CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 juin 2005

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text-indent:-20.15pt } .sCFE0DDA5 { margin-top:12pt; margin-left:35.45pt; margin-bottom:6pt; font-size:10pt } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .s588BDBF1 { margin-top:12pt; margin-left:14.2pt; margin-bottom:12pt } .sBED5F98F { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt } .sB06CCEC3 { margin-top:36pt; margin-bottom:36pt; text-align:left } .s77C0EB13 { width:35.02pt; display:inline-block } .sC82FC970 { width:167.44pt; display:inline-block } .s8EFC8F8 { width:32.36pt; display:inline-block } .s6B737D45 { width:205.46pt; display:inline-block } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } THIRD SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 59008/00 by Reinhold SIEBERT against Germany The European Court of Human Rights (Third Section), sitting on 9 June 2005 as a Chamber composed of:   Mr   B.M. Zupančič , President ,   Mr   J. Hedigan ,   Mr   L. Caflisch ,   Mr   C. Bîrsan ,   Mrs   A. Gyulumyan ,   Ms   R. Jaeger ,   Mr   E. Myjer, and Mr V. Berger , Section Registrar , Having regard to the above application lodged on 20   June 2000, Having deliberated, decides as follows: THE FACTS The applicant, Reinhold Siebert, is a German national, who was born in 1954 and lives in Gütersloh, Germany. He is also acting on behalf of his daughter Anna. He is represented before the Court by Mr G.   Rixe, a lawyer practising in Bielefeld. The respondent Government are represented by Mr K.   Stoltenberg, Ministerialdirigent , and, subsequently, Mrs A.   Wittling-Vogel, Ministerialrätin , of the Federal Ministry of Justice. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Factual background The applicant is married and lives with his wife and two children born in wedlock. He is the father of the child Anna, born out of wedlock on 29   December   1993 in Bielefeld. On 10   February 1994, he acknowledged paternity before the Gütersloh Youth Office. The applicant and the child's mother, Ms   K., who died after giving birth to her daughter, had an extramarital relationship since 1991. The applicant had allegedly planned to divorce his wife and marry the child's mother. Following her premature birth, Anna was kept in hospital in an incubator. She suffered from a cerebral haemorrhage that had occurred during her birth. This resulted in a so-called hydrocephalous, a blockage of flow of the cerebrospinal fluid. Anna was operated upon twice and a shunt tube was placed to drain excess cerebrospinal fluid. The tube needs to be elongated in regular intervals corresponding to Anna's growth and its functioning has to be supervised permanently. Anna stayed in hospital until 11   March 1994, where the applicant visited her every day. She has since then been living with Mr   P and his wife Ms   P., her mother's half-sister. Due to her premature birth and her disease, Anna's development is retarded by seven months and she needs constant medical supervision. 2.     Proceedings regarding guardianship a.     First set of proceedings before the guardianship courts On 3   January 1994, a judicial officer ( Rechtspfleger ) of the Gütersloh District Court, sitting as a court competent in guardianship matters, decided that pursuant to section   1791   c of the Civil Code, the Gütersloh Youth Office ( Jugendamt ) was Anna's guardian ( Vormund ). On the same day, the applicant requested the District Court to discharge the Youth Office as Anna's guardian and to appoint him as guardian. On 5   January 1994, Mr   P., who was then sixty years old, and Ms   P., who was then aged thirty-nine, applied to the District Court to be appointed as Anna's guardians. In its recommendation dated 1   February 1994, the Youth Office, after having heard the applicant, his wife and their two children, as well as Mr and Ms   P. and their son, and after having visited their respective places of residence, supported the request. On 9   March 1994, following a hearing of Ms   P., the applicant and his wife on 1   March, a judicial officer of the District Court discharged the Youth Office as guardian and appointed Mr and Ms   P. The applicant's request for appointment as guardian was dismissed. The judicial officer, having regard to the Youth Office's report, found that Mr and Ms   P. were living in a stable relationship and were experienced in raising children. On the contrary, the applicant's marriage was problematic and unstable. His family lived for at least eight years on social benefits, and the applicant acted in an irresponsible manner in financial matters. The officer considered that, on account of her illness, Anna continued to need intensive care, in particular medical treatment. Due to her limited faculties, the applicant's wife had difficulties in communicating with others. She had already experienced serious problems in raising their two children, that is, their daughter aged 19, and especially their mentally disabled son aged 18. She would not be in a position to ensure this care, especially if the applicant envisaged taking up employment. Moreover, there were doubts that the document filed by the applicant, which allegedly constituted Ms   K.'s last will in respect of child care issues, had been typed by her. According to that document, Ms   K. wanted her children to be raised in the applicant's family, if anything happened to her. On 14   March 1994, the applicant lodged an appeal against this decision with the District Court. The appeal was examined by a judge who decided on 15   March 1994 not to amend the decision of 9   March 1994. The appeal and the files were forwarded to the Bielefeld Regional Court. In these appeal and the following proceedings, the applicant was assisted by counsel. On 24   August 1994 the Regional Court heard the parties, that is, the applicant, Ms and Mr   P. and the representative of the Gütersloh Youth Office, as well as two witnesses. As the applicant had named another witness after this hearing to support his allegation that Ms   K. had been raped several times by Mr   P. when she was a child, the Regional Court heard that witness and Mr   P. in a further hearing on 27   October 1994. On 28   December 1994, the Regional Court dismissed the applicant's appeal. It found that the District Court's decisions to reject the applicant's request for appointment as guardian and to appoint Mr and Ms P. could not be objected to. As to the applicant's motion to be appointed as guardian, the Regional Court found that Anna's late mother had not validly nominated the applicant as their daughter's guardian in accordance with Sections   1776 and 1777 of the Civil Code. The document submitted by the applicant, which allegedly contained Ms   K.'s last will in respect of child care issues, was typed and not hand-written and did not, therefore, constitute a valid last will. Referring to Section   1779 §   2 of the Civil Code, the court considered that the applicant was not suitable for appointment as Anna's guardian. He had been unemployed since 1980, received unemployment and social benefits, and had no precise professional plans for the future. His financial and family situation was not stable. As regards his marital relationship, the court considered the spouses' submissions that they had envisaged to divorce and that they now intended to continue their relationship in order to take care of Anna. Having regard to three different medical expert reports prepared in July and August   1994 on Anna's state of health and latest development, the court noted that Anna presently needed constant medical attendance and would always be in need of special care. Due to her premature birth and her operations, complications could arise at any time in the future, which, if noticed too late, could cause brain damage. The Regional Court found that the applicant's wife would encounter difficulties in ensuring this constant intensive care for her husband's illegitimate daughter. Moreover, the applicant did not exclude that his marriage would irretrievably break down. In that event, he intended to place Anna with third persons, possibly his sister. Given Anna's state of health, such a change in the person taking care of her could endanger her well-being. The applicant still did not seem to realise how fragile his daughter's state of health was. The Regional Court further considered that, even assuming that the applicant was suitable to be appointed as guardian, he would not have priority over other relatives under the relevant statutory provision, Section   1779 §   2 of the Civil Code. There was notably no indication that Anna's mother had wanted her daughter to be raised by the applicant, nor that she would have been opposed to her daughter being raised by a member of her family. In particular, the court, having thorough regard to the evidence before it, including the statement of a witness presented by the applicant, was not convinced that Ms   K. had drafted the document which allegedly constituted her last will. In its view, Mr and Ms   P., on account of their stable personal, family and financial situation, were suitable to act as Anna's guardians. They had been married for more than ten years and had a regular income. Since Anna lived with them, Ms   P. had shown that she was able to give Anna the intensive care she needed and was suitable to ensure her constant medical attendance. Having regard to Mr   and Ms   P.'s statements, the Regional Court was convinced that they would raise Anna like their own child. In this context, the Regional Court noted that there was no indication whatsoever that Mr   P. had raped Anna's mother. Thoroughly reasoning its decision, the court found that the applicant's allegations to that effect were unfounded and that the witness presented by him to prove a sexual abuse of Ms   K. had not told the truth. On 27   February 1995, the applicant lodged a further appeal with the Hamm Court of Appeal, arguing inter alia that when deciding on the question of guardianship, the District Court should have granted priority to him as father of the child. Third persons should only be appointed as guardians if the natural parents posed a threat to the child's well-being. On 26   February 1996 the Hamm Court of Appeal dismissed his appeal regarding his request for appointment as guardian. Insofar as the appointment of both Ms and Mr   P. as guardians was concerned, the court remitted the case to the District Court. The Court of Appeal observed that the Regional Court had erroneously referred to section   1779 of the Civil Code on the appointment of guardians instead of section   1886 on their dismissal from office, Mr and Ms   P. having been appointed in March 1994. Irrespective of this different legal approach, the Court of Appeal, in a detailed reasoning, concluded that there were no objections on points of law to the Regional Court's finding that the applicant was unsuitable as guardian. Due to the applicant's unsuitability, it was irrelevant whether the applicant, if he had been suitable, would have had to be given priority over other relatives as the child's natural father. As to the appointment of both Ms and Mr   P. as guardians, the Court of Appeal found that there were no objections on points of law to the Regional Court's finding that only Mr and Ms   P. were suitable as guardians. However, it observed that pursuant to section   1775 of the Civil Code, only one guardian should be appointed, the appointment of supplementary guardians being an exception. It was for the District Court to make a choice between Mr and Ms   P. As regards the applicant's procedural complaints, the Court of Appeal noted that subject-matters governed by the Act on Non-Contentious Proceedings ( Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit ) were, as a rule, dealt with in non-public hearings and decisions were served in writing. However, it considered that guardianship proceedings, which were a matter governed by this Act, did not fall within the ambit of Article   6 §   1 of the Convention. b.     The resumed proceedings before the guardianship courts On 3   April 1996, a judicial officer of the Gütersloh District Court, after having heard Ms and Mr   P. and the Youth Office, discharged Mr   P., with his consent, as Anna's guardian, finding that it was mainly Ms   P. who cared for the child. On 23   April 1996, the applicant appealed against this decision and again requested to be appointed as guardian for Anna. He further requested that a curator ad litem ( Verfahrenspfleger ) be appointed to represent Anna's interests in the proceedings and applied for legal aid. On 3   June 1996, the Bielefeld Regional Court dismissed the applicant's appeal and refused to grant him legal aid. It found that following the final decision of the Hamm Court of Appeal of 26   February 1996, only Mr and Ms   P. were eligible as Anna's guardian, and a choice was therefore only to be made between them. Ms   P. was best suited to undertake this task, as she was taking care of the child. On 19   August 1996, the applicant lodged a further appeal. He asked for legal aid and requested the Hamm Court of Appeal to stay the execution of the decisions regarding the guardianship of Anna. He complained about irregularities in the proceedings and about their length. On 20   May 1997 the Hamm Court of Appeal dismissed the applicant's appeal. It regarded his complaint about the refusal of legal aid as inadmissible, as no appeal lay against the Regional Court's decision in this respect. It confirmed the Regional Court's decision to appoint Ms   P. as guardian. According to the Court of Appeal, the fact that Ms   P. had applied for adopting Anna did not amount to a conflict of interests which would disqualify her as guardian, as a curator ad litem could be appointed for the adoption proceedings. Moreover, the dispute about the applicant's access to Anna did not call her suitability as guardian into question, notably because there had not yet been a court decision on the applicant's right to access. As regards the conduct of the proceedings, the Court of Appeal found that the Regional Court, given the limited scope of the question before it, had not been required to hear in person the applicant or Mr and Ms   P. The Youth Office had submitted written observations and, in these circumstances, the appointment of a curator ad litem for Anna had not been necessary. As the appeal was unfounded, no legal aid could be granted. A stay of execution of the guardianship decisions was regarded as contrary to the child's interests. c.     Proceedings before the Federal Constitutional Court On 21   March 1996, the applicant lodged a constitutional complaint (no.   1   BvR   757/96) in his own and his daughter's name with the Federal Constitutional Court, which reached that court on 9   April 1996. He alleged that the German courts' decisions of 9   March 1994, 28   December 1994 and 26   February 1996 violated their right to respect for family life protected by Article   6 of the Basic Law ( Grundgesetz ). He argued in particular that the courts, in their interpretation of the relevant provisions on the appointment of a guardian, had failed to observe that as the child's parent, whose position was protected by Article   6 of the Basic Law, he had to be given priority over other relatives. He further maintained that his daughter and he himself were discriminated against vis-à-vis legitimate children and their parents. He also complained that the proceedings before the Regional Court and the Court of Appeal had lasted too long, bearing in