Information Note on the Court’s case-law 55
July 2003
Sommerfeld v. Germany [GC] - 31871/96
Judgment 8.7.2003 [GC]
Article 8
Article 8-1
Respect for family life
Refusal to grant father access to child born out of wedlock: no violation
Article 14
Discrimination
Different treatment of fathers of children born out of wedlock and divorced fathers: violation
Facts: The applicant is the father of a child born out of wedlock in 1981. He acknowledged paternity of the child and lived with the child’s mother until their separation in 1986, after which the mother prohibited any contact with the child. In 1990 the applicant requested the District Court to grant him a right of access. The Youth Office advised against access, which it considered would adversely affect the close relationship which the child had established with her step-father. In June 1991, the court heard the child, who stated that she did not wish to have contact with the applicant. In April 1992 it obtained a psychologist’s opinion, which was unfavourable to access, and after a hearing in June 1992 at which the child repeated her opposition to access, the applicant withdrew his request. However, he submitted a new request in September 1993. The District Court heard the child, then 13, who confirmed that she did not wish to have contact with the applicant. It dismissed the request, observing that under section 1711 of the Civil Code it could only grant a right of access if it was in the child’s best interests. Referring to the statements of the parents and the child, as well as to the opinions of the Youth Office and the psychologist obtained in the earlier proceedings, the court concluded that access would not be in the child’s interests. The applicant’s appeal was dismissed by the Regional Court and his constitutional complaint was unsuccessful.
Law: Article 8 – The refusal of access constituted an interference which had a basis in domestic law and pursued the legitimate aims of protecting the “health or morals” and “rights and freedoms” of the child. With regard to the necessity of the interference, the courts had adduced relevant reasons for their decisions to refuse access. As to whether the reasons were also sufficient, the Court could not satisfactorily assess this without determining whether the decision-making process as a whole had provided the applicant with the requisite protection of his interests, which depended on the particular circumstances of the case. The applicant had been able to present his arguments in favour of a right of access and had had access to all relevant information relied on by the courts. The District Court had based its decision on the parents’ and child’s submissions, as well as on material obtained in the earlier proceedings and it would be going too far to say that domestic courts were always required to involve a psychological expert, this issue depending on the specific circumstances, having due regard to the age and maturity of the child concerned. In the present case, the child was 13 when heard by the District Court judge, who had already heard her in the earlier proceedings. Having had the benefit of direct contact with her, the court was well placed to evaluate her statements and establish whether she was able to make up her own mind. On that basis, the court could reasonably reach the conclusion that it was not justified to force the girl to see the applicant against her will. In these circumstances, the Court was not persuaded that the failure to obtain a new psychological opinion constituted a flaw in the proceedings. Having regard to the State’s margin of appreciation, the Court was satisfied that the domestic courts’ procedural approach was reasonable in the circumstances and had provided sufficient material to reach a reasoned decision in the particular case. The procedural requirements of Article 8 had therefore been complied with.
Conclusion: no violation (14 votes to 3).
Article 14 in conjunction with Article 8 – (a) The Court adopted the same general approach as in Sahin, above. In the present case, the domestic courts had held that a decision under section 1711 of the Civil Code depended on the circumstances and when reaching the conclusion that forcing the child to see the applicant against her will could not be justified, they appeared prima facie to have applied a test similar to that which would have been applied to a divorced father. Nevertheless, they had explicitly adhered to the standard of whether access was “in the best interest of the child” and in doing so had given decisive weight to the mother’s initial prohibition on access and placed a burden on the applicant which was heavier than the one on divorced fathers.
Conclusion: violation (10 votes to 7).
(b) The exclusion by law (former section 63a of the Act on Non-Contentious Proceedings) of the possibility of a further appeal in access proceedings by the father of a child born out of wedlock constituted a difference in treatment which could not be regarded as compatible with the Convention.
Conclusion: violation (unanimously).
Article 14 in conjunction with Article 6 § 1 – In the light of the above findings, it was unnecessary to examine these complaints separately.
Article 41 – The Court awarded the applicant 20,000 € in respect of non-pecuniary damage. It also made an award in respect of costs and expenses.
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This summary by the Registry does not bind the Court.
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