SECOND SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application no. 35731/97
by Dirk VENEMA, Wubbechien VENEMA-HUITING
and Kimberly VENEMA
against the
The European Court of Human Rights, sitting on
Mr J.-P. Costa, President,
Mr L. Loucaides,
Mr C. Bîrsan,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs W. Thomassen,
Mrs A. Mularoni, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged
with the European Commission of Human Rights on
Having regard to
Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to
examine the application was transferred to the Court,
Having regard to the
observations submitted by the respondent Government and the observations in
reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Dirk
Venema, Wubbechien Venema-Huiting and Kimberly Venema, are
The respondent Government was
represented by Mr R. Böcker and Ms J. Schukking, Agents for the
Government of the
A. The
circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The first and second applicants, Mr Dirk Venema and Mrs Wubbechien Venema-Huiting, are the parents of the third applicant, Kimberly Venema.
Kimberly was born on
The doctors found nothing physically wrong with Kimberly. They began to suspect that Kimberly was healthy but that Mrs Venema might be suffering from a psychological disturbance known as the Münchhausen by proxy syndrome.
The Münchhausen by proxy syndrome is a condition in which a parent of a young child, nearly always the mother, driven by a need of her own for attention, 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.
At around this time Kimberly was referred to Curium, a
children’s psychiatric clinic in Oegstgeest near
In August 1994 the
On
Kimberly was again taken into hospital on
A meeting took place on
On
On
On 4 January 1995 the Child Welfare Board
applied by fax to the Juvenile Judge (Kinderrechter)
of the Regional Court (Arrondissementsrechtbank)
of The Hague for a supervision order (ondertoezichtstelling)
and an order for Kimberly to be placed away from her family (uithuisplaatsing). The same day the
Juvenile Judge issued a provisional supervision order (voorlopige ondertoezichtstelling), valid until
The Government state that the Child Welfare
Board wrote to Mr and Mrs Venema on
On
Also on
Again on
On
It can be inferred from the case-file that Mr and Mrs Venema were allowed to see Kimberly once every two weeks under an access arrangement, but no copy of the access order has been submitted.
The order of
The psychiatrist’s report was dated
The Child Welfare Board sent the
psychiatrist’s report to Curium and
No appeal being possible at that time against a provisional supervision order (Article 940 § 1 of the Code of Civil procedure, as then in force), Mr and Mrs Venema appealed to the Court of Appeal (Gerechtshof) of The Hague on 9 February 1995 against the placement order only.
Mr and Mrs Venema submitted written statements
made by their general practitioner (dated
Mr and Mrs Venema also submitted three
separate statements (dated 17, 21 and 22 February 1995) of psychiatrists
by whom they had had themselves examined, including two university professors.
All were extremely critical of the diagnosis made by the
The child psychiatrist from whom an opinion
was to be obtained pursuant to the order of the Juvenile Judge was approached
by the Child Welfare Board on
On
A second child, Jonathan, was born to Mr and
Mrs Venema on
The Court of Appeal held a hearing on
On
It appears that around 10 April 1995 the access arrangement was modified in that Mr and Mrs Venema were then allowed to see Kimberly once every week instead of once a fortnight. The Government state that the initiative for this change was taken by the Juvenile Judge.
Mr and Mrs Venema lodged an appeal on points
of law (cassatieberoep) against the
decision of the Court of Appeal to the Supreme Court (Hoge Raad) on
The child psychiatrist appointed as an expert
pursuant to the order of the Juvenile Judge submitted his opinion 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 Supreme Court not yet having given
judgment, Mr and Mrs Venema submitted on
The Advocate General (advocaat-generaal) to the Supreme Court submitted an advisory
opinion on
On
The case received a certain measure of publicity. Questions in Parliament and a complaint to the Deputy Minister of Justice (Staatssecretaris van Justitie), lodged on behalf of Mr and Mrs Venema by the Legal Proceedings Monitoring Group (Vereniging Voor Nader Onderzoek Rechtspleging, “VVNOR”), led the Deputy Minister to order an official inquiry into the way the Child Welfare Board had handled the affair.
The report of the official inquiry was
published on
· In deciding to intervene without the prior involvement of Mr and Mrs Venema, the Child Welfare Board had no doubt sought in good faith to protect Kimberly’s interests, but it might with advantage “have displayed more creativity in seeking a solution that did more justice to the parents’ interests”.
· Given the Child Welfare Board’s own lack of psychiatric expertise and the fact that the Münchhausen by proxy syndrome is difficult to diagnose, the use which the Child Welfare Board made of a variety of contradictory reports had not been “unacceptable” although it might have assessed them in a more critical fashion.
·
A lack of co-ordination within
the Child Welfare Board had delayed the involvement of the child psychiatrist,
who was only approached on
· The Child Welfare Board’s advice to the Juvenile Judge might have been more complete. As a minimum, the Child Welfare Board could reasonably have been expected to justify the absence of any inquiry of its own and to give more extensive reasons for the choices it made.
· The Child Welfare Board’s case-file management and internal reporting were deficient: documents explaining the background of its decisions were not contained in the file.
·
The transmission of the report
of the psychiatrist to the
·
It appeared that Mr and Mrs
Venema had not been summoned in writing to the hearing of the Juvenile Judge on
The report went on to formulate recommendations aimed at preventing the recurrence of cases such as the present.
According to the Government, the report led the Deputy Minister to conclude that the Child Welfare Board had “acted lawfully and fulfilled its statutory responsibility”, although its internal working procedures deserved some criticism. It had been right for the Board to take firm action and, in view of the nature and seriousness of the complaint, to rely on the expertise of third parties.
B. Relevant
domestic law
1. Supervision orders and provisional supervision orders
At the relevant time,
Article 1:254 of the Civil Code (Burgerlijk
Wetboek, hereinafter the “CC”) provided as follows:
“1. If a
child is growing up under such conditions that it is threatened with moral or
physical destruction (zedelijke of
lichamelijke ondergang), the Juvenile Judge may order it to be placed under
supervision.
2. He may
do so on the application of one of the parents, one of the relatives by
marriage or blood up to and including the fourth degree of consanguinity, the
Child Welfare Board or the public prosecution service (openbaar ministerie).”
Article 1:257 of the
CC provided as follows:
“The Juvenile Judge
may place the child under supervision provisionally pending an investigation. A
provisional supervision order shall remain in force until a final and binding
decision (gewijsde) on supervision is
made.”
Article 258 of the
CC, in relevant part, provided as follows:
“2. The
Juvenile Judge may lift the supervision order at any time. ...”
2. Placement
of a child away from its family
At the relevant time, Article 1:260 of the CC provided, in relevant part, as follows:
“4. A child shall only be placed away from its family under ... [Article] 1:263 [of this Code] ...”
Article 1:263 of the CC provided, in relevant part:
“1. If necessary in the interests of the child’s care and upbringing, the Juvenile Judge shall order the child to be taken into an institution that qualifies for funding under the Juveniles (Assistance) Act (Wet op de Jeugdhulpverlening) or elsewhere. ...”
3. Procedure
as regards supervision orders, provisional supervision orders and the placement
of a child away from its family
At the relevant time,
Article 940 of the Code of Civil Procedure (Wetboek
van Burgerlijke Rechtsvordering, hereinafter the “CCP”) provided as
follows:
“1. No
appeal or objection (geenerlei
voorziening) is allowed against a provisional supervision order under
Article 1:257 of the CC.
2. Such a
decision can be given without any prior hearing.”
Article 945 of the
CCP, in relevant part, provided as follows:
“3. Each
of the parents may appeal against the decisions referred to in this Article
[sc. decisions under Article 1:263 of the CC].”
COMPLAINTS
The applicants allege a
violation of Article 8 of the Convention in that the separation of Kimberly
from her parents was not justified on medical grounds and was not discontinued
as soon as this became apparent, and in that Kimberly’s parents were not
involved in the decision-making process that led to the separation.
They allege a
violation of Article 6 § 1 of the Convention in that Kimberly’s parents were
not heard before the decision was taken, and in that the Supreme Court failed
to rule on their appeal on points of law.
THE LAW
Article 8 of the
Convention provides insofar as relevant:
“1. Everyone has the right to respect for his private and 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.”
1. The applicability of Article 8 has not been called into question. Nor is it disputed that there has been “interference” with the applicants’ rights guaranteed under it, that this interference was “in accordance with the law” and that it pursued a “legitimate aim”.
The applicants’ first complaint is that the competent authorities took insufficient care to ensure that the information which led them to remove Kimberly from her parents was correct and complete, that they failed to discontinue the measure as soon as it became apparent that the measure ordered was uncalled for, and that they did not involve the parents before arriving at a decision.
The Government argued that the initial report
came from medical institutions of repute, which were eminently qualified to
deal with the kind of problem that prompted the report. The Child Welfare Board
had therefore been right to take the warning it contained very seriously
indeed. This was all the more so since, already on
In addition, the Child Welfare Board had not acted in haste: it had discussed the case on various occasions, and had in fact sought further information from the drafters of the report before taking action.
The application submitted by the Child Welfare Board to the Juvenile Judge had contained a detailed statement of reasons.
The Juvenile Judge had taken great care in dealing with the case. She had scheduled a hearing at short notice immediately upon ordering the emergency measure. Moreover, the Juvenile Judge was a specialist in the field of child care and protection and was frequently confronted with situations of this kind.
More generally, the Child Welfare Board and the Juvenile Judge had had to consider the interests of the parents against those of the child, and had rightly considered the latter to be of greater importance.
As to the failure to involve Kimberly’s parents in the decision-making process before action was taken, the Government argued that the authorities had considered, on reasonable grounds, that Kimberly’s life was in danger and that an immediate interim measure was justified; the situation had not admitted of any delay. Moreover, the experts had been of the opinion that the problem could not be discussed with the parents, since their reaction could not be predicted.
In any event, the authorities had sought to minimise the harm done by the measure by ensuring that the parents might have access to Kimberly; the Juvenile Judge had actually taken steps to increase the frequency of access.
The applicants argued that the case had been
known to the Child Welfare Board since early August 1994. The telephone
conversation of
There had been no immediate danger to Kimberly’s life at the time the Board applied to the Juvenile Judge, for the simple reason that Kimberly was in hospital and thus out of her parents’ immediate reach. In these circumstances it would have been quite possible for the Board itself and the Juvenile Judge to hear Kimberly’s parents before any decision, even of a provisional nature, was reached.
Echoing the report of the official investigation ordered by the Deputy Minister of Justice, the applicants pointed to the Child Welfare Board’s excessive reliance on information received from others – in particular, the Curium/Leiden University Hospital report – and its failure to make any investigations of its own. Such investigations would have clarified errors and inconsistencies in the Curium/Leiden University Hospital report. Instead, the Child Welfare Board had given incomplete information to the Juvenile Judge.
The failings in the file management and internal reporting practices of the Child Welfare Board, noted in the report of the official investigation, also contributed to the lack of sufficient information and had thus prolonged Kimberly’s placement away from her parental home.
The Child Welfare Board had improperly
influenced the psychiatrist by inducing him, in a discussion by telephone, to
add a caveat damaging to the applicants’ interests to his report of
Finally, the retraction of the request for a
similar measure in respect of Kimberly’s sibling Jonathan, who was born on
Having regard to the parties’ submissions and to its case-law, the Court considers that the applicant’s complaints under Article 8 of the Convention raise complex questions of fact and law which require an examination on the merits. They cannot, therefore, be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2. Article 6 § 1 of the Convention, in relevant part, provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The applicants complained of the failure of the Juvenile Judge to hear Mr and Mrs Venema before giving orders separating Kimberly from them, and of the decision of the Supreme court dismissing their appeal on points of law for lack of any legal interest.
