Strasbourg Observers


November 20, 2018

By Evelyn Merckx, teaching assistant and PhD-researcher at Ghent University

To many, the simultaneous reading of Mandet v. France and Fröhlich v. Germany proves to be a crucial inconsistency in the case-law of the ECtHR. In Mandet v. France, the paternity of a legal father was withdrawn in favour of the biological father, despite the eleven-years-old child’s opposition to having his paternity changed which became evident from the letters addressed to the domestic judge. Subsequently, the domestic judge remarked that the child’s best interests “ne se trouvait pas tant là où le troisième requérant le voyait” (“did not lie where the child saw them himself”). The judge figured that the child should know the truth about his origins (for more information: see here). In Fröhlich v. Germany, a similar factual context existed, but in this case, the child was informed about the fact that a man started proceedings for contact and information rights, but not that this claim originated in his belief that he was her biological father. In the end, the domestic judge dismissed the request of the father on the grounds that the child’s best interests were endangered because the marriage between her legal parents could fall apart if the biological paternity of Fröhlich were to be established. Both domestic judgments were condoned by the ECtHR.

The perceived inconsistency between these two cases is, however, due primarily to unfamiliarity with the margin of appreciation doctrine and the concept of the child’s best interests. The combination of the principle of subsidiarity, the margin of appreciation-doctrine and the vague concept of the child’s best interests facilitate reaching completely different outcomes. What should strike us, however, is how this combination seems to inherently deny a child any form of autonomy, even if the right to be heard is respected according to the ECtHR.


Mr. Fröhlich alleges that he conceived a child with a married woman. The woman already lived with her husband with whom she had six other children and continued to do so. She ended her relationship with Fröhlich shortly after she gave birth to her seventh child. Fröhlich attempted to maintain contact with the child but was hindered by both legal parents who also did not consent to paternity testing.

In the proceedings before the domestic courts, Fröhlich was not granted contact and information rights, because his biological paternity could not be established. In that regard, the domestic courts found that ordering a paternity test would jeopardise the child’s best interests because the results of such a test might cause her nuclear family to break up. A statement of the legal father had revealed that he knew of the extramarital affair and that he would not agree to contact between Fröhlich and the child, because Fröhlich had caused the family considerable suffering and should bear the consequences of his behaviour. Everyone in the family knew that Fröhlich believed that he was the father, except the six-year-old child herself who was appointed a guardian ad litem. The guardian also concluded that contact with Fröhlich would be detrimental to the child’s well-being at her age. Eventually, despite opposition from the guardian, the child was heard by the Court of Appeal. However, she was not informed in these proceedings as to the real reasons why Fröhlich had instigated contact proceedings. According to the minutes, the child was aware of the fact that her parents were in dispute with Fröhlich, who wanted to visit her but without knowing the real reasons. Whether more was said than this is not evident from the judgment of the ECtHR.

Fröhlich’s request for an expert opinion regarding contact rights and to inform the child about his application during a new hearing was dismissed by the Court of Appeal. The Court of Appeal argued that establishing paternity of Fröhlich through a paternity test, which German family law made necessary to order contact and information rights, was contrary to the child’s best interests. The German Court was “convinced that the family union would be destroyed, if the applicant’s paternity were established and contact rights ordered”. The child was well-integrated in her family, felt protected and secure, and there existed no indications that her legal father did not assume his role as a father towards her. The Court of Appeal held that if the child’s family unit would break up, this would have considerable negative consequences on the child because she would lose her essential attachment figures and this could endanger her well-being. The Court of Appeal claimed that “it was not possible to predict the legal father’s reaction, but the manifest risk that the spouses’ marriage would break up could not be dismissed in view of the couple’s past difficulties”. Even though the Court found that the situation might evolve when the child started asking questions herself, it ruled that for now, it was best not to confront her with the paternity issue. This finding was supported by the highly emotional conflicts between the legal parents and Fröhlich.

Judgment and comments

The application of Fröhlich is treated under Article 8 ECHR by the ECtHR which discusses Fröhlich’s claim for contact and information rights separately. Firstly, Fröhlich’s request for contact rights is found to amount to an interference with his right to private life but is finally dismissed as manifestly unfounded. The Court refers to the principle of the child’s best interests, the wide margin of appreciation in cases where a balance has to be found between competing private and public interests and the fact that the domestic courts adduced relevant reasons to justify its decision. Finally, the Court found that the Court of Appeal had heard all parties, including the child and had regard to the entire family situation and relied on an extensive written statement by the child’s guardian ad litem.

Secondly, the refusal of the domestic courts to provide information about the child is found not to be in violation of Article 8 ECHR. The Court refers to the abovementioned principles and also draws the attention to the principle of subsidiarity which entails that “national authorities have the benefit of direct contact with all the persons concerned” and that it is “not the task of the Court to substitute itself for them in the exercise of their responsibilities regarding access issues or issues concerning information about the child’s development”. Furthermore, the Court finds that the existing family ties between the legal parents and their child also warrant protection under Article 8 ECHR. Strikingly, the Court endorses the hypothetical reasoning of the German Court of Appeal that the best interests of the child were endangered because of the risk that the marriage of the legal parents would break up. In this regard, the ECtHR argues that this conclusion was made after “a thorough analysis of the child’s integration in the family where she felt protected and secure, the role of the mother’s husband as father and by taking into account the spouses’ difficulties and crisis in the past, which were related to the applicant”. The Court attaches considerable importance to the fact that the child was heard and finds that the decision of the Court of Appeal was made in the child’s best interest. Even though the Court of Appeal did not specifically rule on the claim for information rights, the ECtHR accepts the line of reasoning that establishing the child’s paternity, which was a necessary preliminary condition for granting them, would be contrary to her best interests. Regrettably, the ECtHR does not discuss whether this preliminary condition in itself is in line with the requirements of Article 8 to the rights of biological parents.

Whilst comparing this case to the Mandet-case, it becomes apparent that the ECtHR refuses to take a stand as to how domestic courts should balance competing interests in paternity-cases and how the child’s best interests should be evaluated. Even though this in itself is not problematic, taking into account the principle of subsidiarity, the consequences it has on the rights of the children involved is. The Mandet and Fröhlich cases are being judged from two completely opposite angles and still, the autonomy of both children is flagrantly overlooked and overruled by vastly paternalistic judgments. In Mandet, the ECtHR found that the child’s voice was sufficiently heard through the letters he sent to the domestic judge but agreed with the domestic courts that his interests dictated that he should know the truth about his origins. In the Fröhlich-case, the child was heard, but not informed about the true reasons for which the applicant wanted contact and could therefore not offer the domestic judge her substantiated views. It is rather evident that a child’s right to be heard is flagrantly denied if the child in question is not fully informed about the case at hand. Decisions that affected the child were thus made above her head on the grounds that her best interests dictated that the risk of divorce of her legal parents should be averted. Still, this hypothetical reasoning is highly problematic. Due to the parent’s difficulties in the past, it could still be that the parent’s marriage dissolves. On the other hand, it could still be that the marriage remains despite the findings of a paternity test being in favour of Frohlich. Furthermore, given the fact that many children nowadays face the separation of their parents, it is by no means sure that the child’s wellbeing would suffer in such a way that it justifies not knowing the truth about her origins. Moreover, the adverse consequences of the child to its right to family life by ordering a paternity test can in the long run be less severe than the traumatic experience that the child might suffer from when she discovers after many years that her legal father is not her biological father and that she was lied to by her whole family. The age of young children and their level of maturity can render it difficult to let them participate in these proceedings, but the spirit of the UN-CRC argues that this is a barrier that domestic authorities should help the child to overcome.

The existence of paternalistic and hypothetical judgments in children’s rights has long been an issue children’s rights scholars struggle with. Regrettably, even in the proceedings of the ECtHR, this kind of reasoning thrives, due to the combination of the subsidiarity principle and the vague understanding of a child’s best interests. The only safeguard that exists to tackle this real risk, albeit not completely, is a correct use of the right of the child to be heard. However, this does not seem to be a priority of Members States, nor of the Court. Under the guise of the child’s best interests, the interests of a parent, and in the proceedings before the ECtHR the interests of the Member State, are being guaranteed at the expense of the child.


It is understandable that the ECtHR is hesitant to find a violation in cases where the domestic authorities made a “best interests” analysis. However, given the fact that the outcome of such a case depends largely on the interpretation of that vague concept by the domestic judge, the child’s right to be heard should be correctly enforced as a guarantee that it will not be invoked to safeguard other interests. To safeguard children’s rights, children should be adequately informed about the proceedings at hand and supported to develop their own opinion about what they think is in their best interests. Overruling this opinion should only occur in exceptional circumstances and the domestic judge should provide coherent and relevant reasons to justify this.

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