BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF SCHNEIDER v. GERMANY
(Application
no. 17080/07)
JUDGMENT
STRASBOURG
15
September 2011
FINAL
15/12/2011
This
judgment has become final under Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of Schneider v.
Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann, President,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Ann
Power,
Angelika Nußberger, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 23 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17080/07)
against the Federal Republic of Germany lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
German national, Mr Michael Schneider (“the applicant”),
on 4 April 2007.
- The
applicant was represented by Mr G. Rixe, a lawyer practising in
Bielefeld. The German Government (“the
Government”) were represented by their Agent, Mrs A.
Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry
of Justice.
3. The
applicant alleged, in particular, that the domestic courts’
decision to refuse him access to the boy F., of whom he claimed to be
the biological father, and information about the boy’s personal
circumstances, violated his rights under Article 8 of the Convention.
- On
4 January 2010 the President of the Fifth Section
decided to give notice of the application to the Government.
On 8 March 2010 he granted leave, under Article 36 § 2 of the
Convention and Rule 44 of the Rules of Court, for Mr and Mrs H., the
legal parents of the boy F., to intervene as a third party in the
written proceedings before the Court. Mr and Mrs H. were represented
by Mr W. Heinz, a lawyer practising in Heidelberg. The Court also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Fulda.
A. Background to the case
- From
2001 onwards Mr and Mrs H., a married couple, lived in different
places as Mr H. was working in the United Kingdom while Mrs H.
remained in Germany. The spouses have a daughter born in 1997. In May
2002 Mrs H. and the applicant entered into a relationship. Mrs H.
became pregnant in June 2003.
- The
applicant claimed that he was the father of the child to be born, and
that the birth had been planned by Mrs H. and him. This was contested
by the Government and the third party interveners.
- In
September 2003 Mrs H. left the applicant and subsequently went to
live with her husband in the United Kingdom.
- On
25 November 2003 the applicant acknowledged paternity of the child to
be born before the Heidelberg Youth Office.
- On
6 March 2004 Mrs H. gave birth to a boy, F., in the United Kingdom.
Mr and Mrs H. have been living in the United Kingdom since then; they
raise F. together with their daughter. They acknowledged that the
applicant might be F.’s biological father. They claimed,
however, that it could just as well be Mr H. as they had also had
intimate relations at the relevant time. The latter allegation is
contested by the applicant. The spouses preferred not to verify
paternity in the interest of their family relationship.
B. The proceedings at issue
1. The proceedings before the District Court
- On
20 October 2005 the Fulda District Court dismissed the applicant’s
requests of 24 August 2004 for access to F. twice per month and for
regular information on the boy’s development.
- The
District Court noted that the applicant claimed to be F.’s
biological father. The applicant had submitted that he and Mrs H. –
who at the time was considering a divorce – had planned to have
the child. When Mrs H. had become pregnant, the applicant had
accompanied her to her medical consultations as the child’s
father. Mr and Mrs H., for their part, had not contested that there
had been an intimate relationship between the applicant and Mrs H. at
the relevant time. However, Mrs H. had not planned to have a child
and Mr H. could equally be F.’s biological father.
- The
District Court found that the applicant, even assuming that he was
F.’s biological father, did not fall within the group of
persons who had a right of access and information under Article 1684
or Article 1685 of the Civil Code (see paragraphs 32-33 below). He
did not have a right of access under Article 1684 of the Civil Code
as he was not F.’s legal father. According to Article 1592 of
the Civil Code (see paragraph 35 below) the boy’s legal father
was Mr H., the husband of the child’s mother. The applicant’s
acknowledgement of paternity before the Youth Office was not valid
under Article 1594 § 2 of the Civil Code as Mr H.’s
paternity prevailed (see paragraph 36 below). Nor was he entitled to
challenge Mr H.’s paternity as the conditions of Article
1600 § 2 of the Civil Code (see paragraph 37 below) were not
met. He had no right to contest Mr H.’s paternity because there
was a social and family relationship between Mr H. and F., who was
living with Mr and Mrs H.
- The
District Court further found that the applicant did not have a right
of access under Article 1685 § 2 of the Civil Code either. He
claimed to be F.’s biological father, but whether this was in
fact the case was unclear. Moreover, he was not a person with whom
the child had close ties and there was no social and family
relationship between them. The fact that in the applicant’s
submission, Mrs H. and he had planned to have the child and had
wanted to live together did not alter that conclusion. The applicant
had never lived with Mrs H. or the child. The child had lived with Mr
and Mrs H., a married couple, since his birth. During that time there
had been no possibility for the applicant to build up a social and
family relationship with F.
2. The proceedings before the Court of Appeal
- On
9 February 2006 the Frankfurt am Main Court of Appeal, without
hearing the parties in person, dismissed the applicant’s appeal
as well as his request to be allowed to offer F. presents on special
occasions.
- The
Court of Appeal confirmed the District Court’s finding that the
applicant did not have a right of access and information under
Article 1684 and Article 1686 of the Civil Code (see paragraph 34
below) as those provisions conferred rights only on a child’s
legal parents. Under Article 1592 no. 1 of the Civil Code it was
Mr H., who was married to Mrs H. at the time of F.’s
birth, who was F.’s legal father. The applicant’s
acknowledgement of paternity of F. did not alter that fact as it was
not valid (Article 1594 § 2 of the Civil Code).
- Furthermore,
the applicant did not have a right of access and information under
Article 1685 of the Civil Code. There was no social and family
relationship between the applicant and F. as the applicant had so far
never even seen F., let alone built up a relationship with him.
- The
Court of Appeal considered that the fundamental right to respect for
one’s family life under Article 6 § 1 of the Basic Law
(see paragraph 30 below) and Article 8 of the Convention did not
afford the applicant more far-reaching rights. It was not even
established that the applicant was F.’s biological father.
Paternity could, however, only be determined in separate proceedings
and under certain conditions, which the applicant was most probably
unable to meet. In any event, even assuming that the applicant was
F.’s biological father, he would still not have a right of
access and information, for lack of a social and family relationship
with F. The case of Keenan v. Ireland, in which the European
Court of Human Rights had strengthened the rights of biological
fathers who had not yet built up a social and family relationship
with their child, was not comparable to the present case. The facts
of that case, in which the child’s mother had given up the
child for adoption, were not comparable to those of the present case
as the interests of all persons concerned had to be weighed in the
balance. In the present case, the applicant’s right in his
position as biological father could not outweigh the protection of
the family, the mother and the child under Article 6 § 2 of the
Basic Law (see paragraph 30 below). In this conflict of interests,
anything which could upset a child’s trust in his family had to
be prevented. It was preferable that F. grew up in his family without
learning about the problematic circumstances of his origin.
- The
Court of Appeal’s decision was served on the applicant’s
counsel on 14 February 2006.
- On
18 April 2006 the Frankfurt am Main Court of Appeal dismissed the
applicant’s objection alleging a violation of the right to be
heard (Anhörungsrüge).
3. The proceedings before the Federal Constitutional
Court
- In
his constitutional complaint dated 14 March 2006 the applicant
claimed that the decisions of the family courts refusing him contact
with and information about the personal circumstances of his child
had violated, in particular, his right to respect for his family life
under Article 6 of the Basic Law and Article 8 of the Convention and
his right to equal treatment under Article 3 §§ 1 and 2 of
the Basic Law (see paragraph 29 below) and Articles 8 and 14 of
the Convention. He argued that for a biological father to relate
closely to his child, so as to have a right of access and
information, it was sufficient that the father was willing to take
responsibility for the child. Otherwise, the child’s mother
would have the right to prevent any contact between father and child.
Such contact, and knowledge of his own origins, were in the child’s
best interest. The applicant further claimed that the family courts’
refusal to determine whether he was F.’s biological father and
their failure to examine, with regard to the circumstances of his
case and by taking evidence, whether contact with him would be in
F.’s best interest had disproportionately interfered with his
right to respect for his family life. Moreover, the domestic courts’
decisions had discriminated against him in his right of access and
information compared to fathers of children born in or out of
wedlock, mothers, grandparents and siblings.
- On
20 September 2006 the Federal Constitutional Court declined to
consider the applicant’s constitutional complaint (file no. 1
BvR 1337/06). It held that the complaint had no prospect of success
as it was, in any event, ill-founded.
- In
so far as the applicant had complained about the family courts’
failure to determine paternity of F., his complaint was inadmissible
owing to the subsidiarity of a constitutional complaint. The
applicant should have contested Mr H.’s paternity in separate
proceedings under Article 1600 § 1 of the Civil Code prior to
lodging his constitutional complaint.
- In
so far as the applicant complained about the family courts’
refusal to grant him access to and information about F., his rights
under Article 6 §§ 1 or 2 and Article 3 § 1 of the
Basic Law had not been breached.
- The
parental rights guaranteed by Article 6 § 2 of the Basic Law
afforded protection to the person having parental responsibility,
irrespective of whether that person was the biological or the legal
parent of the child. In the present case, this provision thus
protected Mr H. and not the applicant. Neither Article 1684 nor
Article 1686 of the Civil Code, which provided for rights of access
and information only for legal parents, nor the decisions of the
family courts which were based on those provisions, were in breach of
Article 6 § 2 of the Basic Law.
- The
family courts’ refusal to grant the applicant access under
Article 1685 § 2 of the Civil Code had not violated his
rights under Article 6 § 1 of the Basic Law either. Article 6 §
1 protected the relationship between a biological, but not legal,
father and his child only where there was a social relationship
between them which was based on the fact that the father had borne
actual responsibility for the child at least for some time.
Conversely, the (presumed) biological father’s wish to take
over responsibility or to build up a social and family relationship
with the child was not sufficient to attract the protection of
Article 6 § 1. As there had never been a social and family
relationship between F. and the applicant, the family courts had
complied with Article 6 § 1 of the Basic Law in denying the
applicant a right of access pursuant to Article 1685 § 2 of the
Civil Code.
- Furthermore,
the fact alone that the presumed biological father, unlike the
biological mother, had no right of access to the child did not render
the decisions of the family courts arbitrary and thus in breach of
Article 3 § 1 of the Basic Law.
- The
decision was served on the applicant’s counsel on 4 October
2006.
II. RELEVANT DOMESTIC AND COMPARATIVE LAW
A. Domestic law and practice
1. Provisions of the Basic Law
- Under
Article 3 of the Basic Law, everyone is equal before the law (§ 1);
men and women have equal rights (§ 2).
- Article
6 of the Basic Law, in so far as relevant, provides:
(1) Marriage and the family shall enjoy the
special protection of the state.
(2) The care and upbringing of children is
the natural right of parents and a duty primarily incumbent upon
them. The state shall watch over them in the performance of this
duty.
2. Provisions of the Civil Code
(a) Provisions on access to and
information about a child
- Parental
custody includes the right to determine access to the child (Article
1632 § 2 of the Civil Code).
- According
to Article 1684 § 1 of the Civil Code, a child has a right of
access to each parent, and each parent in turn has the right and the
duty to have contact with the child. The family courts can determine
the scope of the right of access and prescribe more specific rules
for its exercise, also with regard to third parties (Article 1684 §
3). They may restrict or suspend that right if such a measure is
necessary for the child’s welfare. A decision restricting or
suspending that right for a lengthy period or permanently may only be
taken if the child’s well-being would otherwise be endangered.
The family courts may order that the right of access be exercised in
the presence of a third party, such as a Youth Office or an
association (Article 1684 § 4).
- Under
Article 1685 § 1 of the Civil Code, grandparents and siblings
have a right of access to the child if this serves the child’s
best interest. Article 1685 § 2 of the Civil Code, in its
version applicable at the relevant time, further provides for persons
with whom the child has close ties (enge Bezugspersonen) to
have a right of access to the child if this serves the child’s
best interest and if they are bearing actual responsibility for the
child or have done so in the past (social and family relationship).
It is to be assumed, as a rule, that a person who lived with the
child in domestic community for a lengthy period of time has borne
such actual responsibility. Article 1684 §§ 3 and 4 apply
mutatis mutandis (see Article 1685 § 3 of the Civil
Code).
- Under
Article 1686 of the Civil Code, each parent who has a legitimate
interest in obtaining information about the child’s personal
circumstances may request such information from the other parent in
so far as this is not contrary to the child’s best interest.
(b) Provisions on paternity
- According
to Article 1592 of the Civil Code, a child’s father is either
the man who at the date of the child’s birth was married to the
child’s mother (no. 1), or the man who acknowledged paternity
(no. 2) or whose paternity is judicially established under Article
1600d of the Civil Code (no. 3).
- An
acknowledgement of paternity is not valid as long as the paternity of
another man exists (Article 1594 § 2 of the Civil Code).
- Paternity
may be challenged. Under Article 1600 § 1 of the Civil Code,
entitlement to challenge paternity lies with the man whose paternity
exists under Article 1592 nos. 1 and 2, with the mother and with the
child, and also with the man who makes a statutory declaration that
he had sexual intercourse with the child’s mother during the
period of conception. However, pursuant to § 2 of Article 1600,
this last man has a right to challenge the paternity of the man who
is the child’s legal father under Article 1592 nos. 1 or 2 only
if he is the child’s biological father and if there is no
social and family relationship between the legal father and the
child. If there is no paternity under Article 1592 nos. 1 or 2 of the
Civil Code, paternity is to be established by the family court
(Article 1600d § 1 of the Civil Code).
B. Comparative law
- Research
undertaken by the Court in relation to 23 Council of Europe Member
States shows that there is no uniform approach in the Member States
of the Council of Europe to the question whether, and if so, under
what circumstances, a biological father (who is not only a sperm
donor) has a right to contact with his child where a different father
exists in law.
- In
a considerable number of States (including Bosnia and Herzegovina,
Estonia, France, Ireland, Portugal, Russia, Slovenia, Spain, the
United Kingdom and Ukraine), where a child is born to a woman who is
living with her husband, a biological father can ensure his contact
rights by first challenging the paternity presumption in place, in
some cases within a fixed time-limit. In these States, as indeed in
all of the countries surveyed, a presumption exists in law to the
effect that a child born of a married woman during the subsistence of
the marriage is also the child of her husband. Having been recognised
as the (legal) father of the child concerned, the biological father
then has a right to contact with his child like any other
non custodial parent, subject to the child’s best
interest.
- According
to an expert report drawn up in March 2010 by the German Institute
for Youth Human Services and Family Law (Deutsches Institut für
Jugendhilfe und Familienrecht e.V., a registered association and
non-governmental organisation), which was submitted by the Government
and covered, in addition to Germany, seventeen other Council of
Europe Member States, the same applied in Greece. That report,
however, interpreted differently the provisions applicable in France
and Spain. The applicant submitted that there were several other
countries where a biological father could challenge the legal
father’s paternity under conditions which were less restrictive
than those applicable in Germany, such as Azerbaijan, Lithuania,
Moldova, Norway, San Marino and Serbia (see paragraphs 41 and 43
below for the research undertaken by the Court in respect of
Azerbaijan). He contested in general terms the comparative law
analysis submitted by the Government, arguing that the legal
situation in only seventeen of the forty-seven Member States of the
Council of Europe was not representative.
- In
a considerable number of Council of Europe Member States, according
to the Court’s research, the biological father of a child
would, on the contrary, not be able to challenge the said paternity
presumption in circumstances similar to those in the present
application (see, in particular, Azerbaijan, Belgium, Croatia,
Finland, Hungary, Italy, Latvia, Luxembourg, Monaco, the Netherlands,
Poland, Slovakia and Switzerland). Biological fathers in those
countries lack standing to bring an action to challenge that
presumption, be it in all circumstances or at least in cases in which
the mother is still living with her husband (see in this latter
regard the law in force in Belgium and Luxembourg).
- According
to the expert report of the German Institute for Youth Human Services
and Family Law submitted by the Government, the same applies in
Austria, the Czech Republic, Denmark, Liechtenstein, Sweden and
Turkey.
- In
these Member States it is open to the biological father to apply for
contact only as a third party, not as a parent. However, in some of
these States (Azerbaijan, Croatia, Finland, Hungary, Italy,
Luxembourg and Poland) the biological father does not have standing
to apply for contact even as a third party, as the law provides a
right of contact only to legal parents and (to some extent) to other
relatives.
- According
to the same expert report of the German Institute for Youth Human
Services and Family Law, the biological father would also not have
standing to apply for contact in Liechtenstein and in the Czech
Republic.
- In
the remaining Member States surveyed by the Court in which the
paternity presumption may not be challenged by a biological father
(Belgium, Latvia, Monaco, the Netherlands, Slovakia and Switzerland),
different preconditions apply for that father to be granted contact
if such contact is in the child’s best interest. According to
Article 375 bis of the Belgian Civil Code, there has to be “proof
of a tie of special affection with the child”; according to
Article 181 § 3 of the Latvian Civil Code, the father must have
lived together with the child for a long time in the same household.
In Monaco a third person can be granted contact by a judge where that
would be in the best interest of the child, without additional
preconditions having to be met (compare Article 300 of the Monegasque
Civil Code). In the Netherlands, third persons (including mere sperm
donors) may be granted contact under Articles 1:377f and 1:377a §
3 of the Civil Code of the Netherlands if they have a close personal
relationship with the child, unless contacts run counter to the
child’s best interest. According to section 25 § 5 of the
Slovakian Family Act, the biological father may be granted access if
he is regarded as being “close” to the child (according
to the expert report submitted by the Government, a similar provision
applies in Sweden), and under Article 274a of the Swiss Civil Code,
he has a right to contact in exceptional circumstances (according to
the expert report submitted by the Government, the same precondition
applies in Turkey).
- According
to the report submitted by the Government, Section 20 of the Danish
Act on Parental Responsibility provides that access may be granted
only to close relatives having close personal ties with the child
concerned and only if the parents have no or hardly any contact with
the child. The report further states that under Article 148 § 3
of the Austrian Civil Code, a biological father may be granted access
to his child if the child’s welfare is endangered otherwise.
THE LAW
I. COMPLAINT CONCERNING THE REFUSAL OF ACCESS TO AND
INFORMATION ABOUT F.
- The
applicant complained that the domestic courts’
decision to refuse him access to his son and information about his
personal circumstances violated his right under Article 8 of the
Convention to respect for his private and family life. He further
submitted that the domestic courts’ failure to investigate
sufficiently the relevant facts concerning his relationship with his
son, in particular his paternity, and the question whether access was
in the child’s best interest violated Article 8, read in
conjunction with Article 6 of the Convention.
- The
Court considers that the complaint falls to be examined under Article
8 alone, which, in so far as relevant, reads as follows:
“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.”
- The
Government contested that argument.
A. Admissibility
1. The Government’s submissions
- The
Government took the view that the application was inadmissible. They
argued that the applicant lodged a total of five applications with
the Court concerning the proceedings here at issue. In his first to
fourth applications, dated 1 September 2004, 22 December 2005,
21 March 2006 and 30 May 2006, he had failed to exhaust domestic
remedies as required by Article 35 § 1 of the Convention. The
applications had been lodged while proceedings were still pending
before the domestic courts and before he had obtained a decision of
the Federal Constitutional Court. As to his fifth application, the
applicant had failed to demonstrate that he had complied with the
six-month time-limit under Article 35 § 1 of the Convention. The
original of his application, dated 4 April 2007, had been received at
the Court only on 11 April 2007, and he had failed to demonstrate
that the application reached the Court by fax in good time. The
Federal Constitutional Court’s decision having been served on
the applicant’s counsel on 4 October 2006, the six-month
time-limit for lodging an application had expired on 4 April 2007.
- The
Government further submitted that the application was inadmissible in
so far as the applicant complained about a breach of his fundamental
rights in relation to his knowledge of F.’s descent. In this
respect, the applicant had failed to institute separate paternity
proceedings under Article 1600 § 2 of the Civil Code (see
paragraph 37 above). The Federal Constitutional Court had,
accordingly, expressly rejected his complaint as inadmissible on that
ground. The applicant also could not claim that such proceedings
would have excessively delayed the access proceedings, which he had
brought only half a year after F.’s birth. The Government
further contested that paternity proceedings had been bound to fail,
given that the Federal Constitutional Court had not yet ruled on the
amended version of Article 1600 of the Civil Code.
2. The applicant’s submissions
- The
applicant submitted that his application dated 4 April 2007 had been
received at the Court by fax on that day and thus within the
six-month time-limit under Article 35 § 1 of the Convention. In
the alternative, he submitted that, having regard to the Federal
Constitutional Court’s well established case-law and the
applicable provisions of the Civil Code, a complaint to that court
and to the Frankfurt am Main Court of Appeal had not been effective
remedies he had been obliged to exhaust.
