KUTZNER v.
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Hudoc reference |
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REF00003286 |
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Document type |
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Judgment (Merits and just satisfaction) |
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Title |
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CASE OF KUTZNER v. |
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Application number |
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00046544/99 |
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Date |
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Respondent |
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Conclusion |
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Violation of Art. 8 ; Pecuniary damage - claim
rejected ; Non-pecuniary damage - financial award ; Costs and expenses
partial award |
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Keywords |
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RESPECT FOR FAMILY LIFE ; INTERFERENCE {ART 8}
; POSITIVE OBLIGATIONS ; PROTECTION OF HEALTH {ART 8} ; PROTECTION OF MORALS
{ART 8} ; PROTECTION OF THE RIGHTS AND FREEDOMS OF OTHERS {ART 8} ; MARGIN OF
APPRECIATION ; PROPORTIONALITY ; NECESSARY IN A DEMOCRATIC SOCIETY {ART 8} |
SUMMARY
The applicants, Ingo and Annette Kutzner,
are married and have two daughters: Corinna, who was born in 1991, and Nicola,
who was born in 1993. The applicants had attended a special school for people
with learning difficulties. Owing to their late physical and, more
particularly, mental development, the girls were examined on a number of
occasions by doctors. On the advice of one of the doctors and on application by
the applicants, the girls had received educational assistance and support from
a very early age. On 27 May 1997 the Guardianship Court withdrew the
applicants’ parental rights over their two daughters and ordered their
placement with foster parents, notably on the ground that the applicants did
not have the intellectual capacity required to bring up their children, but
also on the ground that the girls were very late in their mental and physical
development and the applicants had failed to cooperate with social services. In
a judgment of
APPLICATION: In application to
the Court the applicants maintained that the withdrawal of their parental
rights over their daughters and their placement with foster parents had
infringed their right to respect for family life, as guaranteed by art. 8.
CONCLUSION: Violation of art. 8;
Pecuniary damage - claim dismissed; Non-pecuniary damage - financially awarded;
Costs and expenses partially awarded (unanimity on all points).
CASE-LAW REFERRED TO: B v the United Kingdom 1987 07 08; Bronda v Italy 1998 06 09; Eriksson v Sweden 1989 06 22; Guerra and Others v Italy 1998 02 19; Hokkanen v Finland 1994 09 23; Johansen v Norway 1996 08 07; Keegan v Ireland 1994 05 26; Margarita and Roger Andersson v Sweden 1992 02 20; Gnahoré v France 2000 09 19; Buscemi v Italy 1999 09 16; Ignaccolo-Zenide v Romania 2000 10 25; K and T v Finland 2001 07 12; McMichael v the United Kingdom 1995 02 24; W v the United Kingdom 1987 07 08; B v the United Kingdom 1987 07 08; R v the United Kingdom 1987 07 08; Olsson (I) v Sweden 1988 03 24; Pammel v Germany 1997 07 01.
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ENGLISH SUMMARY OF THE COURT'S
ASSESSMENT: The Court found that both the order for placement in itself
and, above all, its implementation were unsatisfactory.
It appeared that the children had benefited from an early age – and at the
applicants’ request – from educational support and that the situation had
become acrimonious as a result notably of a conflict between the applicants and
a social worker who submitted a very negative report to the Osnabrück Youth
Office.
Further, the opinions of the psychologists consulted at various stages of the
proceedings before the domestic courts were contradictory if not as regards
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 personality).
Moreover, other psychologists who had been retained as expert witnesses by the
German Association for the Protection of Children and the Association for the
Defence of the Rights of the Child and family doctors urged that the children
be returned to their family of origin. They emphasised in particular that there
was no danger for the children’s welfare 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 their authors were acting
privately.
Lastly, at no stage was it alleged that the children had been neglected or
ill-treated by the applicants. Accordingly, although the educational support
measures taken initially subsequently proved inadequate, the question arose
whether the domestic administrative and judicial authorities had given
sufficient consideration to additional measures of support as an alternative to
what was by far the most extreme measure, namely separating the children from
their parents.
The Court reiterated that a care order had in principle to be regarded as a
temporary measure, to be discontinued as soon as circumstances permitted, and
that any measures implementing temporary care had to be consistent with the
ultimate aim of reuniting the natural parents and the child. The positive duty
to take measures to facilitate family reunification as soon as reasonably
feasible would 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.
However, in the case before the Court, not only had the children been separated
from their family of origin, they had also been placed in separate,
unidentified, foster homes and all contact with their parents severed for the
first six months. The children were at no stage heard by the judges.
The case file also showed that the applicants had only been granted visiting
rights after making an application to the court, while the visits were in
practice systematically obstructed by the Osnabrück Youth Office and,
initially, were restricted to one hour monthly in the presence of eight people
who were not members of the family, before being extended to two hours monthly
(with the grandparents being authorised to visit once every two months) by a
decision of the Osnabrück Guardianship Court of 9 October 2000.
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"
from their parents and from each other. Similarly, the dispute on that issue
could not be regarded as having been resolved, as the applicants had
consistently contested not only their children’s placement with foster parents,
but also the restrictions imposed on their visiting rights and they could not in
practice be criticised for having made use of the arrangements afforded by the
domestic courts to enable them at least to see their children.
Having regard to all those
circumstances, the Court considered that although the reasons relied on by the
administrative and judicial authorities were relevant, they were not sufficient
to justify such a serious interference in the applicants’ family life.
Notwithstanding the domestic authorities’ margin of appreciation, the
interference had therefore not been proportionate to the legitimate aims
pursued. Consequently, there had been a violation of Article 8 of the
Convention.
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Complaint: 8 V, child, public care, ill-treatment of child,
European Court Judgements and decisions in child care cases
Kutzner c. Allemagne (Judgment available in French text only.)