Communicated on 3 October 2019

FIFTH SECTION

Application no. 27755/19 Murat VURAL against Austria lodged on 20 May 2019

STATEMENT OF FACTS

The applicant, Mr Murat Vural, is a Turkish national who was born in 1982 and lives in Vienna. He is represented before the Court by Schmelz Rechtsanwälte OG, a law firm practising in Klosterneuburg .

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

The applicant is the father of the child J., born out of wedlock on 4 October 2015. He never lived together with J. ’ s mother, before J. ’ s birth they had met only twice. The mother did not tell the applicant about her pregnancy and decided to give J. up for adoption at birth.

From 7 October 2015 J. was placed with foster parents, who were also willing to adopt her. Sole custody remained with J. ’ s mother, but she transferred the rights and duties of care and education ( Pflege und Erziehung ) to the Youth Welfare Office ( Kinder- und Jugendhilfetr ӓ ger ), which delegated them to the foster parents.

The applicant learnt about the existence of his daughter only in May 2016, after the mother had decided to inform the applicant. A paternity test in July 2016 confirmed that the applicant was J. ’ s biological father. From then on, the applicant saw his daughter once per month for one hour, and from September 2017 for two hours per month. On 15 November 2016 the applicant formally acknowledged his paternity and stated that he would not consent to adoption. He agreed, however, that J. could stay with her foster parents for the time being.

On 2 May 2017 the applicant requested the Liesing District Court ( Bezirksgericht ; hereinafter “the district court”) to grant him sole custody of J. He argued that the news of the existence of his daughter had at first been a shock to him and that he had had to think about his further steps. After careful consideration, he had then decided that he wanted his daughter to grow up with him. He found that it was in the best interest of his daughter to live with her biological father.

In their statements to the district court, the Youth Welfare Office and the Family Court Assistance ( Familiengerichtshilfe ) opposed the applicant ’ s request and stated that J. had been living with her foster parents basically her whole life. A deep social and emotional bond had developed between J. and her foster family. J. was growing up in a safe, stable and loving environment. In addition, the foster parents encouraged personal contact between J. and her biological parents.

The mother, who still had custody of J., opposed the applicant ’ s request and stated that it would be in her daughter ’ s best interest to stay with her foster parents .

On 31 August 2017 the applicant requested the extension of his contact rights with his daughter to a whole day every two weeks.

Subsequently, the foster parents requested that custody be transferred to them.

On 2 March 2018 the district court dismissed the applicant ’ s request for custody, granted custody to the foster parents and postponed its decision relating to the contact request until the custody proceedings became final. As to the applicant ’ s living circumstances, it held that he was married until 2010 and had an eleven-year-old son. For the first five and a half years the applicant had lived with his former wife and his son and had been involved in the daily care of the latter (for example preparing food, doing the washing, changing the baby). Currently, the applicant was single and living alone in a 62 m 2 apartment. The applicant was working as an independent entrepreneur. He was able to schedule his working hours flexibly. The applicant ’ s parents and his three siblings lived in Vienna and could support him in taking care of J. The applicant was thinking about moving back together with his ex-wife and his son, but had not yet told them about his daughter.

The district court further found that a deep social and emotional bond existed between J. and her foster family. The relationship between J. and her foster parents was very loving. They lived in a house with a garden and J. had her own room. The foster parents supported J. ’ s development in every way, including encouraging contact with her biological parents. However, the relationship between the applicant and the foster parents was negatively affected by the applicant ’ s refusal to give his consent for J. ’ s adoption and his custody request, and J. felt this. A transfer of custody to the applicant was highly likely to be detrimental to J. ’ s psychological well-being as J. would not only have to settle in a new social and cultural environment, but would also lose her emotional bond with her foster parents. The district court found that the applicant did not realise the potential psychological consequences of a change of custody for J . , as he believed that because of her young age, J. would have no memory of the time before the requested custody transfer.

The district court based its findings on the testimony of the applicant, both foster parents and J. ’ s mother. In respect of the consequences on J. ’ s well-being, the court referred to the report of the Family Court Assistance.

Under Article 185 of the Austrian Civil Code ( Allgemeines B ü rgerliches Gesetzbuch ), the transfer of custody to the foster parents was possible, since it corresponded to J. ’ s well-being, and because J. ’ s mother – who still had sole custody – approved the custody transfer.

The applicant appealed against this decision. He argued, inter alia , that under Article 178 of the Austrian Civil Code biological parents should be given priority where custody rights were concerned. Furthermore the court of first instance had failed to obtain an expert opinion by a psychologist regarding the potential consequences for his daughter if she were not reunited with him. In addition, an expert report could have shown that the applicant would be able to bond with his daughter in a relatively short time. Moreover, he argued that the court should have granted him more extensive contact rights of its own motion and from the beginning of the custody proceedings in order to allow him to build up a close relationship with J.

On 11 September 2018 the Vienna Regional Court for Civil Matters ( Landesgericht f ü r Zivilrechtssachen Wien; hereinafter, “the regional court”) dismissed the applicant ’ s appeal. It stated that the appointment of a psychologist to deliver an expert opinion was been necessary, as the court of first instance had been able to base its findings on the detailed statement of the Family Court Assistance. As regards the more extensive contact rights, the court found that there was no reason to grant him these of its own motion: The applicant had had contact with his daughter since 13 July 2016 and requested more extensive contact rights on 31 August 2017. He had not contest ed the first instance ’ s finding that the foster parents supported contact between him and his daughter and had not present ed substantiated arguments as to why the district court should have decided on his contact request before its decision on the custody request. Furthermore, the applicant had twice failed to attend the contact meetings. Concerning the priority of the biological parents in relation to custody, the court added that the child ’ s best interest was a central consideration. Between foster parents and a biological parent, the latter had to be given priority if he or she was at least equally suited to take care of the child. This was presently not the case, since the foster parents already had a strong emotional bond with J. Moreover, the applicant had failed to provide a plan of how he would ensure that, if he were granted custody, J. could stay in regular contact with her foster parents. Furthermore, the applicant had started to think about having a relationship with his ex-wife and living with her and his son again, but had not even told them about the existence of his daughter. This indicated that the applicant still had no concrete plan for how to manage a custody transfer.

The applicant ’ s extraordinary appeal was dismissed by the Supreme Court ( Oberster Gerichtshof ) on 21 November 2018 as no question involving an important point of law was raised.

According to the latest information on file dated 25 July 2019, no final decision regarding the contact request has yet been taken.

Under Article 178 § 1 of the Austrian Civil Code it is incumbent on the competent court to decide on a transfer of custody if the parent with sole custody died or his or her custody rights were withdrawn. In accordance with the principle of the child ’ s best interest, the court has to transfer the custody rights to the other parent, the grandparents or foster parents.

Under Article 180 § 1 of the Austrian Civil Code, the court has to decide on the custody rights if one parent applies for sole custody or participation in custodial rights.

Under Article 181 § 1 of the Austrian Civil Code, the court has to take all necessary measures, including the withdrawal of custody rights, if one or both parents endanger the welfare of the child.

Under Article 185 § 1 of the Austrian Civil Code, the Court has to grant custody rights to the foster parents if they so request and if it is in the child ’ s best interest.

COMPLAINTS

The applicant complains under Article 8 of the Convention that the decisions refusing custody amount to a violation of his right to respect for his family life. The domestic courts had failed to take into account the potential negative consequences for his daughter if she did not grow up with her biological father. Their decisions were justified merely with the argument of continuity for J.

The applicant further complains under Article 6 of the Convention, and in substance also under Article 8 about the length of the proceedings concerning custody.

QUESTIONS TO THE PARTIES

1. Does the relationship between the applicant and his child J. fall wit hin the notion of “family life”, or rather “private life” under Article 8 § 1 of the Convention ( see Anayo v. Germany , no. 20578/07, § § 55-58, 21 December 2010) ?

2. Did the decisions of the domestic courts regarding custody interfere with the applicant ’ s rights under Article 8 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 (see Görgülü v. Germany , no. 74969/01, § § 44-47, 26 February 2004)?

3. Was the length of the custody proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention and/or Article 8 of the Convention, taking into consideration the young age of J. and what was at stake for the applicant?