FOURTH SECTION

DECISION

Application no. 27755/19 Murat VURAL against Austria

The European Court of Human Rights (Fourth Section), sitting on 14 December 2021 as a Committee composed of:

Iulia Antoanella Motoc, President, Gabriele Kucsko-Stadlmayer, Pere Pastor Vilanova, judges, and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 27755/19) against Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 May 2019 by a Turkish national, Mr Murat Vural, who was born in 1982 and lives in Wien (“the applicant”) and who was represented by Schmelz Rechtsanwälte OG, a law firm practising in Klosterneuburg;

the decision to give notice of the application to the Austrian Government (“the Government”), represented by their agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs;

the information given to the Turkish Government regarding their right to intervene in the proceedings pursuant to Article 36 § 1 of the Convention and the fact that the Turkish Government did not express a wish to exercise that right;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The case concerns the applicant’s complaint under Article 8 § 1 of the Convention that his custody request regarding his daughter, J., born out of wedlock on 4 October 2015, was dismissed. The applicant had met J.’s mother only twice before J.’s birth. The mother did not tell him about her pregnancy and decided to give J. up for adoption. From 7 October 2015, J. grew up with foster parents who were willing to adopt her and had J.’s mother’s support.

2 . In early May 2016 J.’s mother informed the applicant about J. In July 2016 a paternity test confirmed that he was J.’s biological father. From 13 July 2016 he saw J. regularly once a month for one hour, from September 2017 for two hours. On 15 November 2016 the applicant formally acknowledged his paternity and stated that he would not consent to adoption. He agreed that J. could stay with her foster parents for the time being. On 2 March 2017 and on 29 August 2017 he missed his contacts with J. because he had overslept.

3 . On 2 May 2017 the applicant lodged a request with the Liesing District Court (hereinafter “the district court”) to obtain sole custody of J. On 31 August 2017 he requested to see J. for a whole day every two weeks.

4 . On 2 March 2018 the district court dismissed his request for sole custody, granted custody to the foster parents and adjourned the decision on the extension of contact rights until the custody order would become final. It found that transferring custody to the applicant would harm J.’s well-being as she would be separated from her attachment figures ( Bindungspersonen ) while the applicant did not recognise the severe psychological effects such a separation would have on J. Instead, the applicant was of the view that because of her young age she would not remember the time with her foster parents. He was in a situation of change in his private life ( private Umbruchphase ) and was considering to cohabit again with his ex-wife and their son. However, he had not yet informed them about J.’s existence. The foster parents on the other hand furthered J.’s well-being in every possible way, encouraged contacts with her biological parents, let them be part of her life and informed her about her roots. It was thus in J.’s best interest to remain with her foster parents.

5 . On 11 September 2018 the Vienna Regional Court for Civil Matters (hereinafter, “the regional court”) dismissed the applicant’s appeal, essentially upholding the district court’s reasoning.

6 . In a final decision of 21 November 2018, served on the applicant on 3 January 2019, the Supreme Court rejected his extraordinary appeal.

7. According to the latest information submitted by the applicant on 23 November 2020, no final decision regarding his contact rights has been taken but the parties underwent mediation to find an amicable solution for further meetings between the applicant and J.

8 . The applicant complained under Article 8 of the Convention that the Austrian courts’ decisions rejecting his request for custody of J. amounted to a violation of his right to respect for his family life. The domestic courts had failed to consider the potential negative consequences for J. if she did not grow up with her biological father. Their decisions were justified merely by the argument of continuity. The applicant further complained under Article 6 § 1 of the Convention about the length of the proceedings.

THE COURT’S ASSESSMENT

9. The Court considers that the complaints should be examined only under Article 8 of the Convention (see Kopf and Liberda v. Austria , no. 1598/06, § 29, 17 January 2012).

10. The general principles on the notion of existing or intended “family life” within the meaning of Article 8 are outlined in the case of Anayo v. Germany (no. 20578/07, §§ 55-58, 21 December 2010, with further references). It is undisputed that the applicant is J.’s biological father and that he has never lived with her. The Government raised doubts as to whether the criteria for the existence of intended family life set out in the case of Anayo v. Germany (cited above) were fully met, given that the applicant had taken half a year to acknowledge paternity and a year to initiate custody proceedings. He had not made any specific arrangements to provide for J.’s care either. The applicant disputed that and argued that he had the closest legally possible relationship with J. Their contacts had been limited for reasons not attributable to him. When determining whether intended family life between a child born out of wedlock and the child’s biological father could fall within the ambit of Article 8, the Court considered the father’s commitment to the child and the nature of the relationship between the natural parents to be decisive (ibid., § 61). The applicant had met J.’s mother only twice before J. was born. After he had learned about J.’s existence, it took him six months to commit himself to formally acknowledge paternity and one year to initiate custody proceedings (see, by contrast, ibid., § 61, where the applicant had been in a relationship with his children’s mother for two years and initiated court proceedings speedily after their birth). He maintained regular contact with J. from the moment his paternity had been confirmed but missed two contacts without giving an excuse in advance. One year later he initiated proceedings to extend their contact rights (see paragraphs 2 and 3 above).

11. The Court can leave it open whether the applicant’s intended relationship with J. could attract the protection of “family life” under Article 8. In any event, the determination of the legal relations between the applicant and his biological child concerns an important part of his identity and thus his “private life” within the meaning of Article 8 § 1. Therefore, the domestic courts’ decision to dismiss his custody request interfered with his right to respect for, at least, his private life and falls under the ambit of Article 8.

12. The applicant did not dispute that this interference was in accordance with the law, nor that it pursued a legitimate aim within the meaning of paragraph 2 of Article 8, namely protecting the best interests of the child. The Court will examine whether dismissing the custody request was necessary in a democratic society and thus proportionate.

13 . The fundamental principles concerning the family life of children who are separated from their biological parents are well-established in the Court’s case-law (see Strand Lobben and Others v. Norway [GC], no. 37283/13, §§ 204-12, 10 September 2019, with further references). A care order should be regarded as a temporary measure, while the ultimate aim should be to reunite the natural parents and the child. However, when a considerable period of time has passed since the child was originally taken into public care, the interest of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited (ibid., § 208). The Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the care of children, but rather to review under the Convention the decision taken by those authorities in the exercise of their power of appreciation (ibid., § 210). The authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care (ibid., § 211).

14. The applicant had never lived with J. She was never taken out of her family and placed into care by a state measure, but her mother gave her up for adoption right after she was born. When the applicant learned about J.’s existence, she was already seven months old and had strong bonds with her foster parents who were in the process of adopting her. Thereafter it took him six months to formally acknowledge paternity (see paragraph 2 above) and one year, respectively, to decide that he wanted to obtain custody of J. (see paragraph 3 above), a period during which the bonds between J. and her foster parents grew even stronger. J. therefore had an interest in not having her de facto family situation changed (see paragraph 13 above).

15. The domestic courts, which had the benefit of direct contact with all parties, balanced the interests of J., the applicant, the mother and the foster parents and attached the biggest weight to the child’s interests. They based their detailed reasoning on a report by the Youth Welfare Office ( Kinder- und Jugendhilfeträger ), an expert report ( fachliche Stellungnahme ) by the Family Court Assistance ( Familiengerichtshilfe ) and the parties’ statements and came to the unanimous conclusion that J.’s well-being was best safeguarded by remaining with her foster parents. Establishing that the applicant trivialised the risk of psychological harm for J. and underestimated the importance of the foster parents, they did not focus on the imminent effect a separation from her foster parents would have on J., but on the applicant’s lack of understanding of this effect (by contrast, see Görgülü v. Germany , no. 74969/01, § 46, 26 February 2004). They balanced this constraint against the foster parents’ positive approach towards J.’s biological family (see paragraphs 4-5 above). Indeed, according to a statement submitted by the applicant, the foster parents had never missed a meeting between him and J. while he himself had missed visits with J. twice (see paragraph 2 above). In this regard, the Court notes that the applicant had been able to see his child regularly even before he acknowledged paternity (ibid.).

16. In addition, the domestic courts considered the applicant’s unclear family situation (see paragraph 4 above). While the applicant did not see how this aspect was relevant, the Court agrees with the domestic courts that they had to take into account the uncertain reaction of those persons who would supposedly live with J.

17. Under these circumstances, the Court disagrees with the applicant that the only reason for not transferring custody to him had been to maintain continuous care and that the domestic courts failed to consider the long-term effects a permanent separation from her natural father would have on J. (see paragraph 8 above). Rather, the domestic courts struck a fair balance between the competing interests at stake and did not overstep their margin of appreciation.

18. As to the complaint about the length of proceedings, in cases concerning a person’s relationship with his or her child there is a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter. This duty is decisive in assessing whether a case was heard within a reasonable time as required by Article 6 § 1 and also forms part of the procedural requirements implicit in Article 8 (see Ribić v. Croatia , no. 27148/12, § 92, 2 April 2015; Kopf and Liberda , cited above, §§ 39 and 46; both with further references).

19. The applicant claimed that the domestic courts had failed to decide on his custody request within reasonable time. The proceedings started on 2 May 2017 and ended on 3 January 2019 (see paragraphs 3 and 6 above), thus lasting one year and eight months at three levels of jurisdiction. There was no stagnation at any stage of the proceedings and the applicant never raised any concerns about a delay or lodged a request under section 91 of the Court Organisation Act to accelerate the proceedings. The domestic courts complied with their duty under Article 8 to deal expeditiously with the applicant’s request. Accordingly, both complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

20. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, the applicant’s complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

21. It follows that the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 January 2022.

Ilse Freiwirth Iulia Antoanella Motoc Deputy Registrar President