FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34304/96 by Andreas and Daria WILHELM against Germany

The European Court of Human Rights ( Fourth Section ) sitting on 20 April 1999 as a Chamber composed of

Mr M. Pellonpää, President , Mr G. Ress,

Mr. I. Cabral Barreto, Mr V. Butkevych,

Mrs. N. Vajic,

Mr. J. Hedigan,

Mrs. S. Botoucharova, judges ,

and Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 November 1996 by Andreas And Daria WILHELM against Germany and registered on 19 December 1996 under file no. 34304/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a German national, born in 1963 and living in Wiefelstede. He is a lawyer by profession. He also brings the application on behalf of his daughter, born in wedlock in 1985.

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

A. Particular circumstances of the case

In 1991 the applicant and his wife Mrs G. separated. The ensuing divorce proceedings before the Ludwigshafen am Rhein District Court ( Amtsgericht ), sitting in family matters ( Familiengericht ), concerned inter alia the question of custody over the spouses ’ children Daria and Julian, born in wedlock in 1987, and involved the taking of psychological expert evidence. Divorce was granted on 26 March 1993. Moreover, upon the spouses ’ common proposal, custody of the daughter Daria was awarded to the applicant, and custody of Julian was awarded to Mrs G.

Subsequently, Mrs G. remarried. The applicant married again in 1993 and his son Malte was born in October 1993.

In November 1994 Mrs G. applied to the Ludwigshafen District Court to be awarded custody of Daria. She submitted that Daria did no longer wish to live with the applicant. The applicant contested these submissions. It appears that he also requested that he be awarded custody of Julian; these proceedings were conducted separately.

On 23 December 1994 the Ludwigshafen District Court, having twice heard Daria, issued an interim injunction provisionally transferring the right to determine Daria ’ s place of residence ( Aufenthaltsbestimmungsrecht ) to Mrs G. Daria has been living with Mrs G. since. On 30 June 1995 the applicant withdrew his appeal following a hearing before the Zweibrücken Court of Appeal ( Oberlandesgericht ) which had also questioned the child.

On 17 November 1995 the Ludwigshafen District Court amended the decision of 26 March 1993 and awarded the custody of Daria to Mrs G.

The District Court, referring to section 1696 of the Civil Code ( Bürgerliches Gesetzbuch ) and the case-law of the Federal Court of Justice ( Bundesgerichtshof ), observed that decisions on custody should only be changed, if there were valid reasons seriously affecting the child. H aving heard the parents and in particular Daria, the court found that the child did no longer wish to live with the applicant, but with Mrs G. It considered that Daria ’ s wish had to be respected. She had unequivocally expressed her wish in court on 20 December 1994 and 27 October 1995. As stated in the opinion submitted by the competent youth office, she had made the same statement when heard at the youth office. In the court ’ s view, the argument that this wish had been influenced by third persons was not valid. In particular, she had decided to live with her mother although she could expect the difficulties of being involved in court proceedings. Her statements in court had appeared true and genuine, and she had upheld her position over a lengthy period during which she had regularly access to the applicant, including holidays.

On 23 April 1996 the Zweibrücken Court of Appeal dismissed the applicant ’ s appeal.

The Court of Appeal, having heard the applicant and Mrs G., Daria and an employee of the competent youth office, found that the custody decision had to be changed in the interest of the child. In this respect, it noted that, upon divorce, custody of Daria had been awarded to the applicant in accordance with the spouses ’ common proposal. Following the preliminary injunction issued by the District Court in December 1994, after having heard Daria twice, she had been living with Mrs G. In this period, Daria had changed from primary to secondary school without problems. The competent youth offices had confirmed that both parents were capable of educating children. Daria was meanwhile living together with her brother Julian. Given the bonds between brother and sister, as confirmed at the hearing, it was also in Daria ’ s interest that they grew up together. Moreover, at least in the meantime, a closer relationship had developed between Daria and Mrs G. Daria ’ s repeated questioning had shown that she felt safer with her mother and had more personal care and definitively wished to live with Mrs G. There was no indication that Daria ’ s statements had been caused by Mrs G. and did not reflect Daria ’ s own wish. Although Daria had not yet completed the age of 14 and had no formal right of veto, the statement of her will had to be respected as act of self-determination. In these circumstances, the Court of Appeal regarded as decisive that Daria ’ s future well-being and development would suffer, if her firm wish to live with Mrs G. was broken and she be forced to return to the applicant. Awarding custody to Mrs G. was, therefore, in the interest of Daria ’ s well-being.

