CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 mars 2013

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AND F.B. v. GERMANY   (Applications nos. 18734/09 and 9424/11)           JUDGMENT       STRASBOURG     14 March 2013     FINAL   14/06/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of B.B. and F.B. v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President,   Angelika Nußberger,   Boštjan M. Zupančič,   Ganna Yudkivska,   Paul Lemmens,   Helena Jäderblom,   Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 19 February 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos.   18734/09 and 9424/11) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Austrian nationals, Mr   B. B. and Mrs F. B. (“the applicants”), on 31 March 2009 and 22   December 2010 respectively. The President of the Section acceded to the applicants’ request not to have their names disclosed (Rule 47 § 3 of the Rules of Court). 2.     The applicants, who had been granted legal aid, were represented by Ms S. Thomas, a lawyer practising in Duisburg. The German Government (“the Government”) were represented by their Agents, Mr H.-J. Behrens and Ms K. Behr, of the Federal Ministry of Justice. 3.     The applicants alleged, in particular, that the decisions on the withdrawal of parental authority violated their right to respect for their family life, contrary to Article 8 of the Convention. 4.     On 1 March 2012 the applications were communicated to the Government. Having been informed of their right to submit written observations, the Austrian Government replied that they did not wish to exercise this right. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants, who were originally of Turkish origins, were born in 1966 and 1976 respectively and live in Duisburg. A. Proceedings relating to the withdrawal of parental authority 6.     On 23 May 2008 the Municipal Authority of Krefeld lodged a request with the Krefeld Family Court to withdraw the applicants’ parental rights over their two children, a daughter (born in 1996) and a son (born in 2000). According to information provided by the girl’s headmistress, their father systematically beat both children if they did not achieve good school grades. The school had already received information during the previous semester that the girl had been beaten. As the girl’s parents appeared to be well adjusted and overly polite, the school did not react immediately, but decided to observe the child more closely. It was thus observed that the children’s family closely supervised the girl via her mobile phone. Furthermore, the father had taken the girl out of biology class because the curriculum provided for sexual education. The girl was not allowed to leave on a school trip and was reported sick instead. 7.     When a teacher caught the girl in the act of manipulating the marks of a school exam, she opened up to her teacher. The girl further reported that her brother was under even more pressure to achieve good grades and was punished “draconically” if he did not comply. The headmistress contacted the Society for the Protection of Children in Krefeld, which had informed the Youth Office. 8.     By interim order of 23 May 2008 the Krefeld District Court, in its capacity as a family court, and referring to the reasons submitted in the Municipal Authority’s request, temporarily withdrew the applicants’ parental rights over their two children and transferred them to the Youth Office. 9.     On 28 May 2008, the Youth Office fetched the two children from their respective schools and brought them to a children’s home. On that same day, the Youth Office informed the second applicant by telephone and in person about the reasons for the placement. The children’s whereabouts were not disclosed to the applicants. The second applicant insisted that they had never beaten the children. 10.     On 2 June 2008 the applicants, in the main proceedings, represented by counsel, submitted to the District Court that it was true that they considered it important that their children performed well at school. However, they had never been violent towards the children. They further submitted two medical attestations by their family physician Dr D. dated 29   May 2008, certifying that she had seen both children regularly in her medical practice. Both children had made a balanced, stable and cheerful impression. There was no indication that they had suffered from any violent acts. The physician further noted that she had further examined the boy by sonograph. There were no indications of any use of force against the boy, there had been neither hematoma, nor injuries nor bruises. The applicants further submitted medical attestations to demonstrate that the girl had indeed been ill at the dates she had not attended the school trip. They further submitted a number of school reports in order to demonstrate that the children had good grades, showed adequate social behaviour and had rarely been absent from school. They finally submitted that the children regularly attended sports classes. The applicants suggested that there was the possibility that the girl had made the whole story up when she was caught in the act of manipulating school grades. 11.     On 8 July 2008, during a first hearing before the District Court, the parties agreed that the court should hear the children in person. 12.     On 16 July 2008, the District Court judge heard the two children in the absence of the other parties to the proceedings. According to the court minutes, both children were heard separately. The girl stated that the applicants exerted considerable pressure on her to achieve good school grades. As soon as she did not deliver the requested results, her father beat her both with his hands and with objects. In the previous years, her father had beaten her on the soles of her feet with an iron rod. Following this, she had to put her feet into cold water in order to avoid marks. At one occasion, her mother had whipped her legs. She further submitted that she was feeling at ease in the children’s home and that she did not want to return home for fear of further violence. 