THIRD SECTION
CASE OF STÜKER v. GERMANY
(Application no. 58718/15)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
20 April 2021
 
This judgment is final but it may be subject to editorial revision. In the case of Stüker v. Germany,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
 Georges Ravarani, President,
 Darian Pavli,
 Anja Seibert-Fohr, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 58718/15) 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”) by a German national, Mr Frank Stüker (“the applicant”), on 24 November 2015;
the parties’ observations;
Having deliberated in private on 23 March 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the adoption of the applicant’s adult son by the mother’s husband without the consent of the applicant. The Heilbronn Family Court (“the Family Court”) allowed the adoption, but did not provide any reasons for its decision. The applicant relied on Articles 6 § 1 and 8 of the Convention. THE FACTS
2. The applicant was born in 1961 and lives in Hamburg. The applicant was represented by Mr Rixe, a lawyer practising in Bielefeld. 3. The Government were represented by one of their Agents, Mr H.‑J. Behrens, of the Federal Ministry of Justice and Consumer Protection. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant is the father of a son (“the son”) born out of wedlock on 15 January 1996. 6. In 1998 the parents separated and the son stayed with his mother (“the mother”). 7. In 2000 the new partner of the mother started to live with the mother and the son. From that time, the applicant no longer had any contact with his son because the mother denied him any involvement in his life. 8. In 2002 the mother married her new partner (“the stepfather”) and a daughter was born of their marriage. 9. In 2006 the Heilbronn Regional Court ordered the mother to refund to the applicant the amount of 194,924.70 euros (EUR). It found that in 1996 the applicant had funded the mother’s purchase of a house, which she had later sold. Since the house had initially been their designated family home, the mother was obliged to refund the applicant the payments that he had made to her. The mother appealed against the Regional Court’s judgment, and during the appeal proceedings the applicant withdrew his claim for the return of the above‑mentioned payments, arguing that that was in the best interests of their son. 10. On 21 January 2014 the 18-year-old son – together with the stepfather – lodged an adoption application with the Heilbronn Family Court; he sought that the stepfather be allowed to adopt him in a manner “giving rise to the same effects as those arising from the adoption of a minor” (Annahme mit den Wirkungen der Minderjährigenannahme). 11. By a letter of 31 January 2014 the Family Court notified the applicant of the adoption application and invited him to submit comments. As regards the procedure in respect and the consequences of the adoption, the letter stated:
 “In the event of this adoption [taking place], the child’s family ties with you [the applicant] and with your relatives will cease to exist, pursuant to Article 1755 (1) of the Civil Code, including the rights and obligations arising therefrom – in particular the reciprocal rights of inheritance and maintenance. You are invited to comment on the adoption application within three weeks and to inform [the court] whether you agree to the adoption or to state the reasons for any objection. You are, however, informed that your consent to the requested adoption is not required and that the court will allow the adoption, pursuant to Article 1767 of the Civil Code, provided that this is not in conflict with any overriding interests [überwiegende Interessen] that you may have (second sentence of Article 1772 § 1 of the Civil Code) and that the [child’s] relationship [with the new parent] is morally justified, which applies in particular if a parent-child relationship has already been established between the adoptive parent and the person to be adopted.”
12. By a letter dated 18 March 2014 the applicant’s lawyer informed the Family Court that the applicant objected to the adoption in the light of his overriding interests. He argued that the adoption would affect not only his emotional but also his economic interests – in particular the right to seek financial maintenance from his son in the future (should he not have sufficient financial means of his own to support himself). In the past, he had funded the purchase of the above-mentioned house in order to share a life with his son and to provide financial security for his son’s childhood and youth. Moreover, he had been a caring father and had financed the living costs of the family until his separation from his son’s mother. Afterwards the mother had cut off all contact and had not even provided him with her bank account details so that he could continue to send her maintenance payments. Furthermore, he had then not been able to find a job in the vicinity of his son’s place of residence because he had been living abroad for a long time and had subsequently been self-employed; consequently, he had not been entitled to any benefits under the State social insurance scheme, but had been living on minimum subsistence benefits. 13. The applicant furthermore argued (in the letter dated 18 March 2014) that an adoption in a manner “giving rise to the same effects as those arising from the adoption of a minor” would not only deprive his son of half of his identity, but would also reinforce the erroneous impression, which the mother had been trying to convey for years, that the applicant had never cared for his son and had never had a relationship with him. Furthermore, the son would lose his right to inherit from the applicant – for example, he would lose his right to inherit the applicant’s financial claims against the mother. His son was not aware of those consequences, and nor was the proposed adoption based on his son’s true wishes. His son was influenced by the mother. 14. In a letter dated 6 July 2014, at the request of the Family Court, the stepfather described his relationship with his stepson, which he described as good. Since 2000 they had been living together in the same household and he had cared for him and financially maintained him. 15. In a letter of 20 July 2014, at the request of the Family Court, the son elaborated on his reasons for lodging the adoption application. He stated, inter alia, that after his parents had separated there had been times when the applicant had displayed aggressive behavior towards his mother and his maternal grandparents. That had made him anxious about spending time with the applicant. Since 1999 he had no longer wished to have contact with the applicant and he also wished to have no bond with him in the future. He described his close relationship with his stepfather, whom he addressed as “Dad”, and how much he enjoyed spending time with him, his mother and his half-sister. It was thus important for him that he and his stepfather enjoyed the same rights as those that a biological son and his father enjoyed. 16. On 13 August 2014 the Family Court, after holding a hearing in the presence of the son and the stepfather, allowed the adoption of the son by his stepfather in a manner “giving rise to the same effects as those arising from the adoption of a minor”. As to the reasons for the adoption, it found as follows:
“Since all statutory requirements for adopting a child have been met, [the adoption] has to be allowed. The application was received by the court on 23 January 2014. Overriding interests of the parents of the person to be adopted are not in conflict with the [proposed] adoption (second sentence of Article 1772 § 1 of the Civil Code). [The decision to adopt the son] as a child is based on Articles 1767 and 1772 of the Civil Code.”
17. By a letter dated 12 September 2014 the Family Court notified the applicant of the adoption decision. 18. On 6 October 2014, having requested and received a copy of the adoption decision, the applicant lodged a complaint alleging a violation of his right to be heard. He argued that the Family Court had not taken into account his written submissions or his overriding interest against the adoption. 19. On 20 October 2014 the Family Court dismissed the complaint. It found that the applicant’s right to be heard had not been violated. It had taken into account the applicant’s written submissions, the entire court case file and the conclusions of the hearing. 20. The applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging that the adoption had violated his right to family life and his right to be heard because the Family Court had failed to provide reasons for its adoption decision. 21. On 20 May 2015 the Federal Constitutional Court declined to examine the complaint, without providing reasons (file no. 1 BvR 3123/14). RELEVANT LEGAL FRAMEWORK AND PRACTICE
Relevant provisions of the Civil Code
22. The legal effects of the adoption of a minor are governed by Article 1755 of the Civil Code, which reads as follows:
Article 1755
Extinguishing of family ties
“(1) Upon adoption, the family ties of the child and its descendants with previous relatives and the rights and duties arising from [those ties] are extinguished. Claims of the child that arose before the adoption – in particular in respect of pensions, orphan’s allowance [Waisengeld] and other similar recurring payments – are not affected by the adoption; this does not apply to claims for maintenance. (2) If a spouse adopts the child of his or her spouse, the extinguishing of the relationship occurs only in relation to the other parent and his [or her] relatives.”
23. The relevant provisions governing the adoption of an adult read, in so far as relevant, as follows:
Article 1767
Admissibility of an adoption – applicable provisions
“(1) A person of adult age may be adopted if the adoption is morally justified; it is to be assumed to be so in particular if a parent-child relationship has already developed between the adoptive parent and the person to be adopted. (2) The adoption of persons of adult age is governed by the provisions on the adoption of minors, with the necessary modifications – except as otherwise provided by the following provisions ...”
Article 1770
Effects of adoption
“(1) The effects of the adoption of a person of adult age do not extend to the relatives of the adoptive parent ... (2) The rights and duties arising from the relationship between an adopted person and his descendants and their relatives are not affected by the adoption, except as otherwise provided by law. (3) The adoptive parent is obliged to pay maintenance to the adopted person ...; [only if the adoptive parent cannot meet that obligation is the obligation transferred to the] blood relatives of the person adopted.”
Article 1772
Adoption in a manner giving rise to the same effects as those arising from the adoption of a minor
“(1) Upon the lodging of an application by the adoptive parent and the person to be adopted, the family court may, when allowing the adoption of a person of adult age, rule that the effects of the adoption shall be based on the provisions governing the adoption of a minor ... (Articles 1754-56), if
a) a minor who is the brother or the sister of the person to be adopted has been adopted by the adoptive parent or is adopted at the same time, or
b) the person to be adopted was taken into the family of the adoptive parent when he was a minor, or
c) the adoptive parent adopts the child of his spouse, or
d) the person to be adopted is not yet of adult age at the time at which the adoption application is lodged with the family court. Such a ruling may not be made if overriding interests of the parents of the person to be adopted are in conflict with it.
...”
Act on Non-Contentious Proceedings
24. As the case of proceedings in respect of other family-related matters, adoption proceedings are governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). 25. Under Article 12 of that Act, the relevant court shall, ex officio, undertake those measures of investigation that are necessary to establish the relevant facts and adduce the evidence that appears appropriate. 26. Under Article 44 of that Act, a complaint concerning a violation of a party’s right to be heard must be lodged within two weeks of that party learning of that violation; the question of when the violation became known must be credibly demonstrated to the court. No complaint may be lodged after a period of one year has lapsed from the time of the notification of the challenged decision. Relevant case-law on the adoption of adults in a manner giving rise to the same effects as those arising from the adoption of a minor
27. In a decision dated 8 May 2009 (file no. 31 Wx 147/08), the Munich Court of Appeal upheld a family court decision refusing the adoption of an adult in a manner “giving rise to the same effects as those arising from the adoption of a minor”. It found that the biological father, who had paid maintenance for years – even after his daughter had attained the age of majority – could in the future (in the event of need) lodge a claim for maintenance against her; the possibility of such a future claim constituted an interest overriding his daughter’s interest in being allowed an adoption that had the effect of severing family ties. 28. In a decision dated 18 March 2019 (file no. 13 UF 11/17), the Brandenburg Court of Appeal found, in respect of a case where the biological parent had a stable and regular income, that the adoption was not to be refused on the grounds that the biological parent might in the future lodge a claim for maintenance against the child; the appellate court justified its decision by reasoning that there was no real risk that the biological parent would in future be in need of maintenance payments owing to unemployment or a need to pay for nursing care. 29. In a decision dated 19 February 2007 (file no. 1 BvR 510/03), the Federal Constitutional Court confirmed that biological parents had to be given the opportunity to comment on the proposed adoption of their adult child prior to a decision thereon, in order to be able to influence the proceedings and their outcome. The biological parents of a person to be adopted were among those persons substantively affected by such an adoption – particularly in the case of the adoption of a person of adult age in a manner “giving rise to the same effects as those arising from the adoption of a minor”, given the fact that in such event, family ties between the biological parents and a person so adopted would be cut off. THE LAW
THE GOVERNMENTS’S UNILATERAL DECLARATIONThe parties’ submissions

30. The Government submitted a unilateral declaration, in which they expressly acknowledged that the applicant’s right to a fair trial under Article 6 § 1 of the Convention had been violated. They accepted to pay EUR 900 to the applicant to settle all his claims in connection with the application and invited the Court to strike the application out of its list of cases on the basis of that declaration. 31. The applicant disagreed, arguing in particular that the sum offered by the Government was unacceptably low, given the fact that, in addition to a violation of Article 6, there had also been a violation of Article 8.

Outcome for Article 8: violation