mind the special diligence required in family matters. Moreover, the District and Regional Court failed to pronounce their decisions publicly. On 30   June 1997, the applicant lodged a second complaint (no.   1   BvR   1191/97) in his own and his daughter's name with the Federal Constitutional Court, which reached that court on 2   July 1997. He complained about the length and alleged unfairness of the resumed guardianship proceedings leading to the decisions of 3   April 1996, 3   June 1996 and 20   May 1997. He submitted in particular that the courts, in choosing a guardian who refused to grant him access to his daughter and planned to adopt her, infringed his parental rights. He further argued that the fact that a judicial officer decided who should act as a child's guardian violated his right to be given a decision by a competent judge. Due to the conflict between Ms   P.'s interest as guardian and his daughter's interests, the latter should have been represented by a curator ad litem in the proceedings. The refusal of the courts to grant him legal aid violated his right of equal access to court. On 13   December 2000, following further submissions of the applicant, in one of which he asked to render a decision soon, the Constitutional Court, sitting as a panel of three judges, refused to admit both complaints in a joint decision. It found that the question whether the applicant could validly lodge a constitutional complaint in his daughter's name could be left open. In any event, the questions raised by the complaints had been rendered obsolete by the entry into force of the amended Law on Family Matters of 16   December 1997 ( Reform zum Kindschaftsrecht ) on 1   July 1998. The court argued that the applicant had already applied to be granted custody of his daughter pursuant to the amended provisions of the Civil Code, which were to be considered by the competent civil courts. Therefore, the refusal to admit the constitutional complaints did not entail a particularly grave disadvantage for him. The decision was sent to the applicant on 27   December 2000. 3.     Proceedings concerning the applicant's access to his child a.     Proceedings before the District Court On 27   March 1995, the applicant applied for the first time to the competent Rheda-Wiedenbrück District Court for a decision granting him access to his daughter ( Umgangsrecht ) two hours per week and applied for legal aid. He asked that Mr and Ms   P. be obliged to grant him access and that they should pay a fine of 5,000   DEM (approximately 2,556   euros) should they refuse to do so. He submitted that as a father, he had a right to visit Anna regularly and that the relevant local authorities should help negotiate a solution. On 20   April 1995 the Rheda-Wiedenbrück District Court requested the Gütersloh District Court to submit the case file of the guardianship proceedings. On 4   July 1995 the District Court granted the applicant legal aid. On 11   July and 8   August 1995 the District Court again requested the courts dealing with the guardianship proceedings to submit the case file of these proceedings. On 1   August 1995 the District Court held a hearing attended by the applicant, Mr and Ms   P. and an official of the local Youth Office. It decided to suspend the proceedings in order to inspect the files of the guardianship proceedings pending before the Hamm Court of Appeal, and requested that court to submit these files. The District Court received the relevant files on 16   August 1995. On 22   August 1995, these files were, upon the Court of Appeal's request, returned with an indication that, upon termination of the appeal proceedings, they should again be sent to the District Court for further inspection. Following two queries of the District Court, the Court of Appeal informed the District Court on 28   November 1995 that the proceedings were still pending. On 11   December 1995, the District Court, upon the applicant's repeated request to resume the proceedings, informed the parties that, in order to decide on the applicant's right of access, it had to inspect the files concerning the guardianship proceedings, which were still pending before the Hamm Court of Appeal. On 5   January and 5   February 1996 respectively, the applicant again asked to resume the proceedings. On 22   February 1996 the Hamm Court of Appeal informed the new competent District Court judge on her request that a decision would be rendered within the next days. On 22   February 1996, the District Court received the applicant's request to grant him access to his daughter by an interim decision. On 23   February 1996, the District Court dismissed this request, finding that no such decision could be taken without hearing the parties again, the previous hearings having been held before a different judge. On 19   April 1996, following the Hamm Court of Appeal's decision of 26   February 1996 in the guardianship proceedings, the District Court received a copy of this decision submitted by the applicant. It conducted a further hearing on 5   July 1996. On 19   July 1996 the applicant was granted access to the case files, which he returned on 12   August 1996. On 29   August 1996 the District