AS TO THE ADMISSIBILITY OF
Application No. 19741/92
by H. and B. M.
against Germany
The European Commission of Human Rights (First Chamber)
sitting in private on 6 April 1994, the following members being
present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 21 February
1992 by H. and B. M. against Germany and registered on 23 March
1992 under file No. 19741/92;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, father and daughter, are German citizens,
born in 1940 and 1985 respectively and living in Stuttgart. The
first applicant is representing his daughter and he himself is
represented by Mr. C.H. Rumpf, lawyer practising in Mannheim.
The applicants complained that after the divorce of the
first applicant the right of care and custody over the second
applicant was granted by the competent German tribunals to the
mother.
It follows from the applicants' statements and the documents
submitted that the first applicant's marriage was dissolved by
divorce judgment given on 5 July 1990 by the District Court
(Amtsgericht) Waiblingen. By the same decision the court
attributed the right to care and custody over the divorced
couple's daughter to her mother.
The court stated in respect of the latter decision that both
parents were suited to take care of the upbringing of the child
as both loved the child and had a good relationship with her.
However, no agreement could be reached between the parties and
the court considered that on account of the still existing
tensions between them that it was too early for a common exercise
of the right to care and custody, although this would have been
the best solution and should be the aim of the parents. For the
time being it appeared in the best interests of the child if the
mother exercised the right to care and custody alone. The court
stated in this context that the mother appeared more reasonable
and cooperative than the father as she had agreed to leave the
child provisionally with the father while the father on his side
seemed to be opposed to leave the child with the mother although
it was the child's wish to have unrestricted contacts with both
parents.
The court also stressed that it was convinced that the
mother would not try to disturb or hinder the father's right to
visit the daughter.
The court pointed out that during the divorce proceedings
the Stuttgart Court of Appeal had on 15 January 1990 confirmed
a decision to transfer the right of custody provisionally to the
mother.
Eventually the court pointed out that its present decision
was not irreversible. If later the child requested to live with
her father, such a request would have to be taken into account.
Furthermore, it was possible that the parents came to an
agreement on a common right of care and custody. The court
advised the parties that the parents should not influence the
child in a negative manner, disturbing the child's relationship
with both parents.
The applicant's appeal against the care and custody decision
of 5 July 1990 was rejected by the Stuttgart Court of Appeal on
7 June 1991. The Court agreed with the District Court that the
mother seemed better suited to guarantee the best development of
the child. It referred to its prior impression of the first
applicant who seemed to be over- anxious and had the tendency of
caring too much for the child in order to strengthen the ties
between her and himself. The court further stated that even
assuming that both parents were equally suited to take care of
the child, the principle of continuity required that the child
who was now living for more than one year with the mother and saw
her father on weekends would not be exposed to a radical change
of this situation which would also affect her relationship with
her friends in kindergarten and school.
The applicant then lodged a constitutional complaint which
was rejected on 21 August 1991 by a group of three judges of the
Federal Constitutional Court (Bundesverfassungsgericht) as being
partly inadmissible and as offering no prospects of success as
to the remainder.
The complaint was considered to be inadmissible insofar as
it was lodged also on behalf of the applicant's daughter. To
this extent the applicant was considered not to be authorised to
represent his daughter as he did not hold the right to care and
custody.
Insofar as the applicant complained about the District
Court's decision, the Constitutional Court judges considered that
the complaint was unsubstantiated and did not disclose any
violations of constitutional rights.
Insofar as the applicant complained of the appellate court's
decision, it is stated that this decision was from the point of
view of constitutional rights, unobjectionable. In case of
conflict between child and parent the wellbeing of the child had
to be given preference and the reasons stated by the Court of
Appeal showed that leaving the right of care and custody with the
mother was, under the circumstances of the case, the best
solution in the interests of the child.
Finally, it is stated in the Constitutional Court's decision
that the fact that the applicant was not heard personally by the
Court of Appeal, was irrelevant because he had not shown in his
submissions to the Constitutional Court that in case of an oral
hearing he could have submitted particular arguments which might
have influenced the Appellate Court to decide in his favour.
COMPLAINTS
The first applicant alleges a violation of Article 6 of the
Convention, alleging that the German courts did not make the
necessary extensive enquiries in order to find out which of the
parents was best qualified to take care of the second applicant.
