NEKVEDAVICIUS v. GERMANY
Inadmissible
Ireneu Cabral Barreto
The applicant, Christian Nekvedavicius, is a German and Lithuanian national, who was born in 1946 and lives in Münster (Germany). In mid-October 1994, the applicant started a relationship with L. They began living together in L.’s flat as from 11 January 1995 and planned to get married once the applicant would have obtained his divorce from his second wife. At the end of February 1995 it was confirmed that L. was pregnant. In March 1995 the relationship between the applicant and L. broke down and they ceased co-habiting. On 11 September 1995, during L.’s pregnancy, the applicant applied to the Münster District Court (Amtsgericht) to be granted a right of access. This application was rejected by a decision of the Münster District Court of 13 October 1995. On 16 October 1995 L. gave birth to a daughter S. The applicant, on his own initiative, recognised his paternity while the mother first contested it. On 23 November 1995 she acknowledged that the applicant was the natural father of her daughter. On 11 November 1995 the applicant applied to the Münster District Court, acting as guardianship court (Vormundschaftsgericht), for a decision granting him a right of access (Umgangsregelung) to his daughter. He also applied for an interim injunction on his right of access. On 18 December 1995 the Münster District Court dismissed this request on the ground that it could not decide before holding a hearing on this question. A hearing was held on 12 January 1996. On 15 January 1996 the applicant renewed his request for an interim injunction. On 19 January 1996 the Münster District Court again dismissed this request considering that the question of access could only be resolved by means of an expert opinion. On 24 May 1996 the District Court held a hearing in the presence of the parties, an expert and the applicant’s former wife as a witness. On 29 October 1996 the Münster District Court, relying inter alia on a psychological expert opinion of 21 March 1996, granted the applicant a right of access to his daughter every Tuesday in the premises of the Social Office (Amt für soziale Dienste). On appeal of the child’s mother, the Münster Regional Court (Landgericht) quashed this decision on 17 March 1997 after having heard the applicant, the child’s mother and a representative of the Münster Youth Office on 14 March 1997. Referring to Articles 1711 § 2 and 1634 § 2 of the Civil Code (Bürgerliches Gesetzbuch - see the section of the Relevant Domestic Law below), the Regional Court held that a child should have personal contact with the father since, as a general rule, maintaining personal contact to both parents favoured a healthy development of the child. However, access against the will of the mother must be denied where the best interests of the child warranted such a decision. In the present case, there was serious reason to believe that the animosity between the parents would be detrimental to the child. Unlike the expert, the Regional Court found that granting the applicant a right of access would not help the parents to clarify their respective parental roles, to improve their relationship and to co-operate. In particular, the applicant’s conduct vis-à-vis the child’s mother adversely affected the child. He was not willing or capable to respect the legitimate interests of the child’s mother or the special situation of the child living with her mother. The applicant did not accept that the child’s mother had put an end to their short relationship which had lasted from January to March 1995. This was shown by the fact that he had been determined to obtain information about her pregnancy from her gynaecologist and to be informed about the address of the clinic where the child was to be born in order to be present at the child’s birth. Moreover, prior to the child’s birth, he introduced several court proceedings with a view to being granted a right of access and having his surname added to the child’s surname. Three weeks after the child’s birth, he applied again to be granted a right of access and requested that a coercive fine be imposed on the child’s mother. Although the applicant could not be criticised for claiming a right of access, his conduct showed that he was seeking a de facto parental authority over the child. Against this background, the Regional Court found that, if the applicant were granted a right of access, he would oppose any decision by the mother and conflict and numerous new court proceedings would be unavoidable. The Regional Court concluded that, in these circumstances, the relationship between mother and child would continuously be disturbed. This would not be in the child’s best interests. On 6 May 1997 the applicant lodged a constitutional complaint with the Federal Constitutional Court (Bundesverfassungsgericht). On 8 January 1999 a panel of three judges of the Federal Constitutional Court refused to entertain this complaint. On 1 July 1998, after the entry into force of the amended Law on Family Matters (Reform zum Kindschaftsrecht - see the section of the Relevant Domestic Law below), the applicant applied again to the Münster District Court for a decision granting him a right of access to his daughter. On 22 September 1998 the District Court heard the parties and a social worker of the City of Münster. The social worker stated that he had made a visit to the applicant’s home where the latter lived with his six-year-old daughter Z. According to the social worker, there was no indication that granting the father a right of access would be contrary to the interests of S. He found, however, that for reasons of practicability the strained relations between the parents should first improve. On 26 September 1998 the District Court appointed a psychological expert to assess whether granting the applicant a right of access would adversely affect the child’s well-being. On 30 September 1998 the expert informed the court that, due to his excessive workload, he was not in a position to commence his assessment before mid-December. On 6 and 15 October 1998 the applicant applied to the Münster District Court for provisional measures granting him a right of access to his daughter. On 24 October 1998 the applicant appealed to the Federal Constitutional Court complaining that the Münster District Court failed to take the required action. He further applied for an interim measure granting him a right of