ENKE v. GERMANY
Inadmissible
André Potocki;Angelika Nußberger;Dean Spielmann;Karel Jungwiert;Mark Villiger;Paul Lemmens
The applicant, Mr Jens Enke, is a German national, who was born in 1957 and lives in Cuxhaven. He was represented before the Court by Ms B. Barbe-Becker, a lawyer practising in Bremerhaven. The applicant’s son was born out of wedlock in April 1994. Following the marriage with the child’s mother the applicant acquired joint custody (gemeinsame Personensorge) in the same year. In February 1998 the couple separated. The applicant’s wife and their common son moved to another flat in October 1999. However, the child stayed three days a week with the applicant until 18 July 2000. On 1 July 1999 the child’s mother requested the Cuxhafen District Court to transfer the right to determine where the child should reside (Aufenthaltsbestimmungsrecht) to her. On 18 August 1999 the applicant requested that custody of the child or, alternatively, the right to determine where the child should reside be transferred to him. On 19 August 1999 the child’s mother submitted an interim request to the District Court to award custody provisionally to her. During a hearing before the District Court on 20 August 1999 the child’s mother requested that custody of the child be transferred to her. By decision of 20 August 1999 the District Court ordered a psychological expert opinion to which parent custody of the child should be transferred. The expert, having examined the parents and the child, submitted an expert opinion, running 86 pages long, on 22 May 2000. The expert found that the child should reside with his mother and recommended to render a joint custody regulation provided that the parents would overcome their personal disputes by using professional assistance. On 23 June 2000 the applicant submitted an interim request to the District Court to provisionally award him the right to determine where the child should reside. During a hearing before the District Court on 26 June 2000 the applicant withdrew his custody request and confined his application to the right to determine the child’s place of residence. By decision of 18 July 2000 the District Court granted the child’s mother sole custody for the time the parties lived separately. The court held that the child had a closer emotional link with his mother and should therefore remain with her. It further found that under the present circumstances joint custody would not serve the child’s benefit due to the ongoing disputes between the parents and their failure to agree on basic decisions concerning the child. By decision dated 5 January 2001 the Celle Court of Appeal dismissed the applicant’s complaint against the District Court’s decision. It expressed misgivings as to whether the parents were willing to cooperate. The Celle Court of Appeal had regard to the tensions between the applicant and his wife and considered that the parents did not appear to be able to jointly decide important questions in the child’s best interest. By written submission to the Cuxhaven District Court dated 13 March 2001, the applicant requested to amend the custody regulation. The applicant submitted that the situation had significantly changed. The parties were now willing and able to cooperate for the child and to make common decisions. The applicant invited the District Court to order joint custody in case that the pending divorce proceedings became final. He further requested the District Court to appoint a guardian ad litem for the child. During a hearing before the District Court on 16 March 2003 the applicant’s wife opposed the request for joint custody. During another hearing before the District Court on 31 August 2003 counsel of the applicant’s wife declined any friendly settlement in respect of the custody regulation. Neither the applicant’s wife nor their son attended this hearing. By judgment dated 31 October 2003 the Cuxhaven District Court issued a divorce decree. Simultaneously, it dismissed the applicant’s request to order joint custody. In this respect the District Court relied on Section 1696 of the German Civil Code ( the “Civil Code” - see Relevant domestic law below) and found that the applicant had failed to submit any sound reasons (triftige Gründe) concerning the benefit of the child that might result in a change of the custody regulation. The applicant appealed. He pointed out, inter alia, that the custody decision was no longer up to date. The applicant submitted that the tensions had loosened against the background of the divorce proceedings and that the cooperation with the child’s mother proved to be working in daily routine. The applicant further stressed that the custody decision of the District Court had been for the time of separation only and, thus, had had a temporary character. He requested the Celle Court of Appeal to order a new expert opinion and to hear the child’s mother in person. On 12 March 2004 the Celle Court of Appeal dismissed the applicant’s complaint. It relied on Sections 1696 and 1671 § 2 of the Civil Code. Referring to the case law, it underlined that joint custody and sole custody did not establish a relationship of rule and exception in a way that sole custody of a parent could be regarded as ultima-ratio. The court stated that it was insufficient for an amendment of a custody decision to be compatible with the well-being of the concerned child, but rather that the advantages sought by the amendment had to clearly outweigh the inherent disadvantages. It held that the applicant’s complaint did not state any sound reason for the change of the custody regulation. Even assuming the alleged practise of joint custody in daily routine, the Celle Court of Appeal considered that in addition a shared willingness of both parents to reestablish joint custody was necessary. That in turn could not be assumed in view of the refusal of the applicant’s wife to change the custody regulation. Moreover, the Celle Court of Appeal was of the opinion that the applicant could not rely on a change of the circumstances the previous custody decision had been based on, namely that the parents had abandoned their dispute during their separation on the child’s upbringing and were willing to communicate. It observed that there was no indication that the child would indeed profit from joint custody and the applicant’s participation in making decisions of far-reaching consequences. By written submission dated 23 April 2004, the applicant lodged a constitutional complaint, alleging that the courts failed to review the custody decision made during the separation phase after the divorce proceedings proprio motu. He argued that the high threshold level implied in Section 1696 of the Civil Code for a change from sole custody to joint custody rendered an amendment without the consent of the other parent impossible even if joint custody was practised in everyday life. On 22 June 2007 the Federal Constitutional Court refused to admit the constitutional complaint for adjudication without giving further reasons. Pursuant to Article 6 § 2 of the German Basic Law 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 relevant provisions of the Civil Code read as follows: Section 1671 Living apart and joint parental custody “(1) If parents who exercise joint parental custody, live apart for a period that is not merely temporary, each parent may apply for the family court to transfer parental custody or part of the parental custody to him alone. (2) The application is to be granted to the extent that 1. the other parent consents, unless the child has reached the age of fourteen and objects to the transfer, or 2. it is to be expected that the termination of the joint parental custody and the transfer to the applicant is most conducive to the best interests of the child (...)”. (...) Section 1696 Amendment of judicial decisions and of court-approved settlements “(1) The decision on the right of custody or of access or a court-approved settlement must be amended if this is appropriate for sound reasons which affect the benefit of the child in the long term. (...). “