He also complains that the second applicant was not personally
heard by the German courts and that he himself was not heard
personally by the Court of Appeal. Furthermore, he considers
that Article 8 is violated.
Furthermore, he complains on behalf of his daughter and
likewise alleges violations of Articles 6 and 8 of the
Convention.
Finally, he invokes, on his own behalf, Article 2 of
Protocol No. 1 and Article 14 in conjunction with Articles 6 and
8 of the Convention.
THE LAW
1. The applicant has filed the application in his own as well
as in his daughter's name although the right of care and custody
over the daughter was awarded to the applicant's former wife
after the dissolution of their marriage.
The question, therefore, arises whether in these
circumstances the applicant is able to lodge his complaints
concerning the German courts' decisions on the granting of care
and custody also on behalf of his daughter (cf. mutatis mutandis,
No. 10812/84, Dec. 11.7.85, D.R. 44 p. 211). However, the
Commission does not regard it as necessary to settle this issue,
as the complaints are in any case inadmissible for the following
reasons.
2. The Commission has first examined the applicants'
complaints, in respect of the granting of custody, under Article
8 (Art. 8) of the Convention, which reads:
"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.... for the protection of health or morals, or for
the protection of the rights and freedoms of others."
The Commission recalls that the family life of the parents
with their children does not cease following the divorce of a
married couple (cf. No. 7770/77, Dec. 2.5.78, D.R. 14 p. 175).
In the present case, the German courts' decisions to give
the custody over the first applicant's daughter to his former
wife interfered with both applicants' right to respect for their
family life under Article 8 para. 1 (Art. 8-1) of the Convention.
It therefore remains to be examined whether this interference was
justified under the terms of Article 8 para. 2 (Art. 8-2) of the
Convention.
The Commission notes the finding of the Waiblingen District
Court and the Stuttgart Court of Appeal that the interest of the
second applicant and in particular her future well-being required
that her mother should continue to take care of her. There is
nothing to show that this finding is incompatible with the
particular circumstances of the present case. It has also to be
noted that the first applicant's right of access was first
settled in the divorce and family proceedings and seems to be
undisputed. Furthermore the District Court expressly reserved
its position in view of future developments and stressed the
possibility, inter alia, of the parents reaching an agreement on
the joint exercise of the right to care and custody. In the
light of the first applicant's submissions the Commission finds
no indication that the custody decisions so far taken were not
based on due consideration of the interests of the child.
The Commission is therefore satisfied that the interference
with the right to family life, namely the decision on custody,
was justified under Article 8 para. 2 (Art. 8-2) of the
Convention as necessary for the protection of the health and
future well-being of the second applicant.
It follows that this complaint concerning the German courts'
decisions on custody is manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicants have also alleged a violation of Article 6
(Art. 6) of the Convention which guarantees a right to a fair
hearing.
a) However, insofar as the first applicant complains that
his daughter was not heard by the courts which decided on the
issue of which of the parents should be attributed the right to
care and custody, he has not exhausted domestic remedies as he
did not raise this particular complaint before the Federal
Constitutional Court. To this extent, the application has to be
rejected for non-exhaustion of domestic remedies in accordance
with Articles 26 and 27 para. 3
(Art. 26, 27-3) of the Convention.
b) Insofar as the first applicant complains that he
himself was not personally heard by the Court of Appeal, it first
must be noted that this particular complaint was rejected by the
Federal Constitutional Court as being unsubstantiated. However,
even assuming that he has exhausted domestic remedies, Article
6 (Art. 6) of the Convention does not guarantee an absolute right
to parties to be heard personally. It rather depends on the
nature of the proceedings in question and the issue at stake
whether or not a personal hearing of a party is necessary. In
the present case the first applicant was represented by legal
counsel in the domestic proceedings and there is nothing to show
that he was in any way prevented from submitting all allegations
and arguments which he himself considered to be of relevance.
There is consequently no appearance of a violation of Article 6
(Art. 6) of the Convention and to this extent the application has
again to be rejected as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The first applicant has furthermore invoked Article 2 of
Protocol No. 1 and Article 14 (P1-2, 14) of the Convention.
However, he has not submitted any substantial argument disclosing
a possible appearance of a violation of these provisions and to
this extent this application again has to be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First
Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy