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Cite as: [2012] ECHR 400
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FIFTH SECTION
DECISION
Application no.
50216/09
by Peter DÖRING
against
Germany
The European Court of Human Rights (Fifth Section), sitting on 21 February 2012 as a Chamber composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Ann Power-Forde,
Ganna
Yudkivska,
Angelika Nußberger,
André
Potocki, judges,
and Claudia Westerdiek,
Section Registrar,
Having regard to the above application lodged on 29 August 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Peter Döring, is a German national who was born in 1956 and lives in Berlin.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
The applicant has a son born out of wedlock in 1995. He acknowledged his paternity of the child the same year. As the child’s parents did not make a joint custody declaration (gemeinsame Sorgerechtserklärung), the child’s mother obtained sole custody (alleinige Personensorge) pursuant to Article 1626a § 2 of the German Civil Code (the “Civil Code” – see Relevant domestic law below).
The applicant and the child’s mother had been living together with the child in a joint household in Berlin from 1995 until December 1997, when the parents separated and the mother moved to another flat in the neighbourhood. In the period from January 1998 to January 2002 each parent took care of the child on an equal alternating weekly basis.
In January 2002 the mother and son moved from Berlin to Speyer, located around 650 kilometres (km) from Berlin, without notifying the applicant. The mother alleged that she had moved since the applicant’s behaviour in the past had been detrimental to the child’s well-being.
2. The contact and custody rights proceedings
(a) The proceedings until regulation of the applicant’s contact rights
In written submissions to the Berlin-Pankow-Weißensee District Court dated 29 January and 1 February 2002 the applicant requested that custody of the child or, alternatively, the right to determine where the child should reside (Aufenthaltsbestimmungsrecht) be transferred to him. The applicant further asked to be granted contact with his son on a weekly alternating basis and, in addition, requested an interim measure for the provisional regulation of his access to the child.
By a letter of 6 February 2002 the court informed the applicant that the matter had been referred to the Speyer District Court, where two separate proceedings were instituted, one related to the transfer of the right of custody to the applicant (file no. 41 F 36/02) and the other dealing with the applicant’s request to be granted contact with his son (file no. 41 F 37/02). Subsequently, the proceedings were to a large extent conducted simultaneously.
On 1 March 2002 the applicant brought criminal charges of, inter alia, child abduction against the mother. The preliminary proceedings (Ermittlungsverfahren) instituted against the mother as a consequence were discontinued by the public prosecution authorities. Following allegations by the mother that the applicant had sexually abused the child, preliminary criminal proceedings were instituted against the applicant by the Berlin Public Prosecutor.
On 21 June 2002 the Speyer Youth Welfare Office (Jugendamt) informed the District Court that owing to the mother’s refusal to communicate it was not in a position to give an opinion on how contact between father and son should be arranged.
During a hearing in the contact rights proceedings (file no. 41 F 37/02) on 26 June 2002, the applicant requested to be granted unsupervised access to his son.
By a decision of 5 November 2002 in the interim proceedings, the District Court provisionally granted the applicant supervised access in cooperation with the Schifferstadt branch of the German Child Protection Agency (Deutscher Kinderschutzbund), located in the vicinity of Speyer. The court rejected the applicant’s request for unrestricted contact, stating that such a decision could only be rendered in the main proceedings after the court had obtained an expert opinion on possible contact arrangements between the applicant and his son.
The parents and the child were heard on 11 and 18 December 2002 respectively in the main proceedings (files nos. 41 F 37/02 and 41 F 36/02). The child expressed his wish to stay with each of his parents on an alternating weekly basis.
By a decision of 14 January 2003 the Speyer District Court ordered a psychological expert opinion on the question of what attribution of custody and contact rights would be in the child’s best interests, and appointed an expert. Both parents objected to the court’s decision and to the expert appointed. Thereafter, the mother refused to cooperate with the expert.
Between 27 December 2002 and 18 July 2003 the applicant had supervised contact with his son on around a dozen occasions at the premises of the Schifferstadt branch of the Child Protection Agency. He then discontinued the visits considering that the conditions under which access to his son took place were detrimental to the child’s well-being.
By a letter of 25 June 2003, the Berlin public prosecution authorities informed the applicant that the preliminary criminal proceedings instituted against him in 2002 on suspicion of sexual abuse of his son had been discontinued.
On 2 and 16 July 2003 the applicant renewed his interim request for unsupervised access, maintaining that following the discontinuation of the preliminary criminal proceedings there was no longer any reason to subject contact with his son to restrictions.
In a decision of 16 January 2004 confirming the dismissal of a complaint of bias lodged by the applicant against the acting judge at the Speyer District Court, the Zweibrücken Court of Appeal indicated that an abusive obstruction of the applicant’s contact with the child by the mother could trigger doubts regarding her capacity to raise the child and even entail the withdrawal of her right to determine where the child should reside.
By a decision of 27 January 2004 the District Court ordered the parties to cooperate with the expert, failing which a fine of up to 2,000 euros (EUR) could be imposed.
On 29 January 2004 the applicant spent four hours alone with his son with the consent of the mother.
A first meeting between the expert and the mother took place in March 2004.
On 11 March 2004 the Zweibrücken Court of Appeal quashed the District Court’s decision of 27 January 2004, holding that while parents were under no legal obligation to have their child examined by an expert and could therefore not be subject to a fine, persistent refusals by the mother to cooperate with the expert in the case at hand could nevertheless raise doubts as to her capacity to exercise parental authority.
By a decision of 27 May 2004 the Speyer District Court rejected the applicant’s request to amend its decision of 5 November 2002 with a view to granting him unsupervised contact with his son. The court found that in view of the mother’s allegations of sexual abuse, unsupervised access could only be considered once the expert opinion had been rendered and provided clarifications on the veracity of such allegations.
On 18 June 2004 the expert met with the child.
On 5 and 8 July 2004 the applicant again made an interim request for unsupervised access to his son.
By a decision of 29 July 2004, following a change of the acting judge, the District Court appointed a guardian ad litem (Verfahrenspfleger) for the child.
A further hearing of the parents and the child took place on 5 August 2004.
By a decision of 11 August 2004 the District Court appointed a new expert after doubts as to the competence and impartiality of the initially appointed expert had arisen.
By a further decision of the same date the District Court, after hearing the parents and the child and referring to a written statement obtained from the initially appointed expert on 8 July 2004, rejected the applicant’s renewed interim request for a right to unsupervised contact pending the finalisation of an opinion by the newly appointed expert. After having heard the mother, the court was of the opinion that the allegations of sexual abuse were not entirely devoid of substance and therefore an expert opinion could not be dispensed with. The court further held that the applicant’s explicit refusal to meet his son within the parameters of supervised visits or to accept alternative arrangements in the context of supervised visits raised doubts as to how important the child’s well-being was to him.
The expert opinion was rendered on 12 November 2004 following examination of the parents and the child. The expert found that under the present circumstances, withdrawal of the right to custody from the mother and transfer of sole custody to the father would be contrary to the child’s well-being. Joint custody would also not be in the child’s interest since the relationship between the parents was still tense. The expert, however, recommended that regular contact should be established between the applicant and his son. At the beginning it could be envisaged that the father visit his son every second weekend at Speyer, and following a trial period of six months, longer stays by the child at the applicant’s household could be considered.
The guardian ad litem, having heard the parents and the child, in her written submissions dated 3 and 27 December 2004 also opposed a transfer of the right to custody to the applicant, while recommending that the latter be granted immediate unrestricted access to his son. The guardian ad litem recalled that under the applicable law the transfer of sole custody to the father of a child born out of wedlock without the mother’s consent was only possible under Article 1666 of the Civil Code in the event that the mother was unable to raise the child and thus the latter’s well-being was jeopardised. While the mother could be reproached for having taken the son out of his familiar environment in Berlin and having deprived him of his father’s company without a convincing reason, there was nothing to support the applicant’s allegations that she suffered from a mental disorder that made her unfit to raise her son. The guardian ad litem was further of the opinion that in view of the ongoing disputes and lack of any agreement between the parents as regards the child’s upbringing, joint custody was also not an option.
By a decision of 2 February 2005 the Speyer District Court accorded the applicant unsupervised contact with the child every other weekend, with the proviso that the meetings were to take place within a radius of 30 km from the mother’s place of residence. Both parties appealed against the decision.
By a decision of 15 July 2005 the Zweibrücken Court of Appeal amended the District Court’s decision of 2 February 2005 and granted the applicant regular unsupervised contact with the child every third weekend and during half the school holidays.
It appears that the applicant was subsequently able to exercise his contact rights accordingly.
(b) The remainder of the custody proceedings
In preparation for a hearing in the still pending custody proceedings during which the expert had been invited to further elaborate on his opinion dated 12 November 2004, the applicant asked the Speyer District Court for a graduate pedagogue to be admitted to question the psychological expert on his behalf, since neither he nor his counsel had the necessary knowledge of psychology to put the relevant questions. By a decision of 25 July 2005 the court rejected the applicant’s request, holding that the latter’s counsel had already submitted a list of relevant questions to the expert in writing that did not support his allegations of a lack of knowledge. The court further was of the opinion that the pedagogue suggested by the applicant did not have the required qualifications. Pointing out that hearings in family law cases were as a rule held in camera and therefore the admission of additional advisers to the parties had to remain the exception, the court was of the opinion that there existed no exceptional circumstances in the case at hand that would justify deviating from this principle.
A hearing took place on 19 June 2006 during which the expert provided further explanations. The guardian ad litem reported that the child, following his last stay with his father earlier in June 2006, had expressed his wish to now live with his father and to only visit his mother.
By a decision of 23 August 2006, the Speyer District Court dismissed the applicant’s request that sole custody for the child or alternatively the right to determine where the child should reside be transferred to him under Article 1672 or 1666 of the Civil Code. It also dismissed his further alternative request that he be granted joint custody together with the mother and that the latter’s consent to joint custody as required by Article 1672 § 1 of the Civil Code be substituted by the courts in accordance with Section 224 (2) (a) of the Introductory Act to the Civil Code, a transitory provision that had been introduced by the German legislature on 31 December 2003 (see Relevant domestic law below).
As regards the transfer of sole custody the court found, firstly, that to the extent the applicant’s request was based on Article 1672 of the Civil Code it had to be rejected as inadmissible. The Court pointed out that the applicant and the mother of the child had never been married and had not made a joint custody declaration, and that therefore the mother had obtained sole custody of the child pursuant to Article 1626a of the Civil Code. Article 1672 § 1 stipulated that in the event that the parents had not only temporarily separated and that the mother had sole custody of the child pursuant to Article 1626a of the Civil Code, the father could request the transfer of sole custody or partial custody only with the mother’s consent. Since in the case at hand the mother had refused to give her consent, the father’s related request could not be based on Article 1672 § 1. The court further specified that it was irrelevant on what grounds the mother had refused consent since the said provision, as a rule, did not provide for the possibility of replacing the mother’s consent by a court decision. The court therefore held that, unfortunately, it had to be accepted that fathers of children born out of wedlock were still not on an equal footing with married fathers.
Secondly, the court considered whether a transfer of custody by court decision without the mother’s consent could be envisaged under the exceptional circumstances of Article 1666 of the Civil Code, which enabled the family court to order the necessary protective measures if the child’s physical, psychological or mental well-being was threatened and the parents were unwilling to take measures themselves. However, the court, having regard in particular to the expert opinion of 12 November 2004 as supplemented at the hearing dated 19 June 2006, was of the opinion that in the instant case the child’s well-being was not jeopardised by the attribution of sole custody to the mother. The expert had found that it would be contrary to the child’s interest to transfer custody to his father, in particular in view of the tense relationship between the parents which had its origin mainly in the father’s attempts to undermine the mother’s upbringing of their son. The mother’s previous allegations of sexual abuse had not led to a different assessment since she had not maintained these allegations before the expert and it appeared from the child’s examination that the trusting relationship between son and father had not been damaged as a consequence of the mother’s assertions. The expert had further specified that there were no indications to support the father’s argument that the mother was suffering from a pathological personality disorder that made her unfit to raise a child. The fact that following his last stay with the father in June 2006 the child had expressed his wish to now live with his father and to only visit his mother constituted a normal conflict reaction of a child whose parents were divorced. However, given that the son was only eleven years old and therefore unable to assess the consequences of moving in with his father, the child’s statements could not change the expert’s conclusion that sole custody should remain with the mother.
