CASE OF SOMMERFELD v. GERMANY
No violation of Art. 8;Violation of Art. 14+8 with regard to right of access;Violation of Art. 14+8 with regard to right of appeal;Not necessary to examine Art. 14+6;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
11. The applicant, born in 1953, is the father of the child M., born out of wedlock on 25 January 1981. The applicant acknowledged paternity of M. 12. The applicant and the child’s mother lived together at the time of the child’s birth. They separated in September 1986. The child’s mother prohibited any contact between the applicant and the child. The applicant still met M. several times at school until such contact was no longer possible. Subsequently the child’s mother married Mr W., the father of her child A., born in August 1985, W. being the common family name. 13. On 2 October 1990 the applicant applied to the Rostock District Court for a decision granting him a right of access to his daughter. Having heard the persons concerned, the Rostock Youth Office, in comments dated 11 April 1991, advised against a right of access. The Youth Office submitted that M. had established a close relationship with Mr. W., which would be adversely affected by contact between M. and her natural father. It also stated that M., when heard in the absence of her mother, had indicated that she was not keen to see the applicant and was suffering as a result of his continuing efforts to obtain access. 14. On 27 June 1991 M., then ten years old, was heard by a judge of the District Court. She stated that the fact that the applicant was always standing at the fence of the schoolyard disturbed her and that she did not wish to visit the applicant even if access should be ordered by the court. 15. At a court hearing on 31 July 1991, the applicant and the child’s mother declared that they would attempt to settle the question of a visiting arrangement with the assistance of the Youth Office. On 30 September 1991 the Youth Office informed the District Court that no agreement had been achieved and that M. had stated that she did not wish to see the applicant. 16. On 12 December 1991 the court ordered that a psychological expert opinion be prepared. On 9 April 1992, in one-page submissions, the psychologist of the Rostock Health Services stated that, as contact between the applicant and M. had been disrupted for six years, no diagnosis of their current relationship appeared possible. The psychologist considered that the views which the applicant and M. had expressed on the question of future contact were very different. M. was growing up in a family unit and, unlike the applicant, was not suffering from any deficits in that respect, and did not wish to have any personal contact with the applicant. He should give her the necessary time to take up contact of her own motion. The psychologist noted that she had arranged a meeting between the applicant and M. which, however, had been cancelled by M.’s stepfather. 17. On 24 June 1992 the District Court judge heard the applicant and M. in the presence of the psychological expert. M. having repeatedly stated that she did not wish to have contact with the applicant, the latter affirmed that he would withdraw his request for a right of access. 18. The applicant withdrew his request on 1 July 1992. 19. On 13 September 1993 the applicant again applied to the District Court for a right of access to his daughter. 20. On 15 February 1994 the District Court judge heard the thirteen-year-old M., who stated that she did not wish to talk to the applicant or accept presents from him and that he should no longer bother her. She also said that she had a father whom she loved, though it was not her natural father. The court held a hearing with the applicant and the child’s mother on 26 April 1994. 21. On 1 June 1994 the District Court dismissed the applicant’s application. 22. The District Court noted the comments filed by the Rostock Youth Office on 6 January 1994 as well as the parents’ and the child’s statements in court. The Court also had regard to the comments filed by the Youth Office in April 1991 and to the statement submitted by the psychologist in April 1992, both in the context of the first set of access proceedings. 23. The District Court found that the applicant could not be granted access to the child. Referring to section 1711 of the Civil Code, the Court observed that the mother, having sole custody, determined the father’s access and the guardianship court could only decide to grant the father access if this was in the child’s best interest. In this respect, the court found as follows: “On the basis of its extensive investigations, and especially its conversations with [M.] in 1992 and February 1994, this court has decided that, in the present case, access by the father to his child is by no means in her best interest. At the age of thirteen, [M.] is certainly able to make up her own mind and has clearly rejected the idea of establishing contact with her biological father. In the court’s opinion, forcing her to see him against her will cannot be justified, since this would seriously disturb her emotional and psychological balance. Such a decision would on no account be in her best interest. This court cannot accept the [applicant’s] sweeping statement that access is always in the child’s interest. The extent to which this is true invariably depends on circumstances. In this case, the only justifiable decision is that set out in the operative part of the judgment. ...” 24. On 17 June 1994 the Rostock Regional Court dismissed the applicant’s appeal on the following grounds: “The appeal is admissible under section 20 of the Act on Non-Contentious Proceedings, but is unfounded. The District Court was right to refuse the applicant all access to [M.], since this is not in the child’s best interest (sections 1711 and 1634 of the Civil Code). This court also takes the view that the District Court had no cause to permit exceptions for any specific area of life. It considers that the arguments advanced in the contested decision are correct. It regards it as important that the girl [M.] – who is, after all, thirteen years old – has stated clearly and for a long time that she wants no contact with her father. The applicant should accept this clearly expressed wish in his adolescent daughter’s interest and also his own. Only if he ceased to exert pressure on her might it one day be possible for them to resume contact. The court would also point out that access to [M.] on the strength of a court order could hardly be enforced against the child’s will.” 25. On 22 July 1994 the applicant filed a constitutional complaint with the Federal Constitutional Court. 26. On 19 January 1996 a panel of three judges of the Federal Constitutional Court refused to entertain the applicant’s complaint. 27. The statutory provisions on custody and access are to be found in the German Civil Code. 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 1997, p. 2942), which came into force on 1 July 1998. 28. Section 1626 § 1 reads as follows: “The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. The parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.” 29. Pursuant to section 1626a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to section 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. 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; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, 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 authority or an association. 30. 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: Section 1634 “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 section 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.” Section 1632 § 2 concerned the right to determine third persons’ rights of access to the child. 31. The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows: Section 1705 “Custody over a minor child born out of wedlock is exercised by the child’s mother...” Section 1711 “1. The person having custody of the child shall determine the father’s right of access to the child. Section 1634 § 1, second sentence, applies by analogy. 2. If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Section 1634 § 2 applies by analogy. The guardianship court can change its decision at any time. 3. The right to request information about the child’s personal circumstances is set out in section 1634 § 3. 4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.” 32. Like proceedings in other family matters, proceedings under former section 1711 § 2 of the Civil Code were governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). 33. According to section 12 of that Act, the court shall, ex officio, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate. 34. In proceedings regarding access, the competent youth office has to be heard prior to the decision (section 49 § 1 (k)). 35. As regards the hearing of parents in custody proceedings, section 50a § 1 stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child’s assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard. According to paragraph 2 of section 50a, a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter. 36. Section 63 provides for the right to lodge a further appeal challenging the first appeal decision. Section 63a of the Act as in force at the material time excluded this right in proceedings concerning a natural father’s access to his child born out of wedlock. That provision has been repealed by the Law on Family Matters of 1997. 37. The human rights of children and the standards to which all governments must aspire in realising these rights for all children, are set out in the Convention on the Rights of the Child. The Convention entered into force on 2 September 1990 and has been ratified by 191 countries, including Germany. 38. The Convention spells out the basic human rights that children everywhere – without discrimination – have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. It further protects children’s rights by setting standards in health care, education and legal, civil and social services. 39. States Parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child (Article 3). Moreover, States Parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child; and that a child who is separated from one or both parents is entitled to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests (Article 9).