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SPORER v. AUSTRIA - 35637/03 [2011] ECHR 180 (3 February 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/180.html
Cite as:
[2011] ECHR 180
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FIRST
SECTION
CASE OF SPORER v. AUSTRIA
(Application
no. 35637/03)
JUDGMENT
STRASBOURG
3 February
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Sporer v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 13 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 35637/03) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Mr Gerald Sporer (“the
applicant”), on 12 November 2003.
The
applicant was represented by Mrs M. Speer, a lawyer practising in
Mattighofen. The Austrian Government (“the Government”)
were represented by their Agent, Ambassador H. Tichy, Head of the
International Law Department at the Federal Ministry for European and
International Affairs.
The
applicant alleged that the relevant provisions of the Civil Code
relating to custody and their application by the courts had
discriminated against him as the father of a child born out of
wedlock. Furthermore, he alleged that the District Court had failed
to hold a hearing to discuss the decisive expert opinion and, more
generally, that it had failed to hear him in person.
By
a decision of 25 September 2008 the Court declared the application
admissible.
Neither
party filed further observations on the merits of the case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1976 and lives in Schalchen.
The
applicant’s son K. was born out of wedlock on 26 May 2000. The
child was given the applicant’s family name by decision of the
Braunau District Administrative Authority of 29 June 2000.
At
that time K.’s mother was living as a tenant in the applicant’s
house, in a separate apartment. The applicant was sharing an
apartment with his long-term partner, U., who later became his wife,
and their son D. aged six at that time. During K.’s first year
the applicant took parental leave and took care of him together with
U. Subsequently, K.’s mother took parental leave.
In
early January 2002 K.’s mother moved out of the applicant’s
house.
On
28 January 2002 the applicant asked the Mattighofen District Court
(Bezirksgericht) to transfer sole custody of K. to him under
Article 176 of the Civil Code (Allgemeines Bürgerliches
Gesetzbuch). He submitted in particular that he and U. had mainly
taken care of K. and that the child’s mother was not capable of
doing so. The latter opposed the transfer of custody. At that stage
and at all subsequent stages of the proceedings the applicant was
assisted by counsel.
By
letter of 12 February 2002 the Youth Office (Jugendamt), which
had been following the case since summer 2001, expressed the view
that both parents were capable of exercising custody.
On
12 March 2002 the applicant and K.’s mother appeared before the
District Court and were heard by the judge.
According
to the minutes, the applicant requested that the opinion of an expert
in child psychology be taken. K.’s mother agreed to that
request. The court appointed Dr J.-W., an expert in child psychology,
and ordered him to submit an opinion on whether the interests of the
child were better served by leaving sole custody with the mother or
by awarding it to the applicant. The judge then proceeded to discuss
the factual and legal issues with the parties. The parties then
concluded an agreement to the effect that, pending a decision on
custody, K. would spend three days with his mother and three days
with the applicant.
The
expert, Dr J.-W., submitted his opinion to the Court on 17 April
2002. The opinion was based on interviews which the expert had
conducted with K.’s mother and the applicant and his partner.
He had also paid a visit to the applicant’s home during which
he had observed how the applicant and the other members of his family
interacted with K. The expert opinion was served on the applicant.
On
8 July 2002 the District Court held a hearing in the presence of the
applicant, his counsel, K.’s mother, Dr J.-W. and a
representative of the Youth Office.
According
to the minutes, the contents of the file were read out. Subsequently,
Dr J.-W.’s opinion was discussed. In the course of the hearing
Dr J.-W. supplemented his opinion. He expressed the view that K.’s
mother was very immature and not yet capable of taking care of him
and recommended the transfer of sole custody to the applicant. The
representative of the Youth Office opposed the view that K.’s
mother was not capable of raising the child. None of the parties made
further submissions.
On
the following day, that is, on 9 July 2002, the District Court
ordered a second expert in child psychology, Dr R., to submit an
opinion on whether or not K.’s mother was capable of taking
care of him. In her opinion of 15 July 2002, Dr R. came to the
conclusion that K.’s mother was sufficiently mature, did not
show any emotional instability and was capable of taking care of him.
A copy of this expert opinion was served on the applicant.
In
addition the District Court requested the Youth Office to prepare a
report. A representative of the Youth Office visited K. and his
mother at their home and as a result of that visit concluded that she
was able to exercise custody.
On
29 July and 13 August 2002 the applicant requested that a decisive
expert opinion (Obergutachten) be commissioned. The motion
contained comprehensive submissions on K.’s mother’s
alleged incapacity to raise him.
The
District Court ordered a third expert, Dr B., to submit a decisive
expert opinion on the question whether K.’s mother was capable
of exercising custody.
Both
the applicant and K.’s mother made further written submissions.
Each of them forwarded detailed arguments as to why the other parent
was not an appropriate person to take care of K.
On
14 October 2002 Dr B. submitted his expert opinion. Having
interviewed the applicant and K.’s mother, he found that both
parents were in principle capable of taking care of K. The mother had
some issues as regards her own personality development and a somewhat
limited capacity to cope with everyday life. The applicant had a
tendency to dominate and had given reason to fear that, if custody
was awarded to him, he would try to curtail the mother’s access
rights. The applicant could provide a more stable environment and a
more coherent style of upbringing. However, K.’s best interests
would not be manifestly endangered if custody remained with his
mother. It was recommended that the applicant be given extensive
access rights, in that K. should stay with him from Friday to Sunday
every second weekend, spend two weeks with him in summer and one week
during the Christmas period.
A
copy of Dr B.’s expert opinion was served on the applicant, and
he was given 14 days to submit comments. Within that time-limit, the
applicant requested that the expert opinion be discussed at a
hearing. He did not make any comments in writing.
Without
holding a further hearing, the District Court dismissed the
applicant’s request for sole custody of K. to be transferred to
him by decision of 4 December 2002.
The
District Court noted that under Article 166 of the Civil Code the
mother of a child born out of wedlock had sole custody. A transfer of
custody was only to be ordered if the child’s best interests
were at risk. In the present case the applicant would have had to
prove that K.’s mother was unable to take care of him. While
the first expert, Mr J.-W., had come to the conclusion that this was
the case, the second expert, Ms R., had reached the opposite
conclusion. Finally, the decisive expert opinion by Mr B. had found
it established that K.’s mother was capable of taking care of
him. Having regard to the second and third expert opinions and to the
view expressed by the Youth Office, it had been established that K.’s
mother was able to exercise custody and the applicant had failed to
adduce proof to the contrary.
Furthermore,
the District Court noted that it had not considered it necessary to
hold a hearing to discuss the decisive expert opinion, since it found
that opinion coherent and convincing. The factual and legal issues of
the case had therefore been sufficiently clarified and a hearing
would only have delayed the proceedings. It followed that the
applicant’s further requests for the taking of evidence had to
be dismissed.
Finally,
the court ruled that its decision was immediately enforceable with
the consequence that the agreement of 12 March 2002 was no longer
effective.
The
applicant appealed. He complained about a number of procedural
shortcomings. He alleged, inter alia, that the District Court
had failed to hold a hearing for the purpose of discussing Dr B.’s
expert opinion, and that it had not heard him in person.
In
addition, the applicant contended that the relevant provisions of the
Civil Code, namely, Articles 166 and 176, were discriminatory and
suggested that the appellate court request the Constitutional Court
to rule on their constitutionality. Since K. had been born out of
wedlock, his mother had sole custody of him and he, as the child’s
father, could only be awarded custody if the mother put the child’s
well-being at risk. In the case of a child born in wedlock the
parents had joint custody and retained it upon divorce or separation
unless the child’s best interests required that sole custody be
awarded to one of them. The application of different criteria when
the parents of a child born out of wedlock separated lacked
reasonable justification.
On
24 February 2003 the Ried Regional Court dismissed the applicant’s
appeal.
The
Regional Court found that the proceedings before the District Court
had not suffered from any procedural defects. In non-contentious
proceedings it was not always required to question the parties at a
hearing. A hearing had been held on 8 July 2002 in the presence of
the applicant. Furthermore, the applicant had had the opportunity to
file written submissions, of which he had made ample use. He had also
been interviewed by the experts. A further hearing for the purpose of
discussing the decisive expert opinion of Dr B. would only have been
required had there been substantial doubts as to its correctness.
Moreover,
the Regional Court did not see any reason to request the
Constitutional Court to rule on the constitutionality of the relevant
provisions of the Civil Code. It noted that Article 167 of the Civil
Code allowed life-companions to request joint custody. The applicant
had not claimed to have cohabited with K.’s mother. On the
contrary he had co habited with another woman, U., who had
meanwhile become his wife.
A
distinction between children born in wedlock and children born out of
wedlock was not discriminatory as long as it was objectively
justified. The rule contained in Article 176 of the Civil Code that
in the case of a child born out of wedlock (unless the parents had
requested joint custody under Article 167) custody was only to be
transferred if the mother put the child’s well-being at risk,
was based on the consideration that in the majority of cases of
children born out of wedlock it was actually the mother who took care
of the child.
The
applicant filed an extraordinary appeal on points of law. He repeated
his complaints about the alleged procedural shortcomings. In
particular, he submitted that the court had neither held a hearing to
discuss the decisive expert opinion of Dr B. nor given him an
opportunity to comment in writing. The applicant also reiterated his
request for the case to be submitted to the Constitutional Court.
On
26 June 2003 the Supreme Court (Oberster Gerichtshof)
dismissed the applicant’s extraordinary appeal on points of
law. It noted that the courts were not obliged to hold hearings in
custody proceedings. The applicant had been given the opportunity to
comment on the expert opinion at issue. Moreover, the courts had
correctly applied Article 176 of the Civil Code. It had not been
shown that the mother put K.’s well-being at risk.