The expert’s conclusions had been corroborated by the statements of the guardian ad litem during the hearing on 19 June 2006, who had met with the child not long before the hearing and who had confirmed that the child was emotionally stable. In view of these findings the court was of the opinion that a further hearing of the child was not necessary.
Finally, the court held that the applicant’s alternative request to be granted joint custody in accordance with Article 1626a § 1 no. 1 of the Civil Code and Section 224 (2) (a) of the Introductory Act to the Civil Code was admissible but ill-founded. While this transitory provision provided in principle for the possibility of ordering joint custody and replacing the mother’s related consent in the event that the parents, as in the instant case, had separated before 1 July 1998 and had lived together with the child for a period of at least six months without interruption prior to their separation, it further required that joint custody would be in the child’s best interests. Referring to its reasoning with respect to the conditions of the transfer of sole joint custody under Article 1666 of the Civil Code and relying on the expert’s evaluation at the hearing of 19 June 2006 as well as the opinions of the representative of the Youth Welfare Office and the guardian ad litem, the court found it established that in view of the persisting tension between the parents, joint custody would lead to further disputes as regards their son’s upbringing, care and the question where he should reside. These disputes could jeopardise the positive development of the relationship between father and son and would thus be contrary to the child’s interest. The court further emphasised that there were no grounds to doubt the professional competence of the appointed expert or the accuracy of his findings.
The applicant appealed against the judgment in written submissions of 6 November 2006. He maintained in particular that in view of the fact that the child had last been heard by the judge and the expert in 2004 but had stated before the guardian ad litem in June 2006 that he now wished to live with his father, a further hearing of his son by the judge as well as a new expert opinion were indispensable with a view to determining what attribution of custody would be in the child’s best interests.
On 10 January 2007 the Zweibrücken Court of Appeal dismissed the applicant’s appeal. The Court of Appeal, endorsing the Speyer District Court’s findings, reiterated that joint parental authority required a minimum of willingness on the part of the parents to cooperate, a condition that had not been met in the case at hand where the irreconcilable conflicts between the parents were likely to be aggravated in the event of joint custody. These conclusions could be drawn from the content of the files without having recourse to a further expert opinion. A further hearing of the child or the further parties to the proceedings could also be dispensed with since no further decisive information regarding the attribution of parental authority could be expected from such a hearing.
On 30 January 2007, the applicant lodged a complaint with the Zweibrücken Court of Appeal, alleging a violation of his right to be heard (Anhörungsrüge).
On 14 February 2007 he lodged a constitutional complaint against the Speyer District Court’s decision of 23 August 2006 and the Zweibrücken Court of Appeal’s decision of 10 January 2007, challenging the refusal to grant him sole or alternatively joint custody of his son in accordance with Article 1666 of the Civil Code and Section 224 (2) (a) of the Introductory Act to the Civil Code.
By a decision of 22 February 2007 the Court of Appeal dismissed the applicant’s complaint that his right to be heard had been violated as ill founded. In addition to the reasoning in its decision of 10 January 2007 the Court of Appeal considered that the District Court had thoroughly assessed the facts of the case and had based its judgment on the statements of the parties to the proceedings who, except for the child, had been heard shortly before the court’s decision. No significant changes in the circumstances of the case had occurred since the District Court’s decision and it could therefore be excluded that a new hearing would lead to a different assessment of the case. There was nothing to indicate that the mother was incapable of raising her son or that she had jeopardised the well-being of the child to an extent that would justify the withdrawal of her right of custody in accordance with Article 1666 of the Civil Code. Furthermore, it was beyond doubt that the considerable conflict between the parents had made joint custody impossible, and therefore a further expert opinion or additional hearing of the child could not influence the decision on the attribution of custody rights.
