EUROPEAN COURT OF HUMAN RIGHTS
CASE
OF HAASE v.
(Application
no. 11057/02)
JUDGMENT
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This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Haase v.
The European Court of Human Rights (Third
Section), sitting as a Chamber composed of:
Mr I. Cabral
Barreto, President,
Mr G. Ress,
Mr L. Caflisch,
Mr P. Kuris,
Mr B. Zupancic,
Mrs M. Tsatsa-Nikolovska,
Mr K. Traja, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was
adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application
(no. 11057/02) against the Federal Republic of Germany lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by two German nationals, Mrs Cornelia
Haase and Mr Josef Haase (“the applicants”), on
2. The applicants, who had been
granted legal aid, were represented by Mr P. Koeppel, a lawyer practising in
München. The German Government (“the Government”) were represented by their
Agent, Mr K. Stoltenberg, Ministerialdirigent.
3. The applicants alleged, that the
suspension of their parental responsibility for their four children and the
three children of Mrs Haase's first marriage and the prohibition of access to
all the children amounted to a breach of Article 8 of the Convention They also
complained about the unfairness of the court proceedings under Article 6 § 1 of
the Convention.
4. The application was allocated to
the Third Section of the Court (Rule 52 § 1 of the Rules of Court).
Within that Section, the Chamber that would consider the case (Article 27 § 1
of the Convention) was constituted as provided in Rule 26 § 1.
5. By a decision of
6. The applicants and the Government
each filed observations on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Factual background
7. The applicants were born in 1968 and
1967 respectively and live in Altenberge (
8. Mrs Haase is the mother of twelve
children. While she was married to M., she gave birth to seven children,
Alexander, born in 1988, Ramona, born in 1987, Sascha, born in 1986, Matthias,
born in 1985, Timo, born in 1990, and the twins Lisa-Marie and Nico, born in
1992. With her second husband, Mr Haase, she had five children, Anna-Karina
born in 1995, Sandra-Kristin born in 1998, Maurice-Pascal born in 2000, and
Laura-Michelle born on
9. In 1993 the relations between Mrs Haase
and M. deteriorated. In April 1993 M. instituted divorce proceedings and
requested to be afforded parental rights over the children. By a decision of
B. The proceedings withdrawing the applicants' parental
responsibility
10. In February 2001 Mrs Haase
applied to the Münster Youth Office (Amt für Kinder, Jugendliche und
Familien - KSD) for family aid. In order to be granted the aid, the
applicants agreed that their family situation be assessed by a psychological
expert. In May 2001 the Municipal Social Service instructed G. to draw up an
expert report. The expert met Mrs Haase and three of her children on 26
September and 11, 15 17 and
11. Being of the opinion that the
questions put to the children by the expert were irrelevant for the purposes of
family aid and having regard to the expert's objection to Mrs Haase attending
the meetings with the children's teachers, the applicants refused to co–operate
with the expert any longer.
12. On
13. On the same day the Youth Office
applied to the Münster District Court for an interim injunction (einstweilige
Anordnung) withdrawing the applicants' parental rights over the seven
children, namely their four children, Anna-Karina, Sandra-Christine, Maurice-Pascal
and Laura-Michelle, and Mrs Haase's three children born during her first
marriage, namely Timo, Nico and Lisa-Marie.
14. On that very day, i. e. on
15. By a decision of
16. The children were taken on the
same day about
17. In a letter of
He, as the head physician, and the medical
hospital staff were surprised and shocked by the short term information and
considered this conduct as an affront in respect of both Mrs Haase and the
medical staff. Since 1992 Mrs Haase had been taken care of by the medical staff
of the hospital. She had always given the impression of a highly responsible
person. She came regularly to the preventive medical check-ups during her
pregnancy. When she was accompanied by her children, the children behaved well,
were friendly and well–educated. There were no signs that they were in any way
neglected or ill-treated.
18. On
19. On
20. On
The District Court instructed G. to proceed with
the assessment of the remaining children and to finalise his report. It further
appointed a new expert, H., to assess the applicants' capacity to educate their
children.
21. In the following interviews to
prepare the assessment, the applicants asked the expert to record the
interviews on a tape. Upon the expert's refusal to do so, the applicants were
unwilling to continue to co-operate with him.
22. On
23. On
24. On
The
25. On
26. On
27. On
28. On 21 June 2002 the Federal
Constitutional Court, sitting as a panel of three judges, set aside the
decisions of the Hamm Court of Appeal of 1 March 2002 and the Münster
District Court of 17 December 2001 and referred the case back to the Münster
District Court.
29. Insofar as the applicants
complained about the decisions of the Münster District Court of 18 December
2001 and 7 January 2002, the Federal Constitutional Court declared the
constitutional complaint inadmissible, since the applicants had failed to
appeal against these decisions, in accordance with Section 19 of the Act on
Non-Contentious Proceedings (Gesetz über die Angelegenheiten der
freiwilligen Gerichtsbarkeit - FGG).
30. Insofar as the constitutional
complaint was admissible, the Federal Constitutional Court considered that, in
accordance with the principles established in its case-law, the decisions of
the Münster District Court and the Court of Appeal violated the applicants'
family rights as guaranteed by Article 6 § 2 first sentence of the basic Law,
taken together with Article 6 § 3 (see the section of the Relevant
Domestic Law below).
There were serious doubts whether the courts had
respected the importance of parental rights when giving their decisions and
whether they had sufficiently taken into account the principle of
proportionality. The question of whether the evidence established that there
was a risk of harm to the children had not adequately been considered. The
District Court and the Court of Appeal merely referred to the report of the
Youth Office and the expert opinion. It did not result from their decisions
whether the expert's conclusions were based on reliable facts. An assessment of
the applicants' submissions and considerations as to the possibility to order
alternative measures, that would not have required the total revocation of
parental rights, were missing. Both the Court of Appeal and the District Court
failed to hear the children or to provide the persons taking part in the
proceedings the opportunity to be heard.
The measures which had been ordered led to a
drastic change of the living conditions of all the persons concerned and
constituted an interference with the parental rights of a particular high
intensity. However, no inquiries had been made, be it by telephone, before taking
the decision. No reasons were given justifying the urgency of the matter.
The Family Court had no information on the
possible effects of its decision, since the Youth Office and the expert had not
commented on this issue. When examining the advantages and disadvantages of a
family measure, it was, however, relevant to consider that a separation of the
children from their parents could jeopardise the development of the children,
in particular in their first years of life.
The courts failed further to clarify the
contradiction between the findings in the expert opinion according to which the
applicants were not ready to co-operate and the fact that Mrs Haase herself had
asked to be granted educational assistance. Furthermore there was no indication
whether and to what extent the applicants had refused any contact or help
offered by the Youth Office and it was not clear which “specific measures
granting assistance” (einzelne Jugendhilfemaßnahmen) had been carried
out in the past and why they were not successful.
The District Court should have first clarified
the questions which arose and in the meantime could have taken alternative
provisional measures if there was serious reason to believe that the welfare of
the children was at risk.
31. According to the
32. On 13 and
33. According to the minutes of the
District Court of
34. Nico, Anna-Karina and Lisa were
heard in another foster home. Nico stated that he wished to know whether his
parents and his “favourite” father (Lieblingsvater) were allright. He
asked why he could not join his “favourite” father and whether somebody, his
parents, his father or Maurice, could not come to see him. Lisa and Anna stayed
with him and, according to them, were allright. Lisa had let him know that she
too wished to return home. He stated that was fine. Asked about his dreams, he
said that he wished to go to his “favourite” father who was very nice, better
than his stepfather. In reply to the question whether the judge should
leave a message, he dictated the following letter on a dictaphone: “Dear Sascha
(his favourite brother), (his favourite sisters Lisa and Ramona), dear Alex,
what a pity that we don't see each other ... Sascha, Matthias, Ramona, Alex,
his favourite father and his parents should come and visit him.” („Lieber
Sascha (sein Lieblingsbruder), (Lieblingsschwestern Lisa und Ramona) lieber
Alex, schade, dass wir uns nicht sehen ... Sascha, Matthias, Ramona, Alex, sein
Lieblingsvater und seine Eltern sollten ihn besuchen kommen.“)
The following letter to his mother was recorded
on a dictaphone: “Dear momma, it is a pity that you do not come and best
regards from Maurice and Sandra and Timo and Lisa. Lisa and Anna are allright.
Yes and perhaps could you come to see us? Or is that not possible? “ („Liebe
Mama! Schade, dass Du nicht kommst und liebe Grüsse von Maurice und Sandra und
von Timo und von Anna und dass es Lisa und Anna gut geht. Ja und, vielleicht: könntet Ihr ja mal herkommen.
Oder geht das nicht?“)
35. Anna-Karina
stated that she felt fine. She was in the company of Lisa and Nico. Everybody
said that she should tell her parents that everything was allright. She then
added that she did not like it there.
36. Lisa-Marie regretted that “poor
Sandra” was all on her own without any member of the family. She would never
bear this. She had to protect Nico and Anna. That was her duty as the elder
sister. Nico was beaten very often in that place. She did not know the reason.
In reply to a question, she stated that she was doing her homework thoroughly
and that she was doing well in school. At home she had almost fallen asleep
when doing her homework. At the request what the judge could transmit, she said
that she did not like the place and that she wished to return home. However,
the educators did not believe her. She did not really like them. She did not
want to go to another institution. She wished to go home. If she were not
allowed to go home, she should at least be authorised to see everybody, her
brothers and sisters, parents and stepfather. She missed taking Maurice to bed
sometimes. Having been told that Nico wished to return to his “favourite”
father, Lisa-Maria replied that, unlike Nico, she loved both her father and her
stepfather.
37. On
38. On 1 July 2002 the Münster District Court
held a hearing attended inter alia by the applicants assisted by a
lawyer, Mrs Haase's first husband, the curator ad litem, a lawyer and
representatives of the Münster Youth Office, the experts G. and Professor K.
and the children's paediatrician Dr J. Professor K. gave details of her visit
to the applicants' home on 11 January 2002 and resumed the contents
of the interview. Having studied the extensive files concerning the applicants
and G.'s report, Professor K. could not confirm that the findings in the report
were erroneous. She expessed the view that the children should not be returned
to the applicants.
The children's paediatrician, Dr J., stated that
all children had been his patients since their birth except the daughter born
in December 2001. Although he knew about the children's problems, in particular
the difficulties with Nico, the applicants made a quite positive impression on
him. It was a big family with many children. However, the applicants were
loving parents who took great care of their children. There was no indication
that the children had been beaten or otherwise abused.
The curator ad litem was opposed to
contacts between the applicants and the children.
39. By an interim injunction of the
same day, namely
40. The District Court relied notably
on the findings of the expert G. that the separation of the applicants from
their children had to be maintained. The applicants were incapable of bringing
up their children because of their own basic and irreparable educational
deficiencies and their abuse of parental authority. The children were
emotionally disturbed and presented unusual patterns of behaviour. They had
been beaten and locked up. Furthermore the four elder children of the first
marriage had approved the separation of the younger children from their mother
and had refused any contact with her. The sole purpose of Mrs Haase giving a
positive impression of her was to obtain support from others. However, any such
support was foredoomed.
The District Court noted that Professor K. had
not yet issued her report. However, she had confirmed the findings of the
expert G. and had stated at the hearing of
The District Court considered that the numerous
written statements of witnesses submitted by the applicants confirming that the
children had not been beaten or ill-treated did not constitute sufficient
evidence in their favour. Harm, such as verbal cruelty, could be of a
psychological nature. The statement made by Lisa-Maire that she wished to
return to the applicants, did not reflect her real intention, but resulted from
a conflict of loyalty.
The District Court further compared the
situation described in an expert report drawn up in 1993 with the present
situation: Mrs Haase was always well-dressed while her husband looked tired and
worn out. It concluded that Mrs Haase was not aware of her problems. She
aggravated with each new pregnancy the emotional deficiencies of the children.
This had been confirmed by Professor K. after a discussion with the applicants
on
The District Court affirmed that its decision of
41. On
42. On
43. On
On
On
On
C. Subsequent developments
44. On
On
45. On 13 January Professor K.
submitted her report. She confirmed her previous conclusions.
46. On
47. On
48. On
49. By a decision on the merits of 6
March 2003, the Münster District Court withdrew the applicants' parental rights
over their four children and the three children of the first marriage previously
living with them and prohibited access to them until June 2004. It relied on
Articles 1666, 1666a and 1684 § 4 of the Civil Code (see the paragraphs 53 - 55
below). The authorities were compelled to take the contested measures,
which were justified under Article 6 § 3 of the Basic Law, and necessary in a
democratic society for the protection of the health and the rights of the
children within the meaning of Article 8 § 2 of the Convention. It found that
the domestic situation was difficult and that the children were in danger. The
applicants, in particular Mrs Haase, were inflexible and incapable of
understanding the children's needs and with her it would be impossible to
implement any educative measures. The conditions in which the children were
brought up were highly unsatisfactory. The children had made positive progress
in the foster homes in which they were placed, had gained in confidence and
demonstrated less behavioural disorders.
50. By a separate decision of the
same day the Münster District Court prohibited Mrs Haase to get into contact
with her four eldest children, Matthias, Sascha, Ramona and Alexander before
the end of 2004, respectively, as regards Mrs Haase's eldest son Matthias,
before he would have reached majority.
51. The applicants appealed against
the above decisions.
II. RELEVANT DOMESTIC LAW
52. Article 6 of the Basic Law (Grundgesetz)
reads as follows:
“...
(2) Care and upbringing
of children are the natural right of the parents and a duty primarily incumbent
on them. The state watches over the performance of this duty.
(3) Separation of
children from the family against the will of the persons entitled to bring them
up may take place only pursuant to a law, if those so entitled fail in their duty
or if the children are otherwise threatened with neglect.
53. Article 1666 of the Civil Code (Bürgerliches
Gesetzbuch) lays down that the family courts are under an obligation to
order necessary measures if a child's welfare is jeopardised (Gefährdung des
Kindeswohls).
54. 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.
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 [Die gesamte Personensorge
darf nur entzogen werden, wenn andere Maßnahmen erfolglos geblieben sind oder
wenn anzunehmen ist, dass sie zur Abwendung der Gefahr nicht ausreichen].”
55. According to Article 1684 § 4 of
the Civil Code, the family court can restrict or suspend the right of access if
such a measure is necessary for the child's welfare. A decision restricting or
suspending that right for a lengthy period or permanently may only be taken if
otherwise the child's well-being would be endangered. The family courts may
order that the right of access be exercised in the presence of a third party,
such as a Youth Office authority or an association.
THE LAW
I. PRELIMINARY ISSUES
A. New material submitted by the parties
56. The Government contended that in
its decision on the admissibility of the application the Court had considered a
number of decisions submitted subsequent to the decision of the Federal
Constitutional Court of 21 June 2002 without, however, having invited
them to submit additional observations in this respect.
57. As the Court has already had
reason to observe (see Sahin v. Germany [GC], no. 30643/96, § 43, 8 July
2003; and K. and T. v. Finland, no. 25702/94 , § 147, ECHR 2001-VII), it
is not prevented from taking into account any additional information and fresh
arguments in determining the merits of a complaint, if it considers them
relevant (see, for instance, mutatis mutandis, Olsson v. Sweden
(no. 1), judgment of 24 March 1988, Series A no. 130, pp. 28-29, § 56; McMichael
v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p.
51, § 73). Accordingly, the Court is not precluded from taking cognisance of
this material in so far as it is judged to be pertinent.
58. On the other hand, the Court
emphasises that the present judgment is not concerned with the decision on the
merits rendered by the Münster District Court on
B. The
Government's preliminary objections
1. Non-exhaustion of domestic remedies
59. The Government raised a
preliminary objection of failure to exhaust domestic remedies, as required by
Article 35 of the Convention, both in respect of the decision of the Münster
District Court of 18 December 2001 concerning the denial of access to the
children and the decision on the merits of the same court of 6 March 2003
against which appeal proceedings were still pending. They referred to the
decision of the Federal Constitutional Court of 21 June 2002 by which the applicants'
constitutional complaint, in so far as it was directed against the decision of
18 December 2001, was declared inadmissible, since the applicants had
failed to appeal against it, in accordance with Section 19 of the Act on
Non-Contentious Proceedings (see paragraph 28 above).
60. The applicants admitted that they
had not appealed against the decision of the Münster District Court of
They applicants also pleaded their financial
difficulties.
61. The Court recalls that in its decision
on the admissibility of the application it has joined the question of
non-exhaustion of domestic remedies to the merits. This does not mean,
however, that the Court may not examine again issues relating to the
admissibility (see Article 35 § 4 of the Convention which empowers the Court to
“reject any application which it considers inadmissible ... at any stage of the
proceedings”).
The Court notes that the Government raised the
objection as to the non-exhaustion of domestic remedies at the stage of the
initial examination of admissibility. They are therefore not estopped from
pleading it again.
62. The Court reiterates that the
rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the
Convention obliges applicants to use first the remedies that are normally
available and sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. Article 35 § 1 also requires that the
complaints intended to be brought subsequently before the Court should have
been made to the appropriate domestic body, at least in substance and in
compliance with the formal requirements laid down in domestic law (see Cardot
v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34,
Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports
1996-IV, p. 1210, §§ 65-67, Aksoy v. Turkey, judgment of 18
December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52, Sarli v.
Turkey, judgment of 22 May 2001, no. 24490/94, § 59).
63. The Court notes that in the
instant case the
64. It follows that the applicants
have not complied with the condition as to the exhaustion of domestic remedies
in respect of the decision of the Münster District Court of
65. In so far as the decision of the
Münster District Court of
66. On the other hand, the applicants
have exhausted domestic remedies in relation to the decision of the Münster
District Court of
2. Loss of “victim” status
67. The Government argued that the
68. The applicants submitted that
although the decision of the Münster District Court of 17 December 2001, by
which their parental rights were revoked, had been set aside by the Federal
Constitutional Court, they were still being separated from their children.
69. The Court reiterates that a
decision or measure favourable to the applicant is not in principle sufficient
to deprive him of his status as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded redress for,
the breach of the Convention (see Dalban v. Romania, [GC], no. 28114/95,
§ 44, ECHR 1999-VI).
70. Even assuming that the decision
of the Federal Constitutional Court of 21 June 2002 could be seen as an acknowledgment,
whether explicit or in substance, of an alleged breach of Article 8 of the
Convention, the Court considers that that decision did not have any de facto
suspensive or remedial effect in respect of the measures taken by virtue of the
District Court's decision of 17 December 2001.
71. As to the decision on the merits
rendered on
72. In conclusion, the Court
considers that the applicants can claim to be “victims” within the meaning of
Article 34 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
73. The applicants complained that
their parental rights had been withdrawn, and the children taken into public care.
They also complained of the way the contested decision was implemented. They
alleged a violation of Article 8 of the Convention, the relevant part of which
provides:
“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 for the protection of the
rights and freedoms of others.”
A. Arguments before the Court
1. The applicants
74. The applicants pointed out that,
as soon as the expert G. had submitted his report to the Youth Office on 17
December 2001, the latter applied for an interim measure to the Münster
District Court, which on the same day withdrew the applicants' parental
authority and ordered the removal of the children as requested by the of the
Youth Office. They questioned whether such a close cooperation of the Youth
Office and the District Court was in conformity with the rule of law and the
principle of an effective judicial control.
75. The applicants argued that the
taking of the children into public care and their removal from their home were
extremely drastic measures. It was not appropriate to refer to investigations
done in 1992 and 1993 and to order the contested measures without hearing them
or any witnesses as to the arguments put forward by the Youth Office. According
to them, in particular the taking into care and the removal of the child
Laura-Michelle shortly after her birth, constituted a serious breach of Article
8 of the Convention and had to be considered as inhuman treatment in respect of
both, mother and child. Further, the removal of the new-born baby deprived Mrs
Haase of the possibility of breastfeeding which had recognised health benefits.
