DORING v. GERMANY
Inadmissible
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
The applicant, Mr Peter Döring, is a German national who was born in 1956 and lives in Berlin. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant has a son born out of wedlock in 1995. He acknowledged his paternity of the child the same year. As the child’s parents did not make a joint custody declaration (gemeinsame Sorgerechtserklärung), the child’s mother obtained sole custody (alleinige Personensorge) pursuant to Article 1626a § 2 of the German Civil Code (the “Civil Code” – see Relevant domestic law below). The applicant and the child’s mother had been living together with the child in a joint household in Berlin from 1995 until December 1997, when the parents separated and the mother moved to another flat in the neighbourhood. In the period from January 1998 to January 2002 each parent took care of the child on an equal alternating weekly basis. In January 2002 the mother and son moved from Berlin to Speyer, located around 650 kilometres (km) from Berlin, without notifying the applicant. The mother alleged that she had moved since the applicant’s behaviour in the past had been detrimental to the child’s well-being. In written submissions to the Berlin-Pankow-Weißensee District Court dated 29 January and 1 February 2002 the applicant requested that custody of the child or, alternatively, the right to determine where the child should reside (Aufenthaltsbestimmungsrecht) be transferred to him. The applicant further asked to be granted contact with his son on a weekly alternating basis and, in addition, requested an interim measure for the provisional regulation of his access to the child. By a letter of 6 February 2002 the court informed the applicant that the matter had been referred to the Speyer District Court, where two separate proceedings were instituted, one related to the transfer of the right of custody to the applicant (file no. 41 F 36/02) and the other dealing with the applicant’s request to be granted contact with his son (file no. 41 F 37/02). Subsequently, the proceedings were to a large extent conducted simultaneously. On 1 March 2002 the applicant brought criminal charges of, inter alia, child abduction against the mother. The preliminary proceedings (Ermittlungsverfahren) instituted against the mother as a consequence were discontinued by the public prosecution authorities. Following allegations by the mother that the applicant had sexually abused the child, preliminary criminal proceedings were instituted against the applicant by the Berlin Public Prosecutor. On 21 June 2002 the Speyer Youth Welfare Office (Jugendamt) informed the District Court that owing to the mother’s refusal to communicate it was not in a position to give an opinion on how contact between father and son should be arranged. During a hearing in the contact rights proceedings (file no. 41 F 37/02) on 26 June 2002, the applicant requested to be granted unsupervised access to his son. By a decision of 5 November 2002 in the interim proceedings, the District Court provisionally granted the applicant supervised access in cooperation with the Schifferstadt branch of the German Child Protection Agency (Deutscher Kinderschutzbund), located in the vicinity of Speyer. The court rejected the applicant’s request for unrestricted contact, stating that such a decision could only be rendered in the main proceedings after the court had obtained an expert opinion on possible contact arrangements between the applicant and his son. The parents and the child were heard on 11 and 18 December 2002 respectively in the main proceedings (files nos. 41 F 37/02 and 41 F 36/02). The child expressed his wish to stay with each of his parents on an alternating weekly basis. By a decision of 14 January 2003 the Speyer District Court ordered a psychological expert opinion on the question of what attribution of custody and contact rights would be in the child’s best interests, and appointed an expert. Both parents objected to the court’s decision and to the expert appointed. Thereafter, the mother refused to cooperate with the expert. Between 27 December 2002 and 18 July 2003 the applicant had supervised contact with his son on around a dozen occasions at the premises of the Schifferstadt branch of the Child Protection Agency. He then discontinued the visits considering that the conditions under which access to his son took place were detrimental to the child’s well-being. By a letter of 25 June 2003, the Berlin public prosecution authorities informed the applicant that the preliminary criminal proceedings instituted against him in 2002 on suspicion of sexual abuse of his son had been discontinued. On 2 and 16 July 2003 the applicant renewed his interim request for unsupervised access, maintaining that following the discontinuation of the preliminary criminal proceedings there was no longer any reason to subject contact with his son to restrictions. In a decision of 16 January 2004 confirming the dismissal of a complaint of bias lodged by the applicant against the acting judge at the Speyer District Court, the Zweibrücken Court of Appeal indicated that an abusive obstruction of the applicant’s contact with the child by the mother could trigger doubts regarding her capacity to raise the child and even entail the