AS TO THE ADMISSIBILITY OF
Application No. 21548/93
by Michael MALCHIN
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 11 January 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
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 1 October 1989 by
Michael MALCHIN against Germany and registered on 22 March 1993 under
file No. 21548/93;
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 applicant is a German citizen born in 1942 and living in
Berlin.
The applicant complains that he was denied access to his son.
It follows from his statements and the documents submitted that
the applicant is recognised as being the father of A.G. who was born
in 27 November 1985.The mother had been married to H.G. and got
divorced on 22 November 1985.
By judgment of 20 July 1986 it was established that H.G. her ex-
husband was not the father of A.G.
The mother recognised A.G. as her legitimate son on
3 February 1992.
The applicant states that he lived together with A.G.'s mother
from 1983 but in January 1987 she broke up the relationship with him.
Since then the applicant has tried to remain in contact with his son.
On 15 June 1987 the District Court (Amtsgericht) in Berlin
Schöneberg rejected the applicant's request to be granted access to his
son. At the mother's request the court ordered the applicant not to
contact his son.
The court stated that according to Section 1711 (2) first
sentence of the Civil Code (BGB) the father of an illegitimate child
may be granted a right of access to his child if this is in the
interests of the child's well-being. The court found that this was not
the case. It stated that there were no family relations between the
applicant and his child as he never lived together with the mother and
the child. The court furthermore found that there were tense relations
between the mother and the applicant. The mother was afraid of the
applicant who had sought to exert pressure on her by informing the
press and persons living in the same house of the situation. He even
had threatened the mother in a letter sent to her on 17 May 1987. In
all these circumstances there was a danger that allowing the applicant
to see his child would create a stress situation for the latter.
As the applicant continued trying to see his son court
proceedings were instituted against him by the mother with a view to
having these attempts stopped. By decisions of 22 July 1988 and
13 September 1989 the District Court again disallowed contact between
the applicant and his child.
An appeal against the decision of 13 September 1989 was rejected
by the Berlin Regional Court (Landgericht) on 11 January 1990. The
court ordered that the applicant should abstain from establishing
contact with his child in particular by lying in wait for him in the
street on his way back from the kindergarten. The court stated that
the new orders had become necessary as the applicant's attempts to
intrude into the relationship between mother and child had intensified
in that he way-laid them every day and mis-used the child for photos
which he then placed, or tried to place in newspapers. He had also put
up posters with a photo of the child near the mother's home.
In all these circumstances it was justified to disallow any
contacts between father and child in accordance with Section 1711 (2)
second sentence and with Section 1634 (2) second sentence of the Civil
Code as there was danger that otherwise the child's well-being would
be affected.
The court considered that the main objective of the applicant was
not to establish a normal father-child contact with his son but to be
always present in the child's mind and to undermine its relationship
with the mother. He was convinced that he was an ideal father and left
the mother with no choice but to accept his conditions or to endure his
persecution.
The applicant's constitutional complaint against the Regional
Court's decision of 11 January 1990 was rejected by a group of three
judges of the Federal Constitutional Court (Bundesverfassungsgericht)
on 29 November 1990 as offering no prospect of success. His request
for an injunction and for the granting of legal aid was likewise
rejected.
It was stated in the decision that the Regional Court had
correctly given preference to the mother-child relationship and the
well-being of the child and it was therefore, from a constitutional
point of view, unobjectionable that the court had considered it was
unacceptable for the child constantly to be confronted with the
insoluble conflict between his parents.
In consequence of the mother's decision to recognise A.G. as her
legitimate child the District Court decided on 2 April 1992 that A.G.
thereby had acquired the position of a legitimate child.
On 21 May 1992 the Berlin Regional Court rejected another
complaint made by the applicant against a District Court's order
denying access to his child. It is stated in the Regional Court's
decision that in consequence of the adoption of the child by the
mother, pronounced on 2 April 1992 by the Schöneberg District Court,
any family relationship to the applicant had stopped in accordance with
Section 1755 (1) of the Civil Code. He could therefore no longer
complain of denial to access to his child.
On 3 September 1992 the Federal Constitutional Court rejected
another constitutional complaint lodged by the applicant as being
inadmissible. It is stated in the decision that insofar as the
applicant complained of the District Court's order of 2 April 1992 he
had failed to submit observations as to the mother's request to adopt
her child. Consequently the applicant had failed to avail himself of
all possibilities for preventing the alleged violation of his
constitutional rights.
COMPLAINTS
The applicant complains of the denial of access to his child and
considers that his right to the protection of his private and family
life as guaranteed by Article 8 of the Convention has been violated.
He also complains about the adoption of his child by the mother
without his consent.
THE LAW
1. The applicant complains of the refusal to grant him access to his
child born out of wedlock.
This refusal is mainly based on the grounds that no close family
ties had developed between the applicant on the one hand and his child
and his child's mother on the other hand and that the child's mother,
who has the right of care and custody over the child, is opposed to
contacts between the applicant and the child.
a. The Commission has already recognised in its case-law that in
principle a parent has always a right of access to his or her child
under Article 8 para. 1 (Art. 8-1) of the Convention (see No. 7911/77,
Dec. 12.12.77, D.R. 12 p. 192; No. 8045/77, Dec. 4.5.79, D.R. 16
p. 105). However, the cases in question concerned complaints of
divorced parents who had normal family relations with their respective
children while they were married and who were restricted in their right
of access to the children after the divorce. In many cases no normal
family ties exist between a child born out of wedlock and the father.
It therefore appears doubtful whether the unmarried father has in all
cases a right of access to the child under Article 8 para. 1 (Art. 8-1)
of the Convention which presupposes the existence of a family (See Eur.
Court H.R., Marckx judgment of 13 June 1979, Series A no. 31, p. 14,
para. 31). However, even assuming that the applicant could claim a
right of access under Article 8 para. 1 (Art. 8-1) of the Convention
such right is not unlimited. The Commission has always recognised the
necessity for the national courts to place restrictions on the right
of access to a child if such restrictions are imposed in the child's
interests and are therefore justified under Article 8 para. 2
(Art. 8-2) of the Convention (see above cited decisions).
b. As regards the present application, the Commission notes that in
accordance with Section 1711 (2), first sentence, of the Civil Code
(BGB) a right of access to a child may be granted to the illegitimate
father. It was however denied to the applicant in view of the
applicant's own behaviour and the tensions which this had caused
between him and the child's mother.
The applicant has contested the statements of the child's mother
to which the German courts referred and according to which the tensions
were provoked by him and his behaviour. He has however not contested
that such tensions exist and were likely to recur if he were allowed
to visit or contact his son again. In these circumstances, and taking
also into account that close personal relations between the applicant
and his child have not been shown to exist, the Commission is satisfied
that the restrictions imposed by the German courts on the applicant's
right of access to his child were justified under Article 8 para. 2
(Art. 8-2) of the Convention as being necessary in a democratic society
for the protection of the rights and freedoms of others.
It follows that this part of the application does not disclose
any appearance of a violation of the Convention and in particular
Article 8 (Art. 8). It is consequently manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. Insofar as the applicant complains about the adoption of the
child by the mother it has to be noted that the applicant's
constitutional complaint in this matter was declared inadmissible
because ordinary remedies had not been exhausted. In these
circumstances the applicant cannot be considered to have availed
himself of all domestic remedies and to this extent his application has
to be rejected in accordance with Articles 26 and 27 para. 3
(Art. 26, 27-3) 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