FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 11328/06
by Beata Monika POKRZEPTOWICZ-MEYER
against Germany
The European Court of Human Rights (Fifth Section), sitting on
25 August 2009 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 14 March 2006,
Having deliberated, decides as follows:
THE FACTS
A. Custody proceedings
The applicant, Ms Beata Monika Pokrzeptowicz-Meyer, is a Polish national who was born in 1967 and lives in Kwidzyn.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and her former husband have a son, born on 26 May 1999. After the separation of his parents in 2002 the child initially lived with the applicant in Bielefeld.
On 2 October 2003, the Bielefeld District Court advised the applicant that she was not allowed to take the child elsewhere without the father’s consent.
On 3 October 2003 the applicant took the child to Poland without the father’s consent, although she knew that the father did not agree.
On 24 June 2004 she returned the child to the father after a Gdansk Court had decided that the child had to be returned to his place of habitual residence. Since then the child has lived with his father and his new wife in Düsseldorf.
On 5 October 2004 a court-appointed expert submitted an opinion on the distribution of parental authority drawn up on the basis of information collected between August and October 2004. He found that the child, who had lived with his father in Düsseldorf since June 2004, was well integrated. The child’s primary attachment to his father, the latter’s ability to promote the child’s emotional development and to tolerate its attachment to the other parent, and continuity were arguments clearly in favour of the child staying with his father. The applicant’s ability to promote the boy’s linguistic competencies, even though it exceeded that of the father, was not as important for him as the father’s ability to promote his emotional development, which was greater than that of the applicant.
On 16 December 2004 the District Court held a hearing during which it heard the expert and the child.
On 15 March 2005 the District Court dismissed the applicant’s motion for bias against the expert, finding that the expert’s opinion did not contain any factual errors.
On 15 June 2005 the District Court transferred sole parental authority to the father. On the basis of the expert opinion it found that this was in the child’s best interests. Having regard to the parents’ difficulties in communicating, joint custody could not be awarded. There was no indication that the father had impaired the applicant’s access to the child to an extent as to merit a different result.
On 20 September 2005 the Hamm Court of Appeal dismissed the applicant’s request for legal aid for appeal proceedings for lack of prospects of success. The transfer of sole parental authority was in accordance with Section 1671 of the Civil Code, according to which a request to transfer sole parental authority is granted where this is in the best interests of the child. The Court of Appeal considered that nothing warranted uprooting the child from his current environment. According to the reliable findings of the expert the father was fully able to raise the child. He had strong empathy for the child. The child liked his father and had an at least equally good relationship with both parents. The father had meanwhile even become the child’s main reference person. Uniformity and regularity were factors in favour of the child remaining where he had lived for more than one year and where he was content. The Court of Appeal stressed in this respect that since the separation the applicant had exposed the child, no less than four times, to changes in his personal and social environment. After two moves in the area of her place of work in November 2001 and January 2003 she had moved with the child to Poland in October 2003, contrary to prior agreement and infringing upon the father’s co-parental authority. Thereby she accepted that the child had to be returned eight months later on the basis of return proceedings initiated by the father, which had been foreseeable to her. The child’s needs for stability would not be met by a further move.
The Court of Appeal stressed that no meaningful weight could be attached to the fact that the applicant, who at the time worked part-time in contrast to the father, had more time to care for the child, since the applicant’s course of action in October 2003 raised at least doubts as to her ability to act in accordance with the child’s best interests and to thereby also appropriately take into account the father’s interests. The fact that she had departed from her word in order to carry out her plans probably called into question her capacity to act as a role model in one essential educational area.
On 22 December 2005 the Court of Appeal, without holding a hearing, dismissed the applicant’s appeal, referring to the reasoning in the decision at first instance and its decision of 20 September 2005. Having regard to the applicant’s allegation that living conditions in Düsseldorf were inadequate, the fact that the father had meanwhile moved with the child to Mönchengladbach was consistent and in line with the child’s best interests. Furthermore, it had not been necessary to appoint a curator ad litem. In the event of a conflict of interests between parents this was only necessary where the parents’ dispute was of such a nature that the child’s interests had to be defended against those of his parents. This could be the case where both parents predominantly sought to enforce their own interests. In the present case only the applicant had demonstrated such behaviour. Contrary to the applicant’s allegations the child had been heard at first instance as evidenced by the minutes of the hearing. It was irrelevant that this was not explicitly reflected in the decision at first instance as the hearing had not produced any findings deviating from those of the expert. The Court of Appeal explained that it had refrained from orally examining the parents and the child because the relevant facts had already been established and because the case file did not contain any indication that a renewed hearing would have provided the court with any additional information that could have been of importance to its adjudication.
On 17 January 2006 the Hamm Court of Appeal declared the applicant’s appeal on the ground that she had not had a sufficient opportunity to make submissions (Anhörungsrüge) inadmissible. It found that the applicant did not allege that she had not had an opportunity to comment on the arguments put forward during the proceedings or that her comments had not been taken into account. Rather, she only criticised the failure to conduct a renewed oral hearing at second instance. The Court of Appeal considered that the right to be heard did not principally comprise the right to an oral hearing.
In its decision of 22 December 2005 it had given reasons for refraining from an oral hearing. The applicant had not submitted why the outcome of the proceedings might have been different if an oral hearing had been held.
On 19 April 2006 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for adjudication because it was inadmissible. It also refused to accept the applicant’s joint requests for an interim order for adjudication. It dismissed the applicant’s requests for legal aid and to be assigned an attorney.
B. Other proceedings
On 9 November 2005 the Bielefeld Regional Court reprimanded the applicant for child abduction.
By decisions taken between September 2004 and March 2006 the domestic courts regulated the applicant’s access to her son.
COMPLAINTS
1. The applicant complained about the transferral of sole parental custody to the father. She submitted in particular that, considering that she had already been reprimanded for child abduction, the transferral of sole parental custody to the father constituted double jeopardy. Moreover the national courts had based their decisions on insufficient factual evidence as the District Court had based its decision on an allegedly erroneous and outdated expert opinion without having heard the child and as the Court of Appeal had failed to hold a hearing at all. Furthermore the child’s interests had not been adequately protected as the District Court had failed to appoint a curator ad litem.
2. The applicant also contended that, in transferring sole parental custody to the father, the national courts had discriminated against her on the grounds of her and her son’s Polish origin.
3. She further complained about the outcome of the criminal proceedings for child abduction and access right proceedings.
She relies on Articles 1, 3, 4, 5, 6, 8, 13, 14 of the Convention, Article 2 of Protocol No. 1, Articles 2 and 3 of Protocol No. 4, and Articles 4 and 5 of Protocol No. 7.
THE LAW
1. The applicant complained about the outcome and alleged procedural shortcomings of the custody proceedings. The Court considers that these complaints fall to be examined under Article 8 of the Convention, which provides, insofar as relevant:
“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 observes that the transfer of parental authority amounted to an interference with the applicant’s right to respect for her family life as guaranteed by Article 8 § 1. Such an interference entails a violation of Article 8 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under Article 8 § 2 and is “necessary in a democratic society” for the aforesaid aim or aims. The Court accepts that the decisions at issue had a basis in national law, namely section 1671 of the Civil Code. The Court further considers that the impugned decisions were aimed at protecting the best interests of the child, which is a legitimate aim within the meaning of paragraph 2 of Article 8.
In determining whether an 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.
The Court observes in this respect that consideration of what lay in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. The Court’s task is accordingly not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (Sahin and Sommerfeld v. Germany [GC], nos. 30943/96 and 31871/96, § 64 and § 62 respectively, ECHR 2003-VIII).
In the present case, the Court notes that, when conferring sole parental authority on the father, the domestic courts, relying on their own assessment of the facts and expert opinion, found no reasons to uproot the child from the environment where he had lived for more than one year and where he was content. They considered that a further move was incompatible with the child’s need for stability. With reference to the fact that the applicant took the child to Poland contrary to prior agreement and infringing on the father’s co-parental authority in October 2003 they questioned the applicant’s ability to act in the child’s best interests while also taking into account the father’s interests.
The Court cannot find that this assessment is arbitrary or that it did not adequately take the child’s interests into account. The reasons given by the domestic courts were not only relevant but sufficient for the purposes of Article 8 § 2. However, it must be determined whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of her interests (see Sahin v. Germany [GC], cited above, § 68).
As to the proceedings at first instance, the Court notes that the applicant, assisted by counsel, was in a position to put forward all her arguments in favour of retaining parental authority both personally and in written form. The evidential basis for the District Court’s decision further included the statements of the child, as evidenced by the minutes of the oral hearing of 16 December 2004, the father, and the Youth Office. Furthermore, the District Court based its decision on an expert’s opinion which was drawn up on the basis of information collected between August and October 2004 and which, in the District Court’s assessment, did not contain any factual errors. Furthermore, arguments on behalf of the child could be brought forward throughout the proceedings.
With respect to the absence of a hearing in the appeal proceedings, the Court reiterates that a hearing may not be necessary when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case-file and the parties’ written observations (see Hoppe v. Germany, no. 28422/95, § 63, 5 December 2002). In the instant case the court finds that the relevant facts had been established by the Bielefeld District Court and that the appeal proceedings ended only six months later.
Having regard to the foregoing and to the domestic authorities’ margin of appreciation, the Court is satisfied that the German courts’ procedural approach was reasonable in the circumstances and provided sufficient material to reach a reasoned decision on the question of parental authority in the particular case. The Court can therefore accept that the procedural requirements implicit in Article 8 of the Convention were complied with. There is accordingly no appearance of a violation of the applicant’s rights under Article 8.
It follows that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant further complained that in the custody proceedings she had been the victim of discriminatory treatment. This complaint falls to be examined under Article 14 of the Convention, read in conjunction with Article 8. Insofar as relevant, Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... national ... origin...”
In determining whether the interference with the applicant’s right to respect for family life, which was in itself permissible under paragraph 2 of Article 8, occurred in a discriminatory manner, the Court notes that the national courts’ reasoning was clearly based on the finding that the transferral of sole parental authority to the father was in the best interests of the child. The applicant has not shown that, in a similar situation, mothers who or whose children were not of Polish origin would have been treated more favourably.
It follows that this part of the application must likewise be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
3. The applicant further complained about the outcome of the criminal proceedings for child abduction and access right proceedings. However, even assuming exhaustion of domestic remedies, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must likewise be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy