European Court of Human Rights

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13778/07
by Thomas Christian PAEFGEN
against Germany

The European Court of Human Rights (Fifth Section), sitting on
12 January 2010 as a Chamber composed of:

Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 19 March 2007,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Thomas Christian Paefgen, is a German national who was born in 1969. He has currently no fixed domicile. He was represented before the Court by Mr P. Carstensen, a lawyer practising in Schleswig.

A.  The circumstances of the case

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

The applicant is the father of a daughter born in 1999. The parents, who had lived in Monaco, separated in January 2001. On 3 July 2003 the Monaco District Court (Tribunal de Première Instance) decreed the parents’ divorce and transferred sole parental authority on the mother, who is a German national. With regard to contacts, that court ruled that the applicant should have extensive visiting rights which, in the absence of a more favourable agreement reached between the parties, should be exercised every second Sunday between 9.00 a. m. and 6.00 p. m.

On 9 July 2004 the applicant, who was at the time residing in Switzerland, instituted contact proceedings before the District Court (Amtsgericht) in Husum, where mother and daughter were residing.
He requested to be granted contact rights during the first week of each month from Saturday 10.00 a. m. until the following Saturday 7.00 p. m. The mother requested a suspension of contact rights.

The applicant last saw his daughter on 24 September 2004 following a court hearing.

On 29 October 2004 the Husum District Court, having heard both parents and the child in person, modified the contact regulations contained in the divorce decree and granted the applicant visiting rights on every second weekend on Saturdays from 3.00 p. m. to 6.00 p.m. and on Sundays from 10.00 a. m. to 2.00 p. m. It further ruled that contacts should take place in the presence of a person the child confided in.

The District Court considered that the contact regulations had to be modified in the child’s best interests. There was no reason completely to suspend contact rights. The court considered, however, that unaccompanied contacts would jeopardise the child’s welfare. While the District Court did not consider that there was a risk of the applicant’s abducting the child, as the applicant would not want to risk criminal prosecution in Switzerland, the child’s considerable fears necessitated the presence of a trusted person. When personally heard by the court, the child had described her father as being evil and expressed the wish not to be left alone with him. The court further noted that the child had seen the applicant only twice within the two preceding years. Accordingly, she had to be given sufficient time to get to know her father before unaccompanied visits could be envisaged.
The District Court considered that there were clear indications that the mother had influenced the child against her father. However, once the child’s fears existed, they could not be ignored without jeopardising the child’s welfare.

The court further noted that it was not possible to make more precise provisions as to the person who should accompany the visits, as the mother intended to move to England and it was not possible to determine which person would be available. It followed that the choice of person had to be left to the parties or to a later court decision. The District Court finally considered that it had not been necessary to hear expert opinion by a children’s psychologist, as the child had expressed her fears during the hearing and there was no need for further examination.

The applicant lodged an appeal complaining, in particular, about the imposition of accompanied visits. He alleged that the persons proposed by the mother had been hostile towards him. He further complained that the granted contact time was too short.

On 29 June 2005 the Schleswig Holstein Court of Appeal (Oberlandesgericht) scheduled a hearing for 28 September 2005 and ordered the parties to appear in person.

At the beginning of the hearing the mother’s representative submitted a message alleging that mother and child had been unable to appear before that court because of delays of their flights from the Bahamas. The applicant contested these submissions.

On 19 October 2005 the Court of Appeal rejected the applicant’s appeal. The court noted that mother and child had moved to England in October 2004, but returned to Germany in December 2004. From March to August 2005 they stayed in Monaco. Since September 2005 they were staying on the Bahamas. The Court of Appeal considered that the child’s place of residence remained in Germany, as the mother, who appeared to be staying in a hotel, had not established a fixed place of residence on the Bahamas.

The Court of Appeal considered that the limitation of the contacts and the presence of a third person had been and remained necessary in order to safeguard the child’s welfare. The Court of Appeal confirmed that it was necessary to rebuild a relationship of trust between father and child before unaccompanied visits could be envisaged. The court further noted that the applicant, who had in the meantime given up his Swiss place of residence, had declared during the hearing that he was constantly travelling and currently could not make up his mind to establish a new place of residence. The court considered that such person could not be entrusted with unaccompanied contacts to a six-year old child nor with contacts extending over several days because the danger of his abducting the child was unacceptably high.

