FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32817/02 
by Erwin WILDGRUBER 
against Germany

The European Court of Human Rights (Fifth Section), sitting on 16 October 2006 as a Chamber composed of:

Mr P. Lorenzen, President
 Mrs S. Botoucharova
 Mr V. Butkevych
 Mrs M. Tsatsa-Nikolovska
 Mr R. Maruste
 Mr J. Borrego Borrego, 
 Mrs R. Jaeger, judges

and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 22 August 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Erwin Wildgruber, is a German national who was born in 1935 and lives in Harmstorf. He is represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld. He lodged the application also on behalf of his two children Jan-Moritz (J.-M.) and Peer Alexander (P.).

The facts of the case, as submitted by the applicant, may be summarised as follows.

A.  Background to the case

The applicant and Mrs W.-L. (born in 1965) married in May 1994. Their son P. was born on 30 November 1994. The applicant further adopted Mrs W.-L.’s son J.-M. who was born on 19 April 1991. Since the spouses’ separation in May 1997, both children live with Mrs W.-L.

On 29 October 1997 the Winsen (Luhe) District Court held a hearing in which the applicant and his wife reached an agreement on the applicant’s access to his children. According to that agreement, the applicant was entitled to personal contacts with his children, then aged six and two respectively, every Wednesday after school until 6 p.m., every second week-end from Friday 6 p.m. until Sunday 6 p.m., during all school holidays up to half of their duration and on Christmas, Easter and Pentecost on the second public holiday.

On 13 November 1998 the Winsen (Luhe) District Court, after having heard the parties and J.-M., restricted the applicant’s right of access to every second week-end from Friday 6 p.m. to Sunday 6 p.m. and to the first half of all school holidays, with the exception of the Christmas holidays, in which he was granted access in their second half.

In June 1999, following the exercise of his right of access, the applicant refused to bring the children back to their mother and travelled around with them in Germany without informing her of their whereabouts.

On 20 July 1999 the Winsen (Luhe) District Court granted Mrs W.-L. sole custody of J.-M. and P. and ordered the applicant to render the children to Mrs W.-L.

In November 1999 the applicant returned the children to their mother.

B.  Proceedings before the Winsen (Luhe) District Court

On 11 September 2000 the applicant lodged a motion with the Winsen (Luhe) District Court to amend its decision dated 13 November 1998 and to broaden his right of access to his children. In particular, he applied to be granted access not only every second week-end and during half of all school holidays, but also every Wednesday after (nursery) school, during part of the public holidays, further public holidays possibly fixed by law in the future and his children’s birthdays once in two years.

On 6 November 2000 the Harburg Youth Office submitted its report after having heard the applicant and Mrs W.-L. on the question of access. Its representative, a social pedagogue, summarized the spouses’ diverging views on an extension of the applicant’s right of access. She took the view that it was up to the District Court to decide on this issue, as mediation by the Youth Office between the spouses had no prospects of success. The representative further stated that she did not hear the spouses’ children (then aged nine and five) as they were to be questioned in court soon and she wished to spare them another hearing within a short period of time.

On 14 November 2000 the Winsen (Luhe) District Court held a hearing in which it questioned the spouses and their children in person. Both J.-M. and P. stated that they wished to visit their father also during the week from time to time. P. said that he also wanted to celebrate his birthday at his father’s place, but that his mother had told him not to express this wish at the hearing.

On 28 November 2000 the Winsen (Luhe) District Court supplemented its decision dated 13 November 1998. Relying on section 1684 of the Civil Code it ordered that the applicant’s right of access during the first half of the school holidays began at 10 a.m. on the first day and ended at 6 p.m. on the last day of access. Apart from that completion, it dismissed the applicant’s motion to amend its decision dated 13 November 1998.

Having regard to the Youth Office’s written report dated 6 November 2000, the District Court found that granting the applicant access to his children more often than fixed in its decision of 13 November 1998 was not in the children’s best interests.

As to the applicant’s motion to be granted access also on Wednesdays and on public holidays the District Court observed that Mrs W.-L. had sole custody of the children who resided with her. They needed to be stabilized in the central place of their life and residence and should not be torn between their parents. For the same reasons, it was not in the children’s best interests to broaden the applicant’s right to personal contacts during the school holidays. In view of the serious tensions between the spouses it had, however, been necessary to fix exact times for the beginning and end of the applicant’s right of access.

As to the applicant’s motion to be granted access to his children also on their birthdays, the District Court took the view that it was in the children’s best interests to pass their birthdays with the parent having custody, where they could celebrate with friends and possibly relatives in adequate surroundings. Moreover, as it was more likely that the legislator suppressed public holidays instead of creating new ones, it was unnecessary to grant a right of access for public holidays possibly fixed in the future.

The District Court took the view that the applicant’s request for further contacts was directed at circumventing Mrs W.-L.’s sole custody of their children. Given that in 1999 the applicant had failed to return the children to their mother following the exercise of his right of access and had been travelling around with them for several months without informing her of their whereabouts, this was unacceptable.

C.  Proceedings before the Celle Court of Appeal

On 15 December 2000 the applicant lodged an appeal against the District Court’s decision. In his reasoning dated 30 January 2001 he complained in particular that the District Court had failed to take into account the specific circumstances of his case, in particular the fact that his sons wanted to see him more often, had refused to obtain an expert report and had failed to appoint a curator ad litem. Referring to the standards established in the Court’s judgment of 13 July 2000 in the case of Elsholz v. Germany, he further took the view that his children and a psychological expert should be heard in the appeal proceedings.

On 1 March 2001 the Harburg Youth Office filed a written report. Without having heard the spouses again and without having heard their children, its representative took the view that the wishes expressed by children of the age of J.-M. and P. were not decisive for the extent of access which was in their best interests. Otherwise, parents conscientiously or unconscientiously would tend to influence their children according to their own wishes. There was no danger of alienation between the appellant and his children if the present regulation on access was complied with. It was essential for the children to know where their main place of life and residence was after the appellant had travelled around with them in Germany for four months in 1999, without informing their mother of their whereabouts.

On 27 March 2001 the Celle Court of Appeal, without holding a hearing, dismissed the applicant’s appeal as ill-founded. In the court’s view, the extent of personal contacts as ordered by the District Court in its decision dated 13 November 1998 were sufficient to cultivate and develop the relationship between the appellant and his children. According to the court’s own experience, it was in the best interests of children aged nine and six like J.-M. and P. to have one main place of residence where they passed their everyday life and met friends. The children lived with their mother. Even though his children enjoyed visiting him, broadening the appellant’s access to them would de facto make them reside at two places. In view of the very serious tensions between the parties, this would unsettle them and make them feel not to know where they belong.

For the same reasons, the Court of Appeal confirmed that the appellant’s contacts with his children during the holidays and on further public holidays should not be broadened.

The Court of Appeal further agreed with the District Court that the appellant should not be granted access to his children on their birthdays. It was in the children’s best interests to pass their birthdays at their home in order to be able to celebrate with children living in their neighbourhood. It endorsed the reasons given by the District Court in respect of the appellant’s further motions.

In the Court of Appeal’s view, it had not been necessary to appoint the children a curator ad litem in the present proceedings in order to represent them and to protect their interests. In particular, given the children’s age, it was not yet their subjective wish to broaden their contacts with their father, but their objective best interests not to disturb their prosperous development which was decisive.

D.  Proceedings before the Federal Constitutional Court

On 4 May 2001 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that the family courts had dismissed his motion to be granted more personal contacts with his children without consulting an expert, without appointing a curator ad litem and without hearing the parents and the children in the appeal proceedings. He argued that thereby, his parental rights and his rights to equality and to be heard as guaranteed by the Basic Law and by Articles 6 and 8 of the Convention had been violated.

On 1 July 2002 a panel of three judges of the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It referred to sections 93 a and b of the Federal Constitutional Court Act allowing the panel not to accept complaints for adjudication which are not of fundamental constitutional significance and the acceptance of which is not necessary to enforce a complainant’s rights under the Basic Law. In accordance with section 93 d § 1, third sentence, of the said Act, the court did not give reasons for its decision.

COMPLAINTS

The applicant complained in his own and his sons’ names under Articles 8, 6, 1 and 46 of the Convention that the German courts had dismissed his motion to broaden his personal contacts with his children without obtaining an expert report, without appointing the children a curator ad litem and without hearing the parents and the children in the appeal proceedings. He claimed that the German courts had failed to observe the Court’s binding precedents on these points. He further complained that the Federal Constitutional Court had not given reasons for its decision.

THE LAW

A.  Locus standi, Article 34 of the Convention

The applicant argued that he had standing to conduct the proceedings before the Court also on behalf of his sons in respect of the violation of their rights under Articles 8, 6 and 46 of the Convention. Even though their mother Mrs W.-L. had sole custody of them, there was a danger that some of their interests never came to the Court’s attention otherwise, as the parent having custody would not complain against decisions of the national courts delivered in his or her favour.

