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
1 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:
