FIFTH SECTION
Application no. 62198/11
Bernd KUPPINGER
against Germany
lodged on 29 September 2011
STATEMENT OF FACTS
1. The applicant, Mr Bernd Kuppinger, is a German national, who was born in 1953 and lives in Heidelberg. He is represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld.
A. The circumstances of the case
1. Background to the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is the father of a son born out of wedlock on 21 December 2003. Shortly after the child was born, the mother refused the applicant any contact with the child. In 2004 the applicant unsuccessfully attempted to establish contact with his son.
4. On 19 May 2005 the applicant lodged a request for the regulation of contact rights with the Frankfurt Main/District Court. The course of proceeding before the District Court is summarised in the Court’s judgment in the case of Kuppinger v. Germany [Committee], no. 41599/09, 21 April 2011. By interim order of 22 May 2007 the District Court ordered weekly supervised contacts between the applicant and his son. Three supervised contacts took place between 14 June and 19 July 2007.
5. On 21 December 2009 the District Court suspended the applicant’s contact rights for one year. On 30 December 2009 the applicant lodged an appeal with the Frankfurt Court of Appeal. On 22 March 2010 the District Court decided on the applicant’s motion to amend its decision with respect to the applicant’s right to be informed about the child’s personal circumstances.
6. By judgment of 21 April 2011 (see Kuppinger, cited above, § 51), the Court found that the length of the proceedings before the Frankfurt District Court which had lasted from 19 May 2005 to 22 March 2010 violated the applicant’s right to a trial within a reasonable time under Article 6 of the Convention. The Court further considered that there had been a violation of Article 13 of the Convention.
2. Execution of the interim decision of 12 May 2010
7. In the appeal proceedings brought by the applicant in 2009 (see paragraph 5 above), the Frankfurt Court of Appeal held a hearing on 15 April 2010. By interim decision of 12 May 2010 the Court of Appeal decreed that the applicant had the right to see his son for three hours each meeting on six specific dates between 26 May and 6 August 2010. The first three contacts were to take place in the presence of a supervisor. The Court of Appeal further ordered the applicant’s mother to bring the child in time to the meetings. Finally, the Court of Appeal threatened the mother with an administrative fine (Ordnungsgeld) of up to 25,000 euros in case she should not comply with her obligations under this decision.
8. The Court of Appeal noted that the last contact had taken place in 2007. As the Court of Appeal did not consider that the prerequisites for a suspension of access rights were met in the instant case, it was necessary to re-initiate contacts. There was no indication that contacts to the applicant would jeopardise the child’s welfare. The fact that the child would feel insecure because he did not know the applicant well could be overcome by initially ordering supervised contacts. According to expert opinion, the child’s refusal to meet the applicant was not based on an autonomous decision, but was influenced by the mother’ stance. This was in line with the personal impression the judge rapporteur had gained from hearing both parties and the child. The Court of Appeal acknowledged that the conflicts between the parents and their ensuing lack of communication posed a risk to successful contacts. However, the course of the proceedings had shown that both parents were unwilling to settle these conflicts by availing themselves of specialist help. As it was unlikely that the parents would change their attitude, the outcome of successful counselling could not be awaited before granting contact rights.
9. The Court of Appeal further considered that the overall course of the proceedings had demonstrated that both parents had contributed to the development of the proceedings and to the failure of contact visits. It could thus not be said that the development of the proceedings was solely imputable to the applicant. The mother’s attitude was documented by her statement that the child “did not lack anything” and that they constituted a family without the applicant. There was no doubt that the mother transferred this attitude to the child and thus deprived him of the possibility of dealing with his own identity and descent and with the person of his father in a way which interfered with the child’s welfare.
10. In view of the lengthy proceedings, which imposed an emotional burden on the child, it was particularly important carefully to re-establish contacts after a regrettable interruption of two years.
11. On 31 May 2010 the supervisor reported on the first contact scheduled for 26 May 2010, which was postponed to 29 May 2010. After a short conversation and some playful interaction with the applicant, the child decided to see his mother and subsequently refused to play with his father. The supervisor further informed the Court of Appeal that the mother would be on holidays during two meetings scheduled for 25 June and 2 July 2010 and that the parties’ counsels would have to agree on alternative dates.
12. On 18 June 2010 the supervisor reported on the second contact scheduled for 11 June 2010. According to the report, the contact had lasted around 35 minutes during which the applicant and his son had engaged in several playful activities. The meeting was interrupted by two contacts between the child and his mother. During the second contact, the child explained to his mother that he “could not yet carry out his thing”. Subsequently, the child told the applicant that he did not wish to play with him and subsequently left with his mother.
13. On 25 May 2010 the mother’s counsel informed the Court of Appeal that it had not been possible to find alternative dates for the meetings scheduled during the mother’s absence and that she expected that the meetings would be re-scheduled to 20 August and 3 September 2010.
14. On 28 June 2010 the applicant requested the Court of Appeal to schedule alternative dates for the meetings which were scheduled during the mother’s holidays.
15. On 1 July 2010 the Court of Appeal informed the applicant that it did not see any reason to make additional orders as to the organisation of the contacts – which fell within the competence of the supervisor. Furthermore, there was no room for scheduling alternative meetings. The Court of Appeal further requested the mother to submit proof for her alleged holiday absence.
16. On 21 July 2010 the applicant lodged a request with the District Court to impose an administrative fine of at least 3,000 euros on the mother for having failed to enable the applicant to exercise his contact rights on 26/29 May and of further 5,000 euros for having prevented him from exercising his access right on 11 June 2010. He submitted that the mother had failed to deliver the child on 26 May 2010, allegedly for professional reasons. On the alternative date on 29 May 2010 the mother brought the child, but took him away after approximately five minutes. On 11 June 2010 the mother had left the meeting place with the child after half an hour and had thus prevented further contact. In view of the urgency of the subject matter and relying on the case-law of the Court (the applicant’s counsel referred to the case of Koudelka v. the Czech Republic, no. 1633/05, 20 July 2006), the applicant further requested the District Court to decide speedily.
17. On 29 July 2010 the supervisor reported on the contact scheduled for 23 July 2010. The unsupervised contact ordered by the Court of Appeal had not taken place because the child refused to go with his father and the supervisor’s mediation attempts had been to no avail.
18. On 30 July 2010 the mother submitted an attestation by her employer that she had taken leave from 21 June to 11 July 2010, an invitation to a kindergarten festivity on 25 June 2010 and an attestation about payment of visitor’s tax from 29 June to 1 July 2010.
19. On 11 August 2010 the applicant requested the District Court to impose further administrative fines on the mother for failure to comply with her obligations under the interim decision. Relying on the report by the supervisor, he submitted that the mother had prematurely terminated the contact visit on 18 June 2010. Furthermore, she had failed to appear at the meeting place on 25 June and 2 July 2010. On 23 July 2010 the mother had failed to hand over the child to the supervisor, and induced the child to declare that he did not wish any contacts. On 6 August 2010 the applicant informed the supervisor that he would be approximately 30 minutes late because of traffic problems. The supervisor informed him that the mother and child had left the building already after ten minutes.
20. On 25 August 2010 the Youth Office submitted comments.
21. On 26 August 2010 the District Court scheduled a hearing for 10 September 2010.
22. On 9 September 2010 the District Court, on the mother’s counsel’s request, postponed the hearing to 24 September 2009.
23. During the hearing on 24 September 2010 the District Court heard the oral submissions of the supervisor.
24. On 19 October 2010 the District Court informed the applicant that no decision could yet be taken for lack of the main case-file on the access proceedings.
25. On 22 October 2010 the applicant’s counsel requested the District Court to expedite the proceedings. He further submitted that the District Court was in possession of all relevant documents and that it was not necessary to await the return of the main case file.
26. By decision of 12 November 2010 the District Court imposed an overall administrative fine of 300 euros on the mother for having contravened six times against the decision of the Court of Appeal of 12 May 2010. The District Court noted that it was not in dispute between the parties that contacts did not take place or took place only for a limited period of time on the six dates relied upon by the applicant. The District Court further considered that the mother was accountable for the failed contacts, albeit to a limited degree.
27. The District Court considered that the fact that contacts were terminated because of the child’s resistance did not exculpate the mother. The Court of Appeal had repeatedly stated that it was up to the mother to avail herself of the necessary educational measures in order to influence the child and thus to allow contacts. The mother had failed to establish that she had undertaken such measures. She might have had relevant reasons for requesting the dates to be rescheduled. However, she did not have the right to cancel these dates without the Court of Appeal’s or the applicant’s consent. The mother would have finally been obliged to wait for the applicant on 6 August 2010, taking into account that the applicant had informed her beforehand that he would be late.
28. The District Court observed that the relevant provisions prescribed an administrative fine of up to 25,000 euros for each established contravention against the court order. Based on an overall assessment of the circumstances, the District Court considered that only administrative fines within the lowest range could be envisaged. The District Court took into account that, according to a report submitted by an access custodian on 2 October 2010 (see paragraph 44, below) there were serious indications that it would not even have been possible for a professional counsellor to establish contacts. Against this background, the mother’s personal responsibility appeared to be minor. This was even more the case because the mother did not completely prevent contacts, but brought the child to four of the scheduled meetings. The demands on her educational capabilities had been high, as she had not only been obliged to reconsider her own stance on the problems within a period of a few weeks, but also to change the child’s established patterns of behaviour. Considering the number of contraventions, it had to be taken into account that comparable contraventions would not have to be sanctioned in the mid-term future, because an access custodian had been appointed. Against this background, the administrative fine had primarily the character of a sanction for past behaviour, but not of a coercive measure.
29. According to the District Court it had further to be taken into account that the first dates, in which the child had prematurely terminated the contact visits, were meant to serve the institution of contacts. It was inherent in this constellation that contacts could only be established gradually and could also fail. The Court of Appeal had pointed out this possibility and had also pointed out that no undue pressure should be exerted on the child.
30. With regard to the contacts scheduled for 25 June and 2 July 2010, it had further to be taken into account that the applicant had been informed beforehand that mother and child would be absent. He had thus caused his travel and other expenses on these dates against better knowledge.
31. Considering these circumstances, the Court found it reasonable to impose an administrative fine of 80.00 euros for each of the three cases in which contacts did not take place at all and of 20.00 euros each for the remaining three contraventions.
32. On 1 December 2010 the applicant lodged a complaint. He submitted that the administrative fine imposed was far too low and obviously ineffective. He further complained that the length of the administrative fine proceedings had been excessive and had violated his rights under Article 8 of the Convention. The mother also lodged a complaint against the District Court’s decision, submitting that she had not failed to comply with the Court of Appeal’s decision of 12 May 2010.
33. On 2 December 2010 the District Court refused to amend its decision of 12 November 2010 and forwarded the complaints to the Frankfurt Court of Appeal.
34. On 17 December 2010 the Court of Appeal invited both parties to submit comments in reply by 6 January 2011.
35. On 2 February 2011 the Court of Appeal rejected both parties’ complaints. In respect of the applicant’s complaint, the Court of Appeal considered that the District Court had exercised its discretion in an acceptable way, thereby taking into account all relevant circumstances. The Court of Appeal further considered that while it was true that the proceedings on administrative fines had to be processed speedily, the courts had to retain the possibility of availing themselves of all relevant information. Even though there were several reasons to assume that the length of the proceedings had still been acceptable, the Court of Appeal did not consider it necessary to decide whether the proceedings had been conducted within a reasonable time, as there was no legal basis for establishing that the length of proceedings had been excessive.
36. On 28 February 2011 the applicant lodged a motion to be heard (Anhörungsrüge) with the Court of Appeal which was rejected by that court on 4 May 2011.
37. On 16 August 2011 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for adjudication (no. 1 BvR 1544/11).
38. In the meantime, on 14 February 2011 the applicant requested the District Court to execute the decision of 12 November 2010. On 21 March 2011 the District Court ordered the applicant to advance 15.00 euros in court expenses. On 26 April 2004 the District Court requested the applicant to submit an original version of the decision to be executed. On 24 May 2011 the applicant pointed out that the decision had to be executed ex officio. On 19 July 2011 the District Court informed the applicant that the administrative fine had already been paid.
3. Execution of the Court of Appeal’s decision of 1 September 2010
39. On 1 September 2010 the Frankfurt Court of Appeal, in the main proceedings, quashed the decision of the District Court of 21 December 2009 (suspension of access rights) and granted the applicant access rights on every second Wednesday afternoon for three hours each, beginning on 29 September 2010. Following four supervised contacts, the applicant was to have the right to unsupervised contacts of up to eight hours each on every second Saturday. The Court of Appeal further appointed Mr H. as custodian for the implementation of access rights (Umgangspfleger). The custodianship was to expire on 31 March 2011. The mother was ordered to hand over the child to the custodian for the purpose of visiting contacts. Both parents were ordered to have preparatory conversations with the custodian. Finally, the Court of Appeal threatened the mother with an administrative fine of up to 25,000 euro, alternatively up to six months of arrest for disobedience to court orders (Ordnungshaft), in case she should not comply with her obligations under this decision.
40. The Court of Appeal confirmed its finding in the interim decision that there was no indication that contacts with his father would jeopardise the child’s welfare and that there was thus no reason to suspend contact rights. There was further no sufficient evidence that the child insistently refused to see his father. The Court of Appeal considered that the child’s verbal refusals to meet his father were not based on the child’s own assessment, but stemmed from the child’s loyalty to his mother as his immediate caregiver. It was evident that contacts had solely failed because of the mother’s lack of willingness or her incapability to allow such contacts.
41. The Court of Appeal further observed that both parents had contributed to the failure of such dialogue, to the overall development of the proceedings and to the failure of the exercise of contact rights. Under these circumstances, it could not be said that the course of proceedings had been exclusively imputable to the applicant.
42. In view of the mother’s continuing violation of her parental duties, the Court of Appeal considered it necessary to appoint a custodian for the implementation of access rights. The Court of Appeal observed that the custodianship had to be subjected to a time-limit. It considered that the time until 31 March 2011 should be sufficient for establishing a stable relationship between the applicant and his son allowing continuous contacts.
43. On 2 October 2010 the custodian H. informed the Court of Appeal that he had met the applicant on 24 September 2010. The applicant had been uncooperative and did not seem to have an interest in the child’s welfare. Under these circumstances, the contacts could not take place as scheduled. In order nevertheless to allow for contacts, he recommended that the applicant sought professional counselling.
44. On 15 November 2010 the applicant requested the District Court to discharge the custodian H. from his duties on the ground that the latter was unable and unwilling to implement the Court of Appeal’s decision on access rights.
45. On 16 November 2010 the District Court appointed a curator ad litem to represent the child’s interests and submitted the request to the mother, the custodian H. and to the Youth Office for comments within one week.
46. On 30 November and 9 December 2010 the Youth Office and the mother requested the District Court to reject the request.
47. On 10 December 2010 the applicant requested the District Court to expedite the proceedings. On the same day, the District Court scheduled a hearing for 21 January 2011.
48. On 17 December 2010 the applicant complained that the District Court, when scheduling the hearing, did not respect the time-limit of one month laid down in section 155 § 2 of the Act on Proceedings in Family Matters.
49. On 12 January 2011 the District Court informed the applicant that it had not been possible to schedule an earlier hearing, as the judge in charge had been replaced by 1 January 2011 and the hearing was scheduled immediately after the new judge’s holiday leave.
50. On 21 January 2011 a hearing took place in the absence of the custodian H, who had informed the District Court that he was on holidays.
51. On 29 January 2011 the custodian H. requested the District Court to discharge him from his duties.
52. Between 2 and 9 February 2011 the District Court judge telephonically addressed eight potential custodians. Ms R. was ready to supervise the first contacts; while Ms Z. declared her readiness to hand over the child for the ensuing unsupervised visits.
53. On 11 February 2011 the District Court informed the parties that the custodian H. could only be dismissed if a new custodian was appointed. The District Court’s intensive endeavours to find a person who was ready to implement the decision of 1 September 2010 proved to be difficult. On that same date, the District Court judge wrote letters to 22 potential custodians and asked them about their readiness to take up duties in the instant case. Furthermore, the District Court informed the parties that it had instituted ex officio fresh contact proceedings in order to review the existing regulations (Abänderungsverfahren).
54. On 12 April 2011 the applicant’s counsel informed the mother’s counsel that the applicant intended to exercise contact rights on 16 April 2011 and that he expected the mother to hand over the child. The applicant expressed the opinion that the Court of Appeal’s decision of 1 September 2010 still provided for unsupervised visits on every second Saturday. On 14 April 2011 the mother’s counsel replied that she considered that the applicant did not have the right to unsupervised contacts.
55. On 16 April, 30 April, 14 May, 28 May, 11 June, 25 June and 9 July 2011 the mother did not open the door when the applicant appeared for contact visits.
56. On 10 May, 19 May, 1 June, 14 June 2011, 1 July and 11 July 2011 the applicant requested the District Court to impose administrative fines on the mother for failure to comply with her obligations to hand over the child to the applicant. He further requested the District Court to expedite the proceedings.
57. On 27 June 2011 the mother’s counsel requested the District Court to suspend the proceedings pending the proceedings on the review of contact rights (see paragraphs 64-68, below).
58. By decision of 29 June 2011 the District Court established that Mr H.’s custodianship had expired on 31 March 2011.
59. On 5 July 2011 the applicant requested the District Court to decide without further delay. On 8 July 2011 the District Court informed the applicant that the mother still had to be allowed to submit comments on the request of 1 July and on the applicant’s letter of 5 July 2011.
60. On 19 July 2011 the applicant complained that the District Court’s failure to decide on his requests violated his right to an effective legal remedy.
61. On 19 July 2011 the District Court informed the parties about its intention to decide in written proceedings on the basis of submissions lodged by 19 August 2011.
62. On 26 August 2011 the District Court rejected the applicant’s requests to impose administrative fines on the mother. The District Court observed that the supervised access ordered in the decision of 1 September 2010 had not taken place. There was no indication that unsupervised contacts could take place without a previous phase of supervised contacts. This question was the subject matter of the new proceedings on the review of access rights instituted by the District Court. Under these circumstances, it could not be said that the mother had failed to comply with the court order of 1 September 2010.
63. On 13 September 2011 the applicant lodged a complaint. At the time the applicant lodged his application with the Court, the complaint proceedings were pending before the Frankfurt Court of Appeal.
4. Further developments
64. On 11 February 2011 the Frankfurt District Court instituted ex officio fresh contact proceedings in order to modify the existing regulations (Abänderungsverfahren) and scheduled a hearing in the presence of Ms Z. and Ms R., who had previously declared their readiness to take over duties as custodians, for 16 March 2011.
65. During the hearing on 16 March 2011, the applicant and Ms Z. could not reach an agreement on the modalities of the contacts, in particular about the envisaged length of the first unsupervised contact.
66. On 18 May 2011 the District Court judge heard the child.
67. On 29 June 2011 the District Court decided to hear expert opinion on the question if the decision on access rights issued by the Court of Appeal on 1 September 2010 could still be implemented or whether it was in the child’s best interests either to order unsupervised contacts or to suspend access rights.
68. On 15 July 2011 the applicant rejected the court appointed expert for bias. On 25 July 2011 the District Court rejected the bias request as being unfounded. On 5 August 2011 the applicant lodged a complaint. At the time the applicant lodged his application with the Court, the complaint proceedings were pending before the Frankfurt Court of Appeal.
B. Relevant domestic law
69. 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...
(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.”
70. Section 155 of the Act on Procedure in Family Matter and Non‑Contentious matters (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit) reads as follows:
“(1) Parent and child matters referring to the child’s place of abode, access rights or the surrender of the child, as well as proceedings based on a threat to the child’s welfare must be conducted as a matter of priority and expediently.
(2) In proceedings pursuant to subsection (1) the court shall discuss the case with the parties at a hearing. The hearing shall take place at the latest one month after the proceedings have been instituted. The court shall hear the Youth Office during this hearing. This hearing may only be postponed for compelling reasons. Proof of the reasons for the need for the postponement must be furnished when the request for the postponement is made.
(3)...”
Section 89 provides
Administrative penalties (Ordnungsmittel)
“(1) In case of non-compliance with a legal obligation to surrender persons or on the regulation of contacts the court can threaten the obliged person to impose an administrative fine and arrest, in case this fine cannot be collected. If the imposition of an administrative fine lacks prospect of success, the court can order arrest. The order is taken by court decision.
(2) The decision ordering the surrender of a person or the regulation of contacts has to indicate the consequences of non-compliance.
(3) The amount of a single administrative fine must not exceed 25,000 euros...
(4) An administrative fine is not imposed if the obliged person submits reasons establishing that he cannot be held liable for the contravention...”
COMPLAINTS
The applicant complains under Articles 8 and 13 of the Convention about the domestic authorities’ failure to implement his access rights to his son.
He further complained under Articles 8, 6 and 13 of the Convention that the length of the proceedings on his request dated 19 May 2005 had been excessive and about the lack of an effective remedy therefore.
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. Did the domestic authorities effectively implement the interim decision given by the Frankfurt Court of Appeal on 12 May 2010? In particular, did the administrative fine imposed on the mother on 12 November 2010 constitute an adequate and sufficient means to execute the decision on access rights?
3. In the light of the Court’s judgment in the Bergmann case (Bergmann v. the Czech Republic, no. 8857/08, §§ 45-46, 27 October 2011), did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8 about the length of the proceedings before the family courts, as required by Article 13 of the Convention?
4. What was the outcome of the applicant’s complaint against the decision of the Frankfurt District Court of 26 August 2011 and of the access proceedings in general?
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