CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 septembre 2011

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display:inline-block }       FIFTH SECTION             CASE OF SCHNEIDER v. GERMANY   (Application no. 17080/07)             JUDGMENT     STRASBOURG   15 September 2011   FINAL   15/12/2011   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision . In the case of Schneider v. Germany , The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Dean Spielmann, President,   Karel Jungwiert,   Boštjan M. Zupančič,   Mark Villiger,   Isabelle Berro-Lefèvre,   Ann Power,   Angelika Nußberger, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 23 August 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 17080/07) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Michael Schneider (“the applicant”), on 4 April 2007. 2.     The applicant was represented by Mr G. Rixe, a lawyer practising in Bielefeld. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin , of the Federal Ministry of Justice. 3.     The applicant alleged, in particular, that the domestic courts’ decision to refuse him access to the boy F., of whom he claimed to be the biological father, and information about the boy’s personal circumstances, violated his rights under Article 8 of the Convention. 4.     On 4 January 2010 the President of the Fifth Section decided to give notice of the application to the Government. On 8 March 2010 he granted leave, under Article 36 § 2 of the Convention and Rule 44 of the Rules of Court, for Mr and Mrs H., the legal parents of the boy F., to intervene as a third party in the written proceedings before the Court. Mr and Mrs H. were represented by Mr W. Heinz, a lawyer practising in Heidelberg. The Court also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1958 and lives in Fulda. A.     Background to the case 6.     From 2001 onwards Mr and Mrs H., a married couple, lived in different places as Mr H. was working in the United Kingdom while Mrs H. remained in Germany. The spouses have a daughter born in 1997. In May 2002 Mrs H. and the applicant entered into a relationship. Mrs H. became pregnant in June 2003. 7.     The applicant claimed that he was the father of the child to be born, and that the birth had been planned by Mrs H. and him. This was contested by the Government and the third party interveners. 8.     In September 2003 Mrs H. left the applicant and subsequently went to live with her husband in the United Kingdom. 9.     On 25 November 2003 the applicant acknowledged paternity of the child to be born before the Heidelberg Youth Office. 10.     On 6 March 2004 Mrs H. gave birth to a boy, F., in the United Kingdom. Mr and Mrs H. have been living in the United Kingdom since then; they raise F. together with their daughter. They acknowledged that the applicant might be F.’s biological father. They claimed, however, that it could just as well be Mr H. as they had also had intimate relations at the relevant time. The latter allegation is contested by the applicant. The spouses preferred not to verify paternity in the interest of their family relationship. B.     The proceedings at issue 1.     The proceedings before the District Court 11.     On 20 October 2005 the Fulda District Court dismissed the applicant’s requests of 24 August 2004 for access to F. twice per month and for regular information on the boy’s development. 12.     The District Court noted that the applicant claimed to be F.’s biological father. The applicant had submitted that he and Mrs H. – who at the time was considering a divorce – had planned to have the child. When Mrs H. had become pregnant, the applicant had accompanied her to her medical consultations as the child’s father. Mr and Mrs H., for their part, had not contested that there had been an intimate relationship between the applicant and Mrs H. at the relevant time. However, Mrs H. had not planned to have a child and Mr H. could equally be F.’s biological father. 13.     The District Court found that the applicant, even assuming that he was F.’s biological father, did not fall within the group of persons who had a right of access and information under Article 1684 or Article 1685 of the Civil Code (see paragraphs 32-33 below). He did not have a right of access under Article 1684 of the Civil Code as he was not F.’s legal father. According to Article 1592 of the Civil Code (see paragraph 35 below) the boy’s legal father was Mr H., the husband of the child’s mother. The applicant’s acknowledgement of paternity before the Youth Office was not valid under Article 1594 § 2 of the Civil Code as Mr H.’s paternity prevailed (see paragraph 36 below). Nor was he entitled to challenge Mr   H.’s paternity as the conditions of Article 1600 § 2 of the Civil Code (see paragraph 37 below) were not met. He had no right to contest Mr H.’s paternity because there was a social and family relationship between Mr H. and F., who was living with Mr and Mrs H. 14.     The District Court further found that the applicant did not have a right of access under Article 1685 § 2 of the Civil Code either. He claimed to be F.’s biological father, but whether this was in fact the case was unclear. Moreover, he was not a person with whom the child had close ties and there was no social and family relationship between them. The fact that in the applicant’s submission, Mrs H. and he had planned to have the child and had wanted to live together did not alter that conclusion. The applicant had never lived with Mrs H. or the child. The child had lived with Mr and Mrs H., a married couple, since his birth. During that time there had been no possibility for the applicant to build up a social and family relationship with F. 2.     The proceedings before the Court of Appeal 15.     On 9 February 2006 the Frankfurt am Main Court of Appeal, without hearing the parties in person, dismissed the applicant’s appeal as well as his request to be allowed to offer F. presents on special occasions. 16.     The Court of Appeal confirmed the District Court’s finding that the applicant did not have a right of access and information under Article 1684 and Article 1686 of the Civil Code (see paragraph 34 below) as those provisions conferred rights only on a child’s legal parents. Under Article   1592 no. 1 of the Civil Code it was Mr H., who was married to Mrs   H. at the time of F.’s birth, who was F.’s legal father. The applicant’s acknowledgement of paternity of F. did not alter that fact as it was not valid (Article 1594 § 2 of the Civil Code). 17.     Furthermore, the applicant did not have a right of access and information under Article 1685 of the Civil Code. There was no social and family relationship between the applicant and F. as the applicant had so far never even seen F., let alone built up a relationship with him. 18.     The Court of Appeal considered that the fundamental right to respect for one’s family life under Article 6 § 1 of the Basic Law (see paragraph 30 below) and Article 8 of the Convention did not afford the applicant more far-reaching rights. It was not even established that the applicant was F.’s biological father. Paternity could, however, only be determined in separate proceedings and under certain conditions, which the applicant was most probably unable to meet. In any event, even assuming that the applicant was F.’s biological father, he would still not have a right of access and information, for lack of a social and family relationship with F. The case of Keenan v. Ireland , in which the European Court of Human Rights had strengthened the rights of biological fathers who had not yet built up a social and family relationship with their child, was not comparable to the present case. The facts of that case, in which the child’s mother had given up the child for adoption, were not comparable to those of the present case as the interests of all persons concerned had to be weighed in the balance. In the present case, the applicant’s right in his position as biological father could not outweigh the protection of the family, the mother and the child under Article 6 § 2 of the Basic Law (see paragraph 30 below). In this conflict of interests, anything which could upset a child’s trust in his family had to be prevented. It was preferable that F. grew up in his family without learning about the problematic circumstances of his origin. 19.     The Court of Appeal’s decision was served on the applicant’s counsel on 14 February 2006. 20.     On 18 April 2006 the Frankfurt am Main Court of Appeal dismissed the applicant’s objection alleging a violation of the right to be heard ( Anhörungsrüge ). 3.     The proceedings before the Federal Constitutional Court 21.     In his constitutional complaint dated 14 March 2006 the applicant claimed that the decisions of the family courts refusing him contact with and information about the personal circumstances of his child had violated, in particular, his right to respect for his family life under Article 6 of the Basic Law and Article 8 of the Convention and his right to equal treatment under Article 3 §§ 1 and 2 of the Basic Law (see paragraph 29 below) and Articles   8 and 14 of the Convention. He argued that for a biological father to relate closely to his child, so as to have a right of access and information, it was sufficient that the father was willing to take responsibility for the child. Otherwise, the child’s mother would have the right to prevent any contact between father and child. Such contact, and knowledge of his own origins, were in the child’s best interest. The applicant further claimed that the family courts’ refusal to determine whether he was F.’s biological father and their failure to examine, with regard to the circumstances of his case and by taking evidence, whether contact with him would be in F.’s best interest had disproportionately interfered with his right to respect for his family life. Moreover, the domestic courts’ decisions had discriminated against him in his right of access and information compared to fathers of children born in or out of wedlock, mothers, grandparents and siblings. 22.     On 20 September 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 1 BvR 1337/06). It held that the complaint had no prospect of success as it was, in any event, ill-founded. 23.     In so far as the applicant had complained about the family courts’ failure to determine paternity of F., his complaint was inadmissible owing to the subsidiarity of a constitutional complaint. The applicant should have contested Mr H.’s paternity in separate proceedings under Article 1600 § 1 of the Civil Code prior to lodging his constitutional complaint. 24.     In so far as the applicant complained about the family courts’ refusal to grant him access to and information about F., his rights under Article 6 §§ 1 or 2 and Article 3 § 1 of the Basic Law had not been breached. 25.     The parental rights guaranteed by Article 6 § 2 of the Basic Law afforded protection to the person having parental responsibility, irrespective of whether that person was the biological or the legal parent of the child. In the present case, this provision thus protected Mr H. and not the applicant. Neither Article 1684 nor Article 1686 of the Civil Code, which provided for rights of access and information only for legal parents, nor the decisions of the family courts which were based on those provisions, were in breach of Article 6 § 2 of the Basic Law. 26.     The family courts’ refusal to grant the applicant access under Article   1685 § 2 of the Civil Code had not violated his rights under Article 6 § 1 of the Basic Law either. Article 6 § 1 protected the relationship between a biological, but not legal, father and his child only where there was a social relationship between them which was based on the fact that the father had borne actual responsibility for the child at least for some time. Conversely, the (presumed) biological father’s wish to take over responsibility or to build up a social and family relationship with the child was not sufficient to attract the protection of Article 6 § 1. As there had never been a social and family relationship between F. and the applicant, the family courts had complied with Article 6 § 1 of the Basic Law in denying the applicant a right of access pursuant to Article 1685 § 2 of the Civil Code. 27.     Furthermore, the fact alone that the presumed biological father, unlike the biological mother, had no right of access to the child did not render the decisions of the family courts arbitrary and thus in breach of Article 3 § 1 of the Basic Law. 28.     The decision was served on the applicant’s counsel on 4 October 2006. II.     RELEVANT DOMESTIC AND COMPARATIVE LAW A.     Domestic law and practice 1.     Provisions of the Basic Law 29.     Under Article 3 of the Basic Law, everyone is equal before the law (§   1); men and women have equal rights (§ 2). 30.     Article 6 of the Basic Law, in so far as relevant, provides: (1)     Marriage and the family shall enjoy the special protection of the state. (2)     The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty. 2.     Provisions of the Civil Code (a)     Provisions on access to and information about a child 31.     Parental custody includes the right to determine access to the child (Article 1632 § 2 of the Civil Code). 32.     According to Article 1684 § 1 of the Civil Code, a child has a right of access to each parent, and each parent in turn has the right and the duty to have contact with the child. 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 (Article 1684 § 3). They may 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 or an association (Article 1684 § 4). 33.     Under Article 1685 § 1 of the Civil Code, grandparents and siblings have a right of access to the child if this serves the child’s best interest. Article 1685 § 2 of the Civil Code, in its version applicable at the relevant time, further provides for persons with whom the child has close ties ( enge Bezugspersonen ) to have a right of access to the child if this serves the child’s best interest and if they are bearing actual responsibility for the child or have done so in the past (social and family relationship). It is to be assumed, as a rule, that a person who lived with the child in domestic community for a lengthy period of time has borne such actual responsibility. Article 1684 §§ 3 and 4 apply mutatis mutandis (see Article 1685 § 3 of the Civil Code). 34.     Under Article 1686 of the Civil Code, each parent who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the other parent in so far as this is not contrary to the child’s best interest. (b)     Provisions on paternity 35.     According to Article 1592 of the Civil Code, a child’s father is either the man who at the date of the child’s birth was married to the child’s mother (no. 1), or the man who acknowledged paternity (no. 2) or whose paternity is judicially established under Article 1600d of the Civil Code (no.   3). 36.     An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code). 37.     Paternity may be challenged. Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child’s mother during the period of conception. However, pursuant to § 2 of Article 1600, this last man has a right to challenge the paternity of the man who is the child’s legal father under Article 1592 nos. 1 or 2 only if he is the child’s biological father and if there is no social and family relationship between the legal father and the child. If there is no paternity under Article 1592 nos. 1 or 2 of the Civil Code, paternity is to be established by the family court (Article 1600d § 1 of the Civil Code). B.     Comparative law 38.     Research undertaken by the Court in relation to 23 Council of Europe Member States shows that there is no uniform approach in the Member States of the Council of Europe to the question whether, and if so, under what circumstances, a biological father (who is not only a sperm donor) has a right to contact with his child where a different father exists in law. 39.     In a considerable number of States (including Bosnia and Herzegovina, Estonia, France, Ireland, Portugal, Russia, Slovenia, Spain, the United Kingdom and Ukraine), where a child is born to a woman who is living with her husband, a biological father can ensure his contact rights by first challenging the paternity presumption in place, in some cases within a fixed time-limit. In these States, as indeed in all of the countries surveyed, a presumption exists in law to the effect that a child born of a married woman during the subsistence of the marriage is also the child of her husband. Having been recognised as the (legal) father of the child concerned, the biological father then has a right to contact with his child like any other non ‑ custodial parent, subject to the child’s best interest. 40.     According to an expert report drawn up in March 2010 by the German Institute for Youth Human Services and Family Law ( Deutsches Institut für Jugendhilfe und Familienrecht e.V. , a registered association and non-governmental organisation), which was submitted by the Government and covered, in addition to Germany, seventeen other Council of Europe Member States, the same applied in Greece. That report, however, interpreted differently the provisions applicable in France and Spain. The applicant submitted that there were several other countries where a biological father could challenge the legal father’s paternity under conditions which were less restrictive than those applicable in Germany, such as Azerbaijan, Lithuania, Moldova, Norway, San Marino and Serbia (see paragraphs 41 and 43 below for the research undertaken by the Court in respect of Azerbaijan). He contested in general terms the comparative law analysis submitted by the Government, arguing that the legal situation in only seventeen of the forty-seven Member States of the Council of Europe was not representative. 41.     In a considerable number of Council of Europe Member States, according to the Court’s research, the biological father of a child would, on the contrary, not be able to challenge the said paternity presumption in circumstances similar to those in the present application (see, in particular, Azerbaijan, Belgium, Croatia, Finland, Hungary, Italy, Latvia, Luxembourg, Monaco, the Netherlands, Poland, Slovakia and Switzerland). Biological fathers in those countries lack standing to bring an action to challenge that presumption, be it in all circumstances or at least in cases in which the mother is still living with her husband (see in this latter regard the law in force in Belgium and Luxembourg). 42.     According to the expert report of the German Institute for Youth Human Services and Family Law submitted by the Government, the same applies in Austria, the Czech Republic, Denmark, Liechtenstein, Sweden and Turkey. 43.     In these Member States it is open to the biological father to apply for contact only as a third party, not as a parent. However, in some of these States (Azerbaijan, Croatia, Finland, Hungary, Italy, Luxembourg and Poland) the biological father does not have standing to apply for contact even as a third party, as the law provides a right of contact only to legal parents and (to some extent) to other relatives. 44.     According to the same expert report of the German Institute for Youth Human Services and Family Law, the biological father would also not have standing to apply for contact in Liechtenstein and in the Czech Republic. 45.     In the remaining Member States surveyed by the Court in which the paternity presumption may not be challenged by a biological father (Belgium, Latvia, Monaco, the Netherlands, Slovakia and Switzerland), different preconditions apply for that father to be granted contact if such contact is in the child’s best interest. According to Article 375 bis of the Belgian Civil Code, there has to be “proof of a tie of special affection with the child”; according to Article 181 § 3 of the Latvian Civil Code, the father must have lived together with the child for a long time in the same household. In Monaco a third person can be granted contact by a judge where that would be in the best interest of the child, without additional preconditions having to be met (compare Article 300 of the Monegasque Civil Code). In the Netherlands, third persons (including mere sperm donors) may be granted contact under Articles 1:377f and 1:377a § 3 of the Civil Code of the Netherlands if they have a close personal relationship with the child, unless contacts run counter to the child’s best interest. According to section 25 § 5 of the Slovakian Family Act, the biological father may be granted access if he is regarded as being “close” to the child (according to the expert report submitted by the Government, a similar provision applies in Sweden), and under Article 274a of the Swiss Civil Code, he has a right to contact in exceptional circumstances (according to the expert report submitted by the Government, the same precondition applies in Turkey). 46.     According to the report submitted by the Government, Section 20 of the Danish Act on Parental Responsibility provides that access may be granted only to close relatives having close personal ties with the child concerned and only if the parents have no or hardly any contact with the child. The report further states that under Article 148 § 3 of the Austrian Civil Code, a biological father may be granted access to his child if the child’s welfare is endangered otherwise. THE LAW I.     COMPLAINT CONCERNING THE REFUSAL OF ACCESS TO AND INFORMATION ABOUT F. 47.     The applicant complained that the domestic courts’ decision to refuse him access to his son and information about his personal circumstances violated his right under Article 8 of the Convention to respect for his private and family life. He further submitted that the domestic courts’ failure to investigate sufficiently the relevant facts concerning his relationship with his son, in particular his paternity, and the question whether access was in the child’s best interest violated Article 8, read in conjunction with Article 6 of the Convention. 48.     The Court considers that the complaint falls to be examined under Article 8 alone, which, in so far as relevant, reads as follows: “1.     Everyone has the right to respect for his private and family life, ... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 49.     The Government contested that argument. A.     Admissibility 1.     The Government’s submissions 50.     The Government took the view that the application was inadmissible. They argued that the applicant lodged a total of five applications with the Court concerning the proceedings here at issue. In his first to fourth applications, dated 1 September 2004, 22 December 2005, 21   March 2006 and 30 May 2006, he had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. The applications had been lodged while proceedings were still pending before the domestic courts and before he had obtained a decision of the Federal Constitutional Court. As to his fifth application, the applicant had failed to demonstrate that he had complied with the six-month time-limit under Article 35 § 1 of the Convention. The original of his application, dated 4 April 2007, had been received at the Court only on 11 April 2007, and he had failed to demonstrate that the application reached the Court by fax in good time. The Federal Constitutional Court’s decision having been served on the applicant’s counsel on 4 October 2006, the six-month time-limit for lodging an application had expired on 4 April 2007. 51.     The Government further submitted that the application was inadmissible in so far as the applicant complained about a breach of his fundamental rights in relation to his knowledge of F.’s descent. In this respect, the applicant had failed to institute separate paternity proceedings under Article 1600 § 2 of the Civil Code (see paragraph 37 above). The Federal Constitutional Court had, accordingly, expressly rejected his complaint as inadmissible on that ground. The applicant also could not claim that such proceedings would have excessively delayed the access proceedings, which he had brought only half a year after F.’s birth. The Government further contested that paternity proceedings had been bound to fail, given that the Federal Constitutional Court had not yet ruled on the amended version of Article 1600 of the Civil Code. 2.     The applicant’s submissions 52.     The applicant submitted that his application dated 4 April 2007 had been received at the Court by fax on that day and thus within the six-month time-limit under Article 35 § 1 of the Convention. In the alternative, he submitted that, having regard to the Federal Constitutional Court’s well ‑ established case-law and the applicable provisions of the Civil Code, a complaint to that court and to the Frankfurt am Main Court of Appeal had not been effective remedies he had been obliged to exhaust. 53.     As to the Government’s allegation that he had failed to exhaust domestic remedies in that he had not contested Mr H.’s paternity in separate proceedings under Article 1600 of the Civil Code, the applicant argued that the Government had not demonstrated that such proceedings were an effective remedy he was obliged to exhaust. As the family courts had convincingly noted, such proceedings were bound to fail as Mr H. was living in a social and family relationship with F. Moreover, according to the explicit reasons given by the domestic courts, it had not been decisive whether or not he was F.’s biological father. His claim for access and information had been rejected for lack of a social and family relationship between him and F., even assuming that he was F.’s biological father. In any event, as F’s biological father his proceedings had only been aimed at being granted access to the boy and information about his development. He had not intended to become F.’s legal father by way of separate paternity proceedings, which would, furthermore, have unduly delayed a decision on his request for access to F. Such a course, if successful, would have ended Mr H.’s legal paternity, which might not have been in F.’s best interest. 3.     The Court’s assessment 54.     The Court observes that the application at issue in the present case and communicated to the Government is the application dated 4 April 2007. It concerned the applicant’s requests for access to and information about F. and was lodged after the decision of the Federal Constitutional Court was served on the applicant’s counsel on 4 October 2006. The application was received at the Court, according to the information in its case-file, by fax on 4 April 2007 (and subsequently, on 11 April 2007, also by normal post). Accordingly, the application was lodged after all domestic remedies had been exhausted in relation to the requests for access and information. It was also lodged within six months from the date on which the final decision of the Federal Constitutional Court was served on the applicant’s counsel, in compliance with Article 35 § 1 of the Convention. The Government’s objections on those grounds must therefore be dismissed. 55.     The Court notes the Government’s further objection that the application was inadmissible in so far as the applicant complained about a breach of his fundamental rights in relation to his knowledge of F.’s descent. In the Government’s view, the applicant should have instituted separate paternity proceedings under Article 1600 § 2 of the Civil Code to settle that matter. The Court observes that in the proceedings at issue, the applicant requested access to F. and information about the boy’s personal circumstances. It was only in that context that the applicant submitted that the domestic courts, in order to establish the relevant facts and to be able to rule on his requests, had been obliged to determine, inter alia , whether he was in fact the biological father of F. He had thus not intended, in the proceedings at issue, to be recognised as F.’s legal father – which is the aim of paternity proceedings under Article 1600 of the Civil Code. 56.     The Court considers that the question whether the applicant was nevertheless obliged to institute paternity proceedings prior to his application to be granted access to and information about F. is closely linked to the substance of his complaint under Article 8 and to the scope of his rights under that provision. It therefore joins the objection raised by the Government in this respect to the merits of the case. 57.     The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention, or inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicant (i)     Submissions on whether there was an interference 58.     The applicant took the view that the relationship between F. and him as his biological father amounted to family life within the meaning of Article 8 § 1 of the Convention. He submitted that he had had a lengthy relationship with F.’s mother, Mrs H., from May 2002 until September 2003. He claimed that Mrs H. had informed him that her marriage had broken down and that her husband was living together with a new partner in the United Kingdom. Mrs H. and he had lived alternating between their respective homes. They had planned to have the child F. The applicant had accompanied Mrs H. to four medical examinations relating to her pregnancy and Mrs H. had presented him as the child’s father to others, including her parents and her parents-in-law. He had acknowledged paternity of the child to be born as early as 25 November 2003. He had also received some photos of F. at his request. 59.     The applicant further argued that, in any event, his intended family life with F. was protected under Article 8, given that the child’s legal parents had prevented him from developing a close personal relationship with the boy. In such circumstances, it was sufficient for him to have shown a genuine interest in the child both before and after his birth by planning a common future with the mother and child, acknowledging paternity before the child’s birth and requesting access to and information about the child. 60.     The applicant further alleged that the domestic courts had not sufficiently established the nature of the relationship between him and Mrs   H. The latter had separated from and wanted to divorce her husband, who had been living with another woman. Moreover, they had failed to determine whether he was the biological father of F. despite the fact that they had considered this element relevant to the question whether there was a family relationship between him and F. This failure had also interfered with his right to respect for his private life as protected by Article 8 (the applicant referred to Nylund v. Finland (dec.), no. 27110/95, ECHR   1999 ‑ VI, and Mikulić v. Croatia , no.   53176/99, ECHR 2002 ‑ I). In his view, it was the domestic courts’ duty to determine the biological kinship in access proceedings when it was disputed by the child’s legal parents. (ii)     Submissions on whether the interference was justified 61.     The applicant argued that the interference with his rights under Article 8 had not been justified under paragraph 2 of that provision. In particular, it had not been “necessary in a democratic society”. 62.     In the applicant’s view, the domestic courts’ interpretation and application of Article 1685 § 2 of the Civil Code had been disproportionate in that it had denied him contacts with his child without examining whether such contacts would be in the child’s best interest. On this point he referred to the Court’s judgment in the case of Anayo v. Germany (no. 20578/07, 21   December 2010), in which the Court had found that a biological father had a right to contact with his child if such contact was in the child’s best interest. In the applicant’s submission, the domestic courts had failed to weigh the different interests at stake in the proceedings and had accorded absolute predominance to the existing family unit, which was disproportionate. They had failed to take into consideration that contacts with the biological father were generally necessary for the child’s personal identity and development. 63.     Thereby, the domestic courts had also failed to base their decision to deny the applicant access to and information about F. on sufficient grounds. They had taken the view that a biological father who had never seen his child should never be granted contacts with the child, irrespective of the particular circumstances of each case. However, the question of whether access was in the child’s best interest had to be determined in the circumstances of the case and could not be replaced by standardised legal assumptions. 64.     The applicant further contested the Government’s argument that a comparative law analysis confirmed that the provisions of German law duly protected the right of biological fathers to contact with their children and that the children’s best interest did not warrant a different solution. He took the view that German law accorded a considerably weaker position to the biological father than the applicable provisions in the majority of the European States (see also paragraph 40 above). He argued that the findings made in a report drawn up in March 2010 at the Government’s request by the German Institute for Youth Human Services and Family Law, were not convincing and representative of the legal situation in Europe (see also paragraph 40 above). 65.     Furthermore, the applicant contested the Government’s argument, based on a general psychological report by expert K. which the Government had commissioned for the proceedings in the Anayo case, that contacts with the biological father did not generally have a positive impact on the child’s well-being. He took the view that contacts between him and F. would be in F.’s best interest as he took an interest in the boy, who had a right to know his origins. Further concealing his origins might rather lead to a loss of confidence in his legal parents. As F.’s origins were known to both of his legal parents already before his birth, there was no risk that contacts between F. and the applicant would threaten the H. family or its reputation, bearing in mind that both Mr and Mrs H. had had an extra-marital relationship. (b)     The Government (i)     Submissions on whether there was an interference 66.     The Government took the view that there had not been a violation of Article 8 of the Convention. The domestic courts’ decisions concerning the applicant’s access to and information about F. had not interfered with the applicant’s right to respect for his family life. Referring to the Court’s case ‑ law (they cited, in particular, L. v. the Netherlands , no. 45582/99, and Hülsmann v. Germany (dec.), no. 33375/03, 18 March 2008), the Government argued that mere biological kinship, without any close personal relationship, was insufficient to attract the protection of Article 8 § 1. In the present case, F. lived together with his mother and his legal father in a stable family unit. 67.     Moreover, even though the Court had considered that intended family life might, exceptionally, fall within the ambit of Article 8 (the Government referred to Nylund , cited above; Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003; and Hülsmann , cited above), the Government argued that this was not the case in the circumstances of the present application. They stressed that it had not been proven that the applicant was the biological father of F. and that the child was part of Mrs   H.’s and his plans for a common future. However, even assuming that this was the case, it was not sufficient that he had expressed willingness to take responsibility. 68.     The Government further took the view that the domestic courts’ failure to establish whether the applicant was F.’s biological father had not interfered with the applicant’s right under Article 8 to respect for his family or private life. The domestic courts had assumed for the purposes of the proceedings that the applicant was F.’s biological father and had rejected his request for access to F. for lack of a social and family relationship between them. They had not been obliged to establish the applicant’s paternity in the access proceedings at issue because the applicant should have instituted separate paternity proceedings for this purpose (Article 1600 of the Civil Code, see paragraph 37 above). (ii)     Submissions on whether the interference was justified 69.     Even assuming that there had been an interference with the applicant’s rights under Article 8 § 1 by the refusal of the domestic courts to grant him access to F. and information about the boy’s development, that interference had been justified under Article 8 § 2. The alleged interference with the applicant’s rights had a legal basis in Articles 1685 and 1686 of the Civil Code. It served the legitimate aim of protecting the rights and freedoms of F. and his legal parents, Mr and Mrs H. 70.     That interference was also necessary in a democratic society. The domestic courts had based their decision that the applicant had not established any social ties with F. that might lead to contacts between them being in the child’s best interest on relevant and sufficient reasons. They stressed that in the Anayo case (cited above) the Court had found that a man whose biological paternity was uncontested had a right to determination, by the domestic courts, whether contacts with his child were in the child’s best interest. In the present case, however, the applicant’s paternity was contested by the legal parents. To allow every man alleging to be the father of a child born in wedlock to seek to have his paternity established could seriously interfere with the rights of the members of the legal family. Moreover, such requests would not necessarily be based on the child’s best interest. It was important to bear in mind that in cases like the present one the fundamental rights of the various persons concerned had to be balanced fairly against one another. 71.     The Government further took the view that the German legislator, in Articles 1592, 1594, 1600, 1684 and 1685 of the Civil Code, had balanced the competing interests involved in a manner which complied with the requirements of Article 8. A comparative law analysis confirmed that these provisions, compared to the applicable law in other European countries, duly protected the right of biological fathers to contact with their children and that the children’s best interest did not warrant a different approach. German law – which did not exclude biological fathers in all circumstances from contacts with their children but allowed such contacts only if a social and family relationship existed between biological father and child and if the contacts were in the child’s best interest – was in line with the general European standards on the matter. 72.     In that connection, the Government relied on the findings of a report drawn up in March 2010 at their request by the German Institute for Youth Human Services and Family Law, analysing the access rights of biological fathers in 17 other Council of Europe Member States (see also paragraphs 40, 42 and 44-46 above; the report had already been submitted in the Anayo case, cited above). 73.     Moreover, the domestic courts had fairly balanced the