BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF KAUTZOR v. GERMANY
(Application
no. 23338/09)
JUDGMENT
STRASBOURG
22
March 2012
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 Kautzor v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Mark Villiger,
Ganna
Yudkivska,
Angelika Nußberger,
André
Potocki, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 21 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23338/09) 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
Heiko Kautzor (“the applicant”), on 30 April 2009.
- The
applicant was represented by Mr G. Rixe, a lawyer practising in
Bielefeld. The German Government (“the Government”) were
represented by their Agent, Ms A. Wittling-Vogel, of the Federal
Ministry of Justice.
- The
applicant alleged, in particular, that the domestic
courts’ refusal to allow him to challenge another man’s
legal paternity and to have his own paternity established had
violated his rights to respect for his private and family life and
discriminated against him. He further complained that the length of
the proceedings had been unreasonable and that there had been a lack
of an effective remedy available to him.
- On
4 May 2010 the application was communicated to the Government. It was
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1) and to give
priority to the application (Rule 41).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1971 and lives in Willich.
- On 19 December 2003 the applicant married Ms D. The
couple separated in June 2004. In July 2004 Ms D. informed the
applicant that she was pregnant. The couple divorced on 12 November
2004.
- On
5 March 2005 Ms D. gave birth to a daughter, M.
- On
5 May 2006 the applicant wrote a letter to Ms D., indicating that he
wished to have access to the child and to acknowledge paternity.
- On
16 May 2006 Mr E., with the consent of Ms D., acknowledged paternity
of the child before the Youth Office. On 20 June 2006 the applicant
declared in a document certified by a notary that he acknowledged
paternity of the child.
- On
5 July 2006 the applicant lodged an action with the Bielefeld
District Court (Amtsgericht) to have his paternity
established, submitting that he had had sexual intercourse with the
child’s mother during the period of conception. Ms D. replied
that Mr E. was the biological father and that he lived with the child
and herself in a social and family relationship.
- On
18 August 2006 Mr E. and Ms D. got married. The couple live together
with the child M. and with two further children, born in June 2006
and May 2008.
- On
22 August 2006 the applicant further requested the District Court to
establish that Mr E. was not the child’s father and submitted a
statutory declaration that he had had sexual intercourse with the
child’s mother during the time of conception.
- On
24 August 2006, during a first hearing, the District Court informed
the parties that a guardian ad litem should be appointed to
represent the child’s interests, as a conflict of interests had
arisen due to the fact that Mr E. and Ms D. had married. Ms D.
declared that the applicant was not the child’s father.
- On
30 August 2006 the District Court judge submitted the case file to
the judicial officer in charge of appointing guardians
(Rechtspfleger). On 10 October 2006 the judicial officer
refused to appoint a guardian.
- On
31 October 2006 the District Court instituted separate proceedings
aimed at appointing a guardian ad litem. On 27 November 2006
the Youth Office submitted their comments. On 30 January 2007 the
District Court appointed a guardian ad litem to represent the
child in the pending proceedings and also in case the child should
lodge an action in her own right challenging paternity.
- On
27 February 2007 Mr. E and Ms. D lodged an appeal against the
guardian’s appointment. On 28 March 2007 they submitted reasons
for their appeal. On 31 May 2007 the applicant requested that the
appeal be rejected. On 26 June 2007 the Hamm Court of Appeal
(Oberlandesgericht) scheduled a hearing for 11 September 2007
which was postponed on the applicant’s request to 20 September
2007.
- On
20 September 2007 the Court of Appeal confirmed the appointment of a
guardian, but quashed the District Court’s decision insofar as
it concerned the child’s representation in case she should
lodge her own action.
- On
4 January 2008 the District Court scheduled a hearing for 29 January
2008.
- On
24 January 2008 the guardian ad litem submitted his
observations to the Regional Court. Following a visit to the family
home, he concluded that there existed a strong social and family
relationship between the child and Mr E., and considered that it was
most important to assure that the child was allowed to grow up
undisturbed within her family. On the same day, the District Court
cancelled the hearing and invited the parties to submit comments on
the guardian’s observations.
- On
22 February 2008 the District Court ordered an expert opinion on the
question whether a social and family relationship existed between the
child and Mr E., and requested the applicant to pay an advance of
1,000 euros (EUR). On 28 March 2008 the District Court reminded
the applicant to pay the advance.
- On
14 April 2008 the applicant, referring to the guardian’s
submissions, conceded that a social and family relationship existed
between the child and Mr E. He therefore did not consider it
necessary to hear expert opinion in this respect. He contended,
however, that his action should be allowed because the applicable
legislation did not sufficiently take into account his rights as a
parent.
- On
24 April 2008 the District Court scheduled a hearing for 29 May 2008.
- On
6 May 2008 the District Court, on the applicant’s request,
postponed the hearing to 10 June 2008.
- On
27 May 2008 the applicant, relying on Article 1598a of the Civil Code
as in force since 1 April 2008 (see Relevant domestic law, below),
lodged an alternative request to order the child to undergo genetic
testing in order to establish her descent.
- On
10 June 2008, during the hearing, the parties unanimously declared
that a social and family relationship existed between Mr E. and the
child. Following the hearing, the District Court rejected the
applicant’s request. According to that court, the applicant was
precluded from contesting paternity under Article 1600 § 2 of
the Civil Code (see Relevant domestic law, below) because a social
and family relationship existed between the child and her legal
father. He did not have the right to have his paternity established
or to demand genetic testing because the child already had a legal
father.
- On
2 December 2008 the Hamm Court of Appeal rejected the applicant’s
appeal lodged on 10 July 2008. It noted that it was no more in
dispute between the parties that a social and family relationship
existed between the child M. and her legal father, who, in the
meantime, had married the child’s mother and fathered two
further children. Confirming the District Court’s judgment,
that court further considered that the relevant legislation did not
violate the applicant’s rights under the German constitution
and under Articles 8 and 14 of the Convention. Referring to its own
constant case-law and to the case-law of the Federal Constitutional
Court, the Court of Appeal considered that the legislature had been
entitled to let the interests of the child and of her legal parents
prevail over the biological father’s interest to have his
paternity legally established and to preclude the biological father
from contesting paternity. There was no room for the court to examine
in individual cases whether it was necessary in the child’s
best interests to allow the presumed biological father to contest
paternity. This general approach also protected the concerned
families from being forced to reveal intimate details of their family
life.
- The
Court of Appeal further confirmed that the applicant’s request
to have his paternity established was inadmissible as the child
already had a legal father. Relying on the case-law of the Federal
Constitutional Court, the court considered that Mr E.’s
acknowledgment of paternity had been valid and that the relevant
legislation did not violate the applicant’s constitutional
rights. It was, in particular, justifiable to make acknowledgement of
paternity dependent on the mother’s consent. The legislature
was not obliged to make acknowledgment of paternity dependent on a
genetic examination of descent. It was acceptable to base the
granting of legal status on an assumption which was based on specific
factual and social situations. Such an assumption existed if a man
declared in a legally binding way and with the express consent of the
mother of a child born out of wedlock that he was willing to assume
parental responsibility. The Court of Appeal further considered that
the child’s rights were sufficiently protected by her own right
to challenge paternity upon reaching the age of majority.
- The
Court of Appeal further considered that the Constitution protected a
man’s interest to learn whether a child was his descendant and
to have this fact legally established. However, this did not include
the right to examine descent in any conceivable case. When developing
the procedure for examining a child’s true descent, the
legislature had to take into account the child’s interest in
the stability of his legal and social-family affiliation and the
mother and child’s interest not to have personal data and
intimate circumstances revealed, and had done so in an acceptable
way. There was, in particular, no right under the Constitution to
have biological descent legally established as long as another man’s
legal paternity persisted.
- The
Court of Appeal finally considered that the applicant’s
alternative request to order the child to undergo genetic testing was
inadmissible, because such a request had to be lodged in separate
proceedings.
- On
20 March 2009, following a complaint by the applicant, the Court of
Appeal confirmed its judgment of 2 December 2008 and stated that the
alternative request to clarify the child’s genetic descent was
not inadmissible but unfounded, as Article 1598a of the Civil Code
did not entitle the presumed biological father to demand genetic
testing. Relying on the Federal Constitutional Court’s
case-law, the Court of Appeal considered that the applicant did not
have the right to have biological paternity established without
establishing legal paternity.
- On
30 June 2009 the Federal Constitutional Court, sitting as a panel of
three judges, refused to admit the applicant’s constitutional
complaint for adjudication. This decision was served on the
applicant’s counsel on 8 July 2009.
II. RELEVANT DOMESTIC LAW
1. Provisions of the Basic Law
- Under
Article 3 of the Basic Law, everyone is equal before the law (§ 1);
men and women have equal rights (§ 2).
- Article
6 of the Basic Law, in so far as relevant, provides:
“(1) Marriage and the family shall
enjoy the special protection of the State.
(2) The care and upbringing of children is
the natural right of parents and a duty primarily incumbent upon
them. The State shall watch over them in the performance of this
duty.”
2. Establishment of paternity
- According
to Article 1592 of the Civil Code, a child’s father is either
the man who on the date of the child’s birth was married to the
child’s mother (no. 1), or the man who acknowledged paternity
(no. 2), or whose paternity is judicially established under Article
1600d of the Civil Code (no. 3). An acknowledgement of paternity
is not valid as long as the paternity of another man exists (Article
1594 § 2 of the Civil Code). Paternity can only be validly
acknowledged with the mother’s consent (Article 1595 § 1).
3. Challenging paternity
- Paternity
may be challenged within a time-limit of two years. The period
commences on the date on which the entitled person learns of the
circumstances that militate against the established paternity; and
the existence of a social and family relationship does not prevent
the period from running (Article 1600b § 1). Under Article 1600
§ 1 of the Civil Code, entitlement to challenge paternity lies
with the man whose paternity exists under Article 1592 nos. 1 and 2,
with the mother and with the child, and also with the man who makes a
statutory declaration that he had sexual intercourse with the child’s
mother during the period of conception. However, under Article 1600 §
2, the biological father has a right to challenge the paternity of
the man who is the child’s legal father under Article 1592 nos.
1 or 2 only if there is no social and family relationship between the
legal father and the child. A social and family relationship is
considered to exist if the legal father has or had actual
responsibility for the child at the relevant point in time. There is,
as a rule, an assumption of actual responsibility if the legal father
is married to the mother of the child or has lived together with the
child in a domestic community for a long period of time (Article 1600
§ 4).
4. Examination of paternity in separate proceedings
- Under
Article 1598a of the Civil Code as in force since 1 April 2008, the
legal father, the mother and the child can request the examination of
paternity by genetic testing. The outcome of these proceedings does
not change the legal status of the persons involved. However, no such
right is granted to a third person alleging that he is the biological
father.
III. RELEVANT
COMPARATIVE LAW
- Research
undertaken by the Court in respect of twenty-six Council of Europe
Member States shows that in twenty-one of those States acknowledgment
of the paternity of a child born out of wedlock requires the mother’s
consent. In seventeen Member States (namely Azerbaijan, Croatia,
Cyprus, Estonia, France, Georgia, Ireland, Italy, Lithuania, Moldova,
Romania, Russia, San Marino, Spain, Turkey, Ukraine and the United
Kingdom), the presumed biological father is entitled to challenge the
legal paternity of a third party established by acknowledgment. This
right may be subject to certain time-limits. In fifteen States this
remains the position where the legal father has lived with the child
in a social and family relationship. In France and Spain, the
biological father may not challenge paternity if the child has lived
in a social and family relationship with the legally acknowledged
father for a period of at least five or four years, respectively (la
possession d’état conforme au titre).
- By
contrast, in nine Member States (Armenia, Bulgaria, Hungary, Iceland,
Latvia, the Netherlands, Poland, Slovakia and Switzerland) the
biological father does not have standing to challenge the paternity
of the legal father established by acknowledgement. In those nine
jurisdictions, the courts are not entitled to judicially consider (on
the grounds of the best interests of the child or otherwise) whether
the biological father should be allowed to challenge paternity.
- None
of the Member States examined provide a procedure to establish
biological paternity without formally challenging the recognised
father’s paternity and without changing the child’s legal
status.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained under Articles 6 and 8 of the Convention about
the domestic courts’ refusal to allow him to challenge Mr E.’s
paternity and to have his own paternity legally established. He
complained, in particular, that the mother, by giving or refusing her
consent, had the exclusive right to determine the child’s legal
father, and that he had no right to be heard in the proceedings
leading to the establishment of paternity. He further complained that
the relevant legislation, as construed by the family courts, let the
social family’s interests generally prevail over the biological
father’s interests, without allowing for an examination of the
specific circumstances of the case. He further complained that the
District Court had failed to conduct the proceedings with exceptional
diligence and had thus predetermined the outcome of the proceedings.
- The
Government contested these arguments.
- The
Court considers that this complaint primarily falls to be examined
under Article 8 alone, which reads as follows:
“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.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The applicant’s submissions
- Relying
on the Court’s case-law, the applicant asserted that the
relationship between M. and himself as her presumed biological father
amounted to family life. He submitted that he and Ms D. had intended
to have children when they married and that the child was conceived
in wedlock. He had acknowledged paternity and instituted paternity
proceedings in order to establish his legal fatherhood and exercise
parental responsibility, thus showing a demonstrable interest in and
commitment to the child. Ms P. had prevented him from establishing a
legal bond with his child and from establishing a factual
relationship. By way of alternative, the applicant complained that
the domestic courts had failed to establish the child’s true
descent as an element of family life.
- In
any event, the applicant’s interest in having his paternity
legally established formed part of his private life and was thus
protected under Article 8. Referring to the Court’s
case-law, in particular to the case of Mikulić v. Croatia
(no. 53176/99, §§ 53-55, ECHR 2002 I), the applicant
submitted that private life included the determination of the legal
relationship between a child and the biological father.
- The
domestic authorities had interfered with this right by preventing him
from establishing paternity. He pointed out that he had no legal
means to challenge the acknowledgment of paternity which had been
declared by Mr E. with the mother’s consent and without his own
participation. In a case in which two men could be the father of a
child born out of wedlock, there was no sufficient basis for the
presumption that the man who had acknowledged paternity with the
mother’s consent was indeed the child’s father. As had
been demonstrated by the Zaunegger case (Zaunegger
v. Germany, no. 22028/04, 3 December 2009), mothers with a
legal veto often did not consider their child’s bests interests
– and even less so the biological father’s interests –
but rather their own. Under the current legislation as interpreted by
the domestic courts, the biological father was completely without
legal protection even if the mother acted arbitrarily.
- The
applicant further argued that the interference with his rights under
Article 8 had not been justified under paragraph 2 of that provision.
In particular, it had not been “necessary in a democratic
society”. On the basis of the law as it had been applied by the
domestic courts, the applicant had practically no possibility of
becoming the legal father of his child, as the courts had let the
factual and legal situation which had been one-sidedly created by the
mother prevail over his interests as a biological father.
- Moreover,
the courts had failed to weigh the competing interests and to examine
whether the challenge to paternity would harm or would serve the
child’s best interests. There was no indication that allowing
the applicant to challenge paternity would run counter to the child’s
best interests. There was, in particular, no scientific evidence
supporting the assumption that it was in the child’s best
interest to grow up undisturbed in his or her legal and social
family. In accordance with current psychological standards, children
should be informed about their true descent as early as possible.
Furthermore, there was no risk that the establishment of the
applicant’s paternity would break down the relationship between
Ms D., Mr E. and the three children living with them. Ms D. and Mr E.
lived in a stable marital relationship and Mr E. had acknowledged
paternity in the knowledge that the child had been conceived at a
time when the applicant had been married to Ms E. and had had sexual
intercourse with her.
- The
approach adopted by the German legislature lacked justification and
was contrary to the case-law of the Court (the applicant referred to
the cases of Różański v. Poland, no.
55339/00, 18 May 2006, and Zaunegger, cited above), according
to which the competing interests had to be balanced in each
individual case. This implied that children necessarily had to bear a
certain amount of stress caused by judicial proceedings. In many
cases, the taking of an expert’s opinion would already be
necessary to establish the factual relationship between the child and
his or her legal father. In those cases, there would be no further
stress if the court examined their welfare with regard to the
challenge of paternity. There was, furthermore, no risk that the
existing family had to reveal intimate details because the main
aspects of the instant case had been known to all.
- There
was, furthermore, no relevant reason for denying the applicant the
right of clarifying paternity without changing the child’s
legal status.
- In
the instant case, it further had to be taken into account that the
domestic courts had failed to process the proceedings with
“exceptional diligence” as required in cases concerning
civil status. The District Court had, in particular, failed to
expedite the proceedings relating to the appointment of a guardian ad
litem. Further delays had been caused by the District Court’s
and the Court of Appeal’s failure to schedule court hearings
promptly. The outcome of the instant proceedings had thus been
predetermined by their excessive length.
- The
applicant maintained that German law accorded a considerably weaker
position to the biological father than the applicable provisions in
the majority of European States. The findings in a report drawn up in
March 2010 by the German Institute for Youth Human Services and
Family Law at the Government’s request were not convincing or
representative of the legal situation in Europe. There was a clear
tendency in a great majority of States towards allowing the
biological father to challenge paternity without restrictions.
2. The Government’s submissions
- The
Government took the view that the domestic courts’ decisions
had not interfered with the applicant’s right to respect for
his family life. They noted, at the outset, that it had not been
proved that the applicant was indeed the biological father of the
child M. Even assuming biological kinship, this would not be
sufficient to attract the protection of Article 8 of the Convention.
In the present case, M. lived together with her mother and her legal
father in a stable family unit. No factual family relationship
existed between the applicant and the child M. The Government
stressed that the marriage between the applicant and Ms D. had ended
six months before the child’s birth. The applicant had neither
been present at the child’s birth, nor had he lodged a request
to be granted contact rights.
- Moreover,
even though the Court had considered that intended family life might,
exceptionally, fall within the ambit of Article 8, the Government
argued that this was not the case in the circumstances of the present
application, as the applicant had not established that he had made
sufficient efforts in support of his alleged interest in building a
family relationship with the child.
- Even
assuming that there had been an interference with the applicant’s
rights under Article 8 § 1 of the Convention, this had a legal
basis in Articles 1592 no. 2, 1600 and 1600d of the Civil Code and
served the legitimate aim of protecting the rights and freedoms of
the child and her legal parents.
- That
interference had also been necessary in a democratic society. The
applicant’s preclusion from contesting paternity and from
having his own paternity established had served the child’s
best interests. The biological father might have an interest in
getting to know and building a relationship with his child. In the
instant case, it had, however, to be taken into account that the
child lived in a functioning social-legal family. Conversely, no
social ties existed between the child and the applicant. It followed
that the child’s interest in growing up undisturbed in her
social-legal family took precedence.
- The
German legislature had balanced the competing interests involved in a
manner which complied with the requirements of Article 8. The
legislature had intensively debated the question whether the
biological father of a child should be granted the right to contest
paternity and had originally decided against it. However, following a
decision of the Federal Constitutional Court dated 9 April 2003 (no.
1 BvR 1493/96 and 1724/01) the legislature had decided to allow the
biological father to contest paternity if no social-family
relationship existed between the legal father and the child. The
decisive consideration was that, in the interest of the social family
and of the required legal certainty in the law on parentage, the
biological father had no constitutional right to be granted paternity
as a matter of priority, if the legal father exercised his parental
responsibility in the sense of social parentage. The decision to
grant precedence to the legal family was in line with the case-law of
the Court, which had confirmed that it was justifiable for the
domestic courts to give greater weight to the interests of the child
and the family in which it lived than to the interest of an applicant
in obtaining determination of a biological fact (Nylund v. Finland
(dec.), no. 27110/95, ECHR 1999 VI).
- Similar
considerations applied with regard to the applicant’s
alternative request to permit genetic testing to establish biological
descent. The mere court finding that the child descended not from her
legal father, but from another man could jeopardise stability within
the family unit and make it more difficult for the child to be
certain in the knowledge of whom she belonged to. From the point of
view of the child’s welfare, her interest in growing up
undisturbed in her legal and social family had to prevail. Likewise,
there were relevant grounds to protect mother and child against
having to reveal personal information and intimate details. In view
of the fact that the legal father and the child’s mother had
since married and had two further children together, this interest
was of considerable significance.
- Under
Article 1598a of the Civil Code, family members (father, mother and
child), but not the alleged biological father, had a right to consent
to genetic testing to clarify natural parentage. According to the
legislature, the biological father’s interests were
sufficiently safeguarded by the possibility to challenge paternity of
the legal father or, in the absence of a legal father, to have
kinship determined by a court. By linking the successful challenge
against legal paternity to the establishment of the biological
father’s paternity, the legislature also intended to ensure
that the biological father assumed parental responsibility, thus
serving the children’s interest in the stability of the social
and family unit of which they are a part. Where a child had already a
legally assigned father and where the alleged biological father’s
right to contest that paternity was ruled out on account of the
existence of a social and family relationship, the alleged biological
father did not have a protected interest in having biological
paternity established without, at the same time, assuming parental
responsibility.
- The
Government finally submitted that the length of the proceedings had
not been excessive. The length of the proceedings before the District
Court had been mainly due to the fact that the question regarding the
child’s legal representative had to be clarified before two
court instances in separate family court proceedings. In addition,
the applicant’s own actions such as the extension of his action
to the legal father immediately before the first hearing before the
District Court and the fact that he had dropped his claim that the
child was not living with her legal father in a social and family
relationship only after he had been reminded of the advance payment
due for expert examination had contributed to the length of
proceedings.
3. Assessment by the Court
-
The Court reiterates that the notion of “family life”
under Article 8 of the Convention is not confined to marriage-based
relationships and may encompass other de facto “family”
ties where the parties are living together out of wedlock. The Court
has further considered that intended family life may, exceptionally,
fall within the ambit of Article 8, notably in cases where the fact
that family life has not yet fully been established is not
attributable to the applicant (compare Pini and Others v. Romania,
nos. 78028/01 and 78030/01, §§ 143 and 146, ECHR
2004-V). In particular, where the circumstances warrant it, “family
life” must extend to the potential relationship which may
develop between a child born out of wedlock and the biological
father. Relevant factors which may determine the real existence in
practice of close personal ties in these cases include the nature of
the relationship between the natural parents and a demonstrable
interest in and commitment by the father to the child both before and
after the birth (see Nylund, cited above; Nekvedavicius
v. Germany (dec.), no. 46165/99, 19 June 2003; Lebbink v.
the Netherlands, no. 45582/99, § 36, ECHR 2004 IV;
and Anayo v. Germany, no. 20578/07, §
57, 21 December 2010).
- Turning
to the circumstances of the instant case, the Court observes that it
is contested and has not been established in the proceedings before
the domestic courts whether the applicant is in fact M.’s
biological father. Even though the child was conceived at a time when
the applicant was married to the child’s mother, he had never
seen the child and there has never been a close personal relationship
between him and the child which could amount to established family
life.
- The
Court considers that the instant case primarily evolves around the
question whether the applicant has a right to have his alleged
paternity certified and legally established. The Court has found on
numerous occasions that proceedings concerning the establishment of
or challenge against paternity concerned that man’s private
life under Article 8, which encompasses important aspects of one’s
personal identity (see Rasmussen v. Denmark, 28 November
1984, § 33, Series A no. 87; Nylund, cited above;
Yildirim v. Austria (dec.), no. 34308/96, 19 October 1999;
Backlund v. Finland, no. 36498/05, § 37, 6 July
2010; Krušković v. Croatia, no. 46185/08,
§ 20, 21 June 2011; and Pascaud v. France, no.
19535/08, §§ 48 49, 16 June
2011). The Court does not discern any reason to hold otherwise
in the present case. The decision to reject the applicant’s
request to examine and to legally establish his paternity of M. thus
falls to be examined as an interference with his right to respect for
his private life.
- In
determining whether the interference was “necessary in a
democratic society”, the Court refers to the principles
established in its case law. It has to
consider whether, in the light of the case as a whole, the reasons
adduced to justify that interference were relevant and sufficient for
the purposes of paragraph 2 of Article 8 (see, inter alia,
T.P. and K.M. v. the United Kingdom [GC], no.
28945/95, § 70, ECHR 2001 V, and Sommerfeld v. Germany
[GC], no. 31871/96, § 62, ECHR 2003 VIII).
Consideration of what lies in the best interests of the child
concerned is of paramount importance in every case of this kind;
depending on their nature and seriousness, the child’s best
interests may override that of the parents (see Sommerfeld,
cited above, § 66, and Görgülü v. Germany,
no. 74969/01, § 43, 26 February 2004).
- The
choice of the means employed to secure compliance with Article 8
in the sphere of the relations of individuals between themselves is
in principle a matter that falls within the Contracting States’
margin of appreciation. There are different ways of ensuring “respect
for private life”, and the nature of the State’s
obligation will depend on the particular aspect of private life that
is at issue (see Odièvre v. France [GC], no.
42326/98, § 46, ECHR 2003 III). The width of the
margin of appreciation will not only depend on the specific right or
rights which are concerned, but also on the nature of what is at
stake for the applicant (compare Pascaud, cited above, §
59).
- The
Court further refers to its judgment in the case of Anayo
v. Germany (no. 20578/07, 21
December 2010), which concerned the refusal of the German courts to
grant Mr Anayo, who was the biological father of twins, access to his
children on the ground that he had no social and family relationship
with the children. The Court observed, in that judgment, that the
domestic court had refused the applicant access to his children
without giving any consideration to the question whether, in the
particular circumstances of the case, contact between the twins and
the applicant would be in the children’s best interests. The
Court accordingly found that the domestic court had failed to fairly
balance the competing rights involved. As the reasons given for
refusing Mr Anayo contact with his children had thus not been
“sufficient” for the purposes of paragraph 2 of Article
8, Article 8 had been violated (see Anayo,
cited above, §§ 67-73). In a subsequent judgment (Schneider
v. Germany, no. 17080/07, 15 September
2011), the Court found that similar standards applied in a case in
which it had not been established whether the applicant was indeed
the biological father of the child.
- The
Court notes that the applicant’s complaint concerns three
aspects of the German law governing paternity: Firstly, he complained
about the fact that the mother of a child born out of wedlock, by
giving or refusing her consent, was in a position to determine which
one of two potential fathers was granted legal paternity and that the
other potential father had no possibility to be heard in these
proceedings. Secondly, he complained about having been prevented from
challenging paternity thus established on the ground that a social
and family relationship had been established between the legal father
and the child. Lastly, he complained about having been denied the
possibility to have his alleged paternity certified without changing
the child’s legal status.
- The
Court observes, at the outset, that it does not appear to be
unreasonable to base the original assignment of legal paternity on
the assumption that a man who has acknowledged paternity with the
mother’s consent is indeed the child’s father. It further
notes that a similar approach has been taken by the vast majority of
the Council of Europe Member States examined by the Court who make
acknowledgment of paternity of a child born out of wedlock dependent
on the mother’s consent (compare paragraph 36 above). The
Court considers that this regulation falls within the State’s
margin of appreciation, as long as the potential biological father’s
rights to have the child’s descent legally established are
sufficiently safeguarded.
- The
Court further observes that the German domestic law provides two
possibilities for the alleged biological father to have paternity
legally established: In the absence of a legally established father,
he can lodge an action under Article 1600d of the Civil Code. If a
legally established father exists, he has the right to challenge the
other man’s paternity only if no social and family relationship
exists between the child and the legal father.
- The
Court reiterates that a number of factors must be taken into account
when determining the width of the margin of appreciation to be
enjoyed by the State when deciding any case under Article 8 of the
Convention. Where a particularly important facet of an individual’s
existence or identity is at stake, the margin allowed to the State
will normally be restricted. Where, however, there is no consensus
within the member States of the Council of Europe, either as to the
relative importance of the interest at stake or as to the best means
of protecting it, the margin will be wider (see, most recently S.
H. and Others v. Austria [GC], no. 57813/00,
§ 94, 3 November 2011, with further references).
Furthermore, there will usually be a wide margin of appreciation
accorded if the State is required to strike a balance between
competing private and public interests or Convention rights (see
S. H. and Others, ibid.).
- It
appears from the comparative research undertaken by the Court (see
paragraphs 37 – 39, above) that a majority of fifteen out of
twenty-six Council of Europe Member States would allow a presumed
biological father to challenge the legal paternity of a third party
established by acknowledgment, even where the legal father lived with
the child in a social and family relationship. By contrast, in a
substantial minority of nine Member States the presumed biological
father does not have the standing to contest the paternity of the
legal father. In two further States the presumed biological father
may not contest paternity if the child has lived in a social and
family relationship with the legal father for a period of at least
four or five years, respectively.
- The
Court concludes that there appears to be a certain tendency within
the Member States towards allowing the presumed biological father to
challenge the legal father’s paternity under circumstances
which are comparable to those examined in the present case. There
appears to be, however, no settled consensus which would decisively
narrow the margin of appreciation of the State. The Court further
observes that the impugned decisions did not concern the question of
contact rights, which call for strict scrutiny as they entail the
danger that the family relationship between a young child and a
parent would be effectively curtailed (see, inter alia,
Görgülü, cited above, §§ 41-42 and
Anayo, cited above, § 66). It follows that the margin of
appreciation enjoyed by the Member States in respect of the
determination of a child’s legal status must be a wider one
than that enjoyed by the States regarding questions of contact and
information rights.
- With
regard to the conflicting interests to be balanced in the instant
case, the Court notes that the applicant had a protected interest in
establishing the truth about an important aspect of his private life,
namely the alleged fact of his being M.’s father, and having it
recognised in law (compare, mutatis mutandis, Pascaud
and Krušković, both cited above, § 34 and §
48 respectively).
- On
the other hand, the decision of the Court of Appeal was aimed at
complying with the legislature’s will to give an existing
family relationship between the child and her legal father, who was
actually living together with the child’s mother and provided
parental care on a daily basis, precedence over the relationship
between an alleged biological father and child.
- The
Court observes that German family law, as interpreted by the domestic
courts, currently does not provide a judicial examination of the
question whether contact between a biological father and his child
would be in the child’s best interests if another man is the
child’s legal father and if the biological father has not yet
borne any responsibility for the child. The reasons why the
biological father has not previously established such a relationship
are irrelevant; the provisions thus also cover cases in which the
fact that such a relationship has not yet been established is not
attributable to the biological father (compare Anayo, cited
above, § 67). The Court refers to its findings in the Anayo
case that this legal situation led to a violation of the
biological father’s right to respect for his private life (see
Anayo, cited above, §§ 70-73, also compare
Schneider, cited above, § 104).
- It
follows that Article 8 of the Convention can be interpreted as
imposing on the Member States an obligation to examine whether it is
in the child’s best interests to allow the biological father to
establish a relationship with his child, in particular by granting
contact rights. This may imply the establishment,
in access proceedings, of biological – as opposed to legal –
paternity if, in the special circumstances of the case, contact
between the alleged biological father – presuming that he was
in fact the child’s biological parent – and the child
were considered to be in the child’s best interests (see
Schneider,
cited above, § 103).
- Accordingly,
the alleged biological father must not be completely precluded from
the possibility of having his paternity certified unless there are
relevant reasons relating to the child’s best interests to do
so. However, this does not necessarily imply a duty under the
Convention to allow the alleged biological father to challenge the
legal father’s status or to provide a separate action to
establish biological – as opposed to legal – paternity.
Neither can such an obligation be deduced from the Court’s
case-law. The present case has to be distinguished from the Różański
case relied upon by the applicant, as in the latter case the domestic
authorities had refused to deal with Mr Różański’s
request to establish his paternity by mere reference to the
recognition of paternity by another man, without, however, examining
the factual background of the case, as for example the question
whether the child lived with his legal father in a social and family
relationship (see Różański, cited above, §
78). In the case of Mizzi v. Malta (no. 26111/02, ECHR
2006 I), the Court found a violation of Article 8 of the
Convention in that the applicant, who was the legal – but not
the biological – father of a child born in wedlock, and had
never lived with the child, was never afforded the possibility of
bringing, with reasonable prospect of success, an action aimed at
contesting paternity (see Mizzi, cited above, §§
108-111). The Court considers that this case falls to be
distinguished from the instant case in that Mr Mizzi alleged that the
presumption of legal paternity had not been in line with social
reality, as he had never entertained any factual relationship to the
child (see Mizzi, cited above, § 11). Conversely, in the
instant case Mr E.’s legal paternity coincided with his factual
role as the child’s social father.
- Having
regard to the above considerations, in particular the lack of a
consensus within the Member States on this issue and to the wider
margin of appreciation to be accorded to the States in matters
regarding legal status, the Court considers that the decision whether
the alleged biological father should be allowed to challenge
paternity under the circumstances of the instant case falls within
the State’s margin of appreciation.
- The
Court further considers that similar considerations apply to the
question whether an alleged biological father should be allowed to
demand clarification of the child’s descent by genetic testing
without changing the child’s legal status. It notes, in
particular, that none of the twenty-six Member States examined by the
Court provided a procedure to establish biological paternity without
formally challenging the recognised father’s paternity and
without changing the child’s legal status (see paragraph 38,
above). Accordingly, the decision not to allow for such a separate
examination also has to be considered as falling within the State’s
margin of appreciation.
- It
remains to be determined whether the decision-making process, seen as
a whole, was fair and provided the applicant with the requisite
protection of his interests safeguarded by Article 8 (see Sommerfeld,
cited above, § 66, and Görgülü, cited
above, §§ 41- 42).
- The
Court recalls that in cases concerning a person’s relationship
with his or her child, there is a duty to exercise exceptional
diligence in view of the risk that the passage of time may result in
a de facto determination of the matter which forms part of the
procedural requirements implicit in Article 8 (see, inter alia,
Hoppe v. Germany, no. 28422/95, § 54, 5 December 2002,
and Süß v. Germany, no. 40324/98, § 100, 10
November 2005). Furthermore, the Court has found that particular
diligence is required in cases concerning the civil status of a young
child (compare Mikulić cited above, § 44).
- Turning
to the circumstances of the instant case, the Court notes that the
period to be taken into consideration began on 4 July 2006, when the
applicant lodged his paternity action and ended on 8 July 2009, when
the Federal Constitutional Court’s decision was served on the
applicant’s counsel. It thus lasted two years and eleven months
over three levels of jurisdiction; and one year and eleven months
before the Bielefeld District Court. The Court notes that there had
been certain delays before the District Court - where the case was
pending for almost two years - in particular owing to the fact that
the appointment of a guardian ad litem had to be examined in
separate proceedings by two court instances, which lasted almost
eleven months. The Court observes, however, that it fell within the
domestic authorities’ discretion to decide on the procedure to
be followed when appointing a guardian and that the delay caused by
Mr E. and Ms D.’s lodging of an appeal against this appointment
cannot be held imputable on the domestic courts. The Court
furthermore considers that any delay which had occurred before the
District Court was compensated by the fact that the Court of Appeal
very swiftly processed the case within less than five months.
- Even
taking into account what was at stake for the applicant, namely the
recognition of his legal status as the alleged biological father, the
Court is satisfied that the domestic courts processed the case with
the diligence due in cases of this kind and that the procedural
requirements implicit in Article 8 of the Convention were thus
complied with.
- It
follows from the above considerations that there has been no
violation of Article 8 of the Convention in the present case.
II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE
8 OF THE CONVENTION
- The
applicant complained that Article 1600 of the
Civil Code as construed by the Berlin Court of Appeal had
discriminated against him in his capacity as a biological father
compared to the mother, the legal father and the child. He further
complained that the legal parents and the child were allowed to
request biological testing of descent outside paternity proceedings,
whereas the alleged biological father had no such right. He relied
on Article 14, read in conjunction with Article 8 of the Convention;
the former provides 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.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
B. Merits
- The
applicant pointed out that both the child’s mother and the
legal father were entitled to challenge paternity notwithstanding the
existence of a social and family relationship between the child and
the legal father. Furthermore, the legal parents and the child were
allowed to demand an examination of descent by genetic testing
without changing the child’s legal status. According to the
applicant, there were no relevant reasons which justified such
different treatment. This discrimination was further exacerbated by
the fact that the growing intensity of the social and family
relationship between the legal father and the child during the
paternity proceedings had not impaired the mother’s right to
contest paternity. Furthermore, it had to be borne in mind that
children, when challenging paternity, did not have to take into
account their own social relationship with their mother and legal
father. By contrast, the biological father was precluded from
challenging paternity even if this would serve the child’s best
interests.
- According
to the Government, Article 14 was not applicable in the instant case,
as the applicant’s complaint did not fall within the scope of
Article 8 of the Convention. Alternatively, the Government submitted
that the groups referred to by the applicant were not comparable. The
applicant, who had never lived with the child, was not in a similar
position to the legal parents, as the latter lived with the child in
a domestic community and bore parental responsibility. The
legislature’s decision to grant precedence to the social and
family relationship between the legal father and the child fell
within the State’s margin of appreciation when weighing the
competing interests.
- The
Court has already found above that the applicant’s complaint
falls within the scope of the right to protection of private life
guaranteed under Article 8 of the Convention. It follows that Article
14 is applicable in the instant case. 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 many other authorities,
Zaunegger, cited above, § 42).
- Turning
to the circumstances of the instant case, the Court observes that the
main reason relied upon by the Government in treating the applicant
differently from the mother, the legal father and the child with
regard to the challenging of paternity and to genetic testing was the
aim of protecting the child and her social family from external
disturbances. Having regard to the above considerations relating to
the proportionality of the interference with the applicant’s
right to respect for his private life, in particular to the lack of
consensus within the Member States (see §§ 70–71
above), the Court considers that the decision to give the existing
family relationship between the child and her legal parents
precedence over the relationship with the alleged biological father
falls, insofar as the legal status is concerned, within the State’s
margin of appreciation.
- There
has accordingly been no violation of Article 14 in conjunction with
Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF
THE CONVENTION
- The
applicant further complained that the length of
the proceedings had been excessive and that there had been no
available effective remedy in this regard.
- The
Government contested the allegation that the length of the
proceedings had been excessive.
- Having
regard to its findings under the procedural aspect of Article 8 of
the Convention (see §§ 82-84, above) the Court considers
that this part of the application is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 8 taken
alone and in conjunction with Article 14 admissible and the remainder
of the application inadmissible;
- Holds that there has been no violation of
Article 8 of the Convention;
- Holds that there has been no violation of
Article 14 in conjunction with Article 8 of the Convention.
Done in English, and notified in writing on 22 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President