Martina DROSSER-BRAND v Germany - 31503/06 [2008] ECHR 1318 (14 October 2008)

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The European Court of Human Rights (Fifth Section), sitting on
14 October 2008 as a Chamber composed of:

Rait Maruste, President,
Karel Jungwiert,
Volodymyr Butkevych,
Renate Jaeger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

The applicant, Ms Martina Drößer-Brand, is a German national who was born in 1963. Her domicile is unknown.

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

The applicant and her husband (K.B.) have a common son (T.), born in 1999. After the separation of his parents in 2004, T. lived with the applicant, who denied K.B. the possibility to visit his son.

On 3 December 2004 K.B. requested the Munich District Court to transfer the right to decide where his child should live (Aufenthaltbestimmungsrecht) to him.

On 25 February 2005 the District Court heard T. in the framework of proceedings which K.B. had initiated to gain access to his child.

On 23 May 2005 the Munich District Court transferred the right to decide where T. should live to the Youth Office as it could not rule out the possibility that the applicant would be dangerous to the child's well-being and that she would leave Germany with her son. The court also decided to commission an expert report.

On 24 June 2005, after having heard the parties, the Munich District Court granted K.B. the right to decide where the child should live.
The applicant appealed that decision.

On 28 June 2005 the District Court ordered her by way of an interim injunction to hand the child over to his father and authorised the court's bailiff to enforce that decision, if necessary by force. Relying on the submissions of the Youth Office, the guardian ad litem and the family's nonmedical practitioner, who contended that the mother had indoctrinated the child and kindled fears which had aggravated the situation, the court found that the child's well-being would be best served if the right in question was transferred to the father. Moreover, the hearing of the child held on 25 February 2005, as well as the applicant's prior conduct, proved that she had attempted to influence the child against his father in every possible way and that it was very likely that the applicant would go into hiding with T.

On 8 July 2005 an arrest warrant was issued against the applicant on suspicion of child abduction.

On 19 August 2005 the District Court upheld its interim injunction after having heard the father, the applicant's representative, the guardian ad litem and a representative of the Youth Office, inter alia because in the meantime the applicant had gone into hiding with T. It was therefore impossible for the court to find out her address and to suggest to her in person that it should annul the interim injunction if she agreed to undergo a psychological examination and granted her husband access to T. The applicant's counsel, however, rejected that offer on behalf of the applicant.

On 29 September 2005, after having heard T's father, the guardian ad litem and the Youth Office, the Munich Court of Appeal confirmed the District Court's decision of 24 June 2005, relying on section 1671 of the Civil Code (see “Relevant domestic law” below). The fact that the applicant forced her then 5-year-old son to live in hiding would make him totally dependant on his mother, uproot him from the environment and persons he had been attached to and have deleterious effects on his physical and psychological development and on his material well-being. Moreover, it was impossible for the court to hear the applicant and her son as she was not ready to appear at the hearing, her whereabouts were unknown to the court and all attempts to contact the applicant had failed. Even if an arrest warrant had been issued against the applicant, the well-being of her child required her to leave it to the courts to settle the dispute instead of taking the matter into her own hands.

On 17 October 2005 the Munich Court of Appeal declared the applicant's complaint against the decisions of 28 June 2005 and
19 August 2005 disposed of, given that it had already taken a decision in the main proceedings on 29 September 2005.

By interim injunction of 16 November 2005 the Federal Constitutional Court suspended the enforcement of the Court of Appeal's decisions of 29 September 2005 and 17 October 2005 until it had decided on the applicant's constitutional complaint.

On 22 December 2005 the Federal Constitutional Court refused to admit the applicant's constitutional complaint, arguing that it could be deduced from the court files of the entire proceedings that the applicant had done her utmost to thwart the proper conduct of the proceedings. As she had gone into hiding and all attempts to contact her had failed, it was impossible for the courts to clarify the facts of the case, to hear the applicant and T. and to commission an expert report. Moreover, the applicant could not plausibly argue that the arrest warrant had prevented her from attending the hearing as she had never tried to challenge the warrant, even though the courts had repeatedly informed her of that possibility through her representative. Finally, the courts understandably argued that the applicant's going into hiding with her son would result in the boy's social isolation and thus considerably impair his welfare. Considering that the courts tried to reach a compromise with the applicant, and given the latter's conduct, it was unobjectionable that the courts found that T.'s welfare would be best served if the right to decide where the boy should live was transferred to his father.