Furthermore, as regards the applicant ’ s subsidiary request for joint custody, the Court of Appeal, referring to the case-law of the Federal Constitutional Court ( Bundesverfassungs - gericht ), observed in particular that joint custody presupposed both parents ’ willingness to share the responsibility for the child after divorce. However, Mrs G. had refused joint custody, arguing that the applicant was not ready for cooperation and would impose his will. The Court of Appeal considered that a parent refusing joint custody was in a position to exclude the other parent from custody. However, such a refusal was not necessarily abusive and therefore irrelevant. Rather, the child ’ s interests were of paramount importance. In the absence of any willingness to cooperate in the child ’ s education, joint custody could not be regarded as being in the interest of the child ’ s well-being.

On 23 July 1996 the Federal Constitutional Court refused to entertain the applicant ’ s constitutional appeal.

B. Relevant domestic law and practice

Section 1671 §§ 1 and 2 of the Civil Code, as in force at the relevant time, provided that, in case of the parents ’ divorce, the competent court decided on which parent should have custody of a common child, and took the decision which was in the interest of child ’ s well-being; the child ’ s bonds, especially to its brothers and sisters, were to be considered. A common proposal by the parents was only to be disregarded if necessary in the interest of the child.

In a decision of 3 November 1982, the Federal Constitutional Court declared unconstitutional paragraph 4, first sentence, of Section 1671, according to which custody had to be awarded to one of the parents in case of divorce. The Constitutional Court considered that a joint right to custody was possible in case of divorce if there is a common proposal by the parents to this effect, showing their willingness to share the responsibility for their child after their divorce.

According to section 1696 of the Civil Code, as in force at the relevant time, the competent courts may change their decisions relating to custody matters at any time, if necessary in the interest of the child ( im Interesse des Kindes ).

The relevant legislation has been amended on the basis of the Government Bill of 28 February 1996 on the reform of the law on family matters. This reform of 16 December 1997, which has entered into force on 1 July 1998, harmonises the rules regarding children born in wedlock and children born out of wedlock. Section 1671 of the Civil Code, as amended, provides that, in case of a definite separation of parents who jointly exercise custody, each parent can request for a sole exercise of custody. The competent court will grant the request if (1) the other parent agrees, unless the child having completed the age of 14 disagrees, or if (2) the termination of joint custody and award to the one parent most likely serves best the child ’ s well-being. According to section 1696, as amended, the competent courts shall change their decisions if there are valid reasons seriously affecting the child ( triftige, das Wohl des Kindes nachhaltig berührende Gründe ).

COMPLAINTS

The applicant, in his own name and on behalf of his daughter Daria, complains under Article 8 of the Convention about the German court decisions awarding custody of Daria to his divorced wife Mrs G. The German courts should at least have ordered joint custody, even against the other parent ’ s will.

The applicant complains in particular that the courts regarded as decisive the wish stated by Daria without having due regard to his extensive submissions, including his arguments as to the reasons for her change of mind. They thereby failed to balance duly all circumstances. Moreover, in his view, the courts failed to take into account that their decisions separated Daria from her step-brother Malte. According to the applicant, the competent youth office failed to submit an objective opinion, including Daria ’ s relationship with Malte. Moreover, having himself a higher education, he had been better placed to further Daria at school than her mother, Mrs G. In these respects, he also invokes Article 6 of the Convention.

He further submits that the Court of Appeal, in the reasoning of its decision, stated that Daria had been heard twice prior to the issuing of the preliminary injunction on the right to determine her place of residence. However, either Daria had been heard without his knowledge and in his absence or the Court of Appeal ’ s decision was based on erroneous facts.

As regards the issue of Daria ’ s separation from her step-brother Malte, the applicant further invokes Article 14 of the Convention. He also alleges discrimination in that other German courts had refused an award of custody in similar situations.

THE LAW

1. The applicant has filed the application in his own as well as in the name of his daughter Daria.

The Court finds that in principle only a parent who has the custody over his or her child is able to introduce an application under Article 25 of the Convention on behalf of the child (see Eur. Commission HR, no. 12246/86, Dec. 13.7.1987, D.R. 53, p. 225). In the present case, custody of Daria was awarded to Mrs G. However, the Court is not required to decide whether or not the applicant is able to lodge his complaints concerning the German courts ’ decisions on custody, and the court proceedings, also on behalf of his daughter, as the application is anyway inadmissible for the following reasons.

2. The Court has first examined the applicant ’ s complaints, in respect of the court decisions on the right of custody, under Article 8 of the Convention.

Article 8, so far as relevant, provides as follows:

“1. Everyone has the right to respect for his private and family life ...

2. There shall be no interference by a public authority with exercise of this right except such as is in accordance with law and is necessary in a democratic society ... for the of health or morals, or for the protection of the and freedoms of others.”

The Court recalls that the family life of parents with their children does not cease to exist following the separation of the parents or the divorce of a married couple (see the Berrehab v. the Netherlands judgment of 21 June 1988, Series A no. 138, p. 14, § 21, and also the Hoffmann v. Austria judgment of 23 June 1993, Series A no. 255, p. 58, § 29).

The Court finds that the German courts ’ decisions awarding custody of Daria to her mother interfered with the applicant ’ s right to respect for his family life under Article 8 § 1 of the Convention. The Court therefore has to examine whether this interference was justified under the terms of Article 8 § 2.

The Court finds that the German courts ’ decisions awarding custody to Mrs G., Daria ’ s mother, were taken in accordance with section 1696 of the German Civil Code, in the version in force at the material time, and in the light of the case-law of the Federal Constitutional Court which was subsequently reflected in the reform of the relevant legislation. The interference at issue was, therefore, in accordance with the law within the meaning of Article 8 § 2.

The Court further considers that the impugned custody decisions had a legitimate purpose under paragraph 2 of Article 8, namely the protection of the rights of the child concerned.

As regards the question whether the interference complained of was "necessary in a democratic society", the Court recalls that the Contracting States enjoy a certain margin of appreciation in assessing whether such a need for an interference exists, but it goes hand in hand with European supervision (see the aforementioned Berrehab judgment, p. 15, § 128; the Funke v. France judgment of 25 February 1993, Series A no. 256-A, p. 24, § 55).

The Court observes at the outset that the impugned custody decisions amended a prior custody decision taken in the context of the parents ’ divorce with a view to determining the best solution for Daria ’ s future upbringing and education. The Court recalls that in cases of dispute between the parents over parental rights, the interests of the children are paramount (see the above-mentioned Hoffmann judgment, p. 59, § 35).

The issue before the German courts was whether the initial decision to grant the applicant custody of Daria, which had been taken upon the spouses ’ common proposal, was to be amended and custody be awarded to the child ’ s mother, Mrs G. This claim was contested by the applicant who, in the appeal proceedings, also raised the subsidiary claim for joint custody.

The Court notes the findings of the German courts that it was in the best interest of the child concerned to award custody to the mother. The courts relied on the spouses ’ statements, the repeated questioning of the child and also had at their disposal a report of the youth office which had heard the child. The District Court as well as the Court of Appeal, having both heard the parents and the child, balanced the wishes expressed by Daria against the applicant ’ s interest to maintain custody. In this context, the courts, having regard to Daria ’ s age, carefully examined the genuine nature of her will to live with her mother, Mrs G. The Court notes that, following a court decision of December 1994 on the provisional transfer of the right to determine the child ’ s place of residence, Daria had been living with Mrs G. and her younger brother Julian. Evaluating Daria ’ s statements, the courts found nothing to support the applicant ’ s argument that Daria had been influenced by Mrs G. The Court finds that the German courts, having had the direct impression of the persons appearing before them, in particular of Daria, were best placed to assess the probative value of the evidence before them.

The Court considers that the German courts reasonably concluded that as breaking Daria ’ s firm wish would entail detrimental consequences for her future development, awarding custody to Mrs G. was in the interest of Daria ’ s well-being. In the present case, the Court finds no indication that the custody decisions were not based on a full examination of all relevant aspects with due regard to Daria ’ s interests as stated in the course of the court proceedings, including her bonds with her brother Julian.

Furthermore, as regards the applicant ’ s subsidiary request for joint custody, raised in the appeal proceedings, the Court of Appeal did not solely take the attitude of Mrs G. into account. Rather, emphasising paramount importance of the child ’ s interests, it considered that in the absence of a minimum of cooperation and tolerance, joint custody could not further the child ’ s well-being.

Against this background, the Court finds that the reasons for the impugned decisions were both relevant and sufficient.

Moreover, as to the procedural requirements implicit in Article 8 (see the Olsson v. Sweden (no. 1) judgment of 24 March 1988, Series A no. 130, p. 33, § 71), the Court finds that the applicant, himself a trained lawyer, was involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests. As regards his specific complaints, the Court refers to its above findings notes as far as the reasoning of the decisions was concerned.

In these circumstances, the German authorities did not exceed their margin of appreciation when deciding to award custody of Daria to Mrs G. Consequently, there is no appearance of a breach of Article 8.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 2 of the Convention.

2. The applicant also complains that the court decisions awarding custody to Mrs G. amount to discrimination contrary to Article 14, in conjunction with Article 8, of the Convention.

The Court, referring to its above findings under Article 8, considers that the impugned court decisions were based on a careful examination of the all circumstances of the instant case. The national courts were guided by the interests of the child concerned, and there is nothing in the case-file to disclose any difference of treatment contrary to Article 14.

It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 2.

3. As regards the applicant ’ s complaints under Article 6 of the Convention about the alleged unfairness of the proceedings, the Court refers to its above reasoning regarding the procedural requirements implicit in Article 8. The Court finds nothing to indicate that the court proceedings were in breach of Article 6 § 1.

This part of the application is, therefore, also manifestly ill-founded within the meaning of Article 35 § 2.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President