AS TO THE ADMISSIBILITY OF
Application No. 13226/87
by Frank EDWARDS
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 13 October 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 31 July 1987
by Frank Edwards against the Federal Republic of Germany and registered
on 16 September 1987 under file No. 13226/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born in 1939 in Aruba/
Netherlands Antilles.
It follows from his statements and the documents submitted by
him that he is the father of a boy, Oliver Martin S., who was born out
of wedlock on 2 February 1974 in Berlin.
There was apparently no contact between the applicant and his
son. The District Court (Amtsgericht) Neukölln in Berlin informed the
applicant by letter of 20 December 1982 that he had no right to visit
his son under the applicable Dutch law and even if German law were
applicable access could only be granted with the mother's consent.
The mother, Mrs. S., had, however, refused to allow the applicant to
visit his son and the Youth Office was likewise of the opinion that
contacts with the father could be detrimental to the child's
development. The applicant was asked whether nevertheless he wished
to maintain his request for an order granting him access to his son
but he apparently did not pursue the matter. Previously on 6 July 1961
the applicant had accepted to pay maintenance for the child.
By letter of 6 December 1985 the applicant was informed by the
Youth Office (Jugendamt) Neukölln in Berlin that the present husband
of Mrs. S had submitted a written request for the adoption of Oliver Martin.
The applicant was further informed that in case the adoption was approved
he would no longer be obliged to pay maintenance. It appears that the
mother had already prior to this letter refused to accept the applicant's
maintenance payments.
In the Youth Office letter of 6 December 1985 reference was
also made to Sections 1741 et seq. of the Civil Code (Bürgerliches
Gesetzbuch - BGB) governing adoption. (See below "Relevant domestic
law".)
In particular the Youth Office stated that in accordance with
Section 51 b of the Youth Welfare Act (Jugendwohlfahrtsgesetz - JWG)
it had to inform the applicant that under Section 1747 BGB the father
had to be heard and should renounce adopting the child himself or
having it declared legitimate. It was added that the applicant could
make the corresponding declaration at the Youth Office.
The applicant replied on 26 January 1986 contesting the Youth
Office's competence in the matter and stating that he was not
"enthusiastic" about their letter and not prepared to accept such
treatment. He added that he would continue paying maintenance for his
son.
The applicant then tried to obtain a decision through a
Netherlands court granting him a right to visit his son. By
order of 26 November 1986 the Regional Court (Arrondissementsrechtbank,
Kinderrechter) of The Hague stated that it was not competent in the
matter.
The applicant then wrote to the District Court Neukölln in
Berlin which replied on 23 February 1987 that Oliver Martin S. had
been adopted in accordance with an adoption order of 28 October 1986.
Consequently, there no longer existed any legal relationship between
the applicant and the child.
By letter of 23 April 1987 the District Court informed the
applicant that according to Section 1758 BGB the adoption order was
not to be made known to third persons.
Relevant domestic law
Under Section 1741 (1) BGB the adoption of a child is
admissible if it is in the interest of the well-being of the child and
if it can be expected that parent-child relations will develop between
the person adopting and the child. Paragraph 3 provides that an
illegitimate child can be adopted by his/her father or mother.
As regards the adoption of an illegitimate child Section 1747
para. 2, BGB provides:
(German)
"Zur Annahme eines nichtehelichen Kindes ist
die Einwilligung der Mutter erforderlich. Die Annahme eines
nichtehelichen Kindes durch Dritte ist nicht auszusprechen,
wenn der Vater die Ehelicherklärung oder die Annahme des
Kindes beantragt hat; dies gilt nicht, wenn die Mutter ihr
nichteheliches Kind annimmt. Der Vater des nichtehelichen
Kindes kann darauf verzichten, diesen Antrag zu stellen.
Die Verzichtserklärung bedarf der öffentlichen Beurkundung;
sie ist unwiderruflich."
(English translation)
"The adoption of an illegitimate child requires
the approval of the mother. The adoption of an
illegitimate child by third persons shall not be
pronounced if the father has made a request for the
declaration of legitimacy or the adoption of the child;
this shall not apply when the mother adopts her child
born out of wedlock. The father may renounce submitting
such a request. His declaration of renunciation has to
be drawn up in an official document; it is irrevocable."
According to Section 51 b JWG the father of an illegitimate
child has to be advised by the Youth Office about his rights under
Section 1747, para. 2, second and third sentences, BGB when a request
is made by a third person for the adoption of the child. The father
has to be informed about his rights before decisive measures are taken
in the adoption proceedings.
Section 56 e of the Act on Non-Contentious Jurisdiction
(Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit -
FGG) provides that an adoption order cannot be challenged. Otherwise
an order given by the first instance court in non-contentious
proceedings can be challenged by any person whose rights are affected
by it (Sections 19, 20 FGG).
Under Sections 1723, 1726 BGB an illegitimate child, who is a
minor, can be declared legitimate at his/her father's request and with
the mother's approval.
COMPLAINTS
The applicant complains that without his consent his son was
adopted by the mother's present husband. He also complains that he was
not informed about the reasons stated in the adoption order and that
he had no possibility of challenging this order. He invokes Articles
6, 8 and 13 of the Convention.
THE LAW
The applicant has complained that his son, who was born out of
wedlock and is living with his mother, was adopted without the
applicant's consent by the mother's present husband. The applicant
complains that he had no remedy against the adoption order.
It is true that Article 8 para. 1 (Art. 8-1) of the Convention
secures to everyone the right to protection of his private and family
life.
Even assuming that domestic remedies were exhausted and that
the adoption without the applicant's consent constitutes an
interference with the right to respect for his private and family life
under Article 8 para. 1 (Art. 8-1) of the Convention, the Commission
first notes that according to the applicant's own submissions he
apparently never lived together with his son and the son's mother and
the latter refused his request, made in 1981, to be allowed to visit
his son.
The Commission further recalls that the regulation of the
German law attributing to the mother of a child born out of wedlock
the exclusive right of care and custody is in itself compatible with
the Convention (No. 9639/82, Dec. 15.3.84, D.R. 36, 130).
It is a normal consequence of this regulation that the
adoption of such a child by a third person is possible with only the
consent of the mother. The father's interests are sufficiently taken
care of by the possibility of his making a request for the child's
adoption or for an order of legitimacy. The Commission notes that
under Section 51 b of the Youth Welfare Act the father must be
informed of these rights in case a third person wishes to adopt the
child. In the present case the applicant was requested by the Youth
Office to renounce these rights. He was thus at least incidentally
informed of the existence of these rights but did not avail himself
of the possibility they offered to him for establishing close family
links with his son. The applicant limited himself to informing the
Youth Office that he did not accept the measures taken and that he
was prepared to continue to pay maintenance.
The applicant's illegitimate son who has lived with his mother
for nearly fifteen years was adopted in accordance with German law by
his mother's present husband. There is nothing to show that this
solution was not in the best interest of the child. The interference
with the applicant's right under Article 8 para. 1 (Art. 8-1) of the
Convention was therefore justified under paragraph 2 (Art. 8-2) of
this provision.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains that he had no possibility of
challenging the adoption order and therefore had no effective remedy
within the meaning of Article 13 (Art. 13) of the Convention. Under
the case-law of the European Court of Human Rights Article 13 (Art.
13) secures such a right to anyone claiming on arguable grounds to be
the victim of a violation of his rights and freedoms as protected in
the Convention (case of Plattform "Ärzte für das Leben", judgment of
21.6.1988, Series A no. 139, para. 25).
While a complaint that has been found inadmissible as being
manifestly ill-founded may nevertheless be considered arguable (loc.
cit., para. 27), the Commission notes in the present case that the
applicant did not have any contacts with his son. He did not pursue
or repeat his request made in 1982 to be granted a right to visit his
son after he was told by the competent court in December 1982 that the
mother was opposed to contacts between him and the child. Furthermore,
the applicant has not shown that, despite the lack of contact, any close
relationship had developed between him and his son. As pointed out
above, there is also nothing to show that the adoption of Oliver
Martin S. is not in the best interest of the child. Taking into
account all the circumstances of the case, the Commission cannot find
that the applicant has an arguable claim of a violation of his right
guaranteed by Article 8 (Art. 8) of the Convention. Consequently
Article 13 (Art. 13) does not apply in the present case. This part of
the application therefore has to be rejected as being incompatible
with the Convention ratione materiae within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
3. The Commission finds no issue under Article 6 (Art. 6) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the European Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)