FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34045/96 by Friedhelm HOFFMANN against Germany

The European Court of Human Rights (Fourth Section) , sitting on 12 December 2000 as a Chamber composed of

Mr A. Pastor Ridruejo , President , Mr G. Ress , Mr L. Caflisch , Mr J. Makarczyk , Mr I. Cabral Barreto , Mrs N. Vajić , Mr M. Pellonpää , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 15 July 1996 and registered on 5 December 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a German national, born in 1954 and living in Mülheim . He is the father of the child J., born out of wedlock on 25 August 1985.

The respondent Government were represented by their Agents, Mrs H. Voelskow-Thies , Ministerialdirigentin , of the Federal Ministry of Justice, at the initial stage of the proceedings, and subsequently by Mr K. Stoltenberg, Ministerialdirigent , also of the Federal Ministry of Justice.

A. The circumstances of the case

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

The applicant and the child's mother, Ms S., lived together at the time of the child's birth. They separated in spring 1987.

On 23 June 1987 the Mülheim District Court ( Amtsgericht ) decided that the applicant should be entitled to visit his daughter. This visiting arrangements were confirmed in a court settlement between the parents in July 1987. Under the terms of this settlement, the applicant was entitled to visit the child every 14 days. After some first visits, the applicant did no longer exercise his right of access to his daughter.

On 9 May 1990 the child’s mother applied with the Mülheim District Court for an amendment of the above settlement to the effect that the applicant should no longer be allowed access to his child. It was stated that the applicant had not exercised his right of access for three years so that J. had completely forgotten him. His wish to see her again was not in J.’s interest.

On 12 June 1990 the Mülheim Youth Office ( Jugendamt ), having regard to a report by the Diakonisches Werk , a Catholic welfare organisation, recommended that the applicant should not be granted access to his child.

On 9 October 1990 the Mülheim District Court ordered that a medical report be prepared on the question of access. The report dated 27 June 1991 recommended that contact between the applicant and J. be build up carefully and gradually, despite of the risk for J.’s emotional balance. The established sound emotional ties between J. and her mother and the relationship of trust with the mother’s partner should, however, not be upset.

In a further report of 26 August 1991, the Diakonisches Werk recommended that the applicant should meet J. in a child guidance centre ( Erziehungsberatungsstelle ). If these contacts developed positively, they should be extended or, in the event of a negative experience, access should be stopped. The Youth Office shared this assessment.

On 3 November 1992 the Mülheim Child Guidance Centre confirmed that, between 10 August and 11 September 1992, J. had met the applicant three times in the centre in her mother’s presence. It was stated that J. had sensed the conflicts between her parents and was under mounting emotional strain as a result.

On 14 December 1992 the Mülheim District Court heard the applicant and J.’s mother. In these and the following proceedings, both parties were represented by counsel.

On 18 December the Mülheim District Court heard the then seven-year-old child in the absence of her parents. She stated that she had not recognised her natural father and that she did not want to see him.

On 23 January 1993 the District Court set aside its earlier decision of 23 June 1987 and the court settlement of July 1987.

The Court noted inter alia that the applicant had not exercised his right to visit his daughter since 1987 and that J.'s mother was opposed to the applicant's request. The Court found that the applicant was not entitled to have access to his daughter.

Referring to S. 1711 of the Civil Code ( Bürgerliches Gesetzbuch ), the Court observed that the mother, in the exercise of her right to custody, determined the child's relations with third persons, and that therefore her will was decisive. The father could only be granted a right of access by court order if this was in the interest of the child.  According to the Court's findings, these conditions were not met in the applicant's case. The Court considered that, as the parents separated when J. was only one and a half years old and as he did not exercise his right of access for several years, he was a stranger in respect of the child. No bonds existed between her and the applicant and she did not regard him as her father.

The Court further considered that the attempt to overcome this situation had failed. It noted that, in the course of several meetings between the applicant and his daughter at an educational assistance office in August and September 1992, he had remained a stranger to J. who did not wish to have contacts with her father. In the District Court's view, it was not in J.'s interest to act contrary to her wish. After several changes, her mother's new husband had become a person exercising parental functions ( männliche Bezugsperson ). J.'s stable position and emotions would be shaken if contacts with a stranger be forced. In this context, the Court, having apparently taken expert evidence, considered that J. was very sensible and vulnerable and therefore needed stable living conditions and a family life free of conflict. Her physical and emotional well-being could be easily affected and she had difficulties in concentrating and learning. Her wish not to have any contacts with her father had, therefore, to be accepted.

On 26 March 1993 the Duisburg Regional Court ( Landgericht ) dismissed the applicant's appeal ( Beschwerde ).

The Regional Court endorsed the District Court's findings under section 1711 of the Civil Code. The Regional Court further found that the applicant's appeal submissions did not disclose any new elements that were relevant. His argument that it had not been his fault that he had not been able to exercise his right of access since 1987 was irrelevant, as the child's interests were decisive. His criticism of section 1711 was irrelevant as this provision was the applicable legislation according to which granting access contrary to the mother's will was only possible in the interest of the child. However, in the applicant's case the District Court, on the basis of an expert opinion, had correctly found that J.'s wish not to have contacts with the applicant had to be accepted. Moreover, even assuming that J. was influenced by her mother, such influence could not justify to force her to have contacts with the applicant. In this respect, the Regional Court again noted the expert's findings that J. was very sensitive and vulnerable and that any forced contacts would certainly harm her.

On 4 June 1993 the Düsseldorf Court of Appeal ( Oberlandesgericht ) declared the applicant's further complaint inadmissible, pursuant to Section 63a of the Non-Contentious Proceedings Act ( Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit ). The Court of Appeal considered that the prevailing legal situation, excluding a further appeal in proceedings concerning a father's access to his child born out of wedlock, could not be objected to from a constitutional point of view. Even if the criteria established in the Federal Constitutional Court's decision of 1991 on the necessity to abolish discrimination against children born out of wedlock were applied to procedural rules, the general standards as to the period left to the legislator for the purpose of amending the relevant legislation did not yet permit the conclusion that the existing legislation was unconstitutional.

On 21 September 1993 the applicant filed a constitutional complaint ( Verfassungsbeschwerde ) with the Federal Constitutional Court ( Bundesverfassungsgericht ), complaining that the refusal of access to his daughter infringed his parental rights and amounted to discrimination, as well as about the refusal of his further appeal. The First Chamber of the First Senate of the Federal Constitutional Court acknowledged receipt on 28 July 1993.

On 17 January 1994 the Constitutional Court informed the applicant's lawyer that it was dealing with a further case concerning section 1711 of the Civil Code which had already been submitted. A decision in that case was envisaged for the current year. The processing of the applicant's case was therefore postponed. On 18 January 1995, upon the applicant's inquiry, the Judge at the Federal Constitutional Court dealing with the applicant's case informed him that a decision on the other case was envisaged for the current year. In a letter of 5 August 1996, the applicant’s representative was informed that the date of a decision upon his complaint could not be foreseen. The applicant was subsequently informed that, in the light of the legislative reforms, a decision on his constitutional complaint did no longer appear necessary.

The applicant’s mother has been married since July 1992 and J.’s family name was changed to her mother’s new family name.

In February 1995 the applicant instituted proceedings before the Mülheim District Court requesting a right of access to his child J.  On 24 July 1997 the court, having heard J. in the absence of her mother, dismissed his request, finding that J. did not wish to initiate contacts with him. The applicant subsequently withdrew his appeal with the Duisburg Regional Court.

B. Relevant domestic law

1. Legislation on family matters currently in force

The statutory provisions on custody and access are to be found in the German Civil Code ( Bürgerliches Gesetzbuch ). They have been amended on several occasions and many were repealed by the amended Law on Family Matters ( Reform zum Kindschaftsrecht ) of 16 December 1997 (Federal Gazette ( Bundesgesetzblatt - BGBl ) 1997, p. 2942), which came into force on 1 July 1998.

Section 1626 § 1 reads as follows (the Court’s translation):

“The father and the mother have the right and the duty to exercise parental authority ( elterliche Sorge ) over a minor child. The parental authority includes the custody ( Personensorge ) and the care of property ( Vermögenssorge ) of the child.”

Pursuant to section 1626 a § 1, as amended, 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. According to Section 1684, as amended, 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. 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; and they may order the parties to fulfil their obligations towards 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 endangered. The family courts may order that the right of access exercised in the presence of a third party, such as a Youth Office authority or an association.

2. Legislation on family matters in force at the material time

Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows (Court’s translation):

Section 1634

“1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child's relationship with others or seriously interfere with the child's upbringing.

2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under section 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child's welfare.

3. A parent not having custody who has a legitimate interest in obtaining information about the child's personal circumstances may request such information from the person having custody in so far as this is in keeping with the child's interests. The guardianship court shall rule on any dispute over the right to information.

4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis .”

The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows (Court’s translation):

Section 1705

“Custody over a minor child born out of wedlock is exercised by the child's mother…”

Section 1711

“1. The person having custody of the child shall determine the father’s right of access to the child. Section 1634 § 1, second sentence, applies by analogy.

2. If it is in the child's interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Section 1634 § 2 applies by analogy. The guardianship court can change its decision at any time.

3. The right to request information about the child's personal circumstances is set out in Section 1634 § 3.

4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.”

3. The Act on Non-Contentious Proceedings

Like proceedings in other family matters, proceedings under former section 1711 § 2 of the Civil Code were governed by the Act on Non-Contentious Proceedings ( Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit ).

According to section 12 of that Act, the court shall, ex officio , take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate.

In proceedings regarding access, the competent youth office has to be heard prior to the decision (section 49(1)(k)).

As regards the hearing of parents in custody proceedings, section 50a(1) stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child’s assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard. According to paragraph 2 of section 50a, a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter.

Section 63 provide s for a right of a further appeal ( weitere Beschwerde ) challenging the first appeal decision. Section 63a of that Act as in force at the material time excluded this right in proceedings concerning a natural father’s access to his child born out of wedlock. This provision has been repealed by the Law on Family Matters of 1997.

COMPLAINTS

The applicant complains that the Mülheim District Court’s decision of 23 January 1993 refusing him access to his daughter, as confirmed by the Duisburg Regional Court on 26 March 1993, amount to a breach of his right to respect for his family life. He also considers being a victim of discrimination in that the rules of access to children and the procedural provisions in force at the material time were less favourable to natural fathers and their children born out of wedlock than to fathers after divorce and their children born in wedlock. He invokes Articles 6, 8 and 14 of the Convention.

THE LAW

1. The applicant complains about German court decisions of January and March 1993 refusing him access to his daughter, a child born out of wedlock.

In their observations dated 12 November 1997, the Government pleaded inadmissibility on the ground of non-exhaustion of domestic remedies.

Article 35 § 1 of the Convention provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

The Court notes that the applicant lodged his complaint with the Federal Constitutional Court in June 1993 and these proceedings had been pending for three years when the applicant introduced his complaints with the Court. The Court has not been informed of any decision rendered by the Federal Constitutional Court on the applicant’s case.

Having regard to what was at stake for the applicant, namely the relation with his young child, such lengthy proceedings can no longer be regarded as constituting an effective remedy, the outcome of which the applicant has to await before lodging an application under Article 34 of the Convention. The Court is aware that, after the lapse of time, any measures to implement contacts between the applicant and his daughter would encounter considerable practical problems, if not prove to be impossible.

In conclusion, the Court finds that the applicant has complied with Article 35 § 1 of the Convention.

2. (a) The applicant complains that the German court decisions setting aside his right of access amounted to a breach of his right to respect for his family life, a right protected under Article 8 of the Convention, the relevant part of which provides:

“1. Everyone has the right to respect for his ... 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 Government admit that the relationship between the applicant and his daughter comes within the notion of family life under Article 8 § 1. However, in their submission, the statutory regulations on the right of access of fathers to their children born out of wedlock did not, as such, amount to an interference with the rights under that provision. But the Government concede that the German court decisions in the applicant' s case, which were based on this legislation, amounted to an interference with the applicant's right under Article 8 § 1. In their view, this interference was in accordance with German law and served to protect the interests of the applicant's child. Moreover, the interference complained of was necessary in a democratic society within the meaning of Article 8 § 2. In this respect, the Government submitted that the child’s best interests were the principle guiding the German courts.

The applicant submits that contacts between him and his daughter would have been in the child’s interest. The mother had alienated J. and successfully prevented any contacts.

(b) The applicant further complains that he has been a victim of discriminatory treatment in breach of Article 14 of the Convention read in conjunction with Article 8. 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 Government maintain that neither the statutory regulations on the right of access to children born out of wedlock in themselves, nor their application in the particular case, discriminated against the applicant in the enjoyment of his right to respect for his family life.

The Government recall the Commission’s earlier decisions according to which the provisions of section 1711 of the Civil Code did not entail any discrimination contrary to Article 14 (application no. 9588/81, decision of 15 March 1984; application no. 9530/81, decision of 14 May 1984, both unpublished). The considerations that fathers of children born out of wedlock often were not interested in contacts with their children and might leave a non-marital family at any time, and that it was normally in the child's interest to entrust the mother with custody and access, still applied, even if the number of non-marital families had increased. Section 1711 § 2 of the Civil Code struck a reasonable balance between the competing interests involved in all these cases. In this context, the Government observed that the amended Law on Family Matters did not alter this assessment. Moreover, in the applicant's case, the courts considered that granting the father a right of access was not in his son's interest and that his situation was, therefore, comparable to that of a divorced father.

(c) With regard to the court decisions setting aside his right of access and the proceedings concerned, the applicant also alleges a violation of Article 6 of the Convention which, as far as relevant, provides:

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

(d) Having regard to the parties’ submissions, the Court finds that complex issues of fact and law arise under the Convention which should be examined on the merits. The application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it inadmissible have been established

For these reasons, the Court by a majority

Declares the application admissible, without prejudging the merits of the case.

Vincent Berger A ntonio Pastor Ridruejo Registrar President