CASE OF BUCHS v. SWITZERLAND

THE LAW — I. APPLICATION OF ARTICLE 37 § 1 (b) OF THE CONVENTION — A. The parties’ submissions

25. By letter of 21 January 2014 the Government invited the Court to strike the case out of its list of cases, in accordance with Article 37 § 1 (b) of the Convention. The Government relied in this connection on the fact that on 1 July 2014 the amendments to the Civil Code provisions on parental authority will enter into force and that according to the implementation provisions of this amendment, the applicant will have the possibility, within a period of a year, to apply to the competent authority to be awarded shared parental authority (see paragraph 17 above). As the award of parental authority in the applicant’s case will therefore be examined anew by the domestic authorities, the Government considered that the present case had been resolved.

26. The applicant did not submit any observations on the way in which Article 37 § 1 (b) would affect his application.

B. The Court’s assessment

27. In order to ascertain whether the Government’s request under Article 37 § 1 (b) can be accepted in the present case, the Court must answer two questions in turn: firstly, whether the circumstances complained of directly by the applicant still obtain; and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have been redressed (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 97, ECHR 2007‑I, and, more recently, Melnītis v. Latvia, no. 30779/05, § 33, 28 February 2012).

28. The Court notes that in the present case the applicant has made two specific complaints. First of all, the applicant complained that the domestic decisions refusing shared parental authority had infringed his right to respect for his family life under Article 8 of the Convention. Secondly, he complained, under Article 14 read in conjunction with Article 8 of the Convention, that the application of Article 133 of the Civil Code regarding shared parental authority amounted to unjustified discrimination against divorced fathers on the grounds of their sex.

29. As concerns both complaints, the applicable test entails establishing whether the domestic decisions refusing to grant the applicant shared parental authority will persist after 1 July 2014, when the amendments to the Civil Code provisions on parental authority will enter into force. The Court must then consider whether the measures envisaged by the authorities constitute redress for the applicant’s complaints. In this connection, the Court has to determine whether the domestic authorities have adequately and sufficiently redressed the situation complained of (see Sisojeva and Others, cited above, § 102, and El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 33, 20 December 2007).

30. It is clear to the Court that the situation complained of by the applicant has not ceased to exist. While the Court considers that the amendments to the Civil Code provisions on parental authority and its implementation provisions might be relevant for establishing the applicability of Article 8 and Article 14 in conjunction with Article 8 of the Convention for the period from 1 July 2014 onwards, it considers that it has as such no incidence on the application of Article 37 § 1 (b) of the Convention, as it will not change the award of parental authority to the applicant without further steps. To have the question of shared parental authority reassessed by the domestic authorities, the applicant would need to institute domestic proceedings, the outcome of which would be uncertain.

31. In addition, the Court observes that the legislative amendments will enter into force on 1 July 2014. Therefore, it cannot be said that these measures are capable of offering adequate and sufficient redress for the effects of possible violations of Article 8 and Article 14 in conjunction with 8 of the Convention during the time between the final domestic decision in the present case and 1 July 2014. Furthermore, one of the applicant’s children is now eighteen years old and the second one almost fifteen years old. The legislative amendments in question will therefore have no legal effect at least as far as the applicant’s relationship with his first child is concerned.

32. It follows that the conditions for applying Article 37 § 1 (b) of the Convention, in so far as the complaints under Article 8 and Article 14 in conjunction with Article 8 of the Convention are concerned, have not been met.

33. Accordingly, as the matter has not been resolved and it is not necessary to further examine whether Article 37 § 1 in fine is applicable to the present case the Court dismisses the Government’s request to strike the application out of its list of cases.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

34. The applicant complained, under Article 8 of the Convention, that the domestic decisions refusing shared parental authority had infringed his right to respect for his family life.

