Refusal of a Father's Right of Access to his Minor Child

Facts

The Spanish father G. acknowledged the child T. born on January 1, 1978 to Mrs. M.R. On May 9, 1978, a guardianship authority ordered, with the mother's consent, a curatorship over the child according to Art. 308 CC. On September 28, 1979, the mother remarried and T. lives with her and his stepfather. On August 20, 1979, G. requested the guardianship authority to help him enforce his right of access, which had been denied to him for 8 months. On November 27, 1979, the guardianship authority decided to withdraw his right of access. G. appealed against this decision, unsuccessfully with the prefect and then the State Council of the canton of Bern. He then filed an appeal for reform with the FC.

Considerations

The FC considered that the parents' right to personal relations with their minor child (Art. 273 CC) is not of a pecuniary nature. However, according to Art. 44 FJA, the appeal for reform to the FC is only open in civil matters for civil law disputes. Decisions of the guardianship authority on the right of access fall under voluntary jurisdiction and do not constitute a civil law dispute within the meaning of Art. 44 FJA. The FC therefore considered that the appeal for reform was not admissible in this case.

The FC noted that the right of access primarily serves the interests of the child and not those of the parents. The guardianship authority's task is to…