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FIFTH
SECTION
CASE OF
ZAUNEGGER v. GERMANY
(Application
no. 22028/04)
JUDGMENT
STRASBOURG
3
December 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Zaunegger v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
Bertram
Schmitt, ad
hoc judge,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 22028/04) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Mr
Horst Zaunegger (“the applicant”), on 15 June 2004.
- The
applicant was represented by Mr F. Wieland, a lawyer practising in
Bonn, and subsequently by Mr G. Rixe, a lawyer practising in
Bielefeld. The German Government (“the Government”) were
represented by their Agent, Mrs A. Wittling-Vogel,
Ministerialdirigentin, of the Federal Ministry of Justice.
- The
applicant alleged that the domestic courts had infringed his right to
the enjoyment of his family life and discriminated against him as an
unmarried father.
- By
a decision of 1 April 2008, the Court declared the application
admissible.
- The
Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in fine), the
parties replied in writing to each other’s observations.
- Judge
Jaeger, the judge elected in respect of Germany, withdrew from
sitting in the case (Rule 28 of the Rules of Court). On 3 August 2009
the Government, pursuant to Rule 29 § 1 (a), informed the Court
that they had appointed Mr Bertram Schmitt as an ad hoc judge
in her stead.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1964 and lives in Pulheim.
- The applicant is the father of a daughter born out of
wedlock in 1995. The applicant and the mother of the child separated
in August 1998. Their relationship had lasted five years. Until
January 2001, the daughter lived with the applicant, whereas the
mother had moved to another flat which was located in the same
building. As the parents did not make a joint custody declaration
(gemeinsame Sorgerechtserklärung), the mother obtained
sole custody (alleinige Personensorge) pursuant to
Article 1626a § 2 of the German Civil Code (Bürgerliches
Gesetzbuch, see Relevant domestic law and practice below).
- In January 2001, the child moved to the mother’s
flat. Subsequently, the parents started to argue about the
applicant’s contact with the child. In June 2001 they
reached an agreement with the assistance of the Cologne-Nippes Youth
Welfare Office (Jugendamt Köln-Nippes), according to
which the applicant would have contact with the child every Wednesday
afternoon until Thursday morning, every Sunday from 10 a.m. to Monday
morning and half of each holiday, amounting in total to approximately
four months per year. In 2001, the applicant applied for a joint
custody order, as the mother was unwilling to agree on a joint
custody declaration, although otherwise both parents were cooperative
and on good terms.
- On 18 June 2003, the Cologne District Court
(Amtsgericht Köln) dismissed the applicant’s
application. It found that there was no basis for a joint custody
order. Under German law, joint custody for parents of children born
out of wedlock could only be obtained through a joint declaration,
marriage or a court order under Article 1672 § 1 of the Civil
Code, the latter requiring the consent of the other parent. The
Cologne District Court considered Article 1626a of the Civil Code to
be constitutional and referred to a leading judgment of the Federal
Constitutional Court (Bundesverfassungsgericht) of
29 January 2003 (see §§ 18-21, below). Having
regard to the fact that the pertinent legal provisions did not allow
for a different decision, the District Court did not consider it
necessary to hear the concerned parties in person.
- The applicant appealed and on 2 October 2003 the
Cologne Court of Appeal (Oberlandesgericht Köln)
dismissed the appeal. It reasoned that, as the applicant and the
mother were unmarried, the applicant’s participation in the
exercise of custody was only possible in accordance with Article
1626a of the Civil Code. The applicant and the mother had, however,
not submitted the required joint custody declaration. In its judgment
of 29 January 2003, the Federal Constitutional Court had found
that Article 1626a of the Civil Code was constitutional with regard
to the situation of parents of children born out of wedlock who had
separated after 1 July 1998. The Cologne Court of Appeal
noted that the applicant and the mother of the child had separated in
August 1998. Thus, they had had a period of one and a half months
before they separated in which they could have made a joint custody
declaration. The Cologne Court of Appeal further noted that the new
legislation, which had entered into force on 1 July 1998, had
received public attention for a considerable period. Unmarried
parents might have been expected therefore to have shown an interest
in the matter and to have noticed the new legislation.
- On 15 December 2003 the Federal Constitutional Court,
referring to the pertinent provisions of its Rules of Procedure,
declined to consider the applicant’s constitutional complaint,
without giving further reasons.
II. RELEVANT DOMESTIC AND COMPARATIVE LAW AND PRACTICE
A. Relevant domestic law
1. Relevant provisions of the German Civil Code
- The
statutory provisions on custody and contact are to be found in the
German Civil Code (the “Civil Code”). Article 1626 §
1 of the Civil Code provides that the father and the mother have the
right and the duty to exercise parental authority (elterliche
Sorge) over a minor child.
- As
regards children born out of wedlock, custody was pursuant to the
former Article 1705 of the Civil Code automatically obtained by the
mother. That provision was however declared unconstitutional by the
Federal Constitutional Court in 1996. On 1 July 1998, the amended Law
on Family Matters of 16 December 1997 (Reform zum
Kindschaftsrecht, Federal Gazette 1997, p. 2942), entered into
force to implement the Federal Constitutional Court’s judgment
of 1996. The relevant law in the Civil Code was changed as follows:
under Article 1626a § 1, the parents of a minor child born out
of wedlock may exercise joint custody if they make a declaration to
that effect (joint custody declaration) or if they marry. Otherwise
Article 1626a § 2 provides that the mother obtains sole custody.
- If the parents have not merely temporarily separated
and if the mother has obtained sole custody in accordance with
Article 1626a § 2 of the Civil Code, Article 1672 § 1 of
the Civil Code provides that the family court may transfer sole
custody to the other parent if one parent lodges the relevant
application with the consent of the other parent. The application is
to be granted if the transfer serves the child’s interest.
Article 1672 § 2 of the Civil Code provides that in the case of
a transfer of the right to custody under Article 1672 § 1 of the
Civil Code, the family court may subsequently order joint custody on
the application of one parent with the consent of the other parent
unless it would be to the detriment of the child. The same applies if
the transfer of custody under Article 1672 § 1 of the Civil Code
is later annulled.
By contrast, parents
exercising joint parental authority before their separation either
because the child was born in wedlock, the parents have married
following the child’s birth or they have made a joint custody
declaration, retain joint custody following their separation unless
the court at the request of one parent awards sole custody to the
latter in accordance with the child’s best interest pursuant to
Article 1671 of the Civil Code.
- Under
Article 1666 of the Civil Code, the family court may order the
necessary protective measures if the child’s physical,
psychological or mental well-being is threatened by negligence and if
the parents are unwilling to take those measures themselves. Measures
which result in the separation of the child from one parent are
admissible only if the child would be at risk otherwise (Article
1666a of the Civil Code).
2. Case-law of the Federal Constitutional Court
- On
29 January 2003, the Federal Constitutional Court found that Article
1626a of the Civil Code was unconstitutional because it lacked a
transitional period for unmarried couples with children who were
living together in 1996 but who had separated before the amended Law
on Family Matters entered into force on 1 July 1998 (that is, those
who were unable to make a joint custody declaration before 1 July
1998). In order to resolve the above-mentioned constitutional flaws,
the German legislator introduced Article 224 (2) (a) of the
Introductory Act to the Civil Code (Einführungsgesetz in das
Bürgerliche Gesetzbuch), on 31 December 2003, according to
which a court may substitute the mother’s consent to joint
custody if an unmarried couple have a child born out of wedlock, have
lived together with the child and were separated before 1 July 1998,
provided that joint custody would serve the best interests of the
child (Kindeswohl).
- In
its judgment of 29 January 2003, the Federal Constitutional Court
also held that Article 1626a § 2 of the Civil Code, apart from
the lack of a transition period, did not breach the right to respect
for the family life of fathers whose children were born out of
wedlock. Parents who were married had obliged themselves on marriage
to take responsibility for each other and their children. In contrast
to this, the legislator could not assume that parents of children
born out of wedlock lived together or wanted to take responsibility
for each other. There was insufficient evidence that a father of a
child born out of wedlock would want to bear joint responsibility as
a general rule. The child’s well-being therefore demanded that
the child had a person at birth who could act for it in a legally
binding way. In view of the very different life conditions into which
those children were born, generally it was justifiable to grant sole
custody to the mother, and not to the father or to both parents. This
legislation could also not be objected to from a constitutional point
of view because the legislature had given both parents of children
born out of wedlock the possibility of obtaining custody through a
joint declaration.
- The Federal Constitutional Court found that the
legislator could legitimately assume that joint custody which was
exercised against the will of one parent would have more
disadvantages than advantages for a child born out of wedlock. Joint
custody required a minimum of agreement between the parents. If the
parents were unable or unwilling to cooperate, joint custody might
run counter to the child’s well-being. The legislator assumed
that the will to exercise joint custody which parents explicitly
expressed upon marriage also showed their will to cooperate.
Unmarried parents could express this will to cooperate through a
joint custody declaration. The father’s right to custody indeed
depended on the mother’s willingness to exercise joint custody,
but the mother in turn could not demand joint custody without the
father’s consent. The parents could thus only exercise joint
custody if they both wanted to. That limitation on the father’s
right to respect for his family life was not unjustified, given that
the joint custody exercised by a married couple was based on their
marriage. The applicable law gave unmarried couples the possibility
of exercising joint custody, in particular, if they lived together
with the child and not after the couple had separated. The legislator
could legitimately assume that, if the parents lived together
but the mother refused to make a joint custody declaration, the case
was an exceptional one in which the mother had serious reasons for
the refusal which were based on the child’s interest. Given
this assumption, the applicable law did not infringe the father’s
right to respect for his family life by not providing for a judicial
review. In the event of such serious reasons it could not be expected
that the courts would consider joint custody to be in the child’s
best interest.
- In
view of the fact that this legal structure had only recently been
established, it had not been possible to ascertain whether there was
a substantial number of similar cases where joint custody was in
dispute or crucially, to reach conclusions as to why this should be
the case.
- The
Federal Constitutional Court stated that the legislator was obliged
to keep developments under observation and to verify whether the
assumptions it had made when forming the rules in question were
sustainable in the face of reality. If this proved not to be the
case, the legislator was obliged to revise the legislation and to
provide fathers with the adequate possibility of obtaining custody
rights.
B. Relevant comparative law
- A
survey on comparative law taking into account the national laws of a
selection of Member States of the Council of Europe shows that
basically all Member States included in the survey provide for joint
parental authority by unmarried parents over their children born out
of wedlock. The main elements referred to as a basis for
allowing joint parental authority for unmarried parents are the
establishment of paternity and the parents’ agreement to
exercise joint authority.
- However,
the solutions in the Member States vary as regards the attribution of
joint parental authority for children born out of wedlock in the
event no agreement between the parents can be reached in this
respect.
- In
only a limited number of countries do the statutory regulations
explicitly address this issue. In a few countries, such as Austria,
Norway and Serbia, the national law stipulates that the exercise of
joint parental authority of unmarried parents requires the consent of
both parents and thus implies that the non-consenting parent has a
right of veto. By contrast, the laws in Hungary, Ireland and
Monaco appear to provide for a joint exercise of parental authority
even without the parents’ consent.
- In
some Member States such as the Czech Republic and Luxembourg, while
the law itself is not clear on the subject, the domestic courts have
interpreted the applicable provisions so as to allow joint parental
authority only with the consent of the parents, whereas for example
the Dutch Supreme Court has held that the national law has to be
interpreted so as to enable the father of a child born out of wedlock
to request joint parental authority with the mother even though the
latter disagrees. A similar approach seems to be followed in
Spain.
- With
the exception of the few countries where a right of veto of one
parent is explicitly stipulated in national law, the most common
solution put forward by national legislations is that a court decides
on the outcome of a corresponding dispute between the parents at the
request of one of the parents bearing in mind the best interests of
the child. All Member States emphasise the importance of the child’s
best interest in decisions regarding the attribution of custody. In
determining the child’s best interest in this connection
domestic courts commonly take into consideration the positions of the
parents and the child and the particular circumstances of the case,
as regards, inter alia, the demonstrable interest in and
commitment to the child by the respective parent.
- In
summary, and as also pointed out by the Government, the survey
confirms that while different approaches exist in the Member States,
the majority provide for paternal participation in custody if
the parents were not married to each other, either irrespective of
the mother’s will or at least by court order following an
evaluation of the child’s interests.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 8
- The
applicant complained under Article 8 of the Convention that the court
decisions refusing joint custody had infringed his right to respect
for his family life, and under Article 14 read in conjunction with
Article 8 of the Convention that the application of Article 1626a §
2 of the Civil Code amounted to unjustified discrimination against
unmarried fathers on the grounds of sex and in comparison with
divorced fathers.
Article
8 provides:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article
14 reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
1. The Government’s submissions
- The
Government submitted that Article 1626a § 2 of the Civil Code
was founded on the differences that existed in the respective
environments into which children born out of wedlock were born,
ranging from father-child relationships that were intact to those
where the father was indifferent. With the primary assignment of
parental custody to the mother, whose identity – in contrast to
that of the father – was established at the time of birth, the
intention was to have a clear allocation of the right of custody for
the purpose of legal certainty, so that from the outset there would
be a binding determination of the statutory representative for the
protection of the child concerned. The approval requirement applying
to both parents for the joint exercise of parental custody was based
on the notion that parents who could not agree to make a custody
declaration were highly likely to come into conflict when specific
questions relating to the exercise of parental custody were at stake,
which could cause painful disputes which would be detrimental to the
child’s interests.
- The
Government further underlined that the Federal Constitutional Court
obliged the legislator to keep any developments under observation and
to verify whether the assumptions it had made when forming the rules
in question were sustainable in the face of reality. For the purpose
of fulfilling this obligation the Government had taken various
measures such as obtaining statistical data and conducting surveys. A
research project on joint custody as regards unmarried parents had
been launched in March 2009. However, the said surveys had not
yet yielded any clear results.
- In
the Government’s view, the interference with the father’s
presumed rights through the statutory provision making joint custody
dependent on the mother’s approval was necessary in a
democratic society for the legitimate aim of protecting the child’s
best interests, even though there existed no European consensus on
the issue. While it was true that the majority of the Member States
provided for paternal participation in custody if the parents were
not married to each other, either irrespective of the mother’s
will or at least by court order following an evaluation of the
child’s interests, other European countries (such as Austria,
Liechtenstein, Switzerland and Denmark) had similar rules to those in
force in Germany. As the Court did not evaluate the abstract
statutory position but rather the way in which the rules were being
applied to the applicant under the specific circumstances concerned,
the agreement of the parents, with the assistance of the Youth
Welfare Office, which gave the applicant contact with the child for a
good four months every year, had to be taken into account. Therefore
the applicant had had the opportunity to play a large part in his
daughter’s life. He had neither been discriminated against by
the ruling in favour of the mother nor had the ruling discriminated
against married or divorced fathers. The mother’s situation and
the father’s situation were not totally comparable, given that
fatherhood could not be established from the outset if the parents
were unmarried. While taking into account as far as possible the
interests of everyone concerned, the above provisions in the Civil
Code were not linked to gender, but sought to regulate parental
custody in a balanced manner in the case of children born out of
wedlock. Moreover, German law provided that joint custody with the
mother was linked to her consent, regardless of whether the parents
were married or not. The Government finally contended that, under the
circumstances of the present case, it could not be ruled out that the
ordering of joint custody would cause conflicts between the parents
and would therefore be contrary to the child’s best interests.
2. The applicant’s submissions
- The applicant maintained that the interest of a child
born out of wedlock did not justify that a father who had cared for
the child in the past could not obtain joint custody. That joint
custody against the will of the mother was necessarily to the
detriment of the child’s best interests remained mere
speculation. Under the applicable law, the authorities and courts did
not even have to take into account the child’s best interests,
given that the law explicitly provided that a father could not obtain
joint custody without the mother’s consent. Furthermore, the
child had not been heard in the present case. Article 1626 a § 2
of the Civil Code was based on the assumption that fathers of
children born out of wedlock were less suitable to exercise custody
compared with mothers of children born out of wedlock. The present
application, however, proved the opposite, as the applicant’s
care for his daughter had in fact been excellent. Moreover, the
Federal Republic of Germany had not given sufficient reasons in the
present case for excluding the applicant’s right to custody,
which he was willing to exercise. The German legislator had assumed
that a father’s right to custody was not justified in view of
the allegedly numerous unstable relationships with children born out
of wedlock in society, thereby ignoring developments such as the
growing number of unmarried couples who were willing to exercise
joint custody. It was hence unacceptable generally to exclude joint
custody for fathers of children born out of wedlock simply due to
negative experiences with the exercise of joint custody by couples in
unstable relationships. Furthermore, the legislator had failed
sufficiently to fulfil its obligation to keep current and recent
developments under scrutiny.
- As
the applicant’s paternity had been certified from the
beginning, there was no legal uncertainty in the present case.
Moreover, the applicant considered it unacceptable to assume that the
mother of a child born out of wedlock was a priori better
suited than the father to exercise custody simply because she had
given birth to that child. However, the defect in the currently
applicable domestic law was not so much that the mother would
initially obtain the right to sole custody as that the father did not
have the opportunity to correct that decision. Even if the mother’s
refusal to make a joint custody declaration was completely arbitrary,
the father had no chance to have that declaration replaced by a court
order pursuant to Article 1672 § 1 of the Civil Code. The
legal situation breached, in particular, the father’s right to
respect for his family life in situations in which the father had had
contact with the child for a considerable amount of time and was
closely attached to the child. As regards Article 14, the applicant
submitted that the applicable law discriminated against the applicant
on grounds of sex and as an unmarried father without sufficient
justification. The child’s interest would not allow the mother
to veto a declaration on joint custody. Moreover, the applicant did
not have the opportunity to substitute that veto with a court
decision.
3. The Court’s assessment
- In view of the alleged discrimination against the
applicant in his capacity as the father of a child born out of
wedlock, the Court considers it appropriate to examine the case first
under Article 14 taken in conjunction with Article 8 of the
Convention.
A. Applicability
- The
Court reiterates that Article 14 only complements the other
substantive provisions of the Convention and the Protocols. It has no
independent existence since it has effect solely in relation to “the
enjoyment of the rights and freedoms” safeguarded by those
provisions. Although the application of Article 14 does not
presuppose a breach of those provisions – and to that extent it
is autonomous – there can be no room for its application unless
the facts at issue fall within the ambit of one or more of the latter
(see, among many other authorities, Abdulaziz, Cabales and
Balkandali v. the United Kingdom, judgment of 28 May 1985, Series
A no. 94, § 71, and Karlheinz Schmidt v. Germany,
judgment of 18 July 1994, Series A
no. 291-B, § 22).
- The
Court must therefore determine whether Article 8 of the Convention is
applicable in the instant case.
-
In this context the Court reiterates that the notion of family under
this provision 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 his birth. Thus there
exists between the child and its parents a bond amounting to family
life (see Keegan v. Ireland, judgment of 26 May 1994, Series A
no. 290, § 44). The existence or non-existence of “family
life” within the meaning of Article 8 is essentially a question
of fact depending upon the real existence in practice of close
personal ties, in particular the demonstrable interest in and
commitment by the father to the child both before and after the birth
(see, among other authorities, Lebbink v. the Netherlands, no.
45582/99, § 36, ECHR 2004-IV).
- The
Court further notes that the mutual enjoyment by a parent and child
of each other’s company constitutes a fundamental element of
family life, even if the relationship between the parents has broken
down, and domestic measures which hinder such enjoyment amount to an
interference with the right protected by Article 8 (see, among
others, Johansen v. Norway, judgment of 7 August 1996, Reports
of Judgments and Decisions 1996-III, pp. 1001-1002, § 52,
and Elsholz v. Germany [GC], no. 25735/94, § 43,
ECHR 2000-VIII).
- The
Court observes that in the instant case the applicant’s
paternity was established from the beginning and that he lived
together with the mother and the child until the child reached the
age of three and a half. Following the parents’ separation in
1998, the child continued to live for more than two years with the
applicant. Since 2001, the child has lived with her mother, while the
father has enjoyed extensive contact rights and during which time he
has provided for the child’s daily needs.
- It
follows that the impugned measures in the instant case, namely the
decisions which dismissed the applicant’s request for joint
custody, the right to exercise joint parental authority as regards,
inter alia, his daughter’s education, care and the
determination of where she should live, amounted to interference with
the applicant’s right to respect for his family life as
guaranteed by paragraph 1 of Article 8 of the Convention.
- The
Court therefore finds that the facts of the instant case fall within
the scope of Article 8 of the Convention and that, accordingly,
Article 14 is applicable.
B. Compliance
- The
Court reiterates that in the enjoyment of the rights and freedoms
guaranteed by the Convention, Article 14 affords protection against
different treatment, without an objective and reasonable
justification of persons in similar situations (see, among other
authorities, Hoffmann v. Austria, 23 June 1993, § 31,
Series A no. 255 C).
- In
this connection the Court notes that the applicant in his capacity as
the father of a child born out of wedlock complained firstly of
different treatment in comparison with the mother, in that he had no
opportunity to obtain joint custody without the latter’s
consent. Secondly, he complained of different treatment in comparison
with married or divorced fathers, who are able to retain joint
custody following divorce or a separation from the mother.
- As
to the situation under the applicable law of fathers of children born
in wedlock in comparison with that of fathers of children born out of
wedlock, the Court observes that the applicable legal provisions
contain different standards and give rise to a difference in
treatment between the two categories of parents. The former category
of parent has a legal right to joint custody from the outset and even
following divorce, which can be restricted or suspended by a family
court only if necessary in the child’s interest. The Court
notes that on the other hand parental authority over a child born out
of wedlock is attributed to the mother unless both parents consent to
make a request for joint authority. While the pertinent provisions do
not categorically exclude the possibility that the father may obtain
joint custody in future, Articles 1666 and 1672 of the Civil Code
provide that the family court may only transfer the right to custody
to the father if the child’s well-being is threatened by
negligence on the mother’s part or if one parent makes the
relevant application with the consent of the other parent. In the
absence of these prerequisites, that is to say if the child’s
well-being is not jeopardised and if the mother does not consent to a
transfer of custody, as has been established in the present case,
German law does not provide for judicial examination as to whether
the attribution of joint parental authority to both parents would
suit the child’s best interests.
- The
Court reiterates that in cases arising from individual applications
it is not its task to examine the domestic legislation in the
abstract, but it must examine the manner in which that legislation
was applied to the applicant in the particular circumstances and
whether its application in the present case led to an unjustified
difference in the treatment of the applicant (see Sommerfeld v.
Germany [GC], no. 31871/96, § 86, ECHR 2003 VIII).
- Turning
to the circumstances of the present case, the Court notes that the
German courts dismissed the applicant’s request for joint
custody of his daughter because under Article 1626a of the Civil
Code, in the absence of a declaration on joint custody by both
parents, the mother held sole custody. The approach taken by the
German courts in the present case thus fully reflects the underlying
legislation. Consequently, as there was no alternative decision
possible under national law, the domestic courts did not examine
whether the granting of joint custody would jeopardise the child’s
welfare in this individual case or whether on the contrary the
granting of joint custody would be in the best interests of the
child. The crucial point is that joint custody against the will of
the mother of a child born out of wedlock is prima facie
considered as not being in the child’s interest.
- Both
the Cologne District Court and the Court of Appeal referred to the
leading judgment of the Federal Constitutional Court of
29 January 2003, in which the latter court gave detailed
reasons regarding the conflict between Article 1626a of the Civil
Code and the rights of fathers of children born out of wedlock to
have their family life respected. The Federal Constitutional Court
found that the child’s well-being demanded that it had a person
at birth who could act for the child in a legally binding way. In
view of the very different life conditions into which those children
were born, it was generally justified to grant sole custody to the
mother, and not to the father who in any event could obtain custody
through a joint custody declaration.
- Having
regard to the above court decisions and underlying legislation, the
Court finds that there is sufficient reason to conclude that there
has been a difference in treatment as regards the attribution of
custody to the applicant in his capacity as a father of a child born
out of wedlock in comparison with the mother and in comparison with
married fathers. The Government argued in this connection that
the situation of the mother and the father could not be regarded as
being totally comparable, since in contrast to motherhood, which was
established on the birth of the child, fatherhood could not be
established from the outset if the father was not married to the
mother. The Court considers that these arguments are of relevance in
determining whether the difference in treatment was justified (see
Rasmussen v. Denmark, 28 November 1984, § 37, Series A
no. 87).
- As
is well established in the Court’s case-law, a difference in
treatment is discriminatory for the purposes of Article 14 if it has
no objective and reasonable justification, that is if it does not
pursue a legitimate aim or if there is not a reasonable relationship
of proportionality between the means employed and the aim sought to
be realised (see, in particular, Inze v. Austria,
28 October 1987, § 41, Series A no. 126, and Mazurek
v. France, no. 34406/97, § 48, ECHR 2000-II).
- The
Contracting States enjoy a margin of appreciation in assessing
whether and to what extent differences in otherwise similar
situations justify a different treatment (see Abdulaziz, Cabales
and Balkandali, cited above, pp. 35-36, § 72). The
scope of the margin of appreciation will vary according to the
circumstances, the subject matter and its background; in this
respect, one of the relevant factors may be the existence or
non-existence of common ground between the laws of the Contracting
States (see, among others, Petrovic v. Austria, 27 March 1998,
§ 38, Reports of Judgments and Decisions 1998 II).
- However,
the Court has already held that very weighty reasons need to be put
forward before a difference in treatment on the ground of sex or
birth out of or within wedlock can be regarded as compatible with the
Convention (see Karlheinz Schmidt v. Germany, cited above, and
§ 24; Mazurek v. France, cited above, §
49). The same is true for a difference in the treatment of the father
of a child born of a relationship where the parties were living
together out of wedlock as compared with the father of a child born
of a marriage-based relationship (see Sommerfeld v. Germany,
cited above, § 93).
- The
Court notes that the impugned decisions of the domestic courts were
based on Article 1626a of the Civil Code, which itself is aimed at
protecting the best interests of a child born out of wedlock by
determining its legal representative and by avoiding disputes between
the parents over questions relating to the exercise of parental
custody at the child’s expense. The decisions thus pursued a
legitimate aim for the purposes of Article 14.
- The
Court acknowledges that allowing parents of a child born out of
wedlock to agree on joint custody constitutes an attempt by the
legislator to put them to a certain extent on the same footing as
married parents who had obliged themselves on marriage to take
responsibility for each other and their children.
-
The Court further is aware that differences exist in the respective
environments into which the children of parents who are not married
are born, ranging from relationships where the father’s
identity is not established or where he does not want to take
responsibility for the child to those where the father fully
participates in the upbringing of the child and where the child grows
up in an environment that is practically indistinguishable from an
environment based on an intact parental marriage.
- The
Court accepts that in view of these different life situations of
children born out of wedlock and in the absence of a joint
declaration on parental authority, it was justified for the
protection of the child’s interests to attribute parental
authority over the child initially to her mother in order to ensure
that there was a person at birth who could act for her in a legally
binding way.
- The
Court further accepts that there may exist valid reasons to deny an
unmarried father participation in parental authority, as might be the
case if arguments or lack of communication between the parents risk
jeopardising the child’s welfare. However, nothing establishes
that such an attitude is a general feature of the relationship
between unmarried fathers and their children.
- The
Court observes in particular that the above considerations did not
apply in the applicant’s case. The applicant’s paternity
was certified from the beginning, he lived together with the mother
and the child until the child reached the age of three and a half and
for an additional two years following the parents’ separation,
more than five years in total. After the child had moved to live with
her mother, the father still enjoyed extensive contact rights and
provided for the child’s daily needs. Nevertheless, the
applicant was excluded from the outset by force of law from seeking a
judicial examination as to whether the attribution of joint parental
authority would serve the child’s best interests and from
having a possible arbitrary objection of the mother to agree to joint
custody replaced by a court order.
- The
Court is not convinced by the argument put forward by the Government
and included in the Federal Constitutional Court’s reasoning
that the legislator could legitimately assume that, if the parents
lived together but the mother refused to make a joint custody
declaration, the case was an exceptional one in which the mother had
serious reasons for the refusal which were based on the child’s
interest. In this context the Court welcomes the measures undertaken
by the Government for the purpose of fulfilling the mandate from the
Federal Constitutional Court to keep actual developments under
observation and to verify whether the assumptions it had made when
forming the rules in question were sustainable in face of reality.
However, it observes that these surveys have not yet produced clear
results and that in particular as regards the mothers’ motives
for objecting to joint parental authority they indicate that these
are not necessarily based on considerations related to the child’s
best interests.
- Having
regard to the above considerations, the Court cannot share the
assumption that joint custody against the will of the mother is prima
facie not to be in the child’s interest.
- While
having regard to the wide margin of appreciation of the authorities,
in particular when deciding on custody-related matters
(see Sommerfeld v. Germany, cited above, § 63), the
Court also considers the evolving European context in this sphere and
the growing number of unmarried parents. The Court reiterates in this
connection that the Convention is a living instrument which must be
interpreted in the light of present-day conditions (see, among other
authorities, Marckx v. Belgium, 13 June 1979, § 41,
Series A no. 31, and Johnston and Others v. Ireland,
18 December 1986, § 53, Series A no. 112). The Court
observes in this context that although there exists no European
consensus as to whether fathers of children born out of wedlock have
a right to request joint custody even without the consent of the
mother, the common point of departure in the majority of Member
States appears to be that decisions regarding the attribution of
custody are to be based on the child’s best interest and that
in the event of a conflict between the parents such attribution
should be subject to scrutiny by the national courts.
- The
Court is not persuaded by the Government’s argument in this
connection that, under the circumstances of the present case, it
could not be ruled out that the ordering of joint custody by a court
would cause conflicts between the parents and would therefore be
contrary to the child’s best interests. While it is true that
legal proceedings on the attribution of parental authority always
bear the potential of unsettling a young child, the Court observes
that the domestic law provides for a full judicial review of the
attribution of parental authority and resolution of conflicts between
separated parents in cases in which the father once held parental
authority, either because the parents were married at the time of
birth, had married thereafter or had opted for joint parental
authority. In such a case the parents retain joint custody unless the
court at the request of one parent awards sole custody to the latter
in accordance with the child’s best interest pursuant to
Article 1671 of the Civil Code.
- The
Court considers that the Government have not submitted sufficient
reasons why the present situation should allow for less judicial
scrutiny than these cases and why the applicant, who has been
acknowledged as a father and has acted in that role, should in this
respect be treated differently from a father who had originally held
parental authority and later separated from the mother or divorced.
- In
view of the above considerations, the Court concludes that in respect
of the discrimination at issue there was not a reasonable
relationship of proportionality between the general exclusion of
judicial review of the initial attribution of sole custody to the
mother and the aim pursued, namely the protection of the best
interests of a child born out of wedlock.
- There
has accordingly been a violation of Article 14 of the Convention,
taken together with Article 8 in the instant case.
- Having
regard to this conclusion, the Court does not consider it necessary
to determine whether there has also been a breach of Article 8 of the
Convention taken alone.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant, relying on the Elsholz case (Elsholz v. Germany
[GC], no. 25735/94, ECHR 2000 VIII), claimed a sum of at least
15,000 euros (EUR) in respect of non-pecuniary damage for the sorrow
and frustration he has suffered from not having been formally
recognised in his role as a father and from not having been able to
actively contribute to key decisions regarding his daughter.
- The
Government, while leaving the matter to the Court’s discretion,
considered the amount claimed by the applicant to be excessive.
- The
Court considers that it cannot speculate as to whether the applicant
would have been granted parental authority if the domestic courts had
examined the merits of his request in accordance with his Convention
Rights. Taking further into account that the applicant – unlike
the father in the Elsholz case – enjoyed regular
contact with his daughter throughout the proceedings, the Court
considers that the finding of a violation constitutes sufficient just
satisfaction for any non-pecuniary damage suffered by the applicant.
B. Costs and expenses
- The
applicant also claimed EUR 3,696.55 for the costs and expenses
incurred before the domestic courts and EUR 3,311.59 for those
incurred before the Court.
-
The Government contested the claim for expenses before the Court.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers that the sum claimed should be awarded in full.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Holds by 6 votes to 1 that there has been a
violation of Article 14 of the Convention taken in conjunction with
Article 8;
- Holds unanimously that there is no need to
examine separately the complaint under Article 8 of the Convention;
- Holds unanimously that the finding of a
violation constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
- Holds unanimously
(a) that
the respondent State is to pay to the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 7,008.14
(seven thousand and eight euros and fourteen cents), plus any tax
that may be chargeable to the applicant, in respect of costs and
expenses,
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 3 December 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Schmitt is annexed to this judgment.
P.L.
S.P.
DISSENTING OPINION OF JUDGE SCHMITT
- I
am unable to subscribe to the conclusion that there has been a
violation of Article 14 in conjunction with Article 8 of the
Convention. In consideration of the wide margin of appreciation
of the domestic authorities and in the light of the particular
circumstances of the case, the interference with the applicant’s
right to respect for his family life is necessary in a democratic
society within the meaning of Article 8 and any unequal treatment in
comparison with the mother or a divorced father is justified for the
purposes of Article 14.
- I
see that the applicant had no possibility of obtaining joint custody
against the will of the mother and that he was excluded by force of
law from seeking judicial review. But the Court accords the domestic
authorities, and courts in particular, a wide margin of appreciation
with regard to decisions concerning the custody of children, unlike
in the case of restrictions on parents’ right of access (see
Görgülü v. Germany, no. 74969/01, § 42,
26 February 2004, and Sommerfeld v. Germany [GC], no.
31871/96, § 63, ECHR 2003 VIII). Contrary to the majority,
I think that in the instant case this wide margin of appreciation has
not been exceeded by the statutory rules and the court decisions
based on them. The reasoning underlying the relevant legal
provisions, especially Article 1626a § 2 of the Civil Code,
is tenable and can especially not be dismissed in the
applicant’s case. The German legislature has fully
recognised and considered the problems arising for the father from
the mother’s privileged position and has deliberately decided
against so-called “enforced harmony” (which means the
legal possibility of joint parental custody by court order).
The explanation of the report submitted by the Legal Affairs
Committee of the German Federal Parliament following the
deliberations on the amended Law on Family Matters makes clear that
the interests of the father and the problems of the proposed solution
were not only fully considered in the weighing-up-process, but that
the legal provisions are based on close examination and a defensible
reasoning.
- The
reasoning of the German legislature is mainly based on the notion of
legal certainty and the protection of the child’s best
interests, the latter also being an important factor in the case-law
of the Court (see Sahin v. Germany [GC], no.
30943/96, § 94, ECHR 2003 VIII). Parliament could
legitimately assume that in the case of children born out of wedlock,
joint custody for both parents enforced by a court order against the
will of the mother was contrary to the child’s best interests.
This is especially true when the parents do not live together, as in
the present case. This crucial point was emphasised by the Federal
Constitutional Court in its judgment of 29 January 2003, which
confirmed the legal approach as constitutional. If the parents
did not make a joint custody declaration while they were living
together (in the present case until the child was aged three and a
half), after the parents’ separation and a custody dispute the
assumption of the legislature that joint custody enforced by court
order regularly entails more disadvantages than advantages for the
child is even more justified. In such a case it is obvious that there
is no basis for cooperation between the parents and therefore no
basis for joint custody in the child’s best interests.
- This
applies in particular because the assumption behind the regulatory
approach cannot be dismissed in the applicant’s case either. It
has to be borne in mind that the Court – as a general rule –
does not assess the abstract legal situation but the manner in which
the rules are applied to the applicant in the given specific
circumstances. With regard to this principle, the following facts
have to be considered. Before the Federal Constitutional Court had
decided the question of the constitutionality of Article 1626a of the
Civil Code the domestic courts additionally examined in the context
of the applicant’s application for legal aid in respect of his
application for custody whether the granting of joint custody would
jeopardise the child’s welfare and they answered this question
in the affirmative. The Cologne District Court referred in a decision
of 29 August 2002 to “a dispute between the parents
on fundamental questions”. It further stated explicitly that
joint parental custody would not be in the child’s interests
and the fundamental dispute between the parents would even be a
reason to revoke joint custody. The Cologne Court of Appeal made
itself even more clear in a decision of 19 July 2002 when it
explained that the applicant, “irrespective of section 1626a of
the Civil Code”, could not obtain joint parental custody
because it was not in the child’s interests. In the light of
these remarks by the domestic courts – albeit only in the
context of the applicant’s application for legal aid and not in
the main proceedings – I do not agree with the majority, who
dismiss the Government’s argument that in the circumstances of
the present case the ordering of joint custody by a court would be
likely to cause conflicts between the parents and would therefore be
contrary to the child’s best interests. Moreover, it has to be
considered in this connection that the applicant exercises a
relatively extensive right of access without any problems, namely a
good four months a year, giving him the opportunity to play a large
part in his daughter’s life.
- Furthermore, I do not agree with the majority that in
the present case the Court can overcome the wide margin of
appreciation of the authorities with the notion that the Convention
is a living instrument which must be interpreted in the light of
present-day conditions. Like the majority I do not see a European
consensus on this issue. The judgment states correctly that only a
limited number of countries explicitly address the issue of a lack of
agreement between the parents. Although the majority of the member
States may provide for scrutiny by the courts in the event of a
conflict between the parents, the provisions and the underlying legal
approaches are very different in their details and cannot be compared
to each other, as a comparative-law survey on parental authority over
a child born out of wedlock shows. Where there is no uniform approach
it has to be accepted in my opinion that there are a number of
possible ways of solving the conflict between the different interests
at stake. Moreover, the common starting-point of the legislation in
the member States is, as in Germany, the child’s best
interests. With regard to this common goal and the non-existent
consensus among the member States, I am not convinced that providing
the father with the possibility of obtaining joint custody by court
order against the will of the mother should be the only legal
solution in accordance with the Convention. Besides, it is rather in
line with past decisions of the Court that Parliament’s
evaluation can anticipate the weighing-up process without providing
for a weighing-up of interests in every individual case (see Evans
v. the United Kingdom, no. 6339/05, § 65, 7 March 2006). It
has additionally to be mentioned that the advantage of such
anticipation is a clear law which provides certainty for the persons
involved.
- With
reference to the foregoing, especially the interests of the child,
I am of the opinion that the applicant has also not been
subjected to unjustified discrimination. Furthermore, the mother’s
and the father’s situations are not totally comparable; sole
custody of the mother is, at least initially, necessary for reasons
of legal certainty, as the majority concede. The fact that the father
cannot enforce joint custody later on is justified, as mentioned
above, especially in the event of a separation, by the notion of the
child’s well-being, with a view to avoiding painful disputes
between the parents at the child’s expense. The statutory rules
legitimately proceed from the idea that parents who are unable to
agree on joint custody are also unable to solve the difficult
problems arising in the exercise of joint custody. Moreover, the
situation of the applicant is not totally comparable to that of
divorced fathers and unmarried fathers who have exercised joint
custody based on joint declarations. In the case of married parents
joint custody is founded on joint declarations manifesting themselves
in the marital vows. The right of a divorced father is therefore
based on a continuation of his legal position which was established
beforehand by both parents. This is equally true for parents who are
not married to each other if they have previously exercised joint
custody by means of a joint declaration. Besides, in both cases joint
custody is linked to the consent of the mother. On the contrary, the
legislature could legitimately assume that parents do not wish to
exercise joint parental custody if they are not married to each other
and do not make joint declarations.
- In the final analysis I think that there is a
reasonable relationship of proportionality between the exclusion of
judicial review of the initial granting of sole custody to the mother
and the aim pursued, namely the protection of the child’s
well-being. This is especially true in the present case, where the
German courts involved in the above-mentioned decisions ascertained
that joint custody would be against the child’s interests and
would on that account have even had to be revoked had it been
established previously. This underlines the validity of the argument
of the Federal Constitutional Court in its judgment of 29 January
2003, concerning another case, where it stated that the applicable
law, especially Article 1626a § 2 of the Civil Code, did not
infringe the father’s right to respect for his family life by
not providing for judicial review, because in the event of a serious
dispute between the parents it could not be expected that the courts
would consider joint custody to be in the child’s best
interests. However, in the end the different assessment by the
majority in this case means that the domestic legislature is left
with hardly any margin of appreciation with regard to the details of
regulating parental custody for children born out of wedlock.
I consider this to be a too far-reaching consequence of the
judgment and would have preferred a more cautious approach in this
difficult area. For the foregoing reasons I have therefore voted
against finding a violation of Article 14 in conjunction with Article
8 of the Convention.
