The European Court of Human Rights has today notified in writing judgment in the case of Elsholz v.Germany. The Court Rights held by thirteen votes to four that there had been a violation of Article 8 of the European Convention on Human Rights (right to respect for family life), unanimously that there had been no violation of Article 14 taken in conjunction with Article 8 of the Convention (freedom from discrimination in respect of the right to respect for family life) and by thirteen votes to four that there had been a violation of Article 6 § 1 (right to a fair hearing) of the Convention. Under Article 41 (just satisfaction) of Convention, the Court awarded the applicant 35,000 German marks (DEM) for non-pecuniary damage and DEM 12,584.26 for legal costs and expenses.

The applicant, Egbert Elsholz, a German national born in 1947, lives in Hamburg (Germany). He is the father of the child C., born out of wedlock on 13 December 1986.

Since November 1985 the applicant lived with the child’s mother and her elder son. In June 1988 the mother, together with the two children, moved out of the flat. The applicant continued to see his son frequently until July 1991. On several occasions, he also spent his holidays with the two children and their mother. Subsequently, no more visits took place. When questioned by an official of the Erkrath Youth Office (Jugendamt) at his home in December 1991, C. stated that he did not wish to have further contacts with his father.

In December 1992 the Mettmann District Court (Amtsgericht) dismissed the applicant's request to be granted a right of access (Umgangsregelung). The District Court considered that contacts with the father would not enhance the child's well-being.

The applicant's renewed request to be granted access was dismissed by the Mettmann District Court in December 1993. The Court referred to its prior decision of December 1992 and found that the conditions under Article 1711 § 2 of the Civil Code (Bürgerliches Gesetzbuch) concerning the father’s right to personal contact with his child born out of wedlock were not met. It noted that the applicant's relationship with the child's mother was so strained that the enforcement of access rights could not be envisaged. If the child were to be with the applicant against his mother's will, this would put him into a loyalty conflict which he could not cope with and which would affect his well-being. The Court added that it was irrelevant which parent was responsible for the tensions. After two long interviews with the child, the District Court reached the conclusion that his development would be endangered if the child had to take up contacts with his father contrary to his mother’s will. The District Court furthermore considered that the facts of the case had been established clearly and exhaustively for the purposes of Article 1711 of the Civil Code. It therefore found it unnecessary to obtain an expert opinion.

On 21 January 1994 the Wuppertal Regional Court (Landgericht), without a hearing, dismissed the applicant's appeal. The Regional Court found, in line with the decision appealed against, that the tensions between the parents had negative effects on the child, as was confirmed by the hearings with the child held in November 1992 and December 1993, and that contacts with his father were not therefore in the child's best interest, even less so because these contacts had in fact been interrupted for about two and a half years. It was irrelevant who was responsible for the break-up of life in common. What mattered was that in the present situation contacts with the father would negatively affect the child. This conclusion, in the Regional Court’s view, was obvious, which was why there was no necessity of obtaining an opinion from an expert in psychology. The Regional Court finally observed that there was no necessity to hear the parents and the child again since there was no indication that any findings more favourable for the applicant could result from such a hearing.

In April 1994 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde).

The application was lodged with the European Commission of Human Rights on 31 October 1994. Having declared the application partly admissible, the Commission adopted a report on 1 March 1999 in which it expressed the opinion that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8 (fifteen votes to twelve), that no separate issue arose as regarded Article 8 taken alone (fifteen votes to twelve), and that there had been a violation of Article 6 § 1 (seventeen votes to ten). It referred the case to the Court on 7 June 1999. The applicant had brought the case before the Court on 25 May 1999.

Judgment was given by the Grand Chamber of 17 judges, composed as follows:

Luzius Wildhaber (Swiss), President,
Elisabeth Palm (Swedish),
Jean-Paul Costa (French),
Luigi Ferrari Bravo (Italian),
Lucius Caflisch (Swiss),
Willi Fuhrmann (Austrian),
Karel Jungwiert (Czech),
Josep Casadevall (Andorran),
Boštjan Zupancic (Slovenian),
John Hedigan (Irish),
Wilhelmina Thomassen (Dutch),
Margarita Tsatsa-Nikolovska (FYROMacedonia),
Tudor Pantîru (Moldovan),
András Baka (Hungarian),
Egils Levits (Latvian),
Kristaq Traja (Albanian),
Rait Maruste (Estonian), judges

and also Maud de Boer-Buquicchio, Deputy Registrar.

The applicant complained that the German court decisions dismissing his request for access to his son, a child born out of wedlock, amounted to a breach of Article 8, that he had been a victim of discriminatory treatment in breach of Article 14 read in conjunction with Article 8 and that his right to a fair hearing guaranteed under Article 6 § 1 had been breached.

The Court recalled that the notion of family under this provision was 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 existed between the child and his parents a bond amounting to family life. The Court further recalled that 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 domestic measures hindering such enjoyment amounted to an interference with the right protected by Article 8.

The Court considered that the decisions refusing the applicant access to his son interfered with the applicant’s exercise of his right to respect for his family life as guaranteed by paragraph 1 of Article 8. Such interference constituted a violation of Article 8 unless it was "in accordance with the law", pursued an aim or aims that were legitimate under paragraph 2 of this provision and could be regarded as "necessary in a democratic society".

In the Court’s view the court decisions of which the applicant complained had a basis in national law, namely, Article 1711 § 2 of the Civil Code as in force at the relevant time, and were clearly aimed at protecting the "health or morals" and the "rights and freedoms" of the child. Accordingly they were in accordance with the law and pursued legitimate aims within the meaning of paragraph 2 of Article 8.

In determining whether the impugned measure was "necessary in a democratic society", the Court considered whether, having regard to the particular 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 provide him with the requisite protection of his interests. The combination of the refusal to order an independent psychological report and the absence of a hearing before the Regional Court revealed, in the Court’s opinion, an insufficient involvement of the applicant in the decision-making process. The Court thus concluded that the national authorities overstepped their margin of appreciation, thereby violating the applicant's rights under Article 8.

The Court did not find it necessary to consider whether the former German legislation as such, namely, Article 1711 § 2 of the Civil Code, made an unjustifiable distinction between fathers of children born out of wedlock and divorced fathers, such as to be discriminatory within the meaning of Article 14, since the application of this provision in the present case did not appear to have led to a different approach than would have ensued in the case of a divorced couple.

The Court noted that the German court decisions were clearly based on the danger to the child’s development if he had to take up contact with the applicant contrary to the will of the mother. The risk to the child’s welfare was thus the paramount consideration. Consequently, it could not be said on the facts of the present case that a divorced father would have been treated more favourably. There had accordingly been no violation of Article 14 in conjunction with Article 8.

The Court, having regard to its findings with respect to Article 8, considered that in the present case, because of the lack of psychological expert evidence and the circumstance that the Regional Court did not conduct a further hearing, the proceedings, taken as a whole, did not satisfy the requirements of a fair and public hearing within the meaning of Article 6 § 1. There had thus been a breach of this provision.

The Court found it impossible to assert that the relevant decisions would have been different if the violation of the Convention had not occurred. However, it could not, in the Court’s opinion, be excluded that if the applicant had been more involved in the decision-making process, he might have obtained some degree of satisfaction and this could have changed his future relationship with the child. In addition, the applicant certainly suffered non-pecuniary damage through anxiety and distress. The Court thus concluded that the applicant suffered some non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention and awarded him DEM 35,000.

The Court further awarded the applicant DEM 12,584.26 for costs and expenses

Judge Baka joined by Judges Palm, Hedigan and Levits expressed a partly dissenting opinion and this is annexed to the judgment.

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The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).