EHRM, 15-09-2011, nr. 17080/07

Parental custody includes the right to determine access to the child (Article 1632 § 2 of the Civil Code).

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).

Under Article 1685 § 1 of the Civil Code, grandparents and siblings have a right of access to the child if this serves the child's best interest. Article 1685 § 2 of the Civil Code, in its version applicable at the relevant time, further 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 (see Article 1685 § 3 of the Civil Code).

Under Article 1686 of the Civil Code, each parent who has a legitimate interest in obtaining information about the child's personal circumstances may request such information from the other parent in so far as this is not contrary to the child's best interest.

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).

An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code).

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. If there is no paternity under Article 1592 nos. 1 or 2 of the Civil Code, paternity is to be established by the family court (Article 1600d § 1 of the Civil Code).

In her submissions to the Court, Mrs H. contested that she had considered a divorce and had planned a common future with the applicant. She had planned to move to the United Kingdom after having finished her medical training and had met her husband regularly during the time they were living in different places. She had not planned to have a child with the applicant and stressed that her husband could also be F.'s father. She had met the applicant once a week. The applicant had been present, at his request, at two gynaecological examinations but had not been presented as her partner. Her husband had also been present at gynaecological examinations. F. was now six years old and fully integrated into the H. family.

Mrs H. took the view that contacts between the applicant and F. would jeopardise F.'s welfare and that of her whole family, including her husband, her daughter and another child born in 2007, and would impair the family's good reputation.

The third party interveners endorsed the Government's legal submissions.

The Court reiterates that the notion of ‘family life’ under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto ‘family’ ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that ‘family’ unit from the moment, and by the very fact, of the birth (see Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290; Lebbink v. the Netherlands, no. 45582/99, § 35, ECHR 2004-IV; and Znamenskaya v. Russia, no. 77785/01, § 26, 2 June 2005).

However, a mere biological kinship between a natural parent and a child, without any further legal or factual elements indicating the existence of a close personal relationship, is insufficient to attract the protection of Article 8 (compare Lebbink, cited above, § 37). As a rule, cohabitation is a requirement for a relationship amounting to family life. Exceptionally, other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto ‘family ties’ (see Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297-C, and Lebbink, cited above, § 36).

Moreover, the Court has considered that intended family life may, exceptionally, fall within the ambit of Article 8, notably in cases where the fact that family life has not yet fully been established is not attributable to the applicant (compare Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 143 and 146, ECHR 2004-V). In particular, where the circumstances warrant it, ‘family life’ must extend to the potential relationship which may develop between a child born out of wedlock and the natural father. Relevant factors which may determine the real existence in practice of close personal ties in these cases include the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the father to the child both before and after the birth (see Nylund; Nekvedavicius; Lebbink, § 36; Hülsmann; and Anayo, all cited above; and compare Różański v. Poland, no. 55339/00, § 64, 18 May 2006).

The Court further reiterates that Article 8 protects not only ‘family’ but also ‘private’ life. It has been the Convention organs' traditional approach to accept that close relationships short of ‘family life’ would generally fall within the scope of ‘private life’ (see Znamenskaya, cited above, § 27, with further references). The Court thus found in the context of proceedings concerning the establishment or contestation of paternity that the determination of a man's legal relations with his legal or putative child might concern his ‘family’ life but that the question could be left open because the matter undoubtedly concerned that man's private life under Article 8, which encompasses important aspects of one's personal identity (see Rasmussen v. Denmark, 28 November 1984, § 33, Series A no. 87; Nylund, cited above; Yildirim v. Austria (dec.), no. 34308/96, 19 October 1999; and Backlund v. Finland, no. 36498/05, § 37, 6 July 2010).

In the present case, the Court considers that the domestic courts' decision to refuse the applicant access to F. and information about F.'s personal circumstances did not interfere with any existing ‘family life’ of the applicant and F. within the meaning of Article 8. Unlike, for instance, in the case of Anayo (cited above, §§ 10, 59), it is contested and has not been established in the proceedings before the domestic courts whether the applicant is in fact F.'s biological father. In any event, there has never been a close personal relationship between him and F. such as must be regarded as an ‘established family life’. The applicant has never cohabited with F.— or even met him — to date.

The Court must therefore determine whether the applicant's intended family life with F. falls within the ambit of Article 8. Under its well-established case-law (see paragraph 81 above), this may, exceptionally, be the case in circumstances in which the fact that family life has not been established is not attributable to the applicant. This applies, in particular, to the relationship between a child born out of wedlock and the child's biological father, who are inalterably linked by a natural bond while their actual relationship may be determined, for practical and legal reasons, by the child's mother and, if she is married, by her husband (see also Anayo, cited above, § 60).

In the present case, the Court notes the Government's argument that the applicant failed to institute separate paternity proceedings under Article 1600 § 2 of the Civil Code. In the access proceedings here at issue, the domestic courts did not determine whether the applicant — who, according to the mother, could be F.'s biological father, but so could her husband — was F.'s biological father. They found, however, that, even assuming the applicant's biological paternity, his requests for access to and information about F. had to be rejected for lack of a social and family relationship between him and F. (see paragraphs 13, 18 and 26 above).

Moreover, the Court is not convinced that the applicant could have validly acknowledged paternity or have contested Mr H.'s paternity and thus have been recognised not only as F.'s biological, but also as his legal father. In that latter position, he could have claimed access to F. under the (more favourable) conditions of Article 1684 of the Civil Code, and not only, as he did, under Article 1685 of the Civil Code. Under the applicable provisions of the Civil Code, as interpreted by the domestic courts at the relevant time, the applicant's acknowledgement of paternity on 25 November 2003 (see paragraph 9 above) was not valid as Mr H.'s paternity prevailed (Article 1594 § 2 of the Civil Code). The applicant further had no right to contest Mr H.'s paternity as the latter was living with F. (Article 1600 § 2 of the Civil Code). This is confirmed by the findings of the family courts (see paragraphs 13 and 18). In any event, in the proceedings here at issue, the applicant did not intend to take over the legal position as F.'s father from Mr H. — which is the aim of the separate paternity proceedings under Article 1600 of the Civil Code which the applicant did not institute (see on this matter the Federal Constitutional Court's judgment, paragraph 23).

Furthermore, the applicant never had any contacts with F. because Mrs and Mr H., his legal parents who were entitled to decide on his contacts with other persons (see Article 1632 § 2 of the Civil Code, paragraph 31 above), refused his requests for access. In these circumstances, the Court considers that the fact that there was not yet any established family relationship between F. and the applicant cannot be held against the latter.

In order for the applicant's intended family life with F. to fall within the ambit of Article 8, the Court has to determine whether there were close personal ties in practice between the applicant and F. (see paragraph 81 above). A relevant factor to verify this is the nature of the relationship between the (presumed) biological parents. Even though the applicant and Mrs H. never moved in together, it is uncontested that they had a relationship for one year and four months — which was thus not merely haphazard — at a time when Mr H. resided in the United Kingdom.

Moreover, the Court must have regard, in particular, to the interest in and commitment by the applicant to F. both before and after his birth. It notes in this connection that, at least from the applicant's perspective, it was planned by him together with Mrs H. to have a child. He accompanied Mrs H. to at least two medical examinations relating to her pregnancy. He further acknowledged paternity of the child to be born already before the child's birth. After F.'s birth, he received photos of the baby at his request and brought proceedings in which he claimed access to F. and information about his personal circumstances relatively speedily, less than six months after the child's birth. In the circumstances of the case, in which, as shown above, the applicant was prevented from taking any further steps to assume responsibility for F. against the legal parents' will, the Court considers that he sufficiently demonstrated his interest in F.

In view of the foregoing, the Court does not exclude that the applicant's intended relationship with F. fell within the ambit of ‘family life’ under Article 8. In any event, the determination of the legal relations between the applicant and F. — that is, whether the applicant had a right of access to F. and information about his personal circumstances —, even if they fell short of family life, concerned an important part of the applicant's identity and thus his ‘private life’ within the meaning of Article 8 § 1. The domestic courts' decision to refuse him contact with and information about F. thus interfered with his right to respect, at least, for his private life (see, mutatis mutandis, Anayo, cited above, § 62).

Any such interference with the right to respect for one's private life will constitute a violation of Article 8 unless it is ‘in accordance with the law’, pursues an aim or aims that are legitimate under paragraph 2 of that provision and can be regarded as ‘necessary in a democratic society’.

The domestic courts' decision to refuse the applicant access to and information about F. was based on Article 1684, read in conjunction with Article 1592, Article 1685 and Article 1686 of the Civil Code. It was aimed at pursuing the best interest of a married couple, Mr and Mrs H., and of the (then two) children who were born during their marriage, who were living with them and whom they cared for, and was therefore taken to protect their rights and freedoms.

In determining whether the interference was ‘necessary in a democratic society’, the Court refers to the principles established in its case-law. It has to consider whether, in the light of the case as a whole, the reasons adduced to justify that interference were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, inter alia, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001-V (extracts), and Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003-VIII (extracts)). It cannot satisfactorily assess whether these reasons were ‘sufficient’ without at the same time determining whether the decision-making process, seen as a whole, was fair and provided the applicant with the requisite protection of his interests safeguarded by Article 8 (see, inter alia, T.P. and K.M. v. the United Kingdom, cited above, § 72, and Sommerfeld, cited above, § 66). Consideration of what lies in the best interest of the child concerned is of paramount importance in every case of this kind (see, inter alia, Yousef v. the Netherlands, no. 33711/96, § 73); depending on their nature and seriousness, the child's best interest may override that of the parents (see Sommerfeld, cited above, § 66, and Görgülü v. Germany, no. 74969/01, § 43, 26 February 2004).

According to the Court's well-established case-law, it must further be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding access issues or issues concerning information about the child's personal development, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see, inter alia, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A; Görgülü, cited above, § 41; and Sommerfeld, cited above, § 62). However, restrictions placed by the domestic authorities on parental rights of access call for strict scrutiny as they entail the danger that the family relations between a young child and a parent will be effectively curtailed (see, inter alia, Elsholz v. Germany [GC], no. 25735/94, §§ 48–49, ECHR 2000-VIII; Sommerfeld, cited above, §§ 62–63; and Görgülü, cited above, §§ 41–42). The above-mentioned principles must apply also in a case like the present one, in which the refusal of contact between a biological father and his child and the refusal of information about the boy's personal circumstances is classified, at least, as an interference with ‘private life’ (see, mutatis mutandis, Anayo, cited above, § 66).

In the present case, the Court notes the domestic courts' finding that, even assuming that the applicant was F.'s biological father, he did not fall within the group of persons who had a right of access to F. and to information about the boy's personal circumstances. He was not F.'s legal father, or a person with whom F. had close ties because there had never been a social and family relationship between the two. As F. had lived with Mr and Mrs H. since his birth, there had been no possibility for the applicant to build up such a relationship with F. (see paragraphs 13–14, 16–18 and 24–27 above). The domestic courts thus refused the applicant access to F. — assuming that he was F.'s father — without examining whether contact between F. and him, in the particular circumstances of the case, would be in F.'s best interest. They further refused the applicant's request at least to be given information about F.'s personal development. There again, the domestic courts took their decision without examining in the particular circumstances of the case whether giving such information would be in the child's best interest (for instance, in order to maintain at least a light bond with the presumed biological father) or whether, at least in this regard, the applicant's interest had to be considered as overriding that of the legal parents.

In determining whether the reasons given by the domestic courts for refusing the applicant access to and information about F. were ‘sufficient’ for the purposes of paragraph 2 of Article 8 and the interference with the applicant's private life thus ‘necessary in a democratic society’, the Court refers, first, to the findings in its judgment of 21 December 2010 in the case of Anayo (cited above). That case concerned the refusal of the German courts to grant Mr Anayo, who was indisputably the biological father of twins who lived with their mother and her husband, access to his children. The Court observed, in that application, that the Court of Appeal, applying Articles 1684 and 1685 of the Civil Code, had refused the applicant access to his children without giving any consideration to the question whether, in the particular circumstances of the case, contact between the twins and the applicant would be in the children's best interest. The domestic court had argued that the applicant did not fall within the group of persons entitled to claim access as he was not the children's legal father, had not borne any responsibility for them and thus had no social and family relationship with them. The Court accordingly found that the domestic court had failed to fairly balance the competing rights involved. As the reasons given by it for refusing the applicant contact with his children had thus not been ‘sufficient’ for the purposes of paragraph 2 of Article 8, Article 8 had been violated (see ibid., §§ 67–73).

The Court further observes that the facts at issue in the present application differ from those in the Anayo case mainly in so far as the certainty of the respective applicants' paternity is concerned. It was uncontested in the Anayo case that the applicant was the biological father of the children concerned. In the present case, however, the mother of the boy F. acknowledged that the applicant might be F.'s father, but claimed that so might her husband, and it was not established by the domestic courts whether or not the applicant was F.'s father.

However, the Court considers that, in the circumstances of the case, this difference is not such as to distinguish the present application from the Anayo case. In fact, it becomes clear from the domestic courts' reasoning that it was irrelevant for their decision that the applicant was only presumably and not uncontestedly the biological father of F. In reasoning their decisions, the domestic courts assumed the applicant's paternity for the purposes of the proceedings (see paragraphs 13, 18 and 26). They rejected the applicant's request for contact with (and information about) F. — as did the domestic courts in the Anayo case — because the applicant was not F.'s legal father and there had never been a social and family relationship between him and F. In both cases, the reasons why the biological father had not previously established a ‘social and family relationship’ with the children / child concerned had been irrelevant for the domestic courts' findings. The courts thus did not give any weight to the fact that the respective applicants, for legal and practical reasons, were unable to alter the relationship with the children / child concerned (see Anayo, cited above, §§ 67, 69 and paragraphs 14, 17–18 and 26 above).

The Court would reiterate in that connection that it is for the domestic courts, who have the benefit of direct contact with all the persons concerned, to exercise their power of appreciation in determining whether or not contacts between a biological father and his child are in the latter's best interest. It has further noted the Government's argument, by reference to the comparative law analysis and the general psychological expert report of expert K. they had submitted to the Court, that the German legislation applied by the courts in the present case was in the best interest of the children concerned. They had further argued that always giving an existing legal family precedence over biological fathers' rights guaranteed stability, whereas examining the child's best interest in the particular circumstances of the case brought the burden of the proceedings to bear on the legal family (see paragraph 75 above).

The Court cannot but confirm, however, its approach taken in the Anayo judgment (cited above, §§ 67–73), as well as in the case of Zaunegger v. Germany (no. 22028/04, §§ 44 et seq., 3 December 2009, which concerned the general exclusion from judicial review of the attribution of sole custody to the mother of a child born out of wedlock; the domestic courts, applying the relevant provisions of the Civil Code, also considered parental rights of a father prima facie not to be in the child's best interest, without further examination on the merits). Having regard to the realities of family life in the 21st century, revealed, inter alia, in the context of its own comparative law research (see paragraphs 38–46 above), the Court is not convinced that the best interest of children living with their legal father but having a different biological father can be truly determined by a general legal assumption. Consideration of what lies in the best interest of the child concerned is, however, of paramount importance in every case of this kind (see paragraph 93 above). Having regard to the great variety of family situations possibly concerned, the Court therefore considers that a fair balancing of the rights of all persons involved necessitates an examination of the particular circumstances of the case. It further had regard to the Government's argument that this approach involved proceedings which placed a burden on the legal family (see paragraph 75 above). The Court notes, however, that proceedings requesting access to children may be and are in practice already currently instituted by biological fathers.

Having regard to the foregoing, the Court further concludes that the Government's objection that the applicant, by failing to institute separate paternity proceedings, did not exhaust domestic remedies in relation to his complaint that the domestic courts failed to establish his paternity of F. must be rejected for the following reasons.

The Court is not convinced that separate paternity proceedings were an effective remedy the applicant had to exhaust in the access and information proceedings here at issue. Not only were such proceedings bound to fail on the basis of the existing domestic law, the applicant having no right to contest Mr H.'s paternity as the latter was living with F. (Article 1600 § 2 of the Civil Code, see paragraph 37 above), but they are aimed at obtaining status as a child's legal parent and terminating another man's legal paternity, and must therefore be considered to have a fundamentally different and more far-reaching objective than the mere establishment of biological paternity for the purposes of having contact with the child concerned and information about that child's development.

The Court notes in this connection the Government's argument that there was a danger of abuse in allowing every man alleging to be the father of a child born in wedlock to request to have his paternity established (see paragraph 70 above). It does not consider, however, that its finding that the domestic courts failed to examine, in the particular circumstances of the case, whether contacts between F. and the applicant would have been in F.'s best interest would have led to such a result. The question of establishment, in access proceedings, of biological — as opposed to legal — paternity will only arise if, in the special circumstances of the case, contacts between the alleged biological father — presuming that he is in fact the child's biological parent — and the child are considered to be in the child's best interest.

Having regard to the foregoing, the Court, referring, mutatis mutandis, to the detailed reasoning in its judgment in the case of Anayo (§§ 67–73), therefore considers that the domestic courts did not fairly balance the competing interests involved in the decision-making process and thus failed to provide the applicant with the requisite protection of his interests safeguarded by Article 8. They failed to give any consideration to the question whether, in the particular circumstances of the case, contact between F. and the applicant would be in F.'s best interest. They further did not examine whether, in the particular circumstances of the case, allowing the applicant's request to be given at least information about F.'s personal development would be in the child's best interest or whether, at least in this regard, the applicant's interest should have been considered as overriding that of the legal parents. They thus did not give sufficient reasons to justify their interference for the purposes of paragraph 2 of Article 8. The interference with the applicant's right to respect for his private life was therefore not ‘necessary in a democratic society’.

There has accordingly been a violation of Article 8 of the Convention.