CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 janvier 2015

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GERMANY   (Application no. 62198/11)               JUDGMENT       STRASBOURG   15 January 2015     FINAL   15/04/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Kuppinger v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President,   Angelika Nußberger,   Boštjan M. Zupančič,   Ganna Yudkivska,   Vincent A. De Gaetano,   André Potocki,   Helena Jäderblom, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 2 December 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 62198/11) 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 Bernd Kuppinger (“the applicant”), on 29 September 2011. 2.     The applicant was represented by Mr G. Rixe, a lawyer practising in Bielefeld. The German Government (“the Government”) were represented by their Agents, Mr H. J. Behrens and Mrs K. Behr of the Federal Ministry of Justice. 3.     The applicant alleged, in particular, that the domestic courts had failed duly to implement his right to contact with his son. 4.     On 10 September 2013 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Background to the case 5.     The applicant was born in 1953 and lives in Heidelberg. He is the father of a son born out of wedlock on 21   December 2003. Shortly after the child was born, the mother refused the applicant any contact with him. In   2004 the applicant unsuccessfully attempted to establish contact. 6.     On 19 May 2005 the applicant lodged a request with the Frankfurt/Main District Court for the regulation of contact rights. The course of proceedings before the District Court is summarised in the Court’s judgment in the case of Kuppinger v. Germany [Committee], no.   41599/09, §§ 6-33, 21 April 2011. By interim order of 22 May 2007 the District Court ordered weekly supervised contact between the applicant and his son. Three supervised contact meetings took place between 14 June and 19 July 2007. 7.     On 21 December 2009 the District Court suspended the applicant’s contact rights for one year. This decision was amended on 22 March 2010 with respect to the applicant’s right to be informed about the child’s personal circumstances. 8.     By judgment of 21 April 2011 (see Kuppinger , cited above, §   51), the Court found that the length of the proceedings before the Frankfurt District Court, which had lasted from 19 May 2005 to 22 March 2010, violated the applicant’s right to a trial within a reasonable time under Article 6 § 1 of the Convention. The Court further considered that there had been a violation of the right to an effective remedy under Article 13 of the Convention. B.     Execution of the interim decision of 12 May 2010 9.     On 30 December 2009 the applicant lodged an appeal against the decision given by the District Court on 21 December 2009. On 15 April 2010 the Frankfurt Court of Appeal held a hearing. 10.     By interim decision of 12 May 2010 the Court of Appeal decided that the applicant had the right to see his son for three hours on six specific dates between 26 May and 6 August 2010. The first three contact meetings were to take place in the presence of a supervisor. The Court of Appeal further ordered the child’s mother to take the child to the meetings on time. Finally, the Court of Appeal warned the mother that an administrative fine ( Ordnungsgeld ) of up to 25,000 euros (EUR) could be imposed if she did not comply with her obligations under this decision. 11.     The Court of Appeal noted that the last contact meeting had taken place in 2007. There was no indication that contact with the applicant would jeopardise the child’s welfare. According to expert opinion, the child’s refusal to meet the applicant was not based on an autonomous decision, but was influenced by the mother’s stance. This was in line with the personal impression the judge rapporteur had gained from hearing both parties and the child. The Court of Appeal acknowledged that the conflict between the parents, and their ensuing lack of communication, posed a risk to successful contact. However, the course of the proceedings had shown that both parents were unwilling to settle these conflicts by availing themselves of specialist help. As it was unlikely that the parents would change their attitude, the granting of contact rights could not await the outcome of successful counselling. 12.     The Court of Appeal further considered that the overall course of the proceedings had demonstrated that both parents had contributed to the failure of contact visits. In view of the lengthy proceedings, which imposed an emotional burden on the child, it was particularly important to re ‑ establish contact carefully after a regrettable interruption of two years. 13.     On 31 May 2010 the supervisor reported on the first contact meeting, scheduled for 26 May 2010, which had been postponed to 29 May 2010. After a short conversation and some playful interaction with the applicant, the child had decided to go to his mother and subsequently refused to play with his father. The supervisor further informed the Court of Appeal that the mother would be on holiday for the two meetings scheduled for 25 June and 2   July 2010 and that the parties’ counsels would have to agree on alternative dates. 14.     On 18 June 2010 the supervisor reported on the second contact meeting scheduled for 11 June 2010. According to the report, the meeting had lasted around 35 minutes during which the applicant and his son had engaged in several play activities. The meeting was interrupted by two interactions between the child and his mother. Subsequently, the child told the applicant that he did not wish to play with him and left with his mother. 15.     On 25 May 2010 the mother’s counsel informed the Court of Appeal that it had not been possible to find alternative dates for the meetings scheduled during the mother’s absence and that she expected that the meetings would be re-scheduled for 20 August and 3 September 2010. 16.     On 28 June 2010 the applicant requested the Court of Appeal to schedule alternative dates for the meetings which were to take place during the mother’s holidays. 17.     On 1 July 2010 the Court of Appeal informed the applicant that it did not see any reason to issue additional orders as to the organisation of the contact meetings, which fell within the competence of the supervisor. Furthermore, there was no room for scheduling alternative meetings. The Court of Appeal further requested the mother to submit proof of her alleged holiday absence. 18.     On 21 July 2010 the applicant lodged a request with the District Court to impose an administrative fine of at least EUR 3,000 on the mother for having failed to enable him to exercise his contact rights on 26/29 May and a further EUR 5,000 for having prevented him from exercising his contact rights on 11 June 2010. He submitted that the mother had failed to deliver the child on 26 May 2010, allegedly for professional reasons. On the alternative date, 29 May 2010, the mother had brought the child, but taken him away after approximately five minutes. On 11 June 2010 the mother had left the meeting place with the child after half an hour and had thus prevented further contact. In view of the urgency of the subject matter and relying on the case-law of the Court (the applicant’s counsel referred to the case of Koudelka v. the Czech Republic , no. 1633/05, 20 July 2006), the applicant further requested the District Court to reach a decision speedily. 19.     On 29 July 2010 the supervisor reported on the contact scheduled for 23 July 2010. The unsupervised contact ordered by the Court of Appeal had not taken place because the child had refused to go with his father and the supervisor’s mediation attempts had been to no avail. 20.     On 30 July 2010 the mother submitted documents to justify her absence. 21.     On 11 August 2010 the applicant requested the District Court to impose further administrative fines on the mother for failure to comply with her obligations under the interim decision. Relying on the report by the supervisor, he submitted that the mother had prematurely terminated the contact visit on 18 June 2010. Furthermore, she had failed to appear at the meeting place on 25 June and 2 July 2010. On 23 July 2010 the mother had failed to hand over the child to the supervisor, and induced the child to declare that he did not wish to have any contact. On 6 August 2010 the applicant informed the supervisor that he would be approximately 30   minutes late because of traffic problems. The supervisor informed him that mother and child had left the building after ten minutes. 22.     On 25 August 2010 the Youth Office submitted comments. 23.     On 26 August 2010 the District Court scheduled a hearing for 10   September 2010. 24.     On 9 September 2010 the District Court, on the mother’s counsel’s request, postponed the hearing to 24 September 2009. 25.     During the hearing on 24 September 2010 the District Court heard the supervisor’s oral submissions. 26.     On 1 September 2010 the District Court informed the applicant that no decision could yet be taken for lack of the main case file on the contact proceedings. 27.     On 22 October 2010 the applicant’s counsel requested the District Court to expedite the proceedings. He further submitted that the District Court was in possession of all relevant documents and that it was not necessary to await the return of the main case file. 28.     By decision of 12 November 2010 the District Court imposed an overall administrative fine of EUR 300 on the mother for having contravened the contact order six times. The District Court noted that it was not in dispute between the parties that contact did not take place, or took place only for a limited period of time, on the six dates relied upon by the applicant. The District Court further considered that the mother was accountable for the failed contact, albeit to a limited degree. 29.     The District Court considered that the fact that contact visits were terminated because of the child’s resistance did not exonerate the mother. The Court of Appeal had repeatedly stated that it was up to the mother to avail herself of the necessary educational measures in order to influence the child and thus to allow contact visits. The mother had failed to establish that she had undertaken such measures. She might have had good reason for requesting the dates to be rescheduled. However, she did not have the right to cancel these dates without the Court of Appeal’s or the applicant’s consent. Finally, the mother was under an obligation to wait for the applicant on 6   August 2010, taking into account that the applicant had informed her beforehand that he would be late. 30.     