FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31871/96 by Manfred SOMMERFELD 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 6 June 1993 and registered on 3 April 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, born in 1953, is a German national and resident in Rostock .

The applicant is the father of the child M., born out of wedlock on 25 January 1981. The applicant recognised his paternity of M.

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 lived together at the time of the child's birth. They separated in September 1986. The child’s mother prohibited any contacts between the applicant and the child. The applicant still met M. several times at school until such contacts were no longer possible. Subsequently the child’s mother married Mr W., the father of her child A., born in August 1985, W. being the common family name.

1. The first request for visiting arrangements

On 2 October 1990 the applicant applied to the Rostock District Court ( Amtsgericht ) for a decision granting him a right of access ( Umgangsregelung ) to his daughter. Having heard the persons concerned, the Rostock Youth Office ( Jugendamt ) advised against a right of access. The Youth Office submitted that M. had established a close relationship with Mr. W. which would be adversely affected by contacts between M. and her natural father. It also stated that M., when heard in the absence of her mother, had indicated that she was not keen to see the applicant and was suffering from his continuing efforts for access.

On 27 June 1991 M., then ten years old, was heard by the competent District Court Judge. She stated that the fact that the applicant was always standing at the fence of the schoolyard disturbed her and that she did not wish to visit the applicant even if access should be ordered by the court.

At a court hearing on 31 July 1991, the applicant and the child’s mother declared that they would attempt to settle the question of a visiting arrangement with the assistance of the Youth Office.

On 30 September 1991 the Youth Office informed the District Court that no agreement could be achieved and that M. had stated that she did not wish to see the applicant.

On 12 December 1991 the court ordered a psychological expert opinion. On 9 April 1992, in one-page submissions, the psychologist of the Rostock Health Services ( Gesundheitsamt ) stated that, as the contacts between the applicant and M. were disrupted for six years no diagnosis of their actual relationship appeared possible. The psychologist considered that M. did not wish any personal contacts with the applicant who should give her the necessary time to take up contacts on her own motion. The psychologist noted that she had arranged a meeting between the applicant and M. which, however, had been cancelled by M.'s stepfather.

On 24 June 1992 the competent District Court Judge heard the applicant and M. in the presence of the psychological expert. M. having repeatedly stated that she did not wish to have contacts with the applicant, the latter affirmed that he would withdraw his request for a right of access.

The applicant withdrew his request on 1 July 1992.

2. The second request for a right of access

On 6 July 1993 the applicant applied to the Rostock District Court for M.'s legitimation ( Ehelicherklärung ).

On 13 September 1993 the applicant again applied to the District Court for a right of access to his daughter.

On 15 February 1994 the District Court Judge heard the thirteen-year-old M. who stated that she did not wish to talk to the applicant or accept presents from him and that he should no longer bother her. She also said that she had a father whom she loved though it was not her natural father. The court held a hearing with the applicant and the child’s mother on 26 April 1994.

On 1 June 1994, in two separate decisions, the District Court dismissed the applicant's requests.

As regards the applicant's request for legitimation , the District Court observed that, pursuant to section 1723 of the Civil Code ( Bürgerliches Gesetzbuch ), a legitimation could be ordered if it was in the interest of the child's well-being and if there was no indication of any serious objections. On the basis of its investigations, the comments filed by the Rostock Youth Office and the child's statements in the context of the parallel proceedings concerning access, the Court considered that the requested legitimation was not in the child's interest. Having heard the child's mother, the Court found that the child was properly taken care of. The applicant's appeal was to no avail.

As regards the applicant's request for access to M., the Court noted the comments filed by the Rostock Youth Office as well as the parents' and the child's statements in court. The Court had also regard to the comments filed by the Youth Office in April 1991 and by the psychologist of April 1992, both in the context of the first set of access proceedings.

The Court found that the applicant was not entitled to have access to his daughter. Referring to section 1711 of the Civil Code, 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, in particular M.'s statements in 1992 and February 1994, these conditions were not met. The Court considered that M., then thirteen years old and capable of forming her own will, unequivocally refused contacts with her natural father. In the District Court's view, it was not in M.'s interest to enforce contacts contrary to her will, as thereby her mental and psychological well-being would be endangered. The Court rejected the applicant's argument that contacts with the natural father were generally in a child's interest.

On 17 June 1994 the Rostock Regional Court ( Landgericht ) dismissed the applicant's appeals ( Beschwerde ) against both decisions.

As regards the decision dismissing his request for access, the Regional Court endorsed the District Court's findings under section 1711 of the Civil Code. The Regional Court regarded as decisive that for many years the meanwhile thirteen-year-old girl had clearly refused contacts with her father. The applicant should accept his adolescent daughter's will in his own and her interest. Only if he would stop to inflict himself on her, contacts might eventually be possible. The court further observed that contacts between the applicant and M. could hardly be enforced against her will.

On 22 July 1994 the applicant filed a constitutional complaint ( Verfassungsbeschwerde ) with the Federal Constitutional Court ( Bundesverfassungsgericht ).

On 19 January 1996 a panel of three judges of the First Chamber of the Federal Constitutional Court refused to entertain the applicant's complaint.

c. Subsequent proceedings

The applicant’s renewed request for right of access to M. was dismissed by the Rostock District Court on 24 October 1997, as confirmed by the Rostock Regional Court of 23 March 1998.

Proceedings instituted by the applicant in February 1998 in order to obtain photographs of M. were eventually discontinued in January 1999 since M. had reached the age of majority.

On 10 May 1999 M., in a request certified by a notary, applied for an adoption by Mr W. who also applied for the adoption.

On 7 October 1999 the Rostock District Court issued a declaratory decision to the effect that M. was adopted by Mr W., that M. thereby obtained the legal position of a common child of the spouses and had henceforth the family name W. Having heard M. and Mr W., the court considered that they had developed a true parent-child relationship and that the adult M. had carefully reflected upon her request for adoption and the legal consequences.

On 3 January 2000 the District Court, upon the applicant’s objections, confirmed its decision on the adoption, finding that in case of the adoption of a person of age, there was no legal requirement to hear the natural parents whose interests had only to be taken into account.

On 21 March 2000 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. The Constitutional Court observed at the outset that there were doubts as to whether the District Court, having failed to hear the applicant on the respective statements of M. and Ms. and Mr W. prior to the adoption order, had infringed his right to be heard in the court proceedings ( rechtliches Gehör ). However, his complaint was anyway inadmissible, as he had failed to submit due reasons. As he had not stated the contents of his submissions in case that he would have been heard prior to the adoption, it was impossible to examine whether the impugned decision possibly depended on the alleged infringement of procedural rights.

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.

Sections 1719 to 1740g of the Civil Code concern the legitimation ( Legitimation ) of children born out of wedlock.

According to section 1723, the competent guardianship court grants the father's request for the legitimation of his child born out of wedlock, if the legitimation is in the child's best interest and if there are no serious reasons against it. The legitimation is only permitted with the consent of the child or, if the child is a minor, the consent of his or her mother (section 1726(1)); exceptions are regulated in section 1726(3) and section 1727, respectively. Upon legitimation the child acquires the status of a child born in wedlock (section 1736) and obtains the father's family name (section 1737). The child's mother loses her right to custody (section 1738(1)). According to a decision of the Federal Constitutional Court of 7 May 1991 (1 BvL 32/88- BGBl . I S . 1509), this provision is irreconcilable with Article 6 §§ 2 and 5 of the Basic Law (on the protection of the parental rights in the care and upbringing of children and the equality of opportunities between “illegitimate” and “legitimate” children) to the extent that the mother looses her right and obligation to exercise custody even in cases where the father and the mother live in a common household with the child and both parents' intentions are to exercise a joint right to custody, and if such an arrangement is in the best interest of the child. The right to custody may exceptionally be transferred back to the mother.

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

1. The applicant complains that the Rostock District Court’s decision of 1 June 1994 dismissing his request for access to his daughter, as confirmed by the Rostock Regional Court on 17 June 1994, amount to a breach of his right to respect for his family life. He refers in particular to the lack of a substantive psychological expert opinion on the question of access to his daughter. 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.

2. In the course of the proceedings before the Court, the applicant has also lodged complaints under Article 6 of the Convention about German court proceedings in 1999 in relation to the adoption of his then adult daughter by her stepfather Mr W.

THE LAW

1. (a) The applicant complains that the German court decisions dismissing his request for 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 M. He submits that the submissions which the psychologist of the Rostock Youth Office had sent to the Rostock District Court did not constitute an expert opinion and criticises the lack of expert advice by a family psychologist.

(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.

The applicant refers to the difficulties in proving that contacts with the natural father are in the child’s interest.

(c) With regard to his procedural complaints, the applicant also alleges that he has been the victim of a violation of Article 6 § 1 of the Convention, the relevant part of which reads:

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

The Government submit that the course of the proceedings before the competent courts, in particular the taking of evidence before the Rostock District Court could not be objected to. Moreover, the absence of a further appeal did not disclose any appearance of a breach of Article 6 § 1.

The applicant criticises the alleged inefficiency of the court proceedings in arranging contacts with his daughter.

(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. This part of 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.

2. The applicant also complains under Article 6 of the Convention about German court proceedings in relation to the adoption of his daughter.

The Court recalls that Article 35 § 1 of the Convention requires that the complaints intended to be made subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see the Akdivar and Others v. Turkey judgment of 16 December 1996, Reports of Judgments and Decisions 1996-IV, p.1210, § 66).

In the present case, the Federal Constitutional Court did not admit the applicant’s constitutional complaint on the ground that it was inadmissible, the applicant having failed to state the relevance of the procedural shortcoming complained of. The applicant has not, therefore, exhausted the remedies available to him under German law.

It follows that this part of the application must be rejected, in accordance with Article 35 § 4.

For these reasons, the Court by a majority

Declares admissible, without prejudging the merits, the applicant’s complaints that the German court decisions dismissing his request for access to his daughter, born out of wedlock, amounted to a breach of his right to respect for his family life and that he was a victim of discriminatory treatment in this respect ;

Declares inadmissible the remainder of the application .

Vincent Berger Antonio Pastor Ridruejo Registrar President