13.     The boy stated that, since entering school, he had been permanently beaten if he did not achieve the best school grades. His father had also used objects like an iron rod. He did not want to return home as long as his father remained violent. 14.     On 22 July 2008, the applicants wrote a letter to the District Court in which they denied having ever beaten the children. They submitted that their daughter was lying and that she manipulated her brother. Doctors who could confirm that they had never detected any sign of physical abuse had regularly examined both children. They had regularly attended school and sports classes without the teachers detecting any sign of abuse. The applicants further referred to a staff member of the municipality’s psychological service who had repeatedly examined the boy without detecting any physical abuse. 15.     On 4 August 2008, the Krefeld District Court, in the main proceedings, withdrew the applicants’ parental authority over their two children and transferred it to the Youth Office. Based on its own examination, in particular the hearing of the two children, the court was convinced that the applicants had repeatedly acted violently towards their children. Following the children’s entry into school, the parents had exerted considerable pressure that culminated in corporal punishment if the children did not achieve the expected school results. Both children had inter alia been beaten on the soles of their feet with an iron rod. 16.     As the court was convinced that the children’s statements reflected the truth, it did not deem it necessary to obtain expert opinion on their credibility. Both children had confirmed their statements in their mother’s presence before the Youth Office. It could be excluded that the boy had been influenced by his older sister, as the Youth Office employees had paid express attention that the children were not in a position to discuss the events before the boy had also been interrogated. Even taking into account that the girl might be endowed with a vivid imagination, the court ruled out that the girl could have falsely accused her parents over such a long period of time. Her statements were rather characterised by a tendency to exculpate her parents. 17.     Having regard to these facts, the court considered that the applicants were currently incapable of raising their children and that it would seriously jeopardise the children’s welfare to return them to the applicants’ household. 18.     On 17 September 2008, the applicants, represented by counsel, lodged an appeal. On 8 October 2008, the applicants submitted that the impugned decision was based on incorrect facts. In particular, the children had never been interrogated in their mother’s presence. Furthermore, the District Court had failed sufficiently to examine the relevant facts before taking the decision on the definite withdrawal of parental rights. In the present case, it was indispensable to hear expert opinion on the children’s credibility. 19.     At no point in time had there been any objective facts such as bruises, injuries, frequent absences from school etc., which might indicate physical abuse. Any medical practitioner could confirm that even the submersion in cold water could not prevent the appearance of bruises if the children had indeed been beaten with an iron rod. Furthermore, such treatment would entail reduced mobility, feelings of numbness and pain. No such symptoms had ever been observed on the children. 20.     As the parents vehemently denied having ever beaten their children, there was no objective indication for the alleged abuse other than the children’s own statements. Before taking such a drastic decision as the withdrawal of parental authority, the applicants thus deemed it necessary to assess the children’s credibility by hearing expert opinion. 21.     On 6 November 2008, the Düsseldorf Court of Appeal rejected the applicants’ appeal. The Court of Appeal considered that the District Court, having heard the applicants and the children in person, had put forward relevant reasons justifying the withdrawal of parental authority under section 1666 of the Civil Code (see relevant domestic law, below). 22.     The Court of Appeal confirmed the District Court’s assessment of the evidence. It did not consider it decisive that the District Court had assumed that the statements had also been made in the mother’s presence. 23.     There were no indications that the children, in particular the girl, would wrongly accuse the applicants. This followed from the reasons relied upon by the District Court and in particular from the fact that the children, who were fully aware of the consequences of their allegations, repeated these allegations over a longer period of time in a self-consistent way. Under these circumstances, it could be ruled out that the children had invented and maintained their allegations merely because they had been afraid of the teacher’s reaction to the girl’s attempts to manipulate her school marks. 24.     According to the Court of Appeal, the District Court had not been obliged further to examine the facts. It was, in particular, irrelevant whether the attending medical practitioners had detected any injuries in the course of regular consultations, as the abusive acts need not have provoked any visible signs, furthermore as such signs could have been overlooked or could have occurred at times when no medical consultation was imminent. 25.     Neither was the District Court obliged to hear expert opinion on the children’s trustworthiness. According to the Federal Court of Justice’s case law, it was up to the courts to assess witness evidence and to establish the trustworthiness of witnesses. Expert opinion was only necessary if there were concrete indications that could call into question the reliability of a witness statement and if specific expert knowledge was necessary to establish these factors and their impact on the witness statement’s content. Such a concrete indication could not be derived from the mere fact that the witness was a child or juvenile. In the absence of any concrete circumstances to the contrary, both the District Court and the Court of Appeal were in a position to assess the credibility of the statements made by the children before the District Court without having recourse to expert help. 26.     