FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 1628/03
by Jutta KÖHLER
and Julia KÖHLER
against Germany
The European Court of Human Rights (Fifth Section), sitting on 5 February 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 7 January 2003,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Ms Jutta Köhler, is a German national who was born in 1962 and lives in Nuremberg, Germany. She lodged the application also in the name of her daughter Julia Köhler (second applicant), a German national born in 1996.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background to the case
The second applicant, Julia Köhler (J.), is the daughter of the first applicant and E. She was born out of wedlock on 2 January 1996. Pursuant to the statutory provisions (section 1626a § 2 of the Civil Code) the first applicant had sole custody of J. who has been living with her mother since her birth.
At the age of three, J. was diagnosed with a general development and autistic disorder and with retrogressive speaking capacities. She was not admitted to an ordinary nursery school.
2. Custody proceedings
a. The District Court’s decision on custody
On 31 August 2001 the Nuremberg Youth Office lodged a motion with the Nuremberg District Court (no. 110 F 02973/01) to restrict the first applicant’s custodial right to decide on her daughter’s whereabouts and health care and to appoint the Youth Office as special curator (Ergänzungspfleger) to deal with these issues.
On 26 November 2001 the Nuremberg District Court appointed
Ms L.-K., a lawyer, as J.’s curator ad litem to represent her interests the custody proceedings.
On 28 December 2001 the Nuremberg District Court refused to change its decision to appoint a curator ad litem on the first applicant’s motion, arguing that no appeal lay against such an interim decision. In any event, the appeal would also be ill-founded, as the first applicant failed to give convincing reasons against Ms L.-K.’s appointment. On 17 January 2002 the Nuremberg Court of Appeal dismissed the first applicant’s appeal against this decision.
On 18 February 2002 the Nuremberg District Court, having heard the first applicant, her daughter’s curator ad litem and a representative of the Youth Office, restricted the first applicant’s sole custody over her daughter pursuant to section 1666 of the Civil Code. It ruled that the first applicant was no longer entitled to choose which nursery school or school her daughter should attend and had no right to determine her daughter’s whereabouts. It appointed the Nuremberg Youth Office as special curator to decide on these issues. The court authorised the Youth Office to enforce the child’s surrender, if necessary with the help of the police, in order to secure the execution of the court’s decision.
Having regard to the report of a doctor working for the city of Nuremberg dated 7 February 2002, earlier medical reports and its own attempt on 10 January 2002 to hear J. (with whom, however, a communication had proved impossible), the District Court found that it was almost certain that J. suffered from a severe development disorder and showed clearly autistic behaviour. Therefore, J. was in need of care in a specialised institution. The first applicant was acutely endangering her daughter’s mental welfare by refusing to accept her daughter’s illness and to send the child to an institution responding to her needs. Instead, the first applicant insisted on sending her daughter to an ordinary (nursery) school or to a school merely treating speaking irregularities. Her custody of J. therefore had to be restricted in respect of these issues.
The District Court observed that it was in J.’s best interests to attend an institution individually educating children with autistic behaviour while living with her mother. However, should the first applicant continuously refuse to send her daughter to a suitable institution it was necessary, as a last resort, to separate mother and daughter and to place J. in a home providing her with the necessary individual care.
On 3 April 2002 the Nuremberg District Court dismissed the first applicant’s motions to rectify the protocol of the court’s hearing. It found that the changes proposed by the first applicant concerned additional information she had not yet given in the hearing itself.
On 16 May 2002 the Nuremberg Court of Appeal dismissed the applicant’s appeal against the District Court’s decision dated 3 April 2002, as no appeal lay against this decision.
On 30 July 2002 the Federal Constitutional Court refused to admit the applicants’ constitutional complaint against the decisions of 26 November 2001, 28 December 2001, 3 April 2002 and 16 May 2002 (no. 1 BvR 1067/02).
b. The Court of Appeal’s decision on custody
In July 2002 J. attended test lessons in an ordinary school together with her mother and grandmother. At the outset J. was crying and shouting loudly and refused to stay in the classroom. She only calmed down after she had been running up and down the corridor with her mother and both had been shouting for twenty minutes. Back in the classroom, she refused to follow any of the teacher’s instructions and did not react to any questions. She then wrote the alphabet on the blackboard and, when interrupted, had a rage attack and was jumping around in the classroom to calm down. She did not speak a single word during the lessons and did not establish contact with anyone. In further test lessons at a later date J. was only running around in the classroom, did not react to any instructions and frightened other children by running closely towards them uttering inarticulate sounds. In view of this, the school director and teachers informed the first applicant that it was impossible to educate J. and respond to her needs in an ordinary school.
On 19 August 2002 J. was taken away from her mother with the help of the police on the motion of the Youth Office, acting as J.’s special curator, as her mother had refused to allow her to attend a specialised school taking account of her educational needs. She was placed in an open youth home
– the location of which was not disclosed to the first applicant – in which she subsequently attended a school furthering its pupils’ learning progress individually.
On 21 August 2002 the Nuremberg Court of Appeal, having heard the first applicant, the second applicant’s curator ad litem and a representative of the Youth Office, dismissed the applicant’s appeal against the District Court’s decision dated 18 February 2002, which thereby became final.
c. Proceedings before the Federal Constitutional Court and further factual developments
On 16 September 2002 the applicants lodged a complaint with the Federal Constitutional Court (no. 1 BvR 1792/02) against the impugned decisions of the District Court dated 18 February 2002 and of the Nuremberg Court of Appeal dated 21 August 2002.
In at least one letter dated 22 January 2003 the Youth Office invited the first applicant to contact the Youth Office in order to set up a visiting arrangement. However, no contacts between mother and daughter could be built up.
A subsequent action for damages brought by the first applicant with the Nuremberg civil courts against J.’s curator ad litem because of her conduct in the custody proceedings was to no avail. The Federal Constitutional Court refused to admit the first applicant’s constitutional complaint concerning these decisions on 25 August 2005 (no. 1 BvR 1439/05).
On 13 October 2006 the Federal Constitutional Court refused to admit the applicants’ constitutional complaint (no. 1 BvR 1792/02) against the decisions of 18 February 2002 of 21 August 2002.
3. Surrender proceedings
a. Proceedings before the District Court
On 23 February 2004 the first applicant lodged a motion with the Nuremberg District Court (no. 110 F 610/04) to be surrendered her daughter. She argued that the separation from her and her daughter’s placement in a youth home constituted an illegal deprivation of liberty. Moreover, her daughter’s right to be integrated in an ordinary school as protected by the Constitution had been breached.
In its report dated 3 March 2004 the Youth Office stated that J. had settled well in the institution for disabled children she lived in since August 2002. While her father was visiting her regularly since May 2003 her mother had not reacted to several attempts made in letters addressed to her by the Youth Office in 2003 to re-establish contacts with her daughter and showed no real interest in being informed about her daughter’s development. Sending J. back to live with her mother would not be in J.’s best interests.
On 15 April 2004 the Nuremberg District Court held a hearing, in which it heard the first applicant, a representative of the Youth Office and the child’s father E. It did not hear J. in person, because, as confirmed by E., a verbal communication with her was impossible, as had also been found by the court itself in its hearing on 10 January 2002 in the custody proceedings.
On 27 April 2004 the Nuremberg District Court dismissed the first applicant’s motion to surrender her daughter to her. It found that the first applicant did not have a right to be rendered her daughter pursuant to section 1632 § 1 of the Civil Code. The court noted that the District Court’s decision dated 18 February 2002 restricting the first applicant’s custody of her daughter had become final. The Youth Office, acting as J.’s special curator, had therefore been entitled to order her full-time placement in a home and to take the child away from her mother, as had been done on 19 August 2002. In particular, a child’s right to attend an ordinary school was subject to his or her physical and mental ability to meet its demands. As had been found by the civil courts in previous decisions, J. could not meet these demands due to her illness and could not be expected to do so in the future.
The District Court further found that there was nothing to indicate that it was in J.’s best interests to re-award custody in all respects to her mother. In particular, J.’s placement in a youth home which furthered her adequately in view of her illness had clearly proved to be beneficial to her. As long as her mother was unable to accept that her daughter would be absolutely overstrained in and could not be integrated in an ordinary school, the child could not be taken care of in her mother’s home.
In an obiter dictum the District Court noted that it could not understand why the Youth Office refused the first applicant any contacts with her daughter whose whereabouts still had not been disclosed to her. It considered it indispensable for the child’s welfare to organise visits of her mother as soon as possible.
b. Proceedings before the Court of Appeal
On 17 June 2004 the Nuremberg Court of Appeal (no. 7 UF 1604/04), following the first applicant’s appeal, heard the first applicant, J.’s curator ad litem and a representative of the Youth Office. The latter stated that she had now informed the first applicant about her daughter’s whereabouts and offered to organise contacts either at the first or the second applicant’s place of residence. The first applicant stated that she had not visited her daughter yet because she feared that the Youth Office could again assert that she was endangering her daughter’s welfare which, in her view, amounted to an allegation that she had abused or ill-treated her daughter.
On 18 June 2004 the Nuremberg Court of Appeal dismissed the first applicant’s appeal as ill-founded. It found that the Youth Office had acted legally in taking away the child from her mother and placing the child in a youth welfare institution, as its decision could be based on the District Court’s decision dated 18 February 2002.
The Court of Appeal observed that pursuant to the statements of a child psychiatrist dated 4 June 2004 it was clear that J. showed severe signs of autism so that intensive care was necessary which her mother could not provide and which made it impossible for her to attend an ordinary school for the time being. As the first applicant was unable to understand her daughter’s needs it was necessary to uphold the partial deprivation of her custody.
c. Proceedings before the Federal Constitutional Court
On 7 July 2004 the first applicant lodged a complaint with the Federal Constitutional Court against the decisions of the District Court dated 27 April 2004 and of the Court of Appeal dated 18 June 2004. She argued in particular that the continuous restriction of her custody and the failure to surrender her daughter, who was kept in a care institution and had to attend a school for disabled children, violated her parental rights and her daughter’s right to liberty and education as guaranteed by the Basic Law.
On 25 November 2004 the Federal Constitutional Court refused to admit the first applicant’s constitutional complaint (no. 1 BvR 2248/04).
On 13 October 2006 the Federal Constitutional Court refused to admit another constitutional complaint lodged by the applicants against, inter alia, the decisions of the Nuremberg District Court dated 27 April 2004 and of the Nuremberg Court of Appeal dated 18 June 2004 (1 BvR 1416/04).
4. Proceedings concerning the father’s access to the second applicant
On 8 December 2002 E., the father of the second applicant, brought a motion with the Nuremberg District Court (no. 110 F 4498/02) to be granted access to his daughter.
On 20 February 2003 the Nuremberg District Court dismissed the first applicant’s motion for bias against District Court judge A. On 26 March 2003 the Nuremberg Court of Appeal dismissed the first applicant’s appeal against this decision as ill-founded. In the court’s view, the fact alone that judge A. had already sat in earlier cases brought by the first applicant in the District Court in accordance with the court’s internal assignment of functions did not warrant the conclusion that he was biased. The applicant’s constitutional complaint against these decisions was to no avail (decision no. 1 BvR 726/03 of 22 September 2004).
On 24 April 2003 the Nuremberg District Court, having heard the first applicant and the child’s father E. and having consulted the Youth Office, granted E. a right of access to his daughter for four hours once in three weeks.
On 27 May 2003 the Nuremberg Court of Appeal dismissed the first applicant’s appeal against this decision as inadmissible. It argued that the first applicant was not prejudiced by the decision as she had expressly claimed not to object to the access order, but merely complained against the court’s reasoning referring to her daughter as being a “sick child”.
On 22 September 2004 the Federal Constitutional Court refused to admit the first applicant’s constitutional complaint against the latter decision (no. 1 BvR 1537/03).
5. Criminal proceedings
On 10 July 2003 the Nuremberg Court of Appeal dismissed as inadmissible the applicants’ motion for a judicial decision on the refusal of the Nuremberg General Public Prosecutor to institute criminal proceedings for fraud against P. It observed that the applicants failed to set out in a comprehensible manner facts which could warrant the conclusion that P., a representative of the Nuremberg Youth Office, had committed fraud.
On 17 November 2003 the Federal Constitutional Court refused to admit the applicants’ constitutional complaint (no. 2 BvR 1297/03).
On 19 November 2003 the Nuremberg Court of Appeal dismissed as inadmissible the applicants’ motion for a judicial decision on the refusal of the Nuremberg General Public Prosecutor to institute criminal proceedings for having threatened another person with the commission of a crime against M., O., H. and L.
It found that the applicants’ motion was in any event ill-founded as there were no sufficient grounds for suspicion that an offence had been committed by the impugned representatives of the Youth Office and policemen when separating J. from her mother on 19 August 2002. A further identical motion lodged with the Court of Appeal was to no avail.
On 3 and 9 March 2004 and on 24 November 2004 the Federal Constitutional Court refused to admit the applicants’ constitutional complaints against the Court of Appeal’s decisions (nos. 2 BvR 57/04, 2 BvR 2330/03 and 2 BvR 1806/04).
B. Relevant domestic law
Pursuant to section 1629 § 1 of the Civil Code, parental custody encompasses the right to legal representation of the child. It is uncontested that the scope of the right to legal representation is identical to the
– possibly restricted – scope of a parent’s right of custody.
Pursuant to section 1632 § 1 of the Civil Code, the right to personal custody comprises the right to claim the surrender of the child from anyone illegally withholding the child from one or both parents.
Section 1666 § 1 of the Civil Code provides that the family courts are 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 aids by public authorities.
COMPLAINTS
The first applicant complained in her own and in the second applicant’s name under Articles 1, 3, 4, 5, 6, 8, 13, 14 and 17 of the Convention, Articles 1 and 2 of Protocol No. 1 to the Convention and Article 2 of Prot. No. 4 to the Convention about the restriction of her parental custody, the separation from her daughter by force on 19 August 2002 and the failure to disclose her whereabouts for a considerable time. Moreover, the authorities failed to institute criminal proceedings against the persons responsible for their forcible separation.
The applicants further complained that the conduct of the proceedings in the civil courts had been unfair because the – partly biased – judges had failed to consider the first applicant’s arguments and evidence concerning the second applicant’s state of health and interests.
Moreover, the first applicant complained about having lost an action for damages against J.’s curator ad litem in the civil courts and about the reasoning of the decisions granting J.’s father a right of access.
Moreover, the continuous “solitary confinement” of the second applicant in a care institution and her treatment with medication since 19 August 2002 amounted to an illegal deprivation of liberty and to bodily injury.
The refusal to let the second applicant attend an ordinary school and sending her to a school for disabled children on the basis of wrong medical diagnoses breached the second applicant’s right to education and disregarded the first applicant’s right to have her daughter educated in an ordinary school in accordance with her convictions.
The first applicant further claimed that she was discriminated against as a single mother. The second applicant was discriminated as a child with speaking difficulties born out of wedlock.
THE LAW
A. Locus standi, Article 34 of the Convention
The first applicant raised several complaints also in the name of her daughter, the second applicant, thereby assuming standing to conduct the proceedings before the Court also in her daughter’s name.
The Court observes that the complaints made in respect of the second applicant essentially concern issues in respect of which the first applicant’s custody, and therefore her right to represent the second applicant under domestic law (section 1629 § 1 of the Civil Code), has been withdrawn and conferred to the Nuremberg Youth Office in the proceedings before the family courts at issue.
The Court recalls, however, that a person who is not entitled under domestic law to represent another may nevertheless, in certain circumstances, act before the Court in the name of the other person (see Sahin v. Germany (dec.), no. 30943/96, 12 December 2000). In particular, in the event of a conflict over a minor’s interests between a natural parent and the person appointed by the authorities to act as the child’s guardian, there is a danger that some of the child’s interests will never be brought to the Court’s attention and that the minor will be deprived of effective protection of his rights under the Convention. In such cases, even though the parent has been deprived of parental rights and this indeed is one of the causes of the dispute referred to the Court, the standing as natural parent is sufficient to afford the parent the necessary power to apply to the Court also on a child’s behalf (see Scozzari and Giunta v. Italy, [GC], nos. 39221/98 and 41963/98, § 138, ECHR 2000-VIII; Sahin, cited above; Siebert v. Germany (dec.), no. 59008/00, 9 June 2005).
The present case relates to a dispute between a mother who has been deprived of custody of her daughter notably on health care and educational issues, and the Youth Office as the court-appointed special curator to decide on these issues, about the child’s best interests in respect of precisely these subject-matters.
Consequently, the first applicant has standing as natural parent to act also on the second applicant’s behalf.
B. Complaints concerning the outcome and conduct of the custody proceedings
Invoking numerous Articles of the Convention, the applicants complained in respect of the custody proceedings notably about the restriction of the first applicant’s parental custody, which authorised their separation by force, and about the allegedly unfair conduct of the proceedings.
The Court considers that these complaints fall to be examined under Article 8 of the Convention which, in so far as relevant, reads:
“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 health or morals, or for the protection of the rights and freedoms of others.”
The first applicant notably claimed that the accusations against her of having endangered her daughter’s welfare, which amounted to an allegation that she had ill-treated her child, were unfounded. Due to her appeal, the District Court’s decision dated 18 February 2002 had not yet been enforceable at the time her daughter had been taken away from her by force which was therefore illegal.
The applicants further argued that the conduct of the custody proceedings had been unfair in that the courts had failed to take into consideration the first applicant’s arguments and evidence concerning the second applicant’s state of health and interests. In particular, the courts appointed the second applicant a curator ad litem and refused to take up information she submitted in the minutes of the hearing.
1. Whether there was an interference with the applicants’ right to respect for their family life and, if so, whether it was in accordance with the law and pursued a legitimate aim
The Court finds that the decisions of the German family courts restricting the first applicant’s sole custody over the second applicant, sanctioning their separation, interfered with the applicants’ right to respect for their family life as guaranteed by Article 8 § 1.
This interference will constitute a violation of Article 8 unless it is “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.
The decisions of the domestic courts in the custody proceedings had a basis in national law, namely section 1666 of the Civil Code.
They intended to safeguard the second applicant’s best interests by enabling her to attend a school tailored to her needs and were therefore aimed at protecting her “health or morals” and her “rights and freedoms”. Accordingly, they pursued legitimate aims within the meaning of Article 8 § 2.
2. Necessity of the interference in a democratic society
a. General principles
In determining whether the impugned interference was “necessary in a democratic society” the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them 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 T.P. and
K.M. v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001-V;
K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII;
Görgülü v. Germany, no. 74969/01, § 41, ECHR 2004-...).
The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake, such as the importance of protecting the child in a situation in which its health or development may be seriously at risk and the objective of reuniting the family as soon as circumstances permit. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see, amongst other authorities, T.P. and K.M. v. the United Kingdom, cited above, § 71; K. and T. v. Finland, cited above, § 155; Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002-I).
The Court further 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. v. the United Kingdom, cited above, § 72; Sahin v. Germany [GC], no. 30943/96, § 68, ECHR 2003-VII; Sommerfeld v. Germany [GC], no. 31871/96, § 66, ECHR 2003-VIII).
b. Application of the principles to the present case
In reviewing whether the domestic courts, in the exercise of their margin of appreciation, based their decisions restricting the first applicant’s sole custody over the second applicant on relevant grounds, the Court observes that according to the German courts, the first applicant was endangering her daughter’s mental welfare. She refused to accept that due to the severe signs of autism J. showed the child would be absolutely overstrained in an ordinary school. Therefore, J.’s attendance in a specialised school adequately furthering her in consideration of her condition had to be secured. In view of this, the Court is satisfied that the domestic courts’ decisions can be taken to have been made in J.’s best interests. The national courts therefore adduced relevant reasons to justify their decisions restricting the first applicant’s custody.
In determining whether these reasons were also “sufficient” for the purposes of Article 8 § 2 the Court notes that the impugned decisions, which sanction the splitting up of the applicants’ family, constitute a very serious interference with the right to respect for their family life. Such a step must be supported by sound and weighty considerations in the interests of the child concerned (compare also Scozzari and Giunta, cited above, § 148). The Court observes that the German courts had to strike a balance between both applicants’ interest in living together as a family and the interest of protecting the second applicant in a situation in which her mental welfare and development were at risk. In doing so, the courts were aware that it was possible for J., and indeed in her best interests, to attend an institution individually educating children with autistic behaviour while living with her mother. The separation of the applicants and J.’s placement in such an institution was only authorised as a measure of last resort as long as the first applicant kept refusing to secure her daughter’s attendance in a suitable school. The Court notes in this connection that, when placed in the youth home, the six-year-old J. had attained compulsory school age. Following test lessons during which she did not speak, refused to follow any instructions of the teachers and considerably disturbed the normal course of the classes, J. was not admitted to an ordinary school and therefore risked receiving no school education if she was not sent to a special school responding to her needs. In view of this, the Court is satisfied that the domestic courts based their decisions on weighty considerations in J.’s best interests.
The Court further notes in this connection that the placement of J. in the youth home had de facto severed the contacts between the applicants since then, with the first applicant not having been informed about her daughter’s whereabouts for more than one and a half years. It refers to its well-established case-law (cited above) calling for a strict scrutiny of restrictions on parental rights of access when a child has been taken into care. However, the District Court itself had stated in the subsequent surrender proceedings that it was indispensable for J.’s welfare to have contacts with her mother, who was subsequently informed on her daughter’s place of residence. The first applicant – who had never agreed to discuss the modalities of a
re-establishment of contacts with the Youth Office and had not lodged a separate motion herself with the courts to be granted access to her daughter – subsequently did not seize the opportunity to visit her daughter. In these circumstances, the consequence of the domestic courts’ decisions of severing the contacts between the applicants by J.’s placement in the youth home cannot be imputed to the domestic courts and does not render the decisions restricting the first applicant’s custody over the second applicant disproportionate.
A final consideration in deciding whether the grounds adduced by the national courts to justify the impugned measures were “sufficient” for the purposes of Article 8 § 2 is whether the decision-making process, seen as a whole, provided the applicants with the requisite protection of their interests. This was contested by the applicants, who argued that the courts had failed to consider the first applicant’s arguments and evidence concerning her daughter’s state of health and interests.
The Court notes that both the District Court and the Court of Appeal heard the first applicant in person and considered her submissions, which they addressed in their decisions. The District Court had also attempted to question J. with whom, however, a communication had proved impossible. Exactly in order to have her own interests represented in the proceedings, the child was appointed a curator ad litem who had been heard by the District Court and again by the Court of Appeal. The evidential basis for the decisions further comprised the submissions of a representative of the Youth Office, a recent medical report as well as earlier medical reports. In these circumstances the Court finds that the German courts’ procedural approach was reasonable, did not disclose an insufficient involvement of the applicants in the decision-making process and provided sufficient material to reach a reasoned decision.
In view of the foregoing, the Court concludes that in the circumstances of the present case the German courts based their decisions interfering with the applicants’ right to respect for their family life on relevant and sufficient grounds and struck a fair balance between the competing interests. The interference can therefore be regarded as “necessary in a democratic society”.
It follows that this part of the application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Complaints concerning the outcome and conduct of the surrender proceedings
In respect of the proceedings concerning the surrender of the second to the first applicant the applicants complained about their separation since 19 August 2002, the failure to surrender the second to the first applicant and the retention of the second applicant in a care institution without disclosing her whereabouts to the first applicant for a considerable time. Moreover, they considered that their arguments and evidence had not properly been taken into consideration in the proceedings before the family courts.
The Court finds that the applicants’ complaints raise essentially the same issues under Article 8 of the Convention as their complaints in respect of the custody proceedings. The decisions of the German family courts, upholding their separation, interfered with the applicants’ right to respect for their family life as guaranteed by Article 8 § 1. The decisions were based on section 1632 § 1 of the Civil Code, read in conjunction with section 1666 of the Civil Code, and were aimed at protecting the second applicant’s “health or morals” and her “rights and freedoms” by securing her school education.
The Court further notes that, according to the domestic courts’ findings, the first applicant persistently refused to secure her daughter’s attendance in a suitable school whereas the special education assured in the youth home had proved beneficial to J. Having also regard to its above findings, the Court is satisfied that the decisions of the family courts were therefore again based on weighty considerations in J.’s best interests. Moreover, there is nothing to suggest that the applicants were not sufficiently involved in the decision-making process in disregard of their right to respect for their family life. In addition to hearing the first applicant and a representative of the Youth Office, the District Court also heard J.’s father E., who, having seen J. regularly, confirmed that a communication with her was still impossible. The evidential basis for the decision on appeal further comprised the statements of J.’s curator ad litem as well as a report of a child psychiatrist on J.’s state of health and her ability to attend an ordinary school. With there being no relevant new developments, the decisions must be considered as having struck a fair balance between the competing interests. The interference with the applicants’ right to respect for their family life can thus be regarded as having been necessary in a democratic society.
It follows that this part of the application must also be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
D. Remainder of the applicants’ complaints
As set out above, the applicants further complained about the lack of impartiality of the judges of the family courts, the dismissal of an action for damages against J.’s curator ad litem, the retention and conditions of placement of the second applicant in the youth home, her duty to attend a school for disabled children and her medical treatment, the authorities’ failure to institute criminal proceedings because of their forcible separation, the reasoning of the decisions granting J.’s father a right of access and their discriminatory treatment.
The Court has examined the remainder of the applicants’ complaints as submitted by them. However, having regard to all material in its possession, the Court finds that, even assuming their compatibility ratione materiae and the exhaustion of domestic remedies in all respects, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that the remainder of the application must likewise be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
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