In written submissions of 26 March 2007 the applicant extended his constitutional complaint to the Court of Appeal’s decision of 22 February 2007.
On 3 March 2009 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication without giving further reasons (no. 1 BvR 846/07). The decision was served on the applicant on 23 March 2009.
3. The proceedings before the Court
On 14 September 2005 the applicant lodged a first application with the Court under Article 34 of the European Convention on Human Rights (application no. 40014/05) concerning the custody and contact rights proceedings in relation to his son. Relying on Articles 6 § 1, 8 and 14 of the Convention, he complained about the length of the domestic proceedings and about the domestic court’s refusal to grant him unsupervised contact with his son.
In its related judgment of 8 July 2010, the Court, while finding that the length of the contact rights proceedings was still in compliance with the requirements of the Convention, held that the length of the custody right proceedings had infringed the “reasonable time” requirement embodied in Article 6 § 1 of the Convention and declared the remainder of the application inadmissible. The Court nevertheless specified that the applicant’s complaint under Article 8 concerned exclusively the contact rights proceedings, and that the compliance of the custody proceedings with this provision was the subject of a distinct application (the instant application no. 50216/09).
B. Relevant domestic law and practice
Pursuant to Article 6 § 2 of the German Basic Law (Grundgesetz) the care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state oversees the performance of this duty.
The statutory provisions on custody and contact are to be found in the Civil Code (Bürgerliches Gesetzbuch). Article 1626 § 1 of the Civil Code provides that the father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a child.
Under Article 1666 of the Civil Code, the family court may order the necessary protective measures if the child’s physical, psychological or mental well-being is threatened by negligence and if the parents are unwilling to take those measures themselves. Measures which result in the separation of the child from one parent are acceptable only if the child would be at risk otherwise (Article 1666a of the Civil Code).
As regards children born out of wedlock, custody was - pursuant to the former Article 1705 of the Civil Code - automatically obtained by the mother. That provision was however declared unconstitutional by the Federal Constitutional Court in 1996. On 1 July 1998 the amended Law on Family Matters of 16 December 1997 (Reform zum Kindschaftsrecht, Federal Gazette 1997, p. 2942), entered into force to implement the Federal Constitutional Court’s judgment of 1996. The relevant law in the Civil Code was changed as follows: under Article 1626a § 1, the parents of a minor child born out of wedlock may exercise joint custody if they make a declaration to that effect (joint custody declaration) or if they marry. Otherwise Article 1626a § 2 provides that the mother obtains sole custody.
If the parents have not merely temporarily separated, and if the mother has obtained sole custody in accordance with Article 1626a § 2 of the Civil Code, Article 1672 § 1 of the Civil Code provides that the family court may transfer sole custody to the father if one parent lodges the relevant application with the consent of the other parent. The application is to be granted if the transfer serves the child’s interest.
By contrast, parents exercising joint parental authority before their separation either because the child was born in wedlock, the parents have married following the child’s birth or they have made a joint custody declaration, retain joint custody following their separation unless the court at the request of one parent awards sole custody to the latter in accordance with the child’s best interest pursuant to Article 1671 of the Civil Code.
On 29 January 2003 the Federal Constitutional Court found that Article 1626a of the Civil Code was unconstitutional because it lacked a transitional period for unmarried couples with children who were living together in 1996 but who had separated before the amended Law on Family Matters entered into force on 1 July 1998 (that is, those who were unable to make a joint custody declaration). In order to resolve the above-mentioned constitutional flaws, the German legislature introduced Section 224 (2) (a) of the Introductory Act to the Civil Code (Einführungsgesetz in das Bürgerliche Gesetzbuch) on 31 December 2003, according to which a court may substitute the mother’s consent to joint custody at the father’s request if an unmarried couple have a child born out of wedlock, have lived together with the child for at least six months without interruption and separated before 1 July 1998, provided that joint custody would serve the best interests of the child (Kindeswohl).