Article 8 provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

35. The Government argued that the applicant had not exhausted domestic remedies regarding a violation of Article 8 of the Convention, taken on its own. They observed that he had not invoked any Convention Articles in his appeal to the Federal Supreme Court. He had simply stated, referring to the case of Zaunegger (cited above), that every father should be able to apply to the domestic courts for shared parental authority, even if the mother is opposed to it, as this is in the children’s best interests. Considering that in Zaunegger the Court had found a violation of Article 14 taken in conjunction with Article 8 of the Convention, the Federal Supreme Court had examined the compatibility of the Appeal Court’s decision with those provisions taken together. As the Court had not examined Article 8 taken on its own and the applicant had not invoked that Convention Article, the Federal Supreme Court had not done so either.

36. The applicant did not submit any observations on the admissibility of his application.

37. The Court reiterates that in assessing whether domestic remedies have been exhausted, account should be taken not only of the formal remedies available in the legal system concerned, but also of the particular circumstances of the case in question (see Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports of Judgments and Decisions 1996‑IV). There should be a degree of flexibility in the application of the rule. It is not necessary to demonstrate that the arguments were advanced in exactly the same terms before the domestic courts as before this Court, provided that the substance of the complaint has been aired in domestic proceedings in accordance with any formal requirements (see, for instance, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999‑I; Vučković and Others v. Serbia [GC], no. 17153/11, § 72, 25 March 2014).

38. The Court considers that the applicant, who was not represented by a lawyer before the Federal Supreme Court, referred to the case of Zaunegger because it was comparable to his case as it also concerned the issue of shared parental authority. As a layman, he did not invoke any Convention Articles. Since he claimed, in substance, that every father should be able to apply for shared parental authority even if the mother opposed it, the Court finds, contrary to the Government’s observation, that the applicant not only alleged that he had been discriminated against compared with his ex-wife under Article 14 in conjunction with Article 8 of the Convention, but also invoked his right to respect for family life taken on its own. The Court therefore holds that, with regard to Article 8 of the Convention, he has satisfied the requirements of Article 35 § 1, and therefore rejects the Government’s preliminary objections.

39. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It must therefore be declared admissible.

1. The parties’ submissions

(a) The applicant

B. Merits

40. The applicant claimed that according to the Court’s case-law in Zaunegger (cited above), every father, whether married or not, should be able to apply to the courts for shared parental authority, even if the mother has opposed it. He claimed that this should be done in the best interests of the children. He has not submitted any further observations.

(b) The Government

41. The Government did not contest that the refusal to award the applicant parental authority constituted an interference with his right to respect for family life. However, they maintained that, under Article 8 § 2 of the Convention, the infringement had a legal basis in domestic law and was proportionate to the legitimate aim pursued.

42. With respect to the legal basis for awarding divorced parents shared parental authority, the Government reiterated that under Article 133 of the Civil Code (see paragraph 20 above) the judge had to take all relevant circumstances into account when assessing what was in the best interests of the child in awarding parental authority to one of the parents. Only if the parents had submitted a joint request for shared parental authority as well as a declaration regarding their shared participation in the education of the child, child support costs and contact rights, could shared parental authority be granted – on condition that it was in the child’s best interests. However, in the absence of a joint request, shared parental authority could not be awarded.

43. In this regard, the Government reiterated that once the amendments to the Civil Code provisions on parental authority entered into force, the applicant would have the opportunity to apply for shared parental authority again (see paragraph 17).

44. Regarding the legitimate aim of the interference with the applicant’s right to respect for family life, the Government maintained that it could be deduced from the memorandum of the Swiss Federal Council on the amendment to the Civil Code of 15 November 1995 (Message du Conseil fédéral concernant la révision du code civil Suisse du 15 novembre 1995) that it had been considered to be in the child’s best interests to grant shared parental authority only if the parents had submitted a joint request. This measure was aimed at protecting the “health or morals” and the “rights and freedoms” of the child and thus pursued legitimate aims within the meaning of paragraph 2 of Article 8.

