Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

Elsholz v Germany (app no 25735/94)

Family Court Reports Cited authorities 2 Cited in 53 Precedent Map Related
Vincent
Judgment Date01 November 1998

Human Rights – Contact – Unmarried fathers – Domestic courts’ dismissing father’s applications for contact on basis of child and mother’s objections – Domestic court not obtaining psychological expert opinion – Whether refusal to grant father contact to son breach of father’s right to respect for family life – Whether father discriminated against as an unmarried father – Whether father’s right to fair hearing breached – European Convention on Human Rights, arts 6(1), 8, and 14.

The applicant was the father of the child, C, who was born out of wedlock on 13 December 1986. Whilst the applicant had been living with the mother they separated in 1988, and although he initially continued to see C frequently, the mother stopped contact in 1991, and C later stated that he did not wish to have further contact with him. On the applicant’s request for contact, the district court held that under domestic law it could only enforce an unmarried father’s right to contact if it was advantageous and beneficial for the child’s well-being, and in the light of both C and the mother’s objections to contact, contact with the applicant would not enhance C’s well-being, and it accordingly dismissed the application. On the applicant’s renewed application, the district court held that the applicant’s relationship with the mother was so strained that contact would not be in C’s best interests, and rejecting the youth office’s recommendation that it should obtain a psychological expert opinion on the question of contact rights, it again dismissed the application. Thereafter the regional court, without a hearing, dismissed the applicant’s appeal. The applicant complained to the European Court of Human Rights that the German court’s refusal to grant him contact to his son, a child born out of wedlock, amounted to a breach of art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), that as an unmarried father he had been the victim of discrimination contrary to art 14 of the Convention taken together with art 8, and that, under art 6(1), the proceedings before the German courts were unfair.

Held – (1) (By a majority) The combination of the refusal to order an independent psychological expert report and the absence of an oral hearing before the regional court revealed an insufficient involvement of the applicant in the decision-making process. Thus, the national authorities overstepped their margin of appreciation, thereby violating the applicant’s rights under art 8 of the Convention.

(2) Since the district court’s reasoning was clearly based on the danger to the child’s development if he had to take up contact with the applicant contrary to the mother’s will and the child’s welfare was thus the paramount consideration, and the regional court equally based its decision on the finding that contact would negatively affect the child, the applicant had not shown that, in a similar situation, a divorced father would have been treated more favourably. Accordingly, there had been no violation of art 14 in conjuncture with art 8.

(3) (By a majority) As a result of the lack of psychological expert evidence and the lack of oral hearing in the regional court, despite the fact that the appeal raised questions of fact and law which could not be adequately resolved on the basis of written material at the court’s disposal, the proceedings, as a whole, did not satisfy the requirements of a fair and public hearing within the meaning of art 6(1) of the Convention. It followed that there had been a breach of art 6(1).

Cases referred to in judgment

Application no 9530/81 (14 May 1984, unreported), ECom HR.

Application no 9588/81 (15 March 1984, unreported), ECom HR.

Bronda v Italy (1998) Reports of Judgments and Decisions 1489, ECt HR.

H v France (1990) 12 EHRR 74, ECt HR.

Hertel v Switzerland (1998) 5 BHRC 260, ECt HR.

Hokkanen v Finland[1995] 2 FCR 320, ECt HR.

Johansen v Norway (1996) 23 EHRR 33, ECt HR.

Johnston v Ireland (1986) 9 EHRR 203, ECt HR.

K and T v Finland[2000] 3 FCR 248, [2000] 2 FLR 79, ECt HR.

Keegan v Ireland[1994] 3 FCR 165, ECt HR.

Marckx v Belgium (1979) 2 EHRR 330, ECt HR.

Monnell v UK (1987) 10 EHRR 205, ECt HR.

Olsson v Sweden (no 2) (1992) 17 EHRR 134, ECt HR.

Saffi v Italy (1999) 7 BHRC 256, ECt HR.

Schenk v Switzerland (1988) 13 EHRR 242, ECt HR.

Vidal v Belgium 22 April 1992, Series A No 235-B, ECt HR.

W v UK (1987) 10 EHRR 29, ECt HR.

Winterwerp v Netherlands (1979) 2 EHRR 387, ECt HR.

