AS TO THE ADMISSIBILITY OF
Application No. 18869/91
by Uta BRACHT
against the Federal Republic of Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 8 April 1992, the following members being present:
MM. F. ERMACORA, Acting President of the First Chamber
J. A. FROWEIN
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to the First Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 July 1991 by
Uta Bracht against the Federal Republic of Germany and registered on
26 September 1991 under file No. 18869/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1952 and living in
Hamburg. She is represented by Mr. Ulrich Engelfried, a lawyer
practising in Hamburg.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 5 September 1989 the District Court (Amtsgericht) of
Hamburg-Wandsbeck withdrew the applicant's right of care and custody
for her daughter Melanie, born on 13 October 1976, and placed the child
under the guardianship of the Youth Office (Jugendamt) of
Hamburg-Wandsbeck.
It is stated in the decision that the Youth Office had already
on 9 November 1987 been appointed as provisional tutor (Pfleger) of the
child in order to determine where the child should live
(Aufenthaltsbestimmungsrecht). At that time the child was living with
her grandmother, the applicant's mother, Mrs. E. Bracht, who had in the
previous years taken care of the child next to (neben) the applicant.
The Court pointed out that serious tensions existed and still exist
between the applicant and her mother. According to the Court, the
applicant had asked the child in September 1987 to leave her apartment
but in the beginning of November 1987 she tried to recuperate the child
from the grandmother with the aid of the police.
The Court further stated that the then 11-year old child had been
heard on 5 November 1987 and had stated that during the last years she
had regularly visited her mother on weekends and also accompanied her
on journeys but she always felt neglected by her mother. She was not
sure whether her mother loved her but she was sure of her grandmother's
affection.
The Court also relied on the expert opinion of a child
psychologist. It had been ordered on 30 November 1987 and submitted
on 26 February 1988. According to the opinion the applicant had not
cooperated with the expert. The expert reported that for many years
a conflictual situation existed between the applicant and her mother.
The child refused contacts with her mother and therefore the expert
came to the conclusion that it was in the best interest of the child
for her to remain with the grandmother.
The Court further stated that in the course of the proceedings
the mother, i.e. the applicant, had in November 1988 expressed the wish
that her daughter be returned to her. She had further alleged that
this was prevented by the grandmother and by the Youth Office. She had
proposed that if a return was definitely prevented the grandmother
should adopt Melanie so that the situation was clarified.
Alternatively she had suggested that the child be given to foster
parents.
In view of these allegations the Court had heard Melanie again
on 27 February 1989. The Court stated that the child appeared to be
seriously affected by the disputes between her mother and grandmother.
According to the Court the child had stated that she did not feel
protected by her mother and therefore preferred her grandmother.
However at the initiative of her grandmother she had tried to keep in
contact with her mother, had been to the cinema with her and had
received gifts from her. On an excursion in December the mother had
suddenly told the child that she wanted to give her up for adoption as
she intended to move to Italy. She also told the child that the
grandmother was a liar having made untrue allegations before the Court,
the Youth Office and the court-appointed expert.
Subsequently the mother had made a request to institute the
adoption proceedings and to deal with these proceedings in an
accelerated manner.
The Youth Office had however objected to the adoption considering
that it was not necessary for the upbringing of the child by her
grandmother. In the opinion of the Youth Office the mother's request
had been made for the sole purpose of no longer having to pay alimony.
The Youth Office had considered that the request was no proof of the
applicant's affection for the child.
The Youth Office had further considered that the child should at
her request remain in the care of the grandmother who was herself
trying to influence Melanie in maintaining contact with her mother.
On 13 June 1989 the mother had then requested the Court to quash
the previous decision of 9 November 1987 by which the Youth Office had
been appointed as the tutor. She had requested that the right to
determine where her child should live be retransferred to her.
In support of her request she had alleged that in view of the
continuing separation there was a danger of a complete estrangement
between her and her child. She had also alleged that contact had
failed due to the attitude of the grandmother who was only interested
in the financial advantages of the situation.
The Court further noted that when heard on 7 July 1989 the
applicant had stated having had a very good contact with the child in
December 1988 and the beginning of 1989 which was then abruptly
interrupted after she had informed the child about the attitude of the
judge and the Youth Office. According to her the fraudulent and
criminal manipulations of the Court had made it impossible to develop
a normal mother-child relationship.
Furthermore she had, according to the Court, stated that she
would go to Italy if she could not get her daughter back. She did not
want a right to visit; she wanted the right to care and custody and
nothing else. If her daughter continued to live with her grandmother
she was not disposed to allow her daughter to visit her frequently as
she had done in December 1988.
The Court also mentioned that on 11 July 1989 it had to reject
a request from the mother to be allowed to spend summer holidays with
her daughter because these plans had not been previously communicated
to the daughter who had already made other plans for the summer
holidays.
Finally the Court stated that Melanie had called on the Court on
14 July 1989 in order to report that she had meant to visit her mother
on 8 July having heard that her mother requested the return of all the
objects which she had previously presented her with. After she had
arrived at her mother's place, her mother had locked the door and then
tried to convince her that the grandmother had defrauded the insurance
company and that she only kept the child in order to get the alimony
payments. Further she had told the child she would take her to Italy.
The child therefore had run away after they had left the apartment.
The child had again stated that she wished to remain with her
grandmother and that she had previously had the opportunity at any time
to return to her mother if she had so wished.
In view of all these circumstances the District Court found that
the relationship between mother and child had not improved and that the
child had repeatedly and clearly stated that she wanted to live with
her grandmother. On the other hand the attitude of the applicant
vis-à-vis her child whom she treated like an object showed that she was
not apt to take care of the child. In these circumstances the Court
considered it unnecessary to obtain a further expert opinion as
requested by the applicant. It decided in accordance with Section 1666
of the Civil Code (BGB) to withdraw the applicant's right of care and
custody and to place her child under guardianship (Vormundschaft).
The applicant lodged an appeal. Her request to be granted legal
aid was rejected by the Hamburg Regional Court on 22 December 1989.
On the same day the Regional Court rejected her appeal (Beschwerde).
On 4 September 1990 the Hanseatic Court of Appeal (Hanseatisches
Oberlandesgericht) rejected a further appeal (weitere Beschwerde). This
Court considered that the total withdrawal of the right of care and
custody was justified in the circumstances. It pointed out that the
child had been heard on 5 November 1987, 27 February 1989, 14 July 1989
and 8 November 1989 and continuously confirmed that she disliked the
attitude of her mother and preferred to live with her grandmother. The
Court also considered the applicant's complaints about the expert
opinion to be unfounded. It stated that the expert opinion contained
a sufficient description of the particular facts and circumstances from
which the expert drew her conclusions allowing the Court to evaluate
their correctness.
The applicant then lodged a constitutional complaint which was
rejected by a panel of three judges of the Federal Constitutional Court
(Bundesverfassungsgericht) on 24 January 1991 as offering no prospects
of success. The Court stated that in a conflict between child and
parent(s) the well-being of the child had to be given priority.
Therefore the withdrawal of the right of care and custody was justified
where it was in the child's best interest even if the parent was not
personally to be blamed for the deterioration of the child-parent
relationship. The Constitutional Court considered that the Court of
Appeal had carefully examined all circumstances and correctly came to
the conclusion that there was no other solution than the total
withdrawal of the right of care and custody. The Constitutional Court
furthermore considered the reliance by the lower courts on the expert
opinion to be unobjectionable. It pointed out that the applicant had
the occasion to collaborate with the expert but had refused to do so.
Furthermore there was nothing to show that the Court of Appeal
arbitrarily rejected as being unfounded her objections against the
expert opinion nor did it arbitrarily refuse to hear certain witnesses
proposed by the applicant.
COMPLAINTS
The applicant complains of the withdrawal of her right of care
and custody for her daughter and alleges violations of Articles 3, 6
and 8 of the Convention. She points out that it took two years to
decide the case in first instance. She is of the opinion that the time
element was to her disadvantage. Furthermore she considers that the
decision was taken on the basis of an incomplete and incorrect expert
opinion.
Furthermore she considers that the total withdrawal of the right
of care and custody constitutes a degrading act and leaves her only
with the obligation to pay for her child.
THE LAW
1. The applicant complains of the withdrawal of her right of care
and custody of her daughter who has been living with her grandmother,
the applicant's mother, for several years. She invokes Article 8
(Art. 8) of the Convention which reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
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 in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The German courts' decisions to grant the custody of the
applicant's daughter to the applicant's mother was taken in accordance
with Section 1666 of the Civil Code which provides that such a measure
can be taken if the well-being of a child is neglected and if the
parents are not capable or willing to provide redress. The Commission
consequently has to examine whether this interference was justified
under the terms of Article 8 para. 2 (Art. 8-2) of the Convention.
The Commission notes the findings of the District Court of
Hamburg-Wandsbeck, the Regional Court as well as the Hanseatic Court
of Appeal that the interests of the applicant's daughter and her future
well-being required that the applicant's mother should take care of
her. The Courts relied, in particular, on an expert opinion submitted
by a child psychologist. The District Court heard the applicant, her
daughter and the grandmother. The child was repeatedly heard by the
Courts and always stated that she preferred living with her grandmother
and disliked her mother's attitude. There is no indication that the
decisions complained of were not based on due consideration of the best
interests of the child.
The Commission is therefore satisfied that the interference with
the applicant's right to family life, namely the withdrawal of the
right of care and custody, was justified under Article 8 para. 2
(Art. 8-2) of the Convention as necessary for the protection of the
health and future well-being of the applicant's daughter.
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 applicant further complains of the length of the proceedings
following the appointment of the Youth Office as tutor on
9 November 1987. The Commission notes that the proceedings in question
were terminated in third instance by the decision of the Hanseatic
Court of Appeal given on 4 September 1990, i.e. nearly three years
later. In the course of these proceedings an expert opinion was
obtained and the applicant, her mother and her daughter were heard, the
latter on repeated occasions. According to the uncontested statements
in the District Court's decision of 5 September 1989 there had been
frequent contact between the applicant and her child. The applicant
tried to retrieve the child but also tried to have adoption proceedings
instituted. She did not cooperate with the expert appointed by the
Court. The child refused from the beginning to return to her mother
and the courts therefore examined very carefully whether a return
should be ordered against her will. In these circumstances there is
nothing to show that the three courts dealing with the matter within
a period of nearly three years caused any undue delays rendering the
total of the period in question unreasonable. The Commission notes
that the ensuing proceedings before the Federal Constitutional Court
lasted only about four months. It does not, therefore, appear
necessary to resolve the question whether these proceedings were to be
taken into account when assessing the overall length of the
proceedings.
It follows that this part of the application is likewise
manifestly ill-founded and must be rejected in accordance with
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber Acting President of the First Chamber
(M. de SALVIA) (F. ERMACORA)
Full & Egal Universal Law Academy