Taking of children into care
II. RELEVANT DOMESTIC LAW 49. Article 1666 of the Civil Code ( Bürgerliches Gesetzbuch ) lays down that the guardianship courts are under an obligation to order necessary measures if a child's welfare is jeopardised ( Gefährdung des Kindeswohls ). 50. The first sub-paragraph of Article 1666a provides that measures intended to separate a child from its family are permissible only if it is not possible for the authorities to take any other measure to avoid jeopardising the child's welfare. 51. The second sub-paragraph of Article 1666a provides: “Full [parental] responsibility may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 52. The applicants alleged that the withdrawal of their parental responsibility for their two daughters had infringed their right to respect for their family life, as guaranteed by Article 8 of the Convention, which provides: “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.” 53. The Government asserted that the interference in issue was based on Articles 1666 and 1666a of the Civil Code and was necessary for the children's physical and psychological welfare. They said that, after hearing representations from the parties and seeking the opinion of two experts in psychology, the domestic courts had concluded that the applicants' interest in maintaining family life had to yield to the interest of ensuring the children's welfare, as the children's development had been found to have become so retarded that, partly as a result of a lack of cooperation between the applicants and the social services, less radical educational assistance measures had proved insufficient in the past. Indeed, the experts had reached identical conclusions, but had simply stressed different aspects of the problem, something that was not uncommon in such cases and was also explained by the fact that their reports had been prepared at different stages of the proceedings. Furthermore, it had not been possible to take Mr Riedl's report on behalf of the applicants into account, as it had not been lodged until 28 May 1998, that is to say two days after the Federal Constitutional Court had delivered its decision. In any event, that report had been prepared privately and could not be used to challenge the conclusions of the first two experts. Lastly, the Government stressed that there had not been a total severance of contact between the applicants and their children and that there was also contact between the girls' respective foster parents. In conclusion, the dispute concerning the applicants' visiting rights was now settled, as the applicants had accepted Ms Sperschneider's proposals on that subject and were in fact visiting their children in accordance with the suggested arrangements. 54. The applicants questioned the need for the interference and criticised certain aspects of the expert reports commissioned by the domestic courts. In their submission, those reports were neither reliable nor credible, as they proffered entirely different reasons as proof that the children's welfare was in jeopardy. In the first report, the expert had referred to emotional deficiencies in the relationship between the applicants and their daughters, whereas the second expert had laid the emphasis on the parents' intellectual shortcomings. They found it intolerable to be criticised for their low intellectual level, as, if such criteria were to be applied, approximately 30% of parents in Germany would have their parental responsibility for their children withdrawn. The applicants also complained that the experts had failed to examine in detail, as they were required to do by the relevant provisions of civil law, whether alternative measures could be taken, such as appointing another social worker to assist the family, that would obviate the need for parental responsibility to be withdrawn altogether. They stressed that the effects of being separated from their parents had been dramatic for the children and that the children were suffering from “parental alienation” syndrome, a condition recognised by the international scientific community. Lastly, they expressed their disapproval of the decision of the Osnabrück Youth Office to place the children in separate unidentified homes and of its insistence on doing everything possible to keep contact between them and their children to a strict minimum, without seeking to offer support to the family of origin, despite the obligation imposed on them to do so by the Law governing support for children and adolescents ( Kinder- und Jugendhilfegesetz ). They submitted that the unsatisfactory restrictions on their visiting rights were causing the children to become increasingly alienated ( Entfremdung ) from their family of origin and risked causing irreparable damage to the parent-child relationship. 55. The applicants also complained that they been denied a fair trial, as the domestic courts had relied exclusively on the findings of the District Youth Office, the Society for Family Education and the official expert witnesses, without having regard to the reports of the experts called on behalf of the applicants, Mr Riedl and Mr Giese. They relied on Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 56. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44), and that it has previously held that whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see, among other authorities, McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p. 55, § 87, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 99, ECHR 2000 ‑ I). 57. In the instant case the Court considers that the complaint raised by the applicants under Article 6 is closely linked to their complaint under Article 8 and may accordingly be examined as part of the latter complaint. A. Whether there has been an interference 58. The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life (see, among other authorities, W., B. and R. v. the United Kingdom, judgments of 8 July 1987, Series A no. 121, respectively, p. 27, § 59, pp. 71-72, § 60, and p. 117, § 64; Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, p. 29, § 59; Eriksson v. Sweden, judgment of 22 June 1989, Series A no. 156, p. 24, § 58; Margareta and Roger Andersson v. Sweden, judgment of 25 February 1992, Series A no. 226-A, p. 25, § 72; Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 50; McMichael, cited above, p. 55, § 86; Johansen v. Norway, judgment of 7 August 1996, Reports 1996-III, p. 1001-02, § 52; Bronda v. Italy, judgment of 9 June 1998, Reports 1998-IV, p. 1489, § 51; Buscemi v. Italy, no. 29569/95, § 53, ECHR 1999-VI; Gnahoré v. France, no. 40031/98, § 50, ECHR 2000-IX; and K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001-VII). 59. There is therefore no doubt – and the Government do not contest – that the measures concerned in the present case (the children's continued placement in foster homes and the restrictions imposed on contact between the applicants and their children) amounts to an “interference” with the applicants' rights to respect for their family life. B. Whether the interference is justified 60. An interference with the right to respect for family life entails a violation of Article 8 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under Article 8 § 2 and is “necessary in a democratic society” for the aforesaid aim or aims. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, among other authorities, Gnahoré, cited above, § 50 in fine ). 61. Although the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in an effective “respect” for family life. Thus, where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited (see, among other authorities: Eriksson, cited above, pp. 26-27, § 71; Margareta and Roger Andersson, cited above, p. 30, § 91; Olsson v. Sweden (no. 2), judgment of 27 November 1992, Series A no. 250, pp. 35-36, § 90; Ignaccolo-Zenide, cited above, § 94; and Gnahoré, cited above, § 51). 62. The boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, W., B. and R. v. the United Kingdom, cited above, respectively, p. 27, § 60, p. 72, § 61, and p. 117, § 65; and Gnahoré, cited above, § 52). 1. “In accordance with the law” 63. The interference in issue was indisputably based on Articles 1666 and 1666a of the Civil Code. 2. Legitimate aims 64. The Court considers that there is no doubt that the measures in issue were intended to protect “health or morals” and the “rights and freedoms” of the children. 3. “Necessary in a democratic society” 65. The Court reiterates that in order to determine whether the impugned measures were “necessary in a democratic society”, it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among other authorities, Olsson (no. 1), cited above, p. 32, § 68; Johansen, cited above, pp. 1003-04, § 64; Olsson (no. 2), cited above, p. 34, § 87; Bronda, cited above, p. 1491, § 59; Gnahoré, cited above, § 54; and K and T. v. Finland, cited above, § 154). It will also have regard to the obligation which the State has in principle to enable the ties between parents and their children to be preserved. 66. In so doing, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interest of the child is in any event of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned ( Olsson (no. 2), cited above, pp. 35 ‑ 36, § 90), often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see, among other authorities, Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55; Johansen, cited above, pp. 1003-04, § 64; K. and T. v. Finland, cited above, § 154). 67. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as the importance of protecting the child in a situation in which its health or development may be seriously at risk and the objective of reuniting the family as soon as circumstances permit. When a considerable period of time has passed since the child was first placed in care, the child's interest in not undergoing further de facto changes to its family situation may prevail over the parents' interest in seeing the family reunited. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for both of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that family relations between the parents and a young child are effectively curtailed (see Johansen, cited above, pp. 1003-04, § 64). 68. The Court notes that in the instant case, by a judgment of 27 May 1997, the Bersenbrück Guardianship Court withdrew the applicants' parental responsibility for their two daughters, Corinna and Nicola, who were born in 1991 and 1993 respectively, and ordered their placement with foster parents, notably on the ground that the applicants did not have the requisite intellectual capacity to bring up their children. The Guardianship Court also noted that the children were considerably behind in their emotional and physical development and that the applicants had failed to cooperate with social services. In a judgment of 29 January 1998 the Osnabrück Regional Court, relying on two reports by expert witnesses, the first of whom stressed the applicants' intellectual deficiencies and the second their lack of emotional support, upheld the Guardianship Court's order placing the children with foster parents. 69. The Court begins by noting that the fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the “necessity” for such an interference with the parents' right under Article 8 of the Convention to enjoy a family life with their child ( K. and T. v. Finland, cited above, § 173). 70. The Court recognises that in the instant case the authorities may have had legitimate concerns about the late development of the children noted by the various social services departments and psychologists. However, it considers that both the care order itself and, above all, the manner in which it was implemented were unsatisfactory. 71. It appears that the children benefited from an early age and, indeed, at the applicants' request, from educational support and that the situation became acrimonious as a result notably of a conflict between the applicants and a social worker, Ms Klose, who submitted a very negative report to the Osnabrück Youth Office. 72. Moreover, the opinions of the psychologists, from whom expert evidence was taken at various stages of the proceedings by the domestic courts, were contradictory, if not in their conclusions then at least as regards the reasons relied on (one psychologist referred to the parents' lack of intellectual capacity while the other referred to emotional underdevelopment that made them incapable of contributing to the development of the children's personalities). 73. Moreover, both of the other psychologists, who had been retained as expert witnesses by the German Association for the Protection of Children and the Association for the Protection of the Rights of the Child, and the family doctors urged that the children be returned to their family of origin. They emphasised in particular that the children's welfare was not in jeopardy and that the applicants were entirely fit to bring up their children, both emotionally and intellectually. They said that the children should be given additional educational support. Those conclusions could not be disregarded simply because they emanated from people who were acting on behalf of one of the parties to the proceedings (see paragraph 53 above). 74. Lastly, unlike the position in other cases of the same type that have come before the Court, there have been no allegations that the children have been neglected or ill-treated by the applicants. 75. Accordingly, although the educational-support measures taken initially subsequently proved to be inadequate, it is questionable whether the domestic administrative and judicial authorities have given sufficient consideration to additional measures of support as an alternative to what is by far the most extreme measure, namely separating the children from their parents. 76. The Court further reiterates that a care order should in principle be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child ( Olsson (no. 1), cited above, pp. 36-37, § 81). The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child ( K. and T. v. Finland, cited above, § 178). 77. However, in the instant case, not only have the children been separated from their family of origin, they have also been placed in separate, unidentified, foster homes and all contact with their parents was severed for the first six months. In addition, the children themselves have at no stage been heard by the judges. 78. Furthermore, the evidence in the case file shows that the applicants were only granted visiting rights after making an application to the court, and visits were in practice systematically obstructed by the Bersenbrück Youth Office, initially being restricted to one hour a month in the presence of eight people who were not members of the family before being increased to two hours a month (with the grandparents being authorised to visit once every two months) by a decision of the Osnabrück Guardianship Court on 9 October 2000. 79. Having regard to the fact that the children were very young, severing contact in that way and imposing such restrictions on visiting rights could, in the Court's opinion, only lead to the children's increased “alienation” ( Entfremdung ) from their parents and from each other. 80. Nor can the issue be regarded as having been resolved, as the applicants have consistently contested not only their children's placement with the foster parents, but also the restrictions imposed on their visiting rights and in practice it would be unfair to criticise them for making use of the arrangements proposed by the domestic courts to at least gain an opportunity to see their children. 81. Having regard to all these considerations, the Court finds that although the reasons relied on by the domestic authorities and courts were relevant, they were insufficient to justify such a serious interference in the applicant's family life. Notwithstanding the domestic authorities' margin of appreciation, the interference was therefore not proportionate to the legitimate aims pursued. 82. Consequently, there has been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 83. 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 84. The applicants maintained that the withdrawal of their parental responsibility for their two daughters had caused them pecuniary damage, which they calculated as follows: (i) 25,700 marks (DEM) in family benefit which they no longer received owing to the fact that the children had been placed in foster homes; (ii) DEM 1,488, being the sums which the Youth Office had allegedly seized on their account as a financial contribution towards the children's needs in their new homes (however, proceedings were still pending as the applicants had contested the attachment order); (iii) DEM 18,000 for delays in the building of their house; (iv) DEM 110,448 for loss of earnings by Mr Kutzner, who had been unable to carry on working owing to the dramatic psychological and physical effects of being separated from her children; (v) DEM 35,895 for loss of earnings by Mrs Kutzner's mother, who had likewise been prevented from working as a result of the effects of the family situation on her health. 85. The applicants also alleged that they had sustained substantial non-pecuniary damage, their physical and psychological health having suffered as a result of their separation from their children, their children's separation from each other and the restrictions on their visiting rights. They left the issue of quantum to the Court's discretion. 86. The Government expressed no view on the matter. 87. The Court considered that the alleged pecuniary damage was either unsupported by evidence or had not been caused by the violation that had been found. However, it found that the applicants had undeniably sustained non-pecuniary damage as a result of being separated from their two daughters and the restrictions on their visiting rights. Having regard to the circumstances of the case and ruling on an equitable basis as required by Article 41, it awards them compensation of 15,000 euros (EUR) jointly. B. Costs and expenses 88. The applicants' claim for costs and expenses was broken down as follows: (i) DEM 8,392 for lawyers' fees before the domestic courts; (ii) DEM 9,602.20 for expert witnesses' fees; (iii) DEM 7,674.60 for the fees of the Association for the Protection of the Rights of the Child, which had also represented the applicants before the domestic courts and the Court; (iv) DEM 1,220 for the expenses incurred by the Association for the Protection of the Rights of the Child. 89. The Government did not raise any objections to the claims. 90. According to its settled case-law, the Court will award costs and expenses only in so far as these relate to the violation found and to the extent to which they have been actually and necessarily incurred and are reasonable as to quantum (see, among many other authorities, Pammel v. Germany, judgment of 1 July 1997, Reports 1997-IV, p. 1114, § 82). With regard to lawyers' fees, the Court reiterates that it does not consider itself bound by domestic scales and practices, although it may derive some assistance from them. Ruling on an equitable basis, the Court decides to award the applicants jointly the sum of EUR 8,000, from which EUR 350.63 which they have already received in legal aid must be deducted. C. Default interest 91. According to the information available to the Court, the statutory rate of interest applicable in Germany at the date of adoption of the present judgment is 7.57% per annum.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that, whilst the reasons given by the national authorities and courts had been relevant, they had not been sufficient to justify such a serious interference with the applicants’ family life.