AS TO THE ADMISSIBILITY OF
Application No. 12203/86
by A.R.
against Austria
The European Commission of Human Rights sitting in private on
4 March 1987, the following members being present:
MM C.A NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mr F. MARTINEZ
Mr H.C. KRÜGER, Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on
24 February 1986 by A.R. against Austria and registered on
30 May 1986 under file No. 12203/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated on 2 and 4 March 1987;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen, born in 1962, who
resides at Türnitz. In the proceedings before the Commission she is
represented by Mr. M. Urbanek, a lawyer practising in St. Pölten.
Due to an affection with German measles during her mother's
pregnancy, the applicant suffers from defective hearing and retarded
intelligence.
On 23 December 1980 the applicant married and moved to her
husband's household.
On 7 June 1981 she gave birth to a son. Permanent quarrels
with her mother-in-law concerning the child's education led to the
separation of the couple on 18 September 1981.
The child remained with the father, but on 6 October 1981 the
applicant applied to be granted the right of custody. Both the Youth
Offices at Scheibbs and Lilienfeld, as well as the respective
department at the Provincial Government of Lower Austria (Kinder- und
Jugendpsychologischer Beratungsdienst) confirmed the applicant's
ability to educate her child and moreover stressed that the child
should be handed over to the applicant as soon as possible.
On 21 October 1982 the District Court (Bezirksgericht) of
Scheibbs adjudicated the right of custody for the child to the
applicant. This decision became final on 12 January 1983, when an
appeal of the child's father was dismissed by the Regional Court
(Kreisgericht) of St. Pölten.
On 9 February 1983 the applicant and her parents accompanied
by officers of the Youth Office of Scheibbs visited the father with a
view to carrying out the above decision. However, the father refused
to hand over the child to the applicant.
On 14 February 1983 the applicant applied to the District
Court for compulsory surrender of the child, and the child's father
applied to transfer the right of custody to himself.
On 14 April 1983 the applicant was divorced from the child's
father.
On 1 July 1983 the District Court dismissed the father's
application to transfer the custody and ordered the official surrender
of the child to the applicant as provided by Section 19 of the Code of
Non-Contentious Procedure (Ausserstreitgesetz). The court bailiff,
assisted by the police (Gendarmerie) and Youth Office, was charged
with the enforcement.
On 6 July 1983 a new attempt to surrender the child failed.
The child who had not had contact with his mother for some time
showed no confidence in her.
On 20 July 1983 the Regional Court dismissed the father's
appeal from the decision of 1 July 1983, stating that it was the
grandmother on the father's side who persistently obstructed any
contact between her grandson and his mother.
On 7 October 1983 the District Court again ordered compulsory
surrender, stressing that immediate enforcement was necessary in order
to prevent increasing difficulties for the child to accustom to new
surroundings.
On 10 November 1983 an attempt to surrender the boy failed
once more, since the grandmother refused to hand him over, pretending
he was ill.
On 22 November 1983 the applicant applied for a new date of
compulsory surrender.
On 15 December 1983 the District Court again ordered surrender
and imposed a fine on the child's father for non-observance of a
judicial order.
The father's appeal to the Regional Court was dismissed on
29 December 1983.
On 16 February 1984 a further attempt to surrender the child
by force failed, apparently because of medical advice that this would
harm the child's well-being.
On 14 March 1984, as a result of a new attempt of the child's
father to obtain a transfer of custodial rights, the District Court
ordered the appointment of an expert for the purpose of delivering an
opinion as to how both the applicant and the child's father were
qualified for care and education. The applicant's appeal to the
Regional Court was successful on 16 April 1984. The father appealed
further to the Supreme Court, but this appeal was rejected on
28 June 1984.
On 3 May 1984 the District Court dismissed a further
application of the father concerning the custodial rights. His
appeal was also dismissed on 22 August 1984.
On 2 October 1984 the District Court ordered the appointment
of an expert for the purpose of delivering an opinion as to how the
custody decision of 21 October 1982 could be executed.
On 22 March 1985, as the child was still living with his
father and grandmother, the applicant filed another application for
effective measures to hand over the child to her.
From 1981 onward the applicant tried to visit her son as often
as possible. This became more and more difficult, since she was
destitute and had no earnings until 1985. The child and his father
lived at a considerable distance from the applicant's home and it was
almost impossible to get there by public transport. As the applicant
had no driving licence, she had to get a driver for the visits to her
child. When she could no longer afford the costs, she applied to the
District Court to oblige the child's father to pay an advance for the
visits.
On 6 September 1985 the application was dismissed. The Court
stated that in non-contentious proceedings each party had to bear his
or her own costs and that there was no provision on refunding expenses.
The applicant unsuccessfully appealed against this decision
to the Regional Court and subsequently to the Supreme Court which
finally rejected her appeal on 7 November 1985. Both Courts
underlined that Section 19 of the Code of Non-Contentious Procedure
did not provide any possibilities of imposing an advance on costs on
the child's father and that it was irrelevant whether or not the
father's behaviour had given rise to these costs.
It appears that the applicant's visits to her child were not
continued after these decisions.
In the meantime both parties had filed new applications to the
District Court concerning the custodial rights. The applicant had
asked for an injunction ordering the immediate compulsory surrender of
the child and the payment of alimonies by the father. The latter had
made a new application to transfer the custodial rights to him, and in
this context he had referred to his recent remarriage and the fact
that the child had developed strong emotional ties to his second wife.
On 5 February 1986 the District Court decided on these
applications, rejecting the applicant's claims and varying the earlier
custody decision in favour of the child's father. It noted that
according to a psychiatric report the boy was somewhat mentally
retarded; he was extremely shy and anxious, lacked contact with the
outside world and showed a symbiotic attachment to the persons
educating him. In principle it should be avoided interfering with
personal ties developed by children of his age because this could lead
to serious psychological trouble. Despite possible doubts it now
appeared to be in the boy's best interest to leave him in the social
environment into which he seemed to be well integrated. A transfer to
his mother could only be achieved by force and would expose him to a
situation totally unkown to him in relation to which he had already
developed anxiety and negative expectations. All existing ties would
be severed abruptly. This could only lead to a deterioration of the
adverse symptoms and grave repercussions on his future development,
whereas these developments could be avoided if the boy remained with
his father where it was ensured that his basic needs were met.
From the legal point of view, the Court observed that a
variation of the previous custody decision, which had become final,
was only possible if the conditions of Section 176 of the Civil Code
(Allgemeines Bürgerliches Gesetzbuch) were met. The predominant
consideration in cases of this kind was the best interest of the child
(Section 178a). At the time of the original custody decision the
situation had been such that, due to the tender age of the boy, no
special problems were expected to arise if he was transferred to other
surroundings. This situation had fundamentally changed. A transfer of
the already handicapped child to his mother could no longer be
justified. It was true that the father thus achieved the aim of his
permanent passive resistence, but it could not be said that by this
attitude he had endangered the well-being of the child. He had only
thwarted the realisation of the applicant's right to educate the
child. The applicant herself was not wholly without responsibility.
Her inability to establish the necessary relations with her child,
which was partly due to her own handicaps, had contributed to the
situation which could have been avoided if she had shown more
flexibility and initiative.
The applicant appealed from this decision, claiming that the
requirements under Section 176 of the Civil Code were not met because
there was no mistake on her part which would harm the child's
welfare. She further criticised the Court's assumption that custody
decisions which, due to the Court's inactivity, are not enforced
must be changed automatically after some time. In view of the
resistence of the child's father and grandmother it had been clear
from the outset that the applicant would not be able to keep the
necessary contact with the child unless supported by the Court. She
asked for an examination of the Court's responsibility for the belated
and improper arrangements made for the child's surrender.
The Regional Court rejected the appeal on 16 April 1986. It
confirmed that the predominant consideration must be the child's best
interest. This was an independent notion and not part of parental
rights. The child's interests took priority over those of the
parents. The decisions invoked by the applicant as to the strict
standard to be applied when custody decisions are being varied all
related to cases where the factual situation corresponded to the legal
one. The basic assumption was that a change of an established factual
situation which interrupted the continuity of the education was
justified only in very exceptional circumstances where a considerable
improvement of the situation of the child could be expected by his
transfer to different surroundings. These conditions were not met in
the present case. The child was integrated in the family of his
father and the latter's second wife, whereas the applicant could not
take care of him herself due to her employment and his education would
therefore again be entrusted to grandparents. The change of the
factual situation would indeed lead to a serious interference with the
child's welfare. It was irrelevant that this situation had been
brought about in an illegal manner by the child's father. The
latter's behaviour did not justify drawing any conclusions to the
detriment of the child. The law was based on objective considerations
and did not attach any importance to faulty behaviour. Likewise it was
irrelevant in the present situation whether any responsibility of the
courts could be established for the allegedly belated and
inappropriate attempts to carry out the earlier custody decision.
In this context reference was also made to the applicant's own failure
to establish further contacts with the child.
The applicant's further appeal was rejected by the Supreme
Court on 10 July 1986. Insofar as the applicant had complained of a
violation of her right to be heard, the Court observed that the judge
of first instance had in fact discussed the case with both parties.
An oral hearing was not required in non-contentious proceedings. It
was sufficient that the parties were given an opportunity to state
their views. Even if the judge of first instance had violated this
rule, the opportunity was given and used in the appeal proceedings.
As to the merits, the Supreme Court was only competent to examine
whether there was a manifest violation of the law. This was not the
case. The courts had sufficiently taken into account the predominant
interest of the child's welfare. It was true that according to
Section 144 of the Civil Code the withdrawal of parental rights
required a danger for the child's welfare. However, this had been
realised by the courts. The decision whether particular facts
revealed such a danger was a matter of judicial appreciation which
could not give rise to a manifest violation of the law.
COMPLAINTS
1. The applicant first complains of the length of the proceedings
under Article 6 para. 1 of the Convention.
The custody decision became final in January 1983 when the
child was one and a half years old.
The applicant emphasises the importance of the time element in
this case in order to prevent alienation of the child who, at the time
of lodging the application, was already four and a half years old and
who, at the time when the custody decision was varied, had attained
the age of six.
The applicant refers to the British child custody cases
(Nos. 9580/81, 9840/82, 10496/83, Decs. 14.3.1984).
The applicant further complains under Article 6 para. 1 of the
Convention that the proceedings which led to the variation of the
custody decision were unfair. Her right to be heard was disregarded
because she was never informed of the relevant application of the
child's father nor given an opportunity to comment on it prior to the
court's decision. She learnt of this application only when the
decision varying the custodial rights was served upon her.
2. The applicant further complains under Article 8 of the
Convention of an unjustified interference with the right to respect
for her family life.
She submits that respect for family life does not only mean
freedom from State interference but moreover involves an obligation
for the authorities to act in a manner calculated to allow for a
normal development of family ties. In this respect she relies on the
Eur. Court H.R. Marckx judgment of 13 June 1979 (Series A no. 31).
The non-implementation of the original custody decision in this case
allegedly violates Article 8, because no effective measures to enforce
this decision were taken before a situation arose where it appeared to
be in the child's best interest to remain with the father and vary the
custody decision accordingly.
3. The applicant finally complains under Article 13 of the
Convention that she was not granted an effective remedy before the
Austrian authorities to challenge the inactivity of the court while,
at the same time, the court refused to alleviate her difficult
financial situation in order to maintain at least the necessary
contact with her child.
&_THE LAW&S
1. The applicant's principal complaint concerns the right to
respect for her family life as guaranteed by Article 8 (Art. 8) of the
Convention. This right was allegedly infringed by the failure of the
Austrian authorities to enforce in time and by appropriate means the
decision of 21 October 1982 by which she was adjudicated custodial
rights for her child. A further unjustified interference with the
applicant's right to respect for her family life is seen in the
decision of 5 February 1986 by which the above custody decision was
varied in favour of the child's father who until that time had
unlawfully failed to surrender the child to the applicant.
The Commission first observes that the latter decision was
clearly based on the consideration of the best interest of the child
who now was to stay with the father without an abrupt change of the
surroundings which could only have provoked psychological trouble and
detrimental effects for the child's already retarded development. This
seems to be accepted by the applicant herself. In these circumstances
the decision to vary the custody decision, and the resultant
interference with the applicant's family rights, must be regarded as
being justified under Article 8 para. 2 (Art. 8-2) of the Convention. The
decision was in fact taken in accordance with the applicable Austrian
law, it pursued a legitimate purpose covered by Article 8 para. 2 (Art. 8-2),
namely the protection of the rights of others (i.e. the rights of the
child), and it finally was not disproportionate to the aim pursued.
It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The Commission has also examined the applicant's further complaint
under Article 8 (Art. 8) concerning the authorities' alleged failure to take
appropriate steps for the enforcement of the earlier decision which had
conferred the custodial rights for the child on the applicant.
The Commission notes, however, that the competent Austrian
Court indeed took repeated decisions to enforce the custody decision
of 21 October 1982 after the applicant's first attempt to obtain its
voluntary implementation with the assistance of the Youth Office had
failed in February 1983. The Court not only rejected several requests
of the child's father to vary the custody decision, it also repeatedly
ordered the compulsory surrender of the child to the applicant and if
necessary the use of force for this purpose. Thus already the
decision of 1 July 1983 charged the court bailiff to apply force for
taking away the child from the father with the assistance of the
police and of the Youth Office. It was apparently the applicant
herself who renounced the actual execution of this decision when it
turned out that the child showed no confidence in her. On the
applicant's request the Court then issued new orders for compulsory
surrender of the child on 7 October and 15 December 1983 respectively.
The attempts to execute these orders failed because the applicant
again gave in on the basis of medical advice that the use of force
would harm the child's well-being. The second order was accompanied
by the imposition of a fine on the child's father who nevertheless did
not give up his resistance. An application for a new order was not
made by the applicant before March 1985, after the courts had rejected
further requests of the child's father to vary the custody decision in
his favour and after it had been decided to obtain expert advice on the
question of how the custody decision in favour of the applicant could
be executed. It is apparently this expert advice which subsequently
laid the basis for the variation of the custody decision.
The Commission observes that the respondent State is not
responsible for the behaviour of the private persons who obstructed
the enforcement of the custody decision, i.e. the child's father and
grandmother. Any complaint under the Convention, alleging failure to
act, can only be levelled against the State authorities themselves,
i.e. the competent courts and executive organs. However, it has not
been shown that these authorities in fact neglected their duties. In
the Commission's opinion they did everything which could be expected
of them in the circumstances to back the applicant's claims.
Throughout the relevant period they consistently supported the
applicant's legal position and rejected all remedies of the opposite
party likely to interfere therewith. They also made available the
necessary procedural instruments by which the applicant could have
secured the effective realisation of her custodial rights. The
fact that the obstruction by the opposite party prevented her from
getting hold of the child when this was still possible without
endangering the latter's predominant interests cannot be imputed to
the State. Accordingly there is no appearance of the authorities
having failed to show the necessary respect for the applicant's family
life, nor of their having created the situation where a modification
of the underlying custody decisions became unavoidable.
It follows that this part of the application must also be
rejected as being manifestly ill-founded.
3. The applicant further complains under Article 6 para. 1 (Art. 6-1) of
the Convention that a decision determining her civil rights was not taken
within a reasonable time.
As regards this complaint, the Commission observes that
Article 6 para. 1 (Art. 6-1) is applicable only insofar as the proceedings
concerned the determination of the applicant's civil rights, i.e. her
custodial rights vis-à-vis the child. In contrast, Article 6 para. 1
(Art. 6-1) is not applicable to those parts of the proceedings which concerned
the enforcement of civil rights which had already been determined.
The delay in the enforcement of the custody decision of 21 October
1982 is therefore outside the scope of Article 6 para. 1 (DArt. 6-1) of the
Convention and cannot be challenged under this provision.
As regards the proceedings which concerned the determination
of the applicant's custodial rights, they were not one set of
continuing proceedings, but a series of separate proceedings. The
Court was in fact entrusted with a permanent supervision of the
custodial rights in the best interest of the child and in this context
had a power to vary its original decision whenever this appeared
appropriate in the circumstances having regard to the criteria laid
down in the Civil Code.
It is not alleged that the proceedings on the applicant's own
initial request to be adjudicated the child's custody were
unreasonably delayed. The subsequent proceedings on the repeated
requests by the child's father to vary the original custody decision
were each time conducted without undue delay. The fact that no
decision was taken immediately after the father's request of March
1985 can be explained by the fact that at that time the Court
had appointed an expert to advise it on the question of how the
original custody decision could be executed. The relevant decision
was eventually taken in February 1986 and having regard to the
circumstances this can still be regarded as a decision within a
"reasonable time". There was no undue delay in the subsequent appeal
proceedings.
It follows that this part of the application must again be
rejected as being manifestly ill-founded.
4. The applicant also complains that the proceedings concerning
the variation of the custody decision were unfair because she was not
informed of the relevant request of the child's father nor given any
opportunity prior to the decision of the Court of first instance to
comment on this request. The Commission has not been provided with a
detailed documentation on the conduct of the proceedings in question
and is therefore unable to ascertain whether or not the applicant's
above assertions are correct. In any event it appears from the
relevant decision of the District Court of 5 February 1986 that the
judge and a social worker visited the applicant at her home in
connection with these proceedings and that she was also examined by
the competent advisory psychiatric service of the Provincial
Government. The Commission further notes the finding in the appeal
decision of the Supreme Court of 10 July 1986 that there had been no
violation of the applicant's right to be heard. The Supreme Court
observed that the judge of first instance had discussed the case with
both parties and that in any event the applicant had been given an
opportunity to state her views in the appeal proceedings before the
Regional Court. The Commission finally notes that in the decisions on
each level the applicant's legal position and the arguments submitted
by her were in fact considered. It concludes that there is no
appearance of a violation of the principles of a fair hearing in this
case. The applicant's complaint in this respect is thus again
manifestly ill-founded.
5. The applicant finally invokes Article 13 (Art. 13) of the Convention,
claiming that she had no effective domestic remedy by which she could
assert her right to respect for her family life in particular as
regards the alleged failure of the authorities to enforce the original
custody decision in an appropriate way.
However, the Commission notes that effective remedies were in
fact available to the applicant to assert her claim of enforcement of
the original custody decision under Section 19 of the Code of
Non-Contentious Procedure read in conjunction with Sections 354 and
355 of the Enforcement Proceedings Act. These remedies were indeed
used in the present case and the fact that they did not produce the
desired result is not imputable to the respondent State as the
Commission has already found (cf. para. 2 above). It follows that
there is no appearance of a violation of Article 13 (Art. 13), and the
applicant's complaint in this respect must again be rejected as being
manifestly ill-founded.
For these reasons, the Commission
&_DECLARES THE APPLICATION INADMISSIBLE&S
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)