CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 1994

.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. 19741/92                     by H. and B. M.                     against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 6 April 1994, the following members being present:             MM.   A. WEITZEL, President                C.L. ROZAKIS                F. ERMACORA                E. BUSUTTIL                A.S. GÖZÜBÜYÜK           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV             Mrs. M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 21 February 1992 by H. and B. M. against Germany and registered on 23 March 1992 under file No. 19741/92;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:     THE FACTS        The applicants, father and daughter, are German citizens, born in 1940 and 1985 respectively and living in Stuttgart.   The first applicant is representing his daughter and he himself is represented by Mr. C.H. Rumpf, lawyer practising in Mannheim.        The applicants complained that after the divorce of the first applicant the right of care and custody over the second applicant was granted by the competent German tribunals to the mother.        It follows from the applicants' statements and the documents submitted that the first applicant's marriage was dissolved by divorce judgment given on 5 July 1990 by the District Court (Amtsgericht) Waiblingen.   By the same decision the court attributed the right to care and custody over the divorced couple's daughter to her mother.        The court stated in respect of the latter decision that both parents were suited to take care of the upbringing of the child as both loved the child and had a good relationship with her. However, no agreement could be reached between the parties and the court considered that on account of the still existing tensions between them that it was too early for a common exercise of the right to care and custody, although this would have been the best solution and should be the aim of the parents.   For the time being it appeared in the best interests of the child if the mother exercised the right to care and custody alone.   The court stated in this context that the mother appeared more reasonable and cooperative than the father as she had agreed to leave the child provisionally with the father while the father on his side seemed to be opposed to leave the child with the mother although it was the child's wish to have unrestricted contacts with both parents.        The court also stressed that it was convinced that the mother would not try to disturb or hinder the father's right to visit the daughter.        The court pointed out that during the divorce proceedings the Stuttgart Court of Appeal had on 15 January 1990 confirmed a decision to transfer the right of custody provisionally to the mother.        Eventually the court pointed out that its present decision was not irreversible.   If later the child requested to live with her father, such a request would have to be taken into account. Furthermore, it was possible that the parents came to an agreement on a common right of care and custody.   The court advised the parties that the parents should not influence the child in a negative manner, disturbing the child's relationship with both parents.        The applicant's appeal against the care and custody decision of 5 July 1990 was rejected by the Stuttgart Court of Appeal on 7 June 1991.   The Court agreed with the District Court that the mother seemed better suited to guarantee the best development of the child.   It referred to its prior impression of the first applicant who seemed to be over- anxious and had the tendency of caring too much for the child in order to strengthen the ties between her and himself.   The court further stated that even assuming that both parents were equally suited to take care of the child, the principle of continuity required that the child who was now living for more than one year with the mother and saw her father on weekends would not be exposed to a radical change of this situation which would also affect her relationship with her friends in kindergarten and school.        The applicant then lodged a constitutional complaint which was rejected on 21 August 1991 by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) as being partly inadmissible and as offering no prospects of success as to the remainder.        The complaint was considered to be inadmissible insofar as it was lodged also on behalf of the applicant's daughter.   To this extent the applicant was considered not to be authorised to represent his daughter as he did not hold the right to care and custody.        Insofar as the applicant complained about the District Court's decision, the Constitutional Court judges considered that the complaint was unsubstantiated and did not disclose any violations of constitutional rights.        Insofar as the applicant complained of the appellate court's decision, it is stated that this decision was from the point of view of constitutional rights, unobjectionable.   In case of conflict between child and parent the wellbeing of the child had to be given preference and the reasons stated by the Court of Appeal showed that leaving the right of care and custody with the mother was, under the circumstances of the case, the best solution in the interests of the child.        Finally, it is stated in the Constitutional Court's decision that the fact that the applicant was not heard personally by the Court of Appeal, was irrelevant because he had not shown in his submissions to the Constitutional Court that in case of an oral hearing he could have submitted particular arguments which might have influenced the Appellate Court to decide in his favour.   COMPLAINTS        The first applicant alleges a violation of Article 6 of the Convention, alleging that the German courts did not make the necessary extensive enquiries in order to find out which of the parents was best qualified to take care of the second applicant. He also complains that the second applicant was not personally heard by the German courts and that he himself was not heard personally by the Court of Appeal.   Furthermore, he considers that Article 8 is violated.        Furthermore, he complains on behalf of his daughter and likewise alleges violations of Articles 6 and 8 of the Convention.        Finally, he invokes, on his own behalf, Article 2 of Protocol No. 1 and Article 14 in conjunction with Articles 6 and 8 of the Convention.   THE LAW   1.    The applicant has filed the application in his own as well as in his daughter's name although the right of care and custody over the daughter was awarded to the applicant's former wife after the dissolution of their marriage.        The question, therefore, arises whether in these circumstances the applicant is able to lodge his complaints concerning the German courts' decisions on the granting of care and custody also on behalf of his daughter (cf. mutatis mutandis, No. 10812/84, Dec. 11.7.85, D.R. 44 p. 211).   However, the Commission does not regard it as necessary to settle this issue, as the complaints are in any case inadmissible for the following reasons.   2.    The Commission has first examined the applicants' complaints, in respect of the granting of custody, under Article 8 (Art. 8) of the Convention, which reads:        "1.   Everyone has the right to respect for his private and      family life,...        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.... for the protection of health or morals, or for      the protection of the rights and freedoms of others."        The Commission recalls that the family life of the parents with their children does not cease following the divorce of a married couple (cf. No. 7770/77, Dec. 2.5.78, D.R. 14 p. 175).        In the present case, the German courts' decisions to give the custody over the first applicant's daughter to his former wife interfered with both applicants' right to respect for their family life under Article 8 para. 1 (Art. 8-1) of the Convention. It therefore remains to be examined whether this interference was justified under the terms of Article 8 para. 2 (Art. 8-2) of the Convention.        The Commission notes the finding of the Waiblingen District Court and the Stuttgart Court of Appeal that the interest of the second applicant and in particular her future well-being required that her mother should continue to take care of her.   There is nothing to show that this finding is incompatible with the particular circumstances of the present case.   It has also to be noted that the first applicant's right of access was first settled in the divorce and family proceedings and seems to be undisputed.   Furthermore the District Court expressly reserved its position in view of future developments and stressed the possibility, inter alia, of the parents reaching an agreement on the joint exercise of the right to care and custody.   In the light of the first applicant's submissions the Commission finds no indication that the custody decisions so far taken were not based on due consideration of the interests of the child.        The Commission is therefore satisfied that the interference with the right to family life, namely the decision on custody, was justified under Article 8 para. 2 (Art. 8-2) of the Convention as necessary for the protection of the health and future well-being of the second applicant.        It follows that this complaint concerning the German courts' decisions on custody is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicants have also alleged a violation of Article 6 (Art. 6) of the Convention which guarantees a right to a fair hearing.        a)    However, insofar as the first applicant complains that his daughter was not heard by the courts which decided on the issue of which of the parents should be attributed the right to care and custody, he has not exhausted domestic remedies as he did not raise this particular complaint before the Federal Constitutional Court.   To this extent, the application has to be rejected for non-exhaustion of domestic remedies in accordance with Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.        b)    Insofar as the first applicant complains that he himself was not personally heard by the Court of Appeal, it first must be noted that this particular complaint was rejected by the Federal Constitutional Court as being unsubstantiated.   However, even assuming that he has exhausted domestic remedies, Article 6 (Art. 6) of the Convention does not guarantee an absolute right to parties to be heard personally.   It rather depends on the nature of the proceedings in question and the issue at stake whether or not a personal hearing of a party is necessary.   In the present case the first applicant was represented by legal counsel in the domestic proceedings and there is nothing to show that he was in any way prevented from submitting all allegations and arguments which he himself considered to be of relevance. There is consequently no appearance of a violation of Article 6 (Art. 6) of the Convention and to this extent the application has again to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The first applicant has furthermore invoked Article 2 of Protocol No. 1 and Article 14 (P1-2, 14) of the Convention. However, he has not submitted any substantial argument disclosing a possible appearance of a violation of these provisions and to this extent this application again has to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (A. WEITZEL)