Information Note on the Court’s case-law No. 49
January 2003
Haase v. Germany (dec.) - 11057/02
Decision 23.1.2003 [Section III]
Article 8
Article 8-1
Respect for family life
Urgent removal of children from family home and placement in care, with prohibition on contact: admissible
The applicants are spouses. Mrs Haase has eleven children, seven being from a previous marriage. Following her divorce in 1993, she was awarded custody of her three youngest children. She married Mr Haase in 1994. Four children were born of their marriage. In 2001, the applicants requested family aid from the Youth Office. They agreed to a psychological assessment of their family situation. The designated expert met with Mrs Haase and three of her children on several occasions at the family home in September and October 2001. The applicants then withdrew their co-operation, disagreeing with the expert on certain matters. In December 2001 the expert reported back to the Youth Office. He considered that the children’s normal development was in jeopardy, that their parents were often unreasonably harsh and had beaten them and that any further contact between the children and the parents should be severed. The Youth Office immediately sought and obtained an injunction from the District Court withdrawing the applicants’ parental rights in respect of the seven children living with them, including the youngest, who was just one week old and still in the maternity hospital. The court considered that the parents were unable to give satisfactory care and education, and were abusive towards them to the point that the only possible means of protecting the children’s well-being was to remove them from their care. The court authorised the use of force if necessary to enforce its decision. All contact between the parents and the children was forbidden and the latter’s whereabouts were not to be disclosed. Mrs Haase was also forbidden access to her four other children or to come within 500m of their residence or schools. The court accepted the expert’s view that the parents would use any and all means to pressurise their children, justifying the prohibition on all contact. The parents were urged to face up to their deficiencies, to accept the necessity of the separation for the time being and to contribute to the pacification of the overall situation. The court considered that the Youth Office’s approach met in part the expressly stated wishes of the children and that the measures ordered were inevitable and proportionate to the urgent needs and objective interests of all of the children. That same day, the children were taken from the applicants.
The applicants appealed the order of the district court. The court of appeal found that the District Court’s order was justified. The children had been exposed to patterns of violence and there were chronic shortcomings in the care given to them in their home. A new expert report would be submitted the following month (April 2002). It was against the best interests of the children to remove them from their new environment, where they were building up new contacts, and restore them to the applicants, there being the risk that they would be placed in a new environment again shortly afterwards. The applicant’s request to the Federal Constitutional Court to issue an interim injunction was refused, since the court did not wish to jeopardise the children’s well-being by ordering their return when the second expert report might recommend separation from their parents again. Instead, the court considered that the applicants could be expected to await the outcome of the main proceedings, which would be conducted with due diligence. The District Court then appointed a lawyer to represent the children’s interests. It requested the experts to submit the results of their assessment before discharging them and appointing a new expert to consider whether the only way of protecting the children from danger was to separate them from their family. The new expert conducted a lengthy interview with the parents in June. Shortly afterwards, the Federal Constitutional Court set aside in part the decisions of the District Court and Court of Appeal and referred the case back to the District Court. It found that there were serious doubts whether the courts had had due regard to parental rights and proportionality.
The District Court arranged for a second hearing of the Youth Office’s application to revoke the applicants’ parental rights in July 2002. It transferred to the Youth Office the right to decide where the children should live, and decided that it was in their interests to remain in care. The prohibition on contact between parents and children, which the Federal Constitutional Court had not set aside, remained in force. Following the second hearing, the District Court confirmed its decision of December 2001. It relied on the first expert report, which assessed the applicants as being incapable of bringing up their children because of their own basic and irreparable educational deficiencies and their abuse of parental authority. The second expert’s opinion was not ready in time for the hearing, but she informed the court that she agreed with the first expert that there was no alternative to separation. The court indicated that the absence of warning to the parents before their children were removed in December was intended to avoid trauma to the children. The applicants appealed to the Court of Appeal. They also complained of bias on the part of the second expert and the District Court judge. These complaints were dismissed as unsubstantiated in October 2002.
Admissible under Article 8: The question of the exhaustion of domestic remedies, raised by the Government, was, having regard to the drastic measure of separating the children from their parents, so closely related to the merits that it could not be determined separately.
Admissible under Article 6 § 1.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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