The European Commission of Human Rights sitting in private
on 15 May 1986, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (Art. 25);
Having regard to the application introduced on 18 April 1985 by
U. and G.F. against the Federal Republic of Germany and
registered on 10 June 1985 under file No. 11588/85;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as they have been submitted by the applicants
may be summarised as follows:
The applicants, a married couple, are German citizens resident in
Stade, Germany. Before the Commission they are represented by
Mr. Priebisch, a lawyer practising in Stade.
The first applicant, born in 1943, is a labourer. The second
applicant, born in 1948, is a housewife. She has one child born out
of wedlock who is currently under statutory guardianship. Four
children were born in wedlock.
As regards the eldest child, born in 1975, both applicants were
convicted for having caused bodily harm to this child in 1977. The
child was placed under statutory guardianship the same year and has in
the meantime been adopted by foster parents.
The present application concerns the three other children, born in
1977, 1978 and 1979 respectively, and living in foster families. The
applicants' previous application (No. 10841/84) to the Commission was
declared inadmissible on 2 October 1984. While it concerned the loss
of custody over these three children, it is not directly related with
the present application based on new and separate complaints.
On 22 October 1979, the Stade District Court (Amtsgericht) partially
withdrew the applicants' custody over these three children in order to
render possible the necessary medical treatment of the children.
On 7 December 1979, the court issued a temporary order (einstweilige
Anordnung) for the transfer of the applicants' custody to the District
Youth Office. Each child was then placed in a foster family.
After the transfer of the applicants' custody over these three
children to the Stade District Youth Office on 15 July 1981, the
respective foster families in the meantime expressed their wish to
adopt the children.
On 1 March 1984, following a request of the Stade District Youth
Office, the Stade District Court ordered that the applicants' consent
to an adoption of these children was replaced by a court order
according to S. 1748 para. 1 of the German Civil Code. S. 1748
para. 1 provides for the judicial replacement of a parent's consent to
adoption, if the parental duties to the child have been continuously
violated in a gross manner and if the omission of the adoption would
prove an unreasonable disadvantage to the child.
The Stade District Court proceeded from the fact that the applicants
had been convicted on the ground of having caused bodily harm to their
eldest child. Nevertheless they had refused educational assistance by
public institutions and the church in respect of the three other
children born afterwards. The court then referred to the custody
proceedings and pointed out that it had first partially withdrawn the
custody in view of their medical treatment. During the medical
treatment at the local hospital, the pediatricians established
seriously retarded developments and impaired health of the children,
which arose from an objective neglect (objektive Vernachlässigung) on
the part of the applicants. In a first medical opinion of 1981, which
had been ordered during the custody proceedings, the expert
Prof. W. stated that the applicants' ability to educate their children
was seriously reduced in view of the first applicant's slight weakness
of mind in combination with his predominant position in the family.
In the second report of 1982 Prof. W. concluded after a further
examination that the children could not be given back to the
applicants without seriously affecting their well-being. The
children's separation from their respective foster families would
necessarily amount to a shock and set them back in their development
with unknown consequences. The court concluded that these facts which
had led to the loss of custody demonstrated the applicants' gross and
continuous neglect of parental duties within the meaning of S. 1748
para. 1 of the Civil Code. Not to order the adoption of the children
would entail an unreasonable hardship for the respective children. In
particular without being adopted they would not be able fully to
integrate into their respective foster families and to develop
normally.
The applicants' appeal was dismissed by the Stade Regional Court
(Landgericht) on 25 April 1984. The court held that both requirements
of S. 1748 para. 1 of the Civil Code, i.e. the gross violations of
parental duties and the unreasonable disadvantage in the case of an
omission of the adoptions, had been properly established.
The court proceeded from the medical opinions which had been delivered
by two pediatricians after the first examination at the hospital in
1979 as well as from the several opinions of Prof. W. in 1981 and
1982.
The court separately considered the situation of each child, the
seriously retarded development of the children and the injuries to
their health. The court concluded that these shortcomings were due to
the applicants' disability to educate their children which was
confirmed by the medical opinion of Prof. W. The latter had referred
in his opinion to a lack of the first applicant's intelligence
combined with the unreasonable refusal to accept outside educational
assistance. Moreover, the court observed that according to a further
report of a diaconate institution (Diakonisches Werk) dated
7 June 1983, the children's well-being would require their continued stay
with the respective foster families. A separation would amount to a
shock for the children and would jeopardise the continuous development
which the applicants would not be able to handle capably. The adoption
appeared to be the only means of providing legal security, for the
children's future well-being and normal development in their
respective foster families.
The applicants' further appeal was rejected on 25 July 1984 by the
Celle Court of Appeal (Oberlandesgericht) which held that the previous
instance had correctly applied the German law. It had been justified
to rely, inter alia, on the medical expert's opinion of 1982 and had
not violated its legal duty to clear all aspects of the case.
The court observed that the applicants had grossly failed to take care
of their children and that they had thereby caused serious
retardations in development. The court pointed out that the
applicants had known about the serious consequences of a child's
neglect after the loss of custody and the adoption of their eldest
son. Moreover, not to order the adoption would impair the four years'
continuous education and sever the strong personal bonds which had
developed within the respective foster families and would amount to
unreasonable disadvantages.
On 12 October 1984, the Federal Constitutional Court dismissed the
applicants' constitutional complaint as it offered no prospect of
success. The decision was received by the applicants' representatives
on 19 October 1984.
The court found that from a constitutional point of view no objections
could be made to the decisions to replace the applicants' consent to
their children's adoption. The conditions provided for by law had
been well established by the previous courts. In particular, the
previous courts had not been required to order a further medical
opinion as there had been no indication that such an opinion would
have given different results.
COMPLAINTS
1. The applicants complain that their consent to their children's
adoption has been replaced by a court order so that they will now
finally lose their children. They specially refer to the fact that
the German courts relied on the opinion of only one medical expert
delivered during the previous proceedings concerning the children's
custody. The applicants invoke Article 8 of the Convention (Art. 8).
2. Under Article 12 of the Convention (Art. 12), the applicants
complain about not being able to continue their marriage together with
these three children.
THE LAW
1. The applicants complain under Article 8 of the Convention
(Art. 8) of the judicial replacement of their consent to their
children's adoption. Article 8 (Art. 8) reads:
"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."
The Commission observes that the German courts decided to replace the
applicants' consent to their children's adoption and thereby created
the conditions to a final legal separation between the applicants and
their children. This measure constituted a serious interference with
the applicants' right to respect for their family life, protected by
Article 8 of the Convention (Art. 8).
The Commission's next task is to examine whether or not such
interference was justified under Article 8 para. 2 of the Convention
(Art. 8-2).
The Commission notes that the German courts' decision was taken in
accordance with the domestic law, as laid down in S. 1748 para. 1 of
the German Civil Code.
The Commission furthermore considers that the interference had a
legitimate aim under Article 8 para. 2 (Art. 8-2), namely the health
and future well-being of the children. It remains to be determined
whether or not the decision to replace the applicants' consent to
their children's adoption was "necessary in a democratic society" to
protect the children's interests.
The Commission is aware that only the most pressing grounds can be
sufficient in a democratic society to justify the disruption of
existing family ties even where the material conditions of a family
are poor (see No. 8059/77, Dec. 3.10.1978, D.R. 15 p. 208).
The Commission first observes that under the relevant S. 1748 para. 1
of the Civil Code the replacement of a parent's consent to his child's
adoption by a court order is subject to the two strict requirements
that gross and continuous violations of parental duties must have been
established as well as that the omission of the adoption must prove an
unreasonable disadvantage to the child concerned.
On the one hand, the courts had special regard to the serious retarded
development of the children as well as to injuries and their state of
health in general. The courts based their findings on the reports of
a medical treatment immediately after the children's separation from
the applicants as well as by further medical opinions during the
custody proceedings in 1981 and 1982.
The courts moreover considered the applicants' disability to take due
care of their children on the basis of the medical opinion of
Prof. W. of 1982 and in view of the previous conviction on the ground of
having caused bodily harm to the eldest child which was placed under
statutory guardianship in 1977 and adopted afterwards. Nevertheless,
the applicants had objected to educational assistance and refused the
necessary medical treatment. It was in fact this refusal to have the
children medically treated which was at the basis of the first
decision in 1971. The applicants though still claiming the ability to
educate their children properly have not substantiated any new facts
supporting this affirmation and, thereby, rendering a new expert
opinion necessary.
On the other hand, the courts considered Prof. W.'s medical opinion of
1982 and a further opinion of a diaconate institution of 1983 insofar
as they confirmed the children's progress in their respective foster
families and the need to provide for legal security.
Furthermore, they indicated that a separation of the children and
their respective foster families after four years' continuous
education would create a risk for negative effects on the children's
developments.
The Commission notes that the children were taken into public care at
the age of two years, one year and six months. They had apparently no
contact with their parents since then. They have been integrated well
into their respective foster families.
It concludes that the replacement of the applicants' consent to the
adoption of their children was necessary in a democratic society for
the protection of the health and the rights of the children concerned
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
2. The applicants also complain under Article 12 of the
Convention (Art. 12) about not being able to continue their marriage
together with their children. However, the Commission finds no
separate issue under this Article (Art. 12) in relation to the
complaints examined under Article 8 of the Convention (Art. 8).
It follows that the application as a whole is manifestly ill-founded
within the meaning of Article 27, para. 2 of the Convention
(Art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)