AS TO THE ADMISSIBILITY OF


                      Application No. 28422/95
                      by Peter HOPPE
                      against Germany

     The European Commission of Human Rights (First Chamber) sitting
in private on 14 January 1998, the following members being present:

           MM   M.P. PELLONPÄÄ, President
                N. BRATZA
                E. BUSUTTIL
                A. WEITZEL
                C.L. ROZAKIS
           Mrs  J. LIDDY
           MM   L. LOUCAIDES
                B. MARXER
                B. CONFORTI
                I. BÉKÉS
                G. RESS
                A. PERENIC
                C. BÎRSAN
                K. HERNDL
                M. VILA AMIGÓ
           Mrs  M. HION
           Mr   R. NICOLINI

           Mrs  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 27 July 1995 by
Peter HOPPE against Germany and registered on 4 September 1995 under
file No. 28422/95;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of
     the Commission;

-    the observations submitted by the respondent Government on
     8 October 1996, the observations in reply submitted by the
     applicant on 18 December 1996 and his further submissions on
     3 March, 29 April and 23 September 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, born in 1957, is a German national and resident
in Wuppertal.

A.   Particular circumstances of the case

     The facts of the case, as they have been submitted by the
parties, may be summarised as follows.

a)   Factual background

     In December 1992 the applicant and his wife separated.  The
spouses' daughter Svenja, born in wedlock in April 1990, stayed with
her mother.  In 1994 the applicant's wife instituted divorce
proceedings before the Wuppertal District Court (Amtsgericht), claiming
that the marriage had broken down.  She requested that custody of
Svenja be granted to her.  The applicant requested that custody should
be exercised by both parents.  Furthermore, the applicant requested
that his right of access to Svenja be determined by court decision.
In these and the related proceedings, both spouses were represented by
counsel.

b)   The applicant's right of access

     On 19 October 1994 the Wuppertal District Court, following
hearings on 22 June and 17 October 1994, decided that the applicant was
entitled to see Svenja every second Saturday as well as on Boxing Day,
Easter Monday and Whit Monday.  The District Court referred to S. 1634
of the Civil Code (Bürgerliches Gesetzbuch).

     In its decision, the Court noted that the applicant had
previously seen Svenja twice a week, until her mother, on account of
Svenja's behaviour, had reduced their contacts.  Thereupon, the
applicant had requested a right of access during one day at the week-
end and between Wednesday afternoon and Thursday morning.  Svenja's
mother had agreed to a right of access every second Saturday.  The
Court found that, having due regard to the child's well-being, the
applicant's right to see Svenja had to be arranged accordingly so that
they could preserve their relationship.

     As regards the frequency of visits, the Court noted that all
experts heard in the proceedings, i.e. the psychological expert (report
of 14 June 1994), the therapeutic pedagogue and a social worker of the
Barmen Diaconate Institution (Diakonisches Werk), had stated that the
four-year-old child was exposed to a conflict of loyalty, which she
experienced as a strong pressure, and that she could not cope with this
situation.  While it was true that Svenja was fond of the applicant and
would be in a position to see him without fear if her parents managed
to create an atmosphere which took the pressure off her, they had not
been able to do so.  The frequency of visits as requested by the
applicant could not, for the time being, be handled by Svenja.  It
appeared that the applicant, for personal reasons, could not agree to
a limited access.  Moreover, Svenja's mother had not yet managed to
give her such a feeling of security as to permit Svenja to visit the
applicant without feelings of fear.  Svenja therefore needed the
intervals of two weeks as times of rest in her mother's household.

     On 4 November 1994 the applicant lodged an appeal with the
Düsseldorf Court of Appeal (Oberlandesgericht).

     On 24 November 1994 the Court of Appeal informed the parties of
its intention to decide in a written procedure.  The applicant stated
his preference for an oral hearing.

     On 9 March 1995 the Düsseldorf Court of Appeal granted the
parties legal aid for the purposes of the applicant's appeal
proceedings against the decision on his right of access.  Moreover,
upon the applicant's appeal, the Court of Appeal amended the District
Court's decision to the effect that every first visiting weekend per
month the applicant was entitled to see Svenja from Saturday morning
until Sunday evening.  The remainder of his appeal was dismissed.

     The Court of Appeal confirmed the findings of the District Court
according to which a regular visit every second week best suited the
child's well-being.  In this respect, the Court of Appeal had
particular regard to the parents' controversial relations and their
impact on the child.  Thus the parents were not yet in a position to
have a calm discussion on questions relating to the right of access.
Lately, on 21 February 1995, the attempt of a conversation between the
parents at the Parents Counselling Service (Elternberatungsstelle) of
the local Youth Office (Jugendamt) had failed.  As long as there was
no agreement between the parents, any visit was an emotional strain for
the child.  The applicant's right of access had to be arranged in view
of the continuing conflict between the parents.

     In the particular circumstances, the regular visits as decided
upon by the District Court best suited both the applicant's wishes as
well as the child's well-being.  In this respect, the Court of Appeal
noted that the exercise of this right of access had functioned well
since October 1994.  In particular, the child had meanwhile calmed down
and her sleep was no longer troubled.  The Court of Appeal, in
agreement with the parties, further considered the report, dated
19 January 1995, of a social worker of the Elberfeld Diaconate
Institution, which had been obtained in the context of the parallel
custody proceedings.  According to this report, particularities in
Svenja's behaviour had no longer been observed.  The Court of Appeal
found that this encouraging development did not yet allow for a
significant extension of the applicant's right of access.  However,
taking a cautious approach, the visit on the first weekend of every
month could be extended to include one stay over night.  Having regard
to the psychological expert opinion of 14 June 1994, the objections
previously raised by Svenja's mother were no longer valid.  Should she
experience any problems, she would have to see to it that Svenja came
to regard the visits with a stay over night as a usual matter.  Any
further contacts, including a stay over night between every Wednesday
and Thursday, routine telephone conversations and common holidays, were
not yet possible, but could be envisaged in case that the then decision
on access proved successful.

     On 13 June 1995 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde).

     The Constitutional Court considered that the applicant's
complaint did not raise any issue of fundamental importance.  In
accordance with the case-law of the Constitutional Court, both the
right of access of a parent not entitled to custody as well as the
right of custody of the other parent were protected by the right to
respect for family life under the Basic Law (Grundgesetz).  The
possibility, pursuant to S. 1634 para. 2 of the Civil Code, to limit
or exclude the right of access, if necessary for the child's well-
being, ensured that the courts' decisions on the matter were based on
the child's well-being.

     Furthermore, the Constitutional Court found that the Court of
Appeal's decision did not disclose any fundamentally wrong views on
parental rights.  Thus, the Court of Appeal had considered the child's
well-being in the circumstances of the instant case.  The reasoned
decision that the visits could only slowly be extended could not be
objected to from a constitutional point of view.  There was no
indication that the procedural requirements were not met.  In
particular, the applicant had not shown that, following the failure of
a conversation between the former spouses at the Parents Counselling
Service, the Court of Appeal could not reach the conclusion that a
fresh hearing would not permit any new findings.

     On 3 April 1996 the Wuppertal District Court amended the
decisions on the applicant's right of access to the effect that he was
entitled to see his daughter every second weekend between Saturday
morning and Sunday evening and also for a period of two weeks of summer
holidays.

c)   The custody proceedings

     On 24 October 1994 the Wuppertal District Court, following an
oral hearing on 17 October 1994, granted a divorce and transferred
custody of Svenja to her mother.

     The Court, referring to S. 1671 of the Civil Code, found that its
decision on custody was, for the time being, in the child's best
interest.  In this respect, the Court, having regard to the statements
of the psychological expert in the proceedings regarding the
applicant's right of access, noted that Svenja's mother lovingly
educated her and was only interested in Svenja's well-being.

     As to the applicant's request for joint custody, the Court
considered that the conditions for joint custody were not met.  In
particular, the parents' relations with each other regarding Svenja,
as well as the relations with Svenja were not free of conflicts.  The
applicant did not accept that Svenja's living situation had changed
following her parents' separation and found that, as a four-year-old
child, she needed a stable conduct of life without being torn between
different apartments and different styles of education.  The Court
noted the applicant's interest in Svenja's well-being and his efforts;
however, he failed to see that his wishes obstructed Svenja's
psychological development.

     On 12 December 1994 the applicant lodged an appeal with the
Düsseldorf Court of Appeal.

     On 15 December 1994 the Court of Appeal requested Svenja's mother
as well as the competent Youth Office to comment on the applicant's
appeal submissions.  On 19 January 1995 the Elberfeld Diaconate
Institution, upon the instructions of the competent Youth Office,
submitted its report.  The parties were given the opportunity to
comment upon the said report in writing.  The applicant stated his
preference for an oral hearing.

     On 9 March 1995 the Düsseldorf Court of Appeal dismissed the
applicant's request for free legal aid for the purposes of appeal
proceedings against the District Court's decision of 24 October 1994,
and dismissed the applicant's appeal in this respect.
     The Court of Appeal observed that, following a divorce, parents
could only have joint custody if they were willing to cooperate in this
respect.  However, Svenja's mother was not prepared to do so.  In the
proceedings regarding the applicant's right of access, which had been
pending since March 1993, the parents had continuously had major
disagreements, and the attempt of a conversation at the Parents
Counselling Service had finally failed in February 1995.  Custody
could, therefore, only be exercised by one of the parents, in this case
the child's mother.  While the applicant had requested that, in the
alternative, custody be granted to him, he had not raised any serious
objections to the District Court's reasoning.

     The Court of Appeal also considered that it could decide on the
basis of the case-file without an oral hearing with the parties being
necessary.

     On 13 June 1995 the Federal Constitutional Court refused to admit
the applicant's constitutional complaint.

     The Constitutional Court considered that the applicant's
complaint did not raise any issue of fundamental importance.  In this
respect the Constitutional Court recalled that when courts had to
decide on the transfer of custody following the parents' divorce, they
had to balance the positions of both parents without encroaching upon
the parental priority in educational matters.  In such cases, the
courts were not, therefore, subject to the strict conditions in respect
of interferences with parental rights.  The legislator and, in
application of the relevant legal provisions, the courts were entitled
to transfer the main responsibility for the education of a child to one
parent, if the conditions for joint custody were not met.  Furthermore,
the Constitutional Court found that the Court of Appeal's view that the
conditions for granting joint custody were not met in the instant case
could not be objected to from a constitutional point of view.
Moreover, there was nothing to show that the Court of Appeal should
have conducted any further inquiries.

B.   Relevant domestic law and practice

     S. 1634 paras. 1 and 2 of the Civil Code, as far as relevant,
provide as follows:

     "(1) A parent who is not entitled to custody has the right of
     access to the child.  ...

     (2) The competent (family court) may decide on the extent of the
     right of access and its implementation, ... The court may limit
     or exclude the right of access if this is necessary in the
     interest of the child's well-being."

     S. 1671 paras. 1 and 2 of the Civil Code provide as follows:

     "(1)  In case of the parents' divorce the competent court
     (Familiengericht) decides on which parent should have the right
     to custody over a common child.

     (2)   The court takes the decision which is in the interest of
     the child's well-being; the child's bonds, especially to its
     parents and brothers and sisters, are to be considered."
     In a decision of 3 November 1982, the Federal Constitutional
Court declared unconstitutional paragraph 4, first sentence, of
S. 1671, according to which the right to custody had to be transferred
to one of the parents in case of divorce.  The Constitutional Court
considered that a joint right to custody was possible in case of
divorce if there was a common proposal by the parents to this effect,
showing their willingness to share the responsibility for their child
after their divorce.


COMPLAINTS

1.   The applicant complains, in his own name and also on behalf of
his daughter, that the German court decisions determining his right of
access to his daughter violated their right to respect for their family
life, as guaranteed by Article 8 para. 1 of the Convention.  He
considers that extensive contacts as requested by him are in the
interest of his daughter and were only refused because of the negative
attitude of Svenja's mother.  He also complains that the courts did not
fully establish the relevant facts necessary for a decision on his
right of access.  He submits in particular that the Court of Appeal did
not hear the parties and an expert, although he had requested such a
hearing.

2.   The applicant complains under Article 14 taken in conjunction
with Article 8 of the Convention that the German courts, in accepting
the negative attitude of Svenja's mother, discriminated against him as
Svenja's father.

3.   The applicant also complains under Article 6 para. 1 of the
Convention that the proceedings regarding his right of access were
unfair.

4.   Moreover, the applicant complains that the German court decisions
granting custody of his daughter to his former wife and thereby
refusing his request for joint custody violated his and Svenja's right
to respect for their family life, as guaranteed by Article 8 para. 1
of the Convention.  He considers that a common proposal by the divorced
spouses should not be a condition for the granting of joint custody
after divorce.  He also complains that the courts did not fully
establish the relevant facts necessary for a decision on the custody
matter.  He submits in particular that the Court of Appeal did not hear
the parties and an expert, although he had requested such a hearing.

5.   The applicant complains under Article 14 taken in conjunction
with Article 8 of the Convention that the German courts, in requiring
a common proposal of the parents, discriminate against one of the
divorced spouses.

6.   The applicant also complains under Article 6 para. 1 of the
Convention that the custody proceedings were unfair.


PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 27 July and registered on
4 September 1995.

     On 26 June 1996 the Commission decided to communicate the
application to the respondent Government.

     The Government's written observations were submitted on
8 October 1996. The applicant replied on 18 December 1996. He made
further submissions on 3 March, 29 April and 23 September 1997.


THE LAW

1.   The applicant lodges various complaints about custody and access
matters in his own name and also on behalf of his daughter.

     The Government submit that the applicant, who has no custody of
his daughter, is not entitled to lodge complaints on her behalf.

     In the applicant's view, the question of whether he should be
entitled to represent his daughter is closely linked to the merits of
the case.

     According to Article 25 (Art. 25) of the Convention, the
Commission is competent to examine an application lodged by a person
claiming to be the victim of a violation by one of the High Contracting
Parties of the rights set forth in the Convention.

     The Commission recalls that in principle a parent who has custody
of his or her child is able to introduce an application under
Article 25 (Art. 25) of the Convention on behalf of the child.

     In a previous case, the Commission accepted the mother of a child
under qualified statutory guardianship as the child's representative
to the extent that their complaints were identical and related to the
guardianship order (No. 10812/84, Dec. 11.7.85, D.R. 53, p. 211).
However, the Commission considers that the same considerations cannot
apply to a legal situation where, after divorce, a parent has neither
the custody or care and control of the children.  This parent cannot
introduce an application on their behalf, unless especially empowered
to that effect (No. 8045/77, Dec. 4.5.79, D.R. 16, p. 105;
No. 28319/95, Dec. 20.5.96, D.R. 85, p. 153).

     In the present case, the Commission notes that the applicant does
not have custody of his daughter, custody having been awarded to the
mother upon the spouses' divorce.  The applicant, therefore, is not
empowered to act on his daughter's behalf on the basis of any authority
over the child.  Moreover, the applicant has failed to demonstrate that
he is otherwise entitled to represent his daughter with respect to this
application.

     Consequently, the Commission finds that the applicant is not
competent under Article 25 (Art. 25) of the Convention to bring any
complaints on behalf of his daughter.

     It follows that this part of the application is incompatible
ratione personae with the provisions of the Convention, within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2.   The applicant complains in his own name that the German court
decisions determining his right of access to his daughter, and the
proceedings concerned, violated his right to respect for his family
life, as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.
He also relies on Articles 6 and 14 (Art. 6, 14) of the Convention.

     Article 8 (Art. 8), as far as relevant, reads as follows:

     "1.   Everyone has the right to respect for his ... family life,
     ...

