5.  The applicant, Mr Claus Moog, was born in 1972 and lives in Cologne.
6.  The applicant’s son, D., was born on 18 July 1998. The applicant and D.’s mother, Ms K., separated in 1999. D. has been living with his mother ever since.
7.  Since 1999, the parents have been in dispute over contact and custody. On 18 May 1999, upon the applicant’s request, the Cologne Family Court (“the Family Court”) granted the applicant two visitation periods per week. This decision was modified on 24 March 2000 by a settlement according to which the applicant had a right of contact for eight hours every Saturday. Following an application by the applicant to have his contact time increased, the Family Court held on 16 January 2001 an oral hearing, joined the proceedings on contact to the proceedings on custody rights previously initiated by Ms K. in 1999, and commissioned an expert opinion with regard to the custody of D. On 1 October 2001 the applicant requested that the Family Court impose a fine on Ms K., because she was not cooperating. On 16 November 2001, after the appointed psychology expert had informed the Family Court that he considered that contact with the father was in the child’s best interest, the parties concluded an in-court settlement according to which contact between the applicant and his son should be re-established. By the end of 2001, the applicant had visited the child twice in kindergarten.
8.  On 7 January 2002 the applicant renewed his request to have a fine imposed, because Ms K. was not cooperating. Subsequently, the Family Court issued an interim decision concerning the applicant’s contact rights. Following that, the applicant visited his son once in kindergarten. On 20 March 2002 the Family Court warned Ms K. that it would impose a fine amounting to 2,000 euros (EUR) if she did not comply with her obligations under the settlement concluded on 16 November 2001.
9.  On 28 July 2002 the court-appointed expert, Dr K., having examined the situation of both parents and their child, submitted her report regarding custody. She considered that the child enjoyed contact with his father. However, both parents tended to instrumentalise the child in the pursuit of their own interests. They did not communicate. Accordingly, there was no basis for joint custody. A transfer of custody to the father would not solve the problem, only shift it. On 22 October 2002 the Family Court granted Ms K. custody while rejecting her prior application for a suspension of contact; it granted the applicant contact with his son for six hours each week. Furthermore, it appointed a contact facilitator (Umgangspfleger) charged with facilitating contact periods between the applicant and his son, but declined to appoint a guardian ad litem (Verfahrenspfleger) on the grounds that the child’s interests were sufficiently safeguarded by the court‑appointed expert.
10.  On 18 February 2003 the Cologne Court of Appeal dismissed Ms K.’s related appeal. It held that Ms K. had “intentionally sabotaged” the applicant’s contact with his son. If she did not ensure implementation of the applicant’s contact, the attribution of custody might have to be reconsidered.
11.  On 6 August 2003 the applicant again applied to have the Family Court impose a fine because Ms K. was not cooperating. On 12 August 2003 the Family Court ordered Ms K. to ensure the applicant’s right to contact, failing which a fine could be imposed. Ms K. lodged an appeal. On 2 December 2003 the Cologne Court of Appeal quashed the decision. It found that, according to Ms K.’s submissions and a report by the treating paediatrician and psychotherapist Dr D., the child showed mental abnormalities after contact with the applicant. According to the doctor this was caused by the conflict between the parents. There was thus no doubt that enforcement of the applicant’s right to contact would be harmful to the child.
12.  On 20 June 2005 Ms K., after having been informed that the applicant had visited D. in his kindergarten, applied for the suspension of contact.
13.  On 15 November 2005 the Family Court heard testimony from the child, who declared that he did not wish to see his father anymore.
14.  On 18 January 2006 the applicant once again applied for contact.
15.  On 30 January 2006 the Family Court decided to obtain an affidavit (eidesstattlich versicherte schriftliche Zeugenaussage) from Dr D., the child’s paediatrician.
