Taking of children into care
II. RELEVANT DOMESTIC LAW AND PRACTICE A. German Basic Law ( Grundgesetz ) 24. Article 6 of the Basic law, in so far as relevant, reads as follows “(1) Marriage and the family shall enjoy the special protection of the State. (2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall watch over them in the performance of this duty. (3) Children may be separated from their families against the will of their parents or guardians only pursuant to a law, and only if the parents or guardians fail in their duties or the children are otherwise in danger of serious neglect. ...” B. German Civil Code ( Bürgerliches Gesetzbuch ) 25. 31. Article 1666 of the German Civil Code reads, as far as relevant, as follows: “(1) Where the physical, mental or psychological best interests of a child or a child’s property are endangered and the parents do not wish, or are not able, to avert the danger, a family court must take the necessary measures to avert the danger. ... (3) The court measures in accordance with subsection (1) include in particular 1. instructions to seek public assistance, such as benefits of child and youth welfare and healthcare, 2. instructions to ensure that the obligation to attend school is complied with, 3. prohibitions to use the family home or another dwelling temporarily or for an indefinite period, to be within a certain radius of the home or to visit certain other places where the child regularly spends time, 4. prohibitions to establish contact with the child or to bring about a meeting with the child, 5. substitution of declarations of the person with parental authority, 6. part or complete removal of parental authority [ die teilweise oder vollständige Entziehung der elterlichen Sorge ].” 26. Article 1666a of the German Civil Code, in so far as relevant, reads as follows: “(1) Measures which entail separation of the child from his or her parental family are only allowed if other measures, including public support measures, cannot avert the danger ... (2) The right to care for a child may only be withdrawn if other measures have been unsuccessful or if it is to be assumed that they do not suffice to avert the danger.” 27. Article 1696 of the German Civil Code, in so far as relevant, reads: “(2) A measure under sections 1666 to 1667 or another provision of the Civil Code, which may only be taken if this is necessary to avert a danger to the child’s best interests or which is in the child’s best interests (measure under the law on child protection) must be cancelled if there is no longer a danger to the best interests of the child or the measure is no longer necessary.” 28. According to an earlier decision of the Federal Court of Justice (no. XII ZB 42/07, 17 October 2007), parents’ persistent refusal to send their children to a State primary school or an approved grant-aided independent school represents an abuse of parental authority which endangers the best interests of the children concerned and can necessitate that a family court takes measures under Articles 1666, 1666a of the Civil Code. A partial withdrawal of parental authority and the ordering of guardianship are in principle suitable for countering such an abuse of parental authority. The Federal Court of Justice also concluded that it might be appropriate for a guardian to be authorised to enforce the handing over of children, if need be by using force and by means of entering and searching the parents’ home, as well as by drawing on the assistance of the bailiff’s office or the police. C. Hesse School Act ( Hessisches Schulgesetz ) 29. Section 56 of the Hesse School Act reads, as far as relevant, as follows: “(1) All children, juveniles and young adults whose place of residence or habitual place of residence, or whose place of training or of work is in Hesse must comply with [the rules on] compulsory school attendance. (2) Compliance with [the rules on] compulsory school attendance entails attending a German school. Foreign pupils may also comply with [the rules on] compulsory school attendance by attending a State-approved school run by an independent body (supplementary school) which prepares them for the International Baccalaureate or the qualifications of a Member State of the European Union. The school supervisory authority shall take decisions on exemptions. Such decisions require important grounds. ...” 30. Section 60 of the Hesse School Act, in so far as relevant, reads as follows: “(1) Compliance with compulsory full-time school attendance entails attending a State primary and lower secondary school. (2) Alternatively, compliance with full-time school attendance may entail attending a grant aided independent school. Other teaching outside of school may be authorised by the school supervisory authority only for compelling reasons. ...” 31. The relevant part of section 67 of the Hesse School Act reads as follows: “(1) Parents are responsible for ensuring that school-age children regularly attend school and participate in educational activities. They are obliged to register and de-register school-age children at the competent school, if necessary to present themselves so that a decision may be taken regarding whether a school-age child is to be enrolled, and to provide school-age children with all they need to attend school. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 32. The applicants complained that the German authorities had violated their right to respect for family life as provided in Article 8 of the Convention by withdrawing parts of parental authority ( Entzug von Teilen des elterlichen Sorgerechts ) – including the right to determine the children’s place of residence ( Aufenthaltsbestimmungsrecht ) –, by transferring these parts to the youth office and by executing the withdrawal in the form of forcibly removing the children from the applicants and placing them in a children’s home for three weeks. Article 8 reads as follows: “1. Everyone has the right to respect for his ... family life .... 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 ... for the protection of health or morals, or for the protection of the rights and freedoms of others.” 