Hoppe v Germany
| Judgment Date | 05 December 2002 |
Human rights – Private and family life – Access – Parents separating – Domestic courts reducing applicant father’s access to daughter – Whether applicant’s Convention right to respect for family life violated – European Convention for the Protection of Human Rights and Fundamental Freedoms, art 8.
The applicant and his wife separated and issues arose as to parental authority over, and access to, their daughter. In relation to access, the first instance court, following a public hearing, granted limited access on the basis that the applicant’s previous extensive rights of access exposed the daughter to a conflict of loyalty with which she could not deal. It found that the applicant was unable to accept restrictions on access although he was aware of his daughter’s problems, and did not show concern for her psychological health. The applicant appealed to the Court of Appeal, which, on paper, increased the applicant’s right of access. It had particular regard to the difficult relationship between the parents, which was in conflict with the best interests of the child. Although his constitutional appeal was unsuccessful, the applicant later obtained increased access from the first instance court (which was amended on appeal) as the situation improved. In relation to parental authority, the first instance court awarded sole responsibility to the mother, having regard to the best interests of the child. It was also of the opinion that, notwithstanding the applicant’s interest in the daughter’s well-being, he failed to see that his wishes obstructed her psychological development. The applicant appealed and the Court of Appeal dismissed that appeal on the papers. The applicant complained that his rights under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 were infringed by the decision to reduce his access to his child.
Held – (1) The mutual enjoyment by parent and child of each other’s company constituted a fundamental element of family life, even if the relationship between the parents had broken down, and measures deriving from domestic law which hindered such enjoyment amounted to an interference with the right to respect for family life protected by art 8 of the Convention. In the instant case, the German courts’ decisions which had reduced the applicant’s right of access to his daughter and awarded exclusive parental authority to the mother, amounted to an interference with the applicant’s right to respect for private and
family life; Elsholz v Germany[2000] 3 FCR 385, Johansen v Norway [1996] ECHR 17383/90 considered.
(2) An interference with the right to respect for private and family life would not constitute a violation if it was in accordance with the conditions in art 8(2). When determining whether an interference was necessary in a democratic society the court had to consider whether, in the light of the case as whole, the reasons adduced to justify the measure were relevant and sufficient for the purposes of art 8(2). Consideration of the best interests of the child was of crucial importance in cases such as the instant one. Furthermore, a fair balance had to be struck between the interests of the child and those of the parent and that, when striking such a balance, particular importance had to be attached to the best interests of the child, which, depending on their nature and seriousness, might override those of the parent. In the instant case, having regard to the domestic courts’ assessment of the child’s best interests, the court was satisfied that the contested decisions were based on reasons which were not only relevant but also sufficient for the purposes of art 8(2). The court further considered that, when they had reduced the applicant’s right of access and awarded the parental authority to the mother, the national authorities had acted within the margin of appreciation afforded to them; Elsholz v Germany[2000] 3 FCR 385, TP and KM v UK[2001] 2 FCR 289 considered.
(3) Whilst art 8 of the Convention contained no explicit procedural requirements, the decision-making process involved in measures of interference had to be fair and such as to ensure due respect of the interests safeguarded by art 8. Therefore, the court had to determine whether, having regard to the circumstances of the case and notably the importance of the decisions to be taken, the applicant had been involved in the decision-making process, seen as a whole, to a degree sufficient to have provided him with the requisite protection of his interests. Furthermore, in cases concerning a person’s relationship with his or her child, there was a duty to exercise exceptional diligence. In the instant case, particularly in the first-instance proceedings, the applicant had the opportunity to present his arguments in writing and orally, and was also given the possibility of putting forward any views in writing which in his opinion would have been decisive for the outcome of the proceedings. The matter had been decided with special diligence on the basis of the necessary material. In those circumstances, the procedural requirements implicit in art 8 of the Convention were complied with and the applicant was involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests. Accordingly, there had not been a violation of art 8; W v UK (1987) 10 EHRR 29, Elsholz v Germany[2000] 3 FCR 385 and TP and KM v UK[2001] 2 FCR 289 considered.
Cases referred to in judgmentElsholz v Germany[2000] 3 FCR 385, [2000] 2 FLR 486, ECt HR.
Helmers v Sweden [1991] ECHR 11826/85, ECt HR.
Hokkanen v Finland (1994) 19 EHRR 139, [1994] ECHR 19823/92, ECt HR.
Jan-Ake Andersson v Sweden App no 11274/84 (29 October 1991, unreported), ECt HR.
Johansen v Norway [1996] ECHR 17383/90, ECt HR.
McMichael v UK (1995) 20 EHRR 205, [1995] EHRC 16424/90, ECt HR.
TP and KM v UK[2001] 2 FCR 289, ECt HR.
Vidal v Belgium [1992] ECHR 12351/86, ECt HR.
W v UK (1987) 10 EHRR 29, [1987] ECHR 9749/82, ECt HR.
ApplicationThe applicant, Peter Hoppe, a German national, by a case originated in an application (no 28422/95) against the Federal Republic of Germany, lodged with the Europeam Commission of Human Rights under former art 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, alleged violations of arts 6, 8 and 14, contending that the German court decisions concerning his right of access to his daughter and the awarding of parental authority breached his right to respect for his family life, that he was denied a fair hearing in the relevant proceedings and that he had been subjected to discrimination. The facts are set out in the judgment of the court.
Procedure1. 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 Peter Hoppe, a German national (the applicant), on 27 July 1995 (art 5(4) of Protocol No 11 and former arts 47 and 48 of the Convention).
2. The case originated in an application (no 28422/95) against the Federal Republic of Germany lodged with the European Commission of Human Rights (the commission) under former art 25 of the Convention by the applicant on 27 July 1995.
3. The applicant alleged, in particular, that the German court decisions concerning his right of access to his daughter and the awarding of parental authority breached his right to respect for his family life, that he was denied a fair hearing in the relevant proceedings and that he had been subjected to discrimination. He invoked arts 6, 8 and 14 of the Convention.
4. The commission declared the application partly admissible on 14 January 1998. In its report of 10 September 1999 (former art 31 of the Convention) [Note by the Registry. Copies of the report are obtainable from the Registry], it expressed the opinion that there had been no violation of art 8 of the Convention (16 votes to ten), no violation of art 6(1) of the Convention (19 votes to seven) and no violation of art 14 in conjunction with art 8 of the Convention (unanimously).
5. Before the court the applicant was represented by Mr P Koeppel, a lawyer practising in Munich (Germany). The German Government (the government) were represented by their agents, Mrs H Voelskow-Thies, of the Federal
Ministry of Justice, at the initial stage of the proceedings, and subsequently by Mr K Stoltenberg, Ministerialdirigent, also of the Federal Ministry of Justice.
6. On 8 December 1999 the panel of the Grand Chamber determined that the case should be decided by a chamber (r 100(1) of the Rules of Court). The application was allocated to the Fourth Section of the court (r 52(1) of the Rules of Court). Within that section, the chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(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 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)). The President of the chamber designated Mr L Caflisch, judge elected in respect of Liechtenstein.
7. The applicants and the government each filed observations on the merits (r 59(1)).
8. After consulting the agent of the government and the applicants’ lawyer, the chamber decided that no hearing on the merits was required (r 59(2) in fine).
9. On 1 November 2001 the court changed the composition of its sections (r 25(1)). This case was assigned to the newly composed Third Section.
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