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Cite as: [2010] ECHR 393

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FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 20578/07
by Frank Eze ANAYO
against Germany

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

Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 10 May 2007,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Frank Eze Anayo, is a Nigerian national who was born in 1967 and lived in Achern, Germany, before moving to Spain in 2008.
He is represented before the Court by Mr R. Schmid, a lawyer practising in Nagold. The German Government (“the Government”) are represented by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.

A. The circumstances of the case

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

1. Background to the case

The applicant, who was born in Nigeria, entered Germany in 2003 and applied for asylum. His asylum request was dismissed, a decision which became final in February 2006.

Starting in June 2003 the applicant had a relationship with Mrs B. who was married to Mr B.; the spouses have three children born in 1996, 1998 and 2000. Although she initially considered a divorce, Mrs B., who never lived with the applicant, left the applicant in August 2005 and lived with her husband, Mr B., and the children again.

In December 2005 Mrs B. gave birth to twins. The applicant is the biological father of the twins. Mr and Mrs B. are bringing up the twins together. According to Article 1592 no. 1 of the Civil Code (see “Relevant domestic law” below), Mr B. is their legal father. Mr and Mrs B. repeatedly refused requests made by the applicant, both before and after the twins' birth, to be allowed contact with the twins.

2. Proceedings before the District Court

On 27 September 2006 the Baden-Baden District Court, having heard the applicant and Mr and Mrs B. in three hearings, granted the applicant contact with the twins once per month for one hour, initially in the presence of a third person and of either Mr or Mrs B. if they wished to be present.

The District Court found that the applicant was entitled to access under Article 1685 § 2 of the Civil Code (see “Relevant domestic law” below) as he was a person with whom the children had close ties. The fact that he had not yet borne any responsibility for the children did not hinder that entitlement, as the applicant had had no possibility to take such responsibility since the twins had been born in December 2005. Hence his access rights could not be denied.

The District Court further considered that contact between the applicant and the twins was in the children's best interest. It agreed with the findings of the psychological expert it had consulted, who, having heard Mr and
Mrs B. and the applicant, had concluded that contact with the applicant was beneficial for the children's welfare. Particularly in view of their
African-German origins, a relationship with the applicant, their natural father, would be essential for them to get to know their roots, to build up their identity, to understand why they were different and to develop normal self-esteem. The District Court also found that the applicant's access rights could not be delayed any further as they were being increasingly contested by Mr and Mrs B. The applicant's access to the twins would not adversely affect Mr and Mrs B.'s other three children because, as the psychologist had convincingly argued, dealing frankly with the realities would be in the best interest of all concerned.

In coming to its decision, the District Court took into consideration that when Mrs B. and the applicant had separated in August 2005, the applicant had agreed that the twins could stay with the B. family but had stated that “he wanted to have a chance in the asylum proceedings”. He had subsequently asked to be granted access to the twins after their birth, which Mr and Mrs B. had refused. He argued that if he did not stay in Germany, it would be impossible in practice for him to have any contact with his children and build up a relationship with them. In Mr and Mrs B.'s submission, the applicant wanted access to his children only in order to obtain a residence permit in Germany. The psychological expert, for her part, stated that it appeared that Mr and Mrs B. were now interpreting the applicant's relationship with Mrs B. – wrongly and in accordance with common prejudices – as a mere attempt to obtain a residence permit, in order to blame him for their own difficult situation.

3. Proceedings before the Court of Appeal

On 12 December 2006 the Karlsruhe Court of Appeal allowed an appeal lodged by Mr and Mrs B., quashed the decision of the District Court and dismissed the applicant's request for access to the twins.

The Court of Appeal found that the applicant was not entitled to access to the children under Article 1684 of the Civil Code (see “Relevant domestic law” below) because the provision only referred to the entitlement of the legal father (as opposed to the biological father), who in the present case was Mr B. (Article 1592 no. 1 of the Civil Code, see “Relevant domestic law” below). As the children were living with their legal father, the applicant was also not entitled to acknowledge paternity (Article 1594 § 2 of the Civil Code, see “Relevant domestic law” below) nor could he contest Mr B.'s paternity (Article 1600 § 2 of the Civil Code, see “Relevant domestic law” below).

The Court of Appeal further found that the applicant was not entitled to access under Article 1685 of the Civil Code. Being the biological father of the twins, he was, in principle, considered a person with whom the children had close ties (enge Bezugsperson) within the meaning of that provision.
He nevertheless had not fulfilled the remaining requirements of Article 1685 of the Civil Code, as he had not borne any responsibility for the children in the past and thus had no social and family relationship with them.

As the applicant was therefore not entitled to claim access, it was irrelevant whether contact between him and the twins was in the children's best interests.

The fundamental right to respect for one's family life and one's parental rights under Article 6 of the Basic Law (see “Relevant domestic law” below) and Article 8 of the Convention did not require a different interpretation of the provisions of the Civil Code. With regard to Article 6 of the Basic Law, the Court of Appeal found that the applicant, being the biological, but not the legal father of the twins, was not a “parent” within the meaning of paragraph 2 of that provision, in particular because the coexistence of two fathers was not consistent with the notion of parental responsibility. Moreover, Article 6 § 1 of the Basic Law protected the access of the biological father to his child only where a social and family relationship between them had already existed in the past; it did not protect the wish to build up a relationship with the child in the future. The reasons why there was no relationship between the biological father and the child were irrelevant.

The Court of Appeal noted that the refusal to grant the applicant access to the children would mean that he would be unable to build up a relationship with them and would be expelled to Nigeria. Therefore, the children would most probably never be able to get to know their biological father. However, that was because the twins lived in a family together with their legal father who was actually assuming the father's role. It was the legislator's evaluation, expressed in Article 1600 § 2 of the Civil Code, that the existing relationship between legal father and child took precedence over the relationship between biological father and child.

With regard to Article 8 of the Convention, the Court of Appeal observed that there had never been a family bond between the applicant and the twins. It also distinguished the present case from the case of Görgülü v. Germany (no. 74969/01, 26 February 2004) inasmuch as the applicant in that case had also been the legal father of his child and had obtained the right to custody.

4. Proceedings before the Federal Constitutional Court

On 29 March 2007, without giving reasons, the Federal Constitutional Court declined to consider the applicant's constitutional complaint, in which he claimed that the refusal to grant him access to the twins had violated his right to respect for his family life (file no. 1 BvR 183/07).

5. Subsequent developments

On 15 May 2007 the Freiburg Administrative Court dismissed the applicant's request for an interim order suspending his expulsion until the European Court of Human Rights had decided upon his application.
The applicant did not appeal against that decision. The main proceedings before the Freiburg Administrative Court, in which the applicant again applied for a residence permit, are still pending.

B. Relevant domestic law

1. Provisions of the Basic Law

Article 6 of the Basic Law, in so far as relevant, provides:

(1) Marriage and the family shall enjoy the special protection of the state.

(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty.

2. Provisions of the Civil Code

a. Provisions on access to a child

Parental custody includes the right to determine access to the child (Article 1632 § 2 of the Civil Code).

According to Article 1684 § 1 of the Civil Code, a child has a right of access to each parent, and each parent in turn has the right and the duty to have contact with the child. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties (Article 1684 § 3). They may restrict or suspend that right 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 the child's well-being would otherwise be endangered.
The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office or an association
(Article 1684 § 4).

Article 1685 § 2 of the Civil Code, in its version applicable at the relevant time, provides for persons with whom the child has close ties
(enge Bezugspersonen) to have a right of access to the child if this serves the child's best interest and if they are bearing actual responsibility for the child or have done so in the past (social and family relationship). It is to be assumed, as a rule, that a person who lived with the child in domestic community for a lengthy period of time has borne such actual responsibility. Article 1684 §§ 3 and 4 apply mutatis mutandis.

b. Provisions on paternity

According to Article 1592 of the Civil Code, a child's father is either the man who at 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).

An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code).

Paternity may be challenged. 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, pursuant to § 2 of Article 1600, this last man 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 he is the child's biological father and if there is no social and family relationship between the legal father and the child.
If there is no paternity under Article 1592 nos. 1 or 2 of the Civil Code, it is to be established by the family court (Article 1600d § 1 of the Civil Code).

If there is no paternity under Article 1592 nos. 1 or 2 of the Civil Code, it is to be established by the family court (Article 1600d § 1 of the Civil Code).

THE LAW

The applicant complained that the refusal to grant him access to his children violated his right to respect for his 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.”

A. The parties' submissions

1. The Government

The Government argued that there had been no interference with the applicant's rights under Article 8 § 1 as there had not been any “family life” between the applicant and the twins. It was not sufficient that the applicant was the natural father of the children. There were no close bonds between him and the twins. The relationship between the applicant and Mrs B. had ended four months before the twins were born and the applicant had neither been present at their birth nor had any contact with them. At no point in time had he lived with Mrs B. and he had not borne any financial responsibility for the children. The Government further submitted that in
Mr and Mrs B.'s view the applicant was interested in Mrs B. and the twins exclusively in order to obtain a residence permit in Germany. They further considered that the expert in the proceedings before the District Court had been biased.

The Government further submitted that, should the Court find that there had been an interference with the applicant's family life, that interference was justified under Article 8 § 2. The interference had been in accordance with Articles 1592 no. 1, 1684 and 1685 of the Civil Code and Article 6 of the Basic Law (see “Relevant domestic law” above).

The interference had further been necessary for the protection of the rights and freedoms of others, in particular for the protection of the legal/social family and the best interest of the children. There had been a fair balancing of the interests involved, that is, those of the biological parents, the legal parents and the children. Even though a natural parent could have an interest in getting to know his children and in building up a relationship with them, the children in the present case were living in a functioning legal and social family whereas the applicant had never lived with them. As the twins had fair skin and fair hair, they would not be able to understand what connected them with the applicant. Therefore, it was in their best interest and in that of the legal/social family to be protected from outside interference.

The Government took the view that the German legislator, in Articles 1592, 1684 and 1685 of the Civil Code, had balanced the competing interests involved in a manner which complied with the requirements of Article 8 and which had led to a fair outcome in the best interest of the children concerned in the present case. Relying on a psychological expert report commissioned for the present proceedings, the Government further submitted that, as a rule, contacts of children with the parent they were not living with became a burden for them if the parents involved – as was the case here – were unable to limit their conflicts after separation. Moreover, the total absence of contact with a natural father did not, as a rule, affect a child's social and emotional development.

In the Government's view, the present case had to be distinguished from that of Görgülü v. Germany (cited above), where the applicant had been both the biological and the legal father of the child concerned, who was living with foster parents. In the present case, on the other hand, the children concerned were living in their legal and social family.

2. The applicant

The applicant argued that there was “family life” between him and the twins within the meaning of Article 8 § 1. It was decisive that he was interested in the children and ready to take responsibility for them. He had intended to live with Mrs B. and the children and they had already looked for a flat and had gone to the ultrasound examination together before Mrs B. left him. Since the children's birth, he had attempted to have access to them and had initiated access proceedings in court. He had not been in a position to establish contact with his children and to bear actual responsibility for them as Mr and Mrs B. had refused him access. By doing so, Mr and Mrs B. also wanted to prevent him from residing in Germany. His situation was comparable to that of the applicant in Görgülü v. Germany (cited above), who had also not yet established an actual relationship with his child and where the Court had considered their relationship to amount to “family life” within the meaning of Article 8.

In the applicant's submission, the interference with his family life by the decisions of the domestic courts had not been justified under Article 8 § 2. German legislation, which allowed access of biological parents to their children only if there was already a social and family relationship between them and refused access if contact was aimed at establishing such a relationship, failed to comply with Article 8.

The applicant further emphasised that contact between the children and him, their biological father, was in the children's best interest. The expert consulted in the proceedings before the District Court had confirmed this and found that contact with him was important for the children to develop their own identity, in particular because it was visible that Mr B. was not the twins' biological father. Being African-German, they needed their father in order to understand why they were different. The denial of access to his children would result in his expulsion to Nigeria, which in turn would render impossible any future contact between him and the children.

B. The Court's assessment

The Court considers, in the light of the criteria established in its case-law and having regard to all the information in its possession, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court therefore concludes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Claudia Westerdiek Peer Lorenzen
Registrar President