- As
to the Government’s allegation that he had failed to exhaust
domestic remedies in that he had not contested Mr H.’s
paternity in separate proceedings under Article 1600 of the Civil
Code, the applicant argued that the Government had not demonstrated
that such proceedings were an effective remedy he was obliged to
exhaust. As the family courts had convincingly noted, such
proceedings were bound to fail as Mr H. was living in a social and
family relationship with F. Moreover, according to the explicit
reasons given by the domestic courts, it had not been decisive
whether or not he was F.’s biological father. His claim for
access and information had been rejected for lack of a social and
family relationship between him and F., even assuming that he was
F.’s biological father. In any event, as F’s biological
father his proceedings had only been aimed at being granted access to
the boy and information about his development. He had not intended to
become F.’s legal father by way of separate paternity
proceedings, which would, furthermore, have unduly delayed a decision
on his request for access to F. Such a course, if successful, would
have ended Mr H.’s legal paternity, which might not have been
in F.’s best interest.
3. The Court’s assessment
- The
Court observes that the application at issue in the present case and
communicated to the Government is the application dated 4 April 2007.
It concerned the applicant’s requests for access to and
information about F. and was lodged after the decision of the Federal
Constitutional Court was served on the applicant’s counsel on 4
October 2006. The application was received at the Court, according to
the information in its case-file, by fax on 4 April 2007 (and
subsequently, on 11 April 2007, also by normal post). Accordingly,
the application was lodged after all domestic remedies had been
exhausted in relation to the requests for access and information. It
was also lodged within six months from the date on which the final
decision of the Federal Constitutional Court was served on the
applicant’s counsel, in compliance with Article 35 § 1 of
the Convention. The Government’s objections on those grounds
must therefore be dismissed.
- The
Court notes the Government’s further objection that the
application was inadmissible in so far as the applicant complained
about a breach of his fundamental rights in relation to his knowledge
of F.’s descent. In the Government’s view, the applicant
should have instituted separate paternity proceedings under Article
1600 § 2 of the Civil Code to settle that matter. The Court
observes that in the proceedings at issue, the applicant requested
access to F. and information about the boy’s personal
circumstances. It was only in that context that the applicant
submitted that the domestic courts, in order to establish the
relevant facts and to be able to rule on his requests, had been
obliged to determine, inter alia, whether he was in fact the
biological father of F. He had thus not intended, in the proceedings
at issue, to be recognised as F.’s legal father – which
is the aim of paternity proceedings under Article 1600 of the Civil
Code.
- The
Court considers that the question whether the applicant was
nevertheless obliged to institute paternity proceedings prior to his
application to be granted access to and information about F. is
closely linked to the substance of his complaint under Article 8 and
to the scope of his rights under that provision. It therefore joins
the objection raised by the Government in this respect to the merits
of the case.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention, or
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
(i) Submissions on whether there was an
interference
- The
applicant took the view that the relationship
between F. and him as his biological father amounted to family life
within the meaning of Article 8 § 1 of the Convention. He
submitted that he had had a lengthy relationship with F.’s
mother, Mrs H., from May 2002 until September 2003. He claimed that
Mrs H. had informed him that her marriage had broken down and that
her husband was living together with a new partner in the United
Kingdom. Mrs H. and he had lived alternating between their respective
homes. They had planned to have the child F. The applicant had
accompanied Mrs H. to four medical examinations relating to her
pregnancy and Mrs H. had presented him as the child’s father to
others, including her parents and her parents-in-law. He had
acknowledged paternity of the child to be born as early as 25
November 2003. He had also received some photos of F. at his request.
- The
applicant further argued that, in any event, his intended family life
with F. was protected under Article 8, given that the child’s
legal parents had prevented him from developing a close personal
relationship with the boy. In such circumstances, it was sufficient
for him to have shown a genuine interest in the child both before and
after his birth by planning a common future with the mother and
child, acknowledging paternity before the child’s birth and
requesting access to and information about the child.
- The
applicant further alleged that the domestic courts had not
sufficiently established the nature of the relationship between him
and Mrs H. The latter had separated from and wanted to divorce
her husband, who had been living with another woman. Moreover, they
had failed to determine whether he was the biological father of F.
despite the fact that they had considered this element relevant to
the question whether there was a family relationship between him and
F. This failure had also interfered with his right to respect for his
private life as protected by Article 8 (the applicant referred to
Nylund v. Finland (dec.), no. 27110/95, ECHR 1999 VI,
and Mikulić v. Croatia, no. 53176/99, ECHR 2002 I).
In his view, it was the domestic courts’ duty to determine the
biological kinship in access proceedings when it was disputed by the
child’s legal parents.
(ii) Submissions on whether the
interference was justified
- The
applicant argued that the interference with his rights under Article
8 had not been justified under paragraph 2 of that provision. In
particular, it had not been “necessary in a democratic
society”.
- In
the applicant’s view, the domestic courts’ interpretation
and application of Article 1685 § 2 of the Civil Code had been
disproportionate in that it had denied him contacts with his child
without examining whether such contacts would be in the child’s
best interest. On this point he referred to the Court’s
judgment in the case of Anayo v. Germany (no. 20578/07,
21 December 2010), in which the Court had found that a
biological father had a right to contact with his child if such
contact was in the child’s best interest. In the
applicant’s submission, the domestic courts had failed to weigh
the different interests at stake in the proceedings and had accorded
absolute predominance to the existing family unit, which was
disproportionate. They had failed to take into consideration that
contacts with the biological father were generally necessary for the
child’s personal identity and development.
- Thereby,
the domestic courts had also failed to base their decision to deny
the applicant access to and information about F. on sufficient
grounds. They had taken the view that a biological father who had
never seen his child should never be granted contacts with the child,
irrespective of the particular circumstances of each case. However,
the question of whether access was in the child’s best interest
had to be determined in the circumstances of the case and could not
be replaced by standardised legal assumptions.
- The
applicant further contested the Government’s argument that a
comparative law analysis confirmed that the provisions of German law
duly protected the right of biological fathers to contact with their
children and that the children’s best interest did not warrant
a different solution. He took the view that German law accorded a
considerably weaker position to the biological father than the
applicable provisions in the majority of the European States (see
also paragraph 40 above). He argued that the findings made in a
report drawn up in March 2010 at the Government’s request by
the German Institute for Youth Human Services and Family Law, were
not convincing and representative of the legal situation in Europe
(see also paragraph 40 above).
- Furthermore,
the applicant contested the Government’s argument, based on a
general psychological report by expert K. which the Government had
commissioned for the proceedings in the Anayo case, that
contacts with the biological father did not generally have a positive
impact on the child’s well-being. He took the view that
contacts between him and F. would be in F.’s best interest as
he took an interest in the boy, who had a right to know his origins.
Further concealing his origins might rather lead to a loss of
confidence in his legal parents. As F.’s origins were known to
both of his legal parents already before his birth, there was no risk
that contacts between F. and the applicant would threaten the H.
family or its reputation, bearing in mind that both Mr and Mrs H. had
had an extra-marital relationship.
(b) The Government
(i) Submissions on whether there was an
interference
- The
Government took the view that there had not been a violation of
Article 8 of the Convention. The domestic courts’ decisions
concerning the applicant’s access to and information about F.
had not interfered with the applicant’s right to respect for
his family life. Referring to the Court’s case law (they
cited, in particular, Lebbink v. the Netherlands, no.
45582/99, and Hülsmann v. Germany (dec.), no. 33375/03,
18 March 2008), the Government argued that mere biological kinship,
without any close personal relationship, was insufficient to attract
the protection of Article 8 § 1. In the present case, F. lived
together with his mother and his legal father in a stable family
unit.
- Moreover,
even though the Court had considered that intended family life might,
exceptionally, fall within the ambit of Article 8 (the Government
referred to Nylund, cited above; Nekvedavicius v. Germany
(dec.), no. 46165/99, 19 June 2003; and Hülsmann, cited
above), the Government argued that this was not the case in the
circumstances of the present application. They stressed that it had
not been proven that the applicant was the biological father of F.
and that the child was part of Mrs H.’s and his plans for
a common future. However, even assuming that this was the case, it
was not sufficient that he had expressed willingness to take
responsibility.
- The
Government further took the view that the domestic courts’
failure to establish whether the applicant was F.’s biological
father had not interfered with the applicant’s right under
Article 8 to respect for his family or private life. The domestic
courts had assumed for the purposes of the proceedings that the
applicant was F.’s biological father and had rejected his
request for access to F. for lack of a social and family relationship
between them. They had not been obliged to establish the applicant’s
paternity in the access proceedings at issue because the applicant
should have instituted separate paternity proceedings for this
purpose (Article 1600 of the Civil Code, see paragraph 37 above).
(ii) Submissions on whether the
interference was justified
- Even
assuming that there had been an interference with the applicant’s
rights under Article 8 § 1 by the refusal of the domestic courts
to grant him access to F. and information about the boy’s
development, that interference had been justified under Article 8 §
2. The alleged interference with the applicant’s rights had a
legal basis in Articles 1685 and 1686 of the Civil Code. It served
the legitimate aim of protecting the rights and freedoms of F. and
his legal parents, Mr and Mrs H.
- That
interference was also necessary in a democratic society. The domestic
courts had based their decision that the applicant had not
established any social ties with F. that might lead to contacts
between them being in the child’s best interest on relevant and
sufficient reasons. They stressed that in the Anayo case
(cited above) the Court had found that a man whose biological
paternity was uncontested had a right to determination, by the
domestic courts, whether contacts with his child were in the child’s
best interest. In the present case, however, the applicant’s
paternity was contested by the legal parents. To allow every man
alleging to be the father of a child born in wedlock to seek to have
his paternity established could seriously interfere with the rights
of the members of the legal family. Moreover, such requests would not
necessarily be based on the child’s best interest. It was
important to bear in mind that in cases like the present one the
fundamental rights of the various persons concerned had to be
balanced fairly against one another.
- The
Government further took the view that the German legislator, in
Articles 1592, 1594, 1600, 1684 and 1685 of the Civil Code, had
balanced the competing interests involved in a manner which complied
with the requirements of Article 8. A comparative law analysis
confirmed that these provisions, compared to the applicable law in
other European countries, duly protected the right of biological
fathers to contact with their children and that the children’s
best interest did not warrant a different approach. German law –
which did not exclude biological fathers in all circumstances from
contacts with their children but allowed such contacts only if a
social and family relationship existed between biological father and
child and if the contacts were in the child’s best interest –
was in line with the general European standards on the matter.
- In
that connection, the Government relied on the findings of a report
drawn up in March 2010 at their request by the German Institute for
Youth Human Services and Family Law, analysing the access rights of
biological fathers in 17 other Council of Europe Member States (see
also paragraphs 40, 42 and 44-46 above; the report had already been
submitted in the Anayo case, cited above).
- Moreover,
the domestic courts had fairly balanced the fundamental rights of all
the individuals involved. It was of the utmost importance for the
welfare of children not only to know their origins, but in particular
to understand to which family they belonged and who bore
responsibility for them as a mother or father. Moreover, it was
justified to protect an existing family relationship between legal
parents and child and the legal parents’ marriage by denying a
biological father the right to obtain legal paternity. It fell within
the State’s margin of appreciation to decide that the interests
of the family, the mother and the child had to prevail over the
competing interests of the biological father in obtaining access in
cases where that father had shown willingness to take responsibility
only by expressing his wish to share a future with the child he
fathered. The same applied to the biological father’s claim to
be informed about the child’s development.
- The
Government stressed in that context that contacts between a
biological father and his children did not generally have a positive
impact on the children’s welfare; it depended on the individual
family situation. They referred to the findings of a general
psychological report by expert K. they had commissioned for the
proceedings in the Anayo case (cited above) on the question
whether the provisions of the German Civil Code on contacts between
biological fathers and their children were compatible with the
children’s welfare.
- The
Government submitted that, according to that report, as a rule,
contacts between children and the parent they were not living with
became a burden for them and were thus not in their best interest if
the parents involved were unable to limit their conflicts after
separation. Moreover, according to the expert’s findings, the
total absence of contact with a biological father did not, as a rule,
affect a child’s social and emotional development. German
legislation, which always gave an existing legal family precedence
over biological fathers’ rights, thus guaranteed stability and
was therefore in the children’s best interest. If, as the Court
found in the Anayo case (cited above), the child’s best
interest had to be examined in the particular circumstances of the
case, the proceedings – which the alleged biological father
might actually bring for reasons other than the child’s best
interest – could be a burden on the legal family .
(c) The third party interveners
- In
her submissions to the Court, Mrs H. contested that she had
considered a divorce and had planned a common future with the
applicant. She had planned to move to the United Kingdom after having
finished her medical training and had met her husband regularly
during the time they were living in different places. She had not
planned to have a child with the applicant and stressed that her
husband could also be F.’s father. She had met the applicant
once a week. The applicant had been present, at his request, at two
gynaecological examinations but had not been presented as her
partner. Her husband had also been present at gynaecological
examinations. F. was now six years old and fully integrated into the
H. family.
- Mrs
H. took the view that contacts between the applicant and F. would
jeopardise F.’s welfare and that of her whole family, including
her husband, her daughter and another child born in 2007, and would
impair the family’s good reputation.
- The
third party interveners endorsed the Government’s legal
submissions.
2. The Court’s assessment
(a) Whether there was an interference
- The
Court reiterates that the notion of “family life” under
Article 8 of the Convention 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
the birth (see Keegan v. Ireland, 26 May 1994, § 44,
Series A no. 290; Lebbink v. the Netherlands, no.
45582/99, § 35, ECHR 2004 IV; and Znamenskaya v. Russia,
no. 77785/01, § 26, 2 June 2005).