16.  On 11 March 2006 Dr D. submitted her affidavit stating that the child had been deeply traumatised by being separated from his mother for forced contact with the applicant from the age of ten months, and by the increasingly hostile relationship between his parents. In 2003, contact with his father was followed by extremely aggressive outbursts. D. was in need of psychotherapy, which could not yet be initiated because of his young age and lack of maturity.
17.  On 19 May 2006 the Family Court granted the applicant three contact meetings with the child under the supervision of two court‑appointed psychological experts.
18.  On 13 September 2006 the experts informed the Family Court that they had been unable to supervise contact because Ms K.’s counsel had informed them that both Ms K. and the child had been advised not to talk to the applicant on medical grounds.
19.  On 18 December 2006 the Family Court decided to take a witness statement from the director of D.’s kindergarten as to the child’s behaviour and his relationship with the applicant and with his mother.
20.  On 13 March 2007 the director of the kindergarten submitted a witness statement. She considered that the contact between the applicant and the child which had taken place in June 2005 had been beneficial. She strongly recommended continuing contact visits because the child lived in a rigid world out of touch with reality, highly controlled by his mother and without being able to freely choose his playmates or games. The child reacted to this excessive control in a violent manner. To strengthen the development of the child’s own personality and to let the child experience the real world, a counterbalancing authority figure outside of the child’s mother’s family was greatly needed.
21.  On 30 March 2007 the applicant lodged a fresh application for custody to be transferred to him.
22.  On 24 April 2007 the Family Court issued an interim decision and provisionally granted the applicant contact with the child for seven hours once a month. The court furthermore ordered the mother to prepare D. for contact and to refrain from influencing the child against his father. It found that D. had been pleased when he had met his father. If he had appeared to react emotionally, this had presumably been provoked by his mother. Contact between the applicant and his son was in the child’s best interest. The Family Court furthermore announced that it would impose a fine if Ms K. did not cooperate.
23.  On the first visit, scheduled for 2 June 2007, the son refused to leave with the applicant.
24.  In its statement dated 22 June 2007 the Youth Office gave an account of its conversations with Ms K., the child’s paediatrician Dr D., the child’s school teacher, the applicant and the child. According to this report Dr D. highly recommended family therapy in order to prepare contact between the child and the applicant. The child declared that he wanted to be left in peace and did not want to see his father. He could imagine visits if his parents stopped quarrelling and if his father did not oblige him to go to the Youth Office. According to the child’s school teacher the child needed respite from the legal situation and the applicant lacked empathy. The Youth Office concluded that, with regard to the discrepancy between these submissions, expert opinion was necessary.
25.  On 9 July 2007 the Family Court imposed a coercive fine of EUR 3,000 on Ms K. on the ground that she had failed to meet her obligations under the court order of 24 April 2007.
26.  On 8 January 2008, in the proceedings regarding custody, the Family Court heard testimony from the child, who declared that he did not want to live with his father and that he did not want to go to court anymore. He added that he only saw his paediatrician rarely.
27.  On 8 February 2008, following an appeal by Ms K., the Cologne Court of Appeal quashed the decision to fine her on the grounds that there were serious doubts as to whether Ms K. was able to cooperate in preparing D. for contact with the applicant. According to a medical certificate issued by a psychologist dated 7 January 2008, Ms K. suffered from post-traumatic stress disorder manifesting itself in uncontrollable agitation patterns, palpitations, feelings of panic, trembling, nausea and feelings of helplessness and despair. This clinical picture raised serious doubts as to her ability to properly prepare the child for contact meetings between himself and the applicant. Moreover, in the custody proceedings the child had stated that he had not wanted to have contact with his father at that time. It was not reasonable to act counter the child’s wishes; it was preferable to initiate therapeutic measures. The court further considered that the question of custody rights had to be clarified with regard to Ms K.’s psychological problems and that the hearing of expert opinion in the parallel proceedings on custody rights was indispensable.
28.  On 20 March 2008 the Family Court informed the parties that it did not appear possible to implement contact. Accordingly, it would suspend the contact proceedings pending the proceedings on custody rights, in which an expert opinion would be commissioned. Subsequently, during the custody proceedings the Family Court appointed an expert to examine whether it was in the child’s best interest that his mother maintained custody.
29.  On 25 November 2008 the Family Court held a hearing at which the applicant and the mother’s counsel were present.
30.  On 12 December 2008, before the expert had submitted her expert opinion, the Family Court decided to suspend the applicant’s contact until 31 December 2011. It considered that because of the massive and continuing conflict between the parents, the child would experience a serious conflict of loyalty if contact was enforced. This would seriously jeopardise his welfare. The court further considered that Ms K., because of her own stress disorder, which had been established by medical certificates, was not able to prepare the child for contact meetings with the applicant properly. As had already been pointed out by the court-appointed expert in 2002 (see paragraph 9 above), contact without a minimum of cooperation between the parents would put serious strain on the child. This should be avoided considering his ongoing therapeutic treatment. In view of the lack of co-operation from Ms K., it had to be expected that forced contact would again traumatise the child. Consequently the child’s well-being required the suspension of the applicant’s contact rights for three years in order to allow the child to undergo trauma therapy (Traumatherapie).
31.  On 5 January 2009 the applicant appealed against the Family Court’s suspension of contact. He complained, inter alia, that the Family Court had relied on an outdated expert report, failed to explore the child’s true wishes and assumed a traumatisation of the child which had never been confirmed by an independent expert.
32.  On 30 January 2009 the expert submitted a preliminary expert opinion in the custody proceedings, stating, inter alia, that contact with the applicant would not jeopardise the child’s welfare.
33.  On 12 May 2009 the Family Court rejected the applicant’s application for custody while having regard to the fact that neither the appointed guardian ad litem nor the expert had been able to examine Ms K. and the child owing to Ms K.’s refusal. It relied on the expert’s preliminary report according to which a transfer of custody was not in the child’s best interest, although there was no indication that contact with the applicant would jeopardise the child’s welfare. On the other hand there were indications that Ms K.’s obstructive attitude towards contact between the applicant and the child would do so. On 30 June 2009 the Cologne Court of Appeal dismissed a related appeal by the applicant.
34.  On 30 June 2009, the Cologne Court of Appeal rendered its decision on the basis of the case-file and confirmed the Family Court’s decision to suspend contact (see paragraph 30 above), even though this decision meant that Ms K., who – for whatever reason – had wanted to prevent contact with the applicant, had managed to attain her aim. It observed that the child, when heard by the Family Court on 8 January 2008 during the custody proceedings, had clearly stated that he currently did not wish to see his father. By a letter to the guardian ad litem dating from 2008, the child had stated that he did not wish to discuss this issue further, having already expressed his opinion five times. The Youth Office had confirmed on 22 June 2007 that D. wanted to be left in peace and that he had not wanted to see his father, as the latter always “obliged him to go to the Youth Office”. This was in line with D.’s statement to his paediatrician in 2007. These statements demonstrated that D. had established an association between his father and the court hearings, which he disliked. Only a period of respite could give D. the feeling that he could decide on his own whether he wished to see his father. Furthermore, this period of time would also allow Ms K. to reflect on her behaviour. She should be aware of the fact that D., when reaching adolescence, would be in urgent need of his father as a counterbalancing authority figure. The applicant’s own submissions did not lead to different conclusions. The conflict of loyalty to which D. was exposed was certainly not exclusively imputable to Ms K. Furthermore, it would undoubtedly not be compatible with the child’s welfare to separate him from both parents and to place him in a boarding school, as had been suggested by the applicant. Referring to its decision on custody rights given on that same day, the Court of Appeal lastly observed that D. was developing in a positive way.
35.  On 10 August 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint regarding both contact and custody, without giving reasons (no. 1 BvR 1831/09).