Section 1671 of the Civil Code provides that if parents sharing joint parental authority separate permanently, either parent may request to be awarded full or partial parental authority. The family courts will grant such a request inter alia if it appears that the lifting of joint parental authority and its transfer to the parent requesting it is best for the child's welfare.

Pursuant to Section 1631 § 1 of the Civil Code, parental authority includes the right to determine where the child should live.

The applicant complains under Articles 6, 8 and 14 of the Convention about the domestic court's arbitrary decisions to transfer the right to decide where T. should live to K.B. without having clarified the facts of the case, without having heard her and T. and without having commissioned an expert report or undertaken an on-site inspection to verify their living conditions.

The applicant claimed that the German court decisions transferring the right to decide where her son should live to K.B. and the decision-making process involved had violated her rights under Articles 6, 8 and 14 of the Convention.

The Court considers that these complaints fall to be examined under Article 8 of the Convention alone, which, in so far as relevant, provides:

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court finds at the outset that the German courts' decisions transferring the right to decide where her son should live to K.B. restricted the applicant's custody rights and thus interfered with her right to respect for her family life under Article 8 § 1 of the Convention.

Any 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 Article 8 § 2 and can be regarded as “necessary in a democratic society”.

The decisions at issue were based on section 1671 of the Civil Code. They were aimed at protecting the best interests of T. and therefore taken to protect his health and his rights and freedoms.

In determining whether it was “necessary in a democratic society” to award the right to determine T.'s place of residence to his father the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind (see, inter alia, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 71, ECHR 2001-V; Elsholz v. Germany [GC], no. 25735/94, § 48, ECHR 2000-VIII; and Wildgruber v. Germany (dec.), no. 32817/02, 16 October 2006). The Court has moreover recognised that when deciding on custody the authorities enjoy a wide margin of appreciation (see, inter alia, Wildgruber, cited above).

The Court further reiterates that it cannot satisfactorily assess whether the reasons adduced by the national courts to justify measures of interference were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the parent has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests (see, inter alia, T.P. and K.M. v. the United Kingdom, cited above, § 72, and Wildgruber, cited above).

In reviewing whether the domestic courts based their decision to transfer the right to determine where T. should live to K.B. on relevant reasons, the Court observes that the domestic courts were concerned that the fact that the applicant was compelling her son to live with her in social isolation would destabilise the boy and hence be detrimental to his physical and psychological development.

The Court is therefore satisfied that the domestic courts' decisions to transfer the right to determine the child's place of residence were taken in the child's best interests which, due to their serious nature, must override the applicant's interests. Therefore, the national courts did adduce relevant reasons to justify their decisions.

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

The Court observes that the applicant was represented by counsel throughout the proceedings. It also notes that the applicant's own conduct made it impossible for the courts to hear her and her son in person, to have a psychological expert report drawn up and to verify their living conditions after she had gone into hiding. The courts unsuccessfully tried to find out the applicant's address and, through her counsel, offered to lift the interim injunction against her under certain conditions.

In this connection, the Court considers that the domestic courts did everything in their power to duly involve the applicant in their decision-making procedure. If the applicant undermined all those attempts, the domestic courts cannot be held responsible for the applicant's failure to cooperate with them.

The Court further observes that the Munich District Court heard T. on 25 February 2005 in the access proceedings initiated by K.B. In the absence of any possibility to hear the applicant and T. in person during the custody proceedings, the courts based their findings on the submissions made by the guardian ad litem and the representative of the Youth Office and on evidence given by the family's nonmedical practitioner. Furthermore, the courts drew their conclusions from the applicant's own behaviour throughout the proceedings and, in particular, from the fact that she had gone into hiding with her son instead of cooperating with the courts to reach a compromise.

Having regard to the foregoing and to the respondent State's margin of appreciation, the Court is satisfied that the German courts' procedural approach was reasonable in the circumstances and provided sufficient material to reach a reasoned decision on the question of custody in this particular case.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Martina DROSSER-BRAND v Germany - 31503/06 [2008] ECHR 1318 (14 October 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1318.html Cite as: [2008] ECHR 1318