AS TO THE ADMISSIBILITY OF
Application No. 25047/94
by E. L.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 22 February 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. A.S. GÖZÜBÜYÜK
A. WEITZEL
B. MARXER
B. CONFORTI
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 22 June 1994 by
E. L. against Germany and registered on 31 October 1994 under file
No. 25047/94;
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 facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant, born in 1939, is a German national and residing
in Frankfurt/Main.
The present application relates to several sets of court
proceedings.
I. On 7 January 1986 the Koblenz District Court (Amtsgericht), upon
the request of the Koblenz Youth Office, provisionally withdrew the
applicant's right to determine the place of residence (Aufenthalts-
bestimmungsrecht) of five of her eight children born out of wedlock,
i.e. the children born in 1976, 1977, 1982, 1983, 1985 and living at
that time with their grandmother, and appointed the Koblenz Youth
Office as guardian in this respect.
The District Court, having heard the applicant, found that the
provisional measure was necessary in view of the disputes between the
applicant and her mother regarding the children, which had continued
for years. Both the applicant and the grandmother were stressed by the
situation, whereby the applicant hoped for an improvement as soon as
she had renovated her apartment in Koblenz, but could not indicate an
alternative beforehand.
On 12 February 1986 the Koblenz Regional Court (Landgericht)
dismissed the applicant's appeal. The Regional Court, referring to
SS. 1666 and 1666a of the German Civil Code (Bürgerliches Gesetzbuch)
found that the decision complained of had been necessary in the
interest of the children concerned. The Regional Court, having regard
to a report of a social worker having visited the applicant on
27 January 1986, noted in particular that the applicant had meanwhile
partly furnished her apartment, however, the hygienic and sanitary
conditions of this apartment from where the children born in 1976 and
1977 had already once run away, were insufficient to an extent that the
children could not be returned to the applicant for the time being.
Moreover, the children had to be protected against the aggressive
disputes between the applicant and her mother.
S. 1666 of the German Civil Code provides in particular that, if
the physical, mental or psychological well-being of a child is
endangered as a consequence of an abuse of the right of custody, or
neglect of the child, or a failure of the parents arising through no
fault of their own or due to the conduct of a third person, and if the
parents are not willing or not able to avert the danger, the competent
guardianship court will order the measures necessary to avert the
danger concerned. According to S. 1666a, measures resulting in a
separation of the child from the parental family are only permitted,
if there are no other means, including public welfare, to avert the
danger. The right of custody may only be withdrawn, if other measures
proved to be unsuccessful or if it can be assumed that they are not
sufficient to avert the danger.
On 18 March 1986 the Koblenz District Court confirmed the above
measure as definite. The District Court considered that, when taking
the provisional decision, it had considered that the applicant had been
nervous due to her furnishing a new apartment and that the situation
would improve. However, on the contrary the applicant's psychological
situation had further deteriorated. Moreover, she had meanwhile given
up her new apartment and left Koblenz for Frankfurt, assuming that she
could thereby circumvent the competence of the Koblenz authorities in
the case.
On 24 July 1987 the Koblenz District Court dismissed the
applicant's request to quash the decision of 18 March 1986. The
District Court, referring to the earlier decisions, considered that the
applicant's psychological conditions had deteriorated at an increased
speed, as her numerous court submissions showed and as was confirmed
by the both Frankfurt and the Koblenz Youth Office. The District Court
stated that it had refrained from taking a decision of the applicant's
request at an earlier stage in order to give her a chance to settle her
problems. However, the applicant had failed to do so.
On 19 October 1988 the Koblenz District Court, having taken
expert evidence, dismissed the applicant's request to order visits of
her children. On 25 April 1990 the Koblenz Regional Court, upon the
applicant's appeal (Beschwerde), arranged for visits between the
applicant and her children at a local social service. However, these
visits were discontinued in October 1990 as regards two of the
children, born in 1976 and 1977, who did not wish to continue contacts.
Further visits of the child born in 1985 took place until August 1991.
On 13 January 1993 the Koblenz Regional Court, following negative
reports of the social service concerned and to problems as to the
organisation of these visits, withdrew the applicant's right of access
to the child born in 1985. The Regional Court, in this respect, had
regard to the statements of the parties and to an expert opinion of
November 1992. The decision was confirmed upon appeal by the
Zweibrücken Court of Appeal (Oberlandesgericht) on 24 February 1993.
II. On 4 November 1993 the Koblenz District Court withdrew the
applicant's right of custody (Sorgerecht) regarding her children born
in 1976, 1977 and 1985, pursuant to SS. 1666, 1666 a of the German
Civil Code (Bürgerliches Gesetzbuch). The right of custody over the
children born in 1976 and 1977, who were living with their grandmother,
was transferred to the Koblenz Youth Office. The right of custody over
the child born in 1985 was transferred to a meanwhile adult and married
daughter of the applicant where the child had already been living for
some years. The applicant's request that the right to determine these
children's place of residence be transferred back to her was dismissed.
The District Court considered the development of the relationship
between the applicant and her children in the light of the previous
court decisions on matters related to the applicant's parental rights.
It had also regard to the expert opinion of November 1992 and to the
statements of the persons involved in the proceedings.
The District Court noted in particular that for years the
applicant had pursued the aim to take her children back to her.
However, she had no concrete ideas about planning a daily life with the
children. Upon questioning, she had replied in a stereotype manner
that she had suffered injustice in the past and had rights regarding
the children. She regarded the wishes of her children as a result of
the influence exercised by third persons and therefore irrelevant. Her
constant attempts to raise allegations of psychological problems
against her mother and one of her elder daughters, where the children
were living, and to enforce the return of the five children concerned
impaired their normal development in an atmosphere free of fear.
On the basis of all material, the Court concluded that the
applicant, due to her personality, was not, and would in future not be,
capable to exercise her custody rights as a parent to the well-being
of her children, in particular to understand their needs regarding
their development in private as well as in school and future
professional matters.
In these and the following proceedings, the applicant was
represented by counsel.
On 7 February 1994 the Koblenz Regional Court dismissed the
applicant's appeal.
On 3 March 1994 the Zweibrücken Court of Appeal dismissed her
further appeal.
On 25 April 1994 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit her constitutional complaint
(Verfassungsbeschwerde). The Constitutional Court considered that the
impugned court decisions were based on the consideration that, if the
children were returned to the applicant, their well-being would be
considerably impaired, and that, in view of the applicant's conduct,
a more lenient measure than the withdrawal of her right of custody did
not exist.
III. Moreover, in 1992 the applicant requested the Frankfurt District
Court to order that her child born in 1982 and living with foster
parents should, instead of the monthly visits so far, visit her every
fortnight at her home.
In May 1992 the District Court ordered that an expert opinion be
prepared on the questions whether the continuation of the monthly
visits served the well-being of the child concerned, whether these
contacts could be intensified or whether they had to be discontinued.
On 18 May 1993 the District Court suspended the applicant's right
to visit her child for a period of seven months, i.e. until the end of
the year 1993. During this period, the child should, accompanied by
a suitable employee at the local Youth Office, or a person designated
by them as assistant, take up visiting her disabled sister, born in
1983 and living in a home for disabled children. The applicant and the
foster parents were prohibited from assisting in these visits.
Following these contacts, a first visit of one hour should take place
between the applicant and her child born in 1982, in the presence of
the child born in 1983 and the assistant chosen by the Youth Office at
the home for disabled children; and the Youth Office was ordered to
report about this visit. Further visits of that kind should then
follow once a month. The applicant was asked not to talk about the
child's return to her household in the course of the envisaged visits.
The applicant's further request as to her right of access and her
request that the right to determine the child's place of residence be
transferred back to her were dismissed.
In taking these decisions, the District Court had regard to the
expert opinion of December 1992 and the result of two hearings. In
particular, at a court hearing in April 1992 the child concerned had
objected to visits by the applicant.
On 9 August 1993 the Frankfurt Regional Court dismissed the
applicant's appeal.
The Regional Court found that the decisions taken by the District
Court struck a fair balance between the interests of the applicant and
her child born in 1982. The Court considered that, in suspending the
applicant's right of access to this child and arranging for visits of
her younger sister, the disabled child born in 1983, an attempt was
made to build a bridge between the child concerned and the applicant.
The possible success of this arrangement was largely dependant upon the
attitude and conduct of the applicant herself. Should she continue to
request access without taking the wishes of the child concerned into
account and, by constantly repeating her wish to take the child back
to her household, destabilise the child's development, she would
herself obstruct a positive development. The capability of the
applicant to understand these matters still appeared doubtful. The
decisions were based upon the expert's recommendations, and the child's
objections called for a cautious approach by means of preceding
contacts with the child's younger sister.
On 26 October 1993 the Frankfurt Court of Appeal dismissed the
applicant's appeal. The Court of Appeal, referring to S. 1634 of the
German Civil Code, found that the Regional Court had taken the parties'
submissions and the expert opinion of 1992 duly into account.
Considering the objections of the child concerned, the suspension of
the applicant's right of access could not be objected to. In view of
all circumstances, the right to determine the child's place of
residence could not be given back to the applicant and the child could
not return to her household, for the time being.
On 2 March 1994 the Federal Constitutional Court refused to admit
the applicant's constitutional complaint. The Constitutional Court,
leaving open the question whether the complaint was inadmissible on the
ground that the applicant had failed to submit the decisions of the
Frankfurt District Court and Regional Court, found no indication that
the Court of Appeal had disregarded the applicant's parental rights or
that the interference with these rights was disproportionate. The
Constitutional Court noted in particular that according to the expert
opinion a decision to separate the child concerned from her foster
parents would seriously impair her well-being. The Court of Appeal's
conclusion that for the time being the child could not return to the
applicant could therefore not be objected to.
COMPLAINTS
The applicant complains about the above court decisions on her
parental rights and requests that the right of custody over her
children born in 1982 and 1985 be restored to her. She does not invoke
any particular provision of the Convention.
THE LAW
1. The applicant's complaints relate to the decisions taken by the
Koblenz District Court of January 1986 and July 1987, respectively, to
withdraw first provisionally and then definitely her right to determine
the place of residence of five of her children. Moreover, she
complains that in January 1993 the Koblenz Regional Court, as confirmed
by the Zweibrücken Court of Appeal in February 1993, withdrew her right
of access to the child born in 1985.
The Commission recalls that it is not competent to decide whether
or not the facts alleged by the applicants disclose any appearance of
a violation of the Convention, as Article 26 (Art. 26) provides that
the "Commission may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law, and within a period of six months from the
date on which the final decision was taken".
In the present case, the Commission notes that these complaints
relate to court decisions taken in 1986 and 1987 as well as in January
and February 1993. No constitutional complaint was lodged against the
decision of the Zweibrücken Court of Appeal of 24 February 1993.
Therefore the domestic remedies available to the applicant have not
been exhausted so far.
The Commission, even assuming exhaustion of domestic remedies,
finds that, since the application was introduced to the Commission on
22 June 1994, it has been presented more than six months after the
dates of the final decisions in the respective sets of proceedings.
Moreover, an examination of the case does not disclose the existence
of any special circumstances which might have interrupted or suspended
the running of the six months' period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
2. The applicant further complains about the Koblenz District Court
decision of 4 November 1993 to withdraw her right of custody regarding
three of her children.
The Commission has examined this complaint under Article 8
(Art. 8) of the Convention which provides, so far as relevant, as follows:
"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 the rights and freedoms of others."
The decision to withdraw the applicant's right of custody over
three of her children constitutes an interference with her right to
respect for her family life which is in breach of Article 8 (Art. 8)
of the Convention, unless it is justified for the reasons set out in
paragraph 2 of this provision as being in accordance with domestic law
and necessary in a democratic society for one of the aims mentioned in
this paragraph.
The Commission considers that the interference at issue was in
accordance with SS. 1666 and 1666a of the German Civil Code. It served
the purpose of the children's well-being, which is a legitimate aim
under Article 8 para. 2 (Art. 8-2).
As regards the question whether the measure complained of was
necessary in a democratic society, the Commission recalls that,
according to the established case-law, it must be determined whether
the reasons given for the interference were relevant and sufficient
(Eur. Court H.R., W. v. United Kingdom judgment of 8 July 1987, Series
A no. 121, p. 27, para. 60; Olsson judgment of 24 March 1988, Series
A no. 130; recent authority the Olsson (No. 2) judgment of 27 November
1992, Series A no. 250, p. 34, para. 87).
The decision of the Koblenz District Court of 4 November 1993 to
withdraw the applicant's right of custody over three of her children
was upheld by the Koblenz Regional Court and the Zweibrücken Court of
Appeal, and further confirmed by the Federal Constitutional Court.
Based on expert advice and the statements of the children as well as
of the applicant and the other persons involved in the proceedings, the
German courts concluded that the applicant was not capable of
exercising her parental rights to the well-being of the children
concerned, in particular to understand their needs regarding their
development in private as well as in school and future professional
matters. In this respect, the previous development of the relations
between the applicant and her children was duly taken into account.
Thus the German courts considered that the applicant, while pursuing
for years the aim to take her children back to her, had no concrete
ideas about planning a daily life with the children, but stated in a
stereotype manner that she had suffered injustice in the past and had
rights regarding the children. The courts also noted her disregard for
the wishes of her children as well as the fears which her conduct
created for her children.
These decisions have to be seen against the background of the
earlier decisions taken by the German courts on matters related to the
applicant's parental rights. Thus in 1986 her right to determine the
place of residence of inter alia these three children was withdrawn,
first provisionally and then definitely, whereby the Courts took into
account not only the applicant's deteriorating psychological conditions
and the aggressive relationship between her and her mother where the
children were living at that time, but also the insufficient hygienic
and sanitary conditions at the applicant's apartment, from where the
children born in 1976 and 1977 had run away. The decision was
confirmed in July 1987 as the applicant had not managed to settle her
problems. Subsequent visit arrangements between the applicant and her
children at a local social service were discontinued as regards two of
the children, born in 1976 and 1977, who did not wish to continue
contacts, and as regards the third child born in 1985 following
negative reports of the social service concerned and problems as to the
organisation of these visits.
Against this background, the reasons for the interference were
both relevant and sufficient.
Moreover, the Commission finds that the applicant, assisted by
counsel, was involved in the decision-making process, seen as a whole,
to a degree sufficient to provide her with the requisite protection of
her interests. The procedural requirements implicit in Article 8
(Art. 8) were therefore complied with (see W. v. United Kingdom
judgment, loc. cit., p. 29, para. 64; Olsson judgment, loc; cit.,
p. 33, para. 71).
In these circumstances, the decision of November 1993 to withdraw
the applicant's right of custody over three of her children does not
disclose any appearance of a violation of her right to respect for her
family life under Article 8 para. 1 (Art. 8-1) of the Convention.
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.
3. The applicant's further complaints concern the decision of the
Frankfurt District Court of 1993 to suspend her right of access to one
of her children.
The Commission recalls that the mutual enjoyment by parent and
child of each other's company constitutes a fundamental element of
family life, and the natural family relationship is not terminated by
the fact that a child is taken into public care (cf. Olsson judgment,
loc. cit., p. 29, para. 59). The court decisions on the applicant's
right of access to her child born in 1982 thus constituted an
interference with her right to respect for her family life under
Article 8 para. 1 (Art. 8-1).
The Commission has examined whether this interference was
justified under Article 8 para. 2 (Art. 8-2), i.e. whether it was in
accordance with German law and necessary in a democratic society for
one of the aims set out in this provision.
The measures complained of were taken in accordance with
S. 1634 of the German Civil Code. The Commission also finds that they
pursued the protection of the interests of the child concerned.
As to the question of necessity, the Commission notes that the
Frankfurt District Court, as confirmed by the Frankfurt Regional Court
and the Frankfurt Court of Appeal, suspended the applicant's right of
access to her child, born in 1982 and living with foster parents, for
a period of seven months. For that period the Courts made arrangements
for visits between the child concerned and her younger sister, born in
1983 and living at a home for disabled children, and they envisaged
ensuing visits between the two children and the applicant. When doing
so, the Frankfurt Courts had regard in particular to the negative
attitude of the then eleven-year-old child vis-à-vis the applicant, and
pursued, on the basis of expert opinions the plan of improving their
relationship with the help of the child born in 1983. The applicant
could properly present her views in the course of these court
proceedings.
The Commission finds that in the above circumstances the impugned
court decisions were supported by relevant and sufficient reasons. The
Courts took their decisions in the light of the well being of the
children and the interest of their mother of improving the relationship
to them on the basis of a well elaborated plan. The Commission
considers that, the interference with the applicant's right to respect
for her family life was appropriate and necessary in a democratic
society for the protection of the rights and interests of the
applicant's child born in 1982.
Consequently there is no appearance of a violation of Article 8
(Art. 8) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of 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 President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy