Judgment Nº CRC/C/87/D/75/2019 from United Nations of Human Rights, Office of the High Commissioner, 31-05-2021

• Judgment Date: 31 May 2021
• Case Outcome: Inadmissibility decision
• Admissibility Date: 31 May 2021
• Submitted Date: 18 January 2019
• Subject Matter: admissibility - exhaustion of domestic remedies,admissibility - manifestly ill-founded,admissibility - victim status,best interests of the child,effective remedy,fair trial - undue delay,separation of children from parents
• Court: Office of the United Nations High Commissioner for Human Rights

	United Nations	CRC/C/87/D/75/2019
	Convention on the Rights of the Child	Distr.: General 9 July 2021 Original: English

Committee on the Rights of the Child

Views adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child ona communications procedure, concerning communicationNo. 75/2019 * , ** , ***

Communication submitted by:M.W.

Alleged victim:V.W.

State party:Germany

Date of communication:18 January 2019 (initial submission)

Date of adoption of Views:31 May 2021

Subject matter:Lack of enforcement of judicially established contact regime between father and child

Procedural issues :Insufficient substantiation of claims; victim status; exhaustion of domestic remedies

Substantive issues:Best interests of the child; separation of children from parents; effective remedy; fair trial – undue delay

Articles of the Co nvention :3, 4, 5, 8, 9 (3), 12, 14, 16, 18 and 19 (c)

Articles of the Optional Protocol:5 (2) and 7 (b), (e) and (f)

1.1The author of the communication is M.W., a citizen of Germany born in 1973. He is submitting the communication on behalf of his daughter, V.W., born on 5 May 2008. The author is not represented by counsel. The Optional Protocol entered into force for the State party on 14 April 2014.

1.2On 24 June 2019, pursuant to article 6 of the Optional Protocol, the working group on communications, acting on behalf of the Committee, rejected the author’s request for interim measures. On the same date, the Committee decided to reject the State party’s request that the admissibility of the communication be considered separately from its merits.

Facts as submitted by the author

2.1By a court decision of 10 October 2014, the marriage of V.W.’s parents was dissolved. Prior to that, on 9 April 2014, V.W.’s mother was awarded sole parental custody by Potsdam District Court. That decision was upheld by the Brandenburg Court of Appeal on 25 March 2015.

2.2In the context of a first set of proceedings, V.W.’s parents reached an agreement on the contact arrangements between the author and his child. However, in the context of a second set of proceedings, the mother sought a temporary injunction to reduce the contact time awarded to the author. At a court hearing of 21 December 2015, the parents agreed on a temporary derogation from the contact arrangements that were in force at the time, with the aim of finding a permanent solution by the end of May 2016. As the parents failed to reach a final agreement, temporary arrangements were agreed upon by means of a temporary injunction on an unspecified date.

2.3On 25 July 2017, at the request of the author, Potsdam District Court decided to amend the contact arrangements and determined that the author was entitled and obligated to have parental contact with his daughter every second weekend, from Thursday after school until the following Tuesday morning, when school begins. In that determination, the District Court followed the recommendations of experts encouraging contact between the author and V.W. The District Court noted in its decision that the joint parental custody requested by the author would not be possible as it would require both parents to share, equally and responsibly, the care of the child in everyday life. In the District Court’s view, that could not be foreseen in view of the fact that the parents did not communicate with each other. At the same time, the mother’s request to reduce the above-mentioned contact arrangements between the author and V.W. was also rejected, as that was not considered to be in the child’s best interests. In that respect, the District Court noted that V.W. was heavily burdened by the new “patchwork situation” in both parental homes and especially by the parental conflict. By contrast, the contact itself was not considered to be the source of the child’s problems. The District Court further noted that, in the light of the expert evaluation, there was no doubt that the author was able to assume his parenting duties and that he spent quality time with his child. The District Court further mentioned that the child’s relationship with her father was worthy of protection “even if V.W. takes her mother’s side in the parental conflict”. The District Court concurred with the assessment of the experts foreseeing the risks of parental alienation should the child’s conspicuous behaviour persist, which could be used by her mother to further reduce or even eliminate any contact between V.W. and her father.

2.4On an unspecified date, the author requested that the custody proceedings be relaunched. On 25 July 2017, Potsdam District Court ruled that the mother should continue to have sole custody. The author appealed that decision and submitted several complaints to accelerate the appeals proceedings.

2.5The author submits that, until February 2018, he was able to effectively exercise his contact rights. After that date, however, the mother started to prevent him from having access to his daughter on the assigned weekends without any justification. On some occasions, she insisted that two other persons, unknown to the author, accompany the child during the visits, which she limited to two hours. The author signalled these difficulties to the youth welfare office, which was unable to intervene because the mother refused to engage in a joint discussion on the matter. The youth welfare office therefore advised the author to file a judicial complaint. In July 2018, the mother moved with her husband and the child to Ettenheim, some 800 kilometres away from their previous place of residence. Ever since that date, the author has been unable to establish contact with his child. The youth welfare office of the child’s new place of residence informed the author that it could not take any action as long as court procedures were pending. In the meantime, the mother continued to reject any dialogue with the youth welfare office.

2.6In a decision of 19 July 2018, the Brandenburg Court of Appeal upheld the rejection of the father’s request to have the child’s custody transferred to him.

2.7Between August and November 2018, the author submitted three complaints to the appeals court to accelerate proceedings. Some of those complaints were rejected, while others were left unanswered. On 16 January 2019, the Brandenburg Court of Appeal decided to suspend the author’s contact rights until 30 July 2019 on the ground that contact between the author and his daughter, to which the latter was explicitly opposed, would jeopardize V.W.’s welfare and mental and psychic development. The Court of Appeal underlined that, since February 2018, the child had repeatedly indicated before all relevant actors that she did not want to have any contact with her father. The Court of Appeal stated that it could not opt for a less intrusive measure given that the child strictly opposed to even supervised contact. Therefore, the Court of Appeal accepted the mother’s proposal not to place the child under pressure during the first year in her new school and to resume the contact proceedings only thereafter. The author submits that no ordinary appeal was available against that decision.

2.8On 12 February 2019, the author lodged a constitutional complaint against the above-mentioned decision. On 27 March 2019, the Constitutional Court refused to accept the author’s constitutional complaint for adjudication.

Complaint

3.1The author claims a violation of article 3 of the Convention, insofar as the best interests of the child, which are considered to take precedence over any other interests at stake, have not been taken into account by the relevant State authorities. In particular, the author argues that the youth welfare office sided with the mother and was often inactive due to structural problems in the German child welfare system (backlog of cases, poor working conditions, lack of human resources, no effective supervision). He submits that, not only in his individual case but also on a more general level, family courts in Germany are unable to effectively protect the best interests of the child due to lengthy court proceedings that leave children in limbo, in the midst of parental conflicts regarding custody and contact rights.

3.2Furthermore, the author alleges a violation of article 5 of the Convention on the ground that he has been prevented from carrying out his parental functions, rights and obligations and from contributing to the development of his child as a result of the State party’s failure to enforce his contact rights despite the judicially established contact arrangements and also owing to protracted court proceedings.

3.3The author argues that, as established by expert opinions drawn up in the court proceedings, V.W.’s mother abuses her custodial rights and the child. According to the author, V.W. is made dependent on her mother and, without any external/judicial pressure, is unable to avoid being influenced by her mother’s stance and re-establish contact with her father. The child’s lack of contact with her father and paternal relatives clearly interferes with her right to preserve her identity, in violation of article 8 of the Convention. He claims that it is for the State authorities to provide V.W. with appropriate assistance and protection to restore her identity as soon as possible. The author also claims that he has been deprived of his right and obligation to have an impact on the child’s development, in breach of article 14 of the Convention.

3.4Relying on articles 9 and 16 of the Convention, the author reiterates that his presence in the child’s life was found to be conducive to V.W’s development and thus worthy of protection. Nevertheless, the relevant State authorities failed to make efforts to guarantee the right of the child to have regular contact with her non-custodial parent and to put an end to the mother’s arbitrary...