The District Court observed that the relevant provisions prescribed an administrative fine of up to EUR 25,000 for each established contravention of the court order. Based on an overall assessment of the circumstances, the District Court considered that only administrative fines within the lowest range could be envisaged. The District Court took into account that, according to a report submitted by an access custodian on 2   October 2010 (see paragraph 45, below) there were serious indications that it would not even have been possible for a professional counsellor to establish contact. Against this background, the mother’s personal responsibility appeared to be minor. This was even more so as the mother did not completely prevent contact, but took the child to four of the scheduled meetings. The demands on her educational capabilities had been high, as she had not only been obliged to reconsider her own stance on the problems within a period of a few weeks, but also to change the child’s established pattern of behaviour. It had further to be taken into account that comparable contraventions would not have to be sanctioned in the mid-term future, because a contact custodian had been appointed. Against this background, the administrative fine had primarily the character of a sanction for past behaviour, but not of a coercive measure. 31.     According to the District Court, account also had to be taken of the fact that the purpose of the first dates, on which the child had prematurely terminated the contact visits, was to institute contact. It was inherent in this constellation that contact could only be established gradually and might fail. The Court of Appeal had pointed out this possibility and had also indicated that no undue pressure should be exerted on the child. 32.     With regard to the contact meetings scheduled for 25 June and 2   July 2010, the applicant had been informed beforehand that mother and child would be absent and this fact should also be taken into account. He had thus incurred travel and other expenses on these dates in spite of this knowledge. 33.     Considering these circumstances, the Court found it reasonable to impose an administrative fine of EUR 80 for each of the three occasions when contact did not take place at all and of EUR 20 each for the three remaining contraventions. 34.     Both parties lodged complaints. The applicant submitted that the administrative fine imposed was far too low and obviously ineffective. He further complained that the length of the administrative fine proceedings had been excessive and had violated his rights under Article 8 of the Convention. 35.     On 2 December 2010 the District Court refused to amend its decision of 12 November 2010 and forwarded the complaints to the Frankfurt Court of Appeal. 36.     On 17 December 2010 the Court of Appeal invited both parties to submit comments in reply by 6 January 2011. 37.     On 2 February 2011 the Court of Appeal rejected both parties’ complaints. In respect of the applicant’s complaint, the Court of Appeal considered that the District Court had exercised its discretion in an acceptable way, taking into account all relevant circumstances. The Court of Appeal further considered that while it was true that the proceedings on administrative fines had to be processed speedily, the courts had to retain the possibility of availing themselves of all relevant information. Even though there were several reasons to assume that the length of the proceedings had been acceptable, the Court of Appeal did not consider it necessary to decide whether the proceedings had been conducted within a reasonable time, as there was no legal basis for establishing that the length of proceedings had been excessive. 38.     On 28 February 2011 the applicant lodged an application to be heard ( Anhörungsrüge ) with the Court of Appeal, which was rejected by that court on 4 May 2011. 39.     On 16 August 2011 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for adjudication (no.   1   BvR   1544/11). 40.     In the meantime, on 14 February 2011 the applicant requested the District Court to execute its decision of 12 November 2010. On 21 March 2011 the District Court ordered the applicant to advance court fees. On 26   April 2011 the District Court requested the applicant to submit an original version of the decision to be executed. On 4 May 2011 the applicant pointed out that the decision had to be executed ex officio . On 1 June 2011 the mother, who had been granted leave to pay by instalments, had paid the administrative fine in full. On 19 July 2011 the District Court informed the applicant that the administrative fine had already been paid. C.     Execution of the contact order of 1 September 2010 41.     On 1 September 2010 the Frankfurt Court of Appeal, in the main proceedings, quashed the decision of the District Court of 21 December 2009 (suspension of contact rights) and granted the applicant contact rights on every second Wednesday afternoon for three hours each time, beginning on 29   September 2010. Following four supervised contact meetings, the applicant was to have the right to unsupervised contact meetings of up to eight hours each. The Court of Appeal further appointed Mr. H. as custodian for the implementation of contact rights ( Umgangspfleger ). The mother was ordered to hand over the child to the custodian for the purpose of contact meetings. Both parents were ordered to have preparatory conversations with the custodian. 42.     The Court of Appeal confirmed its previous finding that there was no indication that contact with his father would jeopardise the child’s welfare and that there was thus no reason to suspend contact rights. There was furthermore not sufficient evidence that the child insistently refused to see his father. The Court of Appeal considered that the child’s verbal refusals to meet his father were not based on the child’s own assessment, but stemmed from the child’s loyalty to his mother as his immediate caregiver. It was evident that contact meetings had solely failed because of the mother’s lack of willingness or her inability to allow such contact. 43.     The Court of Appeal further observed that both parents had contributed to the lack of communication and to the overall development of the proceedings. 44.     In view of the mother’s continuing failure to fulfil her parental duties, the Court of Appeal considered it necessary to appoint a custodian for the implementation of contact rights. The Court of Appeal observed that the custodianship had to be subject to a time-limit. It considered that the time until 31 March 2011 should be sufficient for establishing a stable relationship between the applicant and his son, allowing continued contact. 45.     On 2 October 2010 the custodian informed the Court of Appeal that he had met the applicant, who had been uncooperative and did not seem to take an interest in the child’s welfare. Under these circumstances, contact could not take place as scheduled. Nevertheless, in order to allow for contact, he recommended that the applicant seek professional counselling. 46.     On 15 November 2010 the applicant requested the District Court to discharge the custodian from his duties. 47.     On 16 November 2010 the District Court appointed a curator ad litem to represent the child’s interests and submitted the request to the mother, the custodian and to the Youth Office for comments within one week. 48.     On 30 November and 9 December 2010 the Youth Office and the mother asked the District Court to reject the request. 49.     On 10 December 2010 the applicant requested the District Court to expedite the proceedings. On the same day, the District Court scheduled a hearing for 21 January 2011. 50.     On 17 December 2010 the applicant complained that the District Court, when scheduling the hearing, had not respected the time-limit of one month laid down in section 155 § 2 of the Act on Proceedings in Family Matters (see Relevant Domestic Law, below). 51.     On 12 January 2011 the District Court informed the applicant that it had not been possible to schedule an earlier hearing, as the judge in charge had been replaced by 1 January 2011 and the hearing was scheduled immediately after the new judge’s return from holidays. 52.     On 21 January 2011 a hearing took place in the absence of the custodian, who had informed the District Court that he was on holiday. 53.     On 29 January 2011 the custodian requested the District Court to discharge him from his duties. 54.     Between 2 and 9 February 2011 the District Court judge contacted by telephone eight potential custodians. Ms R. was ready to supervise the first contacts, while Ms Z. declared her readiness to hand over the child for the ensuing unsupervised visits. 55.     On 11 February 2011 the District Court informed the parties that custodian H. could only be dismissed if a new custodian was appointed. The District Court’s intensive endeavours to find a person who was ready to implement the decision of 1 September 2010 proved difficult. On that same date, the District Court judge wrote letters to 22 potential custodians and enquired about their readiness to take up duties in the instant case. Furthermore, the District Court informed the parties that it had instituted ex   officio fresh contact proceedings in order to review the existing regulations ( Abänderungsverfahren, see paragraphs 67-81, below). 56.     On 16 March 2011 the mother challenged the District Court judge for bias. She withdrew her motion on 12 April 2011. 57.     On 12 April 2011 the applicant’s counsel informed the mother’s counsel that the applicant intended to exercise contact rights on 16 April 2011 and that he expected the mother to hand over the child. The applicant expressed the opinion that the Court of Appeal’s decision of 1 September 2010 still provided for unsupervised visits on every second Saturday. On 14   April 2011 the mother’s counsel replied that she considered that the applicant did not have the right to unsupervised contact. 58.     Between 16 April and 9 July 2011 the mother did not open the door when the applicant appeared for contact visits. Between 10 May and 11 July 2011 the applicant lodged 6 requests to impose administrative fines on the mother for failure to comply with her obligations to hand over the child to the applicant. He further requested the District Court to expedite the proceedings. 59.     On 27 June 2011 the mother’s counsel requested the District Court to suspend proceedings pending the proceedings on the review of contact rights. 60.     By decision of 29 June 2011 the District Court established that Mr   H.’s custodianship had expired on 31 March 2011. 61.     