Court ordered that an expert opinion on the question of access be prepared. On 24   September 1996 the District Court, after having heard the parties, appointed a different expert, as the expert originally appointed no longer worked as a court expert. Even though the District Court had twice granted the applicant, at his request, an extension of the time-limit to comment on the expert report sent to him on 27   November 1996, the applicant did not submit any comments until 14   April 1997, when the competent judge fixed the date for the next hearing. On 28   May 1997, following a hearing on 16   May 1997 in the presence of the applicant, Ms   P., a representative of the Youth Office and a psychological expert, the District Court dismissed the applicant's request for access to his daughter. The court noted that pursuant to section   1711 §   2 of the Civil Code, the father of an illegitimate child could be granted access only if this was in the interests of the child's well-being. In contrast, pursuant to section   1634 of the Civil Code a parent of a child born in wedlock who did not have custody had, as a rule, a right of access, which could only exceptionally be excluded if this was necessary in the child's best interests. The court expressed doubts as to whether this difference in treatment was reconcilable with the parents' and children's constitutional right to respect for their family life. However, even interpreting section   1711 §   2 of the Civil Code as granting the natural father a right of access to his child if this did not entail a risk to the child's well-being, the applicant could not be granted access to Anna. Having regard to the parties' and the expert's submissions, the District Court found that access would have a detrimental effect on Anna's well-being. The District Court agreed with the expert's finding that, in principle, a natural father should have access to his children. However, in the special circumstances of the case, granting the applicant access to Anna would be contrary to her best interests. Anna's fragile state of health and psychological condition did not permit for visits in Ms   P.'s absence. According to the expert report, separating Anna from Ms   P. even for a short time would lead to heavy emotional reactions on the part of the child. Even the slightest change in her daily routine could be very harmful to her health and state of mind. However, given the extreme enmity between the applicant and Ms   P., contacts could not take place in the presence of both of them without prior psychological counselling. The court took into account that the applicant had repeated his allegations that Mr   P. had raped Anna's mother and was not willing to refrain from repeating these allegations. Under these circumstances, Ms   P. could not reasonably be expected to participate in such a preparation of contacts, which could not be enforced without the willingness of both her and the applicant to cooperate. Whereas in principle, contacts at a neutral place could be organised with expert assistance in a way so as to exclude any detriment to a child's well-being, children like Anna would still sense the tensions between the adults and get involved in their conflicts. At the present stage, contacts were therefore contrary to Anna's best interests. The court considered that once the child's development permitted for contacts with persons outside her primary surroundings, its decision to deny access could be reviewed. b.     Proceedings before the Regional Court On 4   August 1997, the applicant appealed against this decision. He argued that the refusal to grant him access to his child infringed his parental rights as guaranteed by the Civil Code and the Basic Law. He complained of irregularities in the proceedings before the District Court, in particular that his daughter Anna had not been heard and had not been appointed a curator ad litem . He also alleged that the representative of the Youth Office heard in court was biased as she had also been involved in the parallel adoption proceedings initiated by Mr and Ms   P. Finally, the applicant complained about the excessive length of the proceedings. He requested legal aid. On 26   August 1997 the Rheda-Wiedenbrück District Court decided not to amend its decision of 28   May 1997 and forwarded the case-files to the Bielefeld Regional Court. Following the Regional Court's request on 2   September 1997, the applicant submitted a copy of his submissions reasoning the appeal on 16   October 1997. On 22   January 1998, following the applicant's reminder, the Bielefeld Regional Court, without holding a hearing, dismissed the applicant's appeal and confirmed the decision of the District Court. The Regional Court found that the question of whether section   1711 §   2 of the Civil Code was unconstitutional could be left open. In cases in which the child's best interests warranted a restriction of contacts between father and child, access had to be limited or excluded, irrespective of whether the father of a legitimate or illegitimate child was concerned. The Regional Court found that the interests of a child's well-being required that access be prohibited if it posed a serious risk