CASE OF KUPPINGER v. GERMANY
Violation of Art. 6-1;Violation of Art. 13
Angelika Nußberger;Ganna Yudkivska
4. The applicant was born in 1953 and lives in Heidelberg. 5. The applicant is the father of a son born out of wedlock on 21 December 2003. Shortly after the child was born, the mother refused the applicant any contact with the child. In 2004 the applicant unsuccessfully attempted to establish contact with his son. 6. On 19 May 2005 the applicant lodged a request for the regulation of contact rights with the Frankfurt/Main District Court (Amtsgericht). On 29 May 2005 the court served the request on the mother and requested the Youth Office to submit comments, which were submitted on 29 August 2005, following a reminder by the court. On 7 October 2005 the court scheduled a hearing for 27 October 2005, which was postponed at both parties’ request to 1 December 2005. 7. Both parties having agreed to institute supervised contacts, the District Court ordered the Youth Office to name, within a time-limit of one month, a suitable institution to supervise the visits. It further decided to issue a decision on contact rights after having been informed about the concrete dates for contacts. 8. Between October 2005 and May 2006 the Youth Office unsuccessfully attempted to mediate an agreement on a suitable institution. 9. On 31 May 2006 the District Court informed the parties that it would attempt to find a suitable institution on its own motion. On 6 June 2006 the District Court ordered that contact visits should be supervised by a centre for psychological counselling. Between July and October 2006, five supervised contacts took place. 10. On 30 October 2006 the District Court requested the counselling centre to submit a report. On 5 December 2006 the Youth Office, following a further reminder by the court, submitted a report by the counselling centre dated 9 November 2006. Both the Youth Office and the counsel centre did not have any objections to contacts between father and son. The next step should be to limit the supervision to the accompanied handover of the child. However, having regard to the mother’s opposition, the Youth Office was not in a position to propose how contact rights should be established. 11. On 12 December 2006 the District Court informed the parties of its intention to hear expert opinion on the regulation of access rights and invited the parties to submit comments within two weeks. On 22 December 2006 and 11 January 2007 new counsel for the applicant requested to be granted access to the case file and asked the court to allow submissions within 14 days after the receipt of the case-file that was returned by letter of 16 January 2007. On 5 February 2007 the applicant’s counsel submitted her comments. 12. On 8 February 2007 the District Court commissioned a psychological expert and ordered her to submit the expert opinion within three months. 13. On 5 March 2007 the applicant requested the District Court to regulate further contact rights by interim order. On 27 March 2007 the District Court rejected the applicant’s request on the grounds that a regulation of contact rights had to be based on the result of the expert examination. It pointed out that the expert had declared that she would be able to terminate her report by the end of April, if both parents attended the proposed meetings. 14. On 29 March 2007 the Youth Office declared that it did not have any objections to further contacts. On 12 April 2007 the applicant requested the applicant to hold a hearing on his interim request. 15. On 19 April 2007 the District Court scheduled a second hearing for 16 May 2007. On 16 May 2007 the District Court heard the Youth Office, the person accompanying the visits and the expert. The applicant declared that he refused being examined by the expert. 16. By interim order of 22 May 2007 the District Court, following expert recommendation, ordered that supervised visits should take place every Thursday afternoon. Between 14 June and 12 July 2007 five contact visits took place. The applicant having lodged a complaint about the supervisor, the latter declared that he was not available to supervise further contacts. 17. On 8 June 2007 the applicant declared that he was now ready to be examined by the expert. On 9 July 2007 the expert informed the court that the applicant had failed to attend the arranged meeting. On 12 July 2007 the applicant submitted that he had appeared in time, but that the expert had not opened the door. He requested the court to terminate the examination without his cooperation, as he had lost confidence in the expert. 18. On 19 July 2007 the applicant had his last contact with his son. 19. On 31 July and 14 August 2007 the applicant requested the District Court to impose enforcement measures on the mother, who objected to further contacts. On 24 August 2007 the District Court, in separate proceedings, imposed enforcement measures on the mother. 20. On 26 July 2007 the District Court requested the expert to terminate the examination. On 7 September 2007 the expert submitted her report, in which she noted that the parents were unable to cooperate and recommended the continuation of supervised visits. On 7 September 2007 the District Court served the expert opinion on the parties and ordered the Youth Office to propose an institution which could arrange supervised visits. On 5 October 2007 the court asked the parties if a suitable institution had been found. In October and November 2007 the applicant, following several extensions of the time-limit set, submitted extensive comments. 21. On 22 November 2007 the District Court held a third hearing. While the expert recommended the continuation of supervised contacts, the Youth Office declared that it was difficult to find an institution to supervise the contacts and recommended a suspension of contact rights. 22. On 4 December 2007 the District Court informed the parties about its intention to appoint a curator ad litem to represent the child’s interests. On 6 and 13 December 2007 the parties objected. On 20 December 2007 the court appointed a curator ad litem and asked her to submit comments within two months. Both parties lodged complaints against the appointment which were withdrawn on 7 and 12 February 2008, respectively. 