FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 1182/05
by Ingo HUB
against Germany
The European Court of Human Rights (Fifth Section), sitting on
22 April 2008 as a Chamber composed of:
Peer Lorenzen, President,
Snejana Botoucharova,
Karel Jungwiert,
Rait Maruste,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 4 January 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ingo Hub, is a German national who was born in 1964 and lives in Bad Wünnenberg.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
The applicant is the father of a son (S.), born on 30 July 1990. In 1997 the applicant and the child's mother separated. S. remained with his mother. In 1998 the applicant and S.'s mother were divorced.
On 21 January 1998 the Pankow District Court awarded the mother sole custody of S. and decided that the applicant would be entitled to personal contacts with his son every other weekend. Since September 1998, however, the applicant has had no longer contacts with his son.
On 7 October 1998 the applicant requested the Pankow District Court to impose a coercive fine on the mother to enforce his access rights.
The District Court registered his request under file number 11 F 4813/98.
On 17 May 1999 the applicant withdraw his request and now wished the court to mediate between the parents with a view to reach an agreement on the applicant's access rights. The District Court pursued the applicant's modified request under the same file number (i.e. 11 F 4813/98).
On 13 August 1999 the District Court heard S. who declared that he wished to see his father only occasionally under the supervision of a third person.
On 23 August 1999 the parents agreed on supervised access of the applicant. In early 2000 several attempts to arrange such contacts failed as the mother fell ill.
On 14 June 2000 the District Court decided that the applicant should have supervised access for the duration of six months. However, no such contacts took place as the child refused to see his father.
On 22 November 2001 the District Court heard S. again who firmly declared that his father no longer existed for him.
On 27 November 2001 the District Court ordered the taking of a psychological expert report.
On 26 March 2002 the mother's representative challenged the expert.
On 10 April 2002 the District Court ordered the expert to stop his examination. On 6 June 2002 the mother withdrew her motion for bias.
On 13 June 2002 the District Court ordered the expert to continue his examination. On 30 June 2003, following several interviews with the applicant, the child, the child's mother and the Youth Office, the expert gave his report in which he suggested a suspension of the applicant's access to S. for a period of two years.
On 21 October 2003 the District Court heard S. again who insisted that he did not wish to see his father any longer.
On 10 December 2003 the District Court, relying on the expert's report, suspended the applicant's rights to access for two years. It found that the suspension had been necessary to safeguard the well-being of the child whose refusal to see his father had become more and more rigorous in the course of the proceedings. Referring to the statements made by S. during the proceedings and at the hearings before the expert, the court found that the will of the then thirteen-year-old boy had to be respected. The enforcement of the applicant's rights to visit would have necessarily entailed a breaking of the children's will, which would have seriously jeopardised reconciliation between father and son. As to the duration of the access suspension, the court, relying on the expert's recommendations, found that it could be presumed that after two years the stresses created by the access proceedings would have been relieved and the family situation would have been improved to a degree which would make fresh contact attempts possible.
On 30 December 2003 the applicant appealed to the Berlin Court of Appeal and on 28 January 2004 he lodged his statement of grounds in which he referred inter alia to the Court's case-law in the Nekvedavicius case
(see Nekvedavicius v. Germany (dec.) no. 46165/99, 19 June 2003).
On 13 May 2004 the Berlin Court of Appeal upheld the decision of the District Court arguing that S. had suffered from the persistent fight between his parents about the applicant's access rights which had led to lasting psychic damages of the child. If psychic pressure was imposed on S. in order to force him to have contacts with his father, it would exclude any possibility of reconciliation between him and the applicant. The court confirmed the duration of the suspension of the applicant's access to S. relying on the expert report and added that the applicant's case could not be compared to the Nekvedavicius case which concerned the refusal of access rights to a toddler.
On 30 June 2004 the applicant lodged a constitutional complaint with the Federal Constitutional Court.
On 14 July 2004 the Federal Constitutional Court, without further reasons, refused to admit the applicant's constitutional complaint.
On 19 July 2004 the decision was served on the applicant.
B. Relevant domestic law
According to section 1684 of the Civil Code a child is entitled to have access to its parents; each parent is obliged to have contact with, and entitled to have access to, the child. The family courts can, however, 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 otherwise the child's well-being would be endangered (section 1684 § 4).
Section 1696 § 1 of the Civil Code obliges courts sitting in family matters to modify their decisions if this is necessary for cogent reasons which have a lasting effect on the child's well-being.
COMPLAINTS
The applicant complains under Article 8 of the Convention about the suspension of his right to access his son, the duration of the suspension and the fairness of the proceedings before the domestic courts. Moreover he complains under Article 6 of the Convention about the duration of those proceedings, about the alleged failure of the German courts to hear his son and to consider the Court's case-law.