The Court notes that the present case concerns a dispute between the mother of two children, who has sole custody of them, and the children’s father about the latter’s access to the children. It recalls that such conflicts, concerning parental rights other than custody, do not oppose parents and the State on the question of deprivation of custody where the State as holder of custodial rights cannot be deemed to ensure the children’s Convention rights. In cases arising out of disputes between parents, it is the parent entitled to custody who is entrusted with safeguarding the children’s interests. In these situations, the position as natural parent cannot be regarded as a sufficient basis to bring an application also on behalf of a child (see Sahin v. Germany (dec.), no. 30943/96, 10 December 2000; Petersen v. Germany (dec.), no. 31178/96, 6 December 2001; Siebert v. Germany (dec.), no. 59008/00, 9 June 2005).

Consequently, the applicant does not have standing to act on his children’s behalf in the present proceedings.

B.  Complaints concerning the outcome and conduct of the access proceedings

The applicant claimed that the German court decisions dismissing his request to grant him a broader right of access to his children and the procedure leading to these decisions violated his rights under Articles 8 and 6 of the Convention and failed to abide by the Court’s binding case-law on the subject-matter contrary to Articles 1 and 46 of the Convention.

The Court considers that this complaint falls to be examined under Article 8 of the Convention alone, which, in so far as relevant, provides:

“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 ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”

In the applicant’s submission, the German courts, by dismissing his motion to be allowed more personal contacts with his two children, had interfered with his right to respect for his family life as protected by Article 8 § 1. This interference had not been necessary in a democratic society within the meaning of Article 8 § 2. The courts had failed to give sufficient reasons for their decisions. They had notably failed to examine what was in the best interests of the children in the particular circumstances of the case, in which his sons wanted to spend more time with him. Moreover, the Court of Appeal had refused to hear the parents and the children again. The courts also had not consulted a psychological expert on the question of broadening his contacts with his sons. This had been necessary, not least because the representative of the Youth Office had never heard the children in person. Despite the conflict of his son’s and their mother’s interests, the courts had also refused to appoint the children a curator ad litem for the proceedings to represent their interests.

The applicant argued that this conduct of the proceedings by the German courts had been unfair and therefore also in breach of Article 6 § 1. He further took the view that, as the Court had found in the judgments delivered in the cases of Elsholz v. Germany, Sahin v. Germany and Sommerfeld v. Germany, the Court of Appeal had been obliged to hear the children and the parents on appeal and the family courts had been obliged to consult an expert. They had therefore failed to observe these judgments by which Germany was bound pursuant to Articles 1 and 46 of the Convention.

The Court agrees that the domestic courts’ decisions not to grant the applicant’s request for a broader right of access to his children interfered with the applicant’s right to respect for his family life as guaranteed by Article 8 § 1.

Any such interference with an applicant’s right to respect for his family life will constitute a violation of Article 8 unless it is “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.

The decisions at issue had a basis in national law, namely section 1684 of the Civil Code. They were aimed at protecting the best interests of the applicant’s children, that is, the latter’s “health or morals” and “rights and freedoms”. Accordingly, they pursued legitimate aims within the meaning of paragraph 2 of Article 8.

In determining whether the refusal to grant a broader right of access was “necessary in a democratic society” the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their margin of appreciation (see, inter alia, Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55; Elsholz v. Germany [GC], no. 25735/94, § 48, ECHR 2000-VIII; Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003-VIII).

The Court further recalls that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8. The Court cannot satisfactorily assess whether the reasons adduced by the national courts to justify these measures were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the parent has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests (see, inter alia, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001-V; Hoppe v. Germany, no. 28422/95, § 52, 5 December 2002; Sommerfeld, cited above, § 66).

In reviewing whether the domestic courts, in the exercise of their margin of appreciation, based their decisions on relevant grounds the Court observes that according to the German courts additional personal contacts with the applicant would not be beneficial for his two sons. They found that with the pre-existing regulation on access, there was no danger of alienation between the applicant and his children. In view of the serious tensions between the applicant and Mrs W.-L., a broader right of access would, however, unsettle their sons and destabilise them at their main place of residence with their mother. Stability was, however, essential for the children’s welfare, not least because the applicant had once abducted J.-M. and P. and had been travelling around with them for several months. In view of this, the Court is satisfied that the domestic courts’ decisions can be taken to have been made in the children’s best interests, which, due to their serious nature, must override the applicant’s interests. Therefore, the national courts adduced relevant reasons to justify their decisions refusing to grant a broader right of access.

In assessing whether those reasons were also sufficient for the purposes of Article 8 § 2, the Court will notably have to determine whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests.

The Court observes that both in the proceedings before the District Court and before the Court of Appeal the applicant was placed in a position enabling him to put forward all arguments in favour of obtaining a broader visiting arrangement. The evidential basis for the District Court’s decision included the applicant’s and his wife’s written and oral submissions, their children’s statements in court and comments filed by the Youth Office. The Court of Appeal, for its part, based its findings on the contents of the existing case-file and a fresh report of the Youth Office.

The Court notes that the German courts neither consulted a psychological expert on the question of access nor appointed the children a curator ad litem to represent their interests. They chose to proceed in this manner despite the facts that the children had declared in their hearing that they wished to see their father more often and that the Youth Office had at no point in time heard the children in person. However, as a general rule it is for the national courts to assess the evidence before them, including the means to ascertain the relevant facts. It would be going too far to say that domestic courts are always required to involve a psychological expert on the issue of access to a parent not having custody, but this issue depends on the specific circumstances of the case, having due regard to the age and maturity of the child concerned (see, in particular, Sommerfeld, cited above, § 71, and Elsholz, cited above, § 52). The same considerations must apply for the appointment of a curator ad litem (compare, for example, Siebert, cited above).

In this connection the Court attaches particular importance to the fact that the proceedings in the domestic courts did not concern a total suspension of the applicant’s right of access. What was at issue was merely the applicant’s motion to extend his existing right of access to his children which, comprising not only contacts every second week-end, but notably also access during one half of all school holidays, was already relatively broad. The decisions did not, therefore, strike at the roots of a father’s right to respect for his family life with his children, but merely concerned aspects of his existing personal contacts with his sons. With notably the District Court having had the benefit of direct contact with the children and their parents, it does not appear unreasonable for the courts to rely on its own experience instead of also consulting a psychological expert and / or a curator ad litem in order to assess the children’s best interests as regards further contacts with their father.

The Court further observes that the Court of Appeal did not hold an oral hearing despite the applicant’s motion to do so. As noted above, the applicant and Mrs W.-L., as well as the representative of the Youth Office, could, however, express their views in writing in the appeal proceedings. Moreover, the Court of Appeal had at its disposal the information contained in the first-instance case-file containing reports of the parties’ and the children’s questionings which were conducted less than five months earlier. Having also regard to the fact that merely the extension of a father’s existing right of access was at issue, the Court of Appeal did not overstep its margin of appreciation in finding that no fresh oral hearing was necessary (compare, in particular, Hoppe, cited above, §§ 53-54; see also Sahin v. Germany [GC], no. 30943/96, §§ 73-75, ECHR 2003-VII).

The Court therefore finds that in the circumstances of the present case, the national courts can altogether be taken to have reached their decisions on a sufficient evidential basis. Having regard to the foregoing and to the respondent State’s margin of appreciation, the Court is therefore satisfied that the German courts’ procedural approach was reasonable in the circumstances and provided sufficient material to reach a reasoned decision on the question of access in the particular case.

It follows that this part of the application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court, having addressed the applicant’s complaints concerning the conduct of the access proceedings already when examining the fairness of the decision-making process under Article 8, finds that no separate issue arises under Article 6 § 1 in these respects.

C.  Complaint concerning the reasoning of the Federal Constitutional Court’s judgment

The applicant further argued that the Federal Constitutional Court failed to give reasons for its decision and therefore did not meet the requirements of Article 6 § 1 of the Convention, which, in so far as relevant, reads:

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

The Court recalls in this connexion that for national superior courts – such as the Federal Constitutional Court – it suffices to refuse to admit a complaint by simply referring to the legal provisions allowing for that procedure if the questions raised by the complaint – as in the present case – are not of fundamental importance (see Sawoniuk v. the United Kingdom (dec.), no. 63716/00, 29 May 2001; Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001; Krutil v. Germany (dec.), no. 71750/01, 20 March 2003; Floquet v. Germany (dec.), no. 50215/99, 9 February 2006). It also notes that both the District Court and the Court of Appeal had duly reasoned their decisions.

It follows that this part of the application must likewise be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

WILDGRUBER (I) v. GERMANY DECISION


WILDGRUBER (I) v. GERMANY DECISION