access to his daughter. On 27 October 1998 the District Court dismissed the applicant’s request for interim measures considering that the unusually strong tensions existing between the parents made it necessary to await the expert opinion with a view to determining the question of access. According to the District Court, to grant such a right provisionally would be more likely to be disadvantageous than advantageous to the child’s well-being. Thereafter, the applicant unsuccessfully instituted various proceedings challenging the judge of the Münster District Court, G., and, subsequently, the judges G., H. and S. of the Hamm Court of Appeal (Oberlandesgericht) for bias. The applicant also challenged the psychological expert on the ground that he had refused to indicate whether or not he intended to reply to all the questions of the District Court, including those which, in the applicant’s opinion, were unlawful. Furthermore, the applicant contested the expert’s impartiality alleging that, as the appointed court expert, he might be influenced by the well-known hostile attitude of judge G. towards men. In a letter of 26 April 1999 the applicant informed the Münster District Court of his intention not to co-operate any further with the expert and applied for an immediate decision. On 8 January 1999 the Federal Constitutional Court, sitting in a panel of three judges, refused to entertain the applicant’s constitutional complaint lodged on 24 October 1998. On 1 April 1999 the applicant again requested the Münster District Court for an interim injunction granting him a right of access to his daughter. By a decision of 9 April 1999, the Münster District Court dismissed the request. On 12 May 1999 the Münster District Court rejected the applicant’s application of 1 July 1998 to be granted a right of access. In reaching the above decision, the District Court had regard to its decision of 17 March 1997, according to which it was not in the best interests of S. to grant the applicant a right of access. Pursuant to Article 1684 of the Civil Code, as drafted by the amended Law on Family Matters, this decision might be open to discussion should the circumstances on which the decision was based change. However, with a view to establishing the relevant new facts on this question, the court found to be dependent on the assistance of the psychological expert. Due to the applicant’s refusal to co-operate with that expert, this question could not be resolved and the requested right of access had to be denied. The applicant appealed against the two above decisions to the Hamm Court of Appeal. On 25 January 2000 the Hamm Court of Appeal dismissed the applicant’s appeal against these decisions. On 27 January 2000 the applicant lodged a constitutional complaint against this decision with the Federal Constitutional Court and requested for interim measures. On 1 March 2000 the Federal Constitutional Court, sitting in a panel of three judges, refused to entertain both the applicant’s constitutional complaint and his request for interim measures. On 4 September 2000 the applicant applied to the Münster Administrative Authorities (Bürgeramt) to be informed of the child’s whereabouts. On 6 August 2001 he requested the Münster District Court to be granted a right of access. He also applied for an interim injunction. He stated that the previous court decisions were in breach of fundamental and human rights and had to be revised in the light of the quickly changing circumstances of the child. He alleged that the child’s mother was a member of a radical feminist sect which professed the superiority of women over men and was said to perform strange rituals, including the killing of children. As soon as she had learned that she was expecting a healthy daughter, she gave up her feigned plan to get married and, with the assistance of German female civil servants and judges, deprived him of the common child. On 24 April 2002 the Münster District Court rejected the applicant’s requests for reasons of competence. It considered that the Unna District Court was the competent court having regard to the residence of the child’s mother. On 28 June 2002 the Hamm Court of Appeal dismissed the applicant’s appeal against this decision on the ground that the applicant had failed to request the transfer of the case to the competent district court. On 16 August 2002 a panel of three judges of the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint lodged against this decision and dismissed the applicant’s request for an interim injunction. The relevant provision of the Civil Code (Bürgerliches Gesetzbuch) concerning custody and access for a child born in wedlock was worded as follows: “1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing. 2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under Article 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare. 3. A parent not having custody who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child’s interests. The guardianship court shall rule on any dispute over the right to information. 4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.” The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows: “Custody over a minor child born out of wedlock is exercised by the child’s mother ...” “1. The person having custody of the child shall determine the father’s right of access to the child. Article 1634 § 1, second sentence, applies by analogy. 2. If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Article 1634 § 2 applies by analogy. The guardianship court can change its decision at any time. 3. The right to request information about the child’s personal circumstances is set out in Article 1634 § 3. 4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.” The statutory provisions on parental authority and access are to be found in the Civil Code. They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette (Bundesgesetzblatt-BGBl) 1997, p. 2942), which came into force on 1 July 1998. Article 1626 § 1 reads as follows: “The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. Parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.” Pursuant to Article 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Article 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s welfare would be put at risk. The family courts may order that the right of access is exercised in the presence of a third party, such as a Youth Office authority or an association.