THE LAW
A. Complaints concerning the outcome and conduct of the access proceedings
The applicant claimed that the German court decisions suspending his right to access his son and the procedure leading to these decisions violated his rights under Articles 8 and 6 of the Convention and that they failed to consider the Court's case-law, in particular the Nekvedavicius decision
(see, Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003).
The applicant also alleged that the domestic courts had failed to hear his son.
The Court considers that the complaints fall to be examined under Article 8 of the Convention alone, which, in so far as relevant, provides:
“1. Everyone has the right to respect for his ... 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 Court holds at the outset that the German courts' decisions suspending the applicant's access to his son interfered with his right to respect for his family life under Article 8 § 1 of the Convention.
Any such interference constitutes a violation of Article 8 unless it is
“in accordance with the law”, pursues an aim or aims that are legitimate under Article 8 § 2 and can be regarded as “necessary in a democratic society”.
The relevant decisions had a basis in national law, namely section 1684 § 4 of the Civil Code. Moreover, these decisions were aimed at protecting the “health or morals” and the “rights and freedoms” of the child.
Accordingly, they pursued legitimate aims within the meaning of
Article 8 § 2.
In determining whether the impugned measure was “necessary in a democratic society”, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of Article 8 § 2 of the Convention. 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 custody and access issues, 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 Sahin and Sommerfeld v. Germany [GC], nos. 30943/96 and 31871/96, § 64 and § 62 respectively, ECHR 2003-VIII; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 71, ECHR 2001-V; Görgülü, cited above, § 41 and Wildgruber v. Germany (dec.), no. 32817/02, 16 October 2006).
Furthermore, a fair balance must be struck between the interests of the child and those of the parent and, in striking such a balance, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular, the parent cannot be entitled under Article 8 to have such measures taken as would harm the child's health and development
(see Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000‑VIII and T.P. and K.M., cited above, § 71).
The Court notes that in the present case the competent national courts, when suspending the applicant's access rights, had regard to the submissions made by the applicant and the child's mother. Moreover, the domestic courts relied on the psychological expert report and, in particular, on the statement made by the child who had repeatedly been questioned by the District Court between the age of nine and thirteen. The courts took into account the clear will expressed by the adolescent child and found that it would be detrimental to his health and his relation to the applicant if psychic pressure had been imposed on him to have contacts with his father.
The German courts thus based their decisions on the prevailing interest of the child and adduced relevant reasons to suspend the applicant's access rights.
As to the duration of the suspension, the applicant referred to the Nekvedavicius case (see Nekvedavicius v. Germany (dec.), cited above, concerning the domestic courts' refusal to grant a natural father access to his newborn daughter), where the Court has held that there is a positive obligation of the national authorities to re-assess the situation at regular intervals of at least one year. Irrespective of the fact that the circumstances underlying the present case differed from those of the Nekvedavicius case, the Court observes, that contrary to the applicant's perception, the two-year suspension of his access rights did not exclude any re-assessment of the situation by the courts prior to the lapse of these two years. In particular, the domestic courts are required under section 1696 § 1 of the Civil Code to change their decisions if this is necessary for cogent reasons profoundly linked to the well-being of the child. The suspension of the applicant's access rights did therefore not prevent him from requesting an amendment of the District Court's decision pursuant to section 1696 § 1 of the Civil Code if the family situation, and in particular, the applicant's relation to his child had changed. The duration of the suspension of the applicant's access rights did therefore not contradict the Court's case-law established in the Nekvedavicius case.
Considering that the domestic courts relied on the report of the expert who had considered it necessary to suspend the applicant's access for a period of two years, the Court cannot find that the courts exceeded their margin of appreciation afforded to them under Article 8 § 2 when suspending the applicant's access rights for the contested period.
Finally, the Court must determine whether the applicant has been involved in the decision-making process and whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests (see T.P. and K.M. , cited above, § 72; Sahin, cited above, § 68 and Sommerfeld, cited above, § 66).
Turning to the present case, the Court observes that the District Court had relied on the report of a psychological expert who, after having heard the applicant, the child, the child's mother and the Youth Office, had advised against such contacts. Moreover, the District Court, contrary to the applicant's allegations, heard the then thirteen-year-old S. personally on his relationship with the applicant and the question of access and took into account his previous statements expressed before the court and in the presence of the expert. Finally, the applicant had the opportunity to present all his arguments at the courts' hearings.
In the Court's opinion, the applicant was therefore sufficiently involved in the decision-making process.
Under these circumstances, the Court considers that the applicant's rights were duly safeguarded and that the suspension of the applicant's access by the German courts was justified under Article 8 § 2 of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
B. The length of the proceedings
The applicant complained about the length of proceedings under Articles 6 § 1 and 8 of the Convention. Article 6 § 1 provides, in so far as relevant, as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court finds that it cannot, on the basis of the case file, determine the admissibility of the complaint. It is therefore necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaint concerning the length of proceedings;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy