Court/Judicial body: European Court of Human Rights
Date: July 8, 2003 CRC
Provisions: Article 3: Best interests of the child Article 9: Separation from parents
Other international provisions:European Convention on Human Rights ( Article 8: Right to private life, Article 14: Non-discrimination)
Domestic provisions:German Civil Code: Section 1626, 1634, 1684, 1705 and 1711
Background: A child was born out of wedlock. The father acknowledged paternity, regularly paid maintenance and visited the child. After several years, the mother prohibited all contact between the child and the father. The father filed a petition with the family court seeking access to the child. His petition was denied when the judge found that granting the father access would be harmful to the child because of, among other things, the serious tensions between the parents. However, the evidence considered in the lower court was suspect, as the child herself was never asked about her father and whether she wanted to continue seeing him.
Issue and resolution: Separation from parents and best interests of the child. Specifically, the Court looked at whether denying the father access to his child was a violation of the right to private life or protection from discrimination under the European Convention on Human Rights (ECHR). The court found that there was no violation of the father’s right to private life, but that he had been discriminated against as a father out of wedlock
Court reasoning: The German courts’ decision to deny the father access to the child was reasonable given the serious tension between the father and the mother and the ways in which it might interfere with her development. However, German custody law is unreasonable as it treats fathers of children born in wedlock and fathers of children born out of wedlock differently. Fathers of children born in wedlock were afforded a right of access which could only be restricted if necessary in a child’s interests, while fathers of children born out of wedlock had no such right absent permission of the child’s mother or a court order finding access to be in the child’s interests. This difference in treatment violates the father’s right to non-discrimination under Article 14 of the ECHR.
Dissenting opinion: The two dissenting opinions stated that the father’s right to private life under Article 8 of the ECHR had also been violated. Both dissenting opinions pointed out that the evidence considered by the German courts was minimal and not sufficient to reach a decision on whether to grant or deny the father access over the mother’s objections.
Excerpt citing CRC and other relevant human rights D. The United Nations Convention on the Rights of the Child 39. The human rights of children and the standards to which all States must aspire in realising these rights for all children are set out in the United Nations Convention on the Rights of the Child. The convention entered into force on 2 September 1990 and has been ratified by 191 countries, including Germany. 40. The convention spells out the basic human rights that children everywhere – without discrimination – have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. It further protects children’s rights by setting standards in health care, education and legal, civil and social services. 41.States parties to the convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child ( Article 3). Moreover, States parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child, and respect the right of a child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests ( Article 9). … 64. In determining whether the refusal of access was “necessary in a democratic society”, the Court has to consider 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. Undoubtedly, consideration of what is in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55, and Kutzner v. Germany, no. 46544/99, §§ 65-66, ECHR 2002-I; see also the Convention on the Rights of the Child – paragraphs 39-41 above). … 66. Article 8 [of the European Convention on Human Rights] requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be end under Article 8 to have such measures taken as would harm the child’s health and development. Follow-up: This case was cited and its discussion of the Convention of the Rights of the Child repeated verbatim in a later case before the European Court of Human Rights concerning a biological father’s access to a child born out of wedlock, Sommerfeld v. Germany (31871/96),  ECHR 341.
CRIN comments: CRIN believes that the end result of this decision is generally consistent with the CRC, and that children have the right to maintain personal contact and direct relations with both of their parents unless it runs strongly against their best interests. In this case, however, the child was not even consulted. Moreover, there appears to be no evidence that cutting off her relationship with her father would be any more harmful to her best interests than forcing her parents to interact in an uncomfortable way in order to make visits possible. CRIN believes strongly that children should be given a voice in all matters that affect them, and that States Parties to the CRC must do everything possible to make healthy relations between children and each of their parents possible.
Citation: Sahin v. Germany, (30943/96)  ECHR 340
Link to full judgement: http://hudoc.echr.coe.int/eng?i=001-61194