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issued by the Registrar of the Court   ECHR 144 (2011)   15.09.2011   German courts should have considered child’s best interest   when deciding about access rights of presumed biological   father   In today’s Chamber judgment in the case Schneider v. Germany   no. 17080/07), which is not final1, the European Court of Human Rights held,   unanimously, that there had been:   (application   A violation of Article 8 (right to respect for private and family life) of the   European Convention on Human Rights.   The case concerned the German courts’ refusal to grant the applicant access to a boy   who he claims is his biological son and whose legal father is the mother’s husband.   Principal facts   The applicant, Michael Schneider, is a German national who was born in 1958 and lives   in Fulda (Germany). Between May 2002 and September 2003, he had a relationship with   a married woman, Mrs H., and claims to be the biological father of her son, F., born in   March 2004, whose legal father is the mother’s husband. The married couple now live in   the United Kingdom with F., their older daughter and another child born in 2007. They   acknowledge that Mr Schneider might be F.’s biological father, but claim that it could just   as well be Mr H. and prefer not to verify paternity in the interest of their family.   During Mrs H.’s pregnancy, Mr Schneider accompanied her to at least two medical   consultations and acknowledged paternity of the child to be born before the Youth Office.   Subsequent to F.’s birth, in August 2004, Mr Schneider applied to the Fulda District   Court, requesting access to F. twice a month and regular information about the boy’s   development. The court dismissed the request in October 2005, finding that Mr   Schneider, even assuming that he was the boy’s biological father, did not fall within the   group of people who had a right of access under the relevant provisions of the German   Civil Code. In particular, he was not the boy’s legal father; his acknowledgement of   paternity was not valid, as Mr H.’s paternity prevailed; he had no right to contest Mr H.’s   paternity, as there was a social and family relationship between the latter and the boy;   and Mr Schneider did not have close ties with the boy, as he had never lived with him.   In February 2006, the Frankfurt am Main Court of Appeal dismissed Mr Schneider’s   appeal, confirming the district court’s findings. In September 2006, the Federal   Constitutional Court declined to consider his constitutional complaint (file no. 1 BvR   1337/06). It held that the complaint was inadmissible in so far as he had complained   about the lower courts’ failure to determine his paternity of F., as Mr Schneider should   have contested Mr H.’s paternity in separate proceedings under the Civil Code prior to   lodging his constitutional complaint. As regards his complaint about the courts’ refusal to   Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month   period following its delivery, any party may request that the case be referred to the Grand Chamber of the   Court. If such a request is made, a panel of five judges considers whether the case deserves further   examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral   request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for   supervision of its execution. Further information about the execution process can be found here:   www.coe.int/t/dghl/monitoring/execution   grant him access to and information about F., his rights had not been breached, as the   German Basic Law protected the relationship between a biological father - who was not   the legal father - and his child only where there was a social relationship between them   which was based on the father having borne actual responsibility for the child at least for   a period of time.   Complaints, procedure and composition of the Court   Relying in particular on Article 8, Mr Schneider complained that the German courts   refused to grant him access to the boy and information about his personal   circumstances, and that the courts failed to investigate sufficiently the relevant facts   concerning his relationship with his son, in particular his paternity and the question of   whether access was in the child’s best interest. He further complained that the court   decisions discriminated against him, relying on Article 8 in conjunction with Article 14   (prohibition of discrimination).   The application was lodged with the European Court of Human Rights on 4 April 2007.   Judgment was given by a Chamber of seven, composed as follows:   Dean Spielmann (Luxembourg), PRESIDENT,   Karel Jungwiert (the Czech Republic),   Boštjan M. Zupančič (Slovenia),   Mark Villiger (Liechtenstein),   Isabelle Berro-Lefèvre (Monaco),   Ann Power (Ireland),   Angelika Nußberger (Germany), JUDGES,   and also Claudia Westerdiek, SECTION REGISTRAR.   Decision of the Court   Article 8   The Court found that the domestic courts’ decisions to refuse Mr Schneider contact with   and information about F., whom he presumed to be his son, constituted an interference   with his rights under Article 8. It was true that, given that it had not been established   that Mr Schneider was in fact F.’s biological father and that there had never been a close   personal relationship between him and the boy, there had not been any existing “family   life”. However, that fact could not be held against Mr Schneider. Under the applicable   provisions of the Civil Code, as interpreted by the domestic courts, his acknowledgement   of paternity was not valid as Mr H.’s paternity prevailed. Separate paternity proceedings   under the Civil Code – which in the Government’s view Mr Schneider had failed to   institute – would have been bound to fail on the basis of the existing domestic law.   Moreover, such proceedings would have been aimed at obtaining the status of a legal   parent, a more far-reaching objective than Mr Schneider’s aim of establishing biological   paternity for the purpose of access to the child. Furthermore, the boy’s legal parents had   refused his requests for access.   The Court noted that while Mr Schneider and Mrs H. had never lived together, it was   uncontested that they had had a relationship - lasting for one year and four months –   which was not merely haphazard. Mr Schneider had shown sufficient interest in F.,   having planned to have the child with Mrs H., having accompanied her to medical   examinations and having acknowledged paternity even before the child’s birth. The Court   therefore did not exclude that Mr Schneider’s intended relationship with the boy fell   within the ambit of “family life” under Article 8. In any event, the question of whether Mr   Schneider had a right to access to and information about the boy, even if it fell short of   family life, concerned an important part of his identity and thus his “private life” for the   purpose of Article 8.   As to whether the interference with Mr Schneider’s rights had been justified, the Court   first noted that the domestic courts’ decisions had been in accordance with the relevant   provisions of the German Civil Code. They had further been aimed at pursuing the best   interest of a married couple and of the children who were born during their marriage and   were living with them.   However, the domestic courts had refused Mr Schneider access to and information about   the boy presumed to be his son without examining whether, in the particular   circumstances of the case, granting him access and providing him with information   would be in the child’s best interest, or whether Mr Schneider’s interest had to be   considered as overriding that of the legal parents. The Court referred to a similar case   concerning the domestic courts’ refusal to grant a father access to his children living with   their mother and her husband, without giving any consideration to the question whether   contact between the applicant and his children would be in their best interest.2 In that   case, the Court had found that the German courts had failed to fairly balance the   competing rights involved. While in Mr Schneider’s case it had not been established   whether or not he was the biological father of the boy in question, that difference had   been irrelevant for the domestic courts’ decision. They had assumed his paternity for the   purpose of the proceedings and had rejected his request because he was not the boy’s   legal father and had never had a social and family relationship with him.   In both cases, the reasons why the (presumed) biological father had not previously   established a relationship with the child or children concerned had been irrelevant for the   domestic courts’ findings. They had thus not given any weight to the fact that the   respective applicants, for legal and practical reasons, had been unable to alter the   relationship with the children concerned.   The Court underlined that it was for the domestic courts, having the benefit of direct   contact with all those concerned, to determine whether or not contacts between a   biological father and his child were in the latter’s best interest. However, the Court was   not convinced that the best interest of children living with their legal father but having a   different biological father could be truly determined by a general legal assumption.   Having regard to the great variety of family situations possibly concerned, a fair   balancing of the rights of all persons involved necessitated an examination of the   particular circumstances of the case. In Mr Schneider’s case, the domestic courts had   failed to conduct such an examination. There had accordingly been a violation of Article   8.   Article 8 in conjunction with Article 14   Having regard to its finding under Article 8, the Court did not consider it necessary to   determine whether the domestic courts’ decisions had thereby discriminated against the   applicant in breach of Article 8 read in conjunction with Article 14.   Article 41   Under Article 41 (just satisfaction) of the Convention, the Court held that Germany was   to pay Mr Schneider 5,000 euros (EUR) in respect of non-pecuniary damage and EUR   10,000 in respect of costs and expenses.   The judgment is available only in English.   Anayo v. Germany (application no. 20578/07) of 21 December 2010   This press release is a document produced by the Registry. It does not bind the Court.   Decisions, judgments and further information about the Court can be found on its   Internet site. 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