FIFTH SECTION

CASE OF ADAM v. GERMANY

(Application no. 44036/02)

JUDGMENT

STRASBOURG 

4 December 2008

FINAL

04/03/2009

This judgment may be subject to editorial revision.

In the case of Adam v. Germany,

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

Peer Lorenzen, President,
Rait Maruste,
Volodymyr Butkevych,
Renate Jaeger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Regstrar,

Having deliberated in private on 13 November 2008,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

1. The case originated in an application (no. 44036/02) 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 three German nationals, Mr Eberhard Adam,
Mrs Hiltrud Adam and Mr Henri Adam (“the applicants”),
on 7 December 2002.

2. The applicants were represented by Mr C. Rummel until
10 January 2008 and thereafter by Mr I. Alberti, lawyers practising in Munich and Delbrück respectively. The German Government
(“the Government”) were represented by their Agent,
Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

3. On 21 June 2007 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. Mr Henri Adam was born in 1968 and lives in Berlin.
Mrs Hiltrud Adam and Mr Eberhard Adam were born in 1940 and live in Güstrow.

A. Factual background

5. The first applicant is the father of a son (C.), born out of wedlock on 20 March 1995. The second and third applicants are C.’s paternal grandparents. The second and third applicants were the child’s main carers during the first three years of his life because his mother (S.) was working full-time. In February 1998 the first applicant and S. separated.
From January 1999 onwards C. remained with his mother, who had custody of him.

B. Proceedings relating to the first applicant’s access rights

1. First set of proceedings (nos. 75 F 131/99 and 72 F 86/01)

6. On 15 April 1999, following problems in obtaining access to his son, the first applicant applied to the Güstrow District Court for access to C.

7. On 9 June 1999 the parents agreed before the District Court that the first applicant should have contact with C. for a trial period of four months on those Sundays on which S. had to work. In view of the difficult relationship between S. and C.’s grandparents, the latter were to be allowed to attend C.’s visits only from the third Sunday onwards for one hour.

8. On 29 September 1999 the District Court provisionally decided that pending the next hearing (on 8 December 1999) the first applicant would be entitled to have contact with his son on 31 October 1999 and once in November. His grandparents would be excluded from those visits. The first applicant failed to comply with that decision as he brought C. to see his grandparents during his first visit. The second contact visit did not take place.

9. On 1 October 1999 the first applicant lodged a hierarchical complaint (Dienstaufsichtsbeschwerde) against the sitting judge of the District Court, which was rejected by the Rostock Court of Appeal on 29 November 1999.

10. On 8 December 1999 the District Court granted the first applicant accompanied access (begleiteter Umgang) to C. for two hours on Fridays with the assistance of the Güstrow Youth Office. C.’s grandparents were not allowed to attend those visits.

11. On 3 February 2000 the first applicant appealed to the
Rostock Court of Appeal.

12. On 24 October 2000 the parents provisionally agreed that pending the next hearing (on 9 January 2001) three further accompanied visits should take place on the premises of the Youth Office.

13. On 9 January 2001 the Court of Appeal heard evidence from the parents and a representative of the Youth Office.

14. On 23 January 2001 it quashed the District Court’s decision and remitted the case to that court for fresh consideration.

15. Following the remittal to the District Court, the court files
(initially no. 75 F 131/99) were given a new file number (no. 72 F 86/01).

16. On 7 March 2001 the District Court heard evidence from C.,
who stated that he could imagine meeting his father even without the presence of the Youth Office representative.

17. On 25 April 2001 the parents agreed that for a transitional period of six months the first applicant should have the right to take C. home one Saturday afternoon per month. Again, C.’s grandparents were excluded. Visits took place in accordance with that decision until July 2001,
when C. refused to see his father any longer.

18. On 19 September 2001 and on subsequent occasions the applicant requested the District Court to schedule a new hearing.

19. On 18 February 2002 the District Court heard evidence from C.,
who confirmed that he did not wish to see his father any longer as his mother had told him not to visit him.

20. On 11 April 2002 the District Court granted the first applicant the right to take his son home every second Saturday until July 2002. As from September 2002 he would have the right to take C. home every second weekend. Given the considerable tensions between the second and third applicants and the child’s mother and their firm refusal to communicate with each other, the grandparents would have no right to attend those visits, in order not to jeopardise the first applicant’s access rights. Referring to the reports of the guardian ad litem and the Youth Office, the District Court found that contact with his father would be in the child’s best interest and that C.’s unwillingness to see his father had been the result of S.’s influence.

21. On 10 May 2002 S. lodged a complaint before the Court of Appeal.

22. On 20 August 2002 the parents reached an interim agreement before that court whereby the father would have three further contact visits with C. before the next hearing scheduled for 22 October 2002. Only one of those visits took place.

23. On 22 October 2002 the Court of Appeal heard evidence from the parents, two representatives of the Youth Office and the guardian ad litem. On 5 November 2002 it heard evidence from C. who, without giving any reasons, insisted that he did not wish to see his father any longer.

24. On 3 December 2002 the Court of Appeal ordered a psychological expert report on the question of access. On 5 March 2003 the expert gave his report.

25. On 1 July 2003 the Court of Appeal held an oral hearing during which it gave leave to a new counsel to represent the applicant.

26. On 25 July 2003 the Court of Appeal amended the
District Court’s decision (of 11 April 2002) and granted the first applicant access to his son every second Saturday of the month from
13 September 2003 onwards in order to re-establish the mutual trust between father and son. From 12 December 2003 the first applicant would be entitled to access to C. every second weekend from Friday afternoon until Sunday evening. In view of the considerable tensions between S. and C.’s grandparents, those visits would take place in the absence of the latter. Moreover, the Court of Appeal withdrew S.’s custody rights in so far as they concerned C.’s access to his father and transferred them to the
Youth Office. The Court of Appeal argued that S. had placed undue strain on her son by leaving it to him to decide whether he wished to see his father or not and that she had failed to fulfil her duty to promote C.’s contacts with his father.

2. Second set of proceedings (no. 72 F 429/03)

27. At S.’s request, on 9 June 2004 the District Court stayed execution of the Court of Appeal’s decision (of 25 July 2003) until 30 June 2005 and restored her custody rights. It also suspended contact visits between the first applicant and his son. The District Court argued that granting the applicant access to his son against the latter’s clearly expressed wishes would pose a serious threat to the child’s mental well-being. The District Court advised both parents to undergo family therapy.

 28. The first applicant has not informed the Court about the further progress of the proceedings.

3. Compensation proceedings

29. On 18 May 2002 the first applicant requested the District Court to grant him compensation for the damage caused by the length and alleged unfairness of the proceedings. On 16 August 2002 the President of the Court of Appeal, who was responsible for dealing with compensation claims, dismissed the applicant’s claim.

C. Proceedings relating to the second and third applicants’ access rights

1. First set of proceedings (no. 71 F 235/99)

30. Since S. was preventing the child’s grandparents from having access to C., they lodged a request with the District Court on 29 July 1999 to determine their access rights.

31. On 13 October 2000 the District Court, after obtaining a psychological expert report and hearing evidence from the parties and C., granted the applicants the right to see their grandchild every second and fourth Wednesday of the month in the afternoon.

32. On 12 December 2000, at S.’s request, the Court of Appeal adopted an interim measure staying execution of the District Court’s decision.

33. On 19 February 2001 the second and third applicants withdrew their request for access to C.

2. Second set of proceedings (no. 72 F 209/01)

34. On 26 April 2001 the grandparents lodged a second request for access to C. with the Güstrow District Court.

35. On 3 September 2001 the District Court appointed a guardian
ad litem for C.

36. Following a request from the applicants’ legal counsel during the hearing held on 27 March 2002, the District Court adjourned the proceedings until a decision had been taken by the District Court in the first applicant’s access proceedings (no. 72 F 86/01).

37. On 11 February 2003 the applicants requested the District Court to resume their proceedings.

38. During the oral hearing of 5 November 2003 the District Court gave leave to two new counsels to represent the applicants. It also heard evidence from the parties, the guardian ad litem and a representative of the
Youth Office and announced that it would schedule a further hearing.

39. On 16 December 2003 the applicants requested the District Court to schedule a hearing. On 23 December 2003 the District Court informed them that it would schedule the hearing as soon as the Court of Appeal had returned the court files.

40. On 5 January 2004 the District Court heard evidence from C.,
who insisted that he did not wish to see his grandparents.

41. On 20 March 2004, in the framework of an extrajudicial mediation procedure in which the parties had been participating since the end of 2003, the applicants met C. and his mother. However, C. refused to join his mother and his grandparents, stating that he did not wish to see the latter.

42. On 18 February 2004 the District Court heard evidence from the parties and announced a decision for 31 March 2004.

43. Between 25 March 2004 and 19 May 2004 the applicants and the Youth Office several times announced to the court that an agreement with S. was imminent. The District Court therefore cancelled the hearing scheduled for 31 March 2004.

44. On 19 May 2004 the District Court held a further hearing with the parties and the guardian ad litem.

45. On 9 June 2004 the District Court dismissed the applicants’ request to be granted access to C. Referring to the persistent quarrel between both applicants and S. and their inability to communicate with each other,
the court concluded that it would be contrary to the child’s well-being if it obliged him to see his grandparents against his firm wishes.

46. The applicants appealed that decision.

47. On 18 January 2005, after holding a hearing, the Court of Appeal advised the parties to undergo family therapy and decided that it would schedule a further hearing at the parties’ request.

48. The applicants, S. and C. underwent family therapy from
18 January 2005 until 24 July 2006. Nevertheless, the relationship between the applicants, C. and S. has not improved.

49. On 27 December 2007 the grandparents therefore requested the Court of Appeal to resume the proceedings and to schedule a further hearing.

50. On 18 March 2008 the Court of Appeal heard evidence from the applicants, the guardian ad litem, the representative of the Youth Office and the child, who again confirmed that he was not interested in contact with his grandparents. He insisted that it had been his own rather than
his mother’s wish not to see his grandparents.

51. On 11 April 2008 the Court of Appeal heard evidence from S.

52. On 14 May 2008 the Rostock Court of Appeal dismissed the applicants’ appeal against the District Court’s decision of 9 June 2004 and confirmed the District Court’s findings that contact with his grandparents would be contrary to the child’s well-being. It found that the relationship between the applicants and C.’s mother had been characterised by insurmountable quarrels and untenable accusations made by the applicants against S. There were no signs that S., who had even attempted to improve her relationship with the applicants in a mediation procedure,
had manipulated her son.

II. RELEVANT DOMESTIC LAW

53. Proceedings in family matters are governed by the Non‑Contentious Proceedings Act (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit).

54. According to section 52 of the Act the court, in proceedings concerning a child, must seek to establish agreement between the parties as soon as possible and at any stage of the proceedings. The court hears evidence from the parties as soon as possible and informs them about the options for family counselling in order to develop a consensual approach to exercising custody and parental responsibilities. To the extent that there is no risk of a delay which is