FIFTH SECTION
Applications nos. 23280/08 and 2334/10
Claus MOOG against Germany
and Claus MOOG and Damian MOOG against Germany
lodged on 30 April 2008 and 24 December 2009 respectively
STATEMENT OF FACTS
The applicant Mr Claus Moog and – as regards the application no. 2334/10 – his son Damian Moog, are German nationals, who were born in 1972 and 1998 respectively and live in Cologne. They are represented before the Court by Ms E. D. Kieromin, a lawyer practising in Hamburg.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Proceedings concerning access to child
In 1997 the applicant married I. M. In 1998 their son Damian was born. In 1999 they separated. In 2001 the marriage was disjoined. The child’s mother obtained sole custody.
On 24 April 1999 the applicant initiated proceedings concerning access to his son. On 11 and 18 May 1999 the Cologne District Court (hereinafter referred to as the District Court) granted the applicant access twice a week, altogether for four hours (no. 313 F 124/99).
On 24 September 1999 the applicant requested an extension of his access right. On 24 March 2000 the parties concluded a settlement before the District Court according to which he had a right of access every Saturday for eight hours (no. 313 F 308/99).
On 13 October 2000 the applicant requested again an extension of his access rights (no. 313 F 335/00). In its observations of 4 December 2000 the Youth Office supported the extension. On 16 January 2001 the District Court held an oral hearing, joined the proceedings concerning access (no. 313 F 335/00) to the proceedings concerning custody (no. 313 F 283/99) and ordered an expert opinion dealing with the question whether joint custody was in the child’s best interest. On 10 July 2001 the Youth Office stated that contact with the father was in the child’s best interest.
On 15 June 2001 the child’s mother applied for a suspension of the applicant’s right of access.
On 1 October 2001 the applicant requested that the court order a fine, because the child’s mother did not cooperate.
On 19 October 2001 the appointed expert informed the court that contact with the father was in the child’s best interest.
On 16 November 2001, during an oral hearing before the District Court, the parties concluded a settlement according to which contact between the applicant and his son should be re-established. The meanwhile increasing alienation between the applicant and the child should be overcome progressively by extending the contact gradually.
On 7 January 2002 the applicant renewed his request that the court ordered a fine, because the child’s mother did not cooperate.
On 18 January 2002 the District Court gave an interim injunction and decided that the applicant had the provisional right to visit his son one hour a week in the kindergarten. It referred to the first step of the settlement which the parties had concluded on 16 November 2001.
On 20 March 2002 the District Court ordered the mother to cooperate failing which a fine could be imposed.
On 28 July 2002 the expert submitted his report. He stated that joint custody was not in the child’s interest due to the conflict between the parents. There was the danger that the child was being instrumentalised. The child’s mother did not accept the applicant’s position as parent and suffered from persecution ideas.
On 22 October 2002, after having held an oral hearing, the District Court granted the applicant the right of access to his son once a week for six hours. Furthermore, it appointed a person to supervise the contact between the applicant and his son (Umgangspfleger), but declined to appoint a curator at litem. On 18 February 2003 the Cologne Court of Appeal dismissed the child’s mother’s appeal against this decision. It held that the child’s mother had “intentionally sabotaged” the applicant’s right of access. If she did not ensure the applicant’s right of access, the custody rights might have to be re-considered. There existed no reasons to restrict the applicant’s right of access to the son. The court referred amongst others to an expert opinion, to the report of the Youth Office and to a statement of the persons working in the son’s kindergarten.
On 6 August 2003 the applicant requested again that the court imposed a fine, because the child’s mother did not cooperate.
On 12 August 2003 the District Court ordered the mother to ensure the applicant’s right to access, failing which a fine could be imposed. The child’s mother lodged an appeal. On 2 December 2003 the Cologne Court of Appeal quashed the decision. It found that according to the child’s mother and a report of a doctor the son showed mental abnormalities after contact with the applicant. According to the doctor this was caused by the conflict between the parents. Enforcement of the applicant’s right of access to his son was not in the child’s interest.
On 20 June 2005 the child’s mother applied for a suspension of the applicant’s right of access.
On 15 November 2005 the District Court heard the child.
On 18 January 2006 the applicant renewed his application for a right of access to his son. On 19 May 2006 the District Court granted the applicant three contacts with the child under the supervision of an expert.
On 24 April 2007 the District Court gave an interim injunction and provisionally granted the applicant the right of access to the child once a month for seven hours (no. 313 F 283/99). It found that the son had been pleased when he had met the father. If he showed a traumatic reaction it was presumably caused by the child’s mother. The applicant’s access to his son was in the child’s best interest. It announced that it would be imposed a fine if the child’s mother did not cooperate.
On 9 July 2007 the District Court imposed a fine against the child’s mother. It held that the child’s mother did not prepare the child properly for contact with the father.
On 25 January 2008 the Cologne Court of Appeal quashed the decision (no. 25 WF 224/07). It found that the child’s mother suffered from post-traumatic stress disorder and was therefore not able to properly prepare contact of the child with the applicant. Moreover, the child had stated that it did not want to have contact with the father at that time. The court further declared that the question of the custody right had to be clarified with regard to the child’s mother’s psychological problems. It was not reasonable to counter the child’s wishes, but to initiate therapeutical measures.
On 20 March 2008 the District Court informed the parties that it abstained from further decisions concerning the applicant’s right of access for the time being (no. 313 F 283/99). It referred to the decision of the Court of Appeal of 25 January 2008.
On 12 December 2008 the District Court decided, after having heard the child, the parents and the Youth Office repeatedly and after having taken a written statement of an expert, to suspend the applicant’s right of access to the child until 31 December 2011 (no. 313 F 283/99). It considered that the child’s mother was not able to prepare a contact of the child with the applicant properly. Therefore contacts with the father had a negative impact on the child. The child’s well-being required a suspension of the applicant’s right of access.
On 30 June 2009 the Cologne Court of Appeal confirmed the decision of 12 December 2008 (no. 25 UF 6/09). It held that the child had repeatedly expressed that he did not want to see the father at the moment. He had established an association between his father and the court hearings which he disliked. Only a period without contact would give the possibility to have proper contact between the applicant and the child in the future. As the child’s mother had succeeded in disturbing the contact between the applicant and the child this had been inevitable.
B. Proceedings concerning custody rights
On 13 September 1999 the child’s mother requested sole custody.
On 24 March 2000 the District Court gave an interim injunction and decided that the child’s mother had the preliminary right to determine where the child should reside (Aufenthaltsbestimmungsrecht; no. 313 F 283/99). The court ordered an expert opinion.
On 28 July 2002 the expert stated that shared parental custody was not in the child’s interest because of the conflict between the parents. The child’s mother did not accept the applicant’s position as parent and suffered from persecution ideas.
On 25 October 2002 the court decided that the mother sole custody.
On 30 March 2007 the applicant requested that child custody be transferred to him (no. 313 F 106/07).
On 30 November 2007 the District Court refused the preliminary change of custody by an interim injunction.
On 8 January 2008 the District Court heard the son who declared that he did not want to live with the father.
On 30 April 2008 the District Court ordered an expert opinion and appointed a curator ad litem. On 29 and 30 January 2009 respectively the curator ad litem and the expert submitted their reports. According to both they had not been able to get in contact either with the child or with the child’s mother. On 7 April 2009 the District Court held a hearing.
On 12 May 2009 the District Court – after hearing the Youth Office, the parents, a teacher and an educator, taking an expert opinion and appointing a curator ad litem – rejected the applicant’s request to transfer custody rights to him (no. 313 F 106/07). It found that the child did not want to see his father anymore. According to the court, the child’s wish seemed to be authentic, because it had had no contacts with the father in recent years. The child’s well-being required that the mother’s behaviour should not be punished as the child would suffer from sanctions. The court stressed that the expert opinion was incomplete because the mother and the son had refused to cooperate.
On 30 June 2009 the Cologne Court of Appeal dismissed the applicant’s appeal. It held that the son had declared in the oral hearing that he did not want to live with the applicant. It concluded that the child developed well despite of the mother’s educational deficits.
C. The decision of the Federal Constitutional Court
On 10 August 2009 the Federal Constitutional Court dismissed the applicant’s constitutional complaint concerning the District Court’s decisions of 12 December 2008 and 12 May 2009 and the Court of Appeal’s decisions of 30 June 2009 (no. 1 BvR 1831/09), without giving any reasons.
COMPLAINTS
1. The applicant complains that the decisions of the Cologne District Court of 12 December 2008 and 12 May 2009 and the decisions of the Cologne Court of Appeal of 30 June 2009 amounted to a breach of his right to family life by preventing him from having access to his son although his ability and willingness to care for his son were not in dispute. He finds it incomprehensible that the mother’s rights were put above his own rights as Damian’s father and maintains that the courts had not acted in the child’s best interest. The applicant underlines that from 2003 to this day, he has had almost no contact with Damian due to the mother’s refusal to cooperate and that the German courts had taken no effective measures to enforce his access right and thereby destroyed his relationship with his son. The applicant further complains that the courts had neither appointed a curator ad litem (Verfahrenspfleger) during the first years nor a contact supervisor (Umgangspfleger) who might have ensured the child’s rights. He relies on Article 8 of the Convention.
2. The applicant further complains about the unfairness of the proceedings. He complains in particular about the lack of an oral hearing before the Court of Appeal and about the District Court’s refusal to order the child’s examination by an expert against the mother’s will. He relies on Article 6 of the Convention.
3. Relying on Article 6 of the Convention the applicant further complains about the length of the proceedings.
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 applicant have a fair hearing in the determination of his civil rights, in accordance with Article 6 § 1 of the Convention? In particular, did the District Court’s refusal to order the child’s examination by an expert against the mother’s will amount to a violation of Article 6 § 1 of the Convention?
3. Was the length of the proceedings concerning custody and access right including the enforcement of the court decisions in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
Full & Egal Universal Law Academy