CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 13226/87                       by Frank EDWARDS                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 13 October 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 31 July 1987 by Frank Edwards against the Federal Republic of Germany and registered on 16 September 1987 under file No. 13226/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a Dutch citizen, born in 1939 in Aruba/ Netherlands Antilles.           It follows from his statements and the documents submitted by him that he is the father of a boy, Oliver Martin S., who was born out of wedlock on 2 February 1974 in Berlin.           There was apparently no contact between the applicant and his son.   The District Court (Amtsgericht) Neukölln in Berlin informed the applicant by letter of 20 December 1982 that he had no right to visit his son under the applicable Dutch law and even if German law were applicable access could only be granted with the mother's consent. The mother, Mrs.   S., had, however, refused to allow the applicant to visit his son and the Youth Office was likewise of the opinion that contacts with the father could be detrimental to the child's development.   The applicant was asked whether nevertheless he wished to maintain his request for an order granting him access to his son but he apparently did not pursue the matter.   Previously on 6 July 1961 the applicant had accepted to pay maintenance for the child.           By letter of 6 December 1985 the applicant was informed by the Youth Office (Jugendamt) Neukölln in Berlin that the present husband of Mrs.   S had submitted a written request for the adoption of Oliver Martin. The applicant was further informed that in case the adoption was approved he would no longer be obliged to pay maintenance.   It appears that the mother had already prior to this letter refused to accept the applicant's maintenance payments.           In the Youth Office letter of 6 December 1985 reference was also made to Sections 1741 et seq. of the Civil Code (Bürgerliches Gesetzbuch - BGB) governing adoption. (See below "Relevant domestic law".)           In particular the Youth Office stated that in accordance with Section 51 b of the Youth Welfare Act (Jugendwohlfahrtsgesetz - JWG) it had to inform the applicant that under Section 1747 BGB the father had to be heard and should renounce adopting the child himself or having it declared legitimate.   It was added that the applicant could make the corresponding declaration at the Youth Office.           The applicant replied on 26 January 1986 contesting the Youth Office's competence in the matter and stating that he was not "enthusiastic" about their letter and not prepared to accept such treatment.   He added that he would continue paying maintenance for his son.           The applicant then tried to obtain a decision through a Netherlands court granting him a right to visit his son.    By order of 26 November 1986 the Regional Court (Arrondissementsrechtbank, Kinderrechter) of The Hague stated that it was not competent in the matter.           The applicant then wrote to the District Court Neukölln in Berlin which replied on 23 February 1987 that Oliver Martin S. had been adopted in accordance with an adoption order of 28 October 1986. Consequently, there no longer existed any legal relationship between the applicant and the child.           By letter of 23 April 1987 the District Court informed the applicant that according to Section 1758 BGB the adoption order was not to be made known to third persons.   Relevant domestic law           Under Section 1741 (1) BGB the adoption of a child is admissible if it is in the interest of the well-being of the child and if it can be expected that parent-child relations will develop between the person adopting and the child.   Paragraph 3 provides that an illegitimate child can be adopted by his/her father or mother.           As regards the adoption of an illegitimate child Section 1747 para. 2, BGB provides:           (German)                   "Zur Annahme eines nichtehelichen Kindes ist         die Einwilligung der Mutter erforderlich.   Die Annahme eines         nichtehelichen Kindes durch Dritte ist nicht auszusprechen,         wenn der Vater die Ehelicherklärung oder die Annahme des         Kindes beantragt hat; dies gilt nicht, wenn die Mutter ihr         nichteheliches Kind annimmt.   Der Vater des nichtehelichen         Kindes kann darauf verzichten, diesen Antrag zu stellen.         Die Verzichtserklärung bedarf der öffentlichen Beurkundung;         sie ist unwiderruflich."           (English translation)                   "The adoption of an illegitimate child requires         the approval of the mother.   The adoption of an         illegitimate child by third persons shall not be         pronounced if the father has made a request for the         declaration of legitimacy or the adoption of the child;         this shall not apply when the mother adopts her child         born out of wedlock.   The father may renounce submitting         such a request.   His declaration of renunciation has to         be drawn up in an official document; it is irrevocable."           According to Section 51 b JWG the father of an illegitimate child has to be advised by the Youth Office about his rights under Section 1747, para. 2, second and third sentences, BGB when a request is made by a third person for the adoption of the child.   The father has to be informed about his rights before decisive measures are taken in the adoption proceedings.           Section 56 e of the Act on Non-Contentious Jurisdiction (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit - FGG) provides that an adoption order cannot be challenged.   Otherwise an order given by the first instance court in non-contentious proceedings can be challenged by any person whose rights are affected by it (Sections 19, 20 FGG).           Under Sections 1723, 1726 BGB an illegitimate child, who is a minor, can be declared legitimate at his/her father's request and with the mother's approval.   COMPLAINTS           The applicant complains that without his consent his son was adopted by the mother's present husband.   He also complains that he was not informed about the reasons stated in the adoption order and that he had no possibility of challenging this order.   He invokes Articles 6, 8 and 13 of the Convention.     THE LAW           The applicant has complained that his son, who was born out of wedlock and is living with his mother, was adopted without the applicant's consent by the mother's present husband.   The applicant complains that he had no remedy against the adoption order.           It is true that Article 8 para. 1 (Art. 8-1) of the Convention secures to everyone the right to protection of his private and family life.           Even assuming that domestic remedies were exhausted and that the adoption without the applicant's consent constitutes an interference with the right to respect for his private and family life under Article 8 para. 1 (Art. 8-1) of the Convention, the Commission first notes that according to the applicant's own submissions he apparently never lived together with his son and the son's mother and the latter refused his request, made in 1981, to be allowed to visit his son.           The Commission further recalls that the regulation of the German law attributing to the mother of a child born out of wedlock the exclusive right of care and custody is in itself compatible with the Convention (No. 9639/82, Dec. 15.3.84, D.R. 36, 130).           It is a normal consequence of this regulation that the adoption of such a child by a third person is possible with only the consent of the mother.   The father's interests are sufficiently taken care of by the possibility of his making a request for the child's adoption or for an order of legitimacy.   The Commission notes that under Section 51 b of the Youth Welfare Act the father must be informed of these rights in case a third person wishes to adopt the child.   In the present case the applicant was requested by the Youth Office to renounce these rights.   He was thus at least incidentally informed of the existence of these rights but did not avail himself of the possibility they offered to him for establishing close family links with his son.   The applicant limited himself to informing the Youth Office that he did not accept the measures taken and that he was prepared to continue to pay maintenance.           The applicant's illegitimate son who has lived with his mother for nearly fifteen years was adopted in accordance with German law by his mother's present husband.   There is nothing to show that this solution was not in the best interest of the child.   The interference with the applicant's right under Article 8 para. 1 (Art. 8-1) of the Convention was therefore justified under paragraph 2 (Art. 8-2) of this provision.           It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains that he had no possibility of challenging the adoption order and therefore had no effective remedy within the meaning of Article 13 (Art. 13) of the Convention.   Under the case-law of the European Court of Human Rights Article 13 (Art. 13) secures such a right to anyone claiming on arguable grounds to be the victim of a violation of his rights and freedoms as protected in the Convention (case of Plattform "Ärzte für das Leben", judgment of 21.6.1988, Series A no. 139, para. 25).           While a complaint that has been found inadmissible as being manifestly ill-founded may nevertheless be considered arguable (loc. cit., para. 27), the Commission notes in the present case that the applicant did not have any contacts with his son.   He did not pursue or repeat his request made in 1982 to be granted a right to visit his son after he was told by the competent court in December 1982 that the mother was opposed to contacts between him and the child.   Furthermore, the applicant has not shown that, despite the lack of contact, any close relationship had developed between him and his son.   As pointed out above, there is also nothing to show that the adoption of Oliver Martin S. is not in the best interest of the child.   Taking into account all the circumstances of the case, the Commission cannot find that the applicant has an arguable claim of a violation of his right guaranteed by Article 8 (Art. 8) of the Convention.   Consequently Article 13 (Art. 13) does not apply in the present case.   This part of the application therefore has to be rejected as being incompatible with the Convention ratione materiae within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The Commission finds no issue under Article 6 (Art. 6) of the Convention.             For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the European Commission      President of the Commission               (H.C. KRÜGER)                            (C.A. NØRGAARD)