FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 71475/01
by Ella-Christina HOFMANN and Angelo HOFMANN
against Germany
The European Court of Human Rights (Fifth Section), sitting on 25 September 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrV. Butkevych,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 21 March 2000,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mrs Ella-Christina Hofmann and Mr Angelo Hofmann, are German nationals who were born in 1958 and 1986 respectively and live in Schlitz in Germany. They are represented before the Court by
Mr V. Ried, a lawyer practising in Bad Hersfeld. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Factual background
The second applicant is the first applicant’s son, born out of wedlock on 7 June 1986. The first applicant, who had full parental authority, raised the second applicant together with his half-sister J., born in 1977. J left the first applicant’s household in 1995.
From 1995 onwards the first applicant experienced difficulties in educating the second applicant, who showed signs of aggressiveness and refused to follow orders. From 18 June to 13 August 1995 the second applicant was placed in a psychiatric institution for children and adolescents.
Upon medical advice, the second applicant started ambulant therapy which was discontinued because the first applicant did not agree with the educational methods applied.
In the summer of 1997 further major difficulties arose when the second applicant had been caught smoking, lying and stealing from the first applicant. The first applicant considered placing the second applicant into an after-school care centre, but refrained, when the Youth Office (Jugendamt) refused to cover the costs as the first applicant was unwilling to disclose her financial situation. The tensions between the applicants persisted.
On 10 January 1998 a serious dispute broke out between the applicants when the second applicant refused to help his mother in gardening.
The second applicant absconded and only returned in the evening. On his return, he fell and incurred a laceration on his head which had to be sewn with one stitch.
On 11 January 1998 the conflicts resumed. The second applicant absconded and cycled to his half-sister J. That same afternoon, the first applicant and J. called upon the police in order to achieve a settlement on where the boy should stay for the night. Following an exchange of views, the second applicant agreed to return to the first applicant.
The conflict between the applicants continued as the second applicant insisted on his wish to stay with J. On 13 January 1998 the first applicant drove the second applicant to J.’s place. Subsequently, she informed the District Youth Office about the second applicant’s whereabouts.
On 14 January 1998 J., who felt unable to cope with the situation, requested the District Youth Office’s assistance.
2. The proceedings withdrawing the first applicant’s parental authority
On 14 January 1998 the Youth Office requested the Lauterbach District Court (Amtsgericht) to withdraw parental authority from the first applicant. Relying on the statements made by J. and her partner, the Youth Office submitted that the second applicant had been repeatedly beaten by the first applicant. In the course of the arguments which took place on
11 January 1998, the first applicant hit the second applicant on the fresh wound. On 13 January 1998 the first applicant had stated that the second applicant should stay for six weeks with J., while she was leaving on vacation.
By interim order of 15 January 1998 the Lauterbach District Court, without hearing either of the applicants, temporarily withdrew the first applicant’s parental authority over the second applicant pursuant to section 1666 of the Civil Code (Bürgerliches Gesetzbuch, see relevant domestic law below) and transferred it to the District Youth Office. The District Court found that the second applicant’s physical well-being was jeopardised by an abuse of parental authority and that the Youth Office had to take the necessary steps to avert this danger, in particular by ensuring medical treatment and accommodation. Due to the urgency of the matter it had not been possible to hear the first applicant before taking this decision.
The Youth Office placed the second applicant in a foster family for short-time accommodation. On 10 March 1998 the second applicant was placed with the foster family K. On that same date the District Youth Office issued a certificate to the foster family according to which the second applicant’s placement was planned as a permanent measure (“Der Verbleib des Kindes ist auf Dauer angelegt”).
On 19 January 1998 the first applicant, who was represented by counsel, lodged a complaint against the interim order.
On 23 January, 29 January and 5 February 1998 the District Court heard both applicants as well as J. and her partner.
On 16 February 1998 the District Court transferred the case-file to the Fulda Regional Court (Landgericht) to rule on the first applicant’s appeal against the interim order.
On 16 June 1998 the presiding judge of the Regional Court heard the second applicant in the foster family’s household. According to the minutes drafted by the presiding judge, the second applicant declared that he felt at ease with the foster family and that he enjoyed a good relationship to the other foster child and, in particular, to the foster parents’ grown-up son. With regard to the incident which led to the withdrawal of parental authority, the second applicant declared that he did not wish to talk about this and did not quite remember the details. He had left his mother’s household because of the many arguments and beatings he had received.
On his return, he had incurred the wound on his head. Some time later he had been beaten again. He further confirmed having given a faithful account of the incident to the District Court judge.
When questioned if he had had sufficient time to settle down during the previous months, and if he wished to see his mother, the second applicant replied that he did not wish any personal contact to his mother. Even if his mother should promise that everything would change from now on, he was afraid that she would continue beating him and threatening him with sending him away or placing him in a psychiatric hospital.
On 26 June 1998 the Regional Court held a hearing in the presence of the first applicant, the first applicant’s counsel and a representative of the Youth Office.
On 2 July 1998 the Fulda Regional Court rejected the first applicant’s appeal. That court found, firstly, that the withdrawal of parental authority had been in accordance with the pertinent provisions of sections 1666 and 1666a of the Civil Code. The events of January 1998, which had been confirmed by both the second applicant himself, his sister J. and her sister’s partner, justified the taking of measures relating to guardianship. There were substantial indications for an abuse of parental authority, which justified the assumption that there was a serious danger for the child’s welfare.
With regard to the present situation, the Regional Court found that there was no reason to revoke or to modify the impugned decision.
There remained serious indications that the child’s well-being would be jeopardised if he returned to the first applicant’s household. The second applicant had repeatedly stated that he had frequently been slapped by his mother. Even if this was not regarded as a decisive factor, the child’s
well-being would be jeopardised by the first applicant’s deficiencies in parenting. The first applicant had conceded that she experienced serious educational difficulties. She had failed to resolve these problems by use of adequate educational measures or by availing herself of public assistance. The basis of confidence between mother and child was seriously disturbed. This had become obvious when the second applicant, during the hearing before the Regional Court, had expressly declared that he presently did not wish any contact to his mother. There was no indication that the applicant had been influenced by third persons when expressing this wish.
It was currently not possible to avert the danger by alternative means, such as external assistance, as the second applicant refused any cooperation with the Youth Office.
On 28 July 1998 the first applicant lodged a further complaint (weitere Beschwerde) against the Regional Court’s decision, which she withdrew on 20 August 1998.
On 2 September 1998 the counsel H., who acted on behalf of the first applicant, was granted access to the case files of the custody and access proceedings.
On 3 September 1998 the first applicant lodged a motion for bias against the District Court judge, which was rejected by the Regional Court on 16 September 1998. On 30 September 1998 the applicant lodged a further complaint, which was rejected by the Frankfurt Court of Appeal (Oberlandesgericht) on 8 December 1998.
On 26 January 1999 the case-file was returned to the Lauterbach District Court.
On 16 July 1999 the applicant lodged a complaint for inactivity (Untätigkeitsbeschwerde) against the Lauterbach District Court.
On 10 August 1999 the District Court, in the main proceedings, ordered the preparation of an expert opinion as to whether the second applicant’s physical, mental or psychological well-being was jeopardised by an abuse of parental authority, by neglect or by the mother’s failure through no fault of her own. It further appointed a curator ad litem to represent the second applicant.
On 26 August 1999 the first applicant lodged a complaint against the appointment of the curator ad litem.
On 3 September 1999 the first applicant requested the court to discharge the court-appointed expert on grounds of bias.
On 11 October 1999 the Frankfurt Court of Appeal decided that the applicant’s complaint for inactivity had been disposed of, as the District Court had in the meantime taken measures to promote the proceedings by its decision of 10 August 1999.
On 21 October 1999 the applicant lodged a further complaint for inactivity.
On 11 February 2000, in a public hearing before the Frankfurt Court of Appeal, the applicant withdrew her complaint against the appointment of a curator ad litem.
On 31 March 2000 the case file was returned to the Lauterbach District Court.
On 26 April 2000 the District Court informed the parties that it intended to appoint the new expert Dr M. On 30 April 2000 the first applicant informed the District Court that she opposed any further examination.
On 12 May 2000 the District Court appointed the expert Dr M.
On 2 June 2000 the applicant lodged a motion for bias against the expert Dr M, which was rejected by the District Court on that same day.
On 17 June 2000 the applicant lodged a further complaint for inactivity against the District Court judge.
On 25 June 2000 the first applicant lodged a further motion for bias against the District Court judge.
On 10 August 2000 the applicant lodged a motion for bias against several judges of the Regional Court and of the Court of Appeal.
On 4 September 2000 the Frankfurt Court of Appeal rejected the applicant’s further complaint against the rejection of the applicant’s motion for bias against the expert.
On 11 September 2000 the Court of Appeal rejected the first applicant’s complaint for inactivity on the grounds that the District Court judge had not been entitled to take any procedural actions – with the exception of those which could not be delayed – as long as the motion for bias brought out against her by the applicant was still pending.
On 16 September 2000 the first applicant lodged a further appeal against the Court of Appeal’s decision of 11 September 2000.
On 18 October 2000 the Federal Court of Justice (Bundesgerichtshof) rejected the applicant’s further appeal as inadmissible.
On 9 November 2000 the Frankfurt Court of Appeal, sitting as a chamber of three judges, rejected the first applicant’s motion for bias against the District Court judge. Having analysed the entire case file, that court considered that there was no indication that the District Court judge had failed in her professional duties. With regard to the allegation that the judge had delayed the proceedings, the Court of Appeal found as follows:
“The mother’s allegations, according to which the judge had violated her duties, in that she had, in particular, failed sufficiently to examine the case and that she had stayed inactive, are completely absurd. On the contrary, the judge attempted intensively to promote the proceedings and accurately to examine the facts in order to gain a stable basis for reaching her decision. Conversely, the mother and her counsels have delayed the proceedings by lodging various procedural requests, both admissible and inadmissible appeals and other motions, including rejections on grounds of bias, administrative complaints, criminal informations for perversion of justice and petitions...”
On 10 November 2000 the second applicant absconded from the foster family in order to avoid a meeting with a Youth Office official. He returned to his home-town Schlitz were he was seized by the police on
13 November 2000.
On 14 November 2000, during a hearing before the District Court, the parties agreed that the second applicant should be allowed to visit the first applicant and subsequently return to the foster family. The following day the second applicant declared that he wished to remain in the first applicant’s household.
On 6 December 2000 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the first applicant’s constitutional complaint against the decisions of 15 January and 2 July 1998.
On 29 January 2001 the Lauterbach District Court, following a further hearing, revoked its decision of 15 January 1998 and restored parental authority to the first applicant. It noted that the second applicant had declared that he wished to stay with his mother and that both the Youth Office and the child’s curator ad litem had agreed that parental authority should be restored to the applicant.
3. The proceedings relating to the first applicant’s request to be granted access rights
On 5 May 1998 the first applicant requested to be granted by interim order the right to supervised visits on a weekly basis and to oblige the Youth Office to submit regular reports on the second applicant’s personal and school development. She complained that she had been denied access to her son since 13 January 1998.
On 27 May 1998 the Lauterbach District Court ordered the preparation of an expert opinion concerning the question if and to what extent the first applicant should be granted visiting rights.
On 15 July 1998 the applicant requested the District Court to withdraw the court-appointed expert F, as she appeared to be biased against her.
On 6 November 1998 the District Court rejected the applicant’s motion for bias.
On 9 November 1998 the psychological expert F submitted her expert opinion. She considered that the second applicant had experienced several times that his mother had threatened to give him away or had indeed given him away, for example by placing him in a psychiatric hospital or with his sister. As the second applicant emotionally and socially depended on his mother, this situation appeared to threaten his existence. This was aggravated by the fact that he did not have any positive memories of his biological father and that the contacts to his sister, as an important confidant, had been restricted by his mother. The second applicant tried to overcome this emotional and existential insecurity by accepting the foster family as the new centre of his life in order to become independent from his mother. When exposed to strong psychological pressure, the second applicant tried to avoid the situation or showed auto-destructive reactions, such as a suicide attempt in 1995.
The applicant’s wish not to see his mother had to be regarded as an attempt to distance himself. This wish had to be taken seriously. It was thus not appropriate to impose contacts against the second applicant’s wishes. The expert recommended offering both applicants psychological support in order to enable them to understand the situation and to find solutions to the conflict.
On 12 November 1998 the District Court scheduled an oral hearing for 2 December 1998.
On 19 November 1998 the applicant informed the District Court that she requested a decision on the further complaint she had lodged on 30 September 1998 against the rejection of her motion for bias against the District Court judge lodged in the custody proceedings.
On 24 November 1998 the applicant lodged a complaint against the rejection of her action for bias against the court-appointed expert.
On 26 November 1998 the District Court cancelled the hearing on 2 December 1998 with regard to the applicant’s further complaint regarding the motion for bias against the judge.
On 8 December 1998 the Frankfurt Court of Appeal rejected the applicant’s complaint against the rejection of the motion for bias against the District Court judge.
On 11 March 1999 the District Court heard the expert, both applicants, and the foster mother. According to the District Court’s minutes, the first applicant agreed that a psychological expert be commissioned in order to prepare the ground for contacts between the first applicant and, firstly, the foster family, and, subsequently, the second applicant.
On 26 May 1999 the court-appointed psychological expert W informed the District Court that there had been a misunderstanding between the parties. While the first applicant expected to see her son under the expert’s supervision, the foster family expected that the meetings took place between the first applicant and the foster parents, without the child’s direct involvement. The first applicant did not wish to meet the foster parents. When the expert tried to meet the second applicant, the foster parents informed her that the child should be given the chance to settle down and that the child’s psychotherapist considered that meetings should not begin before the end of the summer holidays.
On 31 May 1999 the District Court judge requested the Youth Office to assure that the foster parents did not prevent the expert from meeting the child.
On 20 June 1999 the expert W informed the District Court that she did not see a possibility to carry out her task, as the foster parents refused her access to the child and were supported by the child’s psychotherapist.
On 16 July 1999 the applicant lodged an action for inactivity against the District Court judge.
On 10 August 1999 the District Court rejected the first applicant’s request to be granted the right to visit the second applicant. It further ordered the Youth Office to inform the first applicant regularly about the child’s development.
The District Court noted that the second applicant had repeatedly declared both before the District Court and before the Court of Appeal that he did not wish to see his mother, as he was afraid of being once again beaten by her. The District Court concluded that the second applicant, who had matured according to his age, seriously and understandably opposed to visits. Under these circumstances, it was impossible to impose visits against his will. Before the background of the family conflicts and the circumstances which led to the withdrawal of parental authority, this would be contrary to the child’s best interests. The District Court further noted that the psychological expert F had found that the second applicant’s wish to distance himself from his mother had to be taken seriously.
This finding was confirmed by the District Court’s own impression during the oral hearing of 11 March 1999. As the second applicant did not feel up to meet his mother, there was ground to fear that forced visiting contacts in the near future would lead to serious damages to his psychological stability and development.
On 26 August 1999 the first applicant lodged a complaint.
On 11 October 1999 the Frankfurt Court of Appeal rejected the first applicant’s complaint against the alleged inactivity of the District Court on the ground that the District Court had promoted the proceedings by its decision of 10 August 1999.
On 12 October 1999 the first applicant lodged an administrative complaint against the District Court judge.
On 8 November 1999 the first applicant laid a criminal information against the District Court judge.
On 11 February 2000 the judge rapporteur of the Frankfurt Court of Appeal heard the first applicant and a representative of the Youth Office. During the hearing, the judge phoned the second applicant’s psychotherapist and arranged a meeting with the applicants for 2 March 2000 in the psychotherapist’s offices.
On 2 March and 11 April 2000 the judge rapporteur arranged and attended two meetings between the applicants.
On 9 May 2000 the Court of Appeal held another hearing with the aim of arranging further meetings between the applicants. According to the court minutes, the rapporteur explained the second applicant that he had to abide by certain social rules and that he would not suspend the first applicant’s access rights. The second applicant firmly objected to any further meetings with his mother. Upon suggestion of the second applicant’s curator ad litem, a further meeting between the applicants and the judge rapporteur was scheduled for 15 May 2000.
The second applicant did not appear at the meeting.
On 27 July and 10 August 2000 the curator ad litem informed the Court of Appeal that the second applicant was presently opposed to any personal contacts with his mother.
On 20 August 2000 the foster parents informed the Court of Appeal that the second applicant continued to oppose any contact to his mother, in spite of the joint efforts made by themselves, the Youth Office and the psychotherapist to convince him otherwise. It appeared that the second applicant could not stand the psychological pressure, as was demonstrated by the fact that he had absconded before the scheduled meeting and that his problems at school had aggravated since February 2000.
On 26 August 2000 the first applicant lodged a constitutional complaint about the length of the proceedings relating to custody and access rights, which was rejected by the Federal Constitutional Court on 6 October 2000.
On 4 September 2000 the Frankfurt Court of Appeal rejected the first applicant’s complaint and suspended her access rights until the termination of the main proceedings on parental authority before the Lauterbach District Court, or until 31 December 2001 at the latest.
The Court of Appeal observed, at the outset, that a parent’s right of access to his or her child was protected by Article 6 § 1 of the Basic Law.
If it was not possible to find an agreement on visiting contacts, the courts were called upon to reach a decision which respected both the constitutionally guaranteed rights of the parent – in the present case the mother – and the child’s welfare. The remainder of the decision reads as follows:
“In the course of the instant proceedings, a curator ad litem was appointed pursuant to section 50 of the Law on Non-Contentious Proceedings, and both Angelo and the applicant were repeatedly heard by the rapporteur (see the minutes of the hearings held on 11 February, 2 March, 11 April and 9 May 2000). It became clear during all the personal hearings that Angelo presently does not wish any contacts to his mother and that he only took part in the meetings because these had been ordered by the court. This is not disproved by the fact that Angelo’s second meeting with his mother, which took place on 11 April 2000, was less tense than the previous meeting on 2 March 2000. The child expressed during all the hearings that he felt at ease in the foster family, where he felt understood. Conversely, his attitude demonstrated that he did not have any confidence in his mother, but was sceptical towards her.
He frequently declared that his mother was only lying to him. The present rejection of his mother culminated when Angelo absconded on the date of the third scheduled meeting on 15 May 2000. The senate acknowledges that this meeting was scheduled by the rapporteur against Angelo’s will during the hearing on 9 May 2000.
The rapporteur, the foster parents and the curator hoped that Angelo would attend that meeting because of the court order. Angelo’s resistance, which was expressed by his running away, induces the senate to fear that it would lead to uncontrollable actions, including auto-aggressiveness, if he was forced to further personal contacts.
The mother’s right to personal access has to cede in view of this irrational behaviour. The senate acknowledges that the right to personal access forms part of the natural parental rights and of the parental responsibility. However, this right meets its limit at a point where there exists the danger of the child’s causing damage to himself (see section 1684 § 4 of the Civil Code).
The rapporteur has tried to re-establish personal contacts between mother and child and arranged several meetings. [The rapporteur] tried to convince the mother to refrain from raising reproaches against third persons (curators, foster parents, experts, therapists, judge, Angelo’s half-sister), and to try instead to keep these questions away from Angelo and to accept during the conversation with her child that the latter presently lived with the foster family, where he felt at ease. During the hearings held on 2 March and 11 April 2000 this strategy succeeded as long as the rapporteur was present and controlled the course of conversation. The mother’s behaviour during the few minutes she spent alone with Angelo led to defence reactions, he closed himself up and did not see any other resort than running away.
Having regard to the above, the mother’s complaint had to be rejected as being unfounded. It is presently only possible to stabilise the child if Angelo is not forced to any personal contact with his mother and if he is given the opportunity to stabilise himself in an environment which he considers as safe.
The senate considers that access rights have to be suspended for a longer period of time, as the pressure the child is exposed to in the course of the proceedings on parental authority requires protecting him for further months. Taking into account that Angelo’s individual rights are limited by the parental rights and that he is obliged to respect his mother’s right of access to him, it appears appropriate to limit the suspension of access rights until the end of custody proceedings, or at the latest until December 2001.”
This decision was served on the applicant’s counsel on
10 September 2000.
By telefax of 9 October 2000 the first applicant lodged a constitutional complaint.
On 23 October 2000 an administrative officer of the Federal Constitutional Court informed the applicant that her constitutional complaint appeared to have been lodged out of the statutory time-limit of one month, as the original version and annexes reached the constitutional court only on 12 October 2000.
On 6 December 2000 the Federal Constitutional Court refused to admit this constitutional complaint for adjudication without giving any reasons.
4. Subsequent developments
Since July 2002 the second applicant stayed with his natural father.
On 26 September 2002 the Alsfeld District Court transferred parental authority from the first applicant to the second applicant’s father.
On 10 January 2003, following the first applicant’s complaint, the Frankfurt Court of Appeal decreed that parental authority remained with the first applicant and ordered the father to return the child.
B. Relevant domestic law
Article 6 of the Basic Law (Grundgesetz) reads as follows:
“...
(2) Care and upbringing of children are the natural right of the parents and a duty primarily incumbent on them. The State watches over the performance of this duty.
(3) Separation of children from the family against the will of the persons entitled to bring them up may take place only pursuant to a law, if those so entitled fail in their duty or if the children are otherwise threatened with neglect.”
Section 1666 § 1 of the Civil Code provides that the family courts shall be entitled to take the necessary measures to avert dangers to the physical, mental or spiritual welfare of a child caused by an abusive exercise of parental custody, by neglecting the child or by unintentional failure of the parents if the parents are unwilling or unable to avert the dangers.
Pursuant to section 1666a § 1 of the Civil Code measures which entail a separation of the child from the parents are only permitted if the danger cannot be averted by other means, including assistance by public authorities.
The second sub-paragraph of Article 1666a provides:
“Full [parental] responsibility may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger.”
According to section 1684 of the Civil Code, a child is entitled to have access to his or her parents; each parent is obliged to have contact with, and entitled to have access to, the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare.
A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be jeopardised (section 1684 § 4).
COMPLAINTS
1. The applicants complained under Articles 8 and 6 of the Convention about their separation. They further complained about the excessive length of the proceedings.
2. The applicants further invoked Articles 3 and 4 of the Convention and a number of Articles of the United Nation’s Convention on the Rights of the Child.
THE LAW
A. Complaints about the conduct and outcome of the proceedings
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The applicants complained that the withdrawal of parental authority and the suspension of access rights violated their right to respect for their family life, as guaranteed by Article 8 of the Convention, which provides:
“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.”
1. Exhaustion of domestic remedies
The Government contended that the applicants had not exhausted domestic remedies as required by Article 35 § 1 of the Convention, as the first applicant did not pursue her further appeal against the Regional Court’s decision regarding the temporary withdrawal of parental authority. Furthermore, she failed to lodge her constitutional complaint in accordance with the formal requirements. They further pointed out that the second applicant did not avail himself of any domestic remedies, even though he was represented by a curator and could have taken procedural measures on his own motion on reaching the age of fourteen.
The applicants contested this view. They alleged that the further appeal against the temporary withdrawal of parental authority had lacked prospect of success, as the interim proceedings were necessarily followed by the main proceedings. The first applicant had lodged her constitutional complaint in accordance with the legal provisions. The second applicant had not been able to contest the impugned decisions, as he had been misinformed and denied legal aid.
The Court recalls that, whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34).
The Court observes, at the outset, that the second applicant did not avail himself of any legal remedies against the decisions taken on parental authority and access rights. Having regard to all the material in its possession, the Court does not consider that the second applicant, who was represented by a curator ad litem before the domestic courts, was in any way prevented from availing himself of such remedies. It follows that the second applicant cannot be regarded as having exhausted domestic remedies.
His complaints before the Court against the domestic decisions on parental authority and access rights must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
As regards the first applicant, the Court notes that the first applicant lodged a further appeal against the Fulda Regional Court’s decision on custody dated 2 July 1998, which she withdrew on 20 August 1998.
The Court further observes that the Court of Appeal would have been competent to quash the impugned interim order on the first applicant’s appeal. Under these circumstances, the Court is not convinced that the first applicant’s further appeal would have lacked prospect of success, irrespective of the fact that the main proceedings were still pending. Accordingly, the Court considers that the first applicant failed to exhaust domestic remedies with respect to her complaint against the withdrawal of parental authority by interim order. It follows that this complaint is also inadmissible and has to be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
The Court does not consider it necessary in the present case to rule on the Government’s further objections since, in any event, it considers that the first applicant’s complaint against the suspension of access rights is inadmissible for the reasons set out below.
2. The suspension of access rights
With regard to the substance of her complaint against the temporary suspension of access rights, the first applicant maintained that the domestic courts based their decisions on false assumptions. The District Court judge, the Youth Office, the foster family and the second applicant’s half-sister J had collaborated in an attempt to place the second applicant permanently with the foster family, as was demonstrated by the certificate issued by the Youth Office on 10 March 1998.
The domestic courts had based their decisions on false testimony and had purposefully refused to hear witnesses proposed by the applicant. It was not true that the first applicant had left the second applicant with his half-sister while leaving on holidays. She had, on the contrary, informed the Youth Office that the second applicant should only stay there for one night. It was further not true that the second applicant did not have the wish to see his mother during the time he spent with the foster family. The child had been lied to and manipulated against his mother and suffered from the parental alienation syndrome (PAS), a fact which the domestic authorities failed to take into account. Furthermore, he had suffered ill-treatment in the foster family, where his proper medical care had not been assured. The first applicant further complained about having been denied access to the relevant case files.
The Government contested these submissions. According to the Government, the first applicant’s right to respect for her family life had not been violated. While conceding that the suspension of access rights interfered with the applicant’s rights under Article 8 § 1 of the Convention, this interferences had been justified within the meaning of paragraph 2 of that same Article. The measure taken had been necessary in order to avert danger from the second applicant’s welfare.
The Government contested that the domestic courts based their decisions on wrong assumptions. On the contrary, by carefully ascertaining and weighing up the facts they struck a fair balance between the interests of all those concerned. According to the Government, the domestic courts had to take into consideration the fact that the second applicant rejected any form of contact with his mother. The Government further pointed out that the Court of Appeal endeavoured to promote contacts between the applicants.
The Court observes that the parties agree that the temporary suspension of access rights interfered with the first applicant’s right to respect for her family life, as guaranteed by Article 8 § 1. The Court, having regard to its case-law, endorses this assessment.
Any such interference will constitute a violation of this Article unless it is in accordance with the law, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”.
The Court accepts that the decisions at issue had a basis in national law, namely section 1684 § 4 of the Civil Code, and that they were aimed at protecting the best interest of the child, which is a legitimate aim within the meaning of paragraph 2 of Article 8 (see Keegan v. Ireland, judgment of
26 May 1994, Series A no. 290, p. 20, § 44 and Görgülü v. Germany, no. 74969/01, § 37, 26 February 2004).
It therefore remains to be determined whether the decisions could be regarded as “necessary in a democratic society”.
a) General principles
In this respect, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify these measures were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin and Sommerfeld v. Germany [GC], nos. 30943/96 and 31871/96, § 64 and § 62 respectively, ECHR 2003-VIII; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 71, ECHR 2001-V; Görgülü, cited above, § 41 and Wildgruber v. Germany (dec.), no. 32817/02, 16 October 2006).
Furthermore, a fair balance must be struck between the interests of the child and those of the parent and, in striking such a balance, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular, the parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000‑VIII and T.P. and K.M., cited above, § 71).
The Court finally recalls that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see T.P. and K.M. , cited above, § 72; Sahin, cited above, § 68 and Sommerfeld, cited above, § 66).
b) Application of these principles in the present case
With regard to the reasons adduced by the domestic courts for suspending the first applicant’s access rights, the Court observes that the Lauterbach District Court and the Frankfurt Court of Appeal considered that the second applicant’s wish not to see his mother had to be taken seriously and that forced visiting contacts could jeopardise the child’s welfare.
The Court of Appeal, basing its decision on several personal hearings as well as on expert opinion, considered that forced meetings could lead to uncontrolled behaviour, including auto-aggressiveness, on the second applicant’s side.
The Court further observes that both the District Court and the Court of Appeal made intensive efforts to reconcile the applicants. The Court notes, in particular, that the judge rapporteur of the Court of Appeal arranged and attended two meetings between the applicants, and personally tried to convince the second applicant to give up his resistance against contacts to his mother, as is demonstrated by the minutes of the hearing held before the Frankfurt Court of Appeal on 9 May 2000. Further envisaged encounters could not take place because of the second applicant’s enduring resistance. The Court appreciates these efforts to promote the applicants’ reunion.
The Court bears in mind that a strict scrutiny of the reasons adduced by the national courts is called for as regards restrictions placed by them on parental rights of access. However, the Court observes that the national courts, following several hearing of the parties and after careful examination of the facts, including the hearing of expert opinion, gave priority to the second applicant’s interests, which overrode the first applicant’s interest in visiting him. Having regard to the first applicant’s constitutionally guaranteed parental rights, the Court of Appeal saw fit to put a time-limit to the suspension of visiting rights. Under these circumstances, the Court is satisfied that the national courts have based their decisions to deny the first applicant access to her son on relevant grounds and duly considered both applicants’ interest in the protection of their family life.
Turning to the procedural aspect of the case, the Court notes that the first applicant, who was represented by counsel throughout the proceedings, had ample opportunity to submit her arguments to the courts. The District Court heard the applicants, a representative of the Youth Office, the foster mother and the psychological expert F in person. The Court of Appeal based its decision on the content of the case-file and on a fresh hearing of the parties. Furthermore, the rapporteur attended two encounters between the applicants. The Court finally observes that the second applicant was represented by a curator ad litem and that one of the first applicant’s counsels had been granted access to the case file in September 1998.
Under these circumstances, the Court considers that the first applicant’s rights had been duly safeguarded and that the measures taken by the domestic courts were justified under paragraph 2 of Article 8 of the Convention.
It follows that the first applicant’s complaint under Article 8 concerning the access proceedings must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
II. THE REMAINDER OF THE FIRST APPLICANT’S COMPLAINTS
Referring to her reasoning under Article 8, the first applicant complained that the proceedings before the domestic courts had been unfair.
She invoked Article 6 § 1 of the Convention which, insofar as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
She further invoked Articles 3 and 4 of the Convention and a number of Articles of the United Nation’s Convention on the Rights of the Child.
Having regard to its finding under Article 8, the Court does not find it necessary to examine the applicant’s complaints under Article 6.
The Court has examined the first applicant’s further complaints as submitted by her. However, having regard to all material in its possession, including copies of the complete case files submitted by the Government, the Court considers that these complaints, to the extent that they are within its competence, do not disclose any appearance of a violation of the applicant’s Convention rights.
It follows that this part of the application must equally be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
B. The complaint about the length of proceedings
Invoking Articles 8 and 6 of the Convention, the applicants complained that the length of the proceedings had been excessive.
The Court sees fit to consider this complaint under Article 6 § 1 of the Convention which, insofar as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
I. EXHAUSTION OF DOMESTIC REMEDIES
The Government alleged that the first applicant had failed to exhaust domestic remedies, as she did not lodge an action for damages pursuant to section 839 of the Civil Code in conjunction with Article 34 of the Basic Law. The second applicant did not avail himself of any domestic remedies.
The applicants contested this view.
The Court reiterates that it has found in the Sürmeli case that neither an action for damages, nor any other of the procedural means proposed by the Government could be regarded as remedies capable of affording adequate redress for the excessive length of proceedings (see Sürmeli v. Germany [GC], no. 75529/01, §§ 113-115, ECHR 2006‑...). The Court considers that the Government’s submissions in the instant case do not justify reaching a different conclusion. It follows that the applicants have to be regarded as having exhausted domestic remedies.
II. THE LENGTH OF THE PROCEEDINGS
1. Custody proceedings
The Government alleged, at the outset, that the length of the proceedings relating to the interim order could not be regarded as excessive.
While conceding that the length of the main proceedings appeared at first sight too long, the Government submitted that the length of these proceedings was still acceptable having regard to the specific circumstances of the instant case. They submitted, in particular, that the District Court endeavoured to expedite the proceedings, but had been either required to await appeal decisions for reasons of procedural economy, or had been unable to act since the case files were elsewhere. They further pointed out that in the period in which decisions were taken regarding the first applicant’s motion for bias, the competent judge was only permitted to take such decisions which could not be delayed. The Government finally pointed out that the applicant lodged appeals against each of the decisions taken by the District Court in the main proceedings.
The applicants contested these arguments.
As regards the interim proceedings, the period to be taken into consideration began on 14 January 1998, when the Youth Office lodged the request temporarily to withdraw the first applicant’s parental authority, and ended on 20 August 1998, when the first applicant withdrew her further complaint against the Fulda Regional Court’s decision of 2 July 1998.
It thus lasted approximately seven months for three levels of jurisdiction.
Assuming that the interim proceedings fall to be examined under Article 6 § 1 and that the complaint complied with the six-months’ time-limit, the Court considers that the length of these proceedings was acceptable.
As regards the main proceedings, the period to be taken into consideration began also on 14 January 1998 and ended on 29 January 2001 when the Lauterbach District Court revoked its decision of 15 January 1998 and restored parental authority to the first applicant. It thus lasted approximately three years for one level of jurisdiction.
The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). In cases relating to civil status, special diligence is required in view of the possible consequences which the excessive length of proceedings may have, notably on enjoyment of the right to respect for family life (see Laino v. Italy [GC], no. 3158/96, § 18, ECHR 1999-I).
The Court takes note that the proceedings concerning parental authority over the second applicant involved important and sensitive questions relating to the welfare of the child which required careful consideration and investigation by the courts. Furthermore, the District Court had to hear all interested parties, including the applicants themselves, the second applicant’s half-sister, the foster mother, the Youth Office and the second applicant’s curator ad litem. It further had to raise evidence by expert opinion. The Court also observes that the incidents which led to the original issue of the interim order remained controversial between the parties and necessitated thorough examination of the facts. The case was finally complicated by the parallel access proceedings. Taking into account that the second applicant’s attitude towards contacts to the first applicant were also to be taken into account in the custody proceedings, the access proceedings were bound to have an impact on the proceedings concerning parental authority. In these circumstances, the proceedings in question must be considered as very complex.
Having regard to the applicants’ conduct, the Court notes that the first applicant contested each of the procedural decisions taken by the District Court. The applicant lodged, in particular, two motions for bias against the District Court judge, which she pursued through two instances, thus causing a delay of more than eight months. Furthermore, the first applicant unsuccessfully contested the appointment of both experts and of the second applicant’s curator ad litem. Even though she had the right to bring these motions, several intermediate decisions had to be taken, whereby the proceedings were prolonged. Consequently, the first applicant contributed to a considerable extent to the length of the proceedings.
As regards the conduct of the proceedings by the domestic courts, the Court observes that the Lauterbach District Court awaited the outcome of the appeal proceedings against its interim order before pursuing the main proceedings. Furthermore, the District Court awaited the outcome of the attempts to instigate contacts between the applicants in the parallel access proceedings. Taking into account the fact that the child’s attitude towards his mother had to be considered when deciding on parental authority, the Court considers this approach not to be unreasonable. Other than that, the Court finds that they are no considerable periods of inactivity on the part of the District Court. In particular, that court had to await the outcome of the first applicant’s motions for bias on two occasions and, as has already been mentioned, a number of intermediate decisions had to be taken by the appellate courts.
With regard to what was at stake for the applicants, the Court notes that the proceedings concerned parental authority over an adolescent who remained throughout the proceedings in the care of a foster family.
The Court, referring to its consistent case-law, recalls that it is essential, in particular for child care cases, to be dealt with speedily (see, inter alia, Nuutinen v. Finland, no. 32842/96, § 110, ECHR 2000-VIII; Niederböster v. Germany, no. 39547/98, § 39, ECHR 2003-IV). The Court notes, however, that in the present case the second applicant from the outset and consistently throughout the proceedings refused any contact to his mother and that the domestic courts did not find any indication that this attitude had been provoked by third persons. Under these circumstances, the second applicant’s attitude did not permit a rapid reunion of the family.
In the light of the criteria laid down in its case-law and having regard to the particular circumstances of the case, the Court concludes that the overall length of the proceedings did not exceed a “reasonable time”. Accordingly, there has been no violation of Article 6 § 1 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. Access proceedings
As regards the access proceedings, the period to be taken into consideration began on 5 May 1998, when the first applicant lodged her request to be granted access rights with the Lauterbach District Court, and ended on 6 December 2000, when the Federal Constitutional refused to admit the first applicant’s constitutional complaint. It thus lasted two years and five months for three levels of jurisdiction.
The Government considered this length to be acceptable, taking into account the circumstances of the case.
The applicant contested this view.
The Court considers, at the outset, that the proceedings were of a considerable complexity, which was mainly owed to the fact that the second applicant opposed any contact to his mother. Furthermore, they required the taking of expert opinion.
With regard to the first applicant’s conduct, the Court notes that the applicant rejected the court-appointed expert and that her motion for bias lodged in the custody proceedings also delayed the proceedings at issue, as the District Court judge was prevented from promoting the proceedings as long as the motion for bias brought out against her was pending.
As regards the domestic courts’ conduct, the Court appreciates, as already pointed out above, that both the District Court and the Court of Appeal made intensive and time-consuming efforts to overcome the second applicant’s resistance to visiting contacts. With this aim, the District Court appointed a psychological expert to mediate between the first applicant and the foster parents. The judge rapporteur of the Court of Appeal arranged and attended several meetings between the applicants.
Even bearing in mind the special diligence which is required in proceedings relating to access rights, the Court considers that the length of the proceedings were justified by the specific circumstances of the instant case.
It follows that also this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
In the view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy