The exclusion of a German man from his daughter’s life was reasonable, the European Court of Human Rights (ECHR) has ruled.
In Buchleither v Germany, the couple in question had never married. They separated shortly after the birth of a child in 2003. Their daughter still lives with her mother and the father has no parental responsibility.
The parents have been arguing about his right to see his daughter since not long after the birth. In April 2004, the father, who lives in the southwestern town of Rastatt, filed a request with the local family court and was granted supervised visits which continued until October. A fresh agreement was reached in December and further visits took place but the situation became increasingly strained, with one social services department refusing to continue working with the parents “due to the parties’ behaviour”. Later a child protection association also dropped out of the case due to the mother’s behaviour.
In October 2004, the man requested the imposition of a fine in order to enforce his contact rights. He repeated the request in May 2007. The mother responded with her own request – that contact be suspended for two years. The following year, a family court agreed to a suspension until the end of 2009. The father pursued an unsuccessful complaint regarding this decision through the courts.
At the end of the suspension, the father had been granted fortnightly visits but these never took place. The mother returned to court and was granted a further suspension of all contact between father and daughter.
He pursued his claim through the courts but the situation only grew worse. In 2011, a court suspended contact with his daughter indefinitely on the advice of a psychiatrist.
The latter claimed that “…a suspension of the applicant’s contact was, at the moment, the less damaging approach and therefore in the child’s best interest. Contact with the applicant as such was not found to be damaging, but the circumstances of the conflict rendered a different solution at the moment impossible.”
The father had agreed on mediation but the mother refused to participate.
This decision was upheld at the Court of Appeal. Judges there “considered… that contact had to be permanently suspended because ordering contact would affect the child’s welfare. The court noted that the child had not had any contact with her father for four years, and that he had become a stranger to her.”
The daughter gave evidence in court, saying she did not want to see him. She appeared to be mature for her age and made it clear that she wanted her wishes to be respected and that would not be forced into seeing her father. She claimed to only have limited, bad memories of him. Her legal guardian reported that she had begun to cry and left the room when asked about her father.
The ECHR ruling noted that:
“The Court of Appeal considered that the child’s attitude had been influenced by the loyalty she felt towards her mother, who continuously talked negatively about the father. The child felt obliged to feel the same way as her mother. She longed for the dispute between her parents to come to an end so that she would no longer be exposed to a conflict of loyalties. She saw rejecting her father as the only way to preserve at least her mother’s love.”
The Court of Appeal concluded that the daughter was capable of making a clear decision. Forcing her to see her father as the parents’ conflict continued could “seriously affect the child”.
The determined father than took his case to the European Court of Human Rights, arguing that indefinite suspension amounted to a breach of his right to private and family life, as defined by Article 8 of the European Convention on Human Rights.
The ECHR ruled, by a margin of four votes to three, that there had been a technical breach of Article 8, but the decisions which lay behind that had been based on the circumstances of the case and consideration for the child’s welfare, decisions which had not exceeded the authority of the German courts. Their rulings:
“…did not overstep the margin of appreciation afforded to the domestic courts in matters concerning a parent’s contact with his or her minor child, and can still be regarded as having been “necessary” in a democratic society.”
Read the ruling here.