CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 17 mai 2011

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Zupančič,   Isabelle Berro-Lefèvre,   Ann Power,   Ganna Yudkivska,   Angelika Nußberger, judges, and Claudia Westerdiek, Section Rgistrar, Having regard to the above application lodged on 9 February 2010, Having deliberated, decides as follows: THE FACTS The applicant, Mr Jürgen Heidemann, is a German national who was born in 1958 and lives in Bedburg. He was represented before the Court by Ms S. Beyer, a lawyer practising in Cologne. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is the father of a son born on 31 August 1997. Following the parents’ separation in 2004, the child lived with his mother. The parents divorced in 2006, both parents jointly exercised parental authority. On 9 May 2005 the Kerpen District Court ( Amtsgericht ) appointed the Kerpen Youth Office as curator ( Ergänzungspfleger ) with the task to organise contacts between the applicant and the child. On an unspecified date the applicant, represented by counsel, instituted contact proceedings with the Kerpen District Court. On 25 May 2007 the District Court commissioned a psychological expert to examine whether contacts between father and son were contrary to the child’s best interests and in which way contacts could be prepared and established. On 28 May 2008 the expert, having examined both parents and the child, submitted his expert opinion. He considered that the child had been traumatised by the “pathogenic, tense and hostile ( lebensfeindliche )” atmosphere which prevailed within the family prior to his parents’ separation. As a consequence of this, he was deeply disturbed on an emotional level and with regard to his ability to bond. Even before his parents’ separation, he had not been able to build an enduring relationship with his father. Following the parents’ separation, and supported by psychotherapeutic measures, he was able to emotionally stabilise. He felt safe with his mother. It was subjectively impossible for him to entertain contacts with his father, as he unconsciously made a connection between his father and the extremely unfavourable circumstances of his early childhood. As a result, he felt massively threatened by his father and refused any contact with him. The expert further noted that the child’s personality development remained endangered. He considered that any contacts and any form of preparation of contacts between the child and his father would jeopardise his positive development because of the imminent danger of re-traumatisation. It was necessary to grant the child a period of respite of at least three years in order to allow him to further stabilise and to pursue his positive development. On 16 and 25 July 2008 the applicant submitted his comments. He alleged, in particular, that the child’s mother systematically prevented contacts between father and child. He further submitted that the expert had based his recommendation on false and incomplete facts. During a hearing which took place on 2 September 2008 the child’s curator ad litem stated that the child’s rejection of his father was so extreme that he did not know how to mitigate it. He considered that forced contacts between father and son could jeopardise the child’s well-being. The applicant’s counsel requested the District Court to hear further expert opinion. On 18 November 2008 the expert stated that the tape recordings he had made of his examination interview were not comprehensible enough to allow for a transcript. However, the applicant’s factual objections, even assuming they were correct, were irrelevant for the outcome of the expert examination. Furthermore, there was no indication that the child had been influenced by his mother or that he was suffering from the so-called “parental alienation syndrome”. The expert considered that it was presently impossible to establish contacts between father and son. It was essential to grant the child a time of respite in order to allow him to continue his positive development; this included his protection from further expert examination. On 2 December 2008 the District Court rejected the applicant’s request for personal contact and merely allowed the applicant to contact his son in written form and by telephone on specific holidays; it further obliged the mother to inform the applicant on his son’s development and to encourage him to get in touch with his father. The District Court noted that contacts between father and son had been increasingly problematic and no immediate contacts had taken place for a longer period of time. While section 1684 of the Civil Code (see relevant domestic law, below) granted the parent a right of contact to his child, such contacts primarily had to serve the child’s best interests and well-being. In this respect, the court noted that the expert had insistently and convincingly advised against forced personal contacts between father and son. This assessment was in line with an expert opinion submitted by another psychological expert in the preliminary proceedings. The expert’s recommendation was further supported by the child’s curator ad litem and the Youth Office and was in line with the impression the court had gained through hearing the child in person. According to all these sources, the child vehemently refused any contact to his father, felt massively threatened by such contacts and reacted to the mere mentioning of such contacts by showing clear signs of psychological disturbance. It followed that any personal contacts between father and son would be seriously opposed to the child’s best interests. The District Court further considered that the applicant’s objections against the expert opinion were irrelevant with respect to the question at issue. It was not the court’s task to examine the deeper reasons for the child’s refusal of contact unless those were based on the other parent’s conduct. In his expert opinion, the expert had examined the reasons for the child’s refusal and had stated that the mother was not responsible for the child’s attitude. A further examination would be out of proportion as it was not necessary to decide the legal questions raised by the case. On 25 March 2009 the Cologne Court of Appeal ( Oberlandesgericht ) rejected the applicant’s appeal and suspended the applicant’s right to personal contacts to his son until the end of the year 2011. Applying Section 1684 § 4 (1) of the Civil Code and relying on the expert opinion, which was corroborated by the statements made by the curator ad litem and by the Youth Office, the Court of Appeal considered that a suspension of personal contacts for a period of three years was indicated in order to allow the applicant to examine the impact of his contacts on his son and in order to reduce the risks for the child’s development. On 22 September 2009 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint. B.     Relevant domestic law According to Article 1684 subsection 1 of the Civil Code, a child is entitled to have contact with his or her parents; each parent is obliged to have contact with, and is entitled to such contact with, the child. Pursuant to subsection 2, each parent is obliged to refrain from any actions which could disturb the relationship of the other parent with the child. The family courts can restrict or suspend a parent’s rights of contact 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 welfare would be jeopardised (Article 1684 § 4). COMPLAINTS The applicant complained about the suspension of contact rights to his son. He complained, in particular, that the suspension was disproportionate having regard to its excessive duration. Relying on the Court’s decision in the case of Nekvedavicius v. Germany (no. 46165/99, 19 June 2003), the applicant submitted that the German authorities were under an obligation to re-examine the suspension of contact rights at least once per year. He further complained that the impugned decisions were based on an incomplete assessment of the facts, as the courts had refused to hear further expert opinion. THE LAW The applicant complained about the outcome and alleged procedural shortcomings of the contact proceedings. He relied on Article 8 of the Convention, which provides, insofar as relevant: “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.” The Court observes that the suspension of contact rights amounted to an interference with the applicant’s right to respect for his family life as guaranteed by Article 8 § 1. Such an interference entails a violation of Article 8 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under Article 8 § 2 and is “necessary in a democratic society” for the aforesaid aim or aims. The decision at issue had a basis in national law, namely Article 1684 § 4 of the Civil Code, and was aimed at protecting the best interests of the child, which is a legitimate aim within the meaning of paragraph 2 of Article 8. In determining whether the temporary suspension of contact rights 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 Article 8 § 2 of the Convention. The Court reiterates that it is not its task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding contact rights, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation ( Sahin and Sommerfeld v. Germany [GC], nos. 30943/96 and 31871/96, § 64 and § 62 respectively, ECHR 2003-VIII). Furthermore, a fair balance must be struck between the interests of the child and those of the parent and, in striking such a balance, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular, the parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000 ‑ VIII and T.P. and K.M. v. the United Kingdom , no.   28945/95, § 71). In the present case, the Court notes that the family courts, basing their assessment on expert opinion, considered that any personal contacts between the child and his father would jeopardise the child’s well-being. The Court notes, in particular, that the expert had considered that the child felt threatened by the mere mentioning of contacts to his father and that he was in need of a time of respite in order to allow him to pursue his positive development. This assessment of the fact was corroborated by the unanimous recommendations given by the child’s curator ad litem and by the Youth Office. The Court further notes that the District Court allowed the applicant to contact his son in written form and by telephone and obliged the mother to encourage the child to seek contact to his father on his own motion. The Court cannot find that the assessment of the relevant facts was arbitrary or that the family courts did not adequately take the applicant’s interests into account. The Court reiterates that the reasons for a suspension of contact rights cannot, as a rule, be regarded as permanent and should generally be re-assessed at regular intervals of at least once per year (see Nekvedavicius , cited above). However, this cannot apply if the re-assessment as such would seriously jeopardise the child’s welfare. In the instant case, the court-appointed expert observed that the child showed clear signs of psychological disturbance when his father was merely mentioned. It followed that the child’s well-being was threatened by the mere prospect of further examination. In order to allow him to stabilise further, the expert expressly recommended granting him a period of respite from further examination. Under these circumstances, the Court considers that the decision to suspend the applicant’s right to personal contact with his son for three years without providing for an intermediate re-examination was justified by the overriding interests of the child. In assessing whether the reasons adduced by the domestic courts were sufficient for the purposes of Article   8 §   2, the Court will further have to determine whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests. As to the proceedings at first instance, the Court notes that the applicant, assisted by counsel, was in a position to put forward all his arguments in favour of securing contact rights both personally and in written form. The evidential basis for the District Court’s decision further included the statements of the child, who was heard in person, of the child’s curator ad litem , of the Youth Office and of the mother. Furthermore, the District Court commissioned expert opinion. There is no indication in the material submitted by the applicant that the applicant’s objections against the quality of the expert examination were justified. In this respect, the Court observes that the District Court, during a hearing, interrogated the expert also with respect to the applicant’s objections. The Court of Appeal based its decision on the applicant’s further written submissions and on the entire contents of the case-file, notably the expert opinion. Having regard to these aspects, the Court, even applying a strict scrutiny as the applicant’s contact rights are concerned, cannot find that the family courts did not sufficiently take into account the applicant’s interests. It follows that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Claudia Westerdiek   Dean Spielmann Registrar President