FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16013/04 by Holger KLEINERT against Germany

The European Court of Human Rights (Fifth Section), sitting on 20 February 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa - Nikolovska , Mr J. Borrego Borrego , Mrs R. J aeger, Mr M. Villiger , judges , and Mr s C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 30 April 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr. Holger Kleinert, is a German national who lives in Delitzsch . He was represented before the Court by Mr. Merker, a lawyer practising in Leipzig .

A. The circumstances of the case

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

The applicant, a dentist, is the father of a daughter born out of wedlock in 1998. As the applicant and the mother with whom the child lives did not give a declaration on joint custody ( gemeinsame Sorgerechtserklä r ung ), the mother obtained sole custody ( alleinige Personensorge ) pursuant to section 1626a § 2 of the German Civil Code ( Bürgerliches Gesetzbuch , see relevant domestic law).

The applicant initially had access to the child on a regular basis. The child occasionally stayed with him. The applicant or his parents would also care for the child on weekdays before the mother returned from work. From 2001 to 2003, the applicant had access to the child for one week-end per month and during certain holidays. In September 2003, the Eilenburg District Court ordered that the applicant had the right of access to the child every other week-end and during holidays.

At Easter 2003 the mother informed the applicant that she was planning to move with the child to Mallorca in Spain in order stay with her partner from July 2003. The applicant subsequently instituted civil proceedings in order to obtain the sole right to custody or, alternatively, to prevent the mother from leaving Germany with the child.

On 30 July 2003 the Eilenburg District Court rejected the applicant ’ s claim. The court heard the applicant, the mother and the child and considered a report from the Youth Office. The child declared that it wanted to be both with the mother and the applicant. The Eilenburg District Court considered the applicant as generally suitable for having the custody of his child and that the decision was therefore not a negative assessment of his suitability. However, the Eilenburg District Court stressed that, in order to transfer custody to the applicant, it was necessary to withdraw it from the mother who had sole custody pursuant to section 1626a § 2 of the Civil Code. The only possibility under the German legislation to withdraw the mother ’ s custody was therefore pursuant to sections 1666 and 1666a of the Civil Code, according to which the family court may order appropriate measures in case of an abuse of custody and a resulting threat for the child ’ s physical, psychological or mental well-being. The Eilenburg District Court found that the requirements of these provisions had not been met. The court held that, if the child accompanied her mother to Mallorca , neither her well-being nor her property was endangered in such a way that the only appropriate measure was the withdrawal of the mother ’ s custody. Admittedly, the child would be taken away from her familiar environment, but this was generally the case when parents moved with their children. It was therefore decisive that the child was able to maintain contacts with familiar persons. Moreover, the child would be able to become familiar with a different culture and a new language. As far as the applicant complained that the mother of the child was not suitable for the exercise of custody, the Eilenburg District Court considered the applicant ’ s submissions as unfounded. Furthermore, the mother ’ s decision to move to Mallorca to live with her new partner could not be challenged under section 1684 of the Civil Code as the mother ’ s reasons for moving were cogent. She had offered the applicant every possible access to his child once she had moved to Spain , and the applicant had the financial means for regular visits so that his right to access was not frustrated.

Shortly after the Eilenburg District Court ’ s decision, the mother and the child moved to Mallorca .

On 29 October 2003 the Dresden Court of Appeal rejected the applicant ’ s appeal against the Eilenburg District Court ’ s decision. The Dresden Court of Appeal heard the child which declared that she preferred to stay in Germany where her friends and her father, whom she loved, were. The court however found that the child ’ s opposition of her new home in Spain would not last once the child grew up and developped further. Measures in accordance with section 1666 of the Civil Code would require more than a mere abstract danger for the well-being of the child. Because of the short time the child had spent in Spain , it was impossible for her to form relationships similar to the ones she had in Germany . The obviously painful separation from the applicant who had cared for the child to a remarkably large extent could be compensated by the fact that the applicant had the right of access to the child every other week-end and during holidays per court order of the Eilenburg District Court of September 2003. The exercise of his right to access was made more difficult due to the territorial distance but not reduced to an unjustifiable extent. The Dresden Court of Appeal also took into account that the mother had cogent reasons to move to Mallorca in order to live with her new partner.

On 17 February 2004 the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint.

B. Relevant domestic law and practice

I. Relevant prov isions of the German Civil Code

The statutory provisions on custody and access are to be found in the German Civil Code . According to section 1626 § 1 of the Civil Code, t he father and the mother have the right and the duty to exercise parental authority ( elterliche Sorge ) over a minor c hild. The parental authority includes the custody and the care of property ( Vermögenssorge ) of the child.

Originally, the custody of children born out of wedlock was, according to section 1705 of the Civil Code, automatically obtained by the mother. That provision was however declared unconstitutional by the Federal Constitutional Court in 1996. On 1 July 1998, the amended Law on Family Matters of 16 December 1997 ( Reform zum Kindschaftsrecht , Federal Gazette 1997, p. 2942), entered into force to implement the Federal Constitutional Court ’ s judgment of 1996. The relevant law in the Civil Code was changed as follows: pursuant to section 1626a § 1, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. Otherwise section 1626a § 2 provides that the mother obtains sole custody.

Pursuant to section 1666 of the Civil Code, the family court may order the necessary measures if the child ’ s physical, psychological or mental well-being is threatened by malpractice of custody if the parents are unwilling to take those measures. Measures which cause a separation of the child from the parent are only admissible if the danger for the child cannot be averted otherwise (section 1666a of the Civil Code).

According to section 1684 of the Civil Code, a 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. Moreover, the parents must not do anything that would harm the child ’ s relationship with the other parent or seriously interfere with the child ’ s upbringing.

II. Case-law of the F ederal Constitutional Court

On 29 January 2003, the Federal Constitutional Court found that section 1626a of the Civil Code was unconstitutional because it lacked a provisional period for unmarried couples with children who had lived together in 1996 but separated before the amended Law on Family Matters entered into force on 1 July 1998 ( i.e. they could have had the opportunity to obtain joint custody if the legislation at the time would have been constitutional). In order to settle the above constitutional flaws, the German legislator introduced on 31 December 2003 section 224 (2) (a) of the Introductory Act to the Civil Code ( Einführungsgesetz in das Bürgerliche Gesetzbuch ), according to which a court can substitute the mother ’ s consent to joint custody if an unmarried couple has a child born out of wedlock, has lived together with the child and has separated before 1 July 1998, provided that joint custody would serve the child ’ s interest ( Kindeswohl ).

In its judgment of 29 January 2003, the Federal Constitutional Court however also held that section 1626a § 2 of the Civil Code, apart from the lack of a provisional period, did not violate the right to respect for their family life of fathers whose children were born out of wedlock. Parents who were married had obliged themselves upon marriage to take responsibility for themselves and their children. In contrast to this, the legislator could not assume that parents of children born out of wedlock lived together or wanted to take responsibility for each other. Moreover, there was not sufficient actual evidence that a father of a child born out of wedlock wanted to bear joint responsibility as a general rule. The child ’ s well-being therefore demanded that the child had a person upon birth which can act for the child in a legally binding way. In view of the very different life conditions into which those children were born into, it was justified to generally grant sole custody to the mother, and not to the father or to both parents. This legislation could also not be objected from a constitutional point of view because the legislator had given parents of children born out of wedlock the possibility to both obtain custody through a joint declaration.

COMPLAINT

The applicant complained under Articles 8 of the Convention that the outcome of the proceedings violated his right to respect for his family life. Moreover, he complained under Article 8 read in conjunction with Article 14 of the Convention that section 1626 a § 2 of the Civil Code amounted to an unjustified discrimination on grounds of sex.

THE LAW

The applicant complained under Article 8 of the Convention that the court decisions violated his right to respect for his family life, and that section 1626 a § 2 of the Code of Civil amounted to an unjustified discrimination on grounds of sex outcome (Article 8 read in conjunction with Article 14 of the Convention).

Article 8 provides the following:

“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.”

Article 14 reads as follows:

“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 applicant finds that Articles 8 and 14 of the Convention should take priority over the provisions in the German Civil Code. He points to the legal situation in France according to which parents of children born out of wedlock automatically obtain joint custody. Section 1626a of the German Civil Code basically enabled the mother of a child born out of wedlock to deny joint custody without any reasons in the sure knowledge that she would obtain sole custody. A German father of a child born out of wedlock could only obtain custody against the will of the mother if her right to custody would be withdrawn pursuant to section 1666 and 1666a of the Civil Code, which effectively gives the mother a veto over the father ’ s custody.

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 measures in the instant case, namely the decisions of the German courts refusing the transfer of custody to the applicant or, alternatively, prevent the mother from moving to Mallorca with the child, 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.

The interference mentioned in the preceding paragraph 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 sections 1666, 1666a and 1684 of the Civil Code. The Court is satisfied that the court decisions of which the applicant complained about were aimed at protecting the interests of the 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). 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 ( Elsholz cited above, § 49) .

It is true that the Federal Constitutional Court in its judgement of 29 January 2003 gave detailed reasons regarding the conflict between section 1626a of the Civil Code and the rights of fathers of children born out of wedlock to have their family life respected. The Federal Constitutional Court found that the child ’ s well-being demanded that it had a person upon birth who can act for the child in a legally binding way. In view of the very different life conditions into which those children were born into, it was justified to generally grant sole custody to the mother, and not to the father who in any event had the possibility to obtain custody in the event of a joint declaration for custody.

In cases arising from individual applications it is, however, not the Court ’ s task to examine the domestic legislation in the abstract, but it must examine the manner in which that legislation was applied to the applicant in the particular circumstances ( Sommerfeld v. Germany [GC], no. 31871/96, § 86 , ECHR 2003 ‑ VIII (extracts) ) . The Court therefore does not find it necessary to consider whether the former German legislation as such, namely section 1626a § 2 of the Civil Code, made an unjustifiable distinction between fathers and mothers of children born out of wedlock.

Thus the Court has examined the particular circumstances of the present case. It finds that both the Eilenburg District Court and the Dresden Court of Appeal carefully balanced the interests of both the applicant and the mother. The Eilenburg District Court heard the parents, considered a Youth Office report and heard the child which was also heard later on appeal by the Dresden Court of Appeal.

On the whole, the German courts found that the child was well placed in the mother ’ s custody. Both the Eilenburg District Court and the Dresden Court of Appeal noted that the mother had cogent reasons to move from Germany and had offered the applicant all possible means to have contact with his child and to visit her. Moreover, the applicant has the financial means to exercise his right to access. The Court notes that before the Dresden Court of Appeal the child stated that it preferred to stay in Germany and that she was missing her father. The reasons in reply given by the Court of Appeal, which pointed out that the period of time the child had spent in Mallorca was still too short to enable any definite conclusions, but that it could be assumed that the child would adjust better with time, appear comprehensible and convincing.

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 children 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 under Article 14 of the Convention.

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

For these reasons, the Cou rt unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President