Parental authority, child custody and access rights
III. RELEVANT DOMESTIC LAW A. The Civil Code 18. Article 177 of the Austrian Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) deals with the custody of children in an event such as the dissolution of their parents ’ marriage by divorce. It reads: "(1) Where the marriage between the parents of a legitimate minor has been dissolved, annulled or declared void, or where the parents are separated other than merely for a temporary period, they may submit to the court an agreement concerning which of them shall in the future have custody of the child. The court shall approve the agreement if it is in the interests of the child ’ s welfare. (2) Where no agreement is reached within a reasonable time, or if the agreement reached is not in the interest of the child ’ s welfare, the court shall decide which parent is to have sole custody of the child in the future; in the case of a separation of the parents which is not merely temporary, such a decision shall be taken only on application by one of them." 19. Both during and after the parents ’ marriage, the court may be called upon to substitute its approval or consent for that of the parents (or parent). The relevant provision is Article 176, which reads: "Where the conduct of the parents threatens the welfare of a minor, the court shall be required, irrespective of who has applied to it, to make the orders necessary for the protection of the child ’ s welfare. Such an order may also be made on application by one of the parents when the parents have failed to reach an agreement concerning a matter of importance to the child. In particular the court may withdraw custody of a child, either wholly or in part, including rights of approval and consent provided by law. In individual cases the court is also required to substitute its approval or consent for parental approval or consent required by law, when there is no justified reason for refusal." 20. In taking decisions under Articles 176 and 177, the courts follow the criteria set out in Article 178a, which reads: "In assessing the interests of the minor, his or her personality and needs must be duly taken into consideration, particularly his or her talents, abilities, inclinations and developmental opportunities, as well as the material circumstances of the parents." B. Regulation of religious life 21. Religious freedom is guaranteed by Article 14 of the Basic Law ( Staatsgrundgesetz ), which reads: "(1) Complete freedom of beliefs and conscience is guaranteed to everyone. (2) Enjoyment of civil and political rights shall be independent of religious confessions; however, a religious confession may not stand in the way of civic duties. (3) No one shall be compelled to take any church-related action or to participate in any church-related celebration, except in pursuance of a power conferred by law on another person to whose authority he is subject." 22. Austria has a system of recognition of religious communities. It is governed by the Act of 20 May 1874 concerning the Legal Recognition of Religious Communities ( Gesetz betreffend die gesetzliche Anerkennung von Religionsgesellschaften ), RGBl ( Reichsgesetzblatt, Official Gazette of the Austrian Empire) 1874/68. Only five religious communities are so recognised, among them the Roman Catholic Church but not the Jehovah ’ s Witnesses. Religious groupings without legal recognition have legal personality as "societies" ( Vereine ) under the general law. 23. The religious education of children is governed by the Federal Act on the Religious Education of Children, which re-enacted a German law dating from 1921 that was incorporated into Austrian law in 1939 (see paragraph 15 above). Article 1 reads: "The religious education of a child shall be decided upon by an agreement freely entered into by the parents, in so far as the responsibility for the child ’ s care and upbringing is vested in them. Such an agreement may be revoked at any time and is terminated by the death of either spouse." Article 2 reads: "(1) If such an agreement does not or ceases to exist,the provisions of the Civil Code on the care and upbringing of children shall extend to their religious education. (2) During the existence of their marriage neither parent may decide without the consent of the other that the child is to be brought up in a faith different from that shared by both parents at the time of their marriage or from that in which he or she has hitherto been brought up, or that a child is to cease to attend religious education classes. (3) In the absence of such consent, application may be made for the mediation of, or a decision by, the guardianship court. In any such decision the interests of education shall be paramount even in cases not covered by Article 176 of the Civil Code. Before the decision is taken the child ’ s parents, and if necessary relatives, relatives by marriage and teachers, must be heard if this is possible without significant delays or disproportionate costs. The child itself must be heard if it has reached the age of ten." C. Medical action 24. The need for parental permission for administering blood transfusions to minors follows from the law governing medical action in general. Thus, the Hospitals Act ( Krankenanstaltengesetz ), BGBl 1/1957, lays down in Article 8: "(1)... (2) Hospital patients may be medically treated only in accordance with the principles and recognised methods of medical science. (3) Special curative treatments including surgical operations may be carried out on a patient only with his consent, but if the patient has not yet reached the age of eighteen or if because he lacks mental maturity or health he cannot assess the necessity or usefulness of the treatment, only with the consent of his legal representative. Consent is not required if the treatment is so urgently necessary that the delay involved in obtaining the consent of the patient or his legal representative or in appointing a legal representative would endanger his life or would entail the danger of serious harm to his health. The medical director of the hospital or the doctor responsible for the management of the hospital department concerned shall decide on the necessity and urgency of treatment." 25. It is a criminal offence to administer medical treatment without the requisite consent; this follows from Article 110 of the Criminal Code ( Strafgesetzbuch ), which reads: "(1) Whoever treats another person, even according to the rules of medical science, without having obtained that person ’ s consent, shall be liable to imprisonment for up to six months or to a fine of up to 360 daily rates. (2) If the offender has failed to obtain the consent of the patient because he assumed that a delay in the treatment would entail a serious risk for the life or health of the patient, he shall be punished according to paragraph 1 only if the assumed risk did not exist and if by taking due care ... he could have been aware of this. (3) The offender shall be punished only at the request of the person who underwent unauthorised treatment." PROCEEDINGS BEFORE THE COMMISSION 26. Mrs Hoffmann applied to the Commission on 20 February 1987. She complained that she had been denied custody of the children on the ground of her religious convictions. She invoked her right to respect for her family life (Article 8 of the Convention) (art. 8), her right to freedom of religion (Article 9) (art. 9) and her right to ensure the education of her children in conformity with her own religious convictions (Article 2 of Protocol No. 1) (P1-2); she further claimed that she had been discriminated against on the ground of religion (Article 14) (art. 14). 27. The application (no. 12875/87) was declared admissible on 10 July 1990. In its report of 16 January 1992 (Article 31) (art. 31), the Commission expressed the opinion: (a) by eight votes to six, that there had been a violation of Article 8 read in conjunction with Article 14 (art. 14+8); (b) by twelve votes to two, that no separate issue arose in regard to Article 9 (art. 9) taken separately or in conjunction with Article 14 (art. 14+9); (c) unanimously, that there had been no violation of Article 2 of Protocol No. 1 (P1-2). The full text of the Commission ’ s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment [*]. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8), TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 (art. 14+8) 28. The applicant complained that the Austrian Supreme Court had awarded parental rights over the children Martin and Sandra to their father in preference to herself, because she was a member of the religious community of Jehovah ’ s Witnesses; she claimed a violation of her rights under Article 8 (art. 8) of the Convention, both taken alone and read in conjunction with Article 14 (art. 14+8). The Government denied that there had been a violation at all, whereas the Commission agreed that there had been a violation of Article 8 taken in conjunction with Article 14 (art. 14+8). 29. According to Article 8 para. 1 (art. 8-1) of the Convention, "Everyone has the right to respect for his private and family life, his home and his correspondence." The Court notes at the outset that the children had lived with the applicant for two years after she had left with them before the judgment of the Supreme Court of 3 September 1986 compelled the applicant to give them up to their father. The Supreme Court ’ s decision therefore constitutes an interference with the applicant ’ s right to respect for her family life and the case thus falls within the ambit of Article 8 (art. 8). The fact relied on by the Government in support of the opposite view, namely that the Supreme Court ’ s decision was taken in the context of a dispute between private individuals, makes no difference in this respect. A. Alleged violation of Article 8 taken in conjunction with Article 14 (art. 14+8) 30. In view of the nature of the allegations made, the Court, like the Commission, considers it appropriate to examine the present case under Article 8 taken in conjunction with Article 14 (art. 14+8), which reads as follows: "The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." 31. In the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 (art. 14) affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see, amongst other authorities, the Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, p. 32, para. 58). It must first be determined whether the applicant can claim to have undergone different treatment. 32. In awarding parental rights - claimed by both parties - to the mother in preference to the father, the Innsbruck District Court and Regional Court had to deal with the question whether the applicant was fit to bear responsibility for the children ’ s care and upbringing. In so doing they took account of the practical consequences of the religious convictions of the Jehovah ’ s Witnesses, including their rejection of holidays such as Christmas and Easter which are customarily celebrated by the majority of the Austrian population, their opposition to the administration of blood transfusions, and in general their position as a social minority living by its own distinctive rules. The District and Regional Courts took note of the applicant ’ s statement to the effect that she was prepared to allow the children to celebrate holidays with their father, who had remained Roman Catholic, and to allow the administration of blood transfusions to the children if and when required by law; they also considered the psychological relationship existing between the children (who were very young at the time) and the applicant and her general suitability as a carer. In assessing the interests of the children, the Supreme Court considered the possible effects on their social life of being associated with a particular religious minority and the hazards attaching to the applicant ’ s total rejection of blood transfusions not only for herself but - in the absence of a court order - for her children as well; that is, possible negative effects of her membership of the religious community of Jehovah ’ s Witnesses. It weighed them against the possibility that transferring the children to the care of their father might cause them psychological stress, which in its opinion had to be accepted in their own best interests. 33. This Court does not deny that, depending on the circumstances of the case, the factors relied on by the Austrian Supreme Court in support of its decision may in themselves be capable of tipping the scales in favour of one parent rather than the other. However, the Supreme Court also introduced a new element, namely the Federal Act on the Religious Education of Children (see paragraphs 15 and 23 above). This factor was clearly decisive for the Supreme Court. The European Court therefore accepts that there has been a difference in treatment and that that difference was on the ground of religion; this conclusion is supported by the tone and phrasing of the Supreme Court ’ s considerations regarding the practical consequences of the applicant ’ s religion. Such a difference in treatment is discriminatory in the absence of an "objective and reasonable justification", that is, if it is not justified by a "legitimate aim" and if there is no "reasonable relationship of proportionality between the means employed and the aim sought to be realised" (see, amongst other authorities, the Darby v. Sweden judgment of 23 October 1990, Series A no. 187, p. 12, para. 31). 34. The aim pursued by the judgment of the Supreme Court was a legitimate one, namely the protection of the health and rights of the children; it must now be examined whether the second requirement was also satisfied. 35. In the present context, reference may be made to Article 5 of Protocol No. 7 (P7-5), which entered into force for Austria on 1 November 1988; although it was not prayed in aid in the present proceedings, it provides for the fundamental equality of spouses inter alia as regards parental rights and makes it clear that in cases of this nature the interests of the children are paramount. 36. In so far as the Austrian Supreme Court did not rely solely on the Federal Act on the Religious Education of Children, it weighed the facts differently from the courts below, whose reasoning was moreover supported by psychological expert opinion. Notwithstanding any possible arguments to the contrary, a distinction based essentially on a difference in religion alone is not acceptable. The Court therefore cannot find that a reasonable relationship of proportionality existed between the means employed and the aim pursued; there has accordingly been a violation of Article 8 taken in conjunction with Article 14 (art. 14+8). B. Alleged violation of Article 8 (art. 8) taken alone 37. In view of the conclusion reached in paragraph 36 above, the Court does not consider it necessary to rule on the allegation of a violation of Article 8 (art. 8) taken alone; the arguments advanced in this respect are in any case the same as those examined in respect of Article 8 taken in conjunction with Article 14 (art. 14+8). II. ALLEGED VIOLATION OF ARTICLE 9 (art. 9) 38. The Court considers, as did the Commission, that no separate issue arises under Article 9 (art. 9) either taken alone or read in conjunction with Article 14 (art. 14+9), since the factual circumstances relied on as the basis of this complaint are the same as those which are at the root of the complaint under Article 8 taken in conjunction with Article 14 (art. 14+8), of which a violation has been found. III. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 (P1-2) 39. The applicant ’ s complaint under Article 2 of Protocol No. 1 (P1-2) was not pursued before the Court, which finds no reason to examine it of its own motion. IV. APPLICATION OF ARTICLE 50 (art. 50) 40. According to Article 50 (art. 50), "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." The applicant made no claim in respect of non-pecuniary damages but she claimed ATS 75,000 in respect of costs and expenses actually incurred before the Convention organs and not covered by legal aid. The Commission expressed no opinion as to this claim. The Government found it acceptable; the Court agrees.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) in conjunction with Article 14 (prohibition of discrimination) of the Convention, finding that the withdrawal of parental authority had been based on a distinction essentially deriving from religious considerations.