CASE OF BUCHLEITHER v. GERMANY
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev
5. The applicant was born in 1965 and lives in Rastatt. 6. He has a daughter, H., born on 29 June 2003. He and the child’s mother, who were not married, separated shortly after the birth. The child lives with her mother, who has sole parental authority. 7. Since the end of 2003, the parents have argued about contact. In April 2004, the applicant lodged his first request for contact with the Neustadt/Weinstraβe Family Court. During a hearing in June 2004 the parents agreed to him having supervised contact, which took place until October 2004. On 8 December 2004 the parents reached a further agreement for supervised contact, which was approved by the Family Court. 8. On 21 February 2005 the applicant requested that the supervising Youth Office, which had refused to continue to be involved due to the parties’ behaviour, be replaced by another child protection association. On 11 July 2005 the Family Court granted this request. By a letter of 21 October 2005, the appointed child protection association refused to act upon the Family Court’s instructions because of the mother’s behaviour. 9. On 28 October 2005 the applicant requested the Family Court to impose a coercive fine on the mother in order to enforce contact rights. On 17 May 2006 the parents agreed on a court-approved contact arrangement. On 18 September 2006 the Family Court, upon the applicant’s request, appointed an access facilitator (Umgangspfleger). The order was subject to a time-limit expiring on 31 December 2006. Subsequently, the contactarrangement was implemented in a more or less regular way. 10. On 8 May 2007 the applicant asked the court to extend contact, reappoint a custodian ad litem (Verfahrenspfleger) and impose a coercive fine on the mother. In reply, the mother requested that contact be suspended for two years. On 22 December 2008, after having again heard an expert, the Family Court suspended contact until 31 December 2009. The applicant’s constitutional complaint (no. 2084/09) was to no avail. 11. On 22 January 2010 the applicant requested an extension of contact following the end of the suspension period. After hearing the child in person, on 12 April 2010 the Family Court granted the applicant contact on a fortnightly basis. At the same time it gave specific directions about the contact and set out sanctions to be applied if the parents did not comply with the order. Contact did not take place. 12. On 2 September 2010, after having heard the child again, the Family Court, at the mother’s request, suspended the applicant’s contact until the conclusion of the main proceedings and rejected his requests for a coercive fine. 13. On 15 April 2011 the Family Court heard both parents, the child and the child’s custodian ad litem. Relying on the opinion of a psychiatrist, Dr B., submitted both in writing and explained orally, it granted the applicant contact of two hours every fortnight. It appointed a guardian, who was given specific directions as to how the child should be prepared for contact and how the meetings should be organised. 14. The mother appealed against this decision. The applicant pursued his request for contact and furthermore requested that the Zweibrücken Court of Appeal order the mother to supply regular information on the child’s development. 15. The Court of Appeal obtained further written submissions from Dr B., who, with regard to the development, was now of the opinion that a suspension of the applicant’s contact was, at the moment, the less damaging approach and therefore in the child’s best interest. Contact with the applicant as such was not found to be damaging, but the circumstances of the conflict rendered a different solution at the moment impossible. As regards the parents’ conflict, the expert pointed out that the applicant had agreed on mediation, but the mother refused such a procedure. He declined any possibility for the applicant to positively and actively arrange any contact at the moment. In her written submission to the Court of Appeal, the child’s guardian expressed her view according to which, to prevent longtime damages of the child, a minimum contact with the applicant should be guaranteed in any event by allowing him to send letters and presents to the child. 16. On 19 October 2012 the Court of Appeal heard from the parents, the child’s guardian, the child and Dr B., it rejected the applicant’s request and suspended all contact between him and his daughter indefinitely, pursuant to Articles 1696 and 1684 § 4 of the Civil Code (see paragraphs 23 and 24 below). 17. The Court of Appeal observed at the outset that the court-approved contact agreement of 17 May 2006 was still valid. It considered, however, that contact had to be permanently suspended because ordering contact would affect the child’s welfare. The court noted that the child had not had any contact with her father for four years, and that he had become a stranger to her. This had been confirmed, in particular, by the courtappointed expert. When heard in court, the child had clearly stated that she did not want to see her father. She only had limited, bad memories of him. The child, who appeared to have developed properly in relation to her age, had given the impression that she knew what was at stake and what she wanted. In spite of her young age, she had clearly and firmly expressed the desire to have her own wishes respected, suggesting that she would not accept being forced into doing something she did not want. The guardian submitted that he had not succeeded in breaking the child’s aversion to her father. According to him, the child had cried and left the room when he had started talking about her father. 18. The Court of Appeal considered that the child’s attitude had been influenced by the loyalty she felt towards her mother, who continuously talked negatively about the father. The child felt obliged to feel the same way as her mother. She longed for the dispute between her parents to come to an end so that she would no longer be exposed to a conflict of loyalties. She saw rejecting her father as the only way to preserve at least her mother’s love. Relying on the expert’s findings, the Court of Appeal observed that the child was mature enough to make a conscious decision and be aware of its consequences. She found herself in a psychological dilemma caused by the communication troubles between her parents, without yet having developed post-traumatic stress disorder. On the one hand, the loss of contact with a parent generally led to a disturbance of psychological development which affected a child’s welfare, but on the other, forced contact in the context of a continuing dispute between parents could also seriously affect the child. 19. The Court of Appeal noted that the expert, in his opinion submitted to the Family Court, had explained that contact with the father did not in itself jeopardise the child’s welfare. However, the expert considered it necessary to prepare the parents by improving their communication before reinstating contact. The Family Court’s decision had failed to take this “prerequisite” into account. The parents had not undertaken any steps in this direction. When heard in the Court of Appeal on 6 September 2012, the expert had clarified that if the parents did not change their way of communicating, which would necessitate at least some form of professional help such as mediation, it would cause more harm to attempt to reinstate contact than to exclude it altogether. 20. The Court of Appeal continued: “Against the background of the parents’ previous conduct both in and outside the courtroom, the [Court of Appeal’s] chamber rules out the possibility that the parents will be able successfully to have recourse to mediation in the foreseeable future. As a mandatory result, the father cannot be granted access to H. at present (derzeit) and the only available option is to exclude [him] from contact. It is not possible to solve the child’s dilemma by specifying the arrangements for contact ... or by appointing a custodian. It is up to the mother to overcome her aversion to the father, and up to the father to learn that contact can only be reinstated through patience, restraint and understanding of both the mother’s and child’s feelings. It is furthermore not ruled out that the child, with advancing age and maturity, will be able to detach herself from her parents’ dispute and seek contact with her father herself. The present decision does not exclude these options.” 21. By a judgment given on 6 February 2013 (no. 1 BvR 4/13), the Federal Constitutional Court refused to entertain a constitutional complaint lodged by the applicant regarding the decisions taken in the main proceedings, without providing reasons. 22. After the applicant lodged his application with the Court and the application had been communicated to the Government, the family case file was sent to the Ministry of Justice and then back to the Family Court. On 18 July 2014, after its return from the Ministry, the case file was presented to a judge, who ruled: “1. Seen. Nothing to be done. 2. To be stored” (1. Gesehen. Nichts zu veranlassen. 2. Weglegen”).