PROCEDURE

The case originated in an application (no. 35637/03) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Gerald Sporer (“the applicant”), on 12 November 2003.

The applicant was represented by Mrs M. Speer, a lawyer practising in Mattighofen. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

The applicant alleged that the relevant provisions of the Civil Code relating to custody and their application by the courts had discriminated against him as the father of a child born out of wedlock. Furthermore, he alleged that the District Court had failed to hold a hearing to discuss the decisive expert opinion and, more generally, that it had failed to hear him in person.

By a decision of 25 September 2008 the Court declared the application admissible.

Neither party filed further observations on the merits of the case.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1976 and lives in Schalchen.

The applicant’s son K. was born out of wedlock on 26 May 2000. The child was given the applicant’s family name by decision of the Braunau District Administrative Authority of 29 June 2000.

At that time K.’s mother was living as a tenant in the applicant’s house, in a separate apartment. The applicant was sharing an apartment with his long-term partner, U., who later became his wife, and their son D. aged six at that time. During K.’s first year the applicant took parental leave and took care of him together with U. Subsequently, K.’s mother took parental leave.

In early January 2002 K.’s mother moved out of the applicant’s house.

On 28 January 2002 the applicant asked the Mattighofen District Court (Bezirksgericht) to transfer sole custody of K. to him under Article 176 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch). He submitted in particular that he and U. had mainly taken care of K. and that the child’s mother was not capable of doing so. The latter opposed the transfer of custody. At that stage and at all subsequent stages of the proceedings the applicant was assisted by counsel.

By letter of 12 February 2002 the Youth Office (Jugendamt), which had been following the case since summer 2001, expressed the view that both parents were capable of exercising custody.

On 12 March 2002 the applicant and K.’s mother appeared before the District Court and were heard by the judge.

According to the minutes, the applicant requested that the opinion of an expert in child psychology be taken. K.’s mother agreed to that request. The court appointed Dr J.-W., an expert in child psychology, and ordered him to submit an opinion on whether the interests of the child were better served by leaving sole custody with the mother or by awarding it to the applicant. The judge then proceeded to discuss the factual and legal issues with the parties. The parties then concluded an agreement to the effect that, pending a decision on custody, K. would spend three days with his mother and three days with the applicant.

The expert, Dr J.-W., submitted his opinion to the Court on 17 April 2002. The opinion was based on interviews which the expert had conducted with K.’s mother and the applicant and his partner. He had also paid a visit to the applicant’s home during which he had observed how the applicant and the other members of his family interacted with K. The expert opinion was served on the applicant.

On 8 July 2002 the District Court held a hearing in the presence of the applicant, his counsel, K.’s mother, Dr J.-W. and a representative of the Youth Office.

According to the minutes, the contents of the file were read out. Subsequently, Dr J.-W.’s opinion was discussed. In the course of the hearing Dr J.-W. supplemented his opinion. He expressed the view that K.’s mother was very immature and not yet capable of taking care of him and recommended the transfer of sole custody to the applicant. The representative of the Youth Office opposed the view that K.’s mother was not capable of raising the child. None of the parties made further submissions.

On the following day, that is, on 9 July 2002, the District Court ordered a second expert in child psychology, Dr R., to submit an opinion on whether or not K.’s mother was capable of taking care of him. In her opinion of 15 July 2002, Dr R. came to the conclusion that K.’s mother was sufficiently mature, did not show any emotional instability and was capable of taking care of him. A copy of this expert opinion was served on the applicant.

In addition the District Court requested the Youth Office to prepare a report. A representative of the Youth Office visited K. and his mother at their home and as a result of that visit concluded that she was able to exercise custody.

On 29 July and 13 August 2002 the applicant requested that a decisive expert opinion (Obergutachten) be commissioned. The motion contained comprehensive submissions on K.’s mother’s alleged incapacity to raise him.

The District Court ordered a third expert, Dr B., to submit a decisive expert opinion on the question whether K.’s mother was capable of exercising custody.

Both the applicant and K.’s mother made further written submissions. Each of them forwarded detailed arguments as to why the other parent was not an appropriate person to take care of K.

On 14 October 2002 Dr B. submitted his expert opinion. Having interviewed the applicant and K.’s mother, he found that both parents were in principle capable of taking care of K. The mother had some issues as regards her own personality development and a somewhat limited capacity to cope with everyday life. The applicant had a tendency to dominate and had given reason to fear that, if custody was awarded to him, he would try to curtail the mother’s access rights. The applicant could provide a more stable environment and a more coherent style of upbringing. However, K.’s best interests would not be manifestly endangered if custody remained with his mother. It was recommended that the applicant be given extensive access rights, in that K. should stay with him from Friday to Sunday every second weekend, spend two weeks with him in summer and one week during the Christmas period.

A copy of Dr B.’s expert opinion was served on the applicant, and he was given 14 days to submit comments. Within that time-limit, the applicant requested that the expert opinion be discussed at a hearing. He did not make any comments in writing.

Without holding a further hearing, the District Court dismissed the applicant’s request for sole custody of K. to be transferred to him by decision of 4 December 2002.

The District Court noted that under Article 166 of the Civil Code the mother of a child born out of wedlock had sole custody. A transfer of custody was only to be ordered if the child’s best interests were at risk. In the present case the applicant would have had to prove that K.’s mother was unable to take care of him. While the first expert, Mr J.-W., had come to the conclusion that this was the case, the second expert, Ms R., had reached the opposite conclusion. Finally, the decisive expert opinion by Mr B. had found it established that K.’s mother was capable of taking care of him. Having regard to the second and third expert opinions and to the view expressed by the Youth Office, it had been established that K.’s mother was able to exercise custody and the applicant had failed to adduce proof to the contrary.

Furthermore, the District Court noted that it had not considered it necessary to hold a hearing to discuss the decisive expert opinion, since it found that opinion coherent and convincing. The factual and legal issues of the case had therefore been sufficiently clarified and a hearing would only have delayed the proceedings. It followed that the applicant’s further requests for the taking of evidence had to be dismissed.

Finally, the court ruled that its decision was immediately enforceable with the consequence that the agreement of 12 March 2002 was no longer effective.

The applicant appealed. He complained about a number of procedural shortcomings. He alleged, inter alia, that the District Court had failed to hold a hearing for the purpose of discussing Dr B.’s expert opinion, and that it had not heard him in person.

In addition, the applicant contended that the relevant provisions of the Civil Code, namely, Articles 166 and 176, were discriminatory and suggested that the appellate court request the Constitutional Court to rule on their constitutionality. Since K. had been born out of wedlock, his mother had sole custody of him and he, as the child’s father, could only be awarded custody if the mother put the child’s well-being at risk. In the case of a child born in wedlock the parents had joint custody and retained it upon divorce or separation unless the child’s best interests required that sole custody be awarded to one of them. The application of different criteria when the parents of a child born out of wedlock separated lacked reasonable justification.

On 24 February 2003 the Ried Regional Court dismissed the applicant’s appeal.

The Regional Court found that the proceedings before the District Court had not suffered from any procedural defects. In non-contentious proceedings it was not always required to question the parties at a hearing. A hearing had been held on 8 July 2002 in the presence of the applicant. Furthermore, the applicant had had the opportunity to file written submissions, of which he had made ample use. He had also been interviewed by the experts. A further hearing for the purpose of discussing the decisive expert opinion of Dr B. would only have been required had there been substantial doubts as to its correctness.

Moreover, the Regional Court did not see any reason to request the Constitutional Court to rule on the constitutionality of the relevant provisions of the Civil Code. It noted that Article 167 of the Civil Code allowed life-companions to request joint custody. The applicant had not claimed to have cohabited with K.’s mother. On the contrary he had co‑habited with another woman, U., who had meanwhile become his wife.

A distinction between children born in wedlock and children born out of wedlock was not discriminatory as long as it was objectively justified. The rule contained in Article 176 of the Civil Code that in the case of a child born out of wedlock (unless the parents had requested joint custody under Article 167) custody was only to be transferred if the mother put the child’s well-being at risk, was based on the consideration that in the majority of cases of children born out of wedlock it was actually the mother who took care of the child.

The applicant filed an extraordinary appeal on points of law. He repeated his complaints about the alleged procedural shortcomings. In particular, he submitted that the court had neither held a hearing to discuss the decisive expert opinion of Dr B. nor given him an opportunity to comment in writing. The applicant also reiterated his request for the case to be submitted to the Constitutional Court.

On 26 June 2003 the Supreme Court (Oberster Gerichtshof) dismissed the applicant’s extraordinary appeal on points of law. It noted that the courts were not obliged to hold hearings in custody proceedings. The applicant had been given the opportunity to comment on the expert opinion at issue. Moreover, the courts had correctly applied Article 176 of the Civil Code. It had not been shown that the mother put K.’s well-being at risk.

To date, K.’s mother continues to have sole custody of him while the applicant has a right of access under the terms recommended by the courts in the custody proceedings.

II. RELEVANT DOMESTIC AND COMPARATIVE LAW

A. Relevant domestic law

The relevant provisions of the Civil Code in the version in force at the material time read as follows: Article 144 “The parents shall care for and raise the minor child, manage its assets and represent it in these, as well as in all other matters; care, upbringing and asset management also include representing the child in these matters before the law [in court]. The parents shall proceed on a consensual basis when complying with these obligations and exercising these rights.” Article 166 “The mother shall have sole custody of an illegitimate child. Moreover, unless the present provisions stipulate otherwise, the provisions on legitimate children regarding maintenance and custody shall also apply to illegitimate children.” Article 167 “(1) Whenever the parents of a child live in a common household, they may agree that both parents will have custody in the future. The court shall uphold the agreement if it serves the interests of the child. If one parent leaves the common household, other than on a temporary basis, § 177 and § 177a shall be applied accordingly. (2) Whenever the parents do not live in a common household, they can agree that the father shall also have full custodial powers or regarding specific matters in the future, if they present such an agreement to the court indicating the parent with which the child is to stay primarily. If the child stays primarily in the household of the father, the latter must also be assigned full custody. The court shall uphold the agreement if it serves the interests of the child.”

This version of Article 167 of the Civil Code was introduced by the 2001 Law Amending Child Custody Law, which entered into force on 1 July 2001. Before that date parents of an illegitimate child could only agree on exercising custody jointly if they were living in a common household. Article 176 “(1) Whenever the parents put the well-being of a minor child at risk, on account of their conduct, the court will take the steps necessary to secure the interests of the child, irrespective of which party has applied to the court. In particular, the court may withdraw all or part of the custodial rights in respect of the child, ...” Article 177 “(1) If the marriage of the parents of a minor legitimate child is dissolved or annulled, the custodial rights of both parents remain intact. However, they may present an agreement to the court – even modifying an existing agreement – regarding custodial responsibility. In this connection it may be agreed that one parent alone or both parents shall have custody. Where both parents have custodial powers, those of one parent may be limited to specific matters. (2) Where both parents have custody, they must submit an agreement to the court regarding the parent with whom the child is to stay primarily. This parent must always be put in charge of all custodial matters. (3) The court must approve the agreement of the parents, if it serves the interests of the child.” Article 177a “(1) If an agreement in accordance with Article 177 on the main domicile of the child or on custodial powers is not reached within a reasonable period after a marriage is dissolved or annulled, or if it is incompatible with the interests of the child, the court must decide which parent shall henceforth have sole custody, if all attempts to reach an amicable solution fail. (2) If both parents have custody under Article 177 after their marriage has been dissolved or annulled, and if one parent applies for the withdrawal of that custody, the court must decide which parent shall have sole custody, if all attempts to reach an amicable solution fail.” Article 177b “The above provisions shall also be applied if the parents of a minor legitimate child live apart, other than on a temporary basis. However, in such a case the court shall decide on custody only upon application by a parent.”

B. Relevant comparative law

A recent case concerning similar complaints (Zaunegger v. Germany, no. 22028/04, §§ 22-27, 3 December 2009) contains the following summary of comparative law: “22. A survey on comparative law taking into account the national laws of a selection of Member States of the Council of Europe shows that basically all Member States included in the survey provide for joint parental authority by unmarried parents over their children born out of wedlock. The main elements referred to as a basis for allowing joint parental authority for unmarried parents are the establishment of paternity and the parents’ agreement to exercise joint authority.

However, the solutions in the Member States vary as regards the attribution of joint parental authority for children born out of wedlock in the event no agreement between the parents can be reached in this respect.

In only a limited number of countries do the statutory regulations explicitly address this issue. In a few countries, such as Austria, Norway and Serbia, the national law stipulates that the exercise of joint parental authority of unmarried parents requires the consent of both parents and thus implies that the non-consenting parent has a right of veto. By contrast, the laws in Hungary, Ireland and Monaco appear to provide for a joint exercise of parental authority even without the parents’ consent.

In some Member States such as the Czech Republic and Luxembourg, while the law itself is not clear on the subject, the domestic courts have interpreted the applicable provisions so as to allow joint parental authority only with the consent of the parents, whereas for example the Dutch Supreme Court has held that the national law has to be interpreted so as to enable the father of a child born out of wedlock to request joint parental authority with the mother even though the latter disagrees. A similar approach seems to be followed in Spain.

With the exception of the few countries where a right of veto of one parent is explicitly stipulated in national law, the most common solution put forward by national legislations is that a court decides on the outcome of a corresponding dispute between the parents at the request of one of the parents bearing in mind the best interests of the child. All Member States emphasise the importance of the child’s best interest in decisions regarding the attribution of custody. In determining the child’s best interest in this connection domestic courts commonly take into consideration the positions of the parents and the child and the particular circumstances of the case, as regards, inter alia, the demonstrable interest in and commitment to the child by the respective parent.

In summary, ... , the survey confirms that while different approaches exist in the Member States, the majority provide for paternal participation in custody if the parents were not married to each other, either irrespective of the mother’s will or at least by court order following an evaluation of the child’s interests.”