This child was neither mentioned in the expert report and nor included in the
Youth Office's request to the District Court. The removal of Laura-Michelle
from the hospital was therefore unlawful. In spite of the decision of the
Federal Constitutional Court of
76. The applicants further submitted
that the declarations of the children's paediatrician, Dr J., who knew the
children, except Laura-Michelle, since their birth, were not sufficiently taken
into account by the District Court. Contesting the findings of the experts G.
and Professor K., the applicants submitted that there was no convincing
evidence showing that they were incapable of educating their children.
Professor K. had based her findings on the written statements of a social
assistant of
2. The Government
77. The Government maintained that
there had been no violation of Article 8 as a result of the withdrawal of the
applicants' parental rights and the taking into care of the children. The
interference with their right to respect for their family life was provided for
by law and the related decisions were intended to protect the best interests of
the children and thus “necessary in a democratic society”.
78. The decision to withdraw the
applicants' parental rights over their children and the children of Mrs Haase's
first marriage living with them was based on Articles 1666 and 1666a of the
Civil Code. The children's physical and psychological well-being would be seriously
endangered if they were to be returned to the applicants as a result of the
abusive exercise of parental authority and the neglect of the children and the
failure of both parents irrespective whether of any fault of their own or not.
Any other less radical measure would have been inadequate. The District Court
had relied on all available information at its disposal at the time: it
considered the reports of the expert G. of 17 and 18 December 2001, took note
of the submissions of Professor K. at the hearing of 1 July 2002, heard
the applicants and the children Anna-Karina, Lisa-Marie, Nico and Timo,
appointed a curator ad litem and asked for his assessment of the
situation.
79. The findings of the first expert
G. that separating the children from the applicants was the only way of
eliminating all dangers for the children had been confirmed by the second
expert, Professor K., on the main lines.
80. As to the decision denying the
applicants' access to the children, the Government pointed out that the
children were placed in unidentified foster homes. Had the applicants been
granted a right of access, the children could no longer have stayed in these
institutions, having regard to the conduct of certain media which had to be
qualified as excessive. According to Professor K., the children's well-being
would be jeopardised if access were allowed for the very reason that the mother
absolutely failed to understand the need for separation. In the expert's view,
the mother was not prepared and, being deeply affected by the measures taken,
apparently not in a position to observe any rules in connection with such
contact, and also uncontrollable. The same would have to be assumed of Mr
Haase. The children should at least get some peace, and they would clearly be
incapable of coping with seeing their parents who were unable to understand the
situation, did not accept it, and would not be able to conceal this from the
children.
81. As to the decisions of the
Münster District Court of 6 March 2003, the Government submitted that the
contested measures were intended to protect the interests of the children, were
proportionate to that aim and thus necessary in a democratic society as
required by Article 8 § 2.
B. The Court's assessment
1. Whether there was an interference with the
applicants' right to respect for their family life
82. As is well established in the
Court's case-law, the mutual enjoyment by parent and child of each other's
company constitutes a fundamental element of family life, and domestic measures
hindering such enjoyment amount to an interference with the right protected by
Article 8 of the Convention (see, amongst others, Johansen v. Norway,
judgment of 7 August 1996, Reports 1996-III, § 52). The impugned
measures, as was not disputed, evidently amounted to an interference with the
applicants' right to respect for their family life as guaranteed by paragraph 1
of Article 8.
2. Whether
the interference was justified
83. 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.
84. 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 v. Sweden,
judgment of 22 June 1989, Series A no. 156, pp. 26-27, § 71, and Gnahoré
v. France, no. 40031/98, § 51, ECHR 2000-IX ).
85. 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, judgments of 8 July 1987, Series A no. 121,
respectively, p. 27, § 60, p. 72, § 61, and p. 117, § 65; and Gnahoré,
cited above, § 52).
a. “In accordance with the
law”
86. It
was common ground that the impugned interference was in accordance with the law
for the purposes of Article 8, the relevant provisions being Articles 1666 and
1666a of the Civil Code.
b. Legitimate aim
87. In
the Court's view, the court decisions of which the applicant complained were aimed
at protecting the “health or morals” and the “rights and freedoms” of the
children. Accordingly they pursued legitimate aims within the meaning of
paragraph 2 of Article 8.
c. “Necessary in a
democratic society”
(i) General
principles
88. In determining whether the
impugned measure was “necessary in a democratic society”, the Court has to
consider whether, in the light of the case as a whole, the reasons adduced to
justify this measure were relevant and sufficient for the purposes of paragraph
2 of Article 8 of the Convention. 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).
89. Undoubtedly, consideration of
what lies in the best interests of the child is of crucial importance in every
case of this kind. Moreover, it must be borne in mind that the national authorities
have the benefit of direct contact with all the persons concerned, often at the
very stage when care measures are being envisaged or immediately after their
implementation (see Johansen, cited above, pp. 1003, § 64, K.
and T. v. Finland, cited above, §§ 151, 154 and 173). 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 taken by those authorities in the exercise of their power of
appreciation (see Hokkanen v. Finland, judgment of 23 September 1994,
Series A no. 299-A, p. 20, § 55, Kutzner v. Germany, no. 46544/99, § 66,
ECHR 2002-I; and Sahin, cited above, § 64, and Sommerfeld v. Germany
[GC], no. 25735/94, § 62, ECHR 2003-VIII).
90. The margin of appreciation so 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. While the
authorities enjoy a wide margin of appreciation in assessing the necessity of
taking a child into care, in particular where an emergency situation arises,
the Court must still be satisfied in the particular case that there existed
circumstances justifying the removal of the child, and it is for the respondent
State to establish that a careful assessment of the impact of the proposed care
measure on the parents and the child, as well as of the possible alternatives
to taking the child into public care, was carried out prior to implementation
of such a measure (see K. and T. v. Finland, cited above, § 166, Kutzner,
cited above, § 67, and P., C. and S. v. the United Kingdom,
no. 5647/00, § 116, ECHR 2002-VI).
91. Furthermore, the taking of a
new-born baby into public care at the moment of its birth is an extremely harsh
measure. There must be extraordinarily compelling reasons before a baby can be
physically removed from its mother, against her will, immediately after birth
as a consequence of a procedure in which neither she nor her partner has been
involved (see K. and T. v. Finland, cited above, § 168).
92. Following any removal into care,
a stricter scrutiny is called for in respect of any further limitations by the
authorities, for example on restrictions on parental rights and access, and on
any legal safeguards designed to secure the effective protection of the right
of parents and children to respect for their family life. Such further
limitations entail the danger that the family relations between the parents and
a young child are effectively curtailed (see Elsholz v. Germany [GC],
no. 25735/94, § 49, ECHR 2000-VIII; Kutzner, cited above, § 67; and Sahin,
cited above, § 65).
93. The taking into care of a child
should normally be regarded as a temporary measure to be discontinued as soon
as circumstances permit, and any measures of implementation of temporary care
should be consistent with the ultimate aim of reuniting the natural parent and
child (see Johansen, cited above, pp. 1008-09, § 78, and E.P. v.
Italy, no. 31127/96, § 69, 16 November 1999). In this regard a fair
balance has to be struck between the interests of the child remaining in care
and those of the parent in being reunited with the child (see and Hokkanen,
cited above, p. 20, § 55). In carrying out this balancing exercise, the
Court will attach particular importance to the best interests of the child
which, depending on their nature and seriousness, may override those of the
parent (see Johansen, cited above, pp. 1008-09, § 78). In particular, a
parent cannot be entitled under Article 8 to have such measures taken as would
harm the child's health and development (see Elsholz, cited above, § 50;
and Sahin, cited above § 66).
94. Whilst Article 8 contains
no explicit procedural requirements, the decision-making process involved in
measures of interference must be fair and such as to ensure due respect of the
interests safeguarded by Article 8. The Court must therefore determine whether,
having regard to the circumstances of the case and notably the importance of
the decisions to be taken, the applicants have been involved in the
decision-making process, seen as a whole, to a degree sufficient to provide
them with the requisite protection of their interests (see W. v. the United
Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, § 64, Elsholz
cited above, § 52, and T.P. and K.M. v. the United Kingdom [GC], no.
28945/95, § 72, ECHR 2001-V).
95. The Court accepts that when
action has to be taken to protect a child in an emergency, it may 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 may it even be
desirable, even if possible, to do so if those having custody of the child are
seen as the source of an immediate threat to the child, since giving them prior
warning would be liable to deprive the measure of its effectiveness. The Court
must however be satisfied that the national authorities were entitled to
consider that there existed circumstances justifying the abrupt removal of the
child from the care of its parents without any prior contact or consultation.
In particular, it is for the respondent State to establish that a careful
assessment of the impact of the proposed care measure on the parents and the
child, as well as of the possible alternatives to the removal of the child from
its family, was carried out prior to the implementation of a care measure (see K.
and T. v. Finland, cited above, § 166). 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 to enjoy a family
life with their child (see K.A. v. Finland, no.27751/95, § 92 ECHR
2003-I).
(ii) Application
of these principles in the present case
96. Turning to the facts of the
instant case, the Court notes that the expert G. has met Mrs Haase and three of
the children in September and October 2001 at the applicants' home. On
97. On
98. In the Court's opinion, the
findings of the
99. The Court observes moreover that,
before public authorities have recourse to emergency measures in such delicate
issues as care orders, the imminent danger should be actually established. It
is true that in obvious cases of danger no involvement of the parents is called
for. However, if it is still possible to hear the parents of the children and
to discuss with them the necessity of the measure, there should be no room for
an emergency action, in particular when, like in the present case, the danger
had already existed for a long period. There was therefore no urgency as to
justify the District Court's interim injunction.
100. The Court has also given
consideration to the method used in implementing the District Court's decision
of
101. In particular, the removal of
the new-born baby from the hospital was an extremely harsh measure. It was a
step which was traumatic for the mother and placed her own physical and mental
health under a strain, and it deprived the new-born baby of close contact with
its natural mother and, as pointed out by the applicants, of the advantages of
breast-feeding. The removal also deprived the father of being close to his
daughter after the birth. It is not for the Court to take the place of the
German authorities and to speculate as to the best child care measures in the
particular case. The Court is aware of the problems facing the authorities in
situations where emergency steps must be taken. If no action is taken, there
exists a real risk that harm will occur to the child and that the authorities
will be held to account for their failure to intervene. At the same time, if
protective steps are taken, the authorities tend to be blamed for unacceptable
interference with the right to respect for family life. However, when such a
drastic measure for the mother, depriving her totally of her new-born child
immediately after birth, was contemplated, it was incumbent on the competent
national authorities to examine whether some less intrusive interference into
family life, at such a critical point in the lives of the parents and child,
was not possible.
102. As stated above (see paragraph
89), there must be extraordinarily compelling reasons before a baby can be
physically removed from the care of its mother, against her will, immediately
after birth as a consequence of a procedure in which neither she nor her
husband has been involved.
103. The Court is not satisfied that
such reasons have been shown to exist in relation to the daughter born in
hospital. Although the contested decision of the Münster District Court of
104. In the light of the foregoing,
the Court concludes that the decision of the Münster District Court of 17 December
2001, the unjustified failure to allow the applicants to participate in the
decision-making process leading to that decision, the methods used in
implementing that decision, in particular the Draconian step of removing the
new born daughter from her mother shortly after birth, and the particular
quality of irreversibility of these measures were not supported by relevant and
sufficient reasons and cannot be regarded as having been “necessary” in a
democratic society.
105. Consequently, there has been a
violation of Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
106. The applicants also complained
that they had not had a fair hearing within the meaning of Article 6 § 1 of the
Convention, the relevant part of which reads:
“In the determination
of his civil rights and obligations ..., everyone is entitled to a fair and
public hearing within a reasonable time by an independent and impartial
tribunal established by law. ...”
107. The applicants submitted in
particular that they were not heard by Münster District Court before giving the
order separating the children from them.
108. The
Court observes that the applicants' complaints under Article 6 largely coincide
with their complaints under Article 8. The Court does not find it
necessary to examine the facts also under Article 6 § 1 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
109. 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
1. Submissions
of the parties
110. The applicants maintained that
the withdrawal of their parental authority had caused them pecuniary damage,
which they calculated as follows:
As from December 2001, they did no longer
receive child benefits. The child benefits for six children amounted to 1,050
euros (EUR). For seven children the amount would have been EUR 1,250 as from
December 2001. Because of the non-payment of child benefits they had been
obliged to move out of their flat (monthly rent EUR 765) and to rent a smaller
one (monthly rent 430 EUR). The removal costs amounted to EUR 400.
In June 2002 the Catholic Church put a house
with a big garden at their disposal. They moved to that house in order to have
enough space for the children in the event of their return and renovated it.
The removal costs amounted to EUR 400. For the renovation they paid
EUR 2,700. The monthly lease to be paid since June 2002 was EUR 872.
The applicants did not claim the retroactive
payment of child benefits since December 2001. They requested, however, to be
paid the difference of EUR 500 monthly between the rent for their first flat
and the house as from June 2002.
The mail and telephone costs paid exclusively
in connection with the removal of the children amounted in the period from
December 2001 to April 2003 to at least EUR 1,200.
The interference with their family life had
considerable negative effects on the applicants' and in particular Mrs Haase's
health. On
Since June 2002 the applicants underwent
psychological treatment. The costs of travelling to the doctor on
29 occasions amounted to EUR 725 by April 2003.
111. The
Government expressed no view on that question.
2. Decision
of the Court
112. The applicants also sought
compensation for non-pecuniary damage, pointing to the distress and frustration
they had felt as a result of the withdrawal of their parental rights and the
sudden removal of the children. Referring to previous award made by the Court
in other cases, they claimed EUR 25,000 for non-pecuniary damage suffered by
Mrs Haase and EUR 10,000 by Mr Haase although their immense suffering, which
had generated serious health problems necessitating psychological help, could
not in any way be measured in terms of money.
113. In the event of a finding by the
Court that the applicants were also acting on behalf of the children, as
submitted in their letter of 19 December 2002, they claimed EUR 2,000 on behalf
of each of the children for damage the children had sustained as a result of
their separation from the applicants and to some extent from each other.
114. The Government did not comment
on this claim.
115. The Court points out that by
Article 46 of the Convention the High Contracting Parties undertook to abide by
the final judgments of the Court in any case to which they were parties,
execution being supervised by the Committee of Ministers. It follows, inter
alia, that a judgment in which the Court finds a breach imposes on the
respondent State a legal obligation not just to pay those concerned the sums
awarded by way of just satisfaction, but also to choose, subject to supervision
by the Committee of Ministers, the general and/or, if appropriate, individual
measures to be adopted in their domestic legal order to put an end to the
violation found by the Court and to redress so far as possible the effects.
Furthermore, subject to monitoring by the Committee of Ministers, the
respondent State remains free to choose the means by which it will discharge
its legal obligation under Article 46 of the Convention, provided that such
means are compatible with the conclusions set out in the Court's judgment (Scozzari
and Giunta v. Italy [GC], no. 39221/98 and 41963/98, § 249, ECHR
2000-VIII).
Accordingly, under Article 41 of the Convention
the purpose of awarding sums by way of just satisfaction is to provide
reparation solely for damage suffered by those concerned to the extent that
such events constitute a consequence of the violation that cannot otherwise be
remedied (Scozzari and Giunta, cited above, § 250).
116. As regards the applicants'
claims for pecuniary loss, the Court's case-law establishes that there must be
a clear causal connection between the damage claimed by the applicants and the
violation of the Convention (see, among other authorities, Barberà, Messegué
and Jabardo v. Spain (Article 50), judgment of 13 June 1994, Series A no.
285-C, pp. 57-58, §§ 16-20, and Çakici v. Turkey [GC], no. 23657/94,
§ 127, ECHR 1999-IV). In this case, the Court has found a violation of Article
8 in respect of the provisional withdrawal of the applicants' parental rights
and the removal of the children.
117. In the absence of documentary
substantiation of this part of the applicants' claim, and having regard to
equitable considerations, the Court awards the applicants an amount of EUR
10,000 under this heading.
118. As to the non-pecuniary damage,
the Court considers that the applicants undoubtedly sustained such damage on
account of the violation of Article 8. The Court observes in particular that
since being separated from the children in December 2001 the applicants have
never seen them again. It is reasonable to presume that this must have caused
the applicants very great and acute suffering which will have worsened as the
proceedings continued and the hope of seeing the children again diminished.
119. The Court thus concludes that
the applicants sustained some non-pecuniary damage which is not sufficiently
compensated by the finding of a violation of the Convention (see, for example, Elsholz
v. Germany [GC], no. 25735/94, §§ 70-71, ECHR 2000-VIII). Having
regard to the circumstances of the case and ruling on an equitable basis, the
Court awards the applicants jointly EUR 35,000.
120. As to the non-pecuniary damage
claimed on behalf of the children, the Court points out that in principle a
person who is not entitled under domestic law to represent another may
nevertheless, in certain circumstances, act before the Court in the name of the
other person (see, mutatis mutandis, Nielsen v. Denmark, judgment
of 28 November 1988, Series A no. 144, pp. 21-22, §§ 56-57). In the event of a
conflict over a minor's interests between a natural parent and the person
appointed by the authorities to act as the child's guardian, there is a danger
that some of those interests will never be brought to the Court's attention and
that the minor will be deprived of effective protection of his rights under the
Convention. Consequently, even though the parents have been deprived of
parental rights – indeed that is one of the causes of the dispute which they
have referred to the Court – their standing suffices to afford them the
necessary power to apply to the Court on the children's behalf, too, in order
to protect their interests (see, mutatis mutandis, Scozzari and
Giunta, cited above, § 138).
121. However,
in accordance with Rule 38 § 1 of the Rules of Court, no written observations
filed outside the time-limit set by the President of the Chamber shall be
included in the case file unless the President of the Chamber decides
otherwise. In the present case, the applicants' request to present the
application also on behalf of their children was submitted on
B. Costs and expenses
122. The applicants claimed EUR
3,091.64 before the German courts and 5,000 EUR before the Court. They
submitted a detailed list of the claims.
123. The Government did not comment.
124. According to the Court's consistent
case-law, to be awarded costs and expenses the injured party must have incurred
them in order to seek prevention or rectification of a violation of the
Convention, to have the same established by the Court and to obtain redress
therefor. It must also be shown that the costs were actually and necessarily
incurred and that they are reasonable as to quantum (see, as a recent
authority, Meulendijks v. the Netherlands, 34549/97,
125. The Court is satisfied that the claim
for compensation of counsel's fees and expenses has been properly substantiated
and notes that the applicants' complaints were declared admissible in their
entirety. On the other hand, the Court has restricted its finding of a
violation to the provisional taking into care of the children and the
implementation of the care measures. Making its assessment on an equitable
basis, the Court awards the applicants EUR 8,000, together with any
relevant value-added tax. From this award must be deducted the EUR 700 and EUR
655 already received in legal fees from the Council of Europe by way of legal
aid, totalling EUR 1,355.
C. Default
interest
126. The Court considers it
appropriate that the default interest should be based on the marginal lending
rate of the European Central Bank, to which should be added three percentage
points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds
that, by reason of the failure to exhaust domestic remedies, it is unable to
take cognisance of the merits of the case in respect of the decisions of the
Münster District Court of 18 December 2001;
2. Holds that
the applicants may claim to be “victims” for the purposes of Article 34 of the
Convention;
3. Holds that
there has been a violation of Article 8 of the Convention;
4. Holds that
there is no separate issue under Article 6 § 1 of the Convention;
5. Holds
(a) that the respondent State is to pay the
applicants, within three months from the date on which the judgment becomes
final according to Article 44 § 2 of the Convention, the
following amounts:
(i) EUR 10,000 (ten thousand euros) in respect of
pecuniary damage;
(ii) EUR 35,000 (thirty-five thousand euros) in
respect of non-pecuniary damage;
(iii) EUR 8,000 (eight thousand euros), less EUR
1,355 (one thousand three hundred and fifty-five euros), in respect of costs
and expenses;
(iv) any tax that may be chargeable on the above
amounts;
(b) that from the
expiry of the above-mentioned three months until settlement simple interest
shall be payable on the above amounts at a rate equal to the marginal lending
rate of the European Central Bank during the default period plus three
percentage points;
6. Dismisses the remainder of the
applicants' claim for just satisfaction.
Done in English,
and notified in writing on
Vincent Berger Ireneu Cabral Barreto
Registrar President
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