FOURTH SECTION
DECISION
Application no. 36647/22
Sascha Alexander ÜBERALL
against Germany
The European Court of Human Rights (Fourth Section), sitting on 17 October 2023 as a Committee composed of:
Faris Vehabović, President,
Anja Seibert-Fohr,
Sebastian Răduleţu, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 36647/22) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 July 2022 by an Austrian national, Mr Sascha Alexander Überall, who was born in 1969 and lives in Düsseldorf (“the applicant”);
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the proceedings regarding custody and contact between the applicant and his child F., a boy born out of wedlock on 3 May 2009.
2. The applicant and F.’s mother separated in 2010; F. continued living with his mother. The parents shared custody of F. In 2013, after several court proceedings, the applicant was granted contact on weekends and during holidays; in practice contact has only taken place occasionally since 2017. Attempts to mediate the parent’s conflict ultimately failed.
3. On 29 August 2019 the Family Court firstly transferred custody to F.’s mother insofar as the determination of F.’s residence, health issues and applications for public aid were concerned. Based on two expert reports by a psychologist S., who had heard F. personally on two occasions, had also personally heard F.’s mother as well as the applicant and had observed F. in interaction with each parent, and relying on three additional reports of a psychiatrist Dr. P., the Family Court found that the parents lacked a minimum of cooperation and communication.
4. Secondly, the Family Court ordered that the applicant’s contact with his son was to take place every five weeks for three hours and assigned a custodian for the implementation of the contact (Umgangspfleger, hereinafter “the custodian”) until 31 August 2020, considering that the applicant’s conduct vis-à-vis F. was deficient, as outlined in detail by S., and that the parents had acted out their conflict in front of F. when the applicant’s contacts with his child took place.
5. The applicant appealed against the Family Court’s decision with regard to both the transfer of custody and the contact order.
6. On 22 May and 4 June 2020 the Court of Appeal ordered a new supplementary report by S., following which S. personally heard F. on 2 July 2020 in her office and talked to him and his mother separately again at their home on 16 October 2020. The applicant declined S’s invitations for exploration and did not reply to the expert’s request to be present at one of the contact meetings.
7. On 17 March 2021 the Court of Appeal, excluding the report of Dr. P. (see paragraph 3 above) but basing its decision on S.’s new supplementary expert report, dismissed the applicant’s appeal and prolonged the assignment of the custodian (see paragraph 4 above) until 30 June 2022.
8. It confirmed that the transfer of custody to F.’s mother was in the child’s best interest. The parents lacked a minimum of communication and F.’s mother had taken care of the child since he was two years old (principle of continuity). Replying to the applicant’s argument that F.’s mother had not organised one vaccination despite assurances to the contrary, the Court of Appeal found that the sole fact that she had not organised all the recommended vaccinations for F. could not justify the transfer of custody in respect of health issues as one sole part of custody to the applicant while maintaining the mother’s care for the remainder, as partitioning custody between the parents would risk severe disputes and inconsistency in education; the psychological strain caused to F. would outweigh the risks due to reduced immunity from partial lack of vaccination.
9. As regards the applicant’s contact rights, the Court of Appeal explained that the limited extent and supervision of the contact was necessary to avert endangering F.’s best interest according to Article 1684 § 4 of the Civil Code. Exposed to his parents’ highly conflictual relationship, F. was already suffering from a loyalty conflict causing an affective disorder with depression. According to S.’s new supplementary report F. had shown high psychological strain at times when unaccompanied contact had taken place; there was no doubt that the fact that F. was exposed to both parents’ expectations when unaccompanied contact had been implemented had damaged F.’s psychological well-being and his emotional development. In particular, the depressive symptoms strongly indicated that the continuation of that implementation, causing F. massive psychological strain, would risk a complete loss of contact resulting from excessive demands on the child. The implementation of the contact as ordered by the Family Court had been consistently positive and had turned out, with regard to the extent of the contact and the presence of the custodian, to be appropriate. This was confirmed by both the applicant and the expert S. who had, based on the personal impression of the custodian, noted that F. had appeared balanced and satisfied after the supervised contact.
10. The Court of Appeal based its decision further on F.’s express wish for supervised contact, as articulated on the occasion of the most recent personal assessment by S. This had been similarly noted in the observations of the guardian ad litem (Verfahrensbeistand) appointed to represent F.’s interests, showing that F. had expressly requested that the contact should not take place at his father’s home and to whom he had expressed the wish that the custodian could hear what his father was saying. According to the Court of Appeal the restricted contact was also reasonable, as the applicant’s relationship with his son had not suffered but could be, according to S. and the custodian, could be considered as undamaged.
11. The Court of Appeal, sharing the applicant’s view that P.’s expert report was inadequate, explained further that S.’s new supplementary expert report, which was not based on P.’s findings, was stringent and convincing. In particular, it was not necessary for S. to repeat F.’s statements word by word.
12. On 21 June 2021 the Court of Appeal dismissed the applicant’s application based on an alleged violation of his right to be heard.
13. On 18 January 2022 the Federal Constitutional Court did not admit the applicant’s constitutional complaint without providing reasons (1 BvR 1665/21).
14. Relying in particular on Article 8 of the Convention the applicant complained that the transfer of the above-mentioned parts of custody and the limited contact under the supervision of a custodian ordered in, most importantly, the Court of Appeal’s decision, amounted to a violation of his right to respect for his private and family life.
THE COURT’S ASSESSMENTAlleged violation of Article 8 of the ConventionThe contact order
15. The general principles concerning decisions on parental contact rights and the respective decision-making process have been summarised recently in Katsikeros v. Greece, no. 2303/19, §§ 52-55, 21 July 2022 (see also Elsholz v. Germany [GC], no. 25735/94, §§ 43-53, ECHR 2000-VIII).
16. The decisions restricting the applicant’s access to his child to contact every five weeks for three hours in the presence of a custodian amounted to an interference with his right to respect for his family life, as guaranteed by Article 8 § 1 of the Convention. It had a basis in domestic law, namely Article 1684 § 4 of the Civil Code. The Court accepts that the interference pursued the legitimate aim to protect the “health” and “rights and freedoms of others”, namely of the child concerned.
17. In determining whether the national courts’ limitation of the applicant’s contact with his child was “necessary in a democratic society” and thus 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 paragraph 2 of Article 8 of the Convention, the Court notes that the given – very limited – extent of the contact constitutes a severe restriction, notwithstanding the fact that it was limited in time.
18. The Court reiterates that while its task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Kutzner v. Germany, no. 46544/99, §§ 65-66, ECHR 2002-I), it cannot satisfactorily assess whether those reasons were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the decision‑making process, seen as a whole, was fair (see, for example, Elsholz, cited above, § 52).
19. In this regard, the Court notes that the Court of Appeal relied on the experience with the implementation of the Family Court’s contact order which had proved successful in practice contrary to former – more extensive and unaccompanied – contact which had caused psychological damage to F. (see paragraph 9 above). The Court of Appeal further relied on F.’s express will (see paragraph 10 above) which was clearly relevant, given that F. was, at the time of that court’s decision on the contacts, almost twelve years old (Suur v. Estonia, no. 41736/18, § 97, 20 October 2020, and contrast Sahin v. Germany [GC], no. 30943/96, §§ 73-75, ECHR 2003‑VIII). From those elements, the Court of Appeal concluded that ordering more extensive contact without the custodian’s supervision was likely to put F. at risk.
20. While it is true that neither the Family Court nor the Court of Appeal heard F. personally, the Court reiterates that it would be going too far to always require that domestic courts hear a child in court on the issue of access to a parent (Sahin, cited above, § 73), in particular where the courts can base their decisions on the opinion of a psychological expert who on his or her part had the benefit of direct contact with the child (contrast Sommerfeld v. Germany [GC], no. 31871/96, §§ 71‑72, ECHR 2003-VIII (extracts)).
21. In the present case the Court of Appeal relied on the personal impressions of S. who had met F. personally twice and combined – in a new, up-to-date supplementary report – her observations with those of the other parties involved, including the custodian who had been present during the more recent contacts between the applicant and his child. Both S. and the custodian reported that F. preferred accompanied contact and agreed that the implementation of the limited and supervised contact had led to a highly beneficial solution for F. who had also spoken in favour of the practice. Most importantly, the Court of Appeal examined the issue further and confirmed that, notwithstanding the relatively rare and restricted contact, the relationship between F. and the applicant was undamaged and it had thus reassured that court that the contact order would not impede the applicant from maintaining a solid relationship with his son (see also Katsikeros, cited above, § 57; contrast Buchleither v. Germany, no. 20106/13, § 50, 28 April 2016).
22. Lastly, the Court has no cause to doubt that the applicant, who was heard by the courts and contacted by S. for the purpose of her reports, has been duly involved in the decision-making process.
23. It results from the above-mentioned elements that the Court of Appeal’s decision-making was based on a sufficient factual basis.The transfer of custody rights
24. The relevant principles regarding the transfer of custody under Article 8 of the Convention have recently been summarised in the case of I.M. and Others v. Italy, no. 25426/20, §§ 104-08, 10 November 2022.
25. The Court notes in this regard that the transfer of the relevant parts of custody to F.’s mother alone had a basis in the domestic law and pursued, inter alia, the legitimate aim to protect the “health” and “rights and freedoms of others”, namely of the child concerned.
26. In the present case, the domestic courts based their decisions on the best interest of the child, relying on the parents’ highly conflictual relationship lacking the necessary communication to take decisions on F.’s matters and thoroughly examining which of the parents was the most appropriate to be granted custody with regard to the principle of continuity.
27. In particular the Court of Appeal duly examined whether the fact that F.’s mother had not organised all the child’s recommended vaccinations could lead to health issues as one sole part of custody be granted to the applicant. However, in a situation where the parents lacked a minimum of communication, where a complete refusal to have F. immunised was never at issue but where the mother had not organised all recommended vaccinations and where it was to be expected that partitioning custody between the parents would risk severe disputes and inconsistency in education (see paragraph 8 above), the court excluded partitioning custody due to the psychological strain it risked causing to F. by probable severe disputes between the parents.
28. Given the fact that the Convention does not prescribe a fixed principle of how the conflicting family rights in such a situation are to be resolved (Sommerfeld, cited above, §§ 62-63), those reasons relied on by the domestic courts were relevant and, in the absence of any indications that the applicant has not been sufficiently involved in the decision-making process (contrast Sahin, cited above, § 68; see already paragraphs 22-23 above), they were also sufficient. The transfer of the above-mentioned parts of custody to the child’s mother alone was therefore necessary in a democratic society.Overall conclusion
29. Consequently, the Court finds that the issues raised by the applicant do not disclose any appearance of a violation of his right to respect for his private and family life.
30. Accordingly, the complaint under Article 8 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Other complaints
31. The applicant also raised other complaints under various Convention provisions.
32. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
33. It follows that the other complaints must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 November 2023.
Ilse Freiwirth Faris Vehabović
Deputy Registrar President
Full & Egal Universal Law Academy