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FIFTH
SECTION
CASE OF AHRENS v. GERMANY
(Application
no. 45071/09)
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 Ahrens 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. 45071/09)
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 Denis Ahrens (“the applicant”), on 18
August 2009.
2. The
applicant was represented by Mr G. Rixe, a lawyer practising in
Bielefeld. The German Government (“the
Government”) were represented by their Agent, Mrs A.
Wittling-Vogel, of the Federal Ministry of Justice.
3. The
applicant alleged, in particular, that the domestic courts’
refusal to allow him to challenge another man’s legal paternity
had violated his rights to respect for his family life and
discriminated against him. He further complained that the length of
the domestic proceedings had been unreasonable and that there had
been a lack of an effective remedy available to him.
- On
4 May 2010 the Court
decided to give notice of the application to the
Government. It 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). On 23
August 2010 the President of the Fifth Section granted leave, under
Article 36 § 2 of the Convention and Rule 44 of the Rules of
Court, for Ms P. and Mr M., the legal parents of the girl R., to
intervene as a third party in the written proceedings before the
Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in Berlin.
- From
Easter to September 2003 the applicant had a relationship with Ms P.
In February 2004 Ms P. started a relationship with Mr M. In September
2004 Ms P. and Mr M. moved into a joint household. In October and
November 2004 the applicant had intimate contact with Ms P. In
December 2004 Ms P. informed the applicant that she was pregnant.
- On
28 June 2005 Mr M., with the consent of Ms P., acknowledged paternity
of Ms P.’s future child. On 10 August 2005 Ms P. gave birth to
a daughter, R. Ms P. and Mr M. jointly exercise parental authority
and are bringing up the child together.
- On
27 October 2005 the applicant lodged an action to challenge Mr M.’s
paternity, submitting a statutory declaration that he had had sexual
intercourse with the child’s mother during the period of
conception. Mr M. submitted in reply that he lived with the child in
a social-familial relationship and that he assumed full parental
responsibility for the child, even if he was not her biological
father.
- On
24 November 2005 the Tempelhof-Kreuzberg District Court (Amtsgericht)
scheduled a hearing for 17 January 2006. On 13 January 2006 the
District Court cancelled the hearing, as a guardian ad litem
to represent the child’s interests had to be appointed. On 6
February 2006 the District Court appointed a guardian ad litem.
On 21 March 2006 the guardian submitted that a loving father-child
relationship existed between Mr M. and R. and that the applicant’s
action ran counter to the child’s best interests.
- On
28 March 2006, following a reminder by the applicant’s counsel,
the District Court scheduled a hearing for 30 May 2006. On 27 April
2006 the District Court, following M.’s request, postponed the
hearing to 6 June 2006.
- On
6 June 2006 the District Court, having heard the applicant, Mr M.
and Ms P., ordered an expert opinion on the question whether Mr M.
was the child’s biological father. On 7 September 2006 the
District Court requested the expert to submit information on the
state of the proceedings.
- On
4 October 2006 the expert informed the District Court that Mr M. and
Ms P. had postponed several appointments for the taking of blood
samples on medical grounds. Mr M. had his blood sample taken on
4 October 2006. On 2 November 2006 the expert informed the court
that he had received the blood samples of Ms P. and the child. On 27
November 2006 the expert submitted his report which concluded that Mr
M. was not the child’s biological father.
- On
1 December 2006, following a reminder by the applicant’s
counsel, the District Court scheduled a further hearing for 16
January 2007. On 6 February 2007 the District Court ordered an expert
opinion by the same medical expert as to the applicant’s
alleged paternity.
- On
15 March 2007 the expert submitted his report which concluded that it
had been proved to a probability of 99.99 % that the applicant was
the child’s biological father.
- On
12 March 2007 the District Court scheduled a hearing for 10 April
2007.
- On
27 April 2007 the District Court delivered a judgment establishing
that Mr M. was not the child’s father and that the applicant
was the child’s father. The District Court found the
applicant’s action admissible, as he had submitted a statutory
declaration that he had had sexual intercourse with the child’s
mother during the period of conception. The action was well-founded,
as it had been proved by expert opinion that the applicant was the
child’s biological father. The District Court considered that
the applicant had not been precluded from challenging paternity under
Article 1600 § 2 of the Civil Code (see relevant domestic law
below), as there had been no social and family relationship between
Mr M. and the child at the time of the last court hearing. It could
not be assumed that Mr M. bore actual responsibility for the
child. This would have required the legal father and the child to
have lived together for a longer period of time, which, according to
the District Court, necessitated a minimum period of approximately
two years. Taking into account the constitutional right of the
biological father under Article 6 § 2 of the Basic Law, it was
necessary that the factual relationship between the legal father and
the child enjoyed a certain stability. This stability could only be
assumed after a period of two years, which had not passed in the
instant case. Under these circumstances, it was not relevant that the
applicant actually took care of the child together with the child’s
mother.
- On
24 August 2007 the Berlin Court of Appeal (Kammergericht)
quashed the District Court’s judgment and rejected the
applicant’s action. The court noted that it was undisputed
between the parties that Mr M. had lived with the child and her
mother since the child’s birth and that he had continued to
live with them after it had been established by an expert that he was
not the child’s biological father.
- According
to the Court of Appeal, the District Court had failed to recognise
that the applicant did not have the right to challenge paternity
because of the existence of a social and family relationship between
Mr M. and the child. The Court of Appeal considered that such a
relationship had not only existed at the time it decided on the
appeal, but already a long time before, as Mr M. had lived together
with the child and her mother in a joint household since the child’s
birth. A young child could not possibly live together with another
person for a period of time longer than his or her own lifetime. The
legislature had not strictly defined which period of time would
amount to a “longer period of time”, but had left this
assessment to the courts adjudicating each individual case.
- The
period of time which was necessary to establish a social and family
relationship was not absolute, but had to be assessed with regard to
the circumstances of each individual case and, in particular, the
child’s age. There was no doubt that a child, during the first
months of his or her life, developed a social and family relationship
with the persons taking care of him or her on a daily basis. During
the first two years of his or her life, a child was in particular
need of secure family relationships, which allowed him or her to
develop further social contacts. A child’s interest in learning
about its true descent could only become relevant at a more advanced
age. According to the intentions of the legislature, who were guided
by the Federal Constitutional Court’s case-law, external
disturbances should be avoided in the child’s best interests
and in the interest of the already existing family relationship. The
constitutional rights of the biological father should not prevail
over the equally protected rights of the legal father, if and as long
as the latter assumed parental responsibility within the meaning of
social parentage. Against this background, even a period of a few
months which elapsed between a child’s birth and the bringing
of an action to challenge paternity could be considered as a “longer
period” within this specific context.
- The
Court of Appeal did not find it necessary to decide whether the
period of time which had elapsed between the child’s birth and
the lodging of the applicant’s action would have been
sufficient to establish a social and family relationship. According
to the case-law of the Federal Law Court, in cases in which the child
had lived since birth without interruption together with his or her
legal parents, the existence of a social-family relationship had to
be assumed if the cohabitation persisted and the judge was convinced
that the legal father assumed actual parental responsibility in a way
which appeared to be long-lasting. It was not decisive whether the
social and family relationship already existed when the action was
lodged, but only whether there was a social and family relationship
at the time of the last court hearing. The applicant had failed to
point to any circumstances which could call into question the
existence of such a relationship in the instant case. Conversely, the
fact that the relationship between the legal parents had endured the
crisis which had been caused by the mother’s breach of trust
indicated that the relationship was particularly stable. The Court of
Appeal did not allow an appeal on points of law.
- On
20 May 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 3 June 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; 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, pursuant to 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the domestic courts’
refusal to allow him to challenge Mr M.’s paternity and to have
his own paternity legally established violated his right to respect
for his private and family life as protected by Article 8 of the
Convention. He complained, in particular, 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 under
Article 8, read in conjunction with Article 6 of the Convention, that
the family courts had failed to examine sufficiently whether there
existed an enduring relationship between the child and her legal
father. He further complained that the alleged excessive length of
the proceedings had predetermined their outcome.
- The
Government contested these arguments.
- The
Court considers that this complaint 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 R. and him as her biological
father amounted to family life. He submitted that he had entertained
a relationship with Ms P. from Easter until the end of September 2003
and that they had continued to have a sexual relationship until
December 2004. It followed that the child had been conceived during a
long-lasting relationship. When the applicant had been informed by Ms
P. of her pregnancy, they had both assumed that he was the father. It
was not true that his first reaction on learning about the pregnancy
had been one of absolute rejection. On the contrary, he had been
willing to assume parental responsibility for the child and had
repeatedly tried to contact Ms P. during her pregnancy. However, Ms
P. had been opposed to that and had prevented any further contact as
from February 2005. After birth, the applicant had 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.
- 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 M. with the mother’s consent and without his own
participation.
- 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”. The legal recognition of the relationship constituted
a lifelong legal link between the child and his or her parent, which
was generally based on ascendancy. It fulfilled different functions
relating to the social order and to the individual’s place
within society. Furthermore, it had a legal function. It was thus of
primary importance not only for the child, but also for the parent.
It followed that the margin of appreciation attributed to the
domestic authorities in this respect had to be narrow.
- According
to the Court’s case-law, where the existence of a family tie
had been established, the State had to act in a manner calculated to
enable this tie to be developed. In the applicant’s view, the
legislature had disrespected this tenet and the principle of
proportionality by allowing the mother to choose another man as the
child’s legal father and to deny the applicant any factual
relationship with his child. 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 the applicant’s interests as
a biological father.
- This
situation had been further exacerbated by the fact that the applicant
bore the burden of proof that no social and family relationship
existed between the child and his legal father and that he had been
precluded from challenging paternity in the future even if the
relationship between the mother and the legal father should come to
an end and the legal father should lose interest in the child.
- During
the domestic proceedings, Mr M. had failed to submit any details
about the relationship between himself and the child R. Under these
circumstances, the family courts would have been obliged to examine
the relevant facts of their own motion. Furthermore, it would have
been necessary to hear an expert opinion on the question whether Ms
P. would continue to live with Mr M. The legal reasoning given by the
Berlin Court of Appeal had the practical consequence that any action
challenging paternity brought by a biological father had to be
rejected for the mere reason of the period of time which necessarily
elapsed during the paternity proceedings.
- 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 had been no scientific evidence
in support of the Court of Appeal’s presumption that the child
had to be protected from “external disturbances” during
the first two years of her life. In the instant case, both the
applicant and the child had a protected interest in having the true
biological descent legally established, which outweighed the legal
father’s interest in the maintenance of his status. There had
been no indication that the establishment of the applicant’s
paternity would jeopardise the relationship between Mr M. and the
child, as the latter had confirmed during the domestic proceedings
that he was willing to assume parental responsibility even after it
had become clear that he was not the biological father.
- 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 v. Germany, no.
22028/04, 3 December 2009), 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.
- In
the instant case, it further had to be taken into account that the
District Court had failed to process the proceedings with particular
diligence, as required in cases concerning civil status. 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 argued that the domestic courts’ decisions had not
interfered with the applicant’s right to respect for his family
life. Referring to the Court’s case-law, the Government
maintained that mere biological kinship, without any close personal
relationship, was insufficient to engage the protection of Article 8.
In the present case, R. had lived together with her mother and her
legal father in a stable family unit. No factual family relationship
had existed between the applicant and the child R. The Government
stressed that the intimate relationship between the applicant and Ms
P. had ended eight months prior to R’s birth. Even before the
end of all contact between Ms P. and the applicant, the two of them
had already not had an established relationship since September 2003,
but merely occasional sexual contact. The applicant had neither been
present at the child’s birth, nor had he attempted to gain
access to her.
- 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. They stressed that the applicant and the mother of the
child no longer had a relationship. Referring to the third party
submissions (see §§ 54-57 below), the Government submitted
that the applicant’s first reaction to the news of the
pregnancy was one of absolute rejection. The applicant had asked
about the child only once after her birth. Furthermore, the legal
parents had not prohibited contact with the applicant. The Government
expressed their doubts as to whether the applicant’s
willingness to assume responsibility, which had been communicated via
legal counsel, was really genuine.
- According
to the Government, the domestic courts had thoroughly examined the
existence of an enduring relationship between the child and her legal
father. By doing so, the courts had taken into account the fact that
Mr M. had acknowledged paternity even before the child’s birth
and that the legal parents had entertained a relationship since
February 2004 and had lived together for almost a year by the time
the child was born. During the domestic proceedings, Mr M. and Ms P.,
when separately heard by the District Court, unanimously declared
that they jointly took care of the child. The applicant did not
contest this. There was thus no doubt that Mr M. had assumed parental
responsibility and that there was no need for the Court of Appeal to
further examine these facts.
- The
domestic decisions had not interfered with the applicant’s
right to respect for his private life. Even assuming that there had
been an interference with the applicant’s rights under Article
8 § 1, this had a legal basis in Articles 1592 No. 2 and 1600 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 challenging paternity served the
child’s best interests. The biological father might have had 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 challenge
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 a
biological father to challenge 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 (the Government referred to the case of Nylund v.
Finland ((dec.), no. 27110/95, ECHR 1999 VI).
- The
legislature’s approach also served the child’s best
interests by avoiding the considerable strains which would be caused
by ascertaining in every individual case whether the respective
challenge was in the child’s best interests. Furthermore, it
protected the existing family from having to reveal private details
concerning their family life.
- It
was acceptable to impose the burden of proof for the non-existence of
a social and family relationship on the biological father. The latter
remained free to submit facts which militated against the assumption
of the existence of such a relationship, such as the fact that the
child did not live together with his or her legal father.
- The
applicant had not been denied the right to challenge paternity
because of the mere period of time which had elapsed during the court
proceedings. The length of the proceedings had not been excessive.
Furthermore, the Court of Appeal had not based its decision on the
additional time which had elapsed during the proceedings, but had
made it clear that the social and family relationship in question had
already existed for a considerably long time.
- The
Government further submitted that Germany was not in an isolated
position when it came to the weighing of interests between biological
fathers on the one hand and social fathers on the other. According to
an expert report drawn up in March 2010 by the German Institute for
Youth Human Services and Family Law (Deutsches Institut für
Jugendhilfe und Familienrecht e. V., a registered association and
non-governmental organisation), which covered, in addition to
Germany, seventeen other Council of Europe Member States, the status
of biological fathers under German law could not be regarded as being
weaker than that in other European legal systems.
3. The third parties’ submissions
- Ms
P. and Mr M., the child R.’s legal parents, submitted that the
domestic proceedings had put a heavy strain on their family and that
it would have serious consequences for them if the domestic decision
were to be overturned. They feared, in particular, that the applicant
would try to interfere with the family’s private affairs and
burden the relationship between R. and Mr M.
- The
third parties contended that Ms P. had not had any relationship with
the applicant during her pregnancy. Neither had they entertained a
relationship at the time when the child had been conceived. After
their separation, they had only had occasional sexual contact. When
first learning about Ms P.’s pregnancy, the applicant had
invited her to have an abortion.
- By
contrast, Ms P. and Mr M. had been living together even before the
child’s conception. They had been aware of the fact that both
men, the applicant and Mr M., could be the biological father.
Following counselling, they had decided against an abortion and to
ensure that the child could grow up within the comfort and love
provided by a stable family. Mr M. had accompanied Ms P. to
ultrasound examinations and prenatal classes and had been present
when she had given birth.
- Some
time after R.’s birth the applicant had called Mr M. by
telephone and demanded a paternity test. Mr M. had replied that he
did not want such a test and that they wished to let R. decide by
herself if she wanted a paternity test when she was older. Neither
the applicant nor his counsel had ever tried to get in touch with
them afterwards.
4. 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 natural 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 v. Finland (dec.), no. 27110/95, ECHR
1999 VI; 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 instant case, the Court observes that the relationship between
Ms P. and the applicant had ended approximately one year before the
child R. was conceived. According to the applicant’s own
submissions, the ensuing relations between himself and Ms P. were of
a purely sexual nature. There is no indication that the applicant and
Ms P., who cohabitated at the time with Mr M., envisaged founding a
family together. There are no signs of any commitment of the
applicant towards the child before it was born. Under these
circumstances, the Court is not convinced that the applicant’s
decision to demand a paternity test and to bring an action aimed at
establishing his paternity were sufficient to bring the relationship
between himself and R. within the scope of family life.
- However,
Article 8 protects not only “family” but also “private”
life. 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; Pascaud v. France,
no. 19535/08, §§ 48-49, 16 June 2011 and
Krušković v. Croatia, no. 46185/08,
§ 20, 21 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 legally establish his paternity of
R. thus interfered with his right to respect for his private life.
-
Any such interference will constitute a violation of Article 8 unless
it is “in accordance with the law”, pursues an aim or
aims that are legitimate under paragraph 2 of that provision and can
be regarded as “necessary in a democratic society”.
- The
domestic courts’ decision to reject the applicant’s
action to legally establish paternity was based on Article 1600 §§
2 and 4 of the Civil Code. It was aimed at pursuing the best
interests of the family unit consisting of Ms P., Mr M. and the child
R.
- 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).
- According
to the Court’s well-established case-law, it must further be
borne in mind that the national authorities have the benefit of
direct contact with all the persons concerned. It follows from these
considerations that the Court’s task is not to substitute
itself for the domestic authorities in the exercise of their
responsibilities, but rather to review, in the light of the
Convention, the decisions taken by those authorities in the exercise
of their power of appreciation (see, inter alia, Hokkanen
v. Finland, 23 September 1994, § 55, Series A no. 299 A;
Görgülü, cited above, § 41; and
Sommerfeld, cited above, § 62).
- 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 application, 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 interest. 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 the purposes of paragraph 2
of Article 8, Article 8 had been violated (see Anayo,
cited above, §§ 67 73).
- Turning
to the circumstances of the instant case, the Court observes at the
outset that the applicant instigated proceedings which were aimed at
obtaining full legal status as the child’s father. If the
applicant’s action had been successful, all parental links
between the child and Mr M., who had acknowledged paternity before
the child’s birth and who continued to perform the role of her
social father, would have been severed. Such proceedings must
therefore be considered to have a fundamentally different and more
far-reaching objective than the mere establishment of biological
paternity for the purposes of having contact with the child concerned
and information about that child’s development, as was at stake
in the Anayo case.
- 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 §§
27 – 28 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 relations 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 fact of his being R.’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 a biological father and a child.
- The
Court observes that German family law, as interpreted by the domestic
courts, currently does not provide the possibility of 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 (in a “social and
family relationship”) 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).
- It
can be deduced from the Anayo judgment 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, for example by granting contact rights. Accordingly,
the biological father must not be completely excluded from his
child’s life 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 biological
father to challenge the legal father’s status. 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 M.’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 biological father should be allowed to challenge paternity under
the circumstances of the instant case falls 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).
- In
this respect, the Court notes that the Court of Appeal examined
whether the legal parents lived together in an enduring social family
unit. The existence of a father-child relationship between Mr M. and
the child had been confirmed by both legal parents and by the child’s
guardian. Mr M. had cohabitated with the child’s mother
for several months before conception and accompanied her during her
pregnancy and when giving birth. The applicant, on the other hand,
did not submit any facts either before the domestic courts or before
the Court which could call this finding into question. There is thus
no indication that the domestic courts failed to sufficiently
establish the relevant facts.
- With
regard to the length of the proceedings, 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 civil status (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 27 October 2005, when
the applicant lodged his paternity action and ended on 3 June 2009,
when the Federal Constitutional Court’s decision was served on
the applicant’s counsel. It thus lasted some three years and
seven months over three levels of jurisdiction. Even though there
were certain delays before the Tempelhof-Kreuzberg District Court -
where the case was pending for one year and six months - in
particular owing to the fact that the court did not appoint a
guardian ad litem immediately after the action had been
lodged, the Court considers that this delay of some three months was
compensated by the fact that the Court of Appeal very swiftly
processed the case within less than four months. Insofar as a certain
delay was occasioned by the fact that the District Court ordered two
separate examinations in order to exclude the legal father’s
paternity and, subsequently, to establish the applicant’s
paternity, the Court considers that this approach falls within the
domestic court’s discretion as to how to establish the relevant
facts.
- The
Court further observes that it does not appear from the reasoning
given by the Berlin Court of Appeal that the instant case had been
predetermined by the period of time which had elapsed during the
proceedings before the domestic courts. It notes, in particular, that
the Court of Appeal considered that a social and family relationship
between the legal father and the child R. not only existed at the
time that court decided on the applicant’s appeal, but already
a long time before.
- In
these circumstances the Court is satisfied that the procedural
requirements implicit in Article 8 of the Convention were 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 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. 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 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 §§ 69–70 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 her 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 considered that the applicant had failed to comply with
the six-month time-limit in respect of this complaint and contested
the allegation that the length of the proceedings had been excessive.
- Even
assuming compliance with Article 35 § 1 of the Convention, the
Court considers, in the light of its findings under the procedural
aspect of Article 8 of the Convention (see §§ 79-80,
above), 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
