POKRZEPTOWICZ-MEYER (I) v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Ms Beata Monika Pokrzeptowicz-Meyer, is a Polish national who was born in 1967 and lives in Kwidzyn. The The applicant and her former husband have a son, born on 26 May 1999. After the separation of his parents in 2002 the child initially lived with the applicant in Bielefeld. On 2 October 2003, the Bielefeld District Court advised the applicant that she was not allowed to take the child elsewhere without the father’s consent. On 3 October 2003 the applicant took the child to Poland without the father’s consent, although she knew that the father did not agree. On 24 June 2004 she returned the child to the father after a Gdansk Court had decided that the child had to be returned to his place of habitual residence. Since then the child has lived with his father and his new wife in Düsseldorf. On 5 October 2004 a court-appointed expert submitted an opinion on the distribution of parental authority drawn up on the basis of information collected between August and October 2004. He found that the child, who had lived with his father in Düsseldorf since June 2004, was well integrated. The child’s primary attachment to his father, the latter’s ability to promote the child’s emotional development and to tolerate its attachment to the other parent, and continuity were arguments clearly in favour of the child staying with his father. The applicant’s ability to promote the boy’s linguistic competencies, even though it exceeded that of the father, was not as important for him as the father’s ability to promote his emotional development, which was greater than that of the applicant. On 16 December 2004 the District Court held a hearing during which it heard the expert and the child. On 15 March 2005 the District Court dismissed the applicant’s motion for bias against the expert, finding that the expert’s opinion did not contain any factual errors. On 15 June 2005 the District Court transferred sole parental authority to the father. On the basis of the expert opinion it found that this was in the child’s best interests. Having regard to the parents’ difficulties in communicating, joint custody could not be awarded. There was no indication that the father had impaired the applicant’s access to the child to an extent as to merit a different result. On 20 September 2005 the Hamm Court of Appeal dismissed the applicant’s request for legal aid for appeal proceedings for lack of prospects of success. The transfer of sole parental authority was in accordance with Section 1671 of the Civil Code, according to which a request to transfer sole parental authority is granted where this is in the best interests of the child. The Court of Appeal considered that nothing warranted uprooting the child from his current environment. According to the reliable findings of the expert the father was fully able to raise the child. He had strong empathy for the child. The child liked his father and had an at least equally good relationship with both parents. The father had meanwhile even become the child’s main reference person. Uniformity and regularity were factors in favour of the child remaining where he had lived for more than one year and where he was content. The Court of Appeal stressed in this respect that since the separation the applicant had exposed the child, no less than four times, to changes in his personal and social environment. After two moves in the area of her place of work in November 2001 and January 2003 she had moved with the child to Poland in October 2003, contrary to prior agreement and infringing upon the father’s co-parental authority. Thereby she accepted that the child had to be returned eight months later on the basis of return proceedings initiated by the father, which had been foreseeable to her. The child’s needs for stability would not be met by a further move. The Court of Appeal stressed that no meaningful weight could be attached to the fact that the applicant, who at the time worked part-time in contrast to the father, had more time to care for the child, since the applicant’s course of action in October 2003 raised at least doubts as to her ability to act in accordance with the child’s best interests and to thereby also appropriately take into account the father’s interests. The fact that she had departed from her word in order to carry out her plans probably called into question her capacity to act as a role model in one essential educational area. On 22 December 2005 the Court of Appeal, without holding a hearing, dismissed the applicant’s appeal, referring to the reasoning in the decision at first instance and its decision of 20 September 2005. Having regard to the applicant’s allegation that living conditions in Düsseldorf were inadequate, the fact that the father had meanwhile moved with the child to Mönchengladbach was consistent and in line with the child’s best interests. Furthermore, it had not been necessary to appoint a curator ad litem. In the event of a conflict of interests between parents this was only necessary where the parents’ dispute was of such a nature that the child’s interests had to be defended against those of his parents. This could be the case where both parents predominantly sought to enforce their own interests. In the present case only the applicant had demonstrated such behaviour. Contrary to the applicant’s allegations the child had been heard at first instance as evidenced by the minutes of the hearing. It was irrelevant that this was not explicitly reflected in the decision at first instance as the hearing had not produced any findings deviating from those of the expert. The Court of Appeal explained that it had refrained from orally examining the parents and the child because the relevant facts had already been established and because the case file did not contain any indication that a renewed hearing would have provided the court with any additional information that could have been of importance to its adjudication. On 17 January 2006 the Hamm Court of Appeal declared the applicant’s appeal on the ground that she had not had a sufficient opportunity to make submissions (Anhörungsrüge) inadmissible. It found that the applicant did not allege that she had not had an opportunity to comment on the arguments put forward during the proceedings or that her comments had not been taken into account. Rather, she only criticised the failure to conduct a renewed oral hearing at second instance. The Court of Appeal considered that the right to be heard did not principally comprise the right to an oral hearing. In its decision of 22 December 2005 it had given reasons for refraining from an oral hearing. The applicant had not submitted why the outcome of the proceedings might have been different if an oral hearing had been held. On 19 April 2006 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for adjudication because it was inadmissible. It also refused to accept the applicant’s joint requests for an interim order for adjudication. It dismissed the applicant’s requests for legal aid and to be assigned an attorney. On 9 November 2005 the Bielefeld Regional Court reprimanded the applicant for child abduction. By decisions taken between September 2004 and March 2006 the domestic courts regulated the applicant’s access to her son.