CEDH · CASELAW;CLIN;ENG — 15 septembre 2011

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Germany - 17080/07 Judgment 15.9.2011 [Section V] Article 8 Article 8-1 Respect for family life Respect for private life Denial of access to possible biological father without consideration of child’s best interests: violation   Facts – Between May 2002 and September 2003 the applicant had a relationship with a married woman and he claims to be the biological father of her son born in March 2004 whose legal father is the mother’s husband. Although the woman and her husband acknowledged that the applicant might be the biological father, they preferred not to verify paternity in the interest of their family. Following the boy’s birth the applicant applied to the domestic courts for access to and regular information about his development, but his application was dismissed on the grounds that, even assuming he was the biological father, he did not fall within the group of people – such as the legal father or a person who had developed a social and family relationship with the child – who were entitled to access under the Civil Code. That decision was upheld on appeal and the Federal Constitutional Court declined to consider his constitutional complaint. Law – Article   8: It was not excluded that the applicant’s intended relationship with the boy fell within the ambit of “family life”. Although the applicant had not established any family relationship with the child this was because he had been prevented from taking any steps to assume responsibility for him against the legal parents’ will. He had, however, had a non-haphazard relationship with the mother for over a year and had sufficiently demonstrated an interest in and commitment to the child both before and after birth: the child had been planned, the applicant had accompanied the mother to medical examinations relating to her pregnancy and he had acknowledged paternity before the birth. In any event, even if the legal relations between the applicant and the child fell short of family life, they nevertheless concerned an important part of the applicant’s identity and thus his “private life”. The domestic courts’ refusal to grant him access and information about the boy constituted an interference which was in accordance with the relevant provisions of the Civil Code and pursued the legitimate aim of protecting the rights and freedoms of others. As to whether the interference had been necessary in a democratic society, the Court noted that the domestic courts had reached their decision without examining whether, in the particular circumstances of the case, granting the applicant access and providing him with information would be in the child’s best interest, or whether the applicant’s interest should override that of the legal parents. They had also failed to examine the reasons why the applicant had not previously established a “social and family relationship” or to give any weight to the fact that, for legal and practical reasons, it had been impossible for him to do so. As to the Government’s submission that always giving an existing legal family precedence over biological fathers’ rights guaranteed stability, the Court was not convinced that the best interest of children living with their legal father but having a different biological father could be truly determined by a general legal assumption. Consideration of what lay in the best interest of the child was of paramount importance in every case of this kind and, in view of the great variety of family situations possibly concerned, a fair balancing of the rights of all persons involved necessitated an examination of the particular circumstances of each case. The domestic courts had failed to conduct such an examination in the applicant’s case and had thus failed to give sufficient reasons to justify the interference with his rights. Conclusion : violation (unanimously). Article   41: EUR   5,000 in respect of non-pecuniary damage. (See also Anayo v. Germany , no.   20578/07, 21   December 2010; and, with regard to the general exclusion from judicial review of the attribution of sole custody to the mother of a child born out of wedlock, Zaunegger v. Germany , no.   22028/04, 3   December 2009, Information Note no.   125).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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