care of him. Furthermore, M. enjoyed a positive relationship with his father. The expert observed, however, that during the period of one year and three months he had spent in the foster family, M had developed bonds to the foster family. Taking into account the fact that the child had spent half of his life with the foster family and that the years until the child ’ s reaching the age of three were decisive for the formation of such bonds, which stayed unchanged for the remainder of childhood, the expert considered that it would jeopardise the child ’ s welfare to remove him from the foster family.

On 24 October 2002 the District Court restored parental authority to the parents and ordered that M should remain with the foster family ( Verbleibensan ordnung ). All parties to the proceedings waived their right to appeal.

The applicant is currently living with his new wife, their daughter and a stepdaughter.

2. The proceedings relating to access rights

The proceedings relating to the parents ’ access rights were severed from the proceedings on parental authority.

On 24 October 2002 the parties agreed, on a preliminary basis, that the applicant should have the right to visit M once every four weeks for three hours within the premises of a social organisation. The mother was granted access rights for two hours every six weeks. The visits took place as envisaged.

On 22 May 2003 the Gütersloh District Court, following an oral hearing, temporarily suspended access rights. On 1 July 2003 the District Court judge visited M in the foster parents ’ home.

On 9 July 2003 the District Court ordered that the applicant should have the right and the duty to visit M every three months for two hours in the presence of an appropriate third person within the premises of the social organisation. The mother was granted access rights for one hour every three months.

Taking into account the reports submitted by the social organisation on the visiting contacts, the results of the oral hearing, the personal impression the judge had gained of the child and the submissions by the child ’ s court-appointed curator ad litem , the District Court considered that this regulation on access rights best served the child ’ s interests.

The District Court considered, at the outset, that M could not be returned to his parents within the next years. This had been the outcome of the proceedings on custody rights, as manifested in the decision that M should remain with the foster family. The District Court judge had hoped that further access rights would be beneficial for the child if the parents ceased to argue about M ’ s place of residence. However, as became clear during the oral hearing held on 22 May 2003, this had not been the case. Neither the mother nor the father had been able to discuss access rights separately from the question of residence. It had been impossible to talk reasonably with the applicant. The fact that the applicant ’ s counsel requested the order that M should remain with the foster family be lifted further demonstrated that the parties did not agree on the child ’ s place of residence.

Referring to the report submitted by the child ’ s curator ad litem , the District Court further noted that the visiting contacts which took place between November 2002 and May 2003 had not been beneficial for the child. M had been very strained before and after the contacts. The conflicts about his place of residence unsettled the child.

Following this assessment, the District Court considered that M was burdened by the unresolved question of his place of residence. It had not been possible to keep the child out of these conflicts, as the parents were unable to accept that the child remained with the foster family. It was, however, essential for M to have the security to remain with the foster family.

The District Court further observed that the foster parents had fully cooperated and had made no effort to avoid or restrict access rights. The applicant, on the other hand, had never expressed his concern for the child ’ s well-being, but merely stressed that the child was “his flesh and blood”.

The Court further considered that M suffered from a serious eating disorder and that his condition, which had improved before the oral hearing held on 24 October 2002, had aggravated.

By way of conclusion, the District Court considered that M had the right to know his parents and to have access to them. Having regard to the feeling of uncertainty which had been caused by the recent contacts, it appeared to be in the child ’ s best interest to limit contacts to once in a three-month period. On the one hand, there was the reasonable hope that M could settle down, on the other hand, there was sufficient contact to the biological parents.

Both parents lodged appeals, the applicant with the aim to be granted access at least every third weekend from Saturday 9 a.m. to Sunday 6 p.m.

On 10 December 2003 the Hamm Court of Appeal ( Oberlandesgericht ) ordered t he preparation of an expert opinion as to which regulation of access rights best served the child ’ s interests.

On 4 May 2004 the expert B submitted her expert opinion. She considered that M had shown massive behavioural disorders in connection with the former regulation on access rights. These had mainly been caused by the child ’ s insecurity and conflicts of loyalty and the fear of losing the foster family, which had been intensified by the visiting contacts. Since the installation of the new regulations on access rights, the behavioural disorders had diminished. The visits had contributed to maintaining the relationship to his family of origin.

With the aim of preserving the positive aspects of the visiting contacts while limiting the negative effects, the expert considered that the meetings should take place within a predictable and stable framework. As the biological parents did not accept that M remained with the foster family, the only possibility to limit the negative effects was to put a limitation on access rights. The expert considered that the present regulations had proved to be successful.

The expert further considered that it would be positive if the applicant could be granted more generous access rights in the mid-term future. She recommended offering the applicant special counselling which would allow him to come to terms with the child ’ s stay in the foster family and enable him better to understand the child ’ s feelings and needs.

On 7 July 2004 the Hamm Court of Appeal, having heard all parties to the proceedings, rejected the parents ’ complaints against the District Court ’ s decision of 9 July 2003. The Court of Appeal noted that the expert, when personally heard, considered that the child enjoyed good contacts with the applicant and that the parents had to assure M that he could stay with the foster family.

The foster parents submitted that M had cried for an hour before the court hearing. He was always very agitated when fearing changes of his situation and soiled himself, but had calmed down recently.

Having regard to the parties ’ submissions and personal statements and to the expert opinion, the court considered that it would jeopardise the child ’ s welfare to grant more extensive visiting rights. According to the Court of Appeal, it was understandable that the biological parents had the wish that the child be returned to them. However, this attitude imposed a serious strain on M, who felt torn between his biological parents and the foster parents. As had been confirmed by the personal statements given by the relevant parties, M had the wish presently to remain with the foster parents, whom he regarded as his relevant attachment figures. During the visiting contacts the conflict of interests became apparent and unsettled the child considerably. The child was in need of the firm knowledge that he was not taken from the foster family against his own wishes.

It would be preferable if the biological parents could convey him this confidence. As this was presently not the case, it was necessary to limit access rights. The court further considered it necessary to order supervision in order to avoid conflicts.

By way of conclusion, the Court of Appeal conceded that the time-frame of visiting contacts was restrictive. However, having regard to the previous development of visiting contacts, that court considered that the visits were sufficient to maintain the appropriate contacts between M and his parents. It was thus assured that the bonds to his parents and the emotional relationship remained intact.

On 27 September 2004 the Federal Constitutional Court , sitting as a panel of three judges, refused to admit the applicant ’ s constitutional complaint.

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

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

THE LAW

The applicant alleged that the Hamm Court of Appeal ’ s decision dismissing his request to grant him a broader right of access to his son violated his right to respect for his 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 Hamm Court of Appeal had failed to take into account the positive and close relationship he enjoyed with his son, and which had also been confirmed by the finding of the court-appointed expert O. He alleged that the expert had considered the meetings to be beneficial for the child. The Court of Appeal ’ s reasoning had been based on mere assumptions. There was no indication that M had suffered any harm through the previous visiting contacts. Furthermore, he had fully cooperated with regard to access rights. The applicant further alleged that the expert opinion was biased against him and contradictory. The Court of Appeal ’ s decision made it impossible to strengthen the relationship between himself and his son with a view of reuniting the family. The domestic authorities had thus failed to fulfil their positive obligation to facilitate family reunion.

The Court finds that the Court of Appeal ’ s decisions not to grant the applicant ’ s request for a broader right of access interfered with his right to respect for his 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 decisions 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 these measure s 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 ).

Although the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in an effective “respect” for family life. Thus, where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited (see Margareta and Roger Andersson v. Sweden , judgment of 25 February 1992, Series A no. 226 ‑ A, p. 30 § 91; Olsson v. Sweden (no. 2) , judgment of 27 November 1992, Series A no. 250, pp. 35-36, § 90; Ignaccolo-Zenide v. Romania , no. 31679/96, § 94, ECHR 2000 ‑ I; and Gnahoré v. France , no. 40031/98, § 51 ECHR 2000 ‑ IX ).

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 the child ’ s place of residence, namely that he should stay with the foster family, had been decided in October 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 access rights on relevant grounds, the Court observes that the German courts considered that additional personal contacts with the applicant would jeopardise the child ’ s welfare. At first instance the Gütersloh District Court, referring to the child ’ s curator ad litem , observed that the more extensive visiting rights which the applicant enjoyed between November 2002 and May 2003 with the full cooperation of the foster parents had not been beneficial for the child, who felt torn between the foster family and his biological parents. He had been very strained before and after the visiting contacts and his eating disorder had aggravated during this period of time. At the oral hearing, the applicant and likewise M ’ s mother had not been able to discuss reasonably access rights without questioning the child ’ s place of residence. Under these circumstances, the District Court decided to restrict the applicant ’ s access in order to give M the opportunity to settle down.

On appeal by the applicant, the Hamm Court of Appeal, having heard all relevant parties as well as expert opinion, confirmed the District Court ’ s decision. That court considered that it was essential that the child was given the assurance that he could remain with the foster parents, who had become his attachment figures. As the biological parents were not capable of assuring him in this respect, it was necessary to limit access rights. The Court of Appeal further took note of the expert ’ s submissions that the new visiting arrangement had proved to be successful, as the child ’ s behavioural disorders had diminished.

The Court observes that the domestic authorities, when deciding on access rights, did not envisage that M would move into the applicant ’ s household in the near future. The Court notes in this respect that M was placed with the foster family in July 2000 at the age of eighteen months. The District Court, following expert recommendation, esteemed that the child ’ s welfare was jeopardised if he remained in his mother ’ s household. Both the applicant and the child ’ s mother waived their right to appeal against the District Court ’ s decision of 24 October 2002, thus accepting that M remained with the foster family. By the time the Hamm Court of Appeal reached its decision on access rights in July 2004, M, then aged five and a half years, had lived for four years with the foster family, with whom he had developed bonds. According to expert opinion, M suffered from behavioural disorders which were aggravated by the fear of being separated from his foster parents, who had become his attachment figures. The Court further notes that M had never lived in the applicant ’ s new household with his father ’ s new wife and children. Under these circumstances, the Court does not consider that the domestic courts, when basing their decision on the assumption that M could not move to the applicant ’ s household in the near future, failed to comply with their positive obligation under Article 8 to promote a reunion between the applicant and his son.

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.

In assessing whether those reasons were also sufficient for the purposes of Article 8 § 2, the Court will notably have to determine whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests.

The Court observes that both in the proceedings before the District Court and before the Court of Appeal the applicant was placed in a position enabling him 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 and the mother ’ s written and oral submissions, the statements made by the child ’ s curator ad litem , the foster parents, and by the social organisation supervising access rights. Furthermore, the District Court judge visited M in the foster family ’ s household. The Court of Appeal, in addition to the contents of the case-file, based its findings on the results of a fresh oral hearing and consulted a psychological expert.

Under these circumstances, the Court considers that the decision-making process, seen as a whole, was based on a broad evidential basis and provided the applicant with the requisite protection of his 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. The interference can therefore be regarded as “necessary in a democratic society”.

It follows that the application must be dismissed as 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 Snejana Botoucharova Registrar President