On 3 November 2005 the applicant lodged an appeal on the ground that his submissions had not been sufficiently taken into account (Anhörungsrüge), which was rejected on 21 December 2005.

On 19 January 2006 the applicant lodged a constitutional complaint and filed a request for an interim order.

On 28 February 2006 the applicant informed the Federal Constitutional Court that the child’s mother was currently of unknown residence.

On 6 June 2006 the Federal Constitutional Court refused to admit the applicant’s complaint and his joint request for an interim order for adjudication. This decision was served on the applicant’s counsel on
20 September 2006.

B.  Relevant domestic law

According to Article 1684 subsection 1 of the Civil Code, a child is entitled to have contact with its parents; each parent is obliged to have contact with, and is entitled to such contact with, the child.

Pursuant to subsection 2, each parent is obliged to refrain from any actions which could disturb the relationship of the other parent with the child.

The family courts can restrict or suspend a parent’s rights of contact if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s welfare would be jeopardised (Article 1684 § 4).

COMPLAINTS

The applicant complained under Article 6 of the Convention about the length and alleged unfairness of the proceedings before the family courts. He complained, in particular, that the Court of Appeal had failed to secure his contact rights throughout the proceedings by way of interim measures. He further complained that the Court of Appeal did not draw any consequences from the mother’s obstructive behaviour, such as her repeated travels.

The applicant further complained under Article 8 that the decisions taken by the family courts did not respect his right to the enjoyment of his family life. He complained, in particular, that the impugned decisions were based on an incomplete assessment of the facts. He could not have expected that the mere fact that he had given up his Swiss residence would lead the Court of Appeal to the assumption that here was the risk of his abducting the child. The regulations on contact rights issued by the courts were so imprecise as not to allow their enforcement. Furthermore, the family courts had failed to respect the principle of proportionality. The applicant further complained about the Court of Appeal’s failure to hear the mother and the child in person and to hear expert opinion. The family courts had, furthermore, failed to appoint a curator ad litem to safeguard the child’s interests and had failed to instigate friendly settlement negotiations.

Invoking Article 14 in conjunction with Article 8, the applicant finally complained about having been discriminated against in his capacity as a father without a fixed residence.

THE LAW

The applicant complained about the outcome and alleged procedural shortcomings of the contact proceedings. The Court considers that these complaints primarily fall to be examined under Article 8 of the Convention, which provides, insofar as relevant:

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

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 ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court observes that the restrictions on contact rights amounted to an interference with the applicant’s right to respect for his family life as guaranteed by Article 8 § 1. Such an interference entails a violation of Article 8 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under Article 8 § 2 and is “necessary in a democratic society” for the aforesaid aim or aims.

The decision at issue had a basis in national law, namely Article 1684 of the Civil Code, and was aimed at protecting the best interests of the child, which is a legitimate aim within the meaning of paragraph 2 of Article 8.

In determining whether the refusal to grant broader contact rights was “necessary in a democratic society” , the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of Article 8 § 2 of the Convention. The Court reiterates that it is not its task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding contact rights, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (Sahin and Sommerfeld v. Germany [GC], nos. 30943/96 and 31871/96, § 64 and § 62 respectively, ECHR 2003-VIII). Whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see Sahin and Sommerfeld, both cited above, § 68 and § 66).

In the present case, the Court notes that the family courts based the decision to allow accompanied visits only and to limit visiting hours on two considerations: The District Court, having heard the child in person, esteemed that the child had to be given sufficient time to overcome her fears and to get to know her father, whom she had only seen twice during the two preceding years. The Court of Appeal confirmed that it was necessary to rebuild a relationship of trust between father and child before unaccompanied visits could be envisaged. With reference to the fact that the applicant had, in the meantime, given up his Swiss residence and was presently without fixed residence, they further considered that there existed the risk of the applicant’s abducting the child.

The Court cannot find that this assessment is arbitrary or that it did not adequately take the applicant’s interests into account. If the contact decision lacked a certain amount of precision, as it neither indicated the place at which contacts should take place nor identified the accompanying person, the Court considers that this is owed to the very exceptional circumstances of the case, in particular the fact that the mother, who had been awarded sole parental authority by the Monegasque court, had changed her whereabouts on several occasions throughout the proceedings. The Court further notes that the identification of a person of trust was further complicated by the distrust existing between the applicant and the mother’s family. Under these circumstances, the Court does not consider that the family courts would have been in a position to issue more precise provisions either in the main proceedings or by way of an interim order.

In assessing whether the reasons adduced by the domestic courts were also sufficient for the purposes of Article 8 § 2, the Court will notably have to determine whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests.

As to the proceedings at first instance, the Court notes that the applicant, assisted by counsel, was in a position to put forward all his arguments in favour of securing broader access rights both personally and in written form. The evidential basis for the District Court’s decision further included the statements of the child, who was heard in person, and of the mother.

The Court of Appeal, for its part, based its findings on the contents of the existing case file, fresh submissions by all parties to the proceedings, and the applicant’s own statement during the hearing. The Court notes that the Court of Appeal did not re-hear the child and her mother in person. It notes, however, that the hearing in the appeal proceedings took place less than a year after the first instance hearing. Having particular regard to the fact that the child did not have any contact to her father in the meantime, there was no indication that she had changed her attitude towards him. It is therefore acceptable that the Court of Appeal refrained from re-hearing the child in person. The Court further notes that the Court of Appeal did not base the restrictions on access rights exclusively on the child’s attitude, but also on the applicant’s lack of a fixed residence.

The Court notes that the family courts neither consulted a psychological expert on the question of contacts nor appointed the child a curator ad litem to represent her interests. However, as a general rule it is for the national courts to assess the evidence before them, including the means to ascertain the relevant facts. It would be going too far to say that domestic courts are always required to involve a psychological expert on the issue of access to a parent not having custody, but this issue depends on the specific circumstances of the case (see Sommerfeld, cited above, § 71 and Wildgruber (I) v. Germany (dec.), no. 32817/02, 16 October 2006).
The same considerations apply for the appointment of a curator ad litem (see Wildgruber (I), cited above).

In this connection the Court attaches particular importance to the fact that the family courts, in spite of the mother’s request, did not consider a total suspension of the applicant’s contact rights, but only modified the modalities of the exercise of these rights. The decision did not, therefore, strike at the roots of the applicant’s right to respect for his family life.
The Court further takes into account the factual difficulties arising from the mother’s frequent and elongated sojourns abroad, which would have made it difficult to prepare an expert opinion. With the District Court having had the benefit of direct contact with the child and both parents, it does not appear unreasonable for the courts to rely on its own experience instead of also consulting a psychological expert and / or a curator ad litem in order to assess the child’s best interests as regards further contacts with her father (compare Wildgruber (I), cited above).

With regard to the length of the proceedings, the Court notes that the proceedings were instigated on 9 July 2004 when the applicant lodged his request for contacts and terminated on 20 September 2006 when the Federal Constitutional Court’s decision was served on the applicant’s counsel.
The proceedings thus lasted some two years and two months for three court instances. Even considering that special diligence is required in cases concerning contact with young children (see, for example, Nanning
v. Germany, no. 39741/02, §§ 43-44, 12 July 2007), the Court considers this length of proceedings to be acceptable.

Having regard to these aspects, the Court, even applying a strict scrutiny as the applicant’s contact rights are concerned, cannot find that the family courts did not sufficiently take into account the applicant’s interests.
It follows that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The applicant also complained under Article 6 § 1 of the Convention about the conduct and the length of the proceedings before the domestic courts. The Court, having already addressed these complaints when examining the fairness of the decision-making process under Article 8, and having regard to all the material in its possession, finds that they do not disclose any appearance of a violation of Article 6 § 1. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The applicant further complained that in the contact proceedings, he had been the victim of discriminatory treatment contrary to Article 14 in conjunction with Article 8 of the Convention. However, in the light of all the material in its possession, the Court does not consider that the applicant has been discriminated against. It follows that also this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Stephen Phillips Peer Lorenzen
Deputy Registrar President