Elsholz v. Germany

The applicant, a German national was the acknowledged and supporting father of the child, C., born out of wedlock. Five years later the mother refused visits by applicant to his son and mediation attempts failed.

The applicant unsuccessfully filed an application to the Mettmann District Court (Amtsgericht) for an order granting him a right of access (Umgangsregelung) to C. The Court denied the applicant based on strict interpretation of Article 1711 § 2 of the German Civil Code (Bürgerliches Gesetzbuch) on the father’s right to personal contact with his child born out of wedlock. By that provision access could be ordered only if this was “advantageous and beneficial for the child’s well-being.” Here, the child’s criticisms of the father’s bad character and refusal to see the father was construed as evidence that further contacts with the father would not enhance the child’s well-being. The applicant’s appeals to the Wuppertal Regional Court (Landgericht) and before the Federal Constitutional Court (Bundesverfassungsgericht) were refused.

The applicant filed an application against the Federal Republic of Germany before the European Commission under former Article 25 of the European Convention on Human Rights on 31 October 1994, alleging that the refusal to grant him access to his son amounted to a breach of Article 8 (respect for his private and family life) of the Convention; that, as the father of a child, he had been the victim of discrimination contrary to Article 14 (freedom from discrimination) of the Convention taken together with Article 8; and that, under Article 6 § 1 (right to fair trial) of the Convention, the proceedings before the German courts were unfair.

The Court held that the applicant sufficiently established family contacts with his child insofar as he lived with the child for close to one and a half years and continuously visited the child before the child's mother ended communication in 1991. Germany’s refusal to grant the applicant access to his son interfered with his right to respect for his family life as guaranteed by paragraph 1 of Article 8 of the European Convention on Human Rights (Convention). In its analysis, the Court concluded that it had to apply a strict analysis of what constituted a “legitimate aim” for restricting the access of an individual to a child where the curtailment of a parent's right would result from such restrictions.

The Court found no violation of Article 14 of the Convention, taken in conjunction with Article 8, insofar as Germany’s application of Article 1711 § 2 to the present situation would not have led to a different outcome had the applicant been a divorced parent.

Finally, the Court held that the refusal to order an independent psychological report and the absence of a hearing before the Regional Court revealed an insufficient involvement of the applicant in the decision-making process and therefore constituted a violation of the applicant's rights under Article 6 § 1 of the Convention.

"43. The court expressed the views that "the notion of family… is not confined to marriage-based relationships and may encompass other de facto "family" ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that "family" unit from the moment and by the very fact of his birth. Thus there exists between the child and his parents a bond amounting to family life the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention...."

The Commission, considered that the court's refusal of access to the father of a child born out of wedlock had failed "to apply the test of necessity of the interference, that is, had failed to examine whether refusal of access was necessary in the interest of C.'s welfare"….that where the decision to refuse access is reached "after having obtained a detailed report by the social services or statements of doctors" this could be considered in the best interest of the child as there is 'reasonable relationship of proportionality exists between the means employed and the aim pursued'." Paragraph 40.