to the child's health. Contacts between the applicant and his daughter posed such a threat to Anna's health. Having regard to the expert opinion, it considered that Anna's development was retarded on account of her premature birth and of her hydrocephalous, which necessitated her attentive supervision and constant medical treatment. As long as the parties refused to reconcile, any visits would be an intrusion into Anna's everyday life, which would endanger her very fragile state of health and mind and could even lead to a collapse. The applicant had not made any effort to overcome these tensions, and his intention to enforce access against Ms   P.'s will showed his lack of understanding for Anna's needs. Moreover, the Regional Court dismissed the applicant's procedural complaints. As regards the applicant's allegation that the representative of the Youth Office was biased, it noted that the District Court had consulted the Youth Office, but it was not possible to challenge its representatives in court for bias. It also found that there had been no need to hear Anna, since neither her preferences, nor a personal impression of her had been necessary in reaching a decision after having obtained the expert's report stating that contacts would be detrimental to her health. A hearing would only have had unnecessary negative effects on the well-being of Anna, who had just reached the age of four. The Regional Court added that there were no exceptional circumstances which necessitated appointing a curator ad litem for the child. Moreover, having regard to the expert's findings on the tensions between the parties, the District Court had not unduly omitted to attempt to secure an agreement between the parties. Finally, the Regional Court dismissed the applicant's appeal in so far as he complained about the length of the proceedings before the District Court. It found that by an appeal, he could only challenge a decision as such and could not generally raise the question whether a court's conduct violated individual rights under the Basic Law. c.     Proceedings before the Federal Constitutional Court On 27   February 1998, the applicant lodged a constitutional complaint (no.   1   BvR   457/98) both in his and his daughter's name with the Federal Constitutional Court, which reached that court on 4   March 1998. He also applied for an interim injunction obliging Ms   P. to grant him access to his daughter. He claimed in particular that the refusal to grant him access violated his parental rights as guaranteed by the Basic Law. Furthermore, he complained about the length of the proceedings notably before the District Court. He also asked the Federal Constitutional Court to determine whether the Regional Court's dismissal of his complaint about the length of proceedings amounted to a violation of his right to an effective remedy. He requested his complaint to be given priority treatment. On 13   December 2000, following further submissions of the applicant, the Federal Constitutional Court, without giving further reasons, refused to admit the complaints. The decision was served on the applicant on 28   December 2000. d.     Subsequent developments On 29   March 2001, the applicant again requested the Rheda-Wiedenbrück District Court to be granted access to Anna. He suggested that access be granted for four hours every two weeks, and that during a transitory period, contacts between him and Anna should take place in the presence of a third person. He referred to a report of the local youth office on Anna's current condition. According to that report, Anna was by then attending elementary school and had become an integrated member of her class. She no longer had to deal with major impediments arising from the damage to her health suffered at birth, but still needed to have regular medical check-ups in hospital. Following a hearing of the parties on 17   September 2001, the Rheda-Wiedenbrück District Court ordered that a psychological expert opinion be prepared on the question of whether granting the applicant access to his daughter would pose grave threats to the child's health and further development. In the course of the preparation of the expert opinion, the applicant met his daughter for approximately one and a half hours in January   2002. On 27   September 2002 the Rheda-Wiedenbrück District Court, after having heard the parties, the child, her curator ad litem , a representative of the Youth Office and a psychological expert, decided that the applicant had the right to meet his daughter for one hour per month in the presence of a social worker. It found that pursuant to Section   1684 of the Civil Code, the applicant was entitled to access to his daughter despite the persistent enmity between him and Ms   P. Agreeing with the expert, it considered that limited contacts between the applicant and his daughter were also in Anna's best interest. 4.     Further parallel proceedings a.     Adoption proceedings On 7   March 1995 Mr and Ms   P. initiated adoption proceedings in the Rheda-Wiedenbrück District Court. On 5   February 1996, the proceedings were suspended in view of the pending legitimisation proceedings. On 1   March 1999 the Rheda-Wiedenbrück District Court again suspended the proceedings awaiting a decision in the then pending custody proceedings. b.     Legitimisation proceedings On 22   January 1996, the applicant filed a request for Anna's legitimisation ( Ehelicherklärung ) with the Gütersloh District Court. On 22   December 1998, the District Court decided to discontinue the proceedings in view of the entry into force of the amended Law on Family Matters of 16   December 1997 ( Reform zum Kindschaftsrecht ) on 1   July   1998. c.     Custody proceedings On 25   January 1999, the applicant lodged a request with the Rheda-Wiedenbrück District Court to be granted custody of Anna pursuant to section   1680 §   2 of the Civil Code as amended by the Law on Family Matters of 16   December 1997. He applied for legal aid. On 14   April 1999, the District Court refused to grant him legal aid. The applicant appealed against this decision on 4   May 1999. At a court hearing held on 6   July 2001, the applicant submitted that he should be granted custody, but that Anna should continue to live with Mr and Ms   P. The District Court decided that Anna should be heard in court. On 25   September 2001, the District Court held a further hearing. It ordered that, prior to hearing Anna in court, a psychological report should be prepared as to whether it posed a threat to her well-being to grant the right of custody and the right of care to different persons. On 15   March 2005 the Rheda-Wiedenbrück District Court, after having heard Anna and a psychological expert, dismissed the applicant's motion to have custody of his daughter. It found that the applicant, who had, during the past two and a half years, not exercised his right to visit Anna once per month, purportedly for health reasons, did not have a sufficiently stable relationship with his daughter. It therefore would be contrary to the best interests of Anna, who felt threatened by the applicant, to grant custody to the latter. The applicant appealed against this decision. B.     Relevant domestic law The statutory provisions on guardianship, custody and access are to be found in the Civil Code. They have been amended on several occasions and many were repealed by the amended Law on Family Matters ( Reform zum Kindschaftsrecht ) of 16   December 1997, which entered into force on 1   July   1998. 1.     Guardianship of minors The guardianship of minors is governed by sections   1773 to 1895 of the Civil Code. The above-mentioned reform amended section   1779 §   2 (see   below). Section   1773 provides that a guardian shall be appointed if a minor is not under parental custody or if the parents are prohibited from representing the minor in personal matters or matters pertaining to property. Pursuant to section   1775, the guardianship court shall as a rule appoint only one guardian for a child. Sections   1776 to 1778 concern the nomination of a guardian by parents having custody of the child; the nomination is effected by way of a testamentary disposition (section   1777 §   3). Section   1779 §   1 provides that, if no person nominated by the parents is appointed, the guardianship court chooses a guardian after having consulted the local Youth Office. Section   1779 §   2 stipulates criteria for this choice. The court shall choose a person who, considering the person's personal and financial situation and all other circumstances, appears suitable as guardian. Relatives and relatives by marriage were to be given priority; in case of a child born out of wedlock, the court had a discretion in deciding whether the natural father, his relatives and their spouses should be considered. Section   1779 §   2, second sentence, as amended in 1998, provides that in choosing between several suitable persons, the parents' likely will, the ward's personal relations, the kinship with the child as well as the ward's faith have to be taken into account. The distinction between legitimate and illegitimate children was abolished. The ward's relatives shall be heard before appointing a guardian unless this would cause excessive delays or costs (section   1779 §   3). Pursuant to section 1791   c §   1, the Youth Office is appointed guardian of a child born out of wedlock if there is a need for a guardian to exercise custody and care of property of the child. Sections   1882 to 1895 stipulate the conditions for a termination of guardianship. The court shall discharge a guardian if the guardian acted in a manner contrary to the ward's interests, in particular if the guardian acted in breach of his duties (section   1886). It shall discharge the Youth Office as guardian and appoint a suitable person as guardian after having consulted the Youth Office if such a person is available and if this is in the ward's interest (section   1887). 2.     Custody and access a.     Legislation in force at the material time Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody of and access to a child born in wedlock was worded as follows: Section   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 section 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 .” Pursuant to section   1681 §   1 of the Civil Code in its version then in force, in cases in which the mother had sole custody at the time of her death, custody had to be transferred to the father, if this was not contrary to the child's best interests. The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows: Section   1705 “Custody over a minor child born out of wedlock is exercised by the child's mother...” Section   1711 “1. The person having custody of the child shall determine the father's right of access to the child. Section   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. Section   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 Section   1634 §   3. 4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.” b.     Legislation on family matters currently in force Section   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.” Pursuant to section   1626   a, as amended by the Law on Family Matters, 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. Otherwise, the child's mother has sole custody. If the mother of an illegitimate child had sole custody pursuant to section   1626   a and dies, custody shall be transferred to the child's father, if this is in the child's best interests (section   1680 §   2). According to section   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; and they may 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 otherwise the child's well-being would be endangered. The family courts may order that the right of access is exercised in the presence of a third party, such as a Youth Office authority or an association. 3.     The Act on Non-Contentious Proceedings Proceedings in family matters are governed by the Act on Non-Contentious Proceedings ( Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit ). Pursuant to section   50 of that Act, as amended by the Law on Family Matters, the court appoints a curator ad litem to represent the minor child in the proceedings if this is necessary in order to protect the child's interests. COMPLAINTS The applicant lodged his complaints in respect of the guardianship proceedings and the first set of access proceedings both in his own name and on behalf of his daughter Anna. He invoked Articles   6, 8, 13 and 14 of the Convention. As regards the guardianship proceedings, the applicant complained that the refusal to appoint him as his daughter's guardian and the appointment of Ms   P. as guardian violated their right to respect for family life. When determining the question of whom to appoint as guardian, the national law and the courts should have granted him priority vis-à-vis third persons as the child's natural father. Furthermore, the courts had failed duly to establish the relevant facts, inter alia as to his suitability as guardian. He submitted that the fact that Anna had been placed with Ms   P. without awaiting a final decision on the question of guardianship had created an irreversible situation. The Court of Appeal had not drawn the appropriate conclusions as to Ms   P.'s conflict of interest on account of her adoption request and the refusal of access. He considered that a curator ad litem should have been appointed to represent Anna in these proceedings. He alleged further irregularities such as the involvement of a judicial officer in the proceedings before the District Court and, in the context of the resumed proceedings, the refusal of legal aid. As regards the conduct of the access proceedings, the applicant claimed that the refusal of the courts to grant him any access to his daughter was disproportionate and violated their right to respect for family life. The courts had notably failed to take the necessary steps to achieve an agreement between the parties. The courts should have appointed a curator ad litem and they should have heard Anna in person. Furthermore, in the appeal proceedings, the parties had not been heard in person and he had unduly been refused legal aid. Moreover, according to him, the Federal Constitutional Court's decision of 13   December 2000 concerning his complaints about the refusal of access lacked a sufficient reasoning. With respect to both the guardianship and the access proceedings, the applicant complained about discrimination against him and Anna in their respective situation as natural father and child born out of wedlock, when compared to children born in wedlock and their fathers and also when compared to mothers of children born out of wedlock. He further complained that the decisions taken by the competent civil courts had not been pronounced in public. He submitted that, while these proceedings had been pending, he had not had an effective remedy in respect of the alleged breach of his right to a hearing within a reasonable time. He finally claimed that the length of the guardianship proceedings and the access proceedings had been excessive. THE LAW A.     The Government's objections 1.     Incompatibility ratione personae The Government contended that, in so far as the applicant complained in his daughter's name, the application was incompatible ratione personae with the Convention. The applicant did not have a right to conduct proceedings in his daughter's name. As he had never been his daughter's guardian or granted the right to custody of her, he was not authorised to represent