CEDH · CASELAW;CLIN;ENG — 8 avril 2004

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Germany - 11057/02 Judgment 8.4.2004 [Section III] Article 8 Article 8-1 Respect for family life Withdrawal of parental rights and prohibition on access to children: violation Facts : At the time of submitting their application to the Court the applicants were a married couple who had four children together. They were also living with the three younger children the wife had had with her first husband. In February 2001 they applied for family aid, which was made subject to an assessment of their family situation by a psychological expert. On 17 December 2001 the expert submitted his report to the Youth Office recommending secure long-term placement of the children in view of the deficiencies in their care and family conditions. The same day the Youth Office applied to the District Court for an interim injunction for the withdrawal of the applicants’ parental rights. The court granted the injunction that same day without hearing the parents or children. It found that the parents’ inability to give the children satisfactory care and education as well as an abusive exercise of their parental authority jeopardised their development. The children were taken on the same day, including a new-born baby who was removed from the hospital nursery. The following day, 18 December, the District Court adopted another decision prohibiting all access between the applicants and their children. The applicants appealed against the decision of 17   December 2001 by which their parental rights had been revoked but the appeal was dismissed. In June 2002, the Constitutional Court found that the decisions of the lower jurisdictions had violated the applicant’s family rights and referred the case back to the District Court. The new set of proceedings in the District Court led to a decision on the merits in March 2003, in which the applicants’ parental rights were again withdrawn and access to their children prohibited for an additional period of time. In the meantime, the children continued to be separated from their parents. Law : Government’s preliminary objections – (i) non-exhaustion: The applicants had failed to appeal to the Court of Appeal as regards the District Court decision of 18 December 2001 on prohibition of access (objection accepted), but had effectively exhausted remedies in relation to the decision of 17 December 2001 (objection rejected); (ii) victim status: although the decision of the Constitutional Court of June 2002 could be seen as an acknowledgement of a breach of Article 8, the decision had had no de facto suspensive or remedial effect (objection rejected). Article 8 – The measures taken by the District Court clearly amounted to an interference with the right of the applicants to respect for their family life. The interference was also in accordance with the law and pursued a legitimate aim, namely to protect the “health or morals” and the “right and freedoms” of the children. Notwithstanding, the Court found that the provisional withdrawal of the parental rights was not supported by relevant and sufficient reasons and that the applicants had not been sufficiently involved in the decision-making process. There had been no urgency to justify the interim injunction as an imminent danger to the children had not been established. Moreover, the manner in which the measure was implemented, removing the children the following day from their respective schools or from home, went beyond the exigencies of the situation. In particular, the removal of the new-born baby from the hospital was an extremely harsh measure. The Court was not satisfied that there were extraordinarily compelling reasons for the authorities to proceed in such an intrusive manner in the applicants’ family life, placing the mother under considerable physical and mental strain and depriving the baby of close contact with its natural mother. Although the impugned measure was later set aside by the Constitutional Court, it formed the basis of the continuing separation of the applicants and the children. The measures taken, because of their immediate impact and consequences, were therefore difficult to redress. In such circumstances, there had been a violation of Article   8. Conclusion : violation (unanimously). Article 41 – The Court awarded the applicants 45,000 euros under both heads of damage. It also made an award for costs and expenses.   © 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