withdrawal of her right to determine where the child should reside. By a decision of 27 January 2004 the District Court ordered the parties to cooperate with the expert, failing which a fine of up to 2,000 euros (EUR) could be imposed. On 29 January 2004 the applicant spent four hours alone with his son with the consent of the mother. A first meeting between the expert and the mother took place in March 2004. On 11 March 2004 the Zweibrücken Court of Appeal quashed the District Court’s decision of 27 January 2004, holding that while parents were under no legal obligation to have their child examined by an expert and could therefore not be subject to a fine, persistent refusals by the mother to cooperate with the expert in the case at hand could nevertheless raise doubts as to her capacity to exercise parental authority. By a decision of 27 May 2004 the Speyer District Court rejected the applicant’s request to amend its decision of 5 November 2002 with a view to granting him unsupervised contact with his son. The court found that in view of the mother’s allegations of sexual abuse, unsupervised access could only be considered once the expert opinion had been rendered and provided clarifications on the veracity of such allegations. On 18 June 2004 the expert met with the child. On 5 and 8 July 2004 the applicant again made an interim request for unsupervised access to his son. By a decision of 29 July 2004, following a change of the acting judge, the District Court appointed a guardian ad litem (Verfahrenspfleger) for the child. A further hearing of the parents and the child took place on 5 August 2004. By a decision of 11 August 2004 the District Court appointed a new expert after doubts as to the competence and impartiality of the initially appointed expert had arisen. By a further decision of the same date the District Court, after hearing the parents and the child and referring to a written statement obtained from the initially appointed expert on 8 July 2004, rejected the applicant’s renewed interim request for a right to unsupervised contact pending the finalisation of an opinion by the newly appointed expert. After having heard the mother, the court was of the opinion that the allegations of sexual abuse were not entirely devoid of substance and therefore an expert opinion could not be dispensed with. The court further held that the applicant’s explicit refusal to meet his son within the parameters of supervised visits or to accept alternative arrangements in the context of supervised visits raised doubts as to how important the child’s well-being was to him. The expert opinion was rendered on 12 November 2004 following examination of the parents and the child. The expert found that under the present circumstances, withdrawal of the right to custody from the mother and transfer of sole custody to the father would be contrary to the child’s well-being. Joint custody would also not be in the child’s interest since the relationship between the parents was still tense. The expert, however, recommended that regular contact should be established between the applicant and his son. At the beginning it could be envisaged that the father visit his son every second weekend at Speyer, and following a trial period of six months, longer stays by the child at the applicant’s household could be considered. The guardian ad litem, having heard the parents and the child, in her written submissions dated 3 and 27 December 2004 also opposed a transfer of the right to custody to the applicant, while recommending that the latter be granted immediate unrestricted access to his son. The guardian ad litem recalled that under the applicable law the transfer of sole custody to the father of a child born out of wedlock without the mother’s consent was only possible under Article 1666 of the Civil Code in the event that the mother was unable to raise the child and thus the latter’s well-being was jeopardised. While the mother could be reproached for having taken the son out of his familiar environment in Berlin and having deprived him of his father’s company without a convincing reason, there was nothing to support the applicant’s allegations that she suffered from a mental disorder that made her unfit to raise her son. The guardian ad litem was further of the opinion that in view of the ongoing disputes and lack of any agreement between the parents as regards the child’s upbringing, joint custody was also not an option. By a decision of 2 February 2005 the Speyer District Court accorded the applicant unsupervised contact with the child every other weekend, with the proviso that the meetings were to take place within a radius of 30 km from the mother’s place of residence. Both parties appealed against the decision. By a decision of 15 July 2005 the Zweibrücken Court of Appeal amended the District Court’s decision of 2 February 2005 and granted the applicant regular unsupervised contact with the child every third weekend and during half the school holidays. It appears that the applicant was subsequently able to exercise his contact rights accordingly. In preparation for a hearing in the still pending custody proceedings during which the expert had been invited to further elaborate on his opinion dated 12 November 2004, the applicant asked the Speyer District Court for a graduate pedagogue to be admitted to question the psychological expert on his behalf, since neither he nor his counsel had the necessary knowledge of psychology to put the relevant questions. By a decision of 25 July 2005 the court rejected the applicant’s request, holding that the latter’s counsel had already submitted a list of relevant questions to the expert in writing that did not support his allegations of a lack of knowledge. The court further was of the opinion that the pedagogue suggested by the applicant did not have the required qualifications. Pointing out that hearings in family law cases were as a rule held in camera and therefore the admission of additional advisers to the parties had to remain the exception, the court was of the opinion that there existed no exceptional circumstances in the case at hand that would justify deviating from this principle. A hearing took place on 19 June 2006 during which the expert provided further explanations. The guardian ad litem reported that the child, following his last stay with his father earlier in June 2006, had expressed his wish to now live with his father and to only visit his mother. By a decision of 23 August 2006, the Speyer District Court dismissed the applicant’s request that sole custody for the child or alternatively the right to determine where the child should reside be transferred to him under Article 1672 or 1666 of the Civil Code. It also dismissed his further alternative request that he be granted joint custody together with the mother and that the latter’s consent to joint custody as required by Article 1672 § 1 of the Civil Code be substituted by the courts in accordance with Section 224 (2) (a) of the Introductory Act to the Civil Code, a transitory provision that had been introduced by the German legislature on 31 December 2003 (see Relevant domestic law below). As regards the transfer of sole custody the court found, firstly, that to the extent the applicant’s request was based on Article 1672 of the Civil Code it had to be rejected as inadmissible. The Court pointed out that the applicant and the mother of the child had never been married and had not made a joint custody declaration, and that therefore the mother had obtained sole custody of the child pursuant to Article 1626a of the Civil Code. Article 1672 § 1 stipulated that in the event that the parents had not only temporarily separated and that the mother had sole custody of the child pursuant to Article 1626a of the Civil Code, the father could request the transfer of sole custody or partial custody only with the mother’s consent. Since in the case at hand the mother had refused to give her consent, the father’s related request could not be based on Article 1672 § 1. The court further specified that it was irrelevant on what grounds the mother had refused consent since the said provision, as a rule, did not provide for the possibility of replacing the mother’s consent by a court decision. The court therefore held that, unfortunately, it had to be accepted that fathers of children born out of wedlock were still not on an equal footing with married fathers. Secondly, the court considered whether a transfer of custody by court decision without the mother’s consent could be envisaged under the exceptional circumstances of Article 1666 of the Civil Code, which enabled the family court to order the necessary protective measures if the child’s physical, psychological or mental well-being was threatened and the parents were unwilling to take measures themselves. However, the court, having regard in particular to the expert opinion of 12 November 2004 as supplemented at the hearing dated 19 June 2006, was of the opinion that in the instant case the child’s well-being was not jeopardised by the attribution of sole custody to the mother. The expert had found that it would be contrary to the child’s interest to transfer custody to his father, in particular in view of the tense relationship between the parents which had its origin mainly in the father’s attempts to undermine the mother’s upbringing of their son. The mother’s previous allegations of sexual abuse had not led to a different assessment since she had not maintained these allegations before the expert and it appeared from the child’s examination that the trusting relationship between son and father had not been damaged as a consequence of the mother’s assertions. The expert had further specified that there were no indications to support the father’s argument that the mother was suffering from a pathological personality disorder that made her unfit to raise a child. The fact that following his last stay with the father in June 2006 the child had expressed his wish to now live with his father and to only visit his mother constituted a normal conflict reaction of a child whose parents were divorced. However, given that the son was only eleven years old and therefore unable to assess the consequences of moving in with his father, the child’s statements could not change the expert’s conclusion that sole custody should remain with the mother. The expert’s conclusions had been corroborated by the statements of the guardian ad litem during the hearing on 19 June 2006, who had met with the child not long before the hearing and who had confirmed that the child was emotionally stable. In view of these findings the court was of the opinion that a further hearing of the child was not necessary. Finally, the court held that the applicant’s alternative request to be granted joint custody in accordance with Article 1626a § 1 no. 1 of the Civil Code and Section 224 (2) (a) of the Introductory Act to the Civil Code was admissible but ill-founded. While this transitory provision provided in principle for the possibility of ordering joint custody and replacing the mother’s related consent in the event that the parents, as in the instant case, had separated before 1 July 1998 and had lived together with the child for a period of at least six months without interruption prior to their separation, it further required that joint custody would be in the child’s best interests. Referring to its reasoning with respect to the conditions of the transfer of sole joint custody under Article 1666 of the Civil Code and relying on the expert’s evaluation at the hearing of 19 June 2006 as well as the opinions of the representative of the Youth Welfare Office and the guardian ad litem, the court found it established that in view of the persisting tension between the parents, joint custody would lead to further disputes as regards their son’s upbringing, care and the question where he should reside. These disputes could jeopardise the positive development of the relationship between father and son and would thus be contrary to the child’s interest. The court further emphasised that there were no grounds to doubt the professional competence of the appointed expert or the accuracy of his findings. The applicant appealed against the judgment in written submissions of 6 November 2006. He maintained in particular that in view of the fact that the child had last been heard by the judge and the expert in 2004 but had stated before the guardian ad litem in June 2006 that he now wished to live with his father, a further hearing of his son by the judge as well as a new expert opinion were indispensable with a view to determining what attribution of custody would be in the child’s best interests. On 10 January 2007 the Zweibrücken Court of Appeal dismissed the applicant’s appeal. The Court of Appeal, endorsing the Speyer District Court’s findings, reiterated that joint parental authority required a minimum of willingness on the part of the parents to cooperate, a condition that had not been met in the case at hand where the irreconcilable conflicts between the parents were likely to be aggravated in the event of joint custody. These conclusions could be drawn from the content of the files without having recourse to a further expert opinion. A further hearing of the child or the further parties to the proceedings could also be dispensed with since no further decisive information regarding the attribution of parental authority could be expected from such a hearing. On 30 January 2007, the applicant lodged a complaint with the Zweibrücken Court of Appeal, alleging a violation of his right to be heard (Anhörungsrüge). On 14 February 2007 he lodged a constitutional complaint against the Speyer District Court’s decision of 23 August 2006 and the Zweibrücken Court of Appeal’s decision of 10 January 2007, challenging the refusal to grant him sole or alternatively joint custody of his son in accordance with Article 1666 of the Civil Code and Section 224 (2) (a) of the Introductory Act to the Civil Code. By a decision of 22 February 2007 the Court of Appeal dismissed the applicant’s complaint that his right to be heard had been violated as illfounded. In addition to the reasoning in its decision of 10 January 2007 the Court of Appeal considered that the District Court had thoroughly assessed the facts of the case and had based its judgment on the statements of the parties to the proceedings who, except for the child, had been heard shortly before the court’’s decision and it could therefore be excluded that a new hearing would lead to a different assessment of the case. There was nothing to indicate that the mother was incapable of raising her son or that she had jeopardised the well-being of the child to an extent that would justify the withdrawal of her right of custody in accordance with Article 1666 of the Civil Code. Furthermore, it was beyond doubt that the considerable conflict between the parents had made joint custody impossible, and therefore a further expert opinion or additional hearing of the child could not influence the decision on the attribution of custody rights. In written submissions of 26 March 2007 the applicant extended his constitutional complaint to the Court of Appeal’s decision of 22 February 2007. On 3 March 2009 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication without giving further reasons (no. 1 BvR 846/07). The decision was served on the applicant on 23 March 2009. On 14 September 2005 the applicant lodged a first application with the Court under Article 34 of the European Convention on Human Rights (application no. 40014/05) concerning the custody and contact rights proceedings in relation to his son. Relying on Articles 6 § 1, 8 and 14 of the Convention, he complained about the length of the domestic proceedings and about the domestic court’s refusal to grant him unsupervised contact with his son. In its related judgment of 8 July 2010, the Court, while finding that the length of the contact rights proceedings was still in compliance with the requirements of the Convention, held that the length of the custody right proceedings had infringed the “reasonable time” requirement embodied in Article 6 § 1 of the Convention and declared the remainder of the application inadmissible. The Court nevertheless specified that the applicant’s complaint under Article 8 concerned exclusively the contact rights proceedings, and that the compliance of the custody proceedings with this provision was the subject of a distinct application (the instant application no. 50216/09). Pursuant to Article 6 § 2 of the German Basic Law (Grundgesetz) the care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state oversees the performance of this duty. The statutory provisions on custody and contact are to be found in the Civil Code (Bürgerliches Gesetzbuch). Article 1626 § 1 of the Civil Code provides that the father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a child. Under Article 1666 of the Civil Code, the family court may order the necessary protective measures if the child’s physical, psychological or mental well-being is threatened by negligence and if the parents are unwilling to take those measures themselves. Measures which result in the separation of the child from one parent are acceptable only if the child would be at risk otherwise (Article 1666a of the Civil Code). As regards children born out of wedlock, custody was - pursuant to the former Article 1705 of the Civil Code - automatically obtained by the mother. That provision was however declared unconstitutional by the Federal Constitutional Court in 1996. On 1 July 1998 the amended Law on Family Matters of 16 December 1997 (Reform zum Kindschaftsrecht, Federal Gazette 1997, p. 2942), entered into force to implement the Federal Constitutional Court’s judgment of 1996. The relevant law in the Civil Code was changed as follows: under Article 1626a § 1, the parents of a minor child born out of wedlock may exercise joint custody if they make a declaration to that effect (joint custody declaration) or if they marry. Otherwise Article 1626a § 2 provides that the mother obtains sole custody. If the parents have not merely temporarily separated, and if the mother has obtained sole custody in accordance with Article 1626a § 2 of the Civil Code, Article 1672 § 1 of the Civil Code provides that the family court may transfer sole custody to the father if one parent lodges the relevant application with the consent of the other parent. The application is to be granted if the transfer serves the child’s interest. By contrast, parents exercising joint parental authority before their separation either because the child was born in wedlock, the parents have married following the child’s birth or they have made a joint custody declaration, retain joint custody following their separation unless the court at the request of one parent awards sole custody to the latter in accordance with the child’s best interest pursuant to Article 1671 of the Civil Code. On 29 January 2003 the Federal Constitutional Court found that Article 1626a of the Civil Code was unconstitutional because it lacked a transitional period for unmarried couples with children who were living together in 1996 but who had separated before the amended Law on Family Matters entered into force on 1 July 1998 (that is, those who were unable to make a joint custody declaration). In order to resolve the above-mentioned constitutional flaws, the German legislature introduced Section 224 (2) (a) of the Introductory Act to the Civil Code (Einführungsgesetz in das Bürgerliche Gesetzbuch) on 31 December 2003, according to which a court may substitute the mother’s consent to joint custody at the father’s request if an unmarried couple have a child born out of wedlock, have lived together with the child for at least six months without interruption and separated before 1 July 1998, provided that joint custody would serve the best interests of the child (Kindeswohl). In its judgment of 29 January 2003 the Federal Constitutional Court also held that Article 1626a § 2 of the Civil Code, apart from the lack of a transition period, did not breach the right to respect for the family life of fathers whose children had been born out of wedlock. However, in a subsequent judgment of 21 July 2010 referring, inter alia, to the Court’s findings in the case of Zaunegger v. Germany (no. 22028/04, 3 December 2009), the Federal Constitutional Court found that to generally exclude a father of a child born out of wedlock from parental authority in the event that the child’s mother had refused to give her consent, without providing the possibility of the father obtaining a judicial review of whether joint custody or the transfer of sole custody would be in the child’s interests, had violated the father’s parental rights guaranteed under Article 6 § 2 of the German Basic Law. The Federal Constitutional Court consequently decided that Articles 1626a § 1 no. 1 and 1672 § 1 of the German Civil Code were unconstitutional and – pending the entry into force of the necessary statutory amendments – had to be applied with the proviso that the family courts transfer joint or sole custody at the request of a parent if such a transfer was considered to be in the child’s interest.