CASE OF HOPPE v. GERMANY
No violation of Art. 8;No violation of Art. 6-1;No violation of Art. 14+8
Ireneu Cabral Barreto
10. The applicant was born in 1957 and lives in Herne. In April 1990 a daughter, Svenja, was born to the applicant and his wife. In December 1992 the applicant and his wife separated. Svenja stayed with her mother. In 1994 the applicant's wife instituted divorce proceedings before the Wuppertal District Court (Amtsgericht). She requested that parental authority over Svenja be granted to her. The applicant applied for joint parental authority. Furthermore, the applicant requested that his right of access to Svenja be determined by a decision of the court. In these and the related proceedings, both spouses were represented by counsel. 11. On 19 October 1994 the Wuppertal District Court, following hearings on 22 June and 17 October 1994, decided that, pursuant to Article 1634 of the Civil Code (Bürgerliches Gesetzbuch) (see paragraph 31 below), the applicant was entitled to see Svenja every second Saturday as well as on St Stephens day, Easter Monday and Whit Monday. 12. The District Court reaffirmed the principle that to maintain personal relations between a father and his child, subject to the best interests of the child, was a decisive factor when determining the right of access. Against this background, the District Court considered that the applicant's previous and extensive rights of access had, at least for the time being, to be reduced to visits once per fortnight. All the experts heard in the proceedings, i.e. the psychological expert (report of 14 June 1994), the therapeutic pedagogue and a social worker of the Barmen Diaconate Institution (Diakonisches Werk), gave evidence that the four-year old child was exposed to a conflict of loyalty, which she experienced as a strong pressure, and that she could not cope with this situation. While it was true that Svenja was fond of the applicant and would be in a position to see him without fear if her parents managed to create an atmosphere which took the pressure off her, they had not been able to do so. The frequency of visits requested by the applicant could not, for the time being, be handled by Svenja. Although the applicant was aware of his daughter's problems, he was incapable of accepting restrictions on access and did not show concern for the child's psychological health. Svenja's mother had not yet managed to give Svenja such a feeling of security as to permit her to visit the applicant without feelings of fear. Svenja therefore needed the intervals of two weeks as times of rest in her mother's household. 13. On 4 November 1994 the applicant lodged an appeal with the Düsseldorf Court of Appeal (Oberlandesgericht). 14. On 24 November 1994 the Court of Appeal informed the parties of its intention to decide in a written procedure. The applicant stated his preference for an oral hearing. 15. On 9 March 1995 the Düsseldorf Court of Appeal, after having granted the parties legal aid, amended the District Court's decision, increasing the applicant's right of access by ruling that every first visiting weekend per month the applicant was entitled to see Svenja from Saturday morning until Sunday evening. The remainder of his appeal was dismissed. 16. The Court of Appeal confirmed the findings of the District Court according to which a regular visit every second week best suited the child's welfare. In so deciding, the Court of Appeal had particular regard to the impact of the parents' difficult relations which were in conflict with the best interests of the child; the parents were not yet in a position to have a calm and objective discussion on questions relating to the right of access. On 21 February 1995 an attempt at organising a dialogue between the parents at the Parents' Counselling Service (Elternberatungsstelle) of the local Youth Office (Jugendamt) had failed. As long as there was no agreement between the parents, any visit was an emotional strain for the child. The applicant's right of access had therefore to be assessed in the context of the continuing conflict between the parents. 17. The Court of Appeal further found that the regular visits decided upon by the District Court best suited both the applicant's wishes and the child's welfare. The exercise of the right of access had functioned well since October 1994. In particular, the child had calmed down and her sleep was no longer troubled. The Court of Appeal, in agreement with the parties, further considered the report, dated 19 January 1995, of a social worker of the Elberfeld Diaconate Institution which had been obtained in the context of parallel proceedings concerning the exercise of parental authority. According to this report, no abnormality in Svenja's behaviour had been observed. The Court of Appeal found that this encouraging development did not yet permit a significant extension of the applicant's right of access. However, taking a cautious approach, the visit on the first weekend of every month could be extended to include one overnight stay. Having regard to the psychological expert's opinion of 14 June 1994, the objections previously raised by Svenja's mother were no longer valid. Should Svenja experience any problems, her mother would have to see to it that the child would consider the visits with an overnight stay as a usual matter. Any further contacts, such as overnight stays between every Wednesday and Thursday, routine telephone conversations and common holidays, were not yet possible, but could be envisaged in case the decision on access would prove successful. 18. The applicant referred the case to the Federal Constitutional Court (Bundesverfassungsgericht). On 13 June 1995 a panel of three judges of that Court refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde). 19. The Federal Constitutional Court considered that the applicant's complaint did not raise any issue of fundamental importance. In accordance with the case-law of that Court, both the right of access of a parent not entitled to parental authority and the right to exercise parental authority granted to the other parent were protected by the right to respect for family life under the Basic Law (Grundgesetz). The possibility, pursuant to Article 1634 § 2 of the Civil Code (see paragraph 31 below), to limit or exclude the right of access, if it was necessary for the child's welfare, guaranteed an adequate protection of the child's constitutional rights and ensured that the courts' decisions in the matter were governed by the child's best interests. 20. Furthermore, the Federal Constitutional Court found that the decision of the Court of Appeal did not disclose any fundamentally flawed views on parental rights. Thus, the Court of Appeal had considered the child's welfare. The reasoned decision that the visits could only gradually be extended could not be objected to from a constitutional point of view. Furthermore, there was no indication that the procedural requirements were not met. In particular, the applicant had not shown that, following the failure of a conversation between the former spouses at the Parents Counselling Service, the Court of Appeal was prevented from reaching the conclusion that a fresh hearing would not permit any new findings. 21. On 3 April 1996 the Wuppertal District Court granted the applicant, at his request, an increased right of access in that he was now entitled to see his daughter every second weekend between Saturday morning and Sunday evening and also for a period of two weeks of summer holidays. The District Court observed that the right of access such as that presently granted to the applicant enabled him to be sufficiently informed about Svenja's well-being and to have contacts with her, and also satisfied his daughter's need to be with her father. On the appeal of the child's mother, the Düsseldorf Court of Appeal amended this decision on 28 June 1996. It revoked the arrangement concerning the summer holidays but extended the applicant's visiting right to every weekend, after having heard the then six-year old Svenja, her parents and a representative of the Wuppertal Youth Office. 22. On 24 October 1994 the Wuppertal District Court, following an oral hearing on 17 October 1994, granted the parents' divorce on the ground of the breakdown of the marriage and awarded the mother, pursuant to Article 1671 of the Civil Code (see paragraph 32 below), parental authority over Svenja. 23. The District Court found that the issue of parental authority had been determined on the basis of what was in the best interest of the child. Having regard to the statements of the psychological expert in the proceedings concerning the applicant's right of access, the District Court noted that Svenja's mother educated and looked after her daughter in an atmosphere of love and understanding and took an intense interest in ensuring her well-being. According to the District Court, the conditions for the joint exercise of parental authority, requested by the applicant, were not met. In particular, the parents' relations with each other regarding Svenja, as well as their relations with Svenja, were not free of conflict. The applicant was not ready to accept that Svenja's living situation had changed following her parents' separation. As a four-year-old child, she needed a stable life without being torn between different apartments and different styles of education. The Court noted that, notwithstanding the applicant's interest in Svenja's well-being, he failed to see that his wishes obstructed Svenja's psychological development. 24. On 12 December 1994 the applicant lodged an appeal with the Düsseldorf Court of Appeal. 25. On 15 December 1994 the Court of Appeal requested Svenja's mother as well as the competent Youth Office to comment on the applicant's submissions on appeal. On 19 January 1995 the Elberfeld Diaconate Institution, upon the instructions of the competent Youth Office, submitted a report. The report contained arguments in favour of granting the applicant increased access rights. The parties were given the opportunity to comment upon that report in writing. The applicant stated his preference for an oral hearing. 26. On 9 March 1995 the Düsseldorf Court of Appeal refused to grant the applicant free legal aid and dismissed his appeal. 27. The Court of Appeal observed that the mutual willingness of the parents to co-operate, namely to continue of their own will to bear common responsibility for their child, was an essential condition for a reasonable joint exercise of parental authority. It was obvious that the joint exercise of parental authority by disagreeing parents would be a source of ongoing litigation which, as experience had shown, was detrimental to the child. In the present case the parents, in particular the child's mother, did not accept a sharing of responsibilities. In the proceedings regarding the applicant's right of access, which had been pending since March 1993, the parents had continuously had major disagreements, and the attempt at a dialogue in the framework of the Parents' Counselling Service had finally failed in February 1995. Therefore, if parental authority could solely be exercised by one of the parents, it had to be awarded to the child's mother for the reasons set out in the District Court's judgment. The applicant had not raised any serious objections to the reasoning set out in that judgment. 28. The Court of Appeal also considered that an oral hearing with the parties was not necessary, the relevant facts resulting clearly from the case-file. 29. On 13 June 1995 a panel of three judges of the Federal Constitutional Court refused to entertain the applicant's constitutional complaint. 30. The Federal Constitutional Court considered that the applicant's complaint did not raise any issue of fundamental importance. It recalled that when courts had to decide on the attribution of parental authority following the parents' divorce, they had to balance the positions of both parents without encroaching upon the parental priority in educational matters. In such cases, the courts were not, therefore, subject to the strict conditions in respect of interfering with parental rights. The legislator and, in application of the relevant legal provisions, the courts were entitled to transfer the main responsibility for the education of a child to one parent if the conditions for the joint exercise of parental authority were not met. Furthermore, according to the Federal Constitutional Court, the Court of Appeal's view that the conditions for ordering the joint exercise of parental authority were not met in the instant case could not be objected to from a constitutional point of view. Moreover, there was nothing to show that the Court of Appeal should have conducted further inquiries. 31. Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows (Court's translation): “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.” 32. Article 1671 §§ 1 and 2 of the Civil Code (Court's translation) provide as follows: “1. If the parents divorce, the family court decides to which of the parents parental authority over a common child should be awarded. 2. The court makes that determination on the basis of the best interests of the child; consideration shall be given to the child's ties, especially to his or her parents and brothers and sisters.” 33. The statutory provisions on parental authority and access are to be found in the Civil Code (Bürgerliches Gesetzbuch). 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. 34. Article 1626 § 1 reads as follows (Court's translation): “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.” 35. Exclusive parental authority now represents the exception to the rule of joint exercise of parental authority. Article 1671 (Court's translation) provides: “Where parents exercising joint parental authority are separated not merely temporarily, each parent may make an application to the family court to be awarded sole parental authority or part of sole parental authority. The application shall be allowed where 1. the other parent agrees, unless the child has completed the age of fourteen and objects to such sharing or 2. it may be expected that the withdrawal of joint parental authority and its transfer to the petitioner is in the best interests of the child.”