CASE OF ANAYO v. GERMANY
Violation of Art. 8;Non-pecuniary damage - award
Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
7. The applicant was born in 1967 and lived in Achern, Germany, before moving to Spain in 2008. 8. The applicant, who was born in Nigeria, entered Germany in 2003 and applied for asylum. His asylum request was dismissed, a decision which became final in February 2006. 9. Starting in June 2003 the applicant had a relationship with Mrs B. who was married to Mr B.; the spouses have three children born in 1996, 1998 and 2000. Although she initially considered a divorce, Mrs B., who never lived with the applicant, left the applicant in August 2005 and lived with her husband, Mr B., and the children again. 10. In December 2005 Mrs B. gave birth to twins. The applicant is the biological father of the twins. Mr and Mrs B. are bringing up the twins together. According to Article 1592 no. 1 of the Civil Code (see paragraph 28 below), Mr B. is their legal father. Mr and Mrs B. repeatedly refused requests made by the applicant, both before and after the twins’ birth, to be allowed contact with the twins. 11. On 27 September 2006 the Baden-Baden District Court, having heard the applicant and Mr and Mrs B. in three hearings, granted the applicant contact with the twins once per month for one hour, initially in the presence of a third person and of either Mr or Mrs B. if they wished to be present. 12. The District Court found that the applicant was entitled to access under Article 1685 § 2 of the Civil Code (see paragraph 27 below) as he was a person with whom the children had close ties. The fact that he had not yet borne any responsibility for the children did not hinder that entitlement, as the applicant had had no possibility to take such responsibility since the twins had been born in December 2005. Hence his access rights could not be denied. 13. The District Court further considered that contact between the applicant and the twins was in the children’s best interest. It agreed with the findings of the psychological expert it had consulted, who, having heard Mr and Mrs B. and the applicant, had concluded that contact with the applicant was beneficial for the children’s welfare. Particularly in view of their African-German origins, a relationship with the applicant, their natural father, would be essential for them to get to know their roots, to build up their identity, to understand why they were different and to develop normal self-esteem. The District Court also found that the applicant’s access rights could not be delayed any further as they were being increasingly contested by Mr and Mrs B. The applicant’s access to the twins would not adversely affect Mr and Mrs B.’s other three children because, as the psychologist had convincingly argued, dealing frankly with the realities would be in the best interest of all concerned. 14. In coming to its decision, the District Court took into consideration that when Mrs B. and the applicant had separated in August 2005, the applicant had agreed that the twins could stay with the B. family but had stated that “he wanted to have a chance in the asylum proceedings”. He had subsequently asked to be granted access to the twins after their birth, which Mr and Mrs B. had refused. He had argued that if he did not stay in Germany, it would be impossible in practice for him to have any contact with his children and build up a relationship with them. In Mr and Mrs B.’s submission, the applicant wanted access to his children only in order to obtain a residence permit in Germany. The psychological expert, for her part, stated that it appeared that Mr and Mrs B. were now interpreting the applicant’s relationship with Mrs B. – wrongly and in accordance with common prejudices – as a mere attempt to obtain a residence permit, in order to blame him for their own difficult situation. 15. On 12 December 2006 the Karlsruhe Court of Appeal allowed an appeal lodged by Mr and Mrs B., quashed the decision of the District Court and dismissed the applicant’s request for access to the twins. 16. The Court of Appeal found that the applicant was not entitled to access to the children under Article 1684 of the Civil Code (see paragraph 26 below) because the provision only referred to the entitlement of the legal father (as opposed to the biological father), who in the present case was Mr B. (Article 1592 no. 1 of the Civil Code, see paragraph 28 below). As the children were living with their legal father, the applicant was also not entitled to acknowledge paternity (Article 1594 § 2 of the Civil Code, see paragraph 29 below) nor could he contest Mr B.’s paternity (Article 1600 § 2 of the Civil Code, see paragraph 30 below). 17. The Court of Appeal further found that the applicant was not entitled to access under Article 1685 of the Civil Code. Being the biological father of the twins, he was, in principle, considered a person with whom the children had close ties (enge Bezugsperson) within the meaning of that provision. He nevertheless had not fulfilled the remaining requirements of Article 1685 of the Civil Code, as he had not borne any responsibility for the children in the past and thus had no social and family relationship with them. 18. As the applicant was therefore not entitled to claim access, it was irrelevant whether contact between him and the twins was in the children’s best interests. 19. The fundamental right to respect for one’s family life and one’s parental rights under Article 6 of the Basic Law (see paragraph 24 below) and Article 8 of the Convention did not require a different interpretation of the provisions of the Civil Code. With regard to Article 6 of the Basic Law, the Court of Appeal found that the applicant, being the biological, but not the legal father of the twins, was not a “parent” within the meaning of paragraph 2 of that provision, in particular because the coexistence of two fathers was not consistent with the notion of parental responsibility. Moreover, Article 6 § 1 of the Basic Law protected the access of the biological father to his child only where a social and family relationship between them had already existed in the past; it did not protect the wish to build up a relationship with the child in the future. The reasons why there was no relationship between the biological father and the child were irrelevant. 20. The Court of Appeal noted that the refusal to grant the applicant access to the children would mean that he would be unable to build up a relationship with them and would be expelled to Nigeria. Therefore, the children would most probably never be able to get to know their biological father. However, that was because the twins lived in a family together with their legal father who was actually assuming the father’s role. It was the legislator’s evaluation, expressed in Article 1600 § 2 of the Civil Code, that the existing relationship between legal father and child took precedence over the relationship between biological father and child. 21. With regard to Article 8 of the Convention, the Court of Appeal observed that there had never been a family bond between the applicant and the twins. It also distinguished the present case from the case of Görgülü v. Germany (no. 74969/01, 26 February 2004) inasmuch as the applicant in that case had also been the legal father of his child and had obtained the right to custody. 22. On 29 March 2007, without giving reasons, the Federal Constitutional Court declined to consider the applicant’s constitutional complaint, in which he had claimed that the refusal to grant him access to the twins had violated his right to respect for his family life (file no. 1 BvR 183/07). 23. On 15 May 2007 the Freiburg Administrative Court dismissed the applicant’s request for an interim order suspending his expulsion until the European Court of Human Rights had decided upon his application. The applicant did not appeal against that decision. The main proceedings before the Freiburg Administrative Court, in which the applicant again applied for a residence permit, are apparently still pending. The applicant moved to Spain in 2008. 24. Article 6 of the Basic Law, in so far as relevant, provides: (1) Marriage and the family shall enjoy the special protection of the state. (2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty. 25. Parental custody includes the right to determine access to the child (Article 1632 § 2 of the Civil Code). 26. According to Article 1684 § 1 of the Civil Code, a child has a right of access to each parent, and each parent in turn has the right and the duty to have contact with the child. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties (Article 1684 § 3). They may restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child’s well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office or an association (Article 1684 § 4). 27. Article 1685 § 2 of the Civil Code, in its version applicable at the relevant time, provides for persons with whom the child has close ties (enge Bezugspersonen) to have a right of access to the child if this serves the child’s best interest and if they are bearing actual responsibility for the child or have done so in the past (social and family relationship). It is to be assumed, as a rule, that a person who lived with the child in domestic community for a lengthy period of time has borne such actual responsibility. Article 1684 §§ 3 and 4 apply mutatis mutandis. 28. According to Article 1592 of the Civil Code, a child’s father is either the man who at the date of the child’s birth was married to the child’s mother (no. 1), or the man who acknowledged paternity (no. 2) or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3). 29. An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code). 30. Paternity may be challenged. Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child’s mother during the period of conception. However, pursuant to § 2 of Article 1600, this last man has a right to challenge the paternity of the man who is the child’s legal father under Article 1592 nos. 1 or 2 only if he is the child’s biological father and if there is no social and family relationship between the legal father and the child. 31. If there is no paternity under Article 1592 nos. 1 or 2 of the Civil Code, it is to be established by the family court (Article 1600d § 1 of the Civil Code). 32. Research undertaken by the Court in relation to 23 Council of Europe Member States shows that there is no uniform approach in the Member States of the Council of Europe to the question whether, and if so, under what circumstances, a biological father (who is not only a sperm donor) has a right to contact with his child where a different father exists in law. 33. In a considerable number of States (comprising, in particular, Bosnia and Herzegovina, Estonia, France, Ireland, Portugal, Russia, Slovenia, Spain, the United Kingdom and Ukraine), where a child is born to a woman who is living with her husband, a biological father can ensure his contact rights by challenging, first, the paternity presumption in place, partly within a fixed time-limit. In these States, as indeed in all of the countries surveyed, a presumption exists in law to the effect that a child born of a married woman during the subsistence of the marriage is presumed also to be the child of her husband. Having been recognised as the (legal) father of the child concerned, the biological father then has a right to contact with his child like any other non-custodial parent, subject to the child’s best interests. 34. According to an expert report drawn up in March 2010 by the German Institute for Youth Human Services and Family Law (Deutsches Institut für Jugendhilfe und Familienrecht e.V., a registered association and non-governmental organisation), which has been submitted by the Government, the same applies in Greece. That report, however, interprets differently the provisions applicable in France and Spain. Research undertaken by the applicant confirms the Court’s research notably in respect of the legal situation in France and Spain. The applicant submits that a biological father may also challenge the legal father’s paternity in circumstances similar to those in the present application in several further countries, inter alia, in Norway. 35. In a considerable number of Council of Europe Member States, according to the Court’s research, the biological father of a child would, on the contrary, not be able to challenge the said paternity presumption in circumstances similar to those in the present application (see, in particular, Azerbaijan, Belgium, Croatia, Finland, Hungary, Italy, Latvia, Luxembourg, Monaco, the Netherlands, Poland, Slovakia and Switzerland). Biological fathers in those countries lack standing to bring an action to challenge that presumption either in all circumstances or at least in cases in which the mother is still living with her husband (see in this latter respect the law in force in Belgium and Luxembourg). 36. According to the expert report drawn up by the German Institute for Youth Human Services and Family Law submitted by the Government, the same applies in Austria, the Czech Republic, Denmark, Liechtenstein, Sweden and Turkey. The applicant interprets differently the provisions applicable in Italy and Switzerland; the report submitted by the Government, however, confirms the Court’s findings in respect of the legal situation in these countries. 37. In those latter Member States, it is thus only open to the biological father to apply for contact as a third party, not as a parent. However, in some of these States (Azerbaijan, Croatia, Finland, Hungary, Italy, Luxembourg and Poland) the biological father does not have standing to apply for contact as a third party either as the law provides a right of contact only to legal parents and (partly) to other relatives. 38. According to the expert report of the German Institute for Youth Human Services and Family Law submitted by the Government, the biological father would also not have standing to apply for contact in Liechtenstein and in the Czech Republic. 39. In the remaining Member States surveyed by the Court in which the paternity presumption may not be challenged by a biological father (Belgium, Latvia, Monaco, the Netherlands, Slovakia and Switzerland), different pre-conditions apply for that father to be granted contact if such contact is in the child’s best interests. According to Article 375 bis of the Belgian Civil Code, there has to be “proof of a tie of special affection with the child”; according to Article 181 § 3 of the Latvian Civil Code, the father must have lived together with the child for a long time in the same household. In Monaco a third person can be granted contact by a judge where that would be in the best interests of the child, without additional pre-conditions having to be met (compare Article 300 of the Monegasque Civil Code). In the Netherlands, third persons (including mere sperm donors) may be granted contact under Articles 1:377f and 1:377a § 3 of the Civil Code of the Netherlands if they have a close personal relationship with the child unless contacts run counter to the child’s best interests. According to Section 25 § 5 of the Slovakian Family Act, the biological father may be granted access if he is to be regarded as a “close person” to the child (according to the expert report submitted by the Government, a similar provision applies in Sweden) and according to Article 274a of the Swiss Civil Code, he has a right to contact in exceptional circumstances (according to the expert report submitted by the Government, the same precondition applies in Turkey). 40. According to the report submitted by the Government, Section 20 of the Danish Act on Parental Responsibility provides that access may only be granted to close relatives having close personal ties with the child concerned if the parents have no or hardly any contact with the child. That report further states that under Article 148 § 3 of the Austrian Civil Code, a biological father may be granted access to his child if the child’s welfare is endangered otherwise.