CEDH · CASELAW;CLIN;ENG — 26 juillet 2018

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Germany - 16112/15 Judgment 26.7.2018 [Section V] Article 8 Article 8-1 Respect for private life Courts’ refusal to grant contact rights or order legal parents to provide information about child’s personal circumstances to potential biological father: no violation Facts – The applicant began a relationship with X, a married woman who continued to live with her husband, with whom she had six children. In early 2006, X became pregnant and disclosed this to the applicant. In October 2006 she gave birth to a girl. Shortly after, the relationship with the applicant ended. X and her husband, the girl’s legal father, refused the applicant’s subsequent initiatives to have contact with the child. They disputed that the applicant was the biological father but refused to consent to paternity testing. The applicant initiated various proceedings to establish his legal paternity, to have biological paternity testing conducted and to obtain joint custody. The domestic courts rejected all his requests. Law – Article 8 (a)     Complaint about the refusal of contact rights – The Court of Appeal’s refusal to grant the applicant contact rights amounted to an interference with the applicant’s right to private life. Its decision had a legal basis in domestic law and aimed to protect the rights and freedoms of the child. In determining whether the interference was “necessary in a democratic society”, the applicant could not claim contact rights under German civil law in force at that time because he was neither the child’s legal father nor had he borne actual responsibility for the child. Regarding the possibility to base contact rights on the applicant’s alleged biological paternity, bearing in mind the Court’s judgments in Anayo and Schneider , the Court of Appeal had held that determining the applicant’s biological paternity against the legal parents’ will would be contrary to the child’s well-being. However, it had left open that question because contact with the applicant would, in any event, have jeopardised the child’s well-being due to the deep conflict between the legal parents and the applicant and the risk entailed by the fact that the applicant had not ruled out telling the child that he was her biological father. The Court of Appeal had, thus, adduced relevant reasons to justify its decision. Regarding the decision-making process, firstly, the applicant had been directly involved in the proceedings in person and advised by counsel. Secondly, the Court of Appeal had heard not only the applicant, but also the child and the child’s legal parents. Furthermore, in taking its decision to refuse contact, the Court of Appeal had had regard to the entire family situation and relied on an extensive written statement by the child’s guardian ad litem , an experienced psychologist. Therefore, there was no indication that the judges of the Court of Appeal had based their findings on standardised arguments in favour of social families. Moreover, while it was true that the Court of Appeal had refused the applicant’s request to establish his paternity, it was also true that a court could refrain from ordering a paternity test in cases where the further conditions for contact were not met. Therefore, the Court of Appeal’s procedural approach was reasonable and it had adduced sufficient reasons for its decision to refuse the applicant contact rights and provided the applicant with the requisite protection of his interests. Conclusion : inadmissible (manifestly ill-founded). (b)     Complaint concerning the refusal to provide information about the child – The Court of Appeal’s decision to refuse the applicant information about the child, taking into account the specific circumstances of the case, had interfered with his right to respect for his private life. The decision was based on the relevant provision of the Civil Code and aimed at pursuing the best interest of the child and the rights of the legal parents. Regarding whether the interference had been “necessary in a democratic society”, at the time of the Court of Appeal’s decision, German family law did not provide for the possibility for a judicial examination of the question of whether any relationship, either by way of contact between an – assumed – biological father and his child or by way of providing information about the child, would be in the child’s best interests if another man was the child’s legal father and if the biological father had not yet borne any responsibility for the child. However, the Court of Appeal had not based its refusal of information rights on the absence of a legal basis in domestic law but because it had found that clarifying the paternity issue as a preliminary question would in itself be contrary to the well-being of the child, who did not know about the applicant’s claims. If the applicant’s biological paternity had been established, it could not be ruled out that that might destroy the child’s present family as the mother’s husband might lose trust in his wife. The Court of Appeal had held it more likely that the applicant was the child’s biological father than the mother’s husband and although the latter might have had doubts about his biological paternity he could live with this uncertainty and his attitude had had no negative consequences for the child. The Court of Appeal had been convinced that if the applicant’s biological paternity was established against the spouses’ will, there was a risk that their marriage would break up, thereby endangering the well-being of the child who would lose her family unit and her relationships. That conclusion had been reached after a thorough analysis of the child’s integration in the family where she felt protected and secure, the role of the mother’s husband as father and by taking into account the spouses’ difficulties and crisis in the past, which were related to the applicant. While aware of the importance the question of paternity might have for the child in the future, the Court of Appeal had held that for the time being, it had not been in the best interest of the six-year-old child to be confronted with the paternity issue. Regarding the decision-making process, the Court of Appeal had specifically decided to orally hear the child against the opinion of the child’s guardian ad litem . Furthermore, even if the latter in her written statement had only addressed the question of compatibility of contact rights with the child’s well-being, the Court of Appeal could extract relevant general information regarding the family in which the child grew up. Its decision had therefore been made in the child’s best interest. It was true that the Court of Appeal had not specifically addressed the right to information. In particular, it had not given any weight to the question whether the obligation to provide the applicant with information about the child would have any significant impact on the spouses’ right to respect for their family life. However, in the specific circumstances of the case, the Court accepted the Court of Appeal’s argumentation based on the negative consequences for the child of the determination of paternity which was a necessary preliminary condition for granting information rights. In sum, the Court of Appeal had adduced sufficient reasons for its refusal to order the child’s legal parents to provide the applicant with information about the child and provided the applicant with the requisite protection of his interests. Conclusion : no violation (unanimously). (See Anayo v. Germany , 20578/07 , 21   December 2010; and Schneider v.   Germany , 17080/07, 15   September 2011, Information Note 144 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes