SPORER v. AUSTRIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35637/03
by Gerald SPORER
against Austria

The European Court of Human Rights (First Section), sitting on 25 September 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,

and André Wampach, Deputy Section Registrar,

Having regard to the above application lodged on 12 November 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Gerald Sporer, is an Austrian national who was born in 1976 and lives in Schalchen. He was represented before the Court by Mrs M. Speer, a lawyer practising in Mattighofen. The Austrian Government (“the Government”) were represented by their Agent, Ambassador Ferdinand Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant's son K. was born out of wedlock on 26 May 2000. The child was given the applicant's family name by decision of the Braunau District Administrative Authority of 29 June 2000.

At that time K.'s mother was living as a tenant in the applicant's house, in a separate apartment. The applicant was sharing an apartment with his life‑companion, U., who later became his wife, and their son D. aged six at that time. During K.'s first year the applicant took parental leave and took care of him together with his life-companion. Subsequently, K.'s mother took parental leave.

In early January 2002 K.'s mother moved out of the applicant's house.

On 28 January 2002 the applicant asked the Mattighofen District Court (Bezirksgericht) to transfer sole custody of K to him under section 176 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch). He submitted in particular that he and his life-companion U. had mainly taken care of K. and that the child's mother was not capable of doing so. The latter opposed the transfer of custody. At that stage and at all subsequent stages of the proceedings the applicant was assisted by counsel.

By letter of 12 February 2002 the Youth Office (Jugendamt), which had already followed the case since summer 2001, expressed the view that both parents were capable of exercising custody.

On 12 March 2002 the applicant and K.'s mother appeared before the District Court and were heard by the judge.

According to the minutes, the applicant requested that the opinion of an expert in child psychology be taken. K.'s mother agreed with that request. The court appointed Dr J.-W., an expert in child psychology, and ordered him to submit an opinion on whether the interests of the child were better served by leaving sole custody with the mother or by awarding it to the applicant. The judge then proceeded to disuss the factual and legal issues with the parties. The parties then concluded an agreement to the effect that, pending a decision on custody, K. would spend three days a week with his mother and three days with the applicant.

The expert, Dr J.-W., submitted his opinion to the Court on 17 April 2002. The opinion was based on interviews which the expert had conducted with K.'s mother, the applicant and his life-companion. He had also paid a visit to the applicant's home during which he had observed how the applicant and the other members of his family interacted with K. The expert opinion was served on the applicant.

On 8 July 2002 the District Court held a hearing in the presence of the applicant, his counsel, K.'s mother, Dr J.-W. and a representative of the Youth Office.

According to the minutes, the contents of the file were read out. Subsequently, Dr J.-W.'s opinion was discussed. In the course of the hearing, Dr J.-W. also supplemented his opinion. He expressed the view that K.'s mother was very immature and not yet capable of taking care of him and recommended the transfer of sole custody to the applicant. The representative of the Youth Office opposed the view that K.'s mother was not capable of raising the child. None of the parties made further submissions.

On the following day, i.e. on 9 July 2002, the District Court ordered a second expert in child psychology, Dr R., to submit an opinion on whether or not K.'s mother was capable of taking care of him. In her opinion of 15 July 2002, Dr R. came to the conclusion that K.'s mother was sufficiently mature, did not show any emotional instability and was capable of taking care of him. A copy of this expert opinion was served on the applicant.

In addition the District Court requested the Youth Office to prepare a report. A representative of the Youth Office visited K. and his mother at their home and as a result of that visit concluded that she was able to exercise custody.

On 29 July and 13 August 2002 the applicant requested that a decisive expert opinion (Obergutachten) be commissioned. The motion contained comprehensive submissions on K.'s mother's alleged incapacity to raise him.

The District Court ordered a third expert, Dr B., to submit a decisive expert opinion on the question whether K.'s mother was capable of exercising custody.

Both, the applicant and K.'s mother made further written submissions. Each of them forwarded detailed arguments as to why the other parent was not an appropriate person to take care of K.

On 14 October 2002 Dr B. submitted his expert opinion. Having interviewed the applicant and K.'s mother, he found that both parents were in principle capable of taking care of K. The mother had some deficiencies as regards her own personality development and a somewhat limited capacity to cope with everyday life. The applicant had a tendency to dominate and had given reason to fear that, if custody was awarded to him, he would try to curtail the mother's access rights. The applicant could provide a more stable environment and a more coherent style of upbringing. However, K.'s best interests would not be manifestly endangered if custody remained with his mother. The applicant should be given extensive access rights, in that K. should stay with him from Friday to Sunday every second weekend, spend two weeks with him in summer and one week during the Christmas period.

A copy of Dr B.'s expert opinion was served on the applicant, and he was given 14 days to submit comments. Within that time-limit, the applicant requested that a hearing be held in order to discuss the expert opinion. He did not make comments in writing.

Without holding a further hearing, the District Court dismissed the applicant's request for sole custody of K. to be transferred to him by decision of 4 December 2002.

The District Court noted that under Section 166 of the Civil Code the mother of a child born out of wedlock had sole custody. A transfer of custody was only to be ordered if the child's best interests were at risk. In the present case the applicant would have had to prove that K.'s mother was unable to take care of him. While the first expert, Mr J.-W., had come to the conclusion that this was the case, the second expert, Ms R., had reached the opposite conclusion. Finally, the decisive expert opinion by Mr B. had found it established that K.'s mother was capable of taking care of him. Having regard to the second and third expert opinions and to the view expressed by the Youth Office, it had been established that K.'s mother was able to exercise custody and the applicant had failed to adduce proof of the contrary.

Furthermore, the District Court noted that it had not considered it necessary to hold a hearing to discuss the decisive expert opinion, since it found that opinion coherent and convincing. The factual and legal issues of the case had therefore been sufficiently clarified and a hearing would only have delayed the proceedings. It followed that the applicant's further requests for the taking of evidence had to be dismissed.

Finally, the court ruled that its decision was immediately enforceable with the consequence that the agreement of 12 March 2002 was no longer effective.

The applicant appealed. He complained about a number of procedural shortcomings. He alleged, inter alia, that the District Court had failed to hold a hearing for the purpose of discussing Dr B.'s expert opinion, and that it had not heard him in person.

In addition, the applicant contended that the relevant provisions of the Civil Code, namely Sections 166 and 176 were discriminatory and suggested that the appellate court request the Constitutional Court to rule on their constitutionality. Since K. had been born out of wedlock, his mother had sole custody of him and he, as the child's father, could only be awarded custody if the mother put the child's well-being at risk. In the case of a child born in wedlock the parents had joint custody and retained it upon divorce or separation unless the child's best interests required that sole custody be awarded to one of them. The application of different criteria when the parents of a child born out of wedlock separated lacked a reasonable justification.

On 24 February 2003 the Ried Regional Court dismissed the applicant's appeal.

The Regional Court found that the proceedings before the District Court had not suffered from any procedural defects. In non-contentious proceedings it was not always required to question the parties at a hearing. A hearing had been held on 8 July 2002 in the presence of the applicant. Furthermore, the applicant had had the opportunity to file written submissions, of which he had made ample use. He had also been interviewed by the experts. A further hearing for the purpose of discussing the decisive expert opinion of Dr B. would only have been required had there been substantial doubts as to its correctness.

Moreover, the Regional Court did not see any reason to request the Constitutional Court to rule on the constitutionality of the relevant provisions of the Civil Code. It noted that Section 167 of the Civil Code allowed life-companions to request joint custody. The applicant had not claimed to have co-habited with K.'s mother. On the contrary he had co-habited with another woman, U., who had meanwhile become his wife.

A distinction between children born in wedlock and children born out of wedlock was not discriminatory as long as it was objectively justified. The rule contained in Section 176 of the Civil Code that in the case of a child born out of wedlock (unless the parents had requested joint custody under Section 167) custody was only to be transferred if the mother put the child's well-being at risk, was based on the consideration that in the majority of cases of children born out of wedlock it was actually the mother who took care of the child.

The applicant filed an extraordinary appeal on points of law. He repeated his complaints about the alleged procedural shortcomings. In particular, he submitted that the court had neither held a hearing to discuss the decisive expert opinion of Dr B. nor had it given him an opportunity to comment in writing. The applicant also reiterated his request to submit the case to the Constitutional Court.

On 26 June 2003 the Supreme Court (Oberster Gerichtshof) dismissed the applicant's extraordinary appeal on points of law. It noted that the courts were not obliged to hold hearings in custody proceedings. The applicant had been given the opportunity to comment on the expert opinion at issue. Moreover, the courts had correctly applied Section 176 of the Civil Code. It had not been shown that the mother put K.'s well-being at risk.

To date, K.'s mother continues to have sole custody of him while the applicant has a right of access as recommended by the courts in the custody proceedings.

B. Relevant domestic law

The relevant provisions of the Civil Code in the version in force at the material time read as follows:

Article 144

“The parents shall care for and raise the minor child, manage its assets and represent it in these, as well as in all other matters; care, upbringing and asset management also include representing the child in these matters before the law [in court]. The parents shall proceed on a consensual basis when complying with these obligations and exercising these rights.”

Article 166

“The mother shall have sole custody of an illegitimate child. Moreover, unless the present provisions stipulate otherwise, the provisions on legitimate children regarding maintenance and custody shall also apply to illegitimate children.”

Article 167

“(1) Whenever the parents of a child live in a common household, they may agree that both parents will have custody in the future. The court shall uphold the agreement if it serves the interests of the child. If one parent leaves the common household, other than on a temporary basis, § 177 and § 177a shall be applied accordingly.

(2) Whenever the parents do not live in a common household, they can agree that the father shall also have full custodial powers or regarding specific matters in the future, if they present such an agreement to the court indicating the parent with which the child is to stay primarily. If the child stays primarily in the household of the father, the latter must also be assigned full custody. The court shall uphold the agreement if it serves the interests of the child.”

This version of Article 167 of the Civil Code was introduced by the 2001 Law Amending Child Custody Law, which entered into force on 1 July 2001. Before that date parents of an illegitimate child could only agree on exercising custody jointly if they were living in a common household.

Article 176

“(1) Whenever the parents put the well-being of a minor child at risk, on account of their conduct, the court will take the steps necessary to secure the interests of the child, irrespective of the party seizing the court. In particular, the court may withdraw all or part of the custodial rights in respect of the child, ...”

Article 177

“(1) If the marriage of the parents of a minor legitimate child is dissolved or annulled, the custodial rights of both parents remain intact. However, they may present an agreement to the court – even modifying an existing agreement – regarding the custodial responsibility. In this connection it may be agreed that one parent alone or both parents shall have custody. Where both parents have custodial powers, those of one parent may be limited to specific matters.

(2) Where both parents have custody, they must submit an agreement to the court regarding the parent with whom the child is to stay primarily. This parent must always be put in charge of all custodial matters.

(3) The court must approve the agreement of the parents, if it serves the interests of the child.”

Article 177a

“(1) If an agreement according to Article 177 on the main domicile of the child or on custodial powers is not reached within a reasonable period after a marriage is dissolved or annulled, or if it is incompatible with the interests of the child, the court must decide which parent shall henceforth have sole custody, if all attempts fail to reach an amicable solution.

(2) If both parents have custody under Article 177 after their marriage has been dissolved or annulled, and if one parent applies for the withdrawal of that custody, the court has to decide which parent shall have sole custody, if all attempts fail to reach an amicable solution.”

Article 177b

“The above provisions shall also be applied if the parents of a minor legitimate child live apart, other than on a temporary basis. However, in such a case the court shall decide on custody only upon application by a parent.”

COMPLAINTS

1. The applicant complained under Article 6, taken alone and in conjunction with Article 14, that the courts had failed to hold a hearing and to hear him in person and that the law had discriminated against him as the father of a child born out of wedlock.

2. Under Article 8, taken alone and in conjunction with Article 14, he complained that the relevant provisions of the Civil Code and their application by the courts had discriminated against him as the father of a child born out of wedlock. Whereas, in the case of a child born in wedlock the parents had joint custody, sole custody of a child born out of wedlock was awarded to the mother. The father could only obtain joint custody with the agreement of the mother. Moreover, when a married couple separated or divorced, custody could only be awarded to the mother alone if the child's well-being so required. When the parents of a child born out of wedlock separated, the father could only be granted custody of the child if the mother put its well-being at risk.

THE LAW

1. The applicant complained about the lack of a hearing and the court's failure to hear him in person. He relied on Article 6 of the Convention which, in so far as material, reads as follows.

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

He also relied on Article 14 of the Convention, which reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government submitted that the applicant's allegation that the courts failed to hold a hearing and to hear him in person is unsupported by the facts of the case. Two hearings were held, namely on 12 March and 8 July 2002 in which the factual and legal issues of the case were discussed. These hearings gave the applicant an opportunity to make submissions and allowed the court to obtain a personal impression of both parties. Moreover, the applicant made repeated use of the opportunity to file written submissions. Finally, he was given a time-limit to comment on the decisive expert opinion of Dr B. However, he did not make use of this opportunity but limited his submissions to an application for a further hearing. In sum, the proceedings complied with the requirements of Article 6 § 1.

For his part, the applicant maintained that no proper hearing had been held in his case. He emphasised that in custody proceedings the parents of the child must be heard in person and asserted that he was not given an opportunity to make oral submissions.

The Court finds that the complaint falls to be examined under Article 6 of the Convention.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant complained under Article 8, taken alone and in conjunction with Article 14, that the relevant provisions of the Civil Code and their application by the courts had discriminated against him as the father of a child born out of wedlock.

Article 14 of the Convention has already been quoted above. Article 8 provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government, with a view to Article 8 alone, contended that the procedural requirements inherent in that provision had been complied with, since the applicant had been involved effectively in the decision-making process. Furthermore, they asserted that the refusal to transfer sole custody of K. to the applicant served a legitimate aim, namely protection of the child's interests, and did not interfere in a disproportionate manner with the applicant's right to respect for his family life.

As to Article 14 taken in conjunction with Article 8, the Government asserted that Austrian law on custody did not make a fundamental difference between fathers of children born in wedlock and fathers of children born out of wedlock. In so far as differences existed, they were based on factual differences in the situations and served the interests of the child.

First of all, the father of a child born out of wedlock was not excluded from exercising custody. Provided that the parents of a child born out of wedlock lived together in a common household, they could conclude an agreement to exercise joint custody. If they separated later, the same rules applied as for the divorce or permanent separation of parents of a child born in wedlock.

For parents not living in a common household, whether divorced parents of a child born in wedlock or parents of a child born out of wedlock not living together, it had not been possible to exercise joint custody until 1 July 2001, when the 2001 Law Amending Child Custody entered into force. Since then, such parents could also conclude an agreement to exercise joint custody.

The one difference that still existed, namely that the parents of a child born in wedlock had joint custody while in the case of a child born out of wedlock the mother of the child had sole custody unless the parents concluded an agreement on joint custody, was justified in order to protect the interests of the child.

Given that the father of a child born out of wedlock was not always known or, if known, was not always willing to acknowledge paternity, vesting sole custody in the mother served to enable her to defend the child's rights in paternity and maintenance proceedings. The difference in the legal situation therefore stemmed from a difference in fact and was, therefore, not discriminatory in the sense of lacking an objective and reasonable justification.

The applicant asserts with regard to Article 8 alone that the child's well-being would have been served better by granting sole custody to him. However, under Austrian law as it stood, the courts were only entitled to withdraw sole custody from K.'s mother if the latter put the child's well-being at risk.

Under Article 14 taken in conjunction with Article 8, the applicant maintained that the relevant provisions of the Civil Code discriminated against him as the father of a child born out of wedlock. Whereas, in the case of a child born in wedlock the parents had joint custody, sole custody of a child born out of wedlock was awarded to the mother. The father could only obtain joint custody with the agreement of the mother. The applicant argued that there was no objective justification for this difference in treatment.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court

unanimously

Declares admissible, without prejudging the merits, the applicant's complaint that the relevant provisions of the Civil Code and their application by the courts discriminated against him as the father of a child born out of wedlock;

by a majority

Declares admissible, without prejudging the merits, the applicant's complaint that the courts failed to hold a hearing and to hear him in person.

André WampachChristos Rozakis
Deputy RegistrarPresident

Full & Egal Universal Law Academy