CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 8 juillet 2003

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sFEE8C148 { width:13.68pt; display:inline-block } .s84D0D60A { width:8.36pt; display:inline-block } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .s812A4BBF { margin-top:36pt; margin-bottom:30pt; font-size:14pt } .s4EDC3409 { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt } .s6BBACBD8 { margin-top:6pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .sEEE3CE35 { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s160BBE39 { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .s4B773175 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt } .sDCCC0E43 { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt } .s32E480FE { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s8AD34D0 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .sFE6327B5 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt } .sDEA336FF { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s9922FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt } .sD107E55B { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:10pt } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .s97B7A20 { margin-top:12pt; margin-left:20.15pt; margin-bottom:18pt; text-indent:8.8pt; font-size:10pt } .s71BC72F4 { margin-top:18pt; margin-bottom:12pt; text-align:center; font-size:10pt } .s76CF415B { page-break-before:always; clear:both } .sF0B473AD { margin-top:12pt; margin-left:20.15pt; margin-bottom:24pt; text-indent:8.8pt; font-size:10pt } .sB3DB1E9C { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s978A88BB { margin-top:30pt; margin-left:14.2pt; margin-bottom:12pt; text-indent:-14.2pt } .sF66B8D08 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt } .s9019FD2F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt } .s9C230781 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .sA845BF37 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt } .s99668499 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; font-size:10pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sAF0B4C7 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; font-size:10pt } .s527A9694 { margin-top:6pt; margin-left:20.15pt; margin-bottom:18pt; text-indent:8.8pt; font-size:10pt } .s70114485 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .s7A3B44D7 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt } .s81C0B43A { margin-top:30pt; margin-left:17.85pt; margin-bottom:18pt; text-indent:-17.85pt } .sD81DB75D { margin-top:18pt; margin-left:20.15pt; margin-bottom:24pt; text-indent:8.8pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s145CCEB3 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt } .s6E97E8AF { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s5D08A2D6 { margin-top:0pt; margin-left:34.6pt; margin-bottom:0pt } .s8DCCCE3B { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .s2452CEB3 { margin-top:12pt; margin-bottom:36pt; text-indent:14.4pt } .sD85D3081 { margin-top:36pt; margin-bottom:12pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s71833996 { width:42.55pt; display:inline-block } .s7BA35C35 { width:264.49pt; display:inline-block } .sB9B7079 { width:258.15pt; display:inline-block } .s5D40ED98 { width:28.87pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sFDE7661F { margin-top:12pt; margin-bottom:0pt; text-indent:14.4pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s161A4CEF { margin-top:12pt; margin-bottom:0pt; text-align:center; font-size:14pt }                   CASE OF SAHIN v. GERMANY   (Application no. 30943/96)                     JUDGMENT       STRASBOURG   8 July 2003       In the case of Sahin v. Germany, The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges:   Mr   L. Wildhaber , President ,   Mr   C.L. Rozakis ,   Mr   G. Ress ,   Sir   Nicolas Bratza ,   Mr   A. Pastor Ridruejo ,   Mrs   E. Palm ,   Mr   P. Kūris,   Mr   R. Türmen,   Mrs   F. Tulkens,   Mr   P. Lorenzen,   Mr   K. Jungwiert,   Mr   J. Casadevall,   Mrs   H.S. Greve,   Mr   R. Maruste,   Mr   E. Levits,   Mr   M. Ugrekhelidze ,   Mrs   A. Mularoni , and also of Mr P.J. Mahoney , Registrar , Having deliberated in private on 20 November 2002 and 11 June 2003, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 30943/96) against the Federal Republic of Germany lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national of Turkish origin, Mr Asim Sahin (“the applicant”), on 16 June 1993. 2.     The German Government (“the Government”) were represented by their Agents, Mrs H. Voelskow-Thies, Ministerialdirigentin , of the Federal Ministry of Justice, at the initial stage of the proceedings, and subsequently by Mr K. Stoltenberg, Ministerialdirigent , also of the Federal Ministry of Justice. The applicant was, exceptionally, granted leave to represent himself (Rule 36 of the Rules of Court). 3.     The applicant alleged, in particular, that the German court decisions dismissing his request for a right of access to his child, born out of wedlock, amounted to a breach of his right to respect for his family life and that he was a victim of discriminatory treatment in this respect. He relied on Articles   8 and 14 of the Convention. 4.     The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.     The application was allocated to the Fourth Section of the Court (Rule   52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule   26 § 1, and composed of Mr A. Pastor Ridruejo, President, Mr   G.   Ress, Mr L. Caflisch, Mr I. Cabral Barreto, Mr V. Butkevych, Mrs   N.   Vajić, Mr M. Pellonpää, judges, and Mr V. Berger, Section Registrar . On 12 December 2000 the application was declared admissible as regards the applicant's complaints that the German court decisions dismissing his request for a right of access to his daughter, born out of wedlock, amounted to a breach of his right to respect for his family life and that he was a victim of discriminatory treatment in this respect. 6.     On 11 October 2001 the Chamber delivered its judgment in which it held, by five votes to two, that there had been a violation of Article 8 of the Convention. It also held, by five votes to two, that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8 and that the respondent State was to pay the applicant (i) DEM 50,000 (fifty thousand German marks) in respect of non-pecuniary damage and (ii) DEM   8,000 (eight thousand German marks) in respect of costs and expenses. The separate opinion of Mr Pellonpää joined by Mrs Vajić was annexed to the judgment. 7.     On 9 January 2002 the Government requested, in accordance with Article 43 of the Convention and Rule 73, that the case be referred to the Grand Chamber, contending that the Chamber should not have found violations of Article 8 and 14 of the Convention. They maintained that the Chamber had erred in its approach to the margin of appreciation left to the national courts. Referring to Elsholz v. Germany ([GC], no. 25735/94, ECHR 2000-VIII), they further considered that, in the present case, the application of the former German legislation, namely Article 1711 § 2 of the Civil Code, had not led to discrimination between fathers of children born out of wedlock and divorced fathers. 8.     On 27 March 2002 a panel of the Grand Chamber decided to refer the case to the Grand Chamber. 9.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. Mr   J.-P. Costa, who was unable to take part in the final deliberations, was replaced by Mr P. Kūris (Rule 24 § 3). 10.     The applicant and the Government each filed a memorial. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 11.     The applicant, born in 1950, was a Turkish national at the time of the events complained of. He subsequently obtained German nationality. 12.     The applicant is the father of G., born out of wedlock on 29 June 1988. In a document dated 15 June 1988, he acknowledged paternity of the unborn child, and in a further document, dated 15 August 1988, he acknowledged paternity and undertook to pay maintenance. 13.     The applicant met the child's mother, Ms D., in 1985 and in December 1987 he moved into her flat, where they lived together until at least July 1989 or, as stated by the applicant, until February 1990. In any event, the applicant continued to visit the child and her mother until February   1990, and between the end of July and October 1990 he regularly fetched G. for visits. From November 1990 onwards, Ms D. prohibited any contact between the applicant and the child. 14.     On 5 December 1990 the applicant applied to the Wiesbaden District Court for a decision granting him a right of access to his daughter on every Sunday from 10 a.m. until 6 p.m. as well as on Boxing Day and Easter Monday. 15.     On 5 September 1991 the District Court, having regard to the statements made by the parties and the Wiesbaden Youth Office and having considered evidence obtained from several witnesses, dismissed the applicant's request. 16.     The court, referring to Article 1711 of the Civil Code, observed that the mother, as the person having custody, determined the father's right of access to the child and that the guardianship court could only grant the father a right of access if this was in the child's best interests. The court found as follows: “The Court is convinced that the petitioner's wish for [G.] to visit him is motivated by attachment to his child and genuine affection for her. It nonetheless takes the view that personal contact with her father is not in the child's best interests, since her mother dislikes her father so deeply and opposes all contact so fiercely that any visits ordered by the court would take place in a tense, emotionally charged atmosphere which would probably be extremely harmful to the child. The Court can discern no special circumstances which, given the strong differences between the parents, might make personal contact with her father appear beneficial for [G.] ... The relationship which developed between [G.] and her father in the period from her birth to her father's moving out – that is, approximately one year and nine months – is probably not of such fundamental importance that the risk of seriously upsetting the child by resuming contact opposed by her mother is worth taking. The staff who looked after [G.] at the day nursery, and who were questioned as witnesses, stated that she displayed no – or at least no serious and lasting – behavioural abnormalities when she was parted from her father and contact between them ceased, and that she is a balanced, cheerful and outgoing child. The evidence does not therefore confirm her father's claim that she missed him and frequently asked about him after their contact at the day nursery ceased. It has not therefore been shown that the conditions laid down in Article 1711 § 2 have been met, and the Court is accordingly obliged to dismiss the father's request.” 17.     On 12 March 1992 the applicant appealed to the Wiesbaden Regional Court. 18.     On 12 May 1992 the Regional Court ordered a psychological expert opinion on the question whether contact with the applicant was in G.'s interests. On 8 July 1992, following a first conversation with the expert, the applicant challenged her for bias. He also requested that another expert be appointed on the ground that the scientific approach adopted did not reflect the latest state of research. On 9 September 1992 the Regional Court refused the applicant's request, finding that, taking into account the expert's explanations of 8 August 1992, there were no reasons to doubt her impartiality or her capabilities. 19.     On 17 December 1992 the applicant requested the Regional Court to progress with the proceedings. He also applied for a provisional order granting him a right of access to G. during one afternoon every week and prohibiting her mother from obstructing such contact. 20.     On 23 December 1992 the Regional Court dismissed the applicant's request for a provisional order granting access. The Regional Court found that there was no urgency and that the applicant could be expected to await the outcome of the main proceedings. Furthermore, such an order would anticipate the possible terms of a final decision. Should a provisional order be issued and the request be eventually dismissed in the main proceedings, the disadvantages for the child would be more serious than those for the applicant in continuing with the prevailing situation. 21.     In her opinion dated 25 February 1993, the expert noted that she had visited the applicant's family in June 1992 and again heard the applicant, the child's mother and the child on several occasions between November   1992 and February 1993. As regards her meetings with G., the expert explained that in the course of various games she had explored her feelings concerning persons and situations and concerning the applicant. They had also looked at a family photo album and G. had avoided looking at the more recent photographs. This reaction showed that G. had repressed the memories of her father. The expert reached the conclusion that a right of access without prior conversations to overcome the conflicts between the parents was not in the child's interests. 22.     By a letter of 8 March 1993, the Regional Court, noting that the District Court had omitted to hear the child, enquired of the expert whether hearing the child in court on the issue of her relationship with her father would place a psychological strain on her. 23.     In her reply of 13 March 1993, the expert indicated that she had not directly asked the child about her father. She had expected that G. would react spontaneously in the course of the meetings and express her feelings towards him. In the expert's view, the fact that G. had not mentioned her father was certainly relevant. The expert further referred to the last meeting, when they had glanced through a family photo album and she had asked G. about whether she still knew her father. On both occasions, she had appeared to repress her memories concerning him. The risk inherent in questioning her about whether she wished to see her father was that, in this conflict between the parents, the child might have the impression that her statements were decisive. Such a situation could provoke serious feelings of guilt. 24.     At a court hearing on 30 April 1993, the applicant and the child's mother entered into an agreement. Under the terms of this agreement, the applicant declared that he would refrain from instituting any court proceedings, making any enquiries about the mother's personal circumstances and exercising his right of custody obtained under Turkish law on condition that they underwent parental therapy. The proceedings were suspended until the termination of this therapy. 25.     On 1 June 1993 the applicant requested that the proceedings be resumed as the child's mother had not approved the two institutions for family therapy proposed by the applicant and had failed to react to his suggestion that she should make a proposal. 26.     On 25 August 1993 the Wiesbaden Regional Court dismissed the applicant's appeal, finding as follows: “Personal contact with a child born out of wedlock is intended to allow a father to satisfy himself as to the child's welfare and development and preserve the natural ties existing between them. It is not therefore the purpose of granting access, but the legal conditions for doing so, which differ: while a parent who does not have custody of a child born in wedlock is entitled to access under Article 1634 [of the Civil Code], Article 1711 [of the Code] does not grant a right of access to the father of a child born out of wedlock. Rather, the law leaves it up to the person having custody, as a rule the mother, to determine whether, and to what extent, the father should be able to spend time with his child. However, the guardianship court may decide that the father is entitled to access if this is in the child's best interests. The main reason for the weaker legal position of the father of a child born out of wedlock is his different social position. After the Federal Constitutional Court's decisions of 1971 and 1981, the constitutionality of Article 1711 can no longer be seriously doubted. For considerations of legal policy, a reform of the law on children born out of wedlock is even more urgently necessary. In the meantime, the courts are bound by Article 1711. Under that provision, the guardianship court decides to grant a father access to a child born out of wedlock if this is beneficial for the child's welfare. It is not enough for such contact to be consistent with, or not contrary to, the child's interests, it must serve those interests and promote them. This interpretation justifies the assumption that fathers should generally be granted access to their children because this enables the latter to develop as normally as possible and helps them to form a clear image of themselves and their origin. It is in fact important for children not simply to have a fantasy picture of their fathers, but to be able to form a personal, realistic picture. Whether contact with the father is conducive to the child's well-being depends initially on the father's motives for seeking it. The Regional Court is convinced that the father in this case is motivated by attachment to [G.] and genuine affection for her. Even when a father acts from responsible motives, however, the court is not necessarily obliged to grant him access if there are serious tensions between the parents, these are communicated to the child, and there is reason to fear that every meeting with the father will interfere with the child's further undisturbed development in the residual family provided by the mother ... In view of the findings in the [psychological expert] report referred to above, it must be assumed that this would happen in the instant case. If the father were granted access to [G.] in present circumstances, she would have to shuttle between hostile camps, which should not be asked of her. If – as in this case – there is a danger that differences between parents may affect a child, then special circumstances are needed to justify the assumption that contact with the father will nevertheless have permanently beneficial effects on the child's development or well-being ... However, no such circumstances can be discerned here. It is true that, for the first two years of her life, [G.] grew up with both father and mother, but this period was not conflict-free. The disagreements and sometimes open aggression between her parents – in other words, the family violence she witnessed – have certainly left their mark on her, even if she can no longer recall them spontaneously. As the psychological report indicates, she has also repressed her old ties with her father – a fact reflected in the care she takes to avoid talking about him. In view of all this, the report finds that she does not suffer as a result of the present situation. The Court can rely fully on the report, which has no apparent defects and is not invalidated by the fact that the father sees the situation differently. In finding that therapy had not enabled the parents to put their former conflicts behind them, thus making it possible for [G.] to have access to both of them, the Court did not have to decide who was to blame for this ... The decisive factor is always the child's point of view. As already pointed out, however, the situation in this case is such that the parents must first initiate dialogue with each other.” 27.     The Regional Court finally considered that exceptionally it had not been required to hear the child, since questioning her about her relationship with her father would have placed a psychological strain on her. In this connection, the court referred to the expert's supplementary report of 13   March 1993 (see paragraph 23 above). 28.     On 21 September 1993 the applicant filed a constitutional complaint with the Federal Constitutional Court, complaining that the refusal of access to his daughter infringed his parental rights and amounted to discrimination, and alleging that the taking of expert evidence had been unfair. The Federal Constitutional Court acknowledged receipt on 29 September 1993. By a letter of 26 April 1994, the applicant asked the Constitutional Court about the state of the proceedings and urged a speedy decision. On 16   May   1994 the Constitutional Court informed him that in a similar case which had been registered at an earlier date a decision was envisaged for the first half of 1995. On 26 November 1995 the applicant sent a letter to the President of the Federal Constitutional Court complaining that the examination of his constitutional complaint had been postponed until the first half of 1996. In her reply of 15 February 1996 the judge dealing with the applicant's case informed him that, owing to the heavy workload of the Federal Constitutional Court in 1995, it had not been possible to take a decision. A decision was envisaged in 1996. Having regard to the importance of the subject matter, such a decision required careful preparation. 29.     On 1 December 1998 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the applicant's constitutional complaint. II.     RELEVANT DOMESTIC AND INTERNATIONAL LAW A.     Family legislation currently in force 30.     The statutory provisions on custody and access are to be found in the German Civil Code. They have been amended on several occasions and many were repealed following the adoption of new family legislation ( Reform zum Kindschaftsrecht ) on 16 December 1997 (Federal Gazette 1997, p. 2942), which came into force on 1 July 1998. 31.     Article 1626 § 1 reads as follows: “The father and the mother have the right and the duty to exercise parental authority [ elterliche Sorge ] over a minor child. The parental authority includes the custody [ Personensorge ] and the care of property [ Vermögenssorge ] of the child.” 32.     Pursuant to Article 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Article 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child's relationship with the other parent or seriously interfere with the child's upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; they may also order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child's welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child's well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office authority or an association. B.     Family legislation in force at the material time 33.     Before the entry into force of the new family legislation, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows: Article 1634 “1.     A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child's relationship with others or seriously interfere with the child's upbringing. 2.     The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under Article 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child's welfare. 3.     A parent not having custody who has a legitimate interest in obtaining information about the child's personal circumstances may request such information from the person having custody in so far as this is in keeping with the child's interests. The guardianship court shall rule on any dispute over the right to information. 4.     Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis .” Article 1632 § 2 concerned the right to determine third persons' rights of access to the child. 34.     The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows: Article 1705 “Custody over a minor child born out of wedlock is exercised by the child's mother ...” Article 1711 “1.     The person having custody of the child shall determine the father's right of access to the child. Article 1634 § 1, second sentence, applies by analogy. 2.     If it is in the child's interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Article   1634 § 2 applies by analogy. The guardianship court can change its decision at any time. 3.     The right to request information about the child's personal circumstances is set out in Article 1634 § 3. 4.     Where appropriate, the Youth Office shall mediate between the father and the person who exercises the right of custody.” C.     The Non-Contentious Proceedings Act 35.     Like proceedings in other family matters, proceedings under former Article 1711 § 2 of the Civil Code were governed by the Non-Contentious Proceedings Act ( Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit ). 36.     According to section 12 of that Act, the court shall, of its own motion, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate. 37.     In proceedings regarding access, the competent Youth Office has to be heard prior to the decision (section 49(1)(k)). 38.     As regards the hearing of parents in custody proceedings, section   50a(1) stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child's assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard. According to section 50a(2), a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter. D.     The United Nations Convention on the Rights of the Child 39.     The human rights of children and the standards to which all States must aspire in realising these rights for all children are set out in the United Nations Convention on the Rights of the Child. The convention entered into force on 2 September 1990 and has been ratified by 191 countries, including Germany. 40.     The convention spells out the basic human rights that children everywhere – without discrimination – have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. It further protects children's rights by setting standards in health care, education and legal, civil and social services. 41.     States parties to the convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child (Article 3). Moreover, States parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child, and respect the right of a child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests (Article 9). THE LAW I.     PRELIMINARY ISSUE: THE SCOPE OF THE CASE BEFORE THE COURT 42.     The Government, in their supplementary observations on the applicant's memorial, contended that some of the applicant's complaints were inadmissible for non-exhaustion of domestic remedies under Article   35 § 1 of the Convention. As regards the alleged bias on the part of the expert, they submitted that the applicant had failed to lodge a further appeal against the Regional Court's decision rejecting his motion to challenge her for bias. With regard to her alleged lack of expertise, the Government maintained that, in the proceedings before the Federal Constitutional Court, the applicant had not addressed this matter within the statutory time-limit, but only in subsequent submissions. Finally, the applicant's objections against the participation of a blind judge should have been raised in the Regional Court proceedings. 43.     As the Court has already had reason to observe (see K. and T. v. Finland [GC], no. 25702/94, §§ 141 and 147, ECHR 2001-VII; Gustafsson v. Sweden , judgment of 25 April 1996, Reports of Judgments and Decisions 1996-II, pp. 654-55, §§ 47 and 51; and Cruz Varas and Others v. Sweden , judgment of 20 March 1991, Series A no. 201, p. 30, § 76), it is not prevented from taking into account any additional information and fresh arguments in determining the merits of the applicant's complaints under the Convention if it considers them relevant. In particular, there is no bar on the Grand Chamber's taking cognisance of “new” material which takes the form either of further particulars as to the facts underlying the complaints declared admissible by the Chamber or of legal argument relating to those facts (see McMichael v. the United Kingdom , judgment of 24   February   1995, Series A no. 307-B, p. 51, § 73). 44.     The issue, in the present case, of the participation of a blind judge in the proceedings before the Regional Court was first addressed in the applicant's memorial before the Grand Chamber. The Court considers that this complaint goes to a new factual element distinct from those underlying the applicant's complaints under Articles 8 and 14 of the Convention which alone have been declared admissible. It cannot therefore be taken into account in the examination of the merits of the present case. 45.     With regard to the Government's further two arguments, Rule 55 of the Rules of Court provides that any plea of inadmissibility must be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see N.C. v. Italy [GC], no. 24952/94, §   44, ECHR 2002-X). In the present case no plea of inadmissibility based on these arguments was made by the Government in their written or oral observations at the admissibility stage. In this connection, the Court notes that the applicant's criticism of the psychological expert and the information on his unsuccessful motion to challenge her for bias had already been contained in submissions filed in the course of the examination of the admissibility of the present case. There are no particular reasons which would have exempted the Government from raising the preliminary objection at the appropriate moment in the proceedings on admissibility. 46.     Consequently, the remainder of the Government's objection must be dismissed. II.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 47.     As before the Chamber, the applicant maintained that the German courts' decisions dismissing his request for   a right of access to his child, born out of wedlock, amounted to a breach of Article 8 of the Convention, the relevant parts of which provide: “1.     Everyone has the right to respect for his ... 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.” 48.     The Government requested the Court to find no violation of this provision. A.     Whether there was an interference 49.     The parties agreed that the decisions refusing the applicant access to his child amounted to an interference with his right to respect for his family life, as guaranteed by Article 8 § 1. The Court takes the same view. 50.     Any such interference will constitute a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”. B.     Whether the interference was justified 51.     The parties did not question the Chamber's findings that the decisions in issue had a basis in national law, namely, Article 1711 § 2 of the Civil Code as in force at the relevant time, and that they were aimed at protecting the “health or morals” and the “rights and freedoms” of the child, which are legitimate aims within the meaning of paragraph 2 of Article 8. 52.     It therefore remains to be examined whether the refusal of access can be considered “necessary in a democratic society”. 1.     The Chamber's judgment 53.     In its judgment of 11 October 2001, the Chamber held that the competent national courts, when refusing the applicant's request for a right of access, had relied on relevant reasons in finding that, having regard to the strained relations between the parents, contact was not in the child's interests (§§ 43-44). 54.     Turning to the procedural requirements inherent in Article 8, the Chamber considered the material before the German courts, in particular the psychological expert opinion. It found that the failure to hear the child in court had entailed insufficient protection of the applicant's interests in the access proceedings (§§ 45-48). The Chamber concluded that, in these circumstances, the national authorities had overstepped their margin of appreciation, thereby violating the applicant's rights under Article 8 of the Convention (§ 49). 2.     The parties' submissions (a)     The applicant 55.     The applicant contended that, having regard to all the circumstances, the national authorities had transgressed the margin of appreciation, as he had not been sufficiently involved in the decision-making process. 56.     He maintained that the expert had favoured the mother's position. For that reason, he had challenged her for bias prior to the preparation of the opinion and had requested that another expert be appointed on the ground that her scientific approach did not reflect the latest state of research. The applicant insisted that the expert heard in the access proceedings was not a child specialist. Referring to the private opinion of a family researcher, he submitted that the expert opinion showed grave methodological errors, in that data on the interaction between the child and the parents were missing. Moreover, the expert had failed to ask the child directly about her father. 57.     The applicant subscribed to the Chamber's position that correct and complete information on the child's relationship to the applicant as a parent seeking access to the child was an indispensable prerequisite for establishing the child's true wishes. He also shared the Chamber's view that the Regional Court should not have been satisfied with the expert's vague statements about the risks inherent in questioning the child. According to him, it would have been possible to have an informal conversation with the child in her accustomed surroundings in the presence of her mother. (b)     The Government 58.     The Government maintained that the Chamber, in applying the necessity test under Article 8 of the Convention, had exceeded its power of review and had substituted its own evaluation for that of the domestic courts. Although stricter scrutiny was called for as regards restrictions placed by those authorities on parental rights of access, it was nevertheless for them to establish the relevant facts, that is to take and assess the evidence, as they had the benefit of direct contact with all the persons concerned. 59.     In the present case the German courts had not failed to involve the applicant in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests, nor had their assessment of the evidence been arbitrary. 60.     In particular, the courts had not based their decision to refuse access exclusively on the statements made by the child's mother. The District Court had heard the staff in the day nursery attended by the child and, on that basis, the courts had considered that the applicant's wish to see his daughter resulted from his genuine bonds with her and his true love for her. Furthermore, the Regional Court had obtained an expert opinion. The expert had interviewed the applicant and the child's mother. She had also watched the child's conduct while playing in the mother's absence and had looked with her at a family album in order to establish independently the relations between the applicant and his child. 61.     In the Government's view there was nothing to show that direct questioning would have been more appropriate. The expert, considering the child's lack of any reaction to the question whether she still knew the applicant, had reasonably concluded that she had repressed her memories and did not talk about this subject in order to protect herself. Further questions would have disturbed the child. No doubts existed as to the necessary expertise and experience of the appointed expert, who could not have forced the mother to bring her child to an examination in the applicant's presence. 62.     Moreover, the Regional Court had conducted an oral hearing in the presence of the applicant, the child's mother and the expert. The Regional Court had considered the possibility of hearing the then 5-year-old child and had therefore consulted the expert, who had reasonably explained that, in a situation of conflict between the parents, questioning the child in court could provoke serious feelings of guilt. 63.     In the Government's submission the Chamber should not have criticised the expert's statements as “vague” without specifying the questions which had required further clarification or explaining which special arrangements for questioning the child should have been made. 3.     The Court's assessment 64.     In determining whether the refusal of access was “necessary in a democratic society”, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention. Undoubtedly, consideration of what is in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must 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 regarding custody and access issues, 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 Hokkanen v. Finland , judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55, and Kutzner v. Germany , no. 46544/99, §§ 65-66, ECHR 2002-I; see also the Convention on the Rights of the Child – paragraphs 39-41 above). 65.     The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court has recognised that the authorities enjoy a wide margin of appreciation when deciding on custody matters. However, a stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure the effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Elsholz v. Germany [GC], no. 25735/94, § 49, ECHR 2000-VIII, and Kutzner , cited above, § 67). 66.     Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child's health and development (see Elsholz , cited above, § 50; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 71, ECHR 2001-V; Ignaccolo-Zenide v. Romania , no. 31679/96, § 94, ECHR 2000-I; and Nuutinen v. Finland , no. 32842/96, § 128, ECHR 2000-VIII). 67.     In the present case, the competent German courts adduced relevant reasons to justify their decisions refusing access, namely the serious tensions between the parents which were communicated to the child and the risk that visits would affect her and interfere with her undisturbed development in the residual family provided by the mother (see paragraphs   16 and 26 above). At that time, an attempt at family therapy, which had been part of an agreement between the parents, had failed. In those circumstances the decisions can be taken to have been made in the interests of the child (see Buscemi v. Italy , no. 29569/95, § 55, ECHR   1999 ‑ VI). On this point, the Grand Chamber shares the view of the Chamber (see paragraph 43 of the Chamber's judgment). 68.     The Court considers that it cannot satisfactorily assess whether those reasons were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests (see W. v. the United Kingdom , judgment of 8 July 1987, Series A no. 121, pp. 28-29, § 64; Elsholz , cited above, § 52; and T.P. and K.M. v. the United Kingdom , cited above, § 72). 69.     The Chamber concluded that the national authorities had overstepped their margin of appreciation, thereby violating the applicant's rights under Article 8 of the Convention. In its judgment, the Chamber referred to the evidence before the District Court and the Regional Court and continued: “46.     The Court notes that at no stage of the proceedings had the child been heard in court. The Regional Court sought clarification from the expert on whether questioning the child, aged about 5 at the relevant time, at a hearing in court would be a psychological strain for her. The expert explained that she had not directly asked the child about her father. In her view, the risk in hearing the child in court on her relationship with her father and any direct questioning in this respect was that, in this conflict, the child might have the impression that her statements were decisive. The Regional Court, regarding the expert's opinion as reliable, refrained from hearing the child, finding that such questioning would have amounted to a psychological strain. 47.     In the Court's opinion, the German courts' failure to hear the child reveals an insufficient involvement of the applicant in the access proceedings. It is essential that the competent courts give careful consideration to what is in the best interests of the child after having had direct contact with the child. The Regional Court should not have been satisfied with the expert's vague statements about the risks inherent in questioning the child without even contemplating the possibility of making special arrangements in view of the child's young age. 48.     In this context, the Court attaches importance to the fact that the expert indicated that she herself had not asked the child about her father. Correct and complete information on the child's relationship to the applicant as the parent seeking access to the child is an indispensable prerequisite for establishing a child's true wishes and thereby striking a fair balance between the interests at stake. ...” 70.     The Grand Chamber, for its part, observes that whether the decision-making process sufficiently protects a parent's interests depends on the particular circumstances of each case. 71.     In the proceedings before the District Court and the Regional Court, the applicant was placed in a position enabling him to put forward all arguments in favour of obtaining a visiting arrangement and also had access to all relevant information which was relied on by the courts (see, mutatis mutandis , T.P. and K.M. v. the United Kingdom , cited above, §§ 78 ‑ 83; and P., C. and S. v. the United Kingdom , no. 56547/00, §§ 136 ‑ 38, ECHR 2002-VI). 72.     The evidential basis for the District Court's decision included the parents' submissions, the statements of several day nursery staff members on the child's development following the parents' separation and a statement of the Youth Office (see paragraph 15 above). The Regional Court additionally ordered a psychological expert opinion on the question whether contact with the applicant was in the child's interests, but, upon the expert's advice, decided against hearing the child in court (see paragraphs 18, 22-23 above). The expert delivered her opinion after meeting the applicant, the child and the child's mother on several occasions (see paragraph 21 above). 73.     As regards the issue of hearing the child in court, the Court observes tha