23. Between February and April 2008 the curator informed the court about her attempts to institute contact visits. During the following months, the curator and the Youth Office attempted to induce the parties to conclude a parental agreement on the modalities of supervised contacts. 24. On 8 April 2008 the applicant requested the District Court to issue a decision. On 15 May 2008 the District Court informed the parties that the parents had concluded an agreement on contacts which should be executed within a short period of time. On 19 May 2008 the District Court informed the parties that the proceedings were suspended as long as the agreement on contact rights was executed. On 6 June 2008 the Youth Office informed the court that supervised visits could be envisaged for mid-August. 25. On 26 August 2008 the applicant requested the District Court to order the Youth Office to refrain from issuing legal opinions and to respect binding court orders. On 12 September 2008 the District Court rejected the request. 26. On 11 February 2009 the institution which had been commissioned to supervise the contacts proposed a first contact for 28 February 2009. On 24 February 2009 the mother informed the court that she objected to a further cooperation with the supervising institution. 27. On 26 February 2009 the curator ad litem submitted a report on her activities since January 2008. Upon request, the court extended the time limit for the Youth Office to 31 May 2009 and for the mother to 28 April 2009. On 25 May 2009 the Youth Office submitted the final report by the supervising institution dated 7 March 2009, according to which the mother had failed to support the exercise of contact rights. 28. On 7 May 2009 the mother requested the court to hold a hearing. On 23 June 2009 the applicant, represented by new counsel, filed extensive submissions, and requested the court to issue an interim order and to schedule a hearing. On 30 July 2009 the District Court scheduled a hearing for 3 September 2009. 29. On 6 August 2009 the applicant, represented by counsel, lodged a constitutional complaint, complaining about the length of the proceedings and about the lack of an effective remedy. 30. On 17 August 2009 the applicant requested the court to re-schedule the hearing because of his holiday plans. On 24 August 2009 the court postponed the hearing to 24 September 2009. On 3 September 2009 the court postponed the hearing to 15 October 2009 in order to take into account the absence of the competent person in the Youth Office. On 21 September 2009 the Court of Appeal declared the applicant’s complaint against the postponement inadmissible. On 24 September 2009 the District Court, upon the mother’s request, further postponed the hearing to 26 October 2009. On 2 October 2009 the District Court postponed the hearing to 29 October 2009 because of the absence of the curator ad litem. 31. In the meantime, on 13 October 2009 the Court of Appeal rejected the applicant’s complaint against the further postponement, as the scheduling of a hearing was not subject to a legal remedy. With regard to the length of the proceedings, the Court of Appeal found as follows: “In the instant case, the numerous postponements have created a situation which is unacceptable in the light of the requirement to expedite the proceedings ... Contact proceedings have been pending since 2005. Contacts have taken place sporadically only; a final decision has not been given. On 23 June 2009 the applicant requested the issue of an interim order. The repeated postponements of the hearing cause a factual delay which amounts to a denial of justice or a suspension of the proceedings.” The Court of Appeal noted, however, that it was not competent to order the District Court to hold the hearing on a specific date. 32. On 15 October 2009 the District Court postponed the hearing upon the curator’s request to 2 November 2009. On 2 November 2009 the hearing took place, on 9 November 2009 the court heard the child. 33. On 21 December 2009, following further submissions filed by the parents and by the Youth Office, the District Court suspended the applicant’s contact rights for one further year. The District Court considered that the child, who last saw his father two and a half years before, and had been burdened by the proceedings, had to be given time, inter alia to cope with his entry into school. 34. On 5 January 2010 the applicant lodged a motion with the District Court to amend its decision of 21 December 2009 with respect to the father’s right to be informed about the child’s personal circumstances. On 22 March 2010 the District Court decided on this request. 35. On 30 December 2009 the applicant lodged an appeal with the Frankfurt Court of Appeal (Oberlandesgericht). By interim decision of 12 May 2010 the Court of Appeal, having held a hearing on 15 April 2010, ordered six contact visits to take place between May and August 2010. In October 2010, the main proceedings were still pending before the Court of Appeal. 36. As from 1 September 2009, proceedings in family matters are governed by the Act on Procedure in Family Matters and Non-Contentious Matters (Gesetz über das Verfahren in Familiensachen und in Angelegenheiten der freiwilligen Gerichtsbarkeit), section 155 of which reads as follows: “(1) Parent and child matters referring to the child’s place of abode, access rights or the surrender of the child, as well as proceedings based on a threat to the child’s welfare must be conducted as a matter of priority and expediently. (2) In proceedings pursuant to subsection (1) the court shall discuss the case with the parties at a hearing. The hearing shall take place at the latest one month after the proceedings have been instituted. The court shall hear the Youth Office during this hearing. This hearing may only be postponed for compelling reasons. Proof of the reasons for the need for the postponement must be furnished when the request for the postponement is made. (3) The court shall order the parties ... to appear in person at the hearing.”