CHAMBER
JUDGMENT IN THE CASE OF VENEMA v. THE
Press release issued by the
Registrar
The
European Court of Human Rights has today notified in writing a judgment [fn1]
in the case of Venema v. the Netherlands (application no.
35731/97). The Court held unanimously that:
there
had been a violation of Article 8 (right to respect for family
life) of the European Convention on Human Rights;
no
separate issue arose under Article 6 (right to a fair hearing).
Under
Article 41 (just satisfaction) of the Convention, the Court awarded the
applicants 15,000 euros (EUR) for non-pecuniary damage and EUR 22,475 for costs
and expenses.
(The
judgment is available only in English.)
1. Principal facts
Dirk
Venema, Wubbechien Venema-Huiting and Kimberly Venema are
In
July and August 1994 Kimberly was taken into hospital because her breathing
sometimes stopped and her heart beat too fast. The doctors found nothing
physically wrong and began to suspect that Kimberly was healthy and that Mrs
Venema might be suffering from Münchhausen by Proxy syndrome [fn2]. The Venema
family was kept under medical observation but the doctors did not discuss their
suspicions with Mr and Mrs Venema.
Kimberly
was again taken into hospital on
The
doctors held a meeting with a representative of the Child Welfare Board on
On 4
January 1995 the juvenile judge made a provisional supervision order (voorlopige
ondertoezichtstelling), without hearing Mr and Mrs Venema, at the same time
ordering Kimberly to be placed away from her family. Mr and Mrs Venema were
only informed of the decision on
On
10 January 1995 Mr and Mrs Venema were heard by the juvenile judge, who decided
that the provisional supervision order should remain in force, but that further
opinions should be obtained as soon as possible both from a psychiatrist and a
child psychiatrist. Mr and Mrs Venema were allowed to see Kimberly once every
two weeks under an access arrangement.
The psychiatrist
s report concluded that there were no indications that Mr and Mrs Venema posed
any danger to Kimberly, although it could "not be entirely ruled out"
that Mrs Venema was suffering from Münchhausen by Proxy Syndrome.
Mr
and Mrs Venema appealed, submitting various medical accounts supporting their
case, including statements from three psychiatrists who recommended that
Kimberly be returned to them as she would be in no apparent danger. On
On
22 May 1995, following a hearing in camera, the juvenile judge rescinded
the provisional supervision order and the placement order, at the same time
refusing to replace the provisional supervision order with a permanent one.
Kimberly was handed back to Mr and Mrs Venema.
The
case led to questions in Parliament and a complaint to the Deputy Minister of
Justice (Staatssecretaris van Justitie) who ordered an official enquiry.
The report of the official inquiry concluded, among other things, that although
the Child Welfare Board had no doubt sought in good faith to protect Kimberly s
interests, it might with advantage "have displayed more creativity in
seeking a solution that did more justice to the parents interests".
2. Procedure and composition of the Court
The
application was lodged with the European Commission of Human Rights on
Judgment
was given by a Chamber of seven judges, composed as follows:
Jean-Paul
Costa (French), President,
Loukis
Loucaides (Cypriot),
Corneliu
Bîrsan (Romanian),
Karel
Jungwiert (Czech),
Volodymyr
Butkevych (Ukrainian),
Wilhelmina
Thomassen (
Antonella
Mularoni (San Marinese), judges,
and
also Sally Dollé, Section Registrar.
3. Summary of the judgment
Complaints
The
applicants alleged, in particular, that their rights under Articles 6 and 8 had
been violated through the separation of their family, which was not justified on
medical grounds and was not discontinued as soon as this became apparent, and
in that Mr Venema and Mrs Venema-Huiting had not been involved in the
decision-making process that led to the separation.
Decision
of the Court
Article
8
The Court
accepted that, when action had to be taken to protect a child in an emergency,
it might not always be possible, because of the urgency of the situation, to
associate in the decision-making process those having custody of the child. Nor
might it even be desirable to do so if those having custody of the child were
seen as the source of an immediate threat to the child.
However,
the Court had to be satisfied that the national authorities were entitled to
consider that there existed circumstances justifying the abrupt removal of a
child from the care of its parents without any prior contact or consultation.
In particular, it had to be established that a careful assessment of the impact
of the proposed care measure on the parents and the child, and the possible
alternatives, had been carried out prior to the implementation of a care
measure.
The
Court found that it had not been explained to its satisfaction why the doctors
involved in the case or the Child Welfare Board could not have made
arrangements to discuss their concerns with the applicants and to give them an
opportunity to dispel those concerns, if need be with reference to their own
medical experts opinions. The Court was not persuaded that the applicants might
have reacted unpredictably if the matter was discussed with them. In the Court
s opinion, that justification, while it might be relevant, could not of itself
be considered sufficient to exclude Kimberly s parents from a procedure of
immense personal importance to them, the less so having regard to the fact that
Kimberly was in perfect safety (in hospital) in the days preceding the making
of the provisional order.
The
applicants were at no stage able to influence the outcome of the procedure by,
for example, contesting the reliability of the information compiled in their
case or adding information from their own sources to the file. It was not
before
For
the Court, it was crucial for the parents to be able to put forward their own
point of view at some stage before the making of the provisional order. The
unjustified failure to allow them to participate in the decision-making process
leading to the making of the provisional order denied them the requisite
protection of their interests under Article 8 of the Convention including their
right to challenge the necessity for the measure sought by the Child Welfare
Board. That measure, it had to be noted, formed the basis of the regrettable
separation of the applicants and their daughter for a period of five months and
18 days. Finding that the competent authorities had presented the applicants
with faits accomplis without sufficient justification, the Court held
that there had been a violation of Article 8.
Article
6 § 1
Considering
that the applicants complaints under Article 6 (as declared admissible) largely
coincided with their complaints under Article 8, the Court found that no separate
issue arose under Article 6 § 1.
***
The
Court s judgments are accessible on its Internet site (http://www.echr.coe.int).
Registry
of the European Court of Human Rights
F
67075
Contacts:
Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)
Emma
Hellyer (telephone: +00 33 (0)3 90 21 42 15)
Stéphanie
Klein (telephone: +00 33 (0)3 88 41 21 54)
Fax:
+00 33 (0)3 88 41 27 91
The
European Court of Human Rights was set up in
[fn1] Under Article 43 of the European Convention
on Human Rights, within three months from the date of a Chamber judgment, any
party to the case may, in exceptional cases, request that the case be referred
to the 17-member Grand Chamber of the Court. In that event, a panel of five
judges considers whether the case raises a serious question affecting the
interpretation or application of the Convention or its Protocols, or a serious
issue of general importance, in which case the Grand Chamber will deliver a
final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments
become final on the expiry of the three-month period or earlier if the parties
declare that they do not intend to make a request to refer.
[fn2]A
psychiatric condition in which a parent of a young child, nearly always
the mother, seeks superfluous medical assistance for her child. The parent may
invent a disease or even cause the symptoms. In certain cases, for example if
the child’s breathing is interfered with, the child’s life may be in danger.
Case of Venema v. The Netherlands