Complaint

On 31 October 1994 the unmarried father complained to the European Court of Human Rights that the refusal of the German courts to grant him access to his son amounted to a breach of art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), that, as an unmarried father he had been the victim of discrimination contrary to art 14 of the Convention taken together with art 8 and that, under art 6(1) of the Convention, the proceedings before the German courts were unfair. In its report of 1 March 1999 the European Commission of Human Rights expressed the opinion that there had been a violation of art 14 of the Convention taken in conjunction with art 8 (15 votes to 12); that no separate issue arose as to art 8 taken alone (15 votes to 12); and that there had been a violation

of art 6(1) (17 votes to 10). The facts are set out in the judgment of the European Court of Human Rights.

13 July 2000. The following judgment was delivered.

THE EUROPEAN COURT OF HUMAN RIGHTS (GRAND CHAMBER). Procedure

1. The case was referred to the Court in accordance with the provisions applicable prior to the entry into force of Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) (the Convention) by the European Commission of Human Rights (the Commission) on 7 June 1999 and by a German national, Mr Egbert Elsholz (the applicant), on 25 May 1999 (art 5(4) of Protocol No 11 and former arts 47 and 48 of the Convention).

__________________

aNote by the Registry. Protocol No 11 came into force on 1 November 1998

___________________

2. The case originated in an application (no 25735/94) against Germany lodged with the Commission under former art 25 of the Convention by the applicant on 31 October 1994.

3. The applicant alleged that the refusal to grant him access to his son, a child born out of wedlock, amounted to a breach of art 8 of the Convention, that, as the father of a child born out of wedlock, he had been the victim of discrimination contrary to art 14 of the Convention taken together with art 8 and that, under art 6(1) of the Convention, the proceedings before the German courts were unfair.

4. The Commission declared the application partly admissible on 30 June 1997. In its report of 1 March 1999 (former art 31 of the Convention), it expressed the opinion that there had been a violation of art 14 of the Convention taken in conjunction with art 8 (15 votes to 12); that no separate issue arose as regarded art 8 taken alone (15 votes to 12); and that there had been a violation of art 6(1) (17 votes to 10).

__________________

bNote by the Registry. The full text of the Commission’s opinion and of the separate opinions contained in the report will be reproduced as an annex to the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but in the meantime a copy of the Commission’s report is obtainable from the Registry

___________________

5. Before the Court the applicant was represented by Mr Peter Koeppel, a lawyer practising in Munich (Germany). The German Government (the Government) were represented by their agent, Mrs H Voelskow-Thies, Ministerialdirigentin, of the Federal Ministry of Justice.

6. On 7 July 1999 the panel of the Grand Chamber determined that the case should be decided by the Grand Chamber (r 100(1) of the Rules of Court). Mr G Ress, the judge elected in respect of Germany who had taken part in the Commission’s examination of the case, withdrew from sitting in the Grand Chamber (r 28). The Government were accordingly invited to indicate whether they wished to appoint an ad hoc judge (art 27(2) of the Convention and r 29(1)). As the Government did not reply within 30 days, they were presumed to have waived their right of appointment (r 29(2)). Consequently, Mr L Ferrari Bravo, first substitute judge, replaced Mr Ress as a member of the Grand Chamber (r 24(5)(b)).

7. The applicant and the Government each filed a memorial.

8. After consulting the agent of the Government and the applicant’s lawyer, the Grand Chamber decided that it was not necessary to hold a hearing (r 59(2) in fine).

The facts I. The circumstances of the case

9. The applicant, a German national born in 1947, lives in Hamburg. He is the father of the child C, born out of wedlock on 13 December 1986. On 9 January 1987 he acknowledged paternity and undertook to pay maintenance for C. He fulfilled this obligation regularly.

10. Since November 1985 the applicant lived with the child’s mother and her elder son Ch. In June 1988 the mother, together with the two children, moved out of the flat. The applicant continued to see his son frequently until July 1991. On several occasions, he also spent his holidays with the two children and their mother. Subsequently, no more visits took place.

11. The applicant attempted to visit his son with the assistance of the Erkrath Youth Office (Jugendamt), acting as mediator. When questioned by an official of the youth office at his home in December 1991, C stated that he did not wish to have further contacts with the applicant.

12. On 19 August 1992 the applicant applied to the Mettmann District Court (Amtsgericht) for a decision granting him a right of access (Umgangsregelung) to C on the first Saturday of every month, between 1 pm and 6 pm. The applicant maintained that the mother refused him access to C because he...

To continue reading

Request your trial
27 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT