EHRM, 03-12-2009, nr. 22028/04

The statutory provisions on custody and contact are to be found in the German Civil Code (the ‘Civil Code’). Article 1626 § 1 of the Civil Code provides that the father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child.

As regards children born out of wedlock, custody was pursuant to the former Article 1705 of the Civil Code automatically obtained by the mother. That provision was however declared unconstitutional by the Federal Constitutional Court in 1996. On 1 July 1998, the amended Law on Family Matters of 16 December 1997 (Reform zum Kindschaftsrecht, Federal Gazette 1997, p. 2942), entered into force to implement the Federal Constitutional Court's judgment of 1996. The relevant law in the Civil Code was changed as follows: under Article 1626a § 1, the parents of a minor child born out of wedlock may exercise joint custody if they make a declaration to that effect (joint custody declaration) or if they marry. Otherwise Article 1626a § 2 provides that the mother obtains sole custody.

If the parents have not merely temporarily separated and if the mother has obtained sole custody in accordance with Article 1626a § 2 of the Civil Code, Article 1672 § 1 of the Civil Code provides that the family court may transfer sole custody to the other parent if one parent lodges the relevant application with the consent of the other parent. The application is to be granted if the transfer serves the child's interest. Article 1672 § 2 of the Civil Code provides that in the case of a transfer of the right to custody under Article 1672 § 1 of the Civil Code, the family court may subsequently order joint custody on the application of one parent with the consent of the other parent unless it would be to the detriment of the child. The same applies if the transfer of custody under Article 1672 § 1 of the Civil Code is later annulled.

By contrast, parents exercising joint parental authority before their separation either because the child was born in wedlock, the parents have married following the child's birth or they have made a joint custody declaration, retain joint custody following their separation unless the court at the request of one parent awards sole custody to the latter in accordance with the child's best interest pursuant to Article 1671 of the Civil Code.

Under Article 1666 of the Civil Code, the family court may order the necessary protective measures if the child's physical, psychological or mental well-being is threatened by negligence and if the parents are unwilling to take those measures themselves. Measures which result in the separation of the child from one parent are admissible only if the child would be at risk otherwise (Article 1666a of the Civil Code).

On 29 January 2003, the Federal Constitutional Court found that Article 1626a of the Civil Code was unconstitutional because it lacked a transitional period for unmarried couples with children who were living together in 1996 but who had separated before the amended Law on Family Matters entered into force on 1 July 1998 (that is, those who were unable to make a joint custody declaration before 1 July 1998). In order to resolve the above-mentioned constitutional flaws, the German legislator introduced Article 224 (2) (a) of the Introductory Act to the Civil Code (Einführungsgesetz in das Bürgerliche Gesetzbuch), on 31 December 2003, according to which a court may substitute the mother's consent to joint custody if an unmarried couple have a child born out of wedlock, have lived together with the child and were separated before 1 July 1998, provided that joint custody would serve the best interests of the child (Kindeswohl).

In its judgment of 29 January 2003, the Federal Constitutional Court also held that Article 1626a § 2 of the Civil Code, apart from the lack of a transition period, did not breach the right to respect for the family life of fathers whose children were born out of wedlock. Parents who were married had obliged themselves on marriage to take responsibility for each other and their children. In contrast to this, the legislator could not assume that parents of children born out of wedlock lived together or wanted to take responsibility for each other. There was insufficient evidence that a father of a child born out of wedlock would want to bear joint responsibility as a general rule. The child's well-being therefore demanded that the child had a person at birth who could act for it in a legally binding way. In view of the very different life conditions into which those children were born, generally it was justifiable to grant sole custody to the mother, and not to the father or to both parents. This legislation could also not be objected to from a constitutional point of view because the legislature had given both parents of children born out of wedlock the possibility of obtaining custody through a joint declaration.

