FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32040/96 by Joseph ZANDER against the Netherlands

The European Court of Human Rights ( First Section) , sitting on 24 October and 5 December 2000 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr L. Ferrari Bravo , Mr C. Bîrsan , Mr J. Casadevall , Mr B. Zupančič , Mr T. Panţîru , judges , and Mr O'Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 20 March 1996 and registered on 26 June 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 regard to the parties'oral submissions at the hearing on 24 October 2000 ,

Having deliberated on 24 October 2000 and 5 December 2000 , decides as follows:

THE FACTS

The applicant is a Netherlands national, born in 1952 and living in the Netherlands . He was initially represented before the Court by Mr P.J.A. Prinsen , a lawyer practising in The Hague . Mr Prinsen has now been replaced by Ms T.C. ten Rouwelaar , a lawyer practising in Amsterdam .

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

A. The circumstances of the case

The applicant had a relationship with a woman, Ms B., out of which a child, Rosa, was born on 11 October 1987 . The applicant recognised Rosa as his child. By a decision dated 3 December 1987 the Deventer District Court judge ( Kantonrechter ) vested parental authority jointly in the applicant and Ms B.

After the relationship between the applicant and Ms B. had ended in 1989, the latter applied to the Deventer District Court for the guardianship ( voogdij ) over Rosa . In its decision of 8 February 1991 the District Court appointed Ms B. as Rosa 's guardian ( voogd ) and the applicant as her subsidiary guardian ( toeziend voogd ). Rosa was to remain with Ms B. The applicant was granted an access arrangement ( omgangsregeling ) under which Rosa would stay with him for one weekend each fortnight and for periods of several days during the school holidays.

Proceedings relating to the access arrangement

On 22 January 1992 Ms B. applied to the Regional Court ( Arrondissementsrechtbank ) of Zutphen for a change in the access arrangement. The applicant submitted a written statement of defence suggesting changes of his own. On 11 May 1992 , the Regional Court agreed to change the access arrangement in accordance with the wishes of Ms B. The changes involved, essentially, that Rosa would be handed to the applicant at times which would preclude the applicant from picking up or dropping Rosa at school, as “communication at school” had apparently led to conflicts between the applicant and Ms B.

It appears that on 13 September 1992 , when Ms B. came to pick up Rosa at the applicant's home, an incident took place between the applicant and Ms B. which gave rise to separate criminal complaints filed by both of them. According to a statement made by Ms B. to the police this incident was caused by disagreement about her decision to send Rosa to a different school. Thereafter Ms B. refused the applicant all access to Rosa .

On 29 September 1993 - shortly before the hearing in summary injunction proceedings ( kort geding ) aimed at securing Ms B.'s co ‑ operation with the access arrangement (see below) - Ms B. applied to the Zutphen Regional Court for the access arrangement between the applicant and Rosa to be terminated altogether. The applicant lodged a written statement objecting to this suggestion, asking for the access arrangement to be altered instead. The Regional Court decided to order the Child Welfare Council ( Raad voor de Kinderbescherming ) to report to it on the feasibility of continuing the access arrangement.

The Regional Court held a hearing on 8 March 1994 . The applicant complained that the Child Welfare Council was taking too long to finish its report He asked for the Council's terms of reference to be changed and for access to be resumed in the meantime. The Regional Court decided not to alter the Council's terms of reference and deferred its decision until the report was ready.

The Child Welfare Council submitted a report dated 11 April 1994 by a psychologist, who - at the request of the Child Welfare Council - had examined Rosa and who had found that Rosa had suffered by the lack of understanding between her parents. Resumption of access by the applicant would be too threatening for Rosa and ought therefore not to be considered at this stage. Psychological support was needed to help Rosa overcome the psychological problems caused by the conflicts that she had witnessed. Both Ms B. and the applicant, with whom the psychologist had had conversations both prior to and after Rosa 's examination, had been given the opportunity to make comments on this report. These comments were annexed to the report.

In a second report dated 17 May 1994 by the Child Welfare Council, which had been drafted on the basis of conversations held with Ms B. and the applicant and the psychologist's report of 11 April 1994, it was noted that Rosa had better ties with Ms B. than with the applicant and felt threatened in her contacts with the applicant. It was recommended that access should not be resumed until such time as Rosa herself was ready for it, that Ms B. should receive psychological support and that the applicant should seek psychological treatment. Both Ms B. and the applicant were given the possibility to make written comments on the report. Only Ms B. availed herself of this opportunity. Her comments were appended to the report. The applicant's lawyer merely stated that the applicant considered that the contents of the report were not at all correct, but that he did not wish to avail himself of the possibility to submit comments.

On 9 June 1994 the Regional Court gave a decision terminating the access arrangement altogether. Insofar as relevant, the Regional Court held:

“The Regional Court accepts the advice of the expert and the Council and will decide accordingly.

Since we are faced with the case of a girl who is just over six years old who does not yet have a strong personality, this will have to be taken into consideration.

If access by the father were to be resumed at this point, that would be too much of an imposition on the child, given the apprehensive reactions observed in Rosa, who moreover is emotionally blocked and has found a safe haven with her mother; access would seriously harm her development.

The father's request will be rejected on the above-mentioned grounds and the mother's request will be granted.

The father must allow Rosa some time.

The Regional Court draws the mother's attention to her responsibility as the caring parent and charges her to take all measures necessary to get her daughter out of the present blockage.”

On 30 June 1994 , the applicant filed an appeal with the Arnhem Court of Appeal ( Gerechtshof ) against the decision of 9 June 1994 .

In its decision of 4 October 1994 , the Court of Appeal endorsed the refusal of the Regional Court to order an access arrangement. The Court of Appeal considered that it was generally in the child's interests for it to have contacts with the non-custodial parent, and that the non-custodial parent was in principle entitled to such access. However, basing itself on the psychologist's report, the Court of Appeal found it necessary for Rosa to grow up in a safe family environment, from which the applicant was to be excluded so as to allow Rosa to develop a normal bond with Ms B., who was to help Rosa overcome her negative emotional reactions to the applicant, for which Ms B. needed to seek psychological counselling. It would then be possible in a few years' time for contact between the applicant and Rosa to be resumed.  In the meanwhile Ms B. was to provide the applicant twice a year with information on Rosa 's development, including recent photographs and school reports. It held, amongst other things, that although there was nothing in the relationship between Rosa and the applicant to impede contact between them, it would not be in Rosa's interests to order a compulsory access arrangement in view of the serious lack of understanding between Ms B. and the applicant as well as Rosa's own psychological state.

On 15 November 1995 , the applicant lodged an appeal in cassation with the Supreme Court ( Hoge Raad ). He argued that the Court of Appeal ought to have ordered an access arrangement, leaving it to Rosa's parents to see to it that she did not suffer any harm or, in the alternative, the Court of Appeal ought to have examined the question of whether the facility with which access arrangements could be terminated was not partly the cause of the problems, and whether continuing the access arrangement rather than terminating it would not have been more conducive to reducing tensions between the parents. He further argued that the Court of Appeal's decision was insufficiently reasoned, given that the Court of Appeal had found that there was nothing to impede contact between the applicant and Rosa per se and so it was not clear how compelling Ms B. to allow such contact could harm Rosa 's interests.

The Supreme Court handed down its decision on 22 September 1995 dismissing the applicant's appeal. As to the applicant's first complaint it held that the Court of Appeal had been entitled to decide, on the basis of the information available to it (including the psychologist's report), that to impose an access arrangement would be contrary to Rosa's weighty interests. As regards the applicant's second complaint, the Supreme Court held that the Court of Appeal had merely stated that an access arrangement imposed by court order would be detrimental to Rosa 's interests.

Proceedings relating to the enforcement of the access arrangement

Following the incident of 13 September 1992 the applicant tried, initially through social workers and later through his lawyer, to get Ms B. to recommence implementing the access arrangement as determined on 11 May 1992 . These attempts did not meet with success.

On 22 September 1993 the applicant summoned Ms B. to appear before the President of the Regional Court of Zutphen in summary injunction proceedings. The applicant sought an order against Ms B. to co-operate in the implementation of the access arrangement or forfeit a sum of money each time that she failed to do so.

Following a hearing held on 30 September 1993 , the President of the Regional Court gave judgment on 7 October 1993 declining to give the order sought by the applicant. He held:

“Parties are making mutual reproaches which, in the absence of a sound substantiation, cannot be adequately examined in the present proceedings as to their degree of foundedness . The proceedings on the merits already pending ... are more suitable for a thorough examination, the more so since in those proceedings use can be made of the assistance of the Child Welfare Council of Zutphen . Also taking into consideration that the has not had access to Rosa for more than one year, it cannot be considered for the time being as being in Rosa's interests - which takes a central place in this matter - that in anticipation of the outcome of the proceedings on the merits the present access arrangement will be restarted, as this would result in a change of a stable situation which, having regard to Rosa's tender age, does not appear to be opportune.”

The President of the Regional Court did, however, not award costs against the applicant but ordered both parties to bear their own costs.

The applicant filed an appeal with the Arnhem Court of Appeal. He argued that the President ought to have ordered the resumption of the access arrangement, because that would have made it clear in what way contact between him and Rosa should be resumed and would thus have yielded information which would have benefited the decision of the Regional Court on whether or not to terminate the access arrangement altogether. He further argued, inter alia , that his intention was to give practical effect to a right that had been determined by a decision of a court that had obtained the force of res iudicata .

Following a hearing held on 15 September 1994 , the Court of Appeal gave judgment on 4 October 1994 , i.e. the same day on which it handed down its decision on the access arrangement (see above). It held that, as it had endorsed the termination of the access arrangement, the applicant's claim had lost its basis and that therefore the judgment of the President of the Regional Court had to be confirmed. The applicant as the losing party was ordered to pay a sum of money towards Ms B.'s legal costs.

The applicant filed an appeal in cassation with the Supreme Court on 15 November 1994 . He argued that, although the ground for his claim had disappeared due to the decision of the Court of Appeal terminating the access arrangement, the Court of Appeal ought nevertheless to have ruled in principle on the claim's foundedness , since the question whether or not he was in fact the losing party depended on it, and the decision on costs in turn depended on that.

In its judgment of 24 November 1995 , the Supreme Court held that the Court of Appeal had erred in law by deciding without a further examination that the applicant was the losing party. The Court of Appeal ought instead to have addressed the question of whether or not the President of the Regional Court had rightly dismissed the applicant's claim and to have based its decision on costs on the outcome of that examination. The Supreme Court did not, however, refer the case back for a rehearing on appeal, holding instead that irrespective of the outcome of such a rehearing each party should bear its own costs. In so doing it applied by analogy the rule that such a decision was possible in litigation between married parents.

B. Relevant domestic law

At the relevant time, access rights were regulated in Articles 1:161a and 1:162 of the Civil Code ( Burgerlijk Wetboek ). These provisions were subsumed in Article 1:377a et seq. of the Civil Code by the Act of 6 April 1995 , which entered into force on 2 November 1995 .

Article 1:161a of the Civil Code, as in force at the material time, provided as follows:

“1. The child and the parent who has not been appointed as guardian are entitled to have access to each other ( omgang met elkaar ).  Access between the parent and the child can take place from the time at which the other parent's guardianship has begun.

2. The Regional Court shall, at the time of the divorce or at a later date, at the request of both parents or of one of them, establish an arrangement for the implementation of the right to access, for a definite period or not as the case may be, or shall deny, for a definite period or not as the case may be, the right to access.

3. The Regional Court shall only deny the right to access if:

a. access would seriously impair the mental or physical development of the child; or

b. the parent must be deemed to be obviously unfit for, or obviously incapable of, access; or

c. access would for another reason be contrary to weighty interests ( zwaarwegende belangen ) of the child; or

d. the child, being at least twelve years old, when being heard has made serious objections to allowing his parent access.”

Article 1:162 of the Civil Code, as in force at the material time and insofar as relevant, read as follows:

“At the request of one or both of the parents, the Regional Court may amend decisions given pursuant to Articles 161 and 161a or change an access arrangement concluded by mutual agreement between the parents on the grounds that the circumstances have changed or that the decision was based on inaccurate or incomplete information.”

Although the provisions governing access as in force at the relevant time only related to access following divorce, the right of access of parents who had never been married to each other was in fact recognised in domestic case-law under Article 8 of the Convention (cf. Hoge Raad , 22 February 1985, Nederlandse Jurisprudentie 1986, nr. 3; and Hoge Raad , 22 October 1993, Nederlandse Jurisprudentie 1994, nr. 153).

Where an access arrangement is not complied with, the parent concerned may request the competent court to issue a measure aimed at enforcing compliance. Courts cannot act at their own initiative in this field. Judicial measures aimed at enforcing compliance can take the form of, inter alia , assistance by the police, civil imprisonment, suspension of maintenance payments or placement under supervision ( ondertoezichtstelling ).

In civil cases where urgency is required, summary injunction proceedings ( kort geding ) before the President of the Regional Court may be taken in order to obtain an immediate or interim measure. Such proceedings may be taken where the parties cannot wait for a decision in the proceedings on the merits ( bodemprocedure ). Summary injunction proceedings are governed by Articles 289-297 of the Code of Civil Procedure ( Wetboek van Burgerlijke Rechtsvordering ). They are concluded speedily and focus on oral submissions at the hearing. As these proceedings are characterised by speed, issues raised are only examined summarily. Decisions taken in summary injunction proceedings are usually handed down within a week after the hearing and are immediately enforceable ( bij voorraad uitvoerbaar ). They may however not be detrimental to the outcome of the proceedings on the merits (“ beslissingen bij voorraad brengen geen nadeel toe aan de zaak ten principale ”). The court determining the merits of the case is not bound by the decision handed down by the President of the Regional Court in summary injunction proceedings.

COMPLAINTS

The applicant complains, firstly, of the termination of the access arrangement between himself and Rosa and, secondly, of the failure by the Netherlands judiciary to enforce the arrangement while it was still in force.  The applicant relies on Article 8 of the Convention.

THE LAW

The applicant complains under Article 8 of the Convention of the termination of the access arrangement between himself and Rosa and of the failure by the Netherlands judiciary to enforce the access arrangement while it was still in force.

Article 8 of the Convention, insofar as relevant, 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 for the protection of the rights and freedoms of others.”

The Government submit that, under Dutch law, the right to access of a non-custodial parent is regarded as a fundamental right, which only may be denied in exceptional circumstances, i.e. those referred to in the third paragraph of Article 1.161a of the Civil Code.

The Government accept that there is family life between the applicant and Rosa and that there has been an interference with the applicant's right to respect to his family life. However, the Government are of the opinion that this interference was “in accordance with the law” within the meaning of Article 8 § 2 of the Convention in that it was based on and in accordance with Article 1:161a of the Civil Code. Since the denial of the applicant's access was based on a judicial finding that such access would pose a serious threat to Rosa's development and to impose an access would be contrary to her “weighty interests”, the Government further consider that the interference complained of pursued the legitimate aims of protection of health and protection of the rights and freedoms of others.

As to the question whether the interference was “necessary in a democratic society”, the Government submit that the question of the applicant's access rights was determined following a careful procedure in which the interests of all parties concerned were balanced against each other, in particular those of the applicant and his daughter Rosa. In reaching the decisions at issue, the courts relied on thorough assessments made by a psychological expert and by the Child Welfare Council. The Government point out that both the applicant and Ms B. were involved in the drawing up of the reports by the psychologist and the Child Welfare Council and that, in the judicial proceedings at issue, the applicant was given ample opportunity to state his case. Referring to case-law of the Court and the former European Commission of Human Rights under Article 8 of the Convention in cases concerning parental access rights, the Government conclude that it was reasonable in the circumstances in the present case that the interests of Rosa were given priority over those of the applicant. According to the Government, the decision to terminate the applicant's access to his daughter cannot be regarded as being disproportionate in that the domestic courts did not exclude the possibility of an access arrangement at some point in time in the future.

As to the applicant's complaint that the existing access arrangement was not enforced while it was in force, the Government emphasise that domestic courts cannot act at their own motion in this area whereas the applicant only applied to the court eleven months after his access to Rosa had been halted by Ms B. Referring to the reasons given by the President of the Regional Court in his decision of 7 October 1993 in the summary injunction proceedings, the Government submit that this decision cannot be regarded as unreasonable.

The applicant submits that the interests of a child referred to in Article 1:161a § 3 of the former Civil Code can also provide sufficient scope and indeed argue in favour of an access arrangement and not merely against it. He refers in this respect to a statement of Minister of Justice to the Upper House of Parliament - during the passage of the Bill in which Article 1:161 of the Civil Code was dealt with - to the effect that it should not be the custodial parent who would in fact determine the feasibility of access by the non-custodial parent ( Kamerstuk 18964, nr. 117a, Eerste Kamer ). He is further of the opinion that none of the grounds for a denial of access as set out in this provision of the Civil Code were applicable in his case and that therefore the interference with his right to respect for his family life cannot be regarded as being “in accordance with the law”.

The applicant further submits that the decisions at issue cannot be considered as being “necessary in a democratic society”. In their decisions, the domestic courts did in fact follow the recommendations contained in the reports of the Child Welfare Council and the psychiatrist, whereas in the applicant's opinion these two sets of recommendations cannot be regarded as coming from an independent source. The applicant submits that, not only did the Child Welfare Council accept unquestioningly unfounded reproaches made by Ms B. without carrying out any investigation, but it also added its own value judgments disqualifying the applicant for having access to Rosa .

The applicant considers incomprehensible the finding of the Court of Appeal that, on the one hand, there was nothing in the relationship between Rosa and the applicant to impede contact between them and, on the other, that a compulsory access arrangement would be contrary to the weighty interests of Rosa. Insofar as the Government now submit that the applicant's interests were outweighed by those of Rosa , the applicant argues that he has never put his own interests forward in the proceedings at issue. He has always put Rosa 's interests first and acted accordingly.

The applicant admits that he has an interest in having contact with Rosa , but Rosa has also an interest in having contact with her father as well as in having a balance in her life. In the applicant's opinion, access would be contrary to the interests of a stable situation in the family of Rosa 's mother, but Rosa has more interests than this one interest. If Rosa 's other interests, in casu to have a relation with her father, could not be secured under the then circumstances, it would have been more appropriate to alter these circumstances rather than to subject Rosa to mental hardship. Although this would have been an obvious step, which had in fact been explicitly requested by the applicant, this element was never examined by the courts. According to the applicant an interference with the right to respect for family life can only be permitted if founded on a valid evaluation of the case. Given, inter alia , the procedural failings, the severe criticisms aired in respect of the applicant and the failure to take into due account Rosa ' overall interests, the applicant is of the opinion that the decisions at issue are in violation of Article 8 of the Convention.

The applicant further refutes the Government's submission that it was only after 11 months after Ms B. had stopped all access to Rosa that he took judicial steps in respect of the access arrangement. He submits that during this period he attempted on many occasions to restart access via an amicable solution through friends and official bodies. Only after Rosa 's mother had filed an application to change Rosa 's surname did he decide to take summary injunction proceedings.

The Court considers 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 that an interference with the right to respect for family life entails a violation of Article 8 of the Convention, unless its was “in accordance with the law”, had an aim or aims that is or are legitimate under Article 8 § 2 of the Convention and was necessary in a democratic society, the notion of necessity implying that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (cf. Gnahore v. France , no. 40031/98, 19.9.2000, § 50).

It is not in dispute that there has been an “interference by a public authority” with the applicant's right to respect for his “family life” within the meaning of Article 8 § 1 of the Convention with his daughter Rosa. It is therefore necessary to examine whether this interference satisfied the requirements of Article 8 § 2 of the Convention.

The Court considers that, in determining whether an interference was “in accordance with the law”, it is primarily for the national courts to interpret and apply domestic law (cf. McLeod v. the United Kingdom, Reports of Judgments and Decisions 1998-VII, p. 2789, § 44). Insofar as the applicant argues that the decisions of the domestic courts in his case were not “in accordance with the law”, the Court notes that the decisions complained of were based on former Article 1:161a of the Civil Code. The reason for terminating the existing access arrangement and, in the summary injunction proceedings, not to accede to the applicant's request was that such access would be contrary to weighty interests of Rosa, i.e. a ground explicitly provided for in Article 1:161a § 3 (a) of the Civil Code. In these circumstances, the Court accepts that the interference was “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.

The Court further finds that the interference at issue was clearly aimed at protecting the “health” and “the rights and freedoms” of the applicant's daughter and thus pursued legitimate aims set out in the second paragraph of Article 8 of the Convention.

As to the question whether the interference was “necessary in a democratic society”, the Court recalls that, 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 is not the Court's task 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. A fair balance must be struck between the interests of the child and those of the parent and that in doing so 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 of the Convention to have such measures taken as would harm the child's health and development (cf. Elsholz v. Germany [GC], no. 25735/94, 13.7.2000, §§ 48-50, to be reported in ECHR 2000-IX).

The Court observes that in the present case the domestic courts disposed of extensive information, i.e. a report by a psychologist who had examined the applicant's daughter, a report by the Child Welfare Board as well as comments on these reports and other submissions made by the applicant and Ms B. in the course of the proceedings at issue. Noting the strained relation between the parents, Rosa's negative emotional reactions to the applicant and the fact that Rosa would need psychological support in order to overcome the psychological problems caused by the conflicts that she had witnessed, the domestic courts concluded that resumption of access by the applicant at that point in time would seriously impair her development.

As the termination of the access arrangement was motivated entirely by Rosa's interests and based on expert opinions in respect of which both parents have been provided with the possibility to submit comments, the Court finds that it cannot be said that the authorities failed to strike a fair balance between the competing interests or that this decision can be regarded as arbitrary.

The Court is therefore of the opinion that the interference with the applicant's right to respect for his family life within the meaning of Article 8 § 1 of the Convention was justified under paragraph 2 of this provision.

As to the applicant's complaint that, in the summary injunction proceedings instituted by the applicant, the domestic courts refused to enforce the access agreement while it was still in force, the Court notes that the President of the Regional Court - in deciding not to accede to the applicant's request for immediate access - noted that proceedings on the merits were pending and that the outcome of these proceedings was decisive for the question whether the access arrangement should remain in force at all. He also observed that the determination of this question required an extensive examination of factual issues which could not take place in summary proceedings. Moreover, noting that the applicant had not had access to Rosa for more than one year, the President did not find it to be in Rosa's interests to restart the access arrangement in anticipation of the outcome of the proceedings on the merits, as this would result in a change of a stable situation which, given Rosa's tender age, did not appear to be opportune.

The Court is of the opinion that in the circumstances of the present case the decision not to prejudge, in a parallel set of summary proceedings, the outcome of proceedings on the merits cannot be regarded as arbitrary or otherwise contrary to the applicant's rights under Article 8 of the Convention.

It follows that the application must be rejected for being manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Michael O'Boyle Elisabeth Palm Registrar President