WILDGRUBER v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Mr Erwin Wildgruber, is a German national who was born in 1935 and lives in Harmstorf. He is represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld. He lodged the application also on behalf of his two children Jan-Moritz (J.-M.) and Peer Alexander (P.). The applicant and Mrs W.-L. (born in 1965) married in May 1994. Their son P. was born on 30 November 1994. The applicant further adopted Mrs W.-L.’s son J.-M. who was born on 19 April 1991. Since the spouses’ separation in May 1997, both children live with Mrs W.-L. On 29 October 1997 the Winsen (Luhe) District Court held a hearing in which the applicant and his wife reached an agreement on the applicant’s access to his children. According to that agreement, the applicant was entitled to personal contacts with his children, then aged six and two respectively, every Wednesday after school until 6 p.m., every second week-end from Friday 6 p.m. until Sunday 6 p.m., during all school holidays up to half of their duration and on Christmas, Easter and Pentecost on the second public holiday. On 13 November 1998 the Winsen (Luhe) District Court, after having heard the parties and J.-M., restricted the applicant’s right of access to every second week-end from Friday 6 p.m. to Sunday 6 p.m. and to the first half of all school holidays, with the exception of the Christmas holidays, in which he was granted access in their second half. In June 1999, following the exercise of his right of access, the applicant refused to bring the children back to their mother and travelled around with them in Germany without informing her of their whereabouts. On 20 July 1999 the Winsen (Luhe) District Court granted Mrs W.-L. sole custody of J.-M. and P. and ordered the applicant to render the children to Mrs W.-L. In November 1999 the applicant returned the children to their mother. On 11 September 2000 the applicant lodged a motion with the Winsen (Luhe) District Court to amend its decision dated 13 November 1998 and to broaden his right of access to his children. In particular, he applied to be granted access not only every second week-end and during half of all school holidays, but also every Wednesday after (nursery) school, during part of the public holidays, further public holidays possibly fixed by law in the future and his children’s birthdays once in two years. On 6 November 2000 the Harburg Youth Office submitted its report after having heard the applicant and Mrs W.-L. on the question of access. Its representative, a social pedagogue, summarized the spouses’ diverging views on an extension of the applicant’s right of access. She took the view that it was up to the District Court to decide on this issue, as mediation by the Youth Office between the spouses had no prospects of success. The representative further stated that she did not hear the spouses’ children (then aged nine and five) as they were to be questioned in court soon and she wished to spare them another hearing within a short period of time. On 14 November 2000 the Winsen (Luhe) District Court held a hearing in which it questioned the spouses and their children in person. Both J.-M. and P. stated that they wished to visit their father also during the week from time to time. P. said that he also wanted to celebrate his birthday at his father’s place, but that his mother had told him not to express this wish at the hearing. On 28 November 2000 the Winsen (Luhe) District Court supplemented its decision dated 13 November 1998. Relying on section 1684 of the Civil Code it ordered that the applicant’s right of access during the first half of the school holidays began at 10 a.m. on the first day and ended at 6 p.m. on the last day of access. Apart from that completion, it dismissed the applicant’s motion to amend its decision dated 13 November 1998. Having regard to the Youth Office’s written report dated 6 November 2000, the District Court found that granting the applicant access to his children more often than fixed in its decision of 13 November 1998 was not in the children’s best interests. As to the applicant’s motion to be granted access also on Wednesdays and on public holidays the District Court observed that Mrs W.-L. had sole custody of the children who resided with her. They needed to be stabilized in the central place of their life and residence and should not be torn between their parents. For the same reasons, it was not in the children’s best interests to broaden the applicant’s right to personal contacts during the school holidays. In view of the serious tensions between the spouses it had, however, been necessary to fix exact times for the beginning and end of the applicant’s right of access. As to the applicant’s motion to be granted access to his children also on their birthdays, the District Court took the view that it was in the children’s best interests to pass their birthdays with the parent having custody, where they could celebrate with friends and possibly relatives in adequate surroundings. Moreover, as it was more likely that the legislator suppressed public holidays instead of creating new ones, it was unnecessary to grant a right of access for public holidays possibly fixed in the future. The District Court took the view that the applicant’s request for further contacts was directed at circumventing Mrs W.-L.’s sole custody of their children. Given that in 1999 the applicant had failed to return the children to their mother following the exercise of his right of access and had been travelling around with them for several months without informing her of their whereabouts, this was unacceptable. On 15 December 2000 the applicant lodged an appeal against the District Court’s decision. In his reasoning dated 30 January 2001 he complained in particular that the District Court had failed to take into account the specific circumstances of his case, in particular the fact that his sons wanted to see him more often, had refused to obtain an expert report and had failed to appoint a curator ad litem. Referring to the standards established in the Court’s judgment of 13 July 2000 in the case of Elsholz v. Germany, he further took the view that his children and a psychological expert should be heard in the appeal proceedings. On 1 March 2001 the Harburg Youth Office filed a written report. Without having heard the spouses again and without having heard their children, its representative took the view that the wishes expressed by children of the age of J.-M. and P. were not decisive for the extent of access which was in their best interests. Otherwise, parents conscientiously or unconscientiously would tend to influence their children according to their own wishes. There was no danger of alienation between the appellant and his children if the present regulation on access was complied with. It was essential for the children to know where their main place of life and residence was after the appellant had travelled around with them in Germany for four months in 1999, without informing their mother of their whereabouts. On 27 March 2001 the Celle Court of Appeal, without holding a hearing, dismissed the applicant’s appeal as ill-founded. In the court’s view, the extent of personal contacts as ordered by the District Court in its decision dated 13 November 1998 were sufficient to cultivate and develop the relationship between the appellant and his children. According to the court’s own experience, it was in the best interests of children aged nine and six like J.-M. and P. to have one main place of residence where they passed their everyday life and met friends. The children lived with their mother. Even though his children enjoyed visiting him, broadening the appellant’s access to them would de facto make them reside at two places. In view of the very serious tensions between the parties, this would unsettle them and make them feel not to know where they belong. For the same reasons, the Court of Appeal confirmed that the appellant’s contacts with his children during the holidays and on further public holidays should not be broadened. The Court of Appeal further agreed with the District Court that the appellant should not be granted access to his children on their birthdays. It was in the children’s best interests to pass their birthdays at their home in order to be able to celebrate with children living in their neighbourhood. It endorsed the reasons given by the District Court in respect of the appellant’s further motions. In the Court of Appeal’s view, it had not been necessary to appoint the children a curator ad litem in the present proceedings in order to represent them and to protect their interests. In particular, given the children’s age, it was not yet their subjective wish to broaden their contacts with their father, but their objective best interests not to disturb their prosperous development which was decisive. On 4 May 2001 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that the family courts had dismissed his motion to be granted more personal contacts with his children without consulting an expert, without appointing a curator ad litem and without hearing the parents and the children in the appeal proceedings. He argued that thereby, his parental rights and his rights to equality and to be heard as guaranteed by the Basic Law and by Articles 6 and 8 of the Convention had been violated. On 1 July 2002 a panel of three judges of the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It referred to sections 93 a and b of the Federal Constitutional Court Act allowing the panel not to accept complaints for adjudication which are not of fundamental constitutional significance and the acceptance of which is not necessary to enforce a complainant’s rights under the Basic Law. In accordance with section 93 d § 1, third sentence, of the said Act, the court did not give reasons for its decision.