45. Lastly, with a view to the necessity of the interference with the applicant’s right under Article 8 of the Convention, the Government reiterated that the domestic courts had obtained two expert opinions and had heard several witnesses in order to find the most appropriate solution for the children. On those occasions, the applicant had also been interviewed. Only after having thoroughly assessed all the relevant circumstances had the domestic courts awarded parental authority to the mother, while the applicant was granted extensive contact rights. That decision corresponded entirely to the experts’ recommendations with a view to the children’s best interests. In addition, in accordance with Article 275a § 1 of the Code Civil (see paragraph 21 above), the applicant maintained the right to be informed about special events in the children’s lives and to be consulted before important decisions were taken. The Government doubted whether the applicant would have been awarded shared parental authority, even if the domestic law had provided for it automatically after divorce. The second expert in particular had explicitly advised against granting the applicant and his ex-wife shared parental authority as he felt that it would not be in the children’s best interests.

46. The Government concluded that the domestic decisions entirely satisfied the requirements of Article 8 of the Convention and were within the wide margin of appreciation the Court had granted Member States in its case-law in such matters (see Glaser v. the United Kingdom, no. 32346/96, § 64, 19 September 2000).

2. The Court’s assessment

47. The Court observes, at the outset, that the Government did not contest that the withdrawal of parental authority interfered with the applicant’s right to respect for his family life under Article 8 of the Convention. The Court, having regard to its case-law, endorses that assessment. Any such interference constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of that provision and can be regarded as “necessary in a democratic society”.

48. The Court accepts that the decisions at issue had a basis in national law, namely Article 133 of the Civil Code (see paragraph 20 above), and that they were aimed at protecting the best interests of the applicant’s two children, which is a legitimate aim within the meaning of paragraph 2 of Article 8 (see Keegan v. Ireland, judgment of 26 May 1994, § 44, Series A no. 290, and Görgülü v. Germany, no. 74969/01, § 37, 26 February 2004). It therefore remains to be determined whether the decisions could be regarded as “necessary in a democratic society”.

(a) General principles

49. The Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify the measures taken were “relevant and sufficient” and whether the decision-making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention. Undoubtedly, consideration of what is in the best interests of the children is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 71, ECHR 2001-V; Sahin v. Germany [GC], no. 30943/96, § 64, ECHR 2003‑VIII; Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003‑VIII (extracts); Görgülü v. Germany, no. 74969/01, § 41, 26 February 2004; and Wildgruber v. Germany (dec.), no. 32817/02, 16 October 2006).

50. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. In particular, when deciding on custody, the Court has recognised that the authorities enjoy a wide margin of appreciation (see, amongst many others, Glaser, cited above, § 64).

51. The Court reiterates that a fair balance must be struck between the interests of the child and those of the parent and that, in striking such a balance, particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent (see Hoppe v. Germany, no. 28422/95, § 49, 5 December 2002). Accordingly, the parent cannot be entitled under Article 8 to have measures taken that would harm the child’s health and development (see Elsholz v. Germany, no. 25735/94, § 50, ECHR 2000‑VIII, and T.P. and K.M., cited above, § 71).

(b) Application of these principles in the present case

52. In the present case the Court finds that the domestic courts carefully considered the questions of awarding parental authority and contact rights. They confirmed that in principle, for harmonious development, the children must have contact with both parents, to the extent that this was consistent with the best interests of the children. Accordingly, the domestic courts found that where, as in the present case, a conflict appeared to exist between the parents, it would not be in the best interests of the children to award shared parental authority. They took into account not only the fact that the children’s mother was opposed to it, but also the applicant’s difficulties in accepting the separation from his wife, his insistence on the recognition of his rights and his attempts to pressure the children’s mother. They also considered the mother’s willingness to cooperate with the applicant in the exercise of his extensive contact rights and they had particular regard to the conflicts of loyalty towards their parents in which the children were caught. The Civil Court relied on two expert opinions and on the evidence given by the parents and witnesses at the hearing (see 10 - 12 above) and the judgment given by the Civil Court was upheld by the Appeal Court and the Federal Supreme Court (see paragraphs 14 and 16).

53. Whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8. The Court must therefore determine whether, having regard to the circumstances of the case and notably the importance of the decisions to be taken, the applicant was involved in the decision‑making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests (see W. v. the United Kingdom, judgment of 8 July 1987, § 64, Series A no. 121; Elsholz, cited above, § 52; and T.P. and K.M. v. the United Kingdom, cited above, § 72).

54. The Court notes that, in particular in the first-instance proceedings, the applicant was interviewed by experts on various occasions, and, assisted by a lawyer, had the opportunity to present his arguments in writing and orally to the Civil Court. As regards the proceedings before the Appeal Court, the Court notes that the applicant was given the opportunity to put forward in writing any views which, in his opinion, would be decisive for the outcome of the proceedings.

55. In the light of the foregoing, and having regard to the thorough assessment of the children’s best interests made by the domestic courts, the Court is satisfied that the contested decisions were based on reasons which were not only relevant but also sufficient for the purposes of paragraph 2 of Article 8. The Court further holds that the procedural requirements implicit in Article 8 of the Convention were complied with and that the applicant was involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests. The Court therefore considers that, when awarding parental authority to the children’s mother and granting the applicant extensive contact rights, the national authorities acted within the margin of appreciation afforded to them in such matters. Furthermore, the Court considers that the exclusion of shared parental authority where one of the parents opposes it also falls within the margin of appreciation, taking into account the lack of any consensus in this area, the fact that the experts in any event found that it was not desirable in the specific circumstances and the fact that the applicant in any even enjoyed extensive contact rights.

56. Accordingly, there has been no violation of Article 8 of the Convention in the present case.

III. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION

57. The applicant complained, under Article 14 read in conjunction with Article 8 of the Convention, that the application of Article 133 of the Civil Code (see paragraph 20 above) regarding shared parental authority amounted to discrimination against divorced fathers on the grounds of their sex.

Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A. Admissibility

58. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

1. The parties’ submissions

(a) The applicant

B. Merits

59. The applicant maintained (see paragraph 40 above) that according to the Court’s case-law in Zaunegger (cited above), every father, if married or not, should be able to apply to the domestic courts for shared parental authority, even if the mother has opposed it. He claimed that that should be done in the best interests of the child.

(b) The Government

60. At the outset, the Government argued that, contrary to the Court’s judgments in the cases of Zaunegger (cited above) and Sporer v. Austria (no. 35637/03, 3 February 2011), the possibility of applying for shared parental authority without the consent of the children’s mother did not exist in Swiss law, either for the applicant or for other fathers in comparable situations. Therefore, no inequality in the sense of the Court’s jurisprudence existed in Swiss law.

61. Under current Swiss law, the maintenance of shared parental authority after divorce was the exception to the rule that it was normally awarded to only one parent. Under Article 133 of the Civil Code, shared parental authority could be granted only if the parents had submitted a joint request and were willing and able to cooperate in matters regarding the child. The legislator’s reasoning behind that provision was not to enable one of the parents to oppose the other parent’s exercise of parental authority by a veto right, but to oblige the parents to show their willingness to exercise it jointly.

62. Neither parent was privileged over the other in the awarding of parental authority. In particular, the mother did not dispose of any priority right to be granted parental authority. The paramount consideration when deciding on parental authority was the child’s best interests. In the present case, the applicant, like his ex-wife, was able to exercise his right to apply to the domestic courts for sole parental authority. Based on their concurring requests, both parents had then benefited from a complete assessment of their parenting abilities as well as other relevant circumstances. The domestic law had hence not drawn a distinction between the applicant, as father, and his ex-wife, as mother, nor had he been treated differently from fathers of children born out of wedlock.

63. The Government further reiterated that even if the domestic courts had, based on the domestic law, the possibility to award shared parental authority without a joint request, it was very unlikely that they would have granted it in the present case. As established by the expert opinions, to have done so would not have been in the best interests of the children. According to the Government, the absence of a joint request in the present case reflected the situation foreseen by the applicable law where the parents were not ready to exercise shared parental authority, and where awarding parental authority to only one parent was in the children’s best interests.

2. The Court’s assessment

(a) General principles

64. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see, as a recent authority, Burden v. the United Kingdom [GC], no. 13378/05, § 58, ECHR 2008).

65. It is the Court’s established case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Burden, cited above, § 60).

66. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see Petrovic v. Austria, 27 March 1998, § 38, Reports 1998‑II, and Zaunegger, cited above, § 50).

67. However, very weighty reasons need to be put forward before a difference in treatment on the ground of gender or birth can be regarded as compatible with the Convention. The same is true for a difference in treatment of the father of a child born out of wedlock as compared with the father of a child born of a marriage-based relationship (see Zaunegger, cited above, § 51, with further references).

(b) Application to the present case

68. The Court notes that in the case at hand, the applicant, in his capacity as a father, complained in substance that he had been treated differently from his children’s mother, in breach of Articles 8 and 14 of the Convention, in that he had had no opportunity to obtain shared parental authority in a divorce suit without the latter’s consent.

69. The Court further notes that the applicant has not elaborated on the extent to which he had been treated differently from fathers of children born out of wedlock. As established by the Government (see paragraph 61 above), under the Swiss law in force, no father, whether married or not, had the possibility to request shared parental authority if the children’s mother was opposed to it. The Court therefore holds that the applicant has not sufficiently substantiated his claim of unequal treatment compared with other fathers in similar situations. The Court will therefore proceed to assess the current case only under the aspect of different treatment on the basis of gender, according to Article 14 in conjunction with Article 8 of the Convention.

70. In this regard, the Court observes that the wording of the relevant provision of Swiss law does not apply different standards in respect of the awarding of sole parental authority to the mother or the father. Under Article 133 § 1 of the Civil Code (see paragraph 20 above), both parents have the right to apply for sole parental authority. If they do, as in the present case, the domestic courts then proceed to evaluate all the relevant circumstances and the parties’ parenting abilities in order to find the most appropriate solution in the children’s best interests.

71. As alleged by the applicant, it was however impossible for the domestic courts to award him shared parental authority, based on the domestic provision in force, because the children’s mother was opposed to it. Contrary to the case of Zaunegger (cited above), which concerned a father of a child born out of wedlock, it was however not the mother who, in the absence of a joint request, maintained sole parental authority and hence possessed the right to veto the applicant’s request for shared parental authority. In the absence of a joint request, both parents maintained, for the course of the divorce proceedings, shared parental authority and had the right to apply for sole parental authority to the domestic courts (see paragraph 9 above).

72. The Court considers that the Government have convincingly established that the reasoning behind the requirement of a joint request for shared parenting was to oblige the parents to show their willingness to cooperate in child-related matters even after divorce. Both parents were thereby treated equally and it was not only the mother but both parents who had the right to oppose shared parental authority. The Court is therefore satisfied that the requirement of a joint request does not draw on any distinction based on the parents’ gender, so that no difference of treatment exists either in the law or in the decisions applying it.

73. There has accordingly been no violation of Article 14 of the Convention, taken together with Article 8 in the instant case.

IV. ALLEGED VIOLATION OF ARTICLE 5 OF PROTOCOL NO. 7 TO THE CONVENTION

74. The applicant complained, under Article 5 of Protocol No. 7 to the Convention, that he had not enjoyed the same rights as his (ex-)wife with regard to the awarding of parental authority in the divorce proceedings.

Article 5 of Protocol No. 7 reads as follows:

“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”

75. With respect to the applicant’s appeal to the Federal Supreme Court (see paragraph 15 above), the Government argued that he had not exhausted domestic remedies regarding his claim under Article 5 of Protocol No. 7 to the Convention. According to them, the applicant had never claimed that the domestic law had treated him differently from his spouse when awarding parental authority.

76. The applicant has not submitted any observations on the admissibility of this claim.

77. Considering that the applicant’s appeals to the domestic courts as well as his application to this Court were not very well substantiated and that he did not invoke any Convention Articles before the domestic instances (see paragraph 22 above), the Court agrees with the Government that he has not exhausted domestic remedies with respect to his complaint under Article 5 of Protocol No. 7 to the Convention.

78. Consequently, it follows that this complaint is inadmissible according to Article 35 § 1 and must be rejected in accordance with Article 35 § 4 of the Convention.