33. The Government contested that argument. A. Admissibility 34. The Government submitted that the complaint as far as the decision taken by the youth office – in the exercise of the right to determine the children’s place of residence was transferred to the office – to take the children into care between 29 August and 19 September 2013 was inadmissible. The Government argued that the application received by the Court in April 2015 had been lodged after the expiry of the six-month time-limit set out in Article 35 § 1 of the Convention, which had begun to run from the children’s time in a children’s home between 29 August and 19 September 2013. 35. The applicants contested that argument. 36. The Court reiterates that the six-month time-limit provided for by Article 35 § 1 marks out the temporal limit of the supervision exercised by the Court and signals, both to individuals and State authorities, the period beyond which such supervision is no longer possible. The existence of such a time-limit is justified by the wish of the High Contracting Parties to prevent past judgments being constantly called into question and constitutes a legitimate concern for order, stability and peace (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 40, 29 June 2012, with further references). Rule 47 of the Rules of Court closer defines the relevant date of introduction and reads, in so far as relevant: “[T]he date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall be the date on which an application form satisfying the requirements of this Rule is sent to the Court. The date of dispatch shall be the date of the postmark.” 37. The Court observes that the removal of the children constituted the execution of the Darmstadt Family Court’s decision of 6 September 2012 and is therefore intrinsically tied to that decision. The applicants appealed against the decision and exhausted the domestic remedies by lodging a constitutional complaint, which was not admitted for adjudication. The decision of the Federal Constitutional Court was served upon the applicants on 16 October 2014 (see paragraph 16 above). The applicants’ duly completed application form accompanied by copies of all relevant documents was sent to the Court on 16 April 2015. The Court therefore concludes that the applicants’ application was lodged within the six-month time-limit. 38. The Court also notes that the complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 39. The applicants submitted that the German authorities had interfered with the applicants’ right to respect for family life not only by partially withdrawing parental authority and transferring those rights to the youth office but also by enforcing the decision and placing their children in a children’s home for three weeks. Those interferences had not pursued a legitimate aim – in particular they had not aimed at the protection of the health, rights and freedoms of the children – as the children had been schooled and the removal from their parents and their family home had harmed them instead of protecting them. Moreover, the interferences had also not been necessary in a democratic society. Firstly, there had not been sufficient evidence of any risk to the children, let alone relevant and sufficient reasons to justify the removal and withdrawal of parental authority. Secondly, the authorities had not acted in the best interest of the children but had merely acted to prevent home schooling and to enforce the rules on compulsory school attendance. Thirdly, the authorities had not attempted less intrusive measures, had not worked towards reunification of the family and had not transferred the parental rights back to the applicants as soon as possible. Lastly, the decisions of the authorities had been based on misconceptions of home schooling and the wrong assumption that such schooling would lead to social isolation and a lack of education. These assumptions, however, had not been grounded in facts. 40. The Government accepted that the decision to withdraw, among other things, the applicants’ right to determine the children’s place of residence and the fact that their children had been subsequently forcibly separated from their parents had constituted interferences with the right to respect for the applicants’ family life. The interferences had been, however, in accordance with the law and had pursued the legitimate aim of protecting the health, rights and freedoms of the applicants’ children. Moreover, the interferences had been necessary in a democratic society. The German authorities had established, based on the information available at the relevant time, that the best interest of the children had been at risk and that this fact had required the partial withdrawal of parental authority. Despite compulsory school attendance, the children had not attended a State school for years. The schooling by, in particular, their mother had had to be regarded as inadequate, since the children had been taught only for five hours a day, interrupted by a lunch break, and, notwithstanding their different ages, all children had been taught together and the same curriculum. In addition, the children had had no regular contact with society and hardly any opportunity to meet children of their own age, for example during music lessons or in sports clubs, or to acquire social skills. They consequently had grown up isolated within their own family enclave, in which the applicants had ensured that their children had established a strong attachment to them, to the exclusion of others. The courts had therefore correctly assumed that a “symbiotic” family system had emerged. Further information had not been available to the authorities as the applicants had persistently resisted and prevented the children’s situation from being examined in detail by the youth office or the Education Authority. The domestic courts, in particular the Frankfurt am Main Court of Appeal, outlined these sufficient and relevant reasons in detail in their decisions. The courts had also assessed whether less severe measures had been available but had correctly concluded that, given the applicants’ previous conduct and persistent rejection of schooling outside their own home, which could not even be changed by criminal sanctions, no other measures had been available. Moreover, as soon as the learning assessment had been undertaken and the applicants had agreed to send their children to a public school, the children had been returned to their parents. 41. The third-party intervener Ordo Iuris submitted that according to the established case-law of the Court any interference with the right to family life and in particular with the mutual enjoyment by parent and child of each other’s company had to be oriented to the best interests of the child. On a procedural level, decisions had to be based on sufficient and relevant reasons, parents had to be involved in the proceedings and separation of children and parents should only be a measure of last resort and kept as short as possible. Ordo Iuris further argued that home-schooling as such could not justify removal of children from their parents and made extensive submissions – in particular concerning Article 2 of Protocol No. 1 to the Convention – regarding the protection of a right to home-schooling under the Convention. Similarly, the third party intervener European Centre for Law and Justice argued that home-schooling should be protected by the Convention under Article 2 of Protocol No. 1. 2. The Court’s assessment 42. At the outset, and having regard to the submissions of the parties and third parties, the Court finds it necessary to clarify the scope of the application. The Court notes that the application concerns the compatibility of a temporary and partial withdrawal of parental authority and the enforcement of this decision with Article 8 of the Convention. While the prohibition of home-schooling in Germany is an underlying issue of this complaint, the Court observes that it has already decided upon the compatibility of this prohibition with the Convention – in particular Article 8 and Article 2 of Protocol No. 1 - before (see, for example, Konrad and Others v. Germany (dec.), no. 35504/03, 11 September 2006; Dojan and Others v. Germany (dec.), nos. 319/08, 2455/08, 7908/10, 8152/10 and 8155/10, 13 September 2011; and Leuffen v. Germany, no. 19844/92, Commission decision of 9 July 1992) and that the respective part of the application has already been declared inadmissible (see paragraph 4 above). 43. The Court observes that the parties agreed that partially withdrawing parental authority, transferring those rights to the youth office and enforcing the decision by removing the applicants’ children from their parents’ home and placing them in a children’s home for three weeks, constituted interferences with the applicants’ right to respect for family life under Article 8 of the Convention. It is further also not in dispute that these interferences were based on Articles 1666, 1666a of the Civil Code (see paragraphs 25 and 26 above). The Court endorses these conclusions. 44. Such interferences constitute a violation of Article 8 unless they pursue a legitimate aim and can be regarded as “necessary in a democratic society”. In that context, the applicants argued that the interferences had not pursued legitimate aims, since taking the children into care had harmed them instead of protecting them. The Government however submitted that the authorities had acted with the aim of protecting the health, rights and freedoms of the applicants’ children. 45. The Court notes that Articles 1666, 1666a of the Civil Code (see paragraphs 25 and 26 above) are aimed at protecting the physical, mental or psychological best interests of a child. There is nothing to suggest that it was applied for any other purpose in the present case. Consequently, the Court is satisfied that the authorities acted in pursuit of the legitimate aims of protecting “health or morals” and “rights and freedoms of others”. 46. The question of whether the 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 measure were “relevant and sufficient”. Article 8 requires that a fair balance must be struck between the interests of the child and those of the parent and, in striking such a balance, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent (see Elsholz v. Germany [GC], no. 25735/94, §§ 48, 50, ECHR 2000 ‑ VIII; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001 ‑ V (extracts); Hoppe v. Germany, no. 28422/95, §§ 48, 49, 5 December 2002; and Wetjen and Others v. Germany, nos. 68125/14 and 72204/14, § 68, 22 March 2018). 47. In considering the reasons adduced to justify the measures in question the Court will give due account to the margin of appreciation to be accorded to the competent national authorities, which had the benefit of direct contact with all of the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation (see Kutzner v. Germany, no. 46544/99, § 66, ECHR 2002 ‑ I). The margin of appreciation will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening his or her health or development and, on the other hand, the aim to reunite the family as soon as circumstances permit ( K. and T. v. Finland [GC], no. 25702/94, § 155, ECHR 2001 ‑ VII; Mohamed Hasan v. Norway, no. 27496/15, § 145, 26 April 2018). The Court reiterates that the authorities enjoy a wide margin of appreciation when assessing the necessity of taking a child into care (see K. and T. v. Finland, cited above, § 155). In addition, 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 (see Kutzner, cited above, § 66). 48. Turning to the facts of the present case, the Court reiterates 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 family life with their child (see K. and T. v. Finland, cited above, § 173). 49. It also notes that the German courts justified the partial withdrawal of parental authority by citing the risk of danger to the children. The courts assessed the risk on the persistent refusal of the applicants to send their children to school, where the children would not only acquire knowledge but also learn social skills, such as tolerance or assertiveness, and have contact with persons other than their family, in particular children of their own age. The Court of Appeal further held that the applicants’ children were being kept in a “symbiotic” family system. 50. The Court further reiterates that it has already examined cases regarding the German system of imposing compulsory school attendance while excluding home education. It has found it established that the State, in introducing such a system, had aimed at ensuring the integration of children into society with a view to avoiding the emergence of parallel societies, considerations that were in line with the Court’s own case-law on the importance of pluralism for democracy and which fell within the Contracting States’ margin of appreciation in setting up and interpreting rules for their education systems (see Konrad and Others; Dojan and Others; and Leuffen; all cited above). 51. The Court finds that the enforcement of compulsory school attendance, to prevent social isolation of the applicants’ children and ensure their integration into society, was a relevant reason for justifying the partial withdrawal of parental authority. It further finds that the domestic authorities reasonably assumed – based on the information available to them – that children were endangered by the applicants by not sending them to school and keeping them in a “symbiotic” family system. 52. In so far as the applicants submitted that the learning assessment taken by the children had shown that the children had had sufficient knowledge, social skills and a loving relationship with their parents, the Court notes that this information was not available to the youth office and the courts when they decided upon the temporary and partial withdrawal of parental authority and the taking of the children into care. In contrast, having regard to the statements of, in particular, Mr. Wunderlich – for example that he considered children to be the ‘property’ of their parents – and on the information available at the time, the authorities reasonably assumed that the children were isolated, had no contact with anyone outside of the family and that a risk to their physical integrity existed (see paragraphs 10, 18 and 23 above). The Court also reiterates that even mistaken judgments or assessments by professionals do not per se render childcare measures incompatible with the requirements of Article 8. The authorities – both medical and social – have a duty 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 families are proved, retrospectively, to have been misguided (see R.K. and A.K. v. the United Kingdom, no. 38000/05, § 36, 30 September 2008). The Court would also add that the unavailability of this information was based on the applicants’ resistance to have the learning assessment conducted prior to the removal of the children. 53. To assess whether the reasons adduced by the domestic courts were also sufficient for the purposes of Article 8 § 2, the Court will have to determine whether the decision-making process, seen as a whole, provided the applicants with the requisite protection of their interests (see, inter alia, T.P. and K.M. v. the United Kingdom, cited above, § 72, and Süß v. Germany, no. 40324/98, § 89, 10 November 2005). The Court observes that the Darmstadt Family Court heard testimony from the applicants, their children and the youth office and appointed a guardian ad litem for the children to represent their interests. In addition, the applicants submitted extensive written pleadings to the domestic courts. The Court is therefore satisfied that the applicants, represented by legal counsel, were in a position to put forward all their arguments against the temporary and partial withdrawal of parental authority and that the procedural requirements implicit in Article 8 of the Convention were complied with. 54. Lastly, the Court has to examine whether the decisions to withdraw parts of the parents’ authority and to take the children into care were proportionate. The domestic courts gave detailed reasons why less severe measures than taking the children into care were not available. They held, in particular, that the prior conduct of the applicants and their persistent resistance to measures had shown that merely issuing instructions would be ineffective. The Court notes that not even prior administrative fines had changed the applicants’ refusal to send their children to school. It therefore finds, in the circumstances of the present case, the conclusion by the domestic courts acceptable. 55. The Court would further reiterate that the seriousness of measures which separate parent and child requires that they should not last any longer than necessary for the pursuit of the child’s rights and that the State should take measures to rehabilitate the child and parent, where possible (see T.P. and K.M. v. the United Kingdom, cited above, § 78, with further references). In that regard it notes that the children were returned to their parents after the learning assessment had been conducted and the applicants had agreed to send their children to school. The Court therefore concludes that the actual removal of the children did not last any longer than necessary in the children’s best interest and was also not implemented in a way which was particularly harsh or exceptional (see K. and T. v. Finland, cited above, § 173). In that regard, the Court also observes that the applicants did not complain about the placement of their children in a particular facility or the treatment of their children while in care. 56. In so far as the applicants complained that the partial withdrawal of parental authority had only been lifted in August 2014, the Court notes that, after the first learning assessment, a further in ‑ depth long-term assessment of the children’s development was necessary, which required continuous attendance at school. Furthermore, the Court finds that the existence of the non-enforced decision did not impose any identifiable actual prejudice (compare R.K. and A.K. v. the United Kingdom, cited above, § 38). 57. The foregoing considerations are sufficient to enable the Court to conclude that there were “relevant and sufficient” reasons for the withdrawal of some parts of the parents’ authority and the temporary removal of the children from their family home. The domestic authorities struck a proportionate balance between the best interests of the children and those of the applicants, which did not fall outside the margin of appreciation granted to the domestic authorities. 58. There has accordingly been no violation of Article 8 of the Convention.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that the enforcement of compulsory school attendance in order to ensure the children’s integration into society was a relevant reason for justifying the partial withdrawal of parental authority. It also found that the authorities had reasonably assumed that the children were isolated, had had no contact with anyone outside of the family and that a risk to their physical integrity had existed. The Court held that the actual removal of the children had not lasted any longer than was necessary to ensure the children’s best interests. It therefore concluded that there were “relevant and sufficient” reasons for the withdrawal of some parts of the parents’ authority and the temporary removal of the children from their family home.