CEDH · CASELAW;CLIN;ENG — 10 janvier 2019

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Germany - 18925/15 Judgment 10.1.2019 [Section V] Article 8 Article 8-1 Respect for family life Temporary placement in children’s home due to parents’ refusal to send children to school: no violation Facts – The applicants, a married couple with four children, were opposed to the State school system, which requires compulsory school attendance, and wished to home-school their children themselves. The applicants were subject to several regulatory fines and criminal proceedings; they paid the fines imposed on them, but had not changed their stance. On 6 September 2012 the Family Court withdrew the applicants’ right to determine their children’s place of residence, as well as their right to take decisions on school matters and to apply to the authorities on behalf of their children, and transferred these rights to the youth welfare office. The Family Court also ordered the applicants to hand their children over to the youth welfare office, which would enforce the rules on compulsory school attendance. Following this decision, on several occasions the authorities attempted to conduct a learning assessment of the children, but they faced opposition from the applicants. Following the dismissal of the applicants’ appeals against the Family Court decision, on 29   August 2013 the children were removed from the applicants’ home and placed in a children’s home for three weeks, during which they underwent tests to assess their knowledge. On 19   September 2013 the children were returned to the applicants, since the latter had agreed to allow their children to attend school. Law – Article 8: Partially withdrawing parental authority, transferring certain rights to the youth welfare office, removing the applicants’ children from their home and placing them in a children’s home for three weeks constituted interferences with the applicants’ right to respect for their family life. Those measures pursued legitimate aims of protecting “health or morals” and “rights and freedoms of others”. The Court has previously assessed the German system of compulsory school attendance and found that it had been based on considerations that were in line with the Court’s own case-law and that fell within the respondent State’s margin of appreciation. The enforcement of compulsory school attendance, to prevent social isolation of the applicants’ children and ensure their integration into society, was thus a relevant reason for justifying the partial withdrawal of the applicants’ parental authority. The domestic authorities reasonably assumed that the applicants’ children were endangered by not going to school and by being kept in a “symbiotic” family system. The applicants argued that the learning assessment of their children showed that they had had sufficient knowledge, social skills and a loving relationship with their parents. However, this information had not been available to the youth welfare office or the courts when they took their decisions. On the information available to them at the time, the authorities reasonably assumed that the children had been isolated and lacked any contact outside of the family, and that there had been a risk to their physical integrity. The Court noted in this context that even mistaken judgments or assessments by professionals did not per se render childcare measures incompatible with the requirements of Article   8. The authorities had a duty to protect children and could not be held liable every time genuine and reasonably held concerns about the safety of children vis-à-vis members of their families were retrospectively proved wrong. Moreover, the unavailability of this information had been based on the applicants’ own resistance to the learning assessment of the children being conducted before they were taken into care. The Court further observed that the decision-making process, seen as a whole, provided the applicants with the requisite protection of their interests and that the procedural requirements implicit in Article   8 of the Convention were thus complied with. In particular, the Family Court heard the applicants, their children and the youth welfare office and appointed a guardian ad litem for the children to represent their interests. The applicants, represented by legal counsel, were able to put forward all their arguments against the temporary and partial withdrawal of parental authority. Moreover, the domestic courts gave detailed reasons why less severe measures than taking the children into care had not been available. They held that the prior conduct of the applicants and their persistent resistance to measures had shown that merely issuing instructions would have been ineffective, as prior administrative fines had failed to change the applicants’ refusal to send their children to school. The conclusion by the domestic courts in the circumstances of the case had therefore been reasonable and proportionate. The children were returned to their parents after the learning assessment had been conducted and the applicants had agreed to send them to school. The actual removal of the children had thus not lasted any longer than necessary, had been in their best interests and had not been implemented in a way which was particularly harsh or exceptional. In sum, “relevant and sufficient” reasons had been put forward for the partial withdrawal of the applicants’ parental authority and the temporary removal of their children. The domestic authorities have struck a fair balance between the best interests of the children and those of the applicants, which had not fallen outside the margin of appreciation granted to the domestic authorities. Conclusion : no violation (unanimously). (See also Leuffen v. Germany , 19844/92 , Commission decision of 9   July 1992; T.P. and K.M. v.   the United Kingdom [GC], 28945/95 , 10   May 2001; K. and T. v.   Finland [GC], 25702/94, 12   July 2001, Information Note   32 ; Konrad and Others v.   Germany (dec.), 35504/03, 11   September 2006, Information Note   81 ; R.K. and A.K. v.   the United Kingdom , 38000/05, 30   September 2008, Information Note 111 ; Dojan and Others v.   Germany (dec.), 319/08 et al., 13   September 2011, Information Note 144 ; as well as the Factsheet on Parental Rights and the Guide on Article   2 of Protocol No.   1 (right to education))   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes