Information Note on the Court’s case-law 39
February 2002
Kutzner v. Germany - 46544/99
Judgment 26.2.2002 [Section IV]
Article 8
Article 8-1
Respect for family life
Separation of children from their parents and restrictions on contacts, on account of the latter’s alleged lack of intelllectual capacity to bring up their children properly: violation
Facts – The two applicants have two daughters who were born in 1991 and 1993. The District Youth Office applied to the Guardianship Court for an order withdrawing their parental rights over their daughters after a report had concluded that owing in particular to their impaired mental development they were incapable of bringing up their children. The Guardianship Court appointed an expert in psychology to draw up a report. It made a provisional order withdrawing the applicants’ rights to make decisions as to where the children should live or what medical care they should receive, primarily on the ground that they did not have the necessary intellectual capacity to bring up their daughters. The children were placed in a children’s home. The director of the home expressed the opinion that the applicants should no longer have custody of the children. The expert concluded in the report that the applicants were not fit to bring up their children as they did not possess the necessary intellectual capacity. On the basis of that report and after hearing the applicants, the Guardianship Court made an order withdrawing their parental rights over the two girls, who were then placed in separate, unidentified foster homes. The applicants lodged an appeal with the Regional Court against the decision of the Guardianship Court. The Regional Court appointed a second expert in psychology who also submitted a report that was unfavourable to the applicants. The Regional Court dismissed the appeal. An appeal by the applicants against that decision was dismissed by the Court of Appeal, and the Federal Constitutional Court dismissed a subsequent appeal. However, a number of expert witnesses instructed privately by an association that defended children’s rights proved favourable to the applicants and expressed the view that the children should be returned to their family and that social services should provide additional educational support. Owing to the fact that that their daughters had been placed in unidentified foster homes, the applicants were unable to see them during the first six months of their placement. At that point the Regional Court, on an appeal by the applicants, made an order granting them visiting rights of one hour monthly. Contrary to the Regional Court’s order, a number of people other than the applicants and their children were present during the visits. The applicants obtained permission from the Guardianship Court to accompany their eldest daughter on her return to school at the start of the school year but were refused a two-hour visit at Christmas.
Law – Article 8: The continued placement of the applicants’ children in foster homes and the restrictions on contact between the parents and their children amounted to an interference with the applicants’ right to respect for their family life. The measures in question were, however, prescribed by law and pursued the legitimate aims of protecting health and morals and the children’s “rights and freedoms”. As to whether the measures were necessary in a democratic society, both the order for the children’s placement and the implementation of such a radical measure separating them from their parents had been inappropriate. The children had been given educational support at their parents’ request; the experts in psychology appointed by the courts had expressed contradictory opinions; the psychologists instructed privately, as well as a number of family doctors, had urged that the children be returned to their family of origin and had advocated additional educational support; lastly, it had not been alleged that the children had been neglected or ill-treated by the applicants. Accordingly, the national authorities and courts had not given sufficient consideration to the implementation of additional or alternative measures that were less radical than separation. Furthermore, the children’s best interests had to be taken into account. In the instant case the children, without being interviewed by a judge, had been completely separated from their family and from each other for a long period as they had been placed in separate, unidentified, foster homes. The parents’ applications to the courts for visiting rights had been systematically refused and, once granted, had been extremely limited in scope. Severing contact in that way and imposing such restrictions on visiting children of such a tender age could only lead to increased alienation of the children from their parents and from each other. Accordingly, although the reasons given by the national authorities to justify such a serious interference were relevant, they were not sufficient.
Conclusion: violation (unanimously).
Article 41: The Court held that the applicants had sustained indisputable non-pecuniary damage as a result of their separation from their two daughters and the restrictions on their visiting rights, and awarded them jointly the sum of EUR 15,000 and a specified sum for costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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