B.W. AND W.W. v. SWITZERLAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 31233/96

                      by B. W. and W. W.

                      against Switzerland

      The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   S. TRECHSEL

                 M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           Mrs.  M. HION

           Mr.   R. NICOLINI

           Mrs.  M.F. BUQUICCHIO, Secretary to the 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 April 1996 by

B. W. and W. W. against Switzerland and registered on 30 April 1996

under file No. 31233/96;

      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 applicants, a married couple, are Swiss citizens born in 1969

and 1960, respectively.  They reside in Madretsch in Switzerland.

Before the Commission they are represented by Mrs M. Grütter, a lawyer

practising in Bern in Switzerland.

      The facts of the case, as submitted by the applicants, may be

summarised as follows.

      The first applicant's daughter M. was born in 1992.  Shortly

after the birth mother and child were separated.  On 2 January 1993 the

Rumisberg Guardianship Office withdrew the first applicant's parental

custody over her child.

      On 12 January 1993 the second applicant acknowledged that he was

the father of the child, and on 1 March 1993 he married the first

applicant.

      On 4 March 1993 the Rumisberg Guardianship Office also withdrew

the second applicant's parental custody over his child.  The Office

relied on S. 310 para. 1 of the Swiss Civil Code (Zivilgesetzbuch).

This provision states that "if there are no other means to avoid damage

to a child, the guardianship authorities have to take it away from the

parents ... and ensure its adequate placement".

      Upon the applicants' complaints, proceedings were conducted

before the District Officer (Regierungsstatthalter) of Wangen a.A., who

sought the views of the Parental Advice Office (Erziehungsberatung) of

the Canton of Bern.  The latter submitted psychiatric expert opinions

on each applicant prepared by the Psychiatric Clinic of the Canton of

Solothurn.

      At a hearing on 2 December 1993 the second applicant, who was

suffering from alcohol problems, agreed to submit to an antabus

treatment of at least one year; the agreement envisaged an interim

assessment after six months.  It was considered that if the treatment

was successful, the child could return to its parents.  However, the

antabus treatment could not be accomplished, and on 24 January 1994 the

District Officer dismissed the applicants' complaints.

      Upon the applicants' further appeal, the Court of Appeal

(Appellationshof) of the Canton of Bern on 15 March 1995 formally

withdrew the applicants' parental custody over M. and placed her in a

home.  The Court also appointed a guardian (Beistand) for the child.

      The applicants' public law appeal (staatsrechtliche Beschwerde)

was dismissed by the Federal Court on 6 September 1995, the decision

being served on 20 October 1995.

      Relying inter alia on S. 310 of the Swiss Civil Code, the Federal

Court recalled that the second applicant had for a long time suffered

from alcohol problems; in view of these difficulties he had even been

placed in detention.  Even after the medical expert opinions had stated

that his alcoholism was one of the major obstacles to parental custody,

the police had found the second applicant driving a car with a blood

alcohol level of 2,95%.  Despite his antabus treatment he had committed

a serious accident under the influence of alcohol; he had broken his

arm and was unable to visit his daughter.  On another occasion, the

second applicant had been unable to visit his daughter as he had

assaulted his wife under the influence of alcohol.

      The Court recalled the conclusions of the medical expert opinions

as regards the applicants and their child.  According to these

opinions, the child was very sensitive and needed a tranquil

environment.  On the other hand, the first applicant showed a lack of

interest towards the duties resulting from motherhood.  She was unable

to resist pressures and had a tendency, in case of difficulty, to flee,

to withdraw, or to break off relations.  The second applicant had a

potential to be violent which should not be underestimated.  He also

had the tendency to make others responsible for mistakes.  His cynicism

and his inability to understand others would not provide the necessary

security which the child required.  The Court also recalled that the

persons who were taking care of the child feared restoring parental

custody.  The decision continued:

      b)   It is true that it was disproportionate to separate the

      child shortly after her birth from her mother, particularly as

      neither the requirements of the child nor the circumstances of

      the mother warranted such a severe measure.  However, this order

      of the Guardianship's Office has entered into legal force and is

      not the object of the present proceedings.  For the rest, the

      subsequent marriage of the parents brought to a head the anyway

      complex and delicate circumstances of the girl:  The excesses of

      alcohol and the outbreaks of violence and assaults of the

      applicant and the fact that both married partners are not willing

      to cooperate with the circle of persons who should have

      facilitated contacts between the parents and the child, have not

      favourably affected the reinstitution of parental custody.

      Furthermore, the Guardianship's Office cannot be blamed that they

      wish at all costs to withdraw guardianship from the parents: Even

      during the proceedings before the District Officer it was

      suggested to the applicant to submit to an antabus-treatment of

      at least one year; after six months an interim assessment would

      have been made.  In the case of a positive result, the child

      would then have been brought home.  However, the applicants were

      not in a position to keep to this arrangement.  Furthermore, the

      subsequent events demonstrated that even an antabus treatment did

      not ensure that the applicant really abstained from alcohol.  In

      addition, it must be considered that the child has now been

      living outside her family for two years, and a reintegration into

      the family would need to be prepared and could only occur

      gradually.  Apart from the just mentioned personal problems of

      the parents, one should also not overlook the difficulties on the

      part of the child.  Thus, reintegration with the family can only

      occur on the basis of a factual cooperation of the parents with

      the guardian and those persons who in the past two years have

      taken care of the child."

COMPLAINTS

1.    The applicants complain of the withdrawal of custody which

amounted to a severe interference with their right to respect for

family life within the meaning of Article 8 of the Convention.  Thus,

the Federal Court itself considered that the separation at the outset

was disproportionate, and it has not been shown how the applicants'

marriage should have brought the child's situation to a head.  The

decisions rely mainly on statements made in the village on the

applicants, thus reflecting their precarious social situation.

However, the parents never had the possibility to show how they would

rear the child.  Without doubt, the parents would need assistance,

though none of their problems would justify depriving them of parental

custody.  There are no indications of a threat to the well-being of the

child.  To the contrary, the child feels happy when she is with her

parents.

      In respect of these complaints the applicants also rely on

Article 12 of the Convention.

2.    The applicants complain that they did not have an effective

remedy at their disposal within the meaning of Article 13 of the

Convention.  Thus, the domestic authorities did not duly consider the

applicants' right to respect for their family life within the meaning

of Article 8 of the Convention.

THE LAW

      The applicants complain under Articles 8 and 12 (Art. 8, 12) of

the Convention of the withdrawal of parental custody.

      Article 8 (Art. 8) of the Convention states, 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 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 Commission considers that the withdrawal of the applicants'

parental custody over their child M. amounts to an interference with

their right to respect for their family life within the meaning of

Article 8 para. 1 (Art. 8-1)of the Convention.  The Commission must

therefore examine whether this interference was justified under Article

8 para. 2 (Art. 8-2) of the Convention.

      The Commission observes that the domestic authorities, when

deciding on the withdrawal of parental custody, relied on S. 310

para. 1 of the Swiss Civil Code.  The measure was, therefore, "in

accordance with the law" within the meaning of Article 8 (Art. 8) of

the Convention.

      Moreover, when ordering the withdrawal of parental custody, the

authorities considered the well-being of the child.  The interference

was therefore imposed "for the protection of health (and) morals (and)

the rights and freedoms of others", namely the child concerned.

      Finally, the Commission has examined whether the measure was

"necessary in a democratic society" within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention, as interpreted in the Convention

organs' case-law (see Eur. Court HR, Berrehab v. Netherlands judgment

of 21 June 1988, Series A no. 138, p. 15, para. 27).

      The Commission notes that the domestic authorities carefully

balanced the various interests concerned, having particular regard to

the situation of the child, and relying on medical expert opinions and

the views of other persons involved.  Thus, the Federal Court in its

decision of 6 September 1995 considered that, while the separation of

the child from her mother shortly after birth was disproportionate, the

subsequent marriage of the applicants had not been positive for the

child's needs.  The second applicant suffered from alcohol problems and

was prone to violence.  The first applicant, on the other hand, had a

tendency, in case of difficulties, of fleeing or withdrawing.  The

Court concluded that these circumstances would not be conducive to the

well-being of the child who was of a sensitive nature and required a

secure environment.

      The Commission accepts, therefore, that the interference with the

applicants' right to respect for their family life could reasonably be

considered "necessary in a democratic society ... for the protection

of health (and) morals (and) the rights and freedoms of others", namely

the child concerned.

      As a result, the interference was justified under Article 8

para. 2 (Art. 8-2) of the Convention.

      Insofar as the applicants rely on Article 12 (Art. 12) of the

Convention, no separate issue arises under this provision.

      This part of the application is, therefore, manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.    The applicants complain under Article 13 (Art. 13) of the

Convention that they did not have an effective remedy at their

disposal.

      The Commission recalls that Article 13 (Art. 13) of the

Convention requires a remedy in domestic law only in respect of

grievances which can be regarded as "arguable" in terms of the

Convention (see Eur. Court HR, Powell and Rayner judgment of 21

February 1990, Series A no. 172, p. 14, para. 31).

      In the present case, the Commission has just found that the

complaints under Articles 8 and 12 (Art. 8, 12) of the Convention are

manifestly ill-founded.  The Commission finds that the applicants'

submissions in this respect do not raise any prima facie issue under

the Convention. As a result, no arguable claim can be maintained in

respect of a violation of these provisions.  It follows that the

complaint under Article 13 (Art. 13) of the Convention is also

manifestly ill-founded.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                        of the First Chamber

 

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