On 5 July 2011 the applicant requested the District Court to decide without further delay. On 8 July 2011 the District Court informed the applicant that the mother still had to be allowed to submit comments on the request of 1 July and on the applicant’s letter of 5 July 2011. 62.     On 19 July 2011 the applicant complained that the District Court’s failure to decide on his requests violated his right to an effective legal remedy. 63.     On 19 July 2011 the District Court informed the parties of its intention to decide in written proceedings on the basis of submissions lodged by 19 August 2011. 64.     On 26 August 2011 the District Court rejected the applicant’s requests to impose administrative fines on the mother. The District Court observed that the supervised contact ordered in the decision of 1 September 2010 had not taken place. There was no indication that unsupervised contact could take place without an initial phase of supervised contact. This question was the subject matter of the new proceedings on the review of contact rights instituted by the District Court. Under these circumstances, it could not be said that the mother had failed to comply with the contact order of 1 September 2010. 65.     On 13 September 2011 the applicant lodged a complaint which was rejected by the Frankfurt Court of Appeal on 12 December 2011. D.     Proceedings on the review of regulations on contact rights 66.     On 11 February 2011 the Frankfurt District Court instituted ex   officio fresh contact proceedings in order to review the existing regulations and scheduled a hearing in the presence of Ms Z. and Ms R., who had previously declared their readiness to take on duties as custodians, for 16   March 2011. 67.     During the hearing on 16 March 2011, the applicant and Ms Z. could not reach an agreement on the modalities of the contact, in particular the envisaged length of the first unsupervised contact meeting. The mother challenged the District Court judge for bias (compare paragraph 56 above for the parallel proceedings). On 31 March 2011 the substitute judge requested the mother’s counsel to submit reasons for this motion. On 12   April 2011 the mother’s counsel withdrew the motion. 68.     On 18 May 2011 the District Court judge heard the child. 69.     On 29 June 2011 the District Court decided to hear expert opinion on the question of whether the decision on contact rights issued by the Court of Appeal on 1 September 2010 could still be implemented or whether it was in the child’s best interests either to order unsupervised contact or to suspend contact rights. 70.     On 15 July 2011 the applicant challenged the court-appointed expert for bias. On 25 July 2011 the District Court rejected the motion as being unfounded. On 5 August 2011 the applicant lodged a complaint. On 3   November 2011 the Court of Appeal accepted the motion. 71.     On 19 December 2011 District Court appointed a new expert. On 15   March 2012 the expert informed the court that he had been unable to contact the applicant. The applicant informed the court that he was unavailable for further examination. On 29 March 2012 the applicant’s counsel abandoned his brief. 72.     On 17 April 2012 the applicant requested the District Court to schedule a hearing immediately. 73.     On 20 April the District Court, having received the expert report on 19 April, scheduled a hearing for 29 May 2012 and informed the parties that the applicant could be assessed on the basis of the expert’s personal impression gained during the hearing. On 22 May 2012 the applicant rejected the District Court judge on grounds of bias and the hearing was cancelled. 74.     On 22 June 2012 the challenge for bias was rejected as being unfounded. On 9 July 2012 the applicant lodged an appeal which was rejected by the Court of Appeal on 31 October 2012. 75.     On 16 November 2012 the District Court scheduled a hearing for 30   January 2012. On 5 December 2012 the applicant lodged a fresh challenge for bias, which was dismissed on 29 January 2013. On 15 March 2013 the District Court scheduled a hearing for 11 April 2013. Upon the applicant’s request, the hearing was postponed to 6 June 2013. 76.     On 1 June 2013 the applicant informed the District Court that health reasons prevented him from attending the hearing. The District Court, taking into account the parties’ absences during the summer months, postponed the hearing to 22 August 2013. 77.     On 14 August 2013 the applicant once again requested the District Court to cancel the hearing. He did not appear at the hearing which took place on 22 August 2013. On 11 September 2013 the applicant requested the District Court to re-open the hearing, while at the same time submitting that he was unfit to appear in court. 78.     On 12 November 2013 the Frankfurt District Court suspended the applicant’s contact rights until 31 October 2015 on the ground that contact against the child’s expressed will would jeopardise his welfare. The applicant lodged an appeal. 79.     The applicant did not appear at the hearing which took place before the Frankfurt/Main Court of Appeal on 11 February 2014. The Court of Appeal scheduled a further hearing for 21 May 2014, to which the court-appointed expert was also summoned. On 20 May 2014 the applicant asked the Court of Appeal to allow him to bring a private expert to the hearing and, at the same time, to postpone the hearing scheduled for the following day as the private expert was unable to attend. The Court of Appeal referring, inter alia, to section 155 of the Act on Procedure in Family Matters, refused the request. On 21   May 2014 counsel for the applicant, who did not attend the hearing in person, challenged the Chamber of the Court of Appeal for bias, which was dismissed on 21 July 2014. 80.     On 17 September 2014 the Frankfurt/Main Court of Appeal confirmed the suspension of contact rights until 31 October 2015. It   furthermore allowed the father to write monthly letters, which the mother was ordered to hand over to the child. Relying on expert opinion, the Court of Appeal considered that personal contacts against the consistently expressed will of the child, who had now reached the age of eleven, would jeopardise the child’s psychological development and had thus to be temporarily excluded. The Court of Appeal further observed that the administrative fine imposed on the mother might have been insufficient and that the refusal of contacts between father and child, which had already lasted more than a decade, had not only been caused by the parents’ and, in particular, the mother’s failure, but also by a failure of the judiciary and of the children and youth welfare services involved. II.     RELEVANT DOMESTIC LAW 81.     Section 1684 of the German Civil Code provides: Contact of the child with its parents “(1)     The child has the right to contact with each parent; each parent has a duty and a right of contact with the child. (2)     The parents must refrain from everything that renders more difficult the relationship of the child to the other parent or the upbringing. Similar provisions apply if the child is in the charge of another person. (3)     The family court may decide on the scope of the right of contact and make more detailed provisions on its exercise, including provisions affecting third parties. It may enjoin the parties by orders to fulfil the duty defined in subsection (2). If the obligation in accordance with subsection (2) is considerably violated permanently or repeatedly, the family court may also order custodianship for the implementation of contact (contact custodianship). Access custodianship includes the right to demand surrender of the child to implement access and to determine where the child is to be for the duration of access. The order is to be time-limited... (4)     The family court may restrict or exclude the right of contact or the enforcement of earlier decisions on the right of contact, to the extent that this is necessary for the best interests of the child. A decision that restricts the right of contact or its enforcement for a long period or permanently may only be made if otherwise the best interests of the child would be endangered. The family court may in particular order that contact may take place only if a third party who is prepared to cooperate is present....” 82.     Under section 1626a of the Civil Code as in force until 18 May 2013, the parents of a minor child born out of wedlock exercised joint custody if they made a declaration to that effect or if they married. Otherwise the mother obtained sole custody. 83.     Section 155 of the Act on Procedure in Family Matters ( Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit ) as in force since 1 September 2009 reads as follows: “(1)     Parent and child matters referring to the child’s place of abode, contact rights or the surrender of the child, as well as proceedings based on a threat to the child’s welfare must be conducted as a matter of priority and expediently. (2)     In proceedings pursuant to subsection (1) the court shall discuss the case with the parties at a hearing. The hearing shall take place at the latest one month after the proceedings have been instituted. The court shall hear the Youth Office during this hearing. This hearing may only be postponed for compelling reasons. Proof of the reasons for the need for postponement must be furnished when the request for postponement is made. (3)     ...” 84.     Section 89 provides Administrative fines ( Ordnungsmittel ) “(1)     In case of non-compliance with an enforcement order for the surrender of persons and for the regulation of contact, the court may impose an administrative fine ( Ordnungsgeld ) on the obligated party and in the event that the administrative fine cannot be collected it may order arrest for disobedience to court orders ( Ordnungshaft ). Where the imposition of an administrative fine lacks prospect of success, the court may order arrest. The order is taken by court decision. (2)     The decision ordering the surrender of a person or the regulation of contacts shall indicate the consequences of any non-compliance with the enforcement order. (3)     The amount of an individual administrative fine shall not exceed EUR 25,000... (4)     No administrative measure shall be imposed if the obligated person submits reasons establishing that he cannot be held liable for the non-compliance...” 85.     According to section 90 of that same law, decisions on contact rights shall not be executed by use of direct force against a child. 86.     The Act on Protracted Court Proceedings and Criminal Investigations ( Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren , henceforth: the Remedy Act) entered into force on 3 December 2011. According to section 198, paragraph 1, of the Courts Constitution Act as amended by the Remedy Act, a party to proceedings who suffers a disadvantage from protracted proceedings is entitled to adequate monetary compensation. A   prior objection to delay ( Verzögerungsrüge ), which has to be raised before the court whose proceedings are allegedly unduly delayed, is a prerequisite for a subsequent compensation claim. According to its Article   23 the Remedy Act applies to pending as well as to terminated proceedings whose duration may still become or has already become the subject of a complaint with this Court. In pending proceedings the objection to delay should be raised without delay, when the Remedy Act entered into force. In these cases the objection preserved a subsequent compensation claim even retroactively. For further details compare Taron v. Germany (dec.), no.   53126/07, §§ 29-26, 29 May 2012). THE LAW I.     SCOPE OF THE COMPLAINT 87.     In his submissions to the Court, the applicant complained about the domestic courts’ failure to implement his contact rights in proceedings instituted on 19 May 2005. 88.     The Government pointed out that the proceedings between 19 May 2005 and 22 March 2010 could not be re-examined by the Court as they had been the subject matter of the judgment given by the Court on 21 April 2011 ( Kuppinger , cited above). 89.     The applicant submitted in reply that the previous proceedings before the Court exclusively concerned his complaint under Article 6 § 1 of the Convention about the excessive length of the proceedings, but not the complaint about the excessive length and lack of effectiveness under Article   8 of the Convention. The instant case thus clearly concerned distinct subject matter. 90.     Article 35 § 2 (b) of the Convention provides: “The Court shall not deal with any application submitted under Article   34 that...   is substantially the same as a matter that has already been examined by the Court...” 91.     The Court observes that in its judgment given on 21 April 2011 ( Kuppinger , cited above), a Committee of the Court examined the applicant’s complaints under Articles 6 and 8 about the length of contact proceedings lasting from 19 May 2005 until 22 March 2010. The Court chose to examine this complaint solely under Article 6 of the Convention (see Kuppinger , cited above, § 37). The Court reiterates that a complaint is characterised by the facts alleged in it, not by the legal grounds or arguments relied on (see, among other authorities, Guerra and Others v.   Italy , 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I; and Previti v. Italy (dec.), no. 45291/06, 8 December 2009). It follows that the complaint about the conduct of contact proceedings prior to 22 March 2010 is substantially the same as a matter that has already been examined by the Court in the above-mentioned judgment. 92.     It follows that the complaint concerning the proceedings between 19   May 2005 and 22 March 2010 must be rejected under Article   35 §§   2 (b) and   4 of the Convention as being substantially the same as a matter that has already been examined by the Court and that the Court is only competent to examine the proceedings which took place after that date. II.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 93.     Regarding the proceedings which took place after 22 March 2010, the applicant complained that the domestic authorities failed to implement his contact rights with his son, thus violating his right to respect for his family life as provided in Article 8 of the Convention, which reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 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.” 94.     The Government contested that argument. 95.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. A.     Merits 1.     Execution of the interim decision of 12 May 2010 (a)     The applicant’s submissions 96.     According to the applicant, the administrative fine imposed by the Frankfurt/Main District Court was ineffective and obviously inappropriate for implementing his contact rights. As was to be expected, the fine did not have any impact on the mother’s behaviour. There was, furthermore, no indication that the appointment of a contact custodian would change the mother’s refusal of contact. The applicant furthermore claimed that the length of the administrative fine proceedings had been excessive. (b)     The Government’s submissions 97.     The Government considered that the District Court had taken measures which could reasonably be expected to enable effectively the implementation of the contact decision of 12 May 2010. The sum of EUR   300, even though it may appear a small amount at first glance, represented an appropriate measure for promoting the child’s mother’s willingness to cooperate. Given the highly escalated conflict between the parents, it was already doubtful whether an administrative measure provided for by law could actually represent an appropriate means to enforce contact. The fact that his mother was exposed to administrative fine proceedings had rather intensified the child’s rejection of the applicant. Given the extremely complex and contentious situation, the District Court’s assessment of the degree of the mother’s accountability was comprehensible. Furthermore, it had to be taken into account that the measure was primarily aimed at sanctioning past behaviour, as the appointment of a contact custodian meant that further contraventions of the decision on contact rights were not to be expected. 98.     The Government further submitted that the District Court took the decision on the administrative measures three and a half months after the applicant’s request. The fact that the District Court awaited the return of the case file before taking its decision on 12 November 2010 was not cause for objection given the complexity of the proceedings and the fact that the main proceedings had already been terminated on 1 September 2010. The joinder of the two requests lodged by the applicant on 21 July and 11   August 2010 served the purpose of enhancing the efficiency of the proceedings. The District Court judge had granted the case the highest priority and had even postponed her own holiday plans in order to be able to schedule the hearing at the earliest possible date. (c)     The Court’s assessment 99.     The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary , no. 71099/01, §   70, 5 April 2005 and Tsikakis v. Germany , no. 1521/06, § 74, 10 February 2011). 100.     Furthermore, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective “respect” for family life. In relation to the State’s obligation to implement positive measures, the Court has held that Article 8 includes for parents a right that steps be taken to reunite them with their children and an obligation on the national authorities to facilitate such reunion (see, among other authorities, Ignaccolo-Zenide v. Romania , no. 31679/96, §   94, ECHR   2000-I; Nuutinen v. Finland , no. 32842/96, §   127, ECHR   2000-VIII; and Iglesias Gil and A.U.I. v. Spain , no. 56673/00, §   49, ECHR   2003-V). 101.     In cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly found that what is decisive is whether the national authorities have taken all necessary steps to facilitate the execution that can reasonably be demanded in the special circumstances of each case (see, mutatis mutandis , Hokkanen v. Finland , 23 September 1994, § 58, Series A no. 299 ‑ A; Ignaccolo-Zenide , cited above, § 96; Nuutinen, cited above, § 128; and Sylvester   v.   Austria , nos.   36812/97 and 40104/98, §   59, 24   April   2003). 102.     In this context, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit (see Ignaccolo-Zenide , cited above, §   102). 103.     Finally, the Court has held that although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the child lives (see Ignaccolo-Zenide , cited above, §   106; and Eberhard and M. v. Slovenia , no. 8673/05 and 9733/05, § 130, 1 December 2009). 104.     Turning to the circumstances of the instant case, the Court notes that the Frankfurt Court of Appeal decided on 12 May 2010 that the applicant had the right to see his son for three hours on each of six specific dates between May and August 2010. These contact meetings were to be followed by unsupervised visits. On 21 July 2010 the applicant asked the District Court to impose an administrative fine of at least EUR 3,000 on the mother, as none of the visits had taken place as scheduled. On 11 August 2010 the applicant lodged a further request for the remaining dates. On 12   November 2010 the District Court, jointly ruling on both requests, imposed an overall administrative fine of EUR 300 on the mother for having contravened six times the decision on contact rights. Even though the mother paid this sum in June 2011, none of the supervised visits took place as scheduled. 105.     Under the general principles set out above, it is the Court’s task to determine whether the domestic authorities took all necessary steps to facilitate the execution of the contact order of 12 May 2010 as could reasonably be demanded in the special circumstances of this case. The Court notes, at the outset, that the District Court’s decision contains no information on the financial situation of the mother. Nevertheless, it cannot but observe that the overall administrative fine of EUR 300 appears to be rather low, given that the pertinent provisions allowed for the imposition of a fine of up to EUR 25,000 for each individual case of non-compliance. It is thus doubtful whether this sanction could reasonably have been expected to have a coercive effect on the child’s mother, who had persistently prevented contact between the applicant and his son. The Court takes note of the District Court’s reasoning that even though the child’s mother was accountable for the failed contact, her personal responsibility proved to be minor, as the demands on her educational capabilities had been high and as she had been obliged “not only to reconsider her own stance on the problems within a few weeks, but also to change the child’s established pattern of behaviour” (see paragraph 30, above). 106.     The Court observes in this context that the parties had agreed to institute supervised contact as early as 2005 and that the Frankfurt/Main District Court had first ordered such contact on 22 May 2007 (see Kuppinger , cited above, §§ 7, 16). Having regard to the fact that the mother must have been made aware during the previous court proceedings of her general obligation to allow the applicant contact to his son, it is difficult to follow the District’s Court’s reasoning that the mother had to reconsider her stance on the problems “within a few weeks”. The Court further observes that the decision contains no information o