The Federal Constitutional Court found that the legislator could legitimately assume that joint custody which was exercised against the will of one parent would have more disadvantages than advantages for a child born out of wedlock. Joint custody required a minimum of agreement between the parents. If the parents were unable or unwilling to cooperate, joint custody might run counter to the child's well-being. The legislator assumed that the will to exercise joint custody which parents explicitly expressed upon marriage also showed their will to cooperate. Unmarried parents could express this will to cooperate through a joint custody declaration. The father's right to custody indeed depended on the mother's willingness to exercise joint custody, but the mother in turn could not demand joint custody without the father's consent. The parents could thus only exercise joint custody if they both wanted to. That limitation on the father's right to respect for his family life was not unjustified, given that the joint custody exercised by a married couple was based on their marriage. The applicable law gave unmarried couples the possibility of exercising joint custody, in particular, if they lived together with the child and not after the couple had separated. The legislator could legitimately assume that, if the parents lived together but the mother refused to make a joint custody declaration, the case was an exceptional one in which the mother had serious reasons for the refusal which were based on the child's interest. Given this assumption, the applicable law did not infringe the father's right to respect for his family life by not providing for a judicial review. In the event of such serious reasons it could not be expected that the courts would consider joint custody to be in the child's best interest.

In view of the fact that this legal structure had only recently been established, it had not been possible to ascertain whether there was a substantial number of similar cases where joint custody was in dispute or crucially, to reach conclusions as to why this should be the case.

The Federal Constitutional Court stated that the legislator was obliged to keep developments under observation and to verify whether the assumptions it had made when forming the rules in question were sustainable in the face of reality. If this proved not to be the case, the legislator was obliged to revise the legislation and to provide fathers with the adequate possibility of obtaining custody rights.

The Court reiterates that Article 14 only complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions — and to that extent it is autonomous — there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 71, and Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, § 22).

The Court must therefore determine whether Article 8 of the Convention is applicable in the instant case.

In this context the Court reiterates that the notion of family under this provision is not confined to marriage-based relationships and may encompass other de facto ‘family’ ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that ‘family’ unit from the moment and by the very fact of his birth. Thus there exists between the child and its parents a bond amounting to family life (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, § 44). The existence or non-existence of ‘family life’ within the meaning of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties, in particular the demonstrable interest in and commitment by the father to the child both before and after the birth (see, among other authorities, Lebbink v. the Netherlands, no. 45582/99, § 36, ECHR 2004-IV).

The Court further notes that the mutual enjoyment by a parent and child of each other's company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures which hinder such enjoyment amount to an interference with the right protected by Article 8 (see, among others, Johansen v. Norway, judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, pp. 1001–1002, § 52, and Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII).

The Court observes that in the instant case the applicant's paternity was established from the beginning and that he lived together with the mother and the child until the child reached the age of three and a half. Following the parents' separation in 1998, the child continued to live for more than two years with the applicant. Since 2001, the child has lived with her mother, while the father has enjoyed extensive contact rights and during which time he has provided for the child's daily needs.

It follows that the impugned measures in the instant case, namely the decisions which dismissed the applicant's request for joint custody, the right to exercise joint parental authority as regards, inter alia, his daughter's education, care and the determination of where she should live, amounted to interference with the applicant's right to respect for his family life as guaranteed by paragraph 1 of Article 8 of the Convention.

The Court therefore finds that the facts of the instant case fall within the scope of Article 8 of the Convention and that, accordingly, Article 14 is applicable.

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 other authorities, Hoffmann v. Austria, 23 June 1993, § 31, Series A no. 255-C).

In this connection the Court notes that the applicant in his capacity as the father of a child born out of wedlock complained firstly of different treatment in comparison with the mother, in that he had no opportunity to obtain joint custody without the latter's consent. Secondly, he complained of different treatment in comparison with married or divorced fathers, who are able to retain joint custody following divorce or a separation from the mother.

As to the situation under the applicable law of fathers of children born in wedlock in comparison with that of fathers of children born out of wedlock, the Court observes that the applicable legal provisions contain different standards and give rise to a difference in treatment between the two categories of parents. The former category of parent has a legal right to joint custody from the outset and even following divorce, which can be restricted or suspended by a family court only if necessary in the child's interest. The Court notes that on the other hand parental authority over a child born out of wedlock is attributed to the mother unless both parents consent to make a request for joint authority. While the pertinent provisions do not categorically exclude the possibility that the father may obtain joint custody in future, Articles 1666 and 1672 of the Civil Code provide that the family court may only transfer the right to custody to the father if the child's well-being is threatened by negligence on the mother's part or if one parent makes the relevant application with the consent of the other parent. In the absence of these prerequisites, that is to say if the child's well-being is not jeopardised and if the mother does not consent to a transfer of custody, as has been established in the present case, German law does not provide for judicial examination as to whether the attribution of joint parental authority to both parents would suit the child's best interests.

The Court reiterates that in cases arising from individual applications it is not its task to examine the domestic legislation in the abstract, but it must examine the manner in which that legislation was applied to the applicant in the particular circumstances and whether its application in the present case led to an unjustified difference in the treatment of the applicant (see Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003-VIII).

Turning to the circumstances of the present case, the Court notes that the German courts dismissed the applicant's request for joint custody of his daughter because under Article 1626a of the Civil Code, in the absence of a declaration on joint custody by both parents, the mother held sole custody. The approach taken by the German courts in the present case thus fully reflects the underlying legislation. Consequently, as there was no alternative decision possible under national law, the domestic courts did not examine whether the granting of joint custody would jeopardise the child's welfare in this individual case or whether on the contrary the granting of joint custody would be in the best interests of the child. The crucial point is that joint custody against the will of the mother of a child born out of wedlock is prima facie considered as not being in the child's interest.

Both the Cologne District Court and the Court of Appeal referred to the leading judgment of the Federal Constitutional Court of 29 January 2003, in which the latter court gave detailed reasons regarding the conflict between Article 1626a of the Civil Code and the rights of fathers of children born out of wedlock to have their family life respected. The Federal Constitutional Court found that the child's well-being demanded that it had a person at birth who could act for the child in a legally binding way. In view of the very different life conditions into which those children were born, it was generally justified to grant sole custody to the mother, and not to the father who in any event could obtain custody through a joint custody declaration.

Having regard to the above court decisions and underlying legislation, the Court finds that there is sufficient reason to conclude that there has been a difference in treatment as regards the attribution of custody to the applicant in his capacity as a father of a child born out of wedlock in comparison with the mother and in comparison with married fathers. The Government argued in this connection that the situation of the mother and the father could not be regarded as being totally comparable, since in contrast to motherhood, which was established on the birth of the child, fatherhood could not be established from the outset if the father was not married to the mother. The Court considers that these arguments are of relevance in determining whether the difference in treatment was justified (see Rasmussen v. Denmark, 28 November 1984, § 37, Series A no. 87).

As is well established in the Court's case-law, a difference in treatment is discriminatory for the purposes of Article 14 if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, in particular, Inze v. Austria, 28 October 1987, § 41, Series A no. 126, and Mazurek v. France, no. 34406/97, § 48, ECHR 2000-II).

The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Abdulaziz, Cabales and Balkandali, cited above, pp. 35–36, § 72). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see, among others, Petrovic v. Austria, 27 March 1998, § 38, Reports of Judgments and Decisions 1998-II).

However, the Court has already held that very weighty reasons need to be put forward before a difference in treatment on the ground of sex or birth out of or within wedlock can be regarded as compatible with the Convention (see Karlheinz Schmidt v. Germany, cited above, and § 24; Mazurek v. France, cited above, § 49). The same is 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 (see Sommerfeld v. Germany, cited above, § 93).

The Court notes that the impugned decisions of the domestic courts were based on Article 1626a of the Civil Code, which itself is aimed at protecting the best interests of a child born out of wedlock by determining its legal representative and by avoiding disputes between the parents over questions relating to the exercise of parental custody at the child's expense. The decisions thus pursued a legitimate aim for the purposes of Article 14.

The Court acknowledges that allowing parents of a child born out of wedlock to agree on joint custody constitutes an attempt by the legislator to put them to a certain extent on the same footing as married parents who had obliged themselves on marriage to take responsibility for each other and their children.

The Court further is aware that differences exist in the respective environments into which the children of parents who are not married are born, ranging from relationships where the father's identity is not established or where he does not want to take responsibility for the child to those where the father fully participates in the upbringing of the child and where the child grows up in an environment that is practically indistinguishable from an environment based on an intact parental marriage.

The Court accepts that in view of these different life situations of children born out of wedlock and in the absence of a joint declaration on parental authority, it was justified for the protection of the child's interests to attribute parental authority over the child initially to her mother in order to ensure that there was a person at birth who could act for her in a legally binding way.

The Court further accepts that there may exist valid reasons to deny an unmarried father participation in parental authority, as might be the case if arguments or lack of communication between the parents risk jeopardising the child's welfare. However, nothing establishes that such an attitude is a general feature of the relationship between unmarried fathers and their children.

The Court observes in particular that the above considerations did not apply in the applicant's case. The applicant's paternity was certified from the beginning, he lived together with the mother and the child until the child reached the age of three and a half and for an additional two years following the parents' separation, more than five years in total. After the child had moved to live with her mother, the father still enjoyed extensive contact rights and provided for the child's daily needs. Nevertheless, the applicant was excluded from the outset by force of law from seeking a judicial examination as to whether the attribution of joint parental authority would serve the child's best interests and from having a possible arbitrary objection of the mother to agree to joint custody replaced by a court order.

The Court is not convinced by the argument put forward by the Government and included in the Federal Constitutional Court's reasoning that the legislator could legitimately assume that, if the parents lived together but the mother refused to make a joint custody declaration, the case was an exceptional one in which the mother had serious reasons for the refusal which were based on the child's interest. In this context the Court welcomes the measures undertaken by the Government for the purpose of fulfilling the mandate from the Federal Constitutional Court to keep actual developments under observation and to verify whether the assumptions it had made when forming the rules in question were sustainable in face of reality. However, it observes that these surveys have not yet produced clear results and that in particular as regards the mothers' motives for objecting to joint parental authority they indicate that these are not necessarily based on considerations related to the child's best interests.

Having regard to the above considerations, the Court cannot share the assumption that joint custody against the will of the mother is prima facie not to be in the child's interest.

While having regard to the wide margin of appreciation of the authorities, in particular when deciding on custody-related matters (see Sommerfeld v. Germany, cited above, § 63), the Court also considers the evolving European context in this sphere and the growing number of unmarried parents. The Court reiterates in this connection that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, Marckx v. Belgium, 13 June 1979, § 41, Series A no. 31, and Johnston and Others v. Ireland, 18 December 1986, § 53, Series A no. 112). The Court observes in this context that although there exists no European consensus as to whether fathers of children born out of wedlock have a right to request joint custody even without the consent of the mother, the common point of departure in the majority of Member States appears to be that decisions regarding the attribution of custody are to be based on the child's best interest and that in the event of a conflict between the parents such attribution should be subject to scrutiny by the national courts.

The Court is not persuaded by the Government's argument in this connection that, under the circumstances of the present case, it could not be ruled out that the ordering of joint custody by a court would cause conflicts between the parents and would therefore be contrary to the child's best interests. While it is true that legal proceedings on the attribution of parental authority always bear the potential of unsettling a young child, the Court observes that the domestic law provides for a full judicial review of the attribution of parental authority and resolution of conflicts between separated parents in cases in which the father once held parental authority, either because the parents were married at the time of birth, had married thereafter or had opted for joint parental authority. In such a case the parents retain joint custody unless the court at the request of one parent awards sole custody to the latter in accordance with the child's best interest pursuant to Article 1671 of the Civil Code.

The Court considers that the Government have not submitted sufficient reasons why the present situation should allow for less judicial scrutiny than these cases and why the applicant, who has been acknowledged as a father and has acted in that role, should in this respect be treated differently from a father who had originally held parental authority and later separated from the mother or divorced.

In view of the above considerations, the Court concludes that in respect of the discrimination at issue there was not a reasonable relationship of proportionality between the general exclusion of judicial review of the initial attribution of sole custody to the mother and the aim pursued, namely the protection of the best interests of a child born out of wedlock.

There has accordingly been a violation of Article 14 of the Convention, taken together with Article 8 in the instant case.

Having regard to this conclusion, the Court does not consider it necessary to determine whether there has also been a breach of Article 8 of the Convention taken alone.