Communicated on 27 May 2014
FIFTH SECTION
Application no. 20106/13
Lucian BUCHLEITHER
against Germany
lodged on 11 March 2013
STATEMENT OF FACTS
1. The applicant, Mr Lucian Buchleither, is a German national, who was born in 1965 and lives in Rastatt. He is represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
3. The applicant is the father of a daughter, H., born on 29 June 2003. The applicant and the child’s mother, who were not married, separated shortly after the child’s birth. The child lives with her mother, who has sole parental authority.
4. Since the end of 2003, the parents argue about the applicant’s contact rights. In April 2004, the applicant lodged a first request to be granted contact rights with the family courts. During a court hearing in June 2004 the parents agreed to institute supervised contacts which took place until October 2004. On 8 December 2005 the parents reached a fresh agreement on supervised contacts which was approved by the family courts.
5. On 21 February 2005 the father requested the Family Court to replace the supervising Youth Office, which had refused to continue its task due to both parties’ behaviour, by another child protection agency. On 11 July 2005 the Family Court granted the request. By letter of 21 October 2005 the child protection agency refused the commission because of the mother’s behaviour.
6. On 28 October 2005 the applicant requested the Family Court to withdraw parental authority from the mother and to transfer it to him. On 12 July 2007 the family court, having heard expert opinion, refused the request.
7. Also on 28 October 2005 the applicant requested the Family Court to impose a coercive fine on the mother in order to enforce contact rights. Subsequently, several contacts took place in 2006. On 17 May 2006 the parents agreed on a court-approved contact arrangement which was implemented in a more or less regular way until the summer of 2008.
8. On 18 September 2006 the Family Court, upon the applicant’s request, ordered custodianship for the implementation of access (access custodianship, Umgangspflegschaft). The order was subject to a time-limit expiring on 31 December 2006.
9. On 8 May 2007 the applicant requested an extension of contact rights, fresh appointment of an access custodian and the imposition of a coercive fine. In reply, the mother requested the family court to suspend contact rights for two years. On 22 December 2007 the family court, having heard fresh expert opinion, suspended contact rights until 31 December 2009. The applicant’s constitutional complaint (no. 2084/09) was to no avail.
2. The proceedings at issue
(a) Interim proceedings
10. On 22 January 2010 the applicant requested an extension of contact rights following the lapse of the suspension period. On 12 April 2010 the Family Court Neustadt/Weinstraβe, having heard the child in person, granted the applicant contact rights on a fortnightly basis. The contacts did not take place.
11. On 2 September 2010 the Family Court, upon the mother’s request, having once again heard the child, suspended the applicant’s contact rights until the termination of the main proceedings and rejected his requests for the imposition of coercive fines.
(b) Main proceedings
12. On 15 April 2011 the Family Court, having heard both parties, the child and the child’s curator ad litem, and relying on expert opinion submitted both in writing and orally by the psychiatrist Dr B., granted the applicant contact rights for two hours every fortnight. The Family Court commissioned a curator who was given specific directions as to how the child should be prepared for contacts and how the meetings should be organised.
13. The mother lodged an appeal and requested the Family Court of Appeal to reject the applicant’s request. She submitted that the child had developed an aversion against her father, who had, in the past, failed to take into account her own wishes and interests. Her wish not to see her father should be respected.
14. In reply, the applicant pursued his request for contact rights and furthermore requested the Family Court of Appeal to order the mother to supply regular information on the child’s development.
15. On 19 October 2012 the Zweibrücken Court of Appeal, having heard the parents, the curator and the child and having obtained fresh written and oral submissions by the expert Dr B., rejected the applicant’s request and suspended all contacts between the applicant and his daughter.
16. The Court of Appeal observed, at the outset, that the court-approved agreement on access rights dated 17 May 2006 (see paragraph 7, above) was still valid. It considered, however, that contact rights had to be permanently suspended because the ordering of contact rights would jeopardise the child’s welfare. The court noted that the child had not had any contact with her father for four years, and that the latter had become a stranger to her. This had been confirmed, in particular, by the court-appointed expert. When heard by the court, the child had clearly stated that she did not want to go to her father. She had only limited, unfavourable memories of him. H., who appeared to have developed appropriately in relation to her age, made the impression of knowing what was at stake and what she wanted. In spite of her young age, she had clearly and firmly expressed her desire that her own wishes be respected and that she would not be forced to do something she did not want. The curator submitted that he had not succeeded to break through the child’s aversion against her father. According to him, H. had cried and left the room when he had started talking about her father.
17. The Court of Appeal considered that the child’s attitude was induced by the loyalty she felt towards her mother, who had continuously expressed her own rejection of the father. H. felt under the obligation to feel the same way as her mother did. She craved that the conflicts between her parents would come to an end and that she was no longer exposed to the conflict of loyalties. She saw the rejection of her father as the only way to preserve at least her mother’s love. Relying on the expert’s findings, the Family Court further considered that the child was mature enough to take a deliberate decision and to be aware of the consequences thereof.
18. Relying on the assessment made by the court-appointed expert, the Court of Appeal considered that H. had “intuitively” taken the right decision. H. found herself in a psychological dilemma which was caused by the troubled communication between her parents, without having yet developed a post-traumatic stress disorder. On the one hand, the loss of contact to a parent generally led to a disturbance of the psychological development, which jeopardised the child’s welfare. On the other hand, forced contact in the context of perpetuate conflicts between the parents would also seriously jeopardise the child’s welfare.
19. The Court of Appeal noted that the expert, in his opinion submitted to the first instance court, had explained that contacts with her father as such did not jeopardise the child’s welfare. However, the expert considered it necessary to prepare the parents by improving their communication before re-instituting contacts. The Family Court’s decision failed to take this “prerequisite” into account. The parents had not undertaken any steps in this direction. The expert, when heard by the Court of Appeal on 6 September 2012, had clarified that, if the parents did not change their way of communication, which would necessitate expert support, at least in the form of mediation, it would cause more harm to attempt to institute further contacts than to exclude contacts altogether.
20. Against the background of the parents’ previous conduct both in and outside the courtroom, the Court of Appeal ruled out the possibility that they would be able successfully to have recourse to mediation in the foreseeable future. Under these circumstances, the only available option was to exclude the applicant from contacts. It was not possible to solve the child’s dilemma by specifying the modalities of access rights or by appointing an access custodian.
21. The Court of Appeal further considered that it was up to the mother to overcome her aversions against the applicant, and up to the father to learn that contacts could only be re-instituted by patience, restraint and understanding both of the mother’s and of the child’s feelings. It could furthermore not be ruled out that H., with advancing age and maturity, would be able to detach herself from her parents’ conflicts, and to seek contact with her father on her own motion. The present decision did not rule out these options.
22. The Court of Appeal considered that the applicant’s request for information about the child’s development did not form the subject matter of the instant proceedings. Given the parents’ quarrelling, it did not appear appropriate to allow this fresh request at the stage of the appeal proceedings.
23. On 6 February 2013 the Federal Constitutional Court (no. 1 BvR 4/13) refused to entertain the applicant’s constitutional complaint against the decisions taken in the main proceedings. This decision was served on the applicant’s counsel on 14 February 2013.
3. Further developments
24. On 7 March 2013 the applicant requested the mother to provide information about the child’s development. The mother complied in a very brief way by e-mails dated 14 March und 8 July 2013.
B. Relevant domestic law
25. Section 1684 of the German Civil Code provides:
Contact of the child with its parents
(1) The child has the right to contact with each parent; each parent has a duty and a right of contact with the child.
(2) The parents must refrain from everything that renders more difficult the relationship of the child to the other parent or the upbringing. Similar provisions apply if the child is in the charge of another person.
(3) The family court may decide on the scope of the right of contact and make more detailed provisions on its exercise, including provisions affecting third parties. It may enjoin the parties by orders to fulfil the duty defined in subsection (2). If the obligation in accordance with subsection (2) is considerably violated permanently or repeatedly, the family court may also order custodianship for the implementation of access (access custodianship). Access custodianship includes the right to demand surrender of the child to implement access and to determine where the child is to be for the duration of access. The order is to be time-limited. Section 277 of the Act on the Procedure in Family Matters and in Matters of Non-contentious Jurisdiction applies with the necessary modifications to compensation for expenditure and remuneration of the access custodian.
(4) The family court may restrict or exclude the right of contact or the enforcement of earlier decisions on the right of contact, to the extent that this is necessary for the best interests of the child. A decision that restricts the right of contact or its enforcement for a long period or permanently may only be made if otherwise the best interests of the child would be endangered. The family court may in particular order that contact may take place only if a third party who is prepared to cooperate is present. The third party may also be an agency of the youth welfare service or an association; the latter then determines in each case which individual carries out the task.
COMPLAINTS
The applicant complains under Articles 8 and 6 of the Convention about the suspension of access rights. The applicant submits, in particular, that the suspension of access rights, which was not subject to a time-limit, was not in line with the Court’s case-law (the applicant referred to the Court decisions in the cases of Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003, Tsikakis v. Germany, no. 1521/06, 10 February 2011; and Heidemann v. Germany (dec.), no. 9732/10, 17 May 2011). The conclusions drawn by the Court of Appeal were not supported by the expert opinion submitted by Dr B. The Court of Appeal had failed properly to examine whether the refusal of contacts was based on the child’s autonomous decision, furthermore, there was no sufficient indication that contacts between the applicant and his daughter as such would jeopardise the child’s welfare. Furthermore, the Court of Appeal had failed to consider the possibility of imposing coercive measures on the mother or of ordering therapeutic measures for the child in order to allow for contacts.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention?
2. Does the fact that the Zweibrücken Court of Appeal, in its decision given on 19 October 2012, did not subject the suspension of the applicant’s contact rights to a time-limit, signify that such rights were permanently excluded? If not, under which circumstances would the applicant be allowed to lodge a fresh request to be granted contact rights?
3. What kind of measures (coercive or otherwise) could the domestic courts have imposed on the child’s mother in order to allow for contacts between the applicant and his daughter?
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