     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
     ... for the protection of the rights and freedoms of others."

     Article 6 para. 1 (Art. 6-1), as far as relevant, provides:

     "1.   In the determination of his civil rights and obligations
     ..., everyone is entitled to a fair and public hearing ... by [a]
     ... tribunal ..."

     Article 14 (Art. 14) of the Convention provides:

     "The enjoyment of the rights and freedoms set forth in this
     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."

     The Government maintain that the applicant's complaints are
manifestly ill-founded.  They submit that the decisions limiting the
applicant's right of access were taken in accordance with German law
and were necessary in a democratic society for the protection of the
child's well-being.  In particular the Courts had regard to strained
relations between the parents which exposed Svenja to a conflict of
loyalty.  In this respect, the District Court had heard the parents,
a psychological expert as well as a social worker.  The Court of Appeal
could base its decision on the first instance files, amended by the
report of the Elberfeld Diaconate Institution and the parents' written
submissions which confirmed the continuing conflicts between them.  In
the absence of relevant new facts, the Court of Appeal had not been
required to hold a hearing.  Moreover, there had been no discrimination
against the applicant.

     The applicant contends that extensive contacts as requested by
him are in the interest of his daughter and were only refused because
of the negative attitude of Svenja's mother.  In placing Svenja into
a situation of loyalty conflict, she had been able to obstruct his
right of access.  He also complains that the courts did not fully
establish the relevant facts necessary for a decision on his right of
access.  He submits in particular that the Court of Appeal did not hear
the parties and an expert, although he had requested such a hearing.

     The Commission considers, in the light of the parties'
submissions, that the applicant's complaint about the decisions on his
right of access and the proceedings concerned, in particular as far as
the decision-making process is concerned, raises complex issues of law
and of fact under the Convention, the determination of which should
depend on an examination of the merits of the application.  The
Commission concludes, therefore, that this part of the application is
not manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.  No other grounds for declaring it
inadmissible have been established.

3.   The applicant further complains that the German court decisions
concerning custody of Svenja, and the proceedings concerned, violated
his right to respect for his family life, as guaranteed by Article 8
para. 1 (Art. 8-1) of the Convention.  He also relies on Articles 6 and
14 (Art. 6, 14) of the Convention in this respect.

     The Government consider that these complaints are likewise
manifestly ill-founded. They submit in particular that the interference
with the applicant's right to respect for his family life was justified
under paragraph 2 of Article 8 (Art. 8-2).  In a situation of conflict
between the parents, the competent courts could not decide that custody
be jointly exercised by them, but had to grant custody to one of them.
In the present case, the daughter had been living with her mother since
the separation of her parents and, for reasons of continuity, custody
could only be granted to her.  Moreover, on the whole, both parents
were sufficiently involved in the decision-making process.  In their
view, no hearing before the Court of Appeal appeared necessary, as the
main consideration had been that the strained relations between the
parents did not permit joint custody.

     The applicant disagrees.  He submits that custody should not have
been granted to the parent refusing the exercise of joint custody and
obstructing the other parent's right of access.  Moreover, there had
been no sufficient reasons for the Court of Appeal to decide on his
appeal without an oral hearing.

     The Commission considers, in the light of the parties'
submissions, that the applicant's complaint about the decisions on his
right of access and the proceedings concerned, in particular as far as
the decision-making process is concerned, raises complex issues of law
and of fact under the Convention, the determination of which should
depend on an examination of the merits of the application.  The
Commission concludes, therefore, that this part of the application is
not manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.  No other grounds for declaring it
inadmissible have been established.

     For these reasons, the Commission, unanimously,

     DECLARES ADMISSIBLE, without prejudging the merits, the
     applicant's complaints, raised in his own name, about the German
     court decisions on his right of access and on custody of his
     daughter, and the proceedings concerned;

     DECLARES INADMISSIBLE the remainder of the application.


     M.F. BUQUICCHIO                           M.P. PELLONPÄÄ
        Secretary                                President
   to the First Chamber                     of the First Chamber