Zitieren als:
EGMR, Urteil vom 21.12.2010 - 20578/07, Anayo v. BRD (engl.) - M18209

Auch die alleinige biologische Verwandtschaft zwischen einem Elternteil und einem Kind ohne enge persönliche Beziehung kann von Art. 8 EMRK geschützt sein, wenn ein Familienleben durch den Beschwerdeführer beabsichtigt ist und ihm der Umstand, dass dieses noch nicht vollständig hergestellt ist, nicht zuzurechnen ist.

Schlagwörter: Sorgerecht, Achtung des Familienlebens, biologische Eltern, biologischer Vater, Aufenthaltserlaubnis, sozial-familiäre Beziehung, Achtung des Privatlebens, Kindeswohl, Vaterschaft,
Normen: GG Art. 6, BGB § 1632 Abs. 2, BGB § 1684, BGB § 1685, BGB § 1600, EMRK Art. 8,


55. The Court reiterates that the notion of "family life" under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto "family" ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that "family" unit from the moment, and by the very fact, of the birth (see Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290; Lebbink v. the Netherlands, no. 45582/99, § 35, ECHR 2004-IV; and Znamenskaya v. Russia, no. 77785/01, § 26, 2 June 2005).

56. However, a biological kinship between a natural parent and a child alone, without any further legal or factual elements indicating the existence of a close personal relationship, is insufficient to attract the protection of Article 8 (compare Lebbink, cited above, § 37). As a rule, cohabitation is a requirement for a relationship amounting to family life. Exceptionally, other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto "family ties" (see Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297-C; and Lebbink, cited above, § 36).

57. Moreover, the Court has considered that intended family life may, exceptionally, fall within the ambit of Article 8, notably in cases in which the fact that family life has not yet fully been established was not attributable to the applicant (compare Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 143 and 146, ECHR 2004-V). In particular, where the circumstances warrant it, "family life" must extend to the potential relationship which may develop between a child born out of wedlock and the natural father. Relevant factors which may determine the real existence in practice of close personal ties in these cases include the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the father to the child both before and after the birth (see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999-VI; Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003; Lebbink, cited above, § 36; and Hülsmann v. Germany (dec.), no. 33375/03, 18 March 2008; compare also Różański v. Poland, no. 55339/00, § 64, 18 May 2006).

58. The Court further reiterates that Article 8 protects not only "family" but also "private" life. It has been the Convention organs' traditional approach to accept that close relationships short of "family life" would generally fall within the scope of "private life" (see Znamenskaya, cited above, § 27 with further references). The Court thus found in the context of proceedings concerning the establishment or contestation of paternity that the determination of a man's legal relations with his legal or putative child might concern his "family" life but that the question could be left open because the matter undoubtedly concerned that man's private life under Article 8, which encompasses important aspects of one's personal identity (see Rasmussen v. Denmark, 28 November 1984, § 33, Series A no. 87; Nylund, cited above; Yildirim v. Austria (dec.), no. 34308/96, 19 October 1999, and Backlund v. Finland, no. 36498/05, § 37, 6 July 2010).

59. In the present case, the Court must determine in the first place whether the decision of the Court of Appeal, upheld by the Federal Constitutional Court, to refuse the applicant access to the twins disregarded the applicant's existing "family life" with his children within the meaning of Article 8. It notes at the outset that (as, for instance, in the cases of Yousef v. the Netherlands, no. 33711/96, § 51, ECHR 2002-VIII, and Lebbink, cited above, §§ 12, 37, but other than, for instance, in the cases of Nylund, cited above, and Hülsmann, cited above) it is uncontested that the applicant is the biological father of the twins. In examining whether there is, in addition, a close personal relationship between him and the children which must be regarded as an established "family life" for the purposes of Article 8, the Court observes that the applicant has never cohabited with the twins or with their mother and has to date never met the children. In these circumstances, their relationship does not have sufficient constancy to be qualified as existing "family life".

60. However, the Court has found that intended family life may, exceptionally, fall within the ambit of Article 8 in cases in which the fact that family life has not been established is not attributable to the applicant (see paragraph 57 above). This applies, in particular, to the relationship between a child born out of wedlock and the child's biological father, who are inalterably linked by a natural bond while their actual relationship may be determined, for practical and legal reasons, by the child's mother and, if married, by her husband. In the present case, the applicant did not yet have any contact with his biological children because their mother and their legal father, who were entitled to decide on the twins' contacts with other persons (Article 1632 § 2 of the Civil Code, see paragraph 25 above), refused his requests to allow contact with them. Moreover, under the provisions of German law (Article 1594 § 2 and Article 1600 § 2 of the Civil Code, see paragraphs 16, 29 and 30 above), the applicant could neither acknowledge paternity nor contest Mr B.'s paternity so as to become the twins' legal father. Therefore, the fact that there was not yet any established family relationship between him and his children cannot be held against him.

61. In determining whether, in addition, there were close personal ties in practice between the applicant and his children for their relationship to attract the protection of Article 8 (see paragraph 57 above), the Court must have regard, in the first place, to the interest in and commitment by the father to the children concerned. It notes that the applicant expressed his wish to have contacts with his children even before their birth and repeatedly asked Mr and Mrs B. to be allowed access afterwards. He further pursued his attempt to have contacts with the twins by bringing access proceedings in the domestic courts speedily after their birth. In the circumstances of the case, in which the applicant was prevented from taking any further steps to assume responsibility for the twins, the Court considers that this conduct was sufficient to demonstrate the applicant's interest in his children. As a result, the Court, in particular, does not consider it established that the applicant lacked genuine interest in his offspring and wanted to have contact with the twins exclusively in order to obtain a residence permit. Furthermore, as to the nature of the relationship between the twins' natural parents, the Court notes that, even though the applicant and Mrs B. never cohabited, the children emanated from a relationship which lasted some two years and was, therefore, not merely haphazard.

62. Having regard to the foregoing, the Court does not exclude that the applicant's intended relationship with his biological children attracts the protection of "family life" under Article 8. In any event, the determination of the legal relations between the applicant and his biological children here at issue – namely the question whether the applicant had a right of access to his children – even if they fell short of family life, concerned an important part of the applicant's identity and thus his "private life" within the meaning of Article 8 § 1. The domestic courts' decision to refuse him contact with his children thus interfered with his right to respect, at least, for his private life. [...]