WILHELM v. GERMANY
Inadmissible
Matti Pellonpää
The first applicant is a German national, born in 1963 and living in Wiefelstede. He is a lawyer by profession. He also brings the application on behalf of his daughter, born in wedlock in 1985. A. In 1991 the applicant and his wife Mrs G. separated. The ensuing divorce proceedings before the Ludwigshafen am Rhein District Court (Amtsgericht), sitting in family matters (Familiengericht), concerned inter alia the question of custody over the spouses’ children Daria and Julian, born in wedlock in 1987, and involved the taking of psychological expert evidence. Divorce was granted on 26 March 1993. Moreover, upon the spouses’ common proposal, custody of the daughter Daria was awarded to the applicant, and custody of Julian was awarded to Mrs G. Subsequently, Mrs G. remarried. The applicant married again in 1993 and his son Malte was born in October 1993. In November 1994 Mrs G. applied to the Ludwigshafen District Court to be awarded custody of Daria. She submitted that Daria did no longer wish to live with the applicant. The applicant contested these submissions. It appears that he also requested that he be awarded custody of Julian; these proceedings were conducted separately. On 23 December 1994 the Ludwigshafen District Court, having twice heard Daria, issued an interim injunction provisionally transferring the right to determine Daria’s place of residence (Aufenthaltsbestimmungsrecht) to Mrs G. Daria has been living with Mrs G. since. On 30 June 1995 the applicant withdrew his appeal following a hearing before the Zweibrücken Court of Appeal (Oberlandesgericht) which had also questioned the child. On 17 November 1995 the Ludwigshafen District Court amended the decision of 26 March 1993 and awarded the custody of Daria to Mrs G. The District Court, referring to section 1696 of the Civil Code (Bürgerliches Gesetzbuch) and the case-law of the Federal Court of Justice (Bundesgerichtshof), observed that decisions on custody should only be changed, if there were valid reasons seriously affecting the child. Having heard the parents and in particular Daria, the court found that the child did no longer wish to live with the applicant, but with Mrs G. It considered that Daria’s wish had to be respected. She had unequivocally expressed her wish in court on 20 December 1994 and 27 October 1995. As stated in the opinion submitted by the competent youth office, she had made the same statement when heard at the youth office. In the court’s view, the argument that this wish had been influenced by third persons was not valid. In particular, she had decided to live with her mother although she could expect the difficulties of being involved in court proceedings. Her statements in court had appeared true and genuine, and she had upheld her position over a lengthy period during which she had regularly access to the applicant, including holidays. On 23 April 1996 the Zweibrücken Court of Appeal dismissed the applicant’s appeal. The Court of Appeal, having heard the applicant and Mrs G., Daria and an employee of the competent youth office, found that the custody decision had to be changed in the interest of the child. In this respect, it noted that, upon divorce, custody of Daria had been awarded to the applicant in accordance with the spouses’ common proposal. Following the preliminary injunction issued by the District Court in December 1994, after having heard Daria twice, she had been living with Mrs G. In this period, Daria had changed from primary to secondary school without problems. The competent youth offices had confirmed that both parents were capable of educating children. Daria was meanwhile living together with her brother Julian. Given the bonds between brother and sister, as confirmed at the hearing, it was also in Daria’s interest that they grew up together. Moreover, at least in the meantime, a closer relationship had developed between Daria and Mrs G. Daria’s repeated questioning had shown that she felt safer with her mother and had more personal care and definitively wished to live with Mrs G. There was no indication that Daria’s statements had been caused by Mrs G. and did not reflect Daria’s own wish. Although Daria had not yet completed the age of 14 and had no formal right of veto, the statement of her will had to be respected as act of self-determination. In these circumstances, the Court of Appeal regarded as decisive that Daria’s future well-being and development would suffer, if her firm wish to live with Mrs G. was broken and she be forced to return to the applicant. Awarding custody to Mrs G. was, therefore, in the interest of Daria’s well-being. Furthermore, as regards the applicant’s subsidiary request for joint custody, the Court of Appeal, referring to the case-law of the Federal Constitutional Court (Bundesverfassungs-gericht), observed in particular that joint custody presupposed both parents’ willingness to share the responsibility for the child after divorce. However, Mrs G. had refused joint custody, arguing that the applicant was not ready for cooperation and would impose his will. The Court of Appeal considered that a parent refusing joint custody was in a position to exclude the other parent from custody. However, such a refusal was not necessarily abusive and therefore irrelevant. Rather, the child’s interests were of paramount importance. In the absence of any willingness to cooperate in the child’s education, joint custody could not be regarded as being in the interest of the child’s well-being. On 23 July 1996 the Federal Constitutional Court refused to entertain the applicant’s constitutional appeal. B. Relevant domestic law and practice Section 1671 §§ 1 and 2 of the Civil Code, as in force at the relevant time, provided that, in case of the parents’ divorce, the competent court decided on which parent should have custody of a common child, and took the decision which was in the interest of child’s well-being; the child’s bonds, especially to its brothers and sisters, were to be considered. A common proposal by the parents was only to be disregarded if necessary in the interest of the child. In a decision of 3 November 1982, the Federal Constitutional Court declared unconstitutional paragraph 4, first sentence, of Section 1671, according to which custody had to be awarded to one of the parents in case of divorce. The Constitutional Court considered that a joint right to custody was possible in case of divorce if there is a common proposal by the parents to this effect, showing their willingness to share the responsibility for their child after their divorce. According to section 1696 of the Civil Code, as in force at the relevant time, the competent courts may change their decisions relating to custody matters at any time, if necessary in the interest of the child (im Interesse des Kindes). The relevant legislation has been amended on the basis of the Government Bill of 28 February 1996 on the reform of the law on family matters. This reform of 16 December 1997, which has entered into force on 1 July 1998, harmonises the rules regarding children born in wedlock and children born out of wedlock. Section 1671 of the Civil Code, as amended, provides that, in case of a definite separation of parents who jointly exercise custody, each parent can request for a sole exercise of custody. The competent court will grant the request if (1) the other parent agrees, unless the child having completed the age of 14 disagrees, or if (2) the termination of joint custody and award to the one parent most likely serves best the child’s well-being. According to section 1696, as amended, the competent courts shall change their decisions if there are valid reasons seriously affecting the child (triftige, das Wohl des Kindes nachhaltig berührende Gründe).