Sommerfeld v Germany
| Judgment Date | 20 November 2002 |
Human rights – Private and family life – Discrimination – Applicant refused access to daughter born out of wedlock – Whether refusal of access violating applicant’s right to respect for family life – Whether applicant’s right not to be discriminated against violated – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, arts 8, 14.
The applicant was the father of a daughter, who was born out of wedlock. The applicant acknowledged paternity and sought access to his daughter. The mother who had married another man prohibited contact. The district court heard that the daughter, who was aged 13, did not wish to see the applicant. The court considered the Civil Code in force at that time. That provided that custody of a minor child born out of wedlock was exercised by the child’s mother and that the person having custody of the child should determine the father’s right of access unless the guardianship court decided that it was in the child’s interests to have personal contact with the father. The court decided that as the daughter was of an age to make up her own mind and had rejected the idea of establishing contact with the applicant, his application would be dismissed. The Regional Court dismissed an appeal. There was no right for the applicant to lodge a further appeal as s 63a of the Act on Non-Contentious Proceedings excluded that right in proceedings concerning a natural father’s access to his child born out of wedlock. An appeal to the Federal Constitutional Court also failed. The applicant applied to the European Court of Human Rights complaining that his right to respect for family life under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 had been violated and that the refusal of access could not be considered necessary in a democratic society and, relying on art 14, that he was a victim of discriminatory treatment in that respect. The court held by a majority that there had been both a violation of art 8 and a violation of art 14, taken together with art 8. The matter was referred to the Grand Chamber at the request of the government of Germany. The government conceded that the applicant’s right under art 8 were engaged but contended that the court had erred in its approach to the margin of appreciation left to national courts and that the application of the Civil Code had not led to discrimination between fathers and children born out of wedlock.
Held – (by a majority) (1) For the purposes of art 8(2), domestic authorities were required to strike a fair balance between the interests of the child and those of the parents. Moreover, in the balancing process, particular importance should be
attached to the best interests of the child, which, depending on their nature and seriousness, might override those of the parents. In particular, a parent could not be entitled under art 8 to have such measures taken that would harm the child’s development. Furthermore, when assessing whether the reasons given for the refusal of access were sufficient for the purposes of art 8(2), the court would, at the same time, determine whether the decision-making process, seen as a whole, provided an applicant with the requisite protection of his interests. Whether the process did so depended on the particular circumstances of each case. In the instant case, the applicant was placed in a position enabling him to put forward all arguments in favour of obtaining a visiting arrangement. He also had access to all relevant information which was relied on by the courts. Having regard to the fact that the court had seen the daughter and was well placed to evaluate her statements they could reasonably reach the conclusion that it was not reasonable to force the daughter to see her biological father. It followed that, in the circumstances, the court’s procedural approach was reasonable and complied with the procedural requirements in art 8. Accordingly, there had been no violation of art 8.
(2) The court was required to examine the manner in which domestic legislation was applied to an applicant in particular circumstances, not to examine the legislation in the abstract. The question to be decided by the court was whether the application of the domestic legislation in the instant case led to an unjustified difference in the treatment of the applicant in comparison with the case of a divorced couple. Very weighty reasons were required before a difference in treatment on the ground of birth out of or within wedlock could be regarded as compatible with the Convention. This was also true for a difference in the treatment of the father of a child born of a relationship where the parties were living together out of wedlock as compared with the father of a child born of a marriage-based relationship. There were no discernible reasons in the instant case. Accordingly, there had been a violation of art 14, taken together with art 8; Elsholz v Germany[2000] 3 FCR 385 distinguished.
Cases referred to in judgmentAbdulaziz v UK (1985) 7 EHRR 471, [1985] ECHR 9214/80, ECt HR.
Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, [1968] ECHR 1474/62, ECt HR.
Beyeler v Italy App no 33202/96 (28 May 2002, unreported), ECt HR.
Buscemi v Italy App no 29569/95 (16 September 1999, unreported), ECt HR.
Camp and Bourimi v Netherlands[2000] 3 FCR 307, ECt HR.
Covezzi and Morselli v Italy App no 52763/99 (unreported), ECt HR.
East African Asians v UK (1973) 3 EHRR 76, E Com HR.
Elsholz v Germany[2000] 3 FCR 385, [2000] 2 FLR 486, ECt HR.
Glaichauf v Germany App no 9530/81 (14 May 1984, unreported), E Com HR.
Hokkanen v Finland[1995] 2 FCR 320, [1996] 1 FLR 289, ECt HR.
Ignaccolo-Zenide v Romania [2000] ECHR 31679/96, ECt HR.
Inze v Austria (1987) 10 EHRR 394, [1987] ECHR 8695/79, ECt HR.
K and T v Finland[2001] 2 FCR 673, ECt HR.
Kutzner v Germany[2003] 1 FCR 249, ECt HR.
Mazurek v France (App no 34406/97) (1 February 2000, unreported), ECt HR.
National Union of Belgian Police v Belgium (1976) 1 EHRR 578, [1975] ECHR 4464/70, ECt HR.
Nuutinen v Finland [2000] ECHR 32842/96, ECt HR.
P, C and S v UK[2002] 3 FCR 1, ECt HR.
Rekvényi v Hungary App no 25390/94 (20 May 1999, unreported), ECt HR.
Schmidt v Germany (1994) 18 EHRR 513, [1994] ECHR 13580/88, ECt HR.
Sunday Times v UK [1980] ECHR 6538/74, 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, Manfred Sommerfeld, a German national, by a case originated in an application (no 31871/96) against the Federal Republic of Germany, lodged with the European Commission of Human Rights under former art 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, alleged, inter alia, a violation of arts 8 and 14 of the Convention, contending that the German court decisions dismissing his request for access to his daughter, born out of wedlock, amounted to a breach of his right to respect for his family life and that he was a victim of discriminatory treatment in this respect. The facts are set out in the judgment of the court.
8 July 2003.
The EUROPEAN COURT OF HUMAN RIGHTS (GRAND CHAMBER) delivered the following judgment. PROCEDURE1. The case originated in an application (no 31871/96) against the Federal Republic of Germany lodged with the European Commission of Human Rights (the commission) under former art 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) (the Convention) by a German national, Mr Manfred Sommerfeld (the applicant), on 7 June 1995.
2. The applicant, who had been granted legal aid, was represented before the court by Mrs S Hierstetter, a lawyer practising in Munich. The German Government (the government) were represented by their agents, Mrs H Voelskow-Thies, Ministerialdirigentin, 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.
3. The applicant alleged, in particular, that the German court decisions dismissing his request for access to his daughter, born out of wedlock, amounted to a breach of his right to respect for his family life and that he was a victim of discriminatory treatment in this respect. He also complained about a breach of his right to a fair hearing. He relied on arts 6, 8 and 14 of the Convention.
4. The application was transmitted to the court on 1 November 1998, when Protocol No 11 to the Convention came into force (art 5(2) of Protocol No 11).
5. The application was allocated to the Fourth Section of the court (r 52(1)). Within that section, the chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(1), composed of: Mr A Pastor Ridruejo, President, Mr G Ress, Mr L Caflisch, Mr I Cabral Barreto, Mr V Butkevych, Mrs N Vajiæ, Mr M Pellonpää, judges, and Mr V Berger, section registrar. On 12 December 2000 the application was declared partly admissible as regards the applicant’s complaints that the German court decisions dismissing his request for access to his daughter, born out of wedlock, amounted to a breach of his right to respect for his family life and that he was a victim of discriminatory treatment in this respect.
6. On 11 October 2001 the chamber delivered its judgment in which it held, by five votes to two, that there had been a violation of art 8 of the Convention. It also held, by five votes to two, that there had been a violation of art 14 of the Convention, taken together with art 8. The chamber further held by six votes to one that there had been a violation of art 6 of the Convention. The chamber finally held, by five votes to two, that the respondent state was to pay the applicant (i) 55,000 (fifty-five thousand) German marks in respect of non-pecuniary damage and (ii) 2,500...
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