On 3 March 2009, the Federal Constitutional Court refused to accept the applicants’ constitutional complaint for adjudication without giving further reasons. B.     Subsequent events 27.     On 17 March 2009, the applicants lodged a request with the District Court to be granted contact rights with the children. During a hearing before that court on 7 July 2009, a first meeting between the parents, the children and the Youth Office was arranged for 16 July 2009. 28.     During the meeting on 16 July 2009, the daughter confessed that she had lied and that the allegations she had made the previous year had not been true. The son confirmed this. The daughter further submitted one letter to her parents and one to the District Court, in which she confessed to having lied and in which she expressed her wish to return to her family. 29.     On 28 August 2009, both children confirmed before the District Court Judge that their parents had never beaten them. The parties agreed to extend contacts between the applicants and their children with a view to return the children to the parental household. 30.     On 9 October 2009, the children returned to the applicants’ household. On 13 April 2010, the District Court lifted its decision of 4   August   2008 and restored the applicants’ parental authority. II.     RELEVANT DOMESTIC LAW 31.     Section 1666 of the Civil Code provides that in cases of a danger to the child’s welfare the court shall order the necessary measures. Pursuant to section 1666a § 1 measures which entail a separation of the child from the parents are only permitted if the danger cannot be averted by other means, including assistance by public authorities. The complete care for the child ( gesamte Personensorge ) may only be withdrawn if other measures proved unsuccessful or if it has to be assumed that they are insufficient to avert the danger (section 1666a § 2). 32.     Under section 26 of the Rules of Procedure on Family Affairs, the family courts are obliged to carry out on their own motion all investigations necessary to establish the relevant facts. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 33.     The applicants complained that the withdrawal of parental authority violated their right to respect for their family life as provided in Article 8 of the Convention, which reads as follows: “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.” 34.     The Government contested that argument. A.     Admissibility 35.     The Court notes that the applicants lodged two applications with the Court, the first one (no. 18734/09) relating to their children’s placement into public care and the second one (no. 9242/11) to their having been denied compensation by the national authorities. Having regard to the subject matter of the applications, the Court finds it appropriate to join them. 36.     The Court considers 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. B.     Merits 1.     The applicants’ submissions 37.     The applicants complained, in particular, that the domestic authorities had failed sufficiently to examine the relevant facts. The Youth Office and the family courts exclusively relied on the children’s own statements, which were not corroborated by any factual evidence. Conversely, the parents had constantly denied any allegations of domestic violence. 38.     In the instant case, there were sufficient reasons to mistrust the children’s allegations. The girl’s diary, which had in part been submitted to the courts, did not contain any indication that she had suffered violence. The family physician did not find any indications of any form of abuse. The medical attestations had been submitted to the courts. It had further been established that the children regularly took part in leisure activities. The same applied to the children’s class reports and to the fact that they had only rarely missed school. If they really had been subjected to the alleged abuse, they would necessarily have been absent from school for prolonged periods of time. 39.     The applicants further pointed out that the domestic courts refused to raise any further evidence. Neither the children’s teachers nor the family practitioner had been formally heard. The courts ignored the medical attestations and did not make any enquiries in the children’s sports clubs. Furthermore, they did not take into account that the staff member of the municipality’s psychological service, who knew both children, did not find any indication of physical abuse. 40.     Furthermore, the domestic authorities had failed to exclude the possibility of the children’s agreeing on what to say in court in advance and to hear the children separately. Contrary to the District Court’s assumption, the children had been able to communicate using the Turkish language when they had been taken in the Youth Office’s care. 2.     The Government’s submissions 41.     According to the Government, the withdrawal of parental authority had been necessary to protect the children’s welfare. The Government pointed out that the Court, in its case-law, had emphasised the primary importance of the children’s welfare when striking a fair balance between the interests at stake. The domestic decisions in the instant case had exclusively been taken to serve the children’s best interests. 42.     The District Court had heard all parties to the proceedings. The children’s statements made both before the Youth Office and before the judge were sufficient to allow the court’s conclusions that the children’s welfare was seriously jeopardised. Both children had described how they had been beaten by their parents. There was no reason to take further evidence. The Government pointed out that the examination of the facts by the District Court had to be viewed from an ex ante perspective. Therefore the fact that the children stated in 2009, one year later, that they had lied in court, could not be taken into consideration. 43.     At the time the District Court took its decision, there were no grounds for the judge to doubt the children’s credibility. The court heard the children separately from one another and in the absence of other persons. During the hearings, both children described the same facts. If these statements were really false statements, the family judge would have had to assume that the children had jointly agreed on their testimony beforehand. This, however, was not a realistic assumption in the case of an 8-year-old and a 12-year-old child. Beside this, the children’s statements were in line with their earlier statements before the Youth Office. It furthermore had to be considered that the children had already been separated from their parents for two months. Accordingly, at least the 12-year-old daughter must have been aware of the consequences of a false statement. Finally, the children’s submissions were also considered credible by the children’s teacher and by the head of counselling of the Society for the Protection of Children in Krefeld, who had informed the Youth Office. The children’s later submissions consistently matched those given in court. 44.     The Government considered that the fact alone that minors were heard in court did not automatically imply that they could not be believed and that an expert opinion on their credibility had to be ordered. On the basis of the children’s fully credible statements, the domestic courts had to assume that the applicants had subjected them to severe violence. It follows that the decision was necessary and proportionate at the time in order to protect the children’s best interests. 3.     Assessment by the Court 45.     The Court observes, at the outset, that the Government does not contest that the withdrawal of parental authority interfered with the applicant’s right to respect for their family life under Article 8 of the Convention. The Court endorses this assessment. Any such interference will constitute a violation of Article 8 unless it is “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”. 46.     The Court observes that the challenged measure conformed to the requirements of domestic law and pursued the legitimate aim of protecting the rights of others, namely those of the applicants’ two children. The Court reiterates that the question whether an interference was “necessary in a democratic society” requires consideration of whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient” and whether the decision-making process was fair and afforded due respect to the applicants’ rights under Article 8 of the Convention. 47.     In considering the reasons adduced to justify the measures, and in assessing the decision-making process, the Court will give due account to the fact that the national authorities had the benefit of direct contact with all of the persons concerned. It is not the Court’s task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody issues (compare, among many other authorities, Haase v. Germany , no. 11057/02, § 89, ECHR 2004 ‑ III). The Court reiterates that the authorities enjoy a wide margin of appreciation when assessing the necessity of taking a child into care. A stricter scrutiny is called for, however, in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access (see, for example, Elsholz v.   Germany [GC], no. 25735/94, § 64, ECHR 2000 ‑ VIII and A.D. and O.D. v. the United Kingdom , no. 28680/06, § 83, 16 March 2010). 48.     The Court further reiterates that mistaken judgments or assessments by professionals do not per se render childcare measures incompatible with the requirements of Article 8 of the Convention. The authorities, both medical and social, have duties to protect children and cannot be held liable every time genuine and reasonably held concerns about the safety of children vis-à-vis members of their family are proved, retrospectively, to have been misguided ( R.K. and A.K. v. the United Kingdom , no. 38000/05, § 36, 30 September 2008 and A.D. and O.D. , cited above, § 84). It follows that the domestic decisions can only be examined in the light of the situation such as it presented itself to the domestic authorities at the time these decisions were taken. 49.     Turning to the circumstances of the present case, the Court observes that the domestic authorities were confronted with at least prima facie credible allegations of severe physical abuse. The Court thus considers that the Krefeld District Court, on the basis of the children’s serious allegations, had sufficient reasons immediately to remove the children from their family by interim order in order to prevent possible further abuse. It follows that the interim order issued by the District Court on 23 May 2008 did not violate the applicants’ rights under Article 8 of the Convention. 50.     It remains to be determined whether the decision given in the main proceedings on the definite withdrawal of parental authority sufficiently safeguarded the applicants’ rights under Article 8 of the Convention. The Court observes that the only evidence relied upon by the Krefeld District Court when giving its decision of 4 August 2008 were the personal statements made by the two children before the Youth Office and before the District Court. There was no objective evidence for the alleged abuse. The Court further observes that, while the District Court had the benefit of direct contact with the children, the Court of Appeal based its assessment exclusively on the content of the case-file, without re-hearing the children in person. The applicants, for their part, relied on the statement of the children’s attending physicians and of a psychologist, who had examined the boy on several occasions and did not detect any sign of abuse. They further pointed out that the children had regularly attended school and sports activities. Furthermore, it was not contested before the domestic courts that the girl had a vivid imagination. The Court considers that these facts were capable of casting doubts as to the truthfulness of the children’s allegations. 51.     The Court further observes that the domestic courts, when deciding in the main proceedings, were not pressed to render an overly hasty decision once the children had been placed in the safety of a children’s home. The Court further observes that the German family courts, under section 26 of their Rules of Procedure (see paragraph 33, above), are under an obligation to carry out on their own motion all investigations necessary to establish the relevant facts and that the Government have not submitted any factual reasons which could have prevented the domestic courts from further investigating the facts before taking a decision in the main proceedings. Under these circumstances, and having regard to the serious impact the complete withdrawal of the applicants’ parental rights had on the family as a whole, the Court considers that the domestic courts, in the main proceedings, did not provide sufficient reasons for withdrawing the applicant’s parental rights. 52.     There has accordingly been a violation of Article 8 of the Convention. II.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 53. The applicants further complained under Article 8 of the Convention about having been denied any access to their children during their placement in public care. They further complained under Article 14 of the Convention about having been discriminated against vis à vis parents of German origin. They finally complained under Article 3 of Protocol No. 7 to the Convention about having been denied compensation for the erroneous decision of the German courts. 54.     However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 55.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 56.     The applicants claimed an overall sum of 35,923.74 euros (EUR) in respect of pecuniary damage. They submitted that they had to move to another town, as they could not bear continuing living in Krefeld after having lost their children. They financed the expenses for the move to a new apartment including the acquisition of new furniture and additional expenses, and the residential costs for their children to the Youth Office amounting to EUR 1,834.93, by a loan amounting to EUR   21,095.34. They further submitted that the first applicant lost employment due to considerable traumatisation and calculated their loss in earnings to EUR   14,828.40. 57.     The Government submitted that there was no causal connection between the alleged violation and the move, the latter being based on the applicants’ voluntary decision. They further submitted that the applicants had failed to substantiate the alleged loss of earnings and the causal connection between the alleged violation of their Convention rights and the applicant’s loss of employment. 58.     The Court does not discern any sufficient causal link between the violation found, the applicants’ move, the acquisition of new furniture, the costs of the personal loan and the alleged loss of earnings. On the other hand, it awards the applicants EUR 1,834.93 in respect of the residential costs paid for the children’s accommodation under public care. 59.     The applicant further claimed the sum of EUR 55,000 each in respect of non-pecuniary damage. They submitted that they had been separated from their children for 497 days, that they had to live with the fact that their daughter had been sexually abused while in public care, that they had to move home and that the first applicant lost his employment. 60.     The Government considered the sum claimed by the applicants to be excessive. Given the fact that the domestic courts did not have any reasons to doubt the credibility of the children’s allegation, they considered that it was not indicated to award non-pecuniary damages in the instant case. 61.     The Court considers that the applicants must have felt a considerable amount of anxiety and frustration due to the violation of their rights before the domestic courts. Having further regard to the far-reaching consequences of the impugned decisions for the applicants’ family as a whole, the Court, ruling on an equitable basis, awards each of the applicants EUR 25,000 under this head. B.     Costs and expenses 62.     The applicants, relying on documentary evidence, claimed EUR   3,078.74 for the costs and expenses incurred before the domestic courts. They further claimed a lump sum of EUR 300 for transport costs, postage, paper and doctor’s fees. 63.     The Government considered that the applicants had only substantiated legal expenses amounting to EUR 2,095.41. 64.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,095.41 for costs and expenses in the domestic proceedings. C.     Default interest 65.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.     Decides to join the applications;   2.     Declares the complaint under Article 8 of the Convention about the withdrawal of parental authority admissible and the remainder of the applications inadmissible;   3.     Holds that there has been a violation of Article 8 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i)     EUR 1,834.93 (one thousand eight hundred thirty-four euros and ninety-three cents), plus any tax that may be chargeable, jointly to both applicants in respect of pecuniary damage; (ii)     EUR 25,000 (twenty-five thousand euros), plus any tax that may be chargeable, to each applicant in respect of non-pecuniary damage; (iii)     EUR 2,095.41 (two thousand and ninety-five euros and forty ‑ one cents), plus any tax that may be chargeable to the applicants, jointly to both applicants in respect of costs and expenses; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 14 March 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia Westerdiek   Mark Villiger   Registrar   President