FIFTH SECTION

DECISION

Application no . 42719/14 Dirk MARKGRAF against Germany

The European Court of Human Rights (Fifth Section), sitting on 10 March 2015 as a Committee composed of:

Boštjan M. Zupančič , President , Angelika Nußberger , Vincent A. D e Gaetano, judges ,

and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 27 May 2014,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Dirk Markgraf , is a German national, who was born in 1964 and lives in Kronberg . He was represented before the Court by Mr G. Rixe , a lawyer practising in Bielefeld.

A. The circumstances of the case

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

1. Background to the case

3. In spring 2002 the applicant entered into an intimate relationship with Ms E. (“the mother”) who had been married to Mr E. (“the husband”) since 1986. The relationship lasted until summer 2003.

4. In September 2003 the mother gave birth to twins. The applicant, who lived in Kronberg , had access to the twins but the mother lived with her husband, their two older children and the twins in Leipzig.

5. In 2006 the applicant and the mother renewed their relationship. The mother became pregnant again. In July 2007 they rented a house in southern Saxony where the mother wanted to move for job-related reasons. The applicant continued to work in Kronberg and spent the week-ends at the house, while the husband lived in the former family home in Leipzig.

6. In September 2007 a daughter (“the child”) was born to the mother. Thereafter the applicant and the mother separated. In January 2008 the mother asked the applicant to finally move out from the house in southern Saxony. The applicant then only visited the child and the twins. This continued even after the husband moved into the house in southern Saxony in summer 2008 and resumed family life with the mother and all the children. In 2009 the applicant visited the child twice a month.

7. In May 2009 the applicant filed a motion to challenge the husband ’ s paternity. From this time the mother did not allow him access to the children any more. Whether the action was lodged after the mother denied the applicant access or whether access was denied by the mother after the action was filed, is not clear from the application.

2. Paternity proceedings

8. On 17 May 2009 the applicant brought an action before the Zwickau District Court to have his paternity of the child established.

9. The husband submitted in reply that the applicant was excluded from contesting paternity as the husband had been living in a domestic community with the child since she was born. He disputed that a family and social relationship between the applicant and the child had ever existed.

10. On 30 October 2009 the Zwickau District Court dismissed the applicant ’ s action.

11. On 23 February 2010 the Dresden Court of Appeal held a hearing and on 19 March 2010 dismissed the applicant ’ s appeal. It found that the applicant was precluded from challenging the husband ’ s paternity under Article 1600 of the Civil Code (see Relevant domestic law below) as there was a social and family relationship between the husband and the child which had persisted at least since August 2008. The Court of Appeal held that it was undisputed that the husband had lived with the child in domestic community since it was 11 months old. According to Section 1600 § 4 of the German Civil Code it could be assumed that a legal father who was living in domestic community had taken over actual responsibility for the child. The applicant had not submitted anything which indicated that this was not the case. His submissions concerning the time before August 2008 were irrelevant to the findings concerning the present social and family situation. The contacts with the child between August 2008 and May 2009 did not mean that the applicant took over actual responsibility for the child, replacing the husband as social father.

12. On 8 April 2010 the Court of Appeal rejected the applicant ’ s motion to be heard. It held it was not relevant to the case that the judgment of 19 March 2010 labelled the length of the social and family relation of the husband with the child as “almost two years” because the findings had sufficiently described that the relation had started at the latest in August 2008, when the husband had moved to southern Saxony.

13. On 4 December 2013 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint (file no. 1 BvR 1154/10). Referring to its own case-law and the case-law of the Court in the cases of Ahrens , Kautzor and Koppikar (all cited below) it held that it was not contrary to the German Basic Law to exclude the biological father ’ s right to challenge paternity of the legal father if the latter was living in a social and family situation with the child. The decision was served on the applicant ’ s counsel on 27 December 2013.

3. Subsequent access proceedings

14. On 18 September 2012 the mother, the husband and the applicant settled appeal proceedings concerning access rights agreeing that the applicant should have visiting rights with the child and the twins.

B. Relevant domestic law

15. The relevant domestic and comparative law is summarized, in particular, in the Court ’ s judgment in the case of Kautzor v. Germany (no. 23338/09, §§ 32-39, 22 March 2012).

16. The provisions referred to in the present case provide as follows. Under Article 1592 of the Civil Code, a child ’ s (legal) father is either the man who on the date of the child ’ s birth was married to the child ’ s mother (no. 1), or the man who acknowledged paternity (no. 2), or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3). Article 1600d § 1 of the Civil Code provides that paternity is to be established by the courts if there is no pa ternity under Article 1592 nos. 1 and 2 of the Civil Code.

17. Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child ’ s mother during the period of conception. However, under Article 1600 § 2, the biological father has a right to challenge the paternity of the man who is the child ’ s legal father under Article 1592 nos. 1 or 2 only if there is no social and family relationship between the legal father and the child. A social and family relationship is considered to exist if the legal father has or has had actual responsibility for the child at the relevant point in time (Article 1600 § 4, first sentence). There is, as a rule, an assumption of actual responsibility if the legal father is married to the mother of the child or has lived together with the child in a domestic community for a long period of time (Article 1600 § 4, second sentence).

COMPLAINTS

18. The applicant complained under Articles 6, 8 and 14 of the Convention that the domestic courts ’ refusal to allow him to challenge the husband ’ s legal paternity and to have his own paternity established had violated his right to respect for his private and family life and had discriminated against him.

THE LAW

A. Alleged violation of Article 8 of the Convention

19. The applicant complains that the domestic courts ’ refusal to allow him to challenge the husband ’ s legal paternity violated his right to respect for his private and family life under Article 8 of the Convention, which reads as follows:

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

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

20. The Court, having regard to its case-law (see, in particular, Kautzor , cited above, § 63; and Ahrens v. Germany , no. 45067/09, 22 March 2012, § 60), finds that the decision to reject the applicant ’ s request to establish his paternity of the child interfered with his right to respect for his private life.

21. In determining whether that interference was necessary in a democratic society for the purposes of Article 8 § 2, the Court reiterates the following.

22. Article 8 can be interpreted as imposing on the Member States an obligation to examine whether it was in the child ’ s best interests to allow a biological father to establish a relationship with his child, in particular by granting contact rights (see Anayo v. Germany , no. 20578/07, §§ 67-73, 21 December 2010; Schneider v. Germany , no. 17080/07, §§ 95-105, 15 September 2011; and Kautzor , cited above, § 76). This may imply the establishment, in access proceedings, of biological – as opposed to legal – paternity if, in the special circumstances of the case, contact between the alleged biological father – presuming that he was in fact the child ’ s biological parent – and the child were considered to be in the child ’ s best interests (see Schneider , cited above, § 103; and Kautzor , cited above, § 76).

23. However, the Court has further found that this does not imply a duty under the Convention to allow the alleged biological father to challenge the legal father ’ s status or to provide a separate action to establish biological – as opposed to legal – paternity (see Kautzor , cited above, § 77; and Ahrens , cited above, § 74). Having regard, in particular, to the lack of a consensus among the Member States and to the wider margin of appreciation to be accorded to the States in matters regarding legal status, the Court has considered that the decision whether the established or alleged biological father should be allowed to challenge paternity under the circumstances of the cases of Ahrens and Kautzor fell within the State ’ s margin of appreciation (see Ahrens and Kautzor , both cited above, §§ 75 and 78, respectively; Koppikar v. Germany [Committee] ( dec. ), no. 11858/10, 11 December 2012; H ü lsmann v. Germany [Committee] ( dec. ), no. 26610/09, 5 November 2013; and Adebowale v. Germany [Committee] ( dec. ), no. 546/10, 2 December 2014).

24. The Court cannot discern any elements which would allow it to distinguish the present case from the last-mentioned cases.

25. The fact that the applicant cohabitated with the child and the mother on week-ends in the time after the child was born and that until May 2009 he regularly visited the child does not call for a different conclusion. Even assuming that this would amount to a social and family situation, in the sense that the applicant had attained and maintained a role as a (second) social father, this does not prevent the domestic courts from granting the existing family relationship between the child and his legal parents precedence over the relationship with his alleged biological father with regard to the legal status (see, in particular, Kautzor , cited above, §§ 90-92; and Ahrens , cited above, §§ 88-90). The Court ’ s ruling in the case of Różański v. Poland (no. 55539/00, 18 May 2006 ), relied upon by the applicant, cannot lead to a different conclusion. Mr Różański had in fact lived for the first two years of his daughter ’ s life in a social and family relation with her. However, the reason why the Court had found a violation of his rights under the Convention was “the lack of any directly accessible procedure” to establish his paternity status (see Różański , cited above, § 79), “the mere reference to the recognition of paternity” by the legal father being “the only justification for the authorities ’ refusal to deal with the applicant ’ s repeated requests” (see Różański , cited above, § 77) and “the absence of any steps taken to establish the actual circumstances” (see Różański , cited above, § 78), including whether the legal father lived in a social and family relation with child. Thus, the Różański judgment is not to be interpreted in such a way as to prevent domestic legislation from setting reasonable criteria for the outcome of the proceedings. The issue whether the legal father lives in a social and family situation with the child is a legitimate criterion (see Ahrens , § 75 and Kautzor , § 78, cited above).

26. With regard to the specific complaint of the applicant that the biological father would have to prove that a social and family relation did not exist, even though the husband and the child lived in domestic community, the Court observes that the applicant has not disputed before the domestic courts that a social and family relation between husband and child existed. Thus the distribution of the burden of proof was irrelevant in the instant case.

27. Likewise, it is not for the applicant to criticise that the point of time the domestic courts see as relevant for establishing a social and family relationship is the day of the last court hearing. While it seems reasonable to examine as in the best interest of the child the present social and family situation, rather than a situation in the past, it must be noted that in the instant case the relevant social and family situation of the husband with the child remained unchanged throughout the full length of the proceedings.

28. Moreover, the applicant cannot complain under the Convention about German legislation preventing him from challenging the husband ’ s paternity in the future in case the social and family relationship of the husband with the child ceases to exist. This issue has not been subject to the decisions of the domestic courts and had no factual background as undisputedly the husband still lived with the child.

29. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with article 35 §§ 3 (a) and 4 of the Convention.

B. Alleged violation of Article 14 in conjunction with Article 8 of the Convention

30. The applicant further invokes Article 14 read in conjunction with Article 8. The main reason in treating the applicant differently from the mother, the legal father and the child with regard to the challenging of paternity is the aim of protecting the child and her social family from external disturbances. The Court, having regard to its above findings and to those in comparable cases (see, in particular, Kautzor , cited above, §§ 90 ‑ 92; and Ahrens , cited above, §§ 88-90), considers that the decision to give the existing family relationship between the child and his legal parents precedence over the relationship with his alleged biological father falls, in so far as the legal status is concerned, within the State ’ s margin of appreciation. The applicant has not, therefore, been treated differently compared to persons in a similar situation without an objective and reasonable justification.

31. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 2 April 2015 .

Milan Blaško Boštjan M. Zupančič Deputy Registrar President