To
date, K.’s mother continues to have sole custody of him while
the applicant has a right of access under the terms recommended by
the courts in the custody proceedings.
II. RELEVANT DOMESTIC AND COMPARATIVE LAW
A. Relevant domestic law
The
relevant provisions of the Civil Code in the version in force at the
material time read as follows:
Article 144
“The parents shall care for and raise the minor
child, manage its assets and represent it in these, as well as in all
other matters; care, upbringing and asset management also include
representing the child in these matters before the law [in court].
The parents shall proceed on a consensual basis when complying with
these obligations and exercising these rights.”
Article 166
“The mother shall have sole custody of an
illegitimate child. Moreover, unless the present provisions stipulate
otherwise, the provisions on legitimate children regarding
maintenance and custody shall also apply to illegitimate children.”
Article 167
“(1) Whenever the parents of a child
live in a common household, they may agree that both parents will
have custody in the future. The court shall uphold the agreement if
it serves the interests of the child. If one parent leaves the common
household, other than on a temporary basis, § 177 and §
177a shall be applied accordingly.
(2) Whenever the parents do not live in a
common household, they can agree that the father shall also have full
custodial powers or regarding specific matters in the future, if they
present such an agreement to the court indicating the parent with
which the child is to stay primarily. If the child stays primarily in
the household of the father, the latter must also be assigned full
custody. The court shall uphold the agreement if it serves the
interests of the child.”
This
version of Article 167 of the Civil Code was introduced by the
2001 Law Amending Child Custody Law, which entered into force on
1 July 2001. Before that date parents of an illegitimate child
could only agree on exercising custody jointly if they were living in
a common household.
Article 176
“(1) Whenever the parents put the
well-being of a minor child at risk, on account of their conduct, the
court will take the steps necessary to secure the interests of the
child, irrespective of which party has applied to the court. In
particular, the court may withdraw all or part of the custodial
rights in respect of the child, ...”
Article 177
“(1) If the marriage of the parents of
a minor legitimate child is dissolved or annulled, the custodial
rights of both parents remain intact. However, they may present an
agreement to the court – even modifying an existing agreement –
regarding custodial responsibility. In this connection it may be
agreed that one parent alone or both parents shall have custody.
Where both parents have custodial powers, those of one parent may be
limited to specific matters.
(2) Where both parents have custody, they
must submit an agreement to the court regarding the parent with whom
the child is to stay primarily. This parent must always be put in
charge of all custodial matters.
(3) The court must approve the agreement of
the parents, if it serves the interests of the child.”
Article 177a
“(1) If an agreement in accordance with
Article 177 on the main domicile of the child or on custodial powers
is not reached within a reasonable period after a marriage is
dissolved or annulled, or if it is incompatible with the interests of
the child, the court must decide which parent shall henceforth have
sole custody, if all attempts to reach an amicable solution fail.
(2) If both parents have custody under
Article 177 after their marriage has been dissolved or annulled, and
if one parent applies for the withdrawal of that custody, the court
must decide which parent shall have sole custody, if all attempts to
reach an amicable solution fail.”
Article 177b
“The above provisions shall also be applied if the
parents of a minor legitimate child live apart, other than on a
temporary basis. However, in such a case the court shall decide on
custody only upon application by a parent.”
B. Relevant comparative law
A
recent case concerning similar complaints (Zaunegger v. Germany,
no. 22028/04, §§ 22-27, 3
December 2009) contains the following summary of comparative law:
“22. A survey on comparative law taking
into account the national laws of a selection of Member States of the
Council of Europe shows that basically all Member States included in
the survey provide for joint parental authority by unmarried parents
over their children born out of wedlock. The main elements
referred to as a basis for allowing joint parental authority for
unmarried parents are the establishment of paternity and the parents’
agreement to exercise joint authority.
23. However, the solutions in the Member
States vary as regards the attribution of joint parental authority
for children born out of wedlock in the event no agreement between
the parents can be reached in this respect.
24. In only a limited number of countries do
the statutory regulations explicitly address this issue. In a few
countries, such as Austria, Norway and Serbia, the national law
stipulates that the exercise of joint parental authority of unmarried
parents requires the consent of both parents and thus implies that
the non-consenting parent has a right of veto. By contrast, the laws
in Hungary, Ireland and Monaco appear to provide for a joint exercise
of parental authority even without the parents’ consent.
25. In some Member States such as the Czech
Republic and Luxembourg, while the law itself is not clear on the
subject, the domestic courts have interpreted the applicable
provisions so as to allow joint parental authority only with the
consent of the parents, whereas for example the Dutch Supreme Court
has held that the national law has to be interpreted so as to enable
the father of a child born out of wedlock to request joint parental
authority with the mother even though the latter disagrees. A similar
approach seems to be followed in Spain.
26. With the exception of the few countries
where a right of veto of one parent is explicitly stipulated in
national law, the most common solution put forward by national
legislations is that a court decides on the outcome of a
corresponding dispute between the parents at the request of one of
the parents bearing in mind the best interests of the child. All
Member States emphasise the importance of the child’s best
interest in decisions regarding the attribution of custody. In
determining the child’s best interest in this connection
domestic courts commonly take into consideration the positions of the
parents and the child and the particular circumstances of the case,
as regards, inter alia, the demonstrable interest in and
commitment to the child by the respective parent.
27. In summary, ... , the survey confirms
that while different approaches exist in the Member States,
the majority provide for paternal participation in custody if
the parents were not married to each other, either irrespective of
the mother’s will or at least by court order following an
evaluation of the child’s interests.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained about the lack of a proper hearing before the
District Court. Furthermore he alleges that the District Court failed
to duly hear him in person. He relied on Article 6 of the Convention
which, in so far as material, reads as follows.
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
A. The parties’ submissions
The
applicant maintained that the Mattighofen District Court had failed
to hold a proper hearing in his case. In his view that court should
have held a hearing once it had obtained the expert opinion of Dr. B.
He emphasised that in custody proceedings the parents of the child
must be heard in person and asserted that he had not been given a
proper opportunity to make oral submissions.
The
Government submitted that the applicant’s allegation that the
courts had failed to hold a proper hearing and to hear him in person
was unsupported by the facts of the case. The District Court had held
two hearings, namely, on 12 March and 8 July 2002, in which the
factual and legal issues of the case were discussed. These hearings
gave the applicant an opportunity to make submissions and allowed the
court to obtain a personal impression of both parties. Moreover, the
applicant made repeated use of the opportunity to file written
submissions. Finally, he was given a time-limit to comment on the
decisive expert opinion of Dr B. However, he did not make use of this
opportunity but limited his submissions to an application for a
further hearing. In sum, the proceedings complied with the
requirements of Article 6 § 1.
B. The Court’s assessment
1. General principles
According to the Court’s case-law, the right to
a public hearing under Article 6 entails an entitlement to an “oral
hearing” unless there are exceptional circumstances that
justify dispensing with such a hearing (see, for instance, Stallinger
and Kuso v. Austria, 23 April 1997, § 51, Reports of
Judgments and Decisions 1997 II, and Allan Jacobsson v.
Sweden (no. 2), 19 February 1998, § 46, Reports 1998 I).
Furthermore,
the right to appear in person in a civil case is not, as such
guaranteed by the Convention but may, in particular circumstances, be
implied in the right to a fair hearing, in particular where the court
needs to gain a personal impression of the parties (see, mutatis
mutandis, Helmers v. Sweden, 29 October 1991, §
38, Series A no. 212-A).
2. Application to the present case
The
Court has to examine whether the applicant was entitled to a hearing
and, if so, whether a hearing complying with the requirements of
Article 6 § 1 of the Convention was held. In addition it has to
examine whether the applicant had a right to appear in person and, if
so, whether this right was respected. The Court considers that the
two questions are closely linked to each other and will therefore
examine them together.
Regarding
the right to a hearing, the Court considers that in the present case,
there were no exceptional circumstances which would justify
dispensing with a hearing. Nor did the proceedings concern highly
technical issues or purely legal questions (see, regarding these
criteria, Schuler Zgraggen v. Switzerland, 24 June 1993,
§ 58, Series A no. 263, and Varela Assalino v. Portugal
(dec.), no. 64336/01, 25 April 2002). The applicant was therefore
entitled to a hearing.
Moreover,
the Court considers that in custody proceedings the personal
impression of the parents is an important element and that the
applicant was therefore entitled to appear before the court and to be
heard in person.
The
Government argued that the Mattighofen District Court held two
hearings namely on 12 March and 8 July 2002. The Court observes that
the first one, on 12 March 2002, was apparently held on the
initiative of the parties, namely the applicant and K.’s mother
and was of a preparatory nature. According to the minutes, the court
granted the applicant’s request to hear an expert in child
psychology and then proceeded to a discussion of the factual and
legal issues of the case with the parties. At the close of this
discussion the parties concluded an agreement to take care of K.
alternately, pending the decision on custody.
A
second hearing was held on 8 July 2002 in the presence of the
parties, the applicant’s counsel, the expert J.-W. and a
representative of the Youth Office. According to the minutes, the
expert opinion was discussed and the expert commented on and
supplemented his opinion. None of the parties made further
submissions.
Following
the hearing of 8 July 2002 and as the expert J.-W. had come to the
conclusion that K.’s mother was not able to exercise custody
while the representative of the Youth Office had opposed that
position, the District Court ordered a further expert, Dr. R., to
submit an opinion. The latter came to the conclusion that K.’s
mother was capable of exercising custody. At the applicant’s
request, the District Court ordered a third expert, Dr. B. to submit
a decisive opinion.
Subsequently,
the applicant requested that Dr. B.’s expert opinion be
discussed at a hearing. The District Court refused that request. It
found that the opinion was conclusive, that the factual and legal
issues of the case had been sufficiently clarified and that a further
hearing risked delaying the proceedings.
The
Court finds that the reasons given by the District Court are
convincing, given that it had already held two hearings, one of a
preparatory nature and one on the merits of case before it. These
hearings had allowed the District Court to gain a personal impression
of both parties and had served to discuss various aspects of the
case. Insofar as the applicant asserted that he had not been given a
proper opportunity to make oral submissions, the Court notes,
firstly, that the applicant has not substantiated this complaint. It
notes, secondly, that the applicant was present at the hearing of 8
July 2002 and was assisted by counsel. There is no indication that
following the discussion of the expert opinion of Dr. J.-W. he would
not have been able to make further submissions had he wished to do
so.
Moreover,
the Court is satisfied that the applicant had the benefit of
adversarial proceedings which provided him with an opportunity to put
forward all his arguments. In particular, the Court notes that Dr.
B.’s decisive expert opinion was prepared and examined in an
adversarial manner: both parties had made comprehensive written
submissions on the other parent’s alleged incapacity to
exercise custody. In addition Dr. B. had interviewed both the
applicant and K.’s mother when preparing his opinion and,
finally, that opinion was served on the applicant and he was given an
opportunity to comment on it. In these circumstances the District
Court could fairly and reasonably decide on the case without holding
a further hearing after having obtained Dr. B.’s expert
opinion.
Consequently,
there has been no violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 8
The
applicant complained under Article 8, taken alone and in conjunction
with Article 14, that the relevant provisions of the Civil Code and
their application by the courts had discriminated against him as the
father of a child born out of wedlock.
Article
8, in so far as relevant, provides:
“1. Everyone has the right to respect
for his private and 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 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.”
Article
14 reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
A. The parties’ submissions
1. The applicant
Under
Article 14 taken in conjunction with Article 8, the applicant
maintained that the relevant provisions of the Civil Code
discriminated against him as the father of a child born out of
wedlock.
Whereas,
in the case of a child born in wedlock the parents had joint custody,
sole custody of a child born out of wedlock was awarded to the
mother. The father could only obtain joint custody with the agreement
of the mother. Moreover, when a married couple separated or divorced,
they retained joint custody, while sole custody could be awarded to
one of the parents if the child’s well-being so required. When
the parents of a child born out of wedlock, whose mother had sole
custody, separated, sole custody could only be transferred to the
father if the mother put the child’s well-being at risk.
The
applicant asserted with regard to Article 8 alone that the child’s
well-being would have been served better by granting sole custody to
him. However, under Austrian law as it stood, the courts were only
entitled to withdraw sole custody from K.’s mother if the
latter put the child’s well-being at risk.
2. The Government
As
to Article 14 taken in conjunction with Article 8, the Government
asserted that Austrian law on custody did not draw a fundamental
distinction between fathers of children born in wedlock and fathers
of children born out of wedlock. In so far as differences existed,
they were based on factual differences in given situations and served
the interests of the child.
First
of all, the father of a child born out of wedlock was not excluded
from exercising custody. Even before the amendment of Article 167
of the Civil Code in 2001 parents of a child born out of wedlock
could conclude an agreement to exercise joint custody, provided they
were living together in a common household. If they separated later,
the same rules applied as for the divorce or permanent separation of
parents of a child born in wedlock.
For
parents not living in a common household, whether divorced parents of
a child born in wedlock or parents of a child born out of wedlock not
living together, it had not been possible to exercise joint custody
until 1 July 2001, when the 2001 Law Amending Child Custody
entered into force. Since then, such parents could also conclude an
agreement to exercise joint custody pursuant to Article 167 of the
Civil Code in its amended version.
The
one difference that still existed, namely, that the parents of a
child born in wedlock automatically had joint custody while in the
case of a child born out of wedlock the mother of the child had sole
custody unless the parents concluded an agreement on joint custody,
was justified in order to protect the interests of the child.
Given
that the father of a child born out of wedlock was not always known
or, if known, was not always willing to acknowledge paternity,
vesting sole custody in the mother served to enable her to defend the
child’s rights in paternity and maintenance proceedings. The
difference in the legal situation stemmed from a difference in fact
and was, therefore, not discriminatory in the sense of lacking
objective and reasonable justification.
Where
the father of a child born out of wedlock wished to assume parental
responsibility, the award of joint custody depended on the mother’s
agreement. The law was based on the assumption that awarding joint
custody against the will of the mother would not serve the child’s
interests. Parents who could not reach an agreement on custody were
very likely to disagree on fundamental questions concerning the
child’s up-bringing and education. Making the exercise of joint
custody dependent on the mother’s agreement therefore also
served the child’s best interests.
The
Government, with a view to Article 8 alone, asserted that the refusal
to transfer sole custody of K. to the applicant served a legitimate
aim, namely, the protection of the child’s interests, and did
not interfere in a disproportionate manner with the applicant’s
right to respect for his family life.
B. The Court’s assessment
In
view of the alleged discrimination against the applicant in his
capacity as the father of a child born out of wedlock, the Court
considers it appropriate to examine the case first under Article 14
taken in conjunction with Article 8 of the Convention (see Zaunegger,
cited above, § 34).
1. Applicability
The
Court reiterates that Article 14 complements the other substantive
provisions of the Convention and the Protocols. It has no independent
existence since it has effect solely in relation to “the
enjoyment of the rights and freedoms” safeguarded by those
provisions. The application of Article 14 does not necessarily
presuppose the violation of one of the substantive rights guaranteed
by the Convention. It is necessary but it is also sufficient for the
facts of the case to fall “within the ambit” of one or
more of the Convention Articles (see, as a recent authority, Burden
v. the United Kingdom [GC], no. 13378/05, § 58, ECHR
2008 ...).
The
Court must therefore determine whether the facts of the case fall
within the ambit of Article 8 of the Convention.
In
this context the Court reiterates that the notion of family under
this provision is not confined to marriage-based relationships and
may encompass other de facto "family" ties where the
parties are living together out of wedlock. A child born out of such
a relationship is ipso jure part of that “family”
unit from the moment and by the very fact of his birth. Thus there
exists between the child and its parents a bond amounting to family
life (see Elsholz, cited above § 43, and Keegan v.
Ireland, 26 May 1994, § 44, Series A no. 290).
In
the instant case the applicant and the mother of his son, K., did not
live together. At the time of K.’s birth they lived in separate
apartments in the same house, and the applicant was co-habiting with
another woman and their son. However, the Court reiterates that the
existence or non existence of “family life” within
the meaning of Article 8 is also a question of fact depending upon
the real existence in practice of close personal ties, in particular
the demonstrable interest and commitment by the father to the child
both before and after birth (see among other authorities, Lebbink
v. the Netherlands, no. 45582/99, § 36, ECHR 2004 IV).
The
Court notes that the applicant assumed his role as K’s father
from the beginning. K. was given the applicant’s family name.
During K.’s first year the applicant took parental leave to
take care of his son. While the custody proceedings were pending the
applicant and K.’s mother concluded an agreement according to
which the applicant regularly took care of K. three days a week.
Thereafter he continued to have extended access rights.
The
Court considers that in such circumstances the applicant’s
relationship with his son constituted “family life”, a
fact which is furthermore not in dispute between the parties. The
Court therefore finds that the facts of the instant case fall within
the ambit of Article 8 of the Convention and that accordingly,
Article 14 is applicable.
2. Compliance
(a) General principles
It
is the Court’s established case-law that in order for an issue
to arise under Article 14 there must be a difference in the treatment
of persons in relevantly similar situations. Such a difference of
treatment is discriminatory if it has no objective and reasonable
justification; in other words, if it does not pursue a legitimate aim
or if there is not a reasonable relationship of proportionality
between the means employed and the aim sought to be realised. The
Contracting State enjoys a margin of appreciation in assessing
whether and to what extent differences in otherwise similar
situations justify a different treatment (see Burden, cited
above, § 60).
The
scope of the margin of appreciation will vary according to the
circumstances, the subject matter and its background; in this
respect, one of the relevant factors may be the existence or
non-existence of common ground between the laws of the Contracting
States (Petrovic v. Austria, 27 March 1998, § 38,
Reports 1998 II, and Zaunegger, cited above, §
50).
However,
very weighty reasons need to be put forward before a difference in
treatment on the ground of sex or birth out of or within wedlock can
be regarded as compatible with the Convention. The same is true for a
difference in treatment of the father of a child born out of wedlock
as compared with the father of a child born of a marriage-based
relationship (Zaunegger, cited above, § 51, with further
references).
(b) Application to the present case
The
applicant, as the father of a child born out of wedlock, complained
firstly of different treatment in comparison with the mother in that
he had no opportunity to obtain joint custody without the latter’s
consent. Secondly, he complained of different treatment in comparison
with married or divorced fathers, who are able to retain joint
custody following divorce or separation from the mother.
The
Court observes that the applicable provisions of Austrian law do
indeed contain different standards in respect of the above categories
of parents. Parents of a child born in wedlock have a legal right to
joint custody from the beginning. In principle they retain joint
custody even following divorce or separation, unless the exercise of
joint custody is not in the child’s interests. In that case,
sole custody has to be awarded to one parent, be it the mother or the
father, in accordance with the child’s interests.
In
contrast, parental authority over a child born out of wedlock is
attributed to the mother, unless both parents consent to make a
request for joint custody. Until 1 July 2001 such a request for joint
custody could only be made by parents living in the same household.
Following the entry into force of the Law Amending Child Custody Law,
it can be made by parents of a child born out of wedlock irrespective
of whether or not they are living together. The court will approve
the agreement on joint custody if it serves the child’s
interests. However, in the absence of the mother’s agreement,
Austrian law does not provide for a judicial examination as to
whether the attribution of joint custody would serve the child’s
best interests. Thus, a father’s only possibility to obtain
custody of the child, in such circumstances, would be a request for
sole custody, but custody will only be awarded to him if the mother
endangers the child’s well-being.
The
Court reiterates that in cases arising from individual applications
it is not its task to examine the domestic legislation in the
abstract, but it must examine the manner in which that legislation
was applied to the applicant in the particular circumstances and
whether its application in the present case led to an unjustified
difference in treatment of the applicant (see, for instance, Sahin
v. Germany [GC], no. 30943/96, § 87, ECHR 2003 VIII,
and Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR
2003-VIII).
(i) Initial attribution of custody of a
child born out of wedlock to its mother
In
the present case sole custody of K. was obtained by the mother
pursuant to Article 166 of the Civil Code, as he was born out of
wedlock. Until 1 July 2001, when the Law Amending Child Custody Law
entered into force, the applicant and K.’s mother did not have
the possibility to request joint custody under Article 167 of the
Civil Code as they were not living in a common household (see
paragraph 38 above). The Court observes that the relationship between
the applicant and K.’s mother had not yet ended when the
above-mentioned law entered into force. However, they did not make
use of the possibility to conclude an agreement to exercise joint
custody.
The
relationship came to an end in January 2002. Subsequently, the
applicant applied for sole custody of K. On the basis of the
legislation described above, the courts could not examine in these
proceedings whether joint custody would be in the child’s
interests as the agreement of K.’s mother was absent, nor were
they called on to examine whether one of the parents was better
suited to exercise custody than the other. The only question before
them was, pursuant to Article 176 of the Civil Code, whether K.’s
mother endangered his well-being. After two conflicting expert
opinions had been taken, the District Court ordered a third expert in
child psychology to submit a decisive expert opinion. The latter came
to the conclusion that K.’s best interests would not be
manifestly endangered if custody remained with his mother.
Consequently, the courts dismissed the applicant’s request for
transfer of sole custody.
In
reply to the applicant’s arguments that the applicable
provisions discriminated against the father of a child born out of
wedlock, the domestic courts found in essence that the relevant
provisions were based on the consideration that in the majority of
cases of children born out of wedlock it was actually the mother who
took care of the child.
It
follows from the above-mentioned court decisions and the underlying
legislation that there has been a difference in treatment as regards
the attribution of custody to the applicant in his capacity as the
father of a child born out of wedlock in comparison with the mother
and in comparison with married fathers. In the Zaunegger case
(cited above, § 48) the Court did not explicitly examine whether
or not the father of a child born out of wedlock was in an analogous
situation to the mother on the one hand or to a married father on the
other hand, but considered that the arguments made in that respect
were of relevance when determining whether the difference in
treatment was justified. The Court will follow the same approach in
the present case.
The
Government argued that the difference in treatment was justified.
They asserted, firstly, that attributing sole custody to the mother
of a child born out of wedlock was justified, as the father was not
always known and willing to acknowledge paternity. Given the
difference in the factual situation in comparison with a child born
in wedlock vesting sole custody in the mother of a child born out of
wedlock was justified to enable her to defend the child’s
interests in paternity and maintenance proceedings. Secondly, the
Government asserted that a father of a child born out of wedlock who
wished to assert parental responsibility could do so with the
mother’s consent. The relevant provisions were based on the
assumption that awarding joint custody against the will of the mother
would not serve the child’s interests.
In
the case of Zaunegger, the Court found that in view of the
different life situations into which children whose parents are not
married are born and in the absence of an agreement on joint custody,
it was justified to attribute parental authority over the child
initially to the mother in order to ensure that there was a person at
birth who would act for the child in a legally binding way (cited
above, §§ 54-55). The Court sees no reason to come to a
different conclusion in the present case.
(ii) Possibilities of attributing joint or
sole custody to the father of a child born out of wedlock
While
the above considerations provide justification for the difference in
treatment between the father of a child born out of wedlock and its
mother in respect of the initial attribution of custody, it remains
to be examined whether the second difference complained of by the
applicant was justified, namely that as a father of a child born out
of wedlock he could not obtain joint custody without the consent of
K’s mother’s and that the courts could only withdraw sole
custody from her if she put the child’s well-being at risk.
In
the case of Zaunegger, the Court did not share the assumption
that joint custody against the will of the mother is prima facie
against the child’s interests (Zaunegger, cited above,
§§56-59). In reaching that conclusion the Court had regard
on the one hand to the wide margin of appreciation of the authorities
when deciding on custody-related matters and on the other hand to the
evolving European context in this sphere and the growing number of
unmarried parents. The Court observed that although there existed no
European consensus as to whether fathers of children born out of
wedlock had a right to request joint custody even without the consent
of the mother, the common point of departure in the majority of
Member States appeared to be that decisions regarding the attribution
of custody are to be based on the child’s best interests and
that in the event of a conflict between the parents such attribution
should be subject to scrutiny by the national courts (ibid., §
60).
In
the present case, Austrian law did not allow for a judicial review of
whether joint custody would be in the interests of the child, nor did
it allow for an examination, in the event that joint custody was
against the child’s interests, of whether the child’s
interests were better served by awarding sole custody to the mother
or to the father. The only issue the domestic courts could examine,
pursuant to Article 176 of the Civil Code, was whether the child’s
well-being was endangered if the mother continued to exercise sole
custody. In contrast, Austrian law provides for a full judicial
review of the attribution of parental authority and resolution of
conflicts between separated parents in cases in which the father once
held parental authority, either because the parents were married or,
if they were unmarried, had concluded an agreement to exercise joint
custody. In such cases the parents retain joint custody unless the
court, upon request, awards sole custody to one parent in accordance
with the child’s best interests pursuant to Article 177a of the
Civil Code.
The
Court considers that the Government have not submitted sufficient
reasons to justify why the situation of the applicant, who had
assumed his role as K.’s father from the very beginning, should
allow for less judicial scrutiny than these cases and why the
applicant should in this respect be treated differently from a father
who had originally held parental authority and later separated from
the mother or divorced.
In
the case of Zaunegger (cited above, § 63), the Court
found a violation of Article 14 of the Convention taken in
conjunction with Article 8 in a comparable situation. The Court sees
no reasons to reach a different conclusion in the present case. There
has accordingly been a violation of Article 14 of the Convention
taken in conjunction with Article 8.
Having
regard to this conclusion, the Court does not consider it necessary
to determine whether there has also been a breach of Article 8 of the
Convention taken alone.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed compensation for pecuniary damage, namely,
reimbursement of child support payments of 198 euros (EUR) per months
since June 2003. He argued that, had he been awarded sole custody, K.
would be living with him and he would not have been obliged to pay
child support. Furthermore, the applicant claimed EUR 30,000 in
compensation for non-pecuniary damage. He asserted in particular that
being deprived of his custody rights and only having access rights
instead of sharing everyday life with his son had caused him
suffering.
The
Government commented that there was no causal link between the
violation alleged and the pecuniary damage claimed by the applicant.
In any case, even if the applicant had obtained sole custody of K.
and the latter lived with him, he would be obliged to provide
maintenance. In respect of non-pecuniary damage the Government
commented that the Court had so far only awarded compensation for
non-pecuniary damage in cases in which there had been no contact
between parent and child during the proceedings at issue (see, for
instance, Sahin, cited above, § 100). In the present case
the applicant had always had extensive and regular contact with his
son.
The
Court agrees with the Government that there is no causal link between
the violation of the Convention and the pecuniary damage claimed by
the applicant. Consequently, it makes no award under this head.
In
respect of non-pecuniary damage, the Court notes that the applicant
was discriminated against as a father of a child born out of wedlock.
However, having regard to the fact that the applicant had enjoyed
regular contact with his son throughout the proceedings and
thereafter, the Court considers that the finding of a violation
constitutes sufficient just satisfaction for any non-pecuniary damage
suffered (see Zaunegger, cited above, § 69).
B. Costs and expenses
The
applicant claimed EUR 3,258.28 in respect of costs and expenses
incurred in the domestic proceedings and EUR 3,500 in respect of
costs and expenses incurred in the Convention proceedings. Both
amounts include value-added tax (VAT).
The
Government disputed that the costs had been incurred to prevent or
redress the alleged violation of the Convention. In any case, they
argued that the costs were not “necessarily incurred”, as
there was no obligation to be represented by counsel at first
instance. From 20 August 2002 onwards the applicant was represented
by legal-aid counsel and was therefore not entitled to claim costs
for his legal representation after that date. Finally, the Government
argued that the costs claimed for the Convention proceedings were
excessive.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only insofar as it has been shown
that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers that no award is to be made in respect of the domestic
proceedings.
In
contrast the Court awards the sum claimed for the Convention
proceedings in full, namely, EUR 3,500.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of
Article 6 of the Convention;
Holds that there has been a violation of Article
14 taken in conjunction with Article 8 of the Convention;
Holds that there is no need to examine
separately the complaint under Article 8 of the Convention;
Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicant;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,500 (three thousand
five hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