In its judgment of 29 January 2003 the Federal Constitutional Court also held that Article 1626a § 2 of the Civil Code, apart from the lack of a transition period, did not breach the right to respect for the family life of fathers whose children had been born out of wedlock.
However, in a subsequent judgment of 21 July 2010 referring, inter alia, to the Court’s findings in the case of Zaunegger v. Germany (no. 22028/04, 3 December 2009), the Federal Constitutional Court found that to generally exclude a father of a child born out of wedlock from parental authority in the event that the child’s mother had refused to give her consent, without providing the possibility of the father obtaining a judicial review of whether joint custody or the transfer of sole custody would be in the child’s interests, had violated the father’s parental rights guaranteed under Article 6 § 2 of the German Basic Law. The Federal Constitutional Court consequently decided that Articles 1626a § 1 no. 1 and 1672 § 1 of the German Civil Code were unconstitutional and – pending the entry into force of the necessary statutory amendments – had to be applied with the proviso that the family courts transfer joint or sole custody at the request of a parent if such a transfer was considered to be in the child’s interest.
COMPLAINTS
The applicant complained under Article 8, read in conjunction with Article 14 of the Convention, that the fact that he had been denied custody of his son solely on the ground that he had not been married to the child’s mother had infringed his right to respect for his family life, and had amounted to unjustified discrimination on the grounds of sex. He further complained that the domestic courts had refused to grant him sole or alternatively joint custody of his son in accordance with Article 1666 of the Civil Code and Section 224 (2) (a) of the Introductory Act to the Civil Code.
THE LAW
Article 8 provides 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.”
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.”
The Court notes that in the case at hand, the applicant in his capacity as the father of a child born out of wedlock complained in substance of a different treatment in comparison with the mother, in breach of Article 8 and 14 of the Convention, in that he had no opportunity to obtain sole or joint custody without the latter’s consent.
The Court observes that pursuant to Article 1626a of the German Civil Code, parental authority over a child born out of wedlock is initially granted to the mother unless both parents consent to make a request for joint authority. While the pertinent provisions do not categorically exclude the possibility that the father may obtain joint custody in the future, Articles 1666 and 1672 of the Civil Code provide that the family court may only transfer the right to custody to the father if the child’s well-being is threatened by negligence on the mother’s part or if one parent makes the relevant application with the consent of the other parent. In the absence of these prerequisites, that is to say if the child’s well-being was not jeopardised and if the mother did not consent to the transfer of custody, as has been established in the present case, German law as was applicable at the time of the proceedings at issue did not, as a rule, provide for judicial examination as to whether the transfer of sole custody to the father or the granting of joint parental authority to both parents would suit the child’s best interests.
The Speyer District Court in its decision of 23 August 2006 indeed found that to the extent that the applicant’s request for transfer of sole custody or parts thereof had been based on Article 1672 § 1 of the Civil Code it had to be rejected as inadmissible since such transfer was only possible with the mother’s consent. The District Court specified that, unfortunately, it had to be accepted that fathers of children born out of wedlock were still not on an equal footing with married fathers in this respect.
The Court notes that within the scope of his appeal against the said decision of the Speyer District Court and in his subsequent constitutional complaint the applicant only challenged the outcome of the domestic courts’ decisions in his particular case, namely their refusal to transfer sole custody to him under Article 1666 of the Civil Code, or to alternatively grant him joint custody in accordance with section 224 (2) (a) of the Introductory Act to the Civil Code. He does not appear to have complained that he had been discriminated against in comparison with the mother, in that Articles 1626a and 1672 of the Civil Code had deprived him of the opportunity of obtaining sole or joint custody without the mother’s consent or of subjecting the granting of sole custody to the mother to judicial review.
Even assuming exhaustion of domestic remedies in this respect, the Court recalls that it has already examined the question whether the provisions of the German Civil Code, granting the mother of a child born out of wedlock sole custody and making any transfer of custody or parts thereof to the father subject to her consent without providing for judicial review in the event that such consent is refused, were in conformity with Article 8, taken in conjunction with Article 14 of the Convention (see Zaunegger v. Germany, cited above, § 42 et seq.; and Sude v. Germany (dec.), no. 38102/04, 7 December 2010). The Court, while accepting that the initial attribution of sole custody of a child born out of wedlock to the child’s mother was justified for the protection of the child’s interests, has held that, on the contrary, there was no reasonable relationship of proportionality between the general exclusion of judicial review of the initial attribution of sole custody to the mother and the aim pursued, namely the protection of the best interests of a child born out of wedlock. Thus, the Court found a violation of Article 14 of the Convention taken together with Article 8 (see Zaunegger, cited above, §§ 55 and 63). In this context the Court acknowledges that the German Federal Constitutional Court in a judgment of 21 July 2010, referring, inter alia, to the Zaunegger judgment, found that the relevant Articles of the German Civil Code (Articles 1626a § 1 no. 1 and 1672 § 1) were unconstitutional. Pending the entry into force of the necessary statutory amendments it adopted a transitional and binding regulation to the effect that the said provisions had to be applied with the proviso that the family courts transfer joint or sole custody at the request of a parent of a child born out of wedlock if such transfer was considered to be in the child’s interests.
Having regard to the particular circumstances of the case at hand, the Court notes, however, that already at the time of the proceedings at issue the transitory provision of section 224 (2) (a) of the Introductory Act to the Civil Code constituted an exception to the exclusion of judicial review of the initial attribution of sole custody to the mother of a child born out of wedlock. This provision authorises the family courts to order joint custody and substitute the mother’s related consent in the case of unmarried parents who had separated before the entry into force of the amended Law on Family Matters on 1 July 1998 and had lived together with the child for a period of at least six months without interruption prior to their separation, provided that joint custody was in the child’s best interests. While in the Zaunegger case the couple had separated after 1 July 1998 and the transitory rule had thus not applied, in the case at hand the couple had separated in December 1997 and at the applicant’s request, the domestic courts – as opposed to the custody proceedings in the Zaunegger case - had therefore been in a position to proceed to a full judicial review of whether joint custody would be in the applicant’s son’s interest.
Having regard to the above considerations, the Court holds that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
The Court reiterates in this context that the mutual enjoyment by a parent and child of each other’s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures which hinder such enjoyment amount to an interference with the right protected by Article 8 (see, among other authorities, Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000 VIII).
The impugned measures in the instant case, namely the decisions of the domestic courts refusing the transfer of sole custody to the applicant or, alternatively, to grant him joint custody together with the mother, which includes the right to exercise parental authority as regards, inter alia, his son’s upbringing, care and the determination of where he should live, amounted to interference with the applicant’s right to respect for his family life as guaranteed by paragraph 1 of Article 8 of the Convention. Such interference constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.
The relevant decisions of the Speyer District Court refusing to withdraw sole custody from the mother and transfer it to the applicant or to grant him joint custody over his son had a basis in national law, namely in Article 1666 of the Civil Code and section 224 (2) (a) of the Introductory Act to the Civil Code respectively. The Court is further satisfied that the impugned court decisions were aimed at protecting the interests of the child and thus pursued a legitimate aim within the meaning of paragraph 2 of Article 8.
In determining whether the impugned measures were “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 these measures were relevant and sufficient for the purposes of paragraph 2 of Article 8. Undoubtedly, consideration of what lies in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their margin of appreciation (see Sahin v. Germany [GC], no. 30943/96, § 64, ECHR 2003 VIII).
The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. In particular when deciding on custody, the Court has recognised that the authorities enjoy a wide margin. However, a stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure an effective protection of the rights of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Nanning v. Germany, no. 39741/02, § 64, 12 July 2007).
The Court reiterates in this regard that Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development (see Sommerfeld v. Germany [GC], no. 31871/96, § 64, ECHR 2003 VIII). In this context the Court has accepted that there may exist valid reasons to deny an unmarried father participation in parental authority if arguments or lack of communication between the parents risk jeopardising the child’s welfare (see Zaunegger, cited above, § 56).
Turning to the circumstances of the present case, the Court notes that the domestic courts, relying in particular on the findings of the psychological expert dated 12 November 2004, as supplemented at the hearing before the District Court on 19 June 2006, came to the conclusion that there was nothing to establish that the child’s well-being was jeopardised by the current custody arrangement and that there existed thus no reasons to withdraw sole custody from the mother and transfer it to the father under Article 1666 of the Civil Code. In view of the persisting tension between the parents and the father’s attempts to undermine the mother’s raising of their son, the courts held that, to the contrary, transfer of sole custody to the father would be against the child’s interest. The expert’s findings were supported by the assessment of the child’s guardian ad litem. The domestic courts, while taking into account the fact that following his last stay with his father in Berlin in 2006 the child had expressed the wish to live with his father and to only visit his mother, were nevertheless convinced by the expert’s assessment that given the child’s young age the latter was incapable of appreciating the consequences of such a decision and consequently that the child’s related statement could not lead to a different assessment of the situation. In its judgment of 23 August 2006 the Speyer District Court also specified why it had no cause to doubt the professional competence of the expert or the accuracy of the latter’s conclusions.
In view of the persisting and irreconcilable disputes between the parents in particular, and the lack of any agreement as regards matters related to their son’s upbringing, care and the question where the child should reside, the domestic courts came to the conclusion that joint custody would also be contrary to the child’s interests and therefore rejected the applicant’s request to substitute the mother’s related consent under section 224 (2) (a) of the Introductory Act to the Civil Code.
The Court finds that the reasons adduced by the domestic courts to justify their decisions were based on considerations aiming at an attribution of parental authority in the child’s best interests and thus were relevant and sufficient for the purposes of paragraph 2 of Article 8.
Moreover, there is nothing to establish that the domestic courts’ decision making process did not provide the applicant with the requisite protection of his interests. The Speyer District Court heard the parents and considered statements and reports by the child’s guardian ad litem, the relevant Youth Office, as well as the findings of the psychological expert. In the proceedings before the District Court and the Court of Appeal the applicant was able to forward all arguments in favour of obtaining custody of his son. He was in particular given the opportunity to question the expert at the hearing on 19 June 2006 and he also had access to all relevant information which was relied on by the courts.
As regards the applicant’s request to have the expert examined by a pedagogue, the Speyer District Court in its decision of 25 July 2005 held that national law, as a rule, did not provide for the requested measure and provided relevant grounds for arguing that in the applicant’s case there were no special circumstances that would justify deviating from such a principle. The Court recalls in this connection that as a general rule it is for the national courts to assess the evidence before them, including the means to ascertain the relevant facts (Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235 B).
Concerning the issue that the child had been heard by the District Court the last time in 2004, two years before the District Court’s decision of 23 August 2006, the Court notes that the decision of the domestic courts to leave sole custody of the son with the mother was based on their assessment that a transfer of custody or the granting of joint custody was not in the child’s interest owing to the parents’ evident and uncontested lack of cooperation. The Court further observes that the guardian ad litem who participated in the court hearing of 19 June 2006 had met the child not long before. In these circumstances the District Court and the Court of Appeal could reasonably reach the conclusion that a further hearing of the child was not necessary for the decision on the granting of custody and that a further psychological expert opinion could be dispensed with.
The Court further recalls that the child’s wishes to be with his father had been considered within the scope of the previous contact rights proceedings. By a decision of the Speyer District Court of 5 November 2002 the applicant had been granted a provisional right of supervised contact with his son which, by a decision of the Zweibrücken Court of Appeal of 15 July 2005, was replaced by a right to regular and unaccompanied contact with his son. The Court considers that these decisions were aimed at preventing the relationship between the applicant and his son from being disproportionally inhibited.
Having regard to the above considerations and taking into account the wide margin of appreciation granted to the domestic authorities in issues regarding custody, the Court is satisfied that the German courts’ procedural approach was reasonable in the circumstances and that in their decisions in the custody proceedings they have struck a fair balance between the interests of the child and those of the parents.
The Court therefore holds that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Claudia Westerdiek Dean Spielmann Registrar President