The Government did not dispute that Article 6 § 1 was applicable.
They argued that the Juvenile Judge had had to choose between her obligation to protect the life of Kimberly on the one hand, and Mr and Mrs Venema’s right to a “fair hearing” on the other. The judge had given priority to the child’s interests. A hearing satisfying the requirements of Article 6 was held as soon as was possible thereafter, within the legal time-limits. The first head of the applicants’ complaint under Article 6 could not therefore give rise to a finding of a violation.
The applicants were of the opinion that at the time of the Juvenile Judge’s decision there were still so many unanswered questions that a hearing was clearly called for before any decision was arrived at. In the circumstances it could not reasonably be said that Kimberly’s life would thereby have been jeopardised. In fact, the failure to hear Mr and Mrs Venema had led to a fait accompli that could not be reversed by a subsequent hearing of the parents, not even when it emerged, from the psychiatrist’s report, that the Juvenile Judge’s original decision had been based on flawed information.
Having regard to the parties’ submissions and to its case-law, the Court considers that the applicants’ first complaint under Article 6 of the Convention raises complex questions of fact and law which require an examination on the merits. It cannot, therefore, be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
3. As to the failure of the Supreme
Court to decide on the legality of Kimberly’s placement away from her home, the
Government noted that by the time the Supreme Court got round to considering
the case the Juvenile Judge’s order had long been rescinded. The interests
advanced by Mr and Mrs Venema, namely that a decision in their favour by the
Supreme Court would pave the way for them to claim damages and prevent any
further violation of their right to respect for their private and family life,
were held to be insufficient to justify proceeding to a decision. This was in
itself reasonable, it being a principle of
The Supreme Court had nonetheless considered their appeal on points of law before declaring it inadmissible. In these circumstances it could not be said that the applicants had not had “access to a court” or a “fair hearing”.
In any event, it was open to the applicants to sue the respondent party in tort.
The applicants argued that the mere fact that the interference with their Article 8 rights had come to an end did not deprive them of the right to have the legality of the interference considered afterwards by the Supreme Court. This followed from Article 13 of the Convention. They further denied that the Supreme Court had considered their appeal on points of law: it had merely declared it inadmissible.
The applicants finally argued that an action
in tort would have had little prospect of success. The civil courts would have
been bound by the decision of the Court of Appeal of
In the Court’s view, the mere fact that the applicants’ appeal on points of law was declared inadmissible on the ground that they lacked a legal interest does not mean that they were denied access to a court or, more generally, the protection of Article 6 § 1. It should be noted in this respect that the applicants had the benefit of proceedings before the Court of Appeal, which they did not allege to be in violation of Article 6 § 1 of the Convention (see, mutatis mutandis and a contrario, the Obermeier v. Austria judgment of 28 June 1990, Series A no. 179, pp. 21 – 23, §§ 68 and 70).
The Court is likewise unable to accept the applicants’ argument that the decision of the Court of Appeal, having been effectively ratified by the Supreme Court, prejudged any subsequent proceedings they might take in tort. In the light of the advisory opinion of the Advocate General, it cannot be taken as established that the Supreme Court would have held in the applicants’ favour had it considered the merits of the applicants’ appeal on points of law. Moreover, this argument is incompatible with the position taken by Mr and Mrs Venema themselves on 29 August 1995 when stating their interest in a decision on the merits to the Supreme Court, namely that they would be compelled to bring a further civil action if the Supreme Court declared their appeal inadmissible.
It follows that the applicants’ complaint about the failure of the Supreme Court to decide on their appeal on points of law does not disclose any appearance of a violation of Article 6 § 1 of the Convention, and that consequently it is manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court by a majority
Declares inadmissible the applicants’ complaint that the Supreme Court failed to determine the merits of their appeal on points of law;
Declares admissible the remainder of the application, without prejudging the merits of the case.
S. Dollé J.-P.
Costa
Registrar President