CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 janvier 2023

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color:#ffffff } .s35008A5F { width:18.55pt; display:inline-block } .s6BF7B3A1 { width:136.1pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sD189E17F { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-family:serif; font-size:10pt; list-style-position:inside }   FIFTH SECTION CASE OF KILIC v. AUSTRIA (Application no. 27700/15)     JUDGMENT   Art 8 read in light of Art 9 • Positive obligations • Family life • Domestic courts’ refusal to return applicants’ two youngest children to their care based on relevant and sufficient reasons • No indication that foster care placement more than a temporary measure • Family reunification not reasonably feasible despite authorities’ efforts • Regular contact between applicants and their children • Applicants’ interest in children maintaining cultural, linguistic and religious bonds taken into account throughout proceedings   STRASBOURG 12 January 2023   FINAL   12/04/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Kılıc v. Austria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary , President ,   Gabriele Kucsko-Stadlmayer,   Yonko Grozev,   Mārtiņš Mits,   Lətif Hüseynov,   Lado Chanturia,   Anja Seibert-Fohr , judges , and Victor Soloveytchik, Section Registrar, Having regard to: the application (no. 27700/15) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Ms Selma Kılıc and Mr Mürsel Kılıc (“the applicants”), on 2 June 2015; the decision to give notice to the Austrian Government (“the Government”) of parts of the complaints concerning Articles 8 and 9 of the Convention and to declare inadmissible the remainder of the application (see paragraph   104 below); the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the comments submitted by the Government of the Republic of Türkiye, who were granted leave to intervene by the President of the Section; Having deliberated in private on 4 February 2020 and 22   November 2022, Delivers the following judgment, which was adopted on the latter date: INTRODUCTION 1.     Under Article 8 and in substance also under Article 9 of the Convention, the applicants complained that the domestic courts had refused to return their two youngest children, R. and M., to their care and that the children’s placement with Austrian Christian foster families, who did not speak Turkish, in February 2011 and February 2012, respectively, had deprived them of their Turkish and Muslim identity, estranging them from their culture and religion. THE FACTS 2.     The applicants were born in 1975 and 1974 respectively and live in Vienna. They were represented by Mr T. Krankl, a lawyer practising in Vienna. 3.     The Government were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 4.     The facts of the case may be summarised as follows. THE CIRCUMSTANCES OF THE CASE 5.     The applicants are a married couple of Turkish nationality and Muslim faith. They have five children together, born in 1999, 2000, 2004, 2007 and 2010. In the course of the events to which the present case relates, the two youngest children were granted Austrian nationality in addition to their Turkish citizenship in order to facilitate administrative matters for their foster parents. THE EVENTS LEADING TO THE REMOVAL OF THE APPLICANTS’ CHILDREN FROM THEIR CARE 6 .     In 2006 the applicants’ three children at the time were found alone in the street. Shortly afterwards, the children were again found alone, this time in the family’s apartment, which was in an unhygienic state. As a consequence, the Vienna Youth Welfare Office ( Jugendwohlfahrtsträger, which was later, in 2013, renamed Kinder- und Jugendhilfeträger – hereinafter “the YWO”) placed the three children in a childcare facility as an emergency measure. Since the applicants subsequently cooperated with the YWO and renovated their apartment, the children were returned to their care. 7.     In October 2010 a chimney sweep carrying out work in the applicants’ apartment informed the YWO that the apartment was again in an alarmingly unhygienic state. For safety reasons, he issued a prohibition on further use of the heating devices ( Heizverbot ). During a visit carried out immediately, the YWO found four of the five children alone in the apartment, which was in a dirty and uninhabitable state. The whole floor was covered in clothes, dirt, food waste and dirty nappies. In the kitchen there were dirty plates and pans in large quantities, as well as mouldy food scraps. There were barely any free paths in the apartment, with piles of rubbish everywhere. The then three ‑ year ‑ old R. (born in 2007) was suffering from nappy rash and had extremely damaged teeth. The three-month-old M. (born in 2010) was dirty and crying. According to the Government’s submissions, which remained undisputed on that point, both M. and R. showed signs of severely delayed development. 8 .     The YWO, as an emergency measure, immediately removed all five children from the applicants’ care ( Kindesabnahme ). Pursuant to Article   211 of the Civil Code (see paragraph 79 below), custody of the children (to the extent covered by the provisional measure, namely care and upbringing) was therefore temporarily transferred to the YWO. 9 .     According to the Government’s submissions based on written comments by the YWO dated 14 October 2010, immediately after the children had been removed from them, the applicants asked the competent social worker to ensure that their children were not placed within the extended family circle. According to the Government, the YWO nonetheless examined the possibility of placing them with relatives, as Article 209 of the Civil Code gives priority to this option (see paragraph 82 below). However, as the grandparents did not prove capable of caring for the children, the three oldest were placed in a childcare facility. Because the two youngest children, R. and   M., needed special support, they were placed in the care of separate emergency foster parents (see paragraph 83 below). No further information was provided to the Court as to what steps had been taken by the YWO to ascertain the ability of the family members to look after the children. THE APPLICANTS’ VISITING RIGHTS Initial visiting rights 10 .     After the children were removed from their care in October 2010, the applicants were granted visiting rights in the presence of experienced, publicly funded social workers whose role was to support the applicants with their children and facilitate communication between the parties. It is not clear from the documents available to the Court or from the applicants’ submissions at what intervals the YWO initially allowed them to see their two youngest children until February 2011 and 2012 respectively (see paragraph   12 below). During a contact meeting with R. in October 2010, the first applicant – in the presence of the child – gave the social worker who was accompanying the visit a strong slap and insulted her using words such as “fool” ( Trottel ) and “whore” ( Hure ) . 11 .     From 18 November 2010, after the applicants had renovated their apartment again and had restored it to a habitable condition (see paragraph   28 below), the three oldest daughters were allowed to spend the weekends with their parents. 12 .     From February 2011, when R. was placed in the care of an ordinary foster mother (see paragraph 31 below), the preliminary visiting rights determined by the YWO (see paragraph 10 above) were reduced to one hour per month. When M. was placed in the care of ordinary foster parents in February   2012, the YWO also reduced the applicants’ visiting rights to one hour per month (see paragraph 34 below). No details of the considerations on which the YWO based its decision regarding the extent of the visiting rights at that stage are available to the Court. The incident concerning the three oldest children 13 .     On 22 August 2012, after a summer vacation visit, the applicants failed to return their three oldest daughters to their care home. The YWO offered them the opportunity to return the children after the subsequent weekend instead, which they failed to do. Following further interventions by the YWO, on 29 August 2012 the first applicant took two of the oldest children to a police station and was ranting ( schimpfen ) when handing them over to the police. The third daughter was picked up by the authorities at the applicants’ apartment. A criminal complaint was lodged against the applicants for child abduction. The investigations were later discontinued. 14.     After these events, the three oldest daughters were no longer allowed to spend the weekends with their parents. The applicants were only allowed to see them at the children’s home for two hours per week. Attempted abduction of R. 15 .     On 23 August 2012 the applicants visited R. in the presence of a social worker. The girl was wearing a necklace with a small cross (see paragraph   18 below). The applicants were shocked when they saw it. The first applicant became angry and dragged R., who was scared, by the arm. When the social worker accompanying the visit intervened, the parents reacted by yelling and hurling abuse ( mit Geschrei und Beschimpfungen ). Both applicants dragged R. and shouted something in Turkish. Thereupon, the second applicant forcibly grabbed the child and ran away with her. Passers-by were able to stop him and R. was returned to her foster mother. R. was severely shocked by the incident and felt afraid of both applicants. 16 .     As a result of the attempted abduction, on an unknown date the YWO suspended the applicants’ visiting rights in respect of R. and M. Proceedings before the District Court 17 .     In February 2011 and May 2012 the Leopoldstadt District Court ( Bezirksgericht – hereinafter “the District Court”), the competent court in charge of the custody proceedings as well as the proceedings concerning the applicants’ visiting rights, obtained two statements from the Vienna Youth Court Assistance Office ( Jugendgerichtshilfe, see paragraphs   30 and   37 below), which was reorganised in 2013 and renamed Vienna Family and Youth Court Assistance Office ( Familien- und Jugendgerichtshilfe ; see paragraph   69 below). The court further obtained expert opinions from a general psychologist in March 2011 (see paragraph 32 below), a psychiatrist in March 2012 (see paragraph 35 below) and a child and family psychologist in September 2012 (see paragraph 37 below) to determine the extent of the applicants’ visiting rights and to evaluate their child-minding abilities. During oral hearings the applicants, in the presence of their lawyer, had been given the opportunity to question both psychologists and their conclusions (see paragraphs 32 and 37 below). 18 .     During one of the oral hearings, the District Court reminded R.’s foster mother that she had to respect the child’s belonging to the Muslim religion. The foster mother replied that she herself was “loosely” Christian, but that she certainly did not force her religion on R. and respected her religion (as to her attitude in that regard, see also paragraph 31 below). She explained why the girl had been wearing a necklace with a cross at the meeting in August 2012. R. had drawn the necklace from a chewing-gum machine during their last holiday. On the day of the visit, the girl had vehemently refused to see the applicants. It had taken the foster mother a long time to convince her to get dressed and ready for the meeting. R. had finally retreated to the bathroom, where she had rediscovered the necklace, and had insisted on wearing it during the contact with the applicants. The foster mother had not removed the necklace in order not to put even more pressure on the girl, who was already extremely agitated. The District Court’s decision on visiting rights 19 .     On 27 December 2012 the District Court dismissed requests by the applicants for the lifting of the emergency measure of removing all five children from their care and a custody application by the maternal grandparents, but reserved its decision on a custody application by the YWO because of the ongoing examination of a further such application by the paternal grandmother (see paragraph 39 below). It granted the applicants visiting rights in respect of the older children at weekends and in respect of M. for one hour every four weeks in the presence of a social worker as had been the case before the incident in August 2012 (see paragraphs   11 and   12 above). It dismissed applications by the applicants for visiting rights in respect of R. The District Court based its decision on visiting rights mainly on the first expert opinion from the child and family psychologist (see paragraphs   17 above and 37 below), who had observed the latest interactions between the applicants and their children and who had taken into account the attempted abduction of R. (see paragraph 15 above). The District Court found that the visits had put a lot of strain on M. and R. (for details of the visits, see paragraphs   40-42 below). M. could not handle more extensive visits than one hour per month. Visiting rights in respect of R. had to be suspended for a period of six months, as she had been traumatised by the second applicant running away with her. She needed time to stabilise. 20 .     The District Court once again reminded R.’s foster mother that she had to respect R.’s belonging to the Muslim religion. It dismissed a request by the applicants for a special visiting right on the occasion of the Muslim Bayram celebration, as they had not replied to the District Court’s request to clarify the date of their celebration. The Regional Court’s decision and the return of the three oldest children 21 .     On 12 April 2013 the Vienna Regional Civil Court ( Landesgericht für Zivilrechtssachen ; hereinafter “the Regional Court”) granted an appeal by the applicants against the District Court’s decision of 27 December 2012 in respect of several points and instructed the District Court to further explore how the relationship between the children and their parents could be maintained in the light of Article 8 of the Convention (see paragraph   47 below). 22 .     On 30 August 2013, further to a decision by the District Court dated 28   August 2013, the three oldest children were returned to the applicants’ care (see paragraph 49 below). The District Court ordered the applicants to accept support from the non-governmental organisation (NGO) “Now – future for all” ( Jetzt – Zukunft für alle ), which offered counselling in Turkish and focused on persons of Muslim faith living in Austria, and to attend sessions with a Turkish-speaking therapist from the NGO “Learning together” ( Miteinander Lernen ) every fourteen days. The applicants had received support from “Now – future for all” since autumn 2012. They had made some progress in accepting support. Although there were still strong deficiencies in their child-minding abilities, they were found to be capable, subject to the condition of intensive and regular support and supervision, of providing their three oldest, mostly self-reliant children with the minimum care required (see paragraph 49 below). The District Court reserved its decision on the visiting and custody rights regarding R. and M. as it was still waiting for a supplementary expert opinion it had ordered (the fourth opinion by the child and family psychologist – see paragraph 51 below). The second round of proceedings regarding visiting rights 23 .     On 14 April 2014, on the basis of a supplementary expert opinion on R. and M. from the child and family psychologist, among other evidence, the District Court transferred full custody of R. and M. to the YWO (see paragraphs 51-57 below). The applicants were granted visiting rights in respect of each child for one hour every four weeks, in the presence of social workers. Regarding R., the District Court ordered the applicants to prepare for the visits by attending five sessions with a Turkish-speaking therapist, in order to help them understand R.’s fears (see paragraph 25 below). To begin with, the therapist would also attend the visits between R. and her parents (ibid.). The supplementary written expert opinion on R. and M. had once again been discussed at an oral hearing during which the applicants and their representative had had the opportunity to question the expert and her conclusions. 24.     The District Court found that as a result of the applicants’ behaviour during the visits (see paragraphs 40-41 and 54-55 below), the children were highly agitated. While the applicants had started to realise the benefits of having support in their everyday life with their three oldest children, they still showed no signs of understanding with regard to their problematic behaviour towards R. and M. and their need for support during the contact visits. Therefore, the YWO had only a limited ability to provide such support. 25 .     Observation of the visits had shown that M. was motivated to approach his parents at the beginning of the visit but that the applicants’ inappropriate reactions and lack of empathy led him to retreat. The manner in which the applicants behaved discouraged him and overburdened his resources. More extensive visiting rights would harm M. They would increase his resistance and lead to him losing trust in his surrounding environment, including his foster parents (see paragraph 55 below). As to R., who was still scared of the applicants (see paragraph 15 above), the expert had recommended in her supplementary written report that the visits in respect of her should not resume until the applicants were able to react more appropriately towards M. She stated that R. needed a feeling of self ‑ determination in order to be able to approach her parents. Otherwise, she would once again be overburdened by the visits (see paragraph 54 below). The applicants, however, were currently not capable of such a sensitive approach. During an oral hearing, presumably in February 2014 (see paragraph   51 below), the expert had been ready to modify her recommendation as to the resumption of visits between the applicants and R. after the applicants’ therapeutic preparation and in the presence of the therapist (see paragraph 23 above). As long as the applicants were not able to react appropriately to the needs of their children and show more empathy towards them, the visiting rights could not be extended. 26 .     An appeal by the applicants to the Regional Court and their subsequent extraordinary appeal to the Supreme Court were dismissed on 28   August 2014 (see paragraph 58 below) and 22 October 2014 (see paragraph   60 below) respectively. Both appeal courts upheld the District Court’s reasoning regarding the visiting rights. THE CUSTODY PROCEEDINGS Proceedings before the District Court 27 .     On 14 October 2010, thus within eight days after having removed the five children from the applicants’ care as required by law (see paragraph   79 below), the YWO applied to the District Court to have custody transferred to it relating to their care and upbringing ( Antrag auf Übertragung der Obsorge im Bereich Pflege und Erziehung ), arguing that this would be in the best interests of the children under the circumstances. 28 .     The applicants subsequently renovated their apartment again (see paragraphs   6 and   11 above) and repeatedly requested that the emergency measure of removing their children from their care be lifted ( Antrag auf Beendigung der Maßnahme der Kindesabnahme ), and that their children be returned to their care. On 5 November 2010 the apartment was found to be in an acceptable condition. 29.     On 24 November 2010 the maternal grandparents applied for temporary custody of all five children until they could be returned to the applicants (see paragraph 61 below). 30 .     The District Court ordered a psychological and a psychiatric expert opinion (see paragraphs 32 and 35 below) and obtained a statement by the Vienna Youth Court Assistance Office on the applicants’ ability to raise the children (see paragraph 17 above; as to the second statement by the Vienna Youth Court Assistance Office, see paragraph 37 below). The statement appears to have reached the court in February 2011 and, according to the District Court, recommended that R. and M. should not be returned to the applicants for the time being. They therefore remained with their respective emergency foster families. 31 .     In February 2011 R. was removed from the care of her emergency foster parents and placed in the care of an ordinary foster mother (see paragraph   12 above). According to the Government, a Turkish and/or Muslim family was not available at that time (as to the general efforts made by the State in that regard, see paragraph 100 below). Therefore, the RAP, a special department at the YWO for adopted and foster children (see paragraphs   87 and   92 below) had selected another suitable foster parent who had completed the training courses and was well prepared to accept children of other cultural origin (see paragraph 90 below). According to the RAP’s written documentation on the assessment process submitted to the Court, R.’s new foster mother had proven to be particularly open towards children from a different cultural or religious background and towards their biological families. 32 .     The psychological expert opinion appears to have reached the District Court in March 2011 (see paragraph 17 above). It recommended that R. and M. should not be returned to the applicants for the time being. The expert was questioned by the applicants and their lawyer at an oral hearing during which they challenged her conclusions. On 20 July 2011 the YWO applied for full custody of the five children ( Betrauung mit der gesamten Obsorge ). 33.     In the course of an oral hearing on 1 September 2011, the applicants agreed that the processing of their application to have the children returned to them could be suspended for six months. 34 .     In February 2012 M. was removed from the care of his emergency foster parents and placed with ordinary foster parents (see paragraph   12 above). Once again, according to the Government, owing to a lack of Turkish and/or Muslim foster parents the RAP selected other suitable foster parents (see paragraph 31 above). According to the RAP’s written documentation on the assessment process, M.’s foster parents had proven to be particularly open towards children with different religion or cultural roots. 35 .     On 8 March 2012 the custody proceedings were resumed. In March   2012 the psychiatric expert opinion on the applicants arrived (see paragraph   17 above). No information is available as to the content of that opinion. 36 .     On 26 April 2012 the maternal grandparents applied for full custody of all five children. At some point later in 2012, the paternal grandmother also applied for custody (see paragraph 61 below). 37 .     Following the psychological and the psychiatric expert opinion (see paragraphs   32 and   35 above), the District Court obtained a second statement from the Vienna Youth Court Assistance Office (see paragraphs   17 and   30 above), which arrived in May 2012. According to the District Court, that statement recommended that custody of R. and M. be transferred to the YWO. The District Court ordered a new expert opinion on the applicants’ parenting abilities from a child and family psychologist (see paragraphs   17 and   19 above). This expert provided her first written opinion in September 2012 and took into consideration the attempted abduction of R. on 23 August 2012 (see paragraph   15 above; as to her subsequent three opinions, see paragraphs   48 and   51 below). Her first opinion was challenged by the applicants and their lawyer at an oral hearing. According to the District Court, all the experts, namely the Vienna Youth Court Assistance Office (see paragraph 30 above), the general psychologist (see paragraph 32 above) and the child and family psychologist, unanimously came to the conclusion that R. and M. should not be returned to the applicants for the time being. They therefore remained in foster care. 38 .     In the course of several oral hearings, the exact number and dates of which are not known to the Court, the District Court heard both applicants, who were represented by their lawyer, and also the foster parents, the three oldest children, the maternal grandparents and officials from the YWO. It is not clear at what point in time the paternal grandmother was first heard but the proceedings regarding her custody application were still ongoing at the time (see paragraphs 39 and 65 below). The District Court’s decision on the lifting of the emergency measure 39 .     On 27 December 2012 (see paragraph 19 above) the District Court dismissed the applicants’ requests for the lifting of the emergency measure of removing all five children from their care (see paragraph 8 above) and the maternal grandparents’ custody application (see paragraphs   62-63 below), but reserved its decision on the YWO’s custody application owing to the fact that supplementary examinations by the expert in child and family psychology on the paternal grandmother’s custody application were ongoing (ibid.). It held that the measure had been justified and that as matters currently stood, the minors would still be put in danger if returned to the applicants’ care. 40 .     On the basis of the expert opinions (see paragraph 37 above) and the findings from the oral hearings (see paragraph 38 above), the District Court found that the applicants’ parenting skills were clearly limited and would put the children at danger. During the supervised contact meetings with M. and   R., the first applicant had demonstrated a lack of empathy and respect towards her children, for example by ignoring their needs, touching them abruptly when they clearly showed that they did not want to be touched, overstepping their boundaries and feeding them against their will, which had resulted in them turning away from her. She was driven by her own incentives ( Impulse ) and was not considerate towards her children. She was found to have been unable to recognise the needs of R. in particular, and had behaved angrily and in a subliminally ( unterschwellig ) aggressive manner towards her. She demanded closeness and attention from R. For example, the first applicant tickled her roughly without her consent and repeatedly interrupted her play. She looked at R. with a penetrating gaze that appeared intimidating. R. showed signs of defence which the first applicant did not perceive but which resulted in her reacting aggressively towards R. As regards M., it was found that the first applicant did not demonstrate any knowledge of how to interact with him, but rather sought the attention of the adults present. Her attention towards M. was fluctuating; apart from feeding, she hardly engaged with him at all during her visiting time. She could not perceive M.’s needs or react appropriately towards the children. Overall, the first applicant reacted angrily if the children were reticent towards her. On the other hand, when she wanted to say something herself she reacted in an abruptly defensive manner ( forsch abwehrend ) towards attempts by the children to approach her. Both applicants were found to speak little German despite the significant amount of time they had already been living in Austria. 41 .     The second applicant had not made much active effort to engage with his children in terms of encouraging them to play or explore and had hardly talked to them during their visits. His basic understanding of the children’s needs was limited. On a positive note, he had been attentive and present during the meetings, watching them and accepting when they turned away. Because of that, the children had approached their father on their own initiative and had sought physical contact with him. However, he was found to have been unable to compensate for his wife’s boundary-crossing behaviour, as he was more of a passive bystander and seemed to avoid any conflict situations with her. He hardly corrected her but tended to follow her ideas. Both parents only perceived the children’s needs to a limited extent, and could not stimulate them or maintain communication with them. 42 .     In summary, the supervised visits placed considerable strain on M. and R., who showed signs of stress after the visits. Moreover, the applicants were unable in practice to use the time they spent with R. and M. to interact with them, and neither of the applicants had shown any understanding of their wrongdoing towards their children. They could only accept offers for support from the YWO to a very limited extent and did not regard them as necessary. 43 .     The District Court further noted that the two oldest children, when still living with their younger siblings, had developed strong symptoms of “parentification” towards their parents, meaning that they took the role of parents towards their parents. The third daughter displayed regressive behaviour towards the applicants. Two of the children needed to wear glasses. However, the first applicant did not like glasses and considered them unnecessary. The second applicant considered wearing glasses to be “the wish of the child” rather than a medical necessity. Apparently out of solidarity with their parents, the girls left their glasses at their care home when they visited their parents at the weekends. 44 .     The District Court added that proceedings for the termination of the applicants’ lease initiated by their landlord on account of the significantly detrimental use ( erheblich nachteiliger Gebrauch ) of their apartment were pending at the time of the decision. From September to November 2012 the first applicant had completed a course at an association for adult education and integration ( Erwachsenenbildungs- und Integrationszentrum ) to work as a kindergarten assistant, a course which did not require official authorisation. A kindergarten assistant is a person who supports professionals in their duties and carries out other tasks, such as preparation of meals. It was not established whether the first applicant actually worked in a kindergarten. 45.     For the above reasons, the District Court dismissed the applicants’ application for the lifting of the emergency measure. Returning to the applicants would endanger the well-being of all five children, as the applicants were not sufficiently able to recognise their needs, this being an essential requirement. The District Court further noted that cooperation with the applicants was difficult, as they trivialised existing problems, denied even proven facts such as that they had left the children alone in the past, and did not consider it necessary to question or improve their child-minding abilities because of their intellectual and emotional capacities. They appeared incapable of implementing suggestions for improvement. The applicants’ appeal and the Regional Court’s decision 46 .     In an appeal of 22 January 2013 against the District Court’s decision of 27 December 2012 (see paragraphs 21 and 39 above), the applicants complained that the children’s lack of exposure to Turkish language and culture, or to education in the Muslim faith, within their foster families was not in accordance with the children’s best interests and had led to their estrangement. They argued that their own ability to raise children was demonstrated through the fact that the three oldest daughters were well brought up and independent. They contended that the District Court’s decision was ill-reasoned and contradictory, and that their own positive characteristics had not been taken into account. They also submitted that the second applicant had a sufficient command of the German language and that the applicants’ lawyer always communicated with him in German. 47 .     On 12 April 2013 the Regional Court granted the applicants’ appeal in respect of several points (ibid.). It instructed the District Court to examine, among other things, whether the emergency measure of removing the three oldest children from the applicants’ care could be lifted. The expert opinion needed to be supplemented in that respect. Moreover, the question whether the course to become an assistant in a kindergarten had led to an improvement in the first applicant’s ability to raise her children needed to be explored. The District Court’s decision on the return of the three oldest children 48 .     The District Court had in the meantime received the supplementary expert opinion drawn up in April 2013 concerning the paternal grandmother (see paragraph 39 above). This was the child and family psychologist’s second expert opinion, and it was discussed at an oral hearing. Further to the Regional Court’s decision, the District Court ordered a third supplementary opinion by the expert in child and family psychology on the applicants’ care ‑ giving abilities. The expert completed her third opinion in July 2013 and found that the applicants’ parenting abilities were still limited but sufficient for the three oldest children to be returned subject to the condition of intensive support. The applicants did not challenge that opinion or request to discuss it at an oral hearing. 49 .     On 28 August 2013 the District Court allowed the three oldest children, who were 9, 13 and 14 years old at the time, to return to the applicants under certain strict conditions (see paragraph 22 above). On the basis of the latest (third) expert opinion drawn up in July 2013 by the child and family psychologist (see paragraph 48 above), it found that they were now mostly independent and self-reliant and had also expressed the clear wish to return to their parents’ home. The situation had slightly improved as now the applicants accepted – to some extent – that they needed help from others, such as the paternal grandmother and the NGO “Now – future for all” (ibid.; see also paragraph 22 above). They had opened up to their wider family, especially the paternal grandmother (see paragraph 65 below), which had not been the case before. Their apartment was not in a neglected state anymore and it was easier to maintain the household with only the three oldest daughters visiting during the weekends. Also, the civil proceedings regarding the termination of the applicants’ lease on their apartment (see paragraph   44 above) had been dismissed in a final decision of 12 February 2013, which meant that their accommodation was now ensured. 50 .     The District Court noted that the second applicant had been unemployed for a while and that he believed that the reason was that his children had been taken away. He blamed others for the situation. Following the intensive support and assistance ( engmaschige Betreuung und Begleitung ) provided by the NGO since autumn 2012 (see paragraph   22 above), the first applicant, on a positive note, was found to have become more emotionally stable, and better at recognising her children’s needs. On the basis of the latest (third) expert opinion, which remained undisputed by the applicants (see paragraph 48 above) the District Court found that there were nonetheless still deficiencies in their child-raising ability, especially in respect of the youngest of the three oldest daughters, who was still more dependent on adults than her older sisters. However, the three girls relied on each other considerably and should therefore return to their parents together. To provide the youngest of them with sufficient care, the applicants were ordered to put her into an all-day care facility ( Ganztagsbetreuung ). The District Court concluded that the applicants could fulfil their child-minding and care-giving tasks in respect of their three oldest children under the condition of intensive support to the minimum extent necessary (ibid.). Only ongoing cooperation on the part of the applicants with NGOs and the authorities would ensure the well-being of the three oldest children (for subsequent developments in that respect, see paragraphs 52 and 69 below). As regards R. and M., the District Court continued the proceedings as the (fourth) supplementary expert report by the child and family psychologist ordered in respect of them had not yet been submitted (see paragraph   22 above). The District Court’s decision on custody of R. and M. 51 .     In November 2013 the District Court received the fourth supplementary expert opinion by the child and family psychologist (as to the first, second and third opinions, see paragraphs 37, 48 and 50 above) as regards the applicants’ care-giving abilities in respect of R. and M. The opinion was discussed at an oral hearing in February 2014 at which the applicants and their lawyer had the opportunity to question the expert and challenge her conclusions. The applicants, the grandparents and the paternal uncles were heard. On 14 April 2014 the District Court formally transferred full custody of M. and R. to the YWO, and dismissed the applicants’ requests to have the children returned to their care and the grandparents’ and uncles’ applications for custody (see paragraph 23 above and paragraph   66 below). 52 .     The District Court established that shortly after the return of the three oldest daughters to the applicants’ household (see paragraph 49 above), a friend of one of the girls had accused the second applicant of having approached her sexually. The first applicant, accompanied by one of her daughters and her counsellor from the NGO “Now – future for all”, reported the second applicant to the police. She also alleged that the second applicant had used violence against her and had entered the room when his daughters were taking showers. She also asserted that she wanted to file for divorce. Later the first applicant withdrew her claims. Upon the advice of the NGO, the second applicant temporarily slept at the paternal grandmother’s home. The second applicant also indicated that he was considering separating from the first applicant. 53 .     At a point in time not known to the Court, the second applicant was acquitted of the charge of moral endangerment ( sittliche Gefährdung ) of persons under 16 years of age in respect of the daughter’s friend and the criminal investigations regarding domestic violence were terminated. However, the latest (fourth) expert opinion (see paragraph 51 above) had shown that the applicants’ relationship had become conflict-prone and the situation within the family was very fragile. The District Court had regard to the positive development of the first applicant and the support net that the applicants now accepted (see paragraphs 22 and 49 above), which enabled them to just about deal with the three oldest children to a minimum level. However, according to the expert, who had also supplemented her opinion with regard to the three oldest daughters, the applicants were already very challenged with this situation and they still had difficulties in providing the youngest of the three oldest daughters with sufficient emotional support. In the light of the latest developments (see paragraph 52 above), the YWO carried out another endangerment assessment in order to protect the three oldest daughters and to evaluate the extent to which they could remain with the applicants. In her fourth supplementary opinion the psychological expert found that the applicants were unable to additionally take care of the two small children R. and M., six and three years old at the time, who needed more care than the older ones. They still showed only very little empathy towards their youngest children and failed to respond adequately to the needs of M. and R., instead putting their own needs first. Their behaviour overburdened the children, causing them to reject the applicants. 54 .     The District Court noted that at this point R. and M. had already been living for more than three years and more than two years, respectively, with their foster parents and had built up strong ties with them. R. was aware that the applicants were her natural parents, but the incident in August 2012 (see paragraph   15 above), which she had experienced as very threatening, had irritated ( irritiert ) her profoundly. According to the expert, she had her own child-minded thoughts ( kindliche Erlebniswelt ) and associations regarding this event, which meant that her memory was autonomous and had not been actively influenced. She was fond of her siblings, but not of her parents, with whom she tried to avoid contact. Her foster mother had encouraged her to interact with them, but also noted that the contact visits prior to the incident in August 2012 (ibid.) had put a massive strain on R. and had severely overburdened her because of the applicants’ need for physical contact against her will and their lack of empathy (see paragraphs 40-42 above). The girl was now still scared of both applicants and of the risk that the second applicant would run away with her again and expressed worries that her parents might not accept her wearing glasses (which she needed to), as with her older siblings. Moreover, she was worried that she might not be allowed to stay with her foster mother, with whom she had built up an intense bond. 55 .     The District Court found that M.’s foster parents likewise encouraged and supported the visits from the applicants, who nevertheless ignored the rules set up by the foster parents. During the last visit observed by the expert, the applicants had not demonstrated any ability to deal with M. appropriately (see paragraph 25 above). The first applicant had irritated him by suggesting that he come home with her in a taxi. She had snuggled or kissed him, ignoring his resistance and interrupting him playing. At the beginning of the visit, M. had been motivated to approach his parents, but their inappropriate reactions and lack of empathy had led to his turning away from his parents and repeatedly retreating into a corner of the room, and eventually indicating that he wanted to leave. In the course of the visit M. had shown signs of resignation in reaction to the applicants not being able to recognise his needs. The foster parents reported that M. had develo