Jenseits von Karlsruhe. Das deutsche Familienrecht in der Straßburger Rechtsprechung

Over the last ten years, German family law has become the subject of a significant body of case law from the European Court of Human Rights. In twelve of these cases the Court found a violation of Art. 8 ECHR or of other rights under the Convention. Almost all of them concerned the legal parent-child relationship. Besides a number of case-related deviations between German and European rulings regarding the proportionality of state interventions or various procedural aspects, two differences of a more fundamental nature have appeared. One of them concerned the legal position of the father of children born out of wedlock. In several judgments the Court held that the very restrictive German provisions concerning access to a child born out of wedlock amounted to an unlawful discrimination in comparison to the position of fathers who were married or divorced. However, this discrimination has been largely abolished by the 1998 reform of German family law. Secondly, the European Court of Human Rights attaches greater importance to the fact of biological kinship and, thus, to the notion of a famille naturelle instead of purely legal or social meaning of family. Consequently, in Görgülü the Court found that it was contrary to Art. 8 ECHR to deny a biological father access to his son, even though there had been no contact between the two because the mother had given up the child for adoption directly after giving birth. Since then, the German Constitutional Court and an amendment of the Civil Code have strengthened the position of the biological father. Though it appears that some differences in the concept of family have remained the legal results have converged. Therefore, no fundamental conflict between the Courts is to be expected.