- However,
a mere biological kinship between a natural parent and a child,
without any further legal or factual elements indicating the
existence of a close personal relationship, is insufficient to
attract the protection of Article 8 (compare Lebbink,
cited above, § 37). As a rule, cohabitation is a requirement for
a relationship amounting to family life. Exceptionally, other factors
may also serve to demonstrate that a relationship has sufficient
constancy to create de facto “family ties” (see
Kroon and Others v. the Netherlands, 27 October
1994, § 30, Series A no. 297 C, and Lebbink, cited
above, § 36).
- Moreover,
the Court has considered that intended family life may,
exceptionally, fall within the ambit of Article 8, notably in cases
where the fact that family life has not yet fully been established is
not attributable to the applicant (compare Pini and Others v.
Romania, nos. 78028/01 and 78030/01, §§ 143 and
146, ECHR 2004-V). In particular, where the circumstances warrant it,
“family life” must extend to the potential relationship
which may develop between a child born out of wedlock and the natural
father. Relevant factors which may determine the real existence in
practice of close personal ties in these cases include the nature of
the relationship between the natural parents and a demonstrable
interest in and commitment by the father to the child both before and
after the birth (see Nylund; Nekvedavicius; Lebbink,
§ 36; Hülsmann; and Anayo, all cited
above; and compare Różański v. Poland, no.
55339/00, § 64, 18 May 2006).
- The
Court further reiterates that Article 8 protects not only “family”
but also “private” life. It has been the Convention
organs’ traditional approach to accept that close relationships
short of “family life” would generally fall within the
scope of “private life” (see Znamenskaya, cited
above, § 27, with further references). The Court thus found in
the context of proceedings concerning the establishment or
contestation of paternity that the determination of a man’s
legal relations with his legal or putative child might concern his
“family” life but that the question could be left open
because the matter undoubtedly concerned that man’s private
life under Article 8, which encompasses important aspects of one’s
personal identity (see Rasmussen v. Denmark, 28 November 1984,
§ 33, Series A no. 87; Nylund, cited above; Yildirim
v. Austria (dec.), no. 34308/96, 19 October 1999; and Backlund
v. Finland, no. 36498/05, § 37, 6 July 2010).
- In
the present case, the Court considers that the domestic courts’
decision to refuse the applicant access to F. and information about
F.’s personal circumstances did not interfere with any existing
“family life” of the applicant and F. within the meaning
of Article 8. Unlike, for instance, in the case of Anayo
(cited above, §§ 10, 59), it is contested and has not been
established in the proceedings before the domestic courts whether the
applicant is in fact F.’s biological father. In any event,
there has never been a close personal relationship between him and F.
such as must be regarded as an “established family life”.
The applicant has never cohabited with F.– or even met him –
to date.
- The
Court must therefore determine whether the applicant’s intended
family life with F. falls within the ambit of Article 8. Under its
well established case-law (see paragraph 81 above), this may,
exceptionally, be the case in circumstances in which the fact that
family life has not been established is not attributable to the
applicant. This applies, in particular, to the relationship between a
child born out of wedlock and the child’s biological father,
who are inalterably linked by a natural bond while their actual
relationship may be determined, for practical and legal reasons, by
the child’s mother and, if she is married, by her husband (see
also Anayo, cited above, § 60).
- In
the present case, the Court notes the Government’s argument
that the applicant failed to institute separate paternity proceedings
under Article 1600 § 2 of the Civil Code. In the access
proceedings here at issue, the domestic courts did not determine
whether the applicant – who, according to the mother, could be
F.’s biological father, but so could her husband – was
F.’s biological father. They found, however, that, even
assuming the applicant’s biological paternity, his requests for
access to and information about F. had to be rejected for lack of a
social and family relationship between him and F. (see paragraphs 13,
18 and 26 above).
- Moreover,
the Court is not convinced that the applicant could have validly
acknowledged paternity or have contested Mr H.’s paternity and
thus have been recognised not only as F.’s biological, but also
as his legal father. In that latter position, he could have claimed
access to F. under the (more favourable) conditions of Article 1684
of the Civil Code, and not only, as he did, under Article 1685 of the
Civil Code. Under the applicable provisions of the Civil Code, as
interpreted by the domestic courts at the relevant time, the
applicant’s acknowledgement of paternity on 25 November
2003 (see paragraph 9 above) was not valid as Mr H.’s paternity
prevailed (Article 1594 § 2 of the Civil Code). The applicant
further had no right to contest Mr H.’s paternity as the latter
was living with F. (Article 1600 § 2 of the Civil Code). This is
confirmed by the findings of the family courts (see paragraphs 13 and
18). In any event, in the proceedings here at issue, the applicant
did not intend to take over the legal position as F.’s father
from Mr H. – which is the aim of the separate paternity
proceedings under Article 1600 of the Civil Code which the applicant
did not institute (see on this matter the Federal Constitutional
Court’s judgment, paragraph 23).
- Furthermore,
the applicant never had any contacts with F. because Mrs and Mr H.,
his legal parents who were entitled to decide on his contacts with
other persons (see Article 1632 § 2 of the Civil Code, paragraph
31 above), refused his requests for access. In these circumstances,
the Court considers that the fact that there was not yet any
established family relationship between F. and the applicant cannot
be held against the latter.
- In
order for the applicant’s intended family life with F. to fall
within the ambit of Article 8, the Court has to determine whether
there were close personal ties in practice between the applicant and
F. (see paragraph 81 above). A relevant factor to verify this is the
nature of the relationship between the (presumed) biological parents.
Even though the applicant and Mrs H. never moved in together, it is
uncontested that they had a relationship for one year and four months
– which was thus not merely haphazard – at a time when Mr
H. resided in the United Kingdom.
- Moreover,
the Court must have regard, in particular, to the interest in and
commitment by the applicant to F. both before and after his birth. It
notes in this connection that, at least from the applicant’s
perspective, it was planned by him together with Mrs H. to have a
child. He accompanied Mrs H. to at least two medical
examinations relating to her pregnancy. He further acknowledged
paternity of the child to be born already before the child’s
birth. After F.’s birth, he received photos of the baby at his
request and brought proceedings in which he claimed access to F. and
information about his personal circumstances relatively speedily,
less than six months after the child’s birth. In the
circumstances of the case, in which, as shown above, the applicant
was prevented from taking any further steps to assume responsibility
for F. against the legal parents’ will, the Court considers
that he sufficiently demonstrated his interest in F.
- In
view of the foregoing, the Court does not exclude that the
applicant’s intended relationship with F. fell within the ambit
of “family life” under Article 8. In any event, the
determination of the legal relations between the applicant and F. –
that is, whether the applicant had a right of access to F. and
information about his personal circumstances –, even if they
fell short of family life, concerned an important part of the
applicant’s identity and thus his “private life”
within the meaning of Article 8 § 1. The domestic courts’
decision to refuse him contact with and information about F. thus
interfered with his right to respect, at least, for his private life
(see, mutatis mutandis, Anayo, cited above, § 62).
(b) Whether the interference was justified
- Any
such interference with the right to respect for one’s private
life will constitute 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 that provision and can be regarded as
“necessary in a democratic society”.
- The
domestic courts’ decision to refuse the applicant access to and
information about F. was based on Article 1684, read in conjunction
with Article 1592, Article 1685 and Article 1686 of the Civil Code.
It was aimed at pursuing the best interest of a married couple, Mr
and Mrs H., and of the (then two) children who were born during their
marriage, who were living with them and whom they cared for, and was
therefore taken to protect their rights and freedoms.
- In
determining whether the interference was “necessary in a
democratic society”, the Court refers to the principles
established in its case law. It has to consider whether, in the
light of the case as a whole, the reasons adduced to justify that
interference were relevant and sufficient for the purposes of
paragraph 2 of Article 8 (see, inter alia, T.P. and K.M.
v. the United Kingdom [GC], no. 28945/95, § 70,
ECHR 2001 V (extracts), and Sommerfeld v. Germany [GC],
no. 31871/96, § 62, ECHR 2003 VIII (extracts)). It
cannot satisfactorily assess whether these reasons were “sufficient”
without at the same time determining whether the decision making
process, seen as a whole, was fair and provided the applicant with
the requisite protection of his interests safeguarded by Article 8
(see, inter alia, T.P. and K.M. v. the United Kingdom,
cited above, § 72, and Sommerfeld, cited above, §
66). Consideration of what lies in the best interest of the child
concerned is of paramount importance in every case of this kind (see,
inter alia, Yousef v. the Netherlands, no. 33711/96,
§ 73); depending on their nature and seriousness, the
child’s best interest may override that of the parents (see
Sommerfeld, cited above, § 66, and Görgülü
v. Germany, no. 74969/01, § 43, 26 February 2004).
- According
to the Court’s well-established case-law, it must further be
borne in mind that the national authorities have the benefit of
direct contact with all the persons concerned. It follows from these
considerations that the Court’s task is not to substitute
itself for the domestic authorities in the exercise of their
responsibilities regarding access issues or issues concerning
information about the child’s personal development, but rather
to review, in the light of the Convention, the decisions taken by
those authorities in the exercise of their power of appreciation
(see, inter alia, Hokkanen v. Finland, 23 September
1994, § 55, Series A no. 299 A; Görgülü,
cited above, § 41; and Sommerfeld, cited above, §
62). However, restrictions placed by the domestic authorities on
parental rights of access call for strict scrutiny as they entail the
danger that the family relations between a young child and a parent
will be effectively curtailed (see, inter alia, Elsholz v.
Germany [GC], no. 25735/94, §§ 48-49, ECHR 2000 VIII;
Sommerfeld, cited above, §§ 62-63; and Görgülü,
cited above, §§ 41-42). The above-mentioned principles must
apply also in a case like the present one, in which the refusal of
contact between a biological father and his child and the refusal of
information about the boy’s personal circumstances is
classified, at least, as an interference with “private life”
(see, mutatis mutandis, Anayo, cited above, § 66).
- In
the present case, the Court notes the domestic courts’ finding
that, even assuming that the applicant was F.’s biological
father, he did not fall within the group of persons who had a right
of access to F. and to information about the boy’s personal
circumstances. He was not F.’s legal father, or a person with
whom F. had close ties because there had never been a social and
family relationship between the two. As F. had lived with Mr and Mrs
H. since his birth, there had been no possibility for the applicant
to build up such a relationship with F. (see paragraphs 13-14, 16 18
and 24-27 above). The domestic courts thus refused the applicant
access to F. – assuming that he was F.’s father –
without examining whether contact between F. and him, in the
particular circumstances of the case, would be in F.’s best
interest. They further refused the applicant’s request at least
to be given information about F.’s personal development. There
again, the domestic courts took their decision without examining in
the particular circumstances of the case whether giving such
information would be in the child’s best interest (for
instance, in order to maintain at least a light bond with the
presumed biological father) or whether, at least in this regard, the
applicant’s interest had to be considered as overriding that of
the legal parents.
- In
determining whether the reasons given by the domestic courts for
refusing the applicant access to and information about F. were
“sufficient” for the purposes of paragraph 2 of Article 8
and the interference with the applicant’s private life thus
“necessary in a democratic society”, the Court refers,
first, to the findings in its judgment of 21 December 2010 in the
case of Anayo (cited above). That case concerned the refusal
of the German courts to grant Mr Anayo, who was indisputably the
biological father of twins who lived with their mother and her
husband, access to his children. The Court observed, in that
application, that the Court of Appeal, applying Articles 1684 and
1685 of the Civil Code, had refused the applicant access to his
children without giving any consideration to the question whether, in
the particular circumstances of the case, contact between the twins
and the applicant would be in the children’s best interest. The
domestic court had argued that the applicant did not fall within the
group of persons entitled to claim access as he was not the
children’s legal father, had not borne any responsibility for
them and thus had no social and family relationship with them. The
Court accordingly found that the domestic court had failed to fairly
balance the competing rights involved. As the reasons given by it for
refusing the applicant contact with his children had thus not been
“sufficient” for the purposes of paragraph 2 of Article
8, Article 8 had been violated (see ibid., §§ 67-73).
- The
Court further observes that the facts at issue in the present
application differ from those in the Anayo case mainly in so
far as the certainty of the respective applicants’ paternity is
concerned. It was uncontested in the Anayo case that the
applicant was the biological father of the children concerned. In the
present case, however, the mother of the boy F. acknowledged that the
applicant might be F.’s father, but claimed that so might her
husband, and it was not established by the domestic courts whether or
not the applicant was F.’s father.
- However,
the Court considers that, in the circumstances of the case, this
difference is not such as to distinguish the present application from
the Anayo case. In fact, it becomes clear from the domestic
courts’ reasoning that it was irrelevant for their decision
that the applicant was only presumably and not uncontestedly the
biological father of F. In reasoning their decisions, the domestic
courts assumed the applicant’s paternity for the purposes of
the proceedings (see paragraphs 13, 18 and 26). They rejected the
applicant’s request for contact with (and information about) F.
– as did the domestic courts in the Anayo case –
because the applicant was not F.’s legal father and there had
never been a social and family relationship between him and F. In
both cases, the reasons why the biological father had not previously
established a “social and family relationship” with the
children / child concerned had been irrelevant for the domestic
courts’ findings. The courts thus did not give any weight to
the fact that the respective applicants, for legal and practical
reasons, were unable to alter the relationship with the children /
child concerned (see Anayo, cited above, §§ 67, 69
and paragraphs 14, 17-18 and 26 above).
- The
Court would reiterate in that connection that it is for the domestic
courts, who have the benefit of direct contact with all the persons
concerned, to exercise their power of appreciation in determining
whether or not contacts between a biological father and his child are
in the latter’s best interest. It has further noted the
Government’s argument, by reference to the comparative law
analysis and the general psychological expert report of expert K.
they had submitted to the Court, that the German legislation applied
by the courts in the present case was in the best interest of the
children concerned. They had further argued that always giving an
existing legal family precedence over biological fathers’
rights guaranteed stability, whereas examining the child’s best
interest in the particular circumstances of the case brought the
burden of the proceedings to bear on the legal family (see paragraph
75 above).
- The
Court cannot but confirm, however, its approach taken in the Anayo
judgment (cited above, §§ 67-73), as well as in the case of
Zaunegger v. Germany (no. 22028/04, §§ 44 et seq., 3
December 2009, which concerned the general exclusion from judicial
review of the attribution of sole custody to the mother of a child
born out of wedlock; the domestic courts, applying the relevant
provisions of the Civil Code, also considered parental rights of a
father prima facie not to be in the child’s best
interest, without further examination on the merits). Having regard
to the realities of family life in the 21st century,
revealed, inter alia, in the context of its own comparative
law research (see paragraphs 38-46 above), the Court is not convinced
that the best interest of children living with their legal father but
having a different biological father can be truly determined by a
general legal assumption. Consideration of what lies in the best
interest of the child concerned is, however, of paramount importance
in every case of this kind (see paragraph 93 above). Having regard to
the great variety of family situations possibly concerned, the Court
therefore considers that a fair balancing of the rights of all
persons involved necessitates an examination of the particular
circumstances of the case. It further had regard to the Government’s
argument that this approach involved proceedings which placed a
burden on the legal family (see paragraph 75 above). The Court notes,
however, that proceedings requesting access to children may be and
are in practice already currently instituted by biological fathers.
- Having
regard to the foregoing, the Court further concludes that the
Government’s objection that the applicant, by failing to
institute separate paternity proceedings, did not exhaust domestic
remedies in relation to his complaint that the domestic courts failed
to establish his paternity of F. must be rejected for the following
reasons.
- The
Court is not convinced that separate paternity proceedings were an
effective remedy the applicant had to exhaust in the access and
information proceedings here at issue. Not only were such proceedings
bound to fail on the basis of the existing domestic law, the
applicant having no right to contest Mr H.’s paternity as the
latter was living with F. (Article 1600 § 2 of the Civil
Code, see paragraph 37 above), but they are aimed at obtaining status
as a child’s legal parent and terminating another man’s
legal paternity, and must therefore be considered to have a
fundamentally different and more far-reaching objective than the mere
establishment of biological paternity for the purposes of having
contact with the child concerned and information about that child’s
development.
- The
Court notes in this connection the Government’s argument that
there was a danger of abuse in allowing every man alleging to be the
father of a child born in wedlock to request to have his paternity
established (see paragraph 70 above). It does not consider, however,
that its finding that the domestic courts failed to examine, in the
particular circumstances of the case, whether contacts between F. and
the applicant would have been in F.’s best interest would have
led to such a result. The question of establishment, in access
proceedings, of biological – as opposed to legal –
paternity will only arise if, in the special circumstances of the
case, contacts between the alleged biological father –
presuming that he is in fact the child’s biological parent –
and the child are considered to be in the child’s best
interest.
- Having
regard to the foregoing, the Court, referring, mutatis mutandis,
to the detailed reasoning in its judgment in the case of Anayo
(§§ 67-73), therefore considers that the domestic
courts did not fairly balance the competing interests involved in the
decision-making process and thus failed to provide the applicant with
the requisite protection of his interests safeguarded by Article 8.
They failed to give any consideration to the question whether, in the
particular circumstances of the case, contact between F. and the
applicant would be in F.’s best interest. They further did not
examine whether, in the particular circumstances of the case,
allowing the applicant’s request to be given at least
information about F.’s personal development would be in the
child’s best interest or whether, at least in this regard, the
applicant’s interest should have been considered as overriding
that of the legal parents. They thus did not give sufficient reasons
to justify their interference for the purposes of paragraph 2 of
Article 8. The interference with the applicant’s right to
respect for his private life was therefore not “necessary in a
democratic society”.
- There
has accordingly been a violation of Article 8 of the Convention.
II. COMPLAINT CONCERNING DISCRIMINATION
- The
applicant further complained that the domestic
courts’ decisions discriminated against him in his right of
access and information compared to fathers of children born in or out
of wedlock, mothers, grandparents and siblings. He relied on Article
8, read in conjunction with Article 14 of the Convention; the latter
provides:
“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
Government contested that argument.
- The
Court refers to its above findings that the applicant’s rights
under Article 8 were violated. The domestic courts failed to give any
consideration to the question whether, in the particular
circumstances of the case, contact between F. and the applicant was
in F.’s best interest. They further failed to examine whether
allowing the applicant’s request at least to be given
information about F.’s personal development was in the child’s
best interest or in the applicant’s overriding interest. The
interference with the applicant’s right to respect for his
private life was therefore not “necessary in a democratic
society” (see paragraphs 91-105 above). Having regard to this
conclusion, it does not consider it necessary to determine whether
the domestic courts’ decisions thereby discriminated against
the applicant in breach of Article 8 read in conjunction with Article
14 of the Convention.
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 not less than 25,000 euros
(EUR) in respect of non-pecuniary damage. He had suffered distress as
a result of the domestic courts’ refusal of any contacts with
his son or information about his development.
- The
Government took the view that there was no room for an award in
respect of non-pecuniary damage as it had not been proven that the
applicant was F.’s father. In any event, the applicant’s
claim was excessive.
- The
Court considers that the domestic courts’ decision not to grant
the applicant access to F. and information about his development
without examining the question whether, in the particular
circumstances of the case, such contact was in F.’s best
interest or in the applicant’s overriding interest must have
caused the applicant some distress which is not adequately
compensated by the finding of a violation alone. Making an assessment
on an equitable basis, it therefore awards the applicant EUR 5,000,
plus any tax that may be chargeable, under this head.
B. Costs and expenses
- Submitting
documentary evidence (including all bills and agreements as to the
fees), the applicant also claimed a total of
EUR 12,354.39 (including VAT) for the costs and expenses
incurred, including EUR 6,387.18 for the costs and expenses before
the domestic courts (Fulda District Court, Frankfurt am Main Court of
Appeal and Federal Constitutional Court) and EUR 4,279.89 for those
incurred before the Court (that is, a total of EUR 10,667.07).
- The
Government argued that it was not in a position to examine, on the
basis of the documents submitted by the applicant, whether the costs
and expenses claimed by the applicant had been necessarily incurred
and were reasonable as to quantum.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above
criteria, the Court finds that the costs and expenses for the
proceedings before the domestic courts were aimed at redressing the
breach of the applicant’s rights under Article 8. Having regard
also to the documents submitted by the applicant, it considers it
reasonable to award the sum of EUR 10,000 (including VAT) covering
costs and expenses under all heads, plus any tax that may be
chargeable to the applicant.
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
- Joins to the merits the objection of
non-exhaustion raised by the Government in relation to the
applicant’s failure to institute separate paternity proceedings
and rejects it;
- Declares the application
admissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that there is no need to examine the
complaint under Article 8, read in conjunction with Article 14 of the
Convention;
- 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,
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
10,000 (ten thousand euros), including VAT, 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 amounts 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 15 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
