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Cite as: [2009] ECHR 281

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FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 378/06
by Martha ULLMANN and Markus ULLMANN
against Germany

The European Court of Human Rights (Fifth Section), sitting on
20 January 2009 as a Chamber composed of:

Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Renate Jaeger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Reistrar,

Having regard to the above application lodged on 19 December 2005,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mrs Martha Ullmann, and the second applicant, Mr Markus Ullmann, are German nationals who were born in 1966 and 1968 respectively and live in Lappersdorf. They were represented before the Court by Ms C. Schenk and Mr F. Schwinghammer, lawyers practising in Regensburg.

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 applicants, a married couple, are the parents of a girl, Mi., born on 28 June 2001, and of a boy, Ma., born on 23 September 2003.

Since his birth Ma. has been in hospital three times, namely from
29 October 2003 to 12 November 2003 because of pneumonia, from
20 November 2004 until 2 December 2004 due to a haemangioma in his mouth and from 12 January 2004 to 28 March 2004 due to bronchitis. Otherwise, he has been looked after only by his parents, mainly his mother.

During this last stay in hospital, acute shortness of breath put his life at risk, which was saved by intubation. Several radiographies disclosed fractures of several ribs and of his right upper arm. Having consulted a radiological expert, the doctors treating him concluded that Ma.’s injuries had not been caused by illness, in particular not by a pathological structure of his bones, but by third persons. Having been confronted with the suspicion of having ill-treated their child, the applicants vigorously denied having injured Ma.

2. The proceedings before the District Court

On 4 February 2004 the Regensburg District Court, having regard to Ma.’s injuries and having heard the applicants, withdrew the applicants’ right to determine Mi.’s and Ma.’s whereabouts and their right to decide on their health care by way of an interim injunction.

Both children were placed in foster families. The District Court subsequently excluded the parents’ access to their children for approximately one month and then allowed the parents supervised contact with both Mi. and Ma. once a week and later once every two weeks.

In their report of 21 July 2004 to the District Court, the paediatricians G. and W., who had also consulted Sch., a child radiologist, concluded that the nine fractures of his ribs Ma. had suffered and the fracture of his right upper arm had not been caused by an illness, in particular not by osteogenesis imperfecta (“OI”, commonly known as brittle bone disease), or by his medication. They could thus only be explained by the use of massive force by an adult or teenager on at least two occasions. At least some of the fractures had been caused during periods of time in which Ma. had stayed only with his parents and not in hospital.

In his report dated 14 September 2004, psychiatric expert Kr. concluded that, even though neither of the parents was prone to violence, it could not be excluded that one of them had ill-treated Ma. The mother did not suffer from a psychiatric illness, but could have been under strain from raising Ma. with his fragile health in addition to Mi. However, it was more likely that Ma.’s father, who suffered from a narcissistic personality disorder and was unhappy with the strain put on the rest of the family by Ma., had caused the boy’s injuries.

In his report of 12 October 2004, psychological expert Ki. found that the applicants’ family did not as such pose high risks of ill-treatment. Assuming that one of the parents had ill-treated Ma., there was an enhanced risk of repeated ill-treatment, particularly for Ma., but also for Mi., as the parents denied any responsibility for Ma.’s injuries, which made it difficult to provide them with assistance.

On 2 December 2004 the Regensburg District Court withdrew the applicants’ parental custody of Mi. and Ma. and appointed a guardian for the children. Relying on Articles 1666 and 1666a of the Civil Code
(see Relevant domestic law below), it found that the children’s physical well-being had been endangered by the applicants’ abuse of their parental authority and that there were no less intrusive means to avert this danger.

Having heard the