Information Note on the Court’s case-law 35

October 2001

Sahin v. Germany - 30943/96

Judgment 11.10.2001 [Section IV]

Article 8

Article 8-1

Respect for family life

Refusal to grant natural fathers right of access to children born out of wedlock: violation, no violation

Article 14

Discrimination

Different treatment of natural fathers and divorced fathers with regard to access rights: violation

[This summary also covers the following judgments of 11 October 2001: Sommerfeld v. Germany (no. 31871/96); and Hoffmann v. Germany (no. 34045/96).]

These cases concern the refusal of the courts to grant the applicants a right of access to their respective children, born ou t of wedlock. Under the law applicable at the time (S. 1711 of the Civil Code), natural fathers could only be granted a right of access if the court considered that it was in the child's best interests. The cases thus raised the same issue as in the Elshol z v. Germany judgment. Furthermore, at the relevant time, the right to challenge a first appeal decision was excluded in such proceedings.

Law : Article 8 – In each case, the Court considered that there had been an interference with the right to respect for family life and accepted that the interference was in accordance with the law and pursued legitimate aims. Moreover, it accepted that the rea sons given by the domestic courts for their decisions were "relevant". The remaining question was, therefore, whether the applicants had been sufficiently involved in the decision-making process. In the Sahin case, the Court concluded, by 5 votes to 2, tha t there had been a violation, on the basis that the failure of the domestic courts to hear the child, then five years old, revealed "an insufficient involvement of the applicant in the access proceedings". In that respect, it considered that the courts sho uld not have been satisfied with the vague statements of an expert about the risks inherent in questioning the child. In the Sommerfeld case, the Court also concluded, by 5 votes to 2, that there had been a violation, on the ground that although the child had been heard, the domestic courts should not have been satisfied with hearing only the child's wishes without obtaining the expert psychologist's opinion evaluating these wishes. This failure similarly revealed an insufficient involvement of the applican t in the decision-making process. Finally, in the Hoffmann case, the Court concluded, by 5 votes to 2, that there had been no violation, since the domestic courts had had regard to reports concerning contacts between the applicant and his child, one of the se being based on meetings between them, and the applicant had had an opportunity to comment on the reports.

Article 14 in conjunction with Article 8 – In the Elsholz case, the Court had found it unnecessary to examine whether S. 1711 of the Civil Code mad e an unjustified distinction between fathers of children born out of wedlock and divorced fathers, since the application of the provision in that case did not appear to have led to a different approach. In the present cases, however, the Court considered t hat the domestic courts' approach reflected the underlying legislation which placed natural fathers in a less favourable position than divorced fathers, since they had no right of access and the mother's refusal of access could only be overridden by a cour t when access was in the interest of the child. Since the courts did not regard contacts between a child and the natural father as prima facie in the child's interest and the mother's negative attitude and the inevitable tensions between the parents were d ecisive for the refusal of access, the applicants were treated less favourably than divorced fathers. In each case, the Court consequently concluded, by 5 votes to 2, that there had been a violation.

Article 6 § 1 – In the Sommerfeld and Hoffmann cases, th e Court concluded, by 5 votes to 2, that the exclusion, in the case of access proceedings brought by a natural father, of the general right of appeal against a first appeal refusal, constituted a violation of the right of access to court.

© Council of Eur ope/European Court of Human Rights This summary by the Registry does not bind the Court.

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