In the case of Sioud v. Germany,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Faris Vehabović, President,
Sebastian Răduleţu, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 48698/21) 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”) on 28 September 2021 by a German national, Mr Akram Sioud, born in 1983 and living in Hanau (“the applicant”) who was represented by Mr G. Rixe, a lawyer practising in Bielefeld;
the decision to give notice of the application to the German Government (“the Government”), represented by their Agent, Mr H.‑J. Behrens, of the Federal Ministry of Justice;
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 3 October 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The application concerns proceedings regarding contact between the applicant and his child, L., a girl born on 10 December 2008.
2. The applicant and L.’s mother divorced in 2016. Since then, L. has been living with her mother. The parents have been in dispute over the applicant’s contacts with L. for years; several provisional arrangements ultimately failed.
3. On 26 February 2019 the Family Court ordered contact with the applicant every second Saturday and, after ten contact meetings, from Saturday to Sunday as well as during holidays. A custodian for the implementation of the contacts (Umgangspfleger) was temporarily appointed. The Family Court considered the most recent oral hearing of the child on 26 February 2019 where L. had stated – as on recent, similar occasions – that she did not wish to see the applicant. It based its decision on the observations submitted by the guardian ad litem appointed for L., the Youth Office and, in particular, the German Association for the Protection of Children, which had accompanied several contact meetings between the applicant and L. in the past; these specialist parties were unanimous in advocating unaccompanied contact. The Family Court found that gradually increasing the meetings would enable L. to open up again to her father, step by step. It also held that the appointment of the custodian was necessary as L.’s mother had been unable to prepare the child in a positive way for contact with the applicant.
4. The mother, and then the applicant, appealed. During the appeal proceedings the Youth Office, the guardian ad litem and the custodian submitted new observations, all recommending obtaining a psychologist’s expert opinion. On 4 July 2019 the Court of Appeal heard the parents, the representative of the Youth Office and the custodian.
5. On 31 October 2019 the Frankfurt Court of Appeal suspended the applicant’s contact until 30 June 2020.
6. The Court of Appeal based its decision on L.’s will not to see her father, as expressed during the first-instance proceedings, referring to a conflict of loyalty from which L. was suffering and from which she should be temporarily withdrawn. The court also briefly referred to new observations of the custodian, who had reported that L. strongly refused any contact with the applicant and that implementing contact was impossible under the given circumstances in the custodian’s view. The Court of Appeal also noted that the custodian had mentioned that L. was directly exposed to her mother’s opinions and added that it had to be admitted that the child’s mother had not only failed to promote the contact meetings but even more, at least non‑verbally, had encouraged L.’s refusal of contact. The Court of Appeal believed that, notwithstanding the possible influence of her mother, L.’s will was autonomously built and that the child’s mother was bound by her own statements that she would encourage contact.
7. Lastly, the Court of Appeal found it unnecessary to repeat some of the procedural acts undertaken before the Family Court, explaining briefly that it was unlikely that new elements would come to light.
8. The applicant’s complaint about a violation of his right to be heard was to no avail, as was his constitutional complaint to the Federal Constitutional Court (no. 1 BvR 373/20).
9. Relying on Articles 8 and 6 of the Convention, the applicant complained that the Court of Appeal’s decision amounted to a violation of his right to respect for his private and family life and to a fair hearing.
THE COURT’S ASSESSMENT
- ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
10. The Court 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.
11. The general principles concerning decisions on parental contact rights and the respective decision-making process have been summarised in Elsholz v. Germany [GC], no. 25735/94, §§ 43-53, ECHR 2000-VIII (see also Sahin v. Germany [GC], no. 30943/96, §§ 64-78, ECHR 2003-VIII; Sommerfeld v. Germany [GC], no. 31871/96, §§ 68-75, ECHR 2003-VIII (extracts); and Anayo v. Germany, no. 20578/07, §§ 65-66, 21 December 2010).
12. It was not disputed between the parties that the suspension of contact as such amounted to an interference with the applicant’s right to private and family life. The interference had a basis in national law (Section 1684 § 4, second sentence, of the German Civil Code) and pursued the legitimate aim of the protection of the rights and freedoms of others.
13. In determining whether the suspension of the applicant’s contact with his child for about 8 months was “necessary in a democratic society” and thus whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention, the Court notes that the Court of Appeal relied on L.’s express and constant will and held that ordering contact against her will was likely to put L. at risk. It results from the case-file that, at the time of that court’s decision, several other measures such as accompanied contact had proved unsuccessful and the custodian had taken the view that implementing contact was impossible under the circumstances.
14. The Court observes that the Court of Appeal had heard L.’s parents, a representative of the Youth office and the custodian, but had abstained from rehearing L., who was ten years old at the time, even though that court decisively based its decision on L.’s statement that she did not wish to see her father. While hearing a child is not necessary under all circumstances (Sahin, cited above, § 73) and while L.’s most recent hearing dated back no further than about eight months at the time of the Court of Appeal’s decision, the Court considers that it cannot be overlooked that the Court of Appeal drew different conclusions from the hearing than the first-instance court which had heard L. More precisely, it annulled the first-instance decision and suspended contact based on the written transcript of that very same hearing by the first‑instance court, which had not convinced the latter but had led it to order unaccompanied contact in the light of the evidence of the case as a whole.
15. Furthermore, both the Family Court and the Court of Appeal had expressed concerns that the child’s mother might have influenced and encouraged L.’s refusal of contact. Notwithstanding its concern, the Court of Appeal did not, in its decision, sufficiently discard those concerns and did not deal in detail with the fact that all of the further observations before it, not only by the Youth Office and the guardian ad litem but also by the custodian for implementing contact, had recommended ordering a psychologist’s expert opinion. Moreover, nothing in the Court of Appeal’s decision corroborates the Government’s allegation that the Court of Appeal had refrained from hearing the child again and from ordering an expert opinion in order to spare L. additional psychological stress (a contrario Sahin, cited above, § 74). In these circumstances, and taking into account the importance of the subject matter – namely the relationship between a father and his child – the Court is not convinced that the Court of Appeal has taken its decision on the basis of sufficiently established facts in relying on the written minutes of the child’s hearing without having at its disposal either a psychologist’s expert evidence or a personal oral impression of L. in order to evaluate the child’s statements and the possibilities at hand to re‑establish contact (see Elsholz, cited above, §§ 52-53; and contrast, Sommerfeld, cited above, § 74).
16. The Court has constantly emphasised that the national authorities are better placed to evaluate the evidence adduced before them (see, among many other authorities Winterwerp v. the Netherlands, 24 October 1979, § 40, Series A no. 33), and it is thus not for the international judge to find on whether the suspension of the applicant’s contacts with his child was actually justified.
17. However, in a situation in which the Family Court had expressed concerns about the mother’s influence on the child and ordered contact with the applicant in spite of the child’s refusal to see her father, the Court of Appeal’s failure either to hear the child again before suspending the applicant’s contacts or to order an expert opinion, which the specialist parties had recommended, reveals, in the Court’s opinion, that the Court of Appeal’s procedural approach did not provide it with a sufficient factual basis for its decision-making. It follows that the procedural requirements implicit in Article 8 of the Convention were not complied with.
18. There has accordingly been a violation of Article 8 of the Convention.
- OTHER COMPLAINTS
19. The applicant also complained under Article 6 of the Convention. Having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
APPLICATION OF ARTICLE 41 OF THE CONVENTION
20. The applicant claimed 8,000 euros (EUR) in respect of non-pecuniary damage and EUR 9,741.67 in respect of costs and expenses incurred before the domestic courts and before the Court.
21. The Government did not comment on the applicant’s claims.
22. The applicant must have sustained non‑pecuniary damage which cannot be compensated solely by the finding of a violation. Having regard to the nature of the violation found, and making its assessment on an equitable basis, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
23. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the applicant EUR 6,000 covering costs under all heads, plus any tax that may be chargeable to the applicant.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
- Declares the applicant’s complaint under Article 8 admissible;
- Holds that there has been a violation of Article 8 of the Convention;
- Holds that there is no need to examine the admissibility and merits of the complaint under Article 6 of the Convention;
(a) that the respondent State is to pay the applicant, within three months, the following amounts:
(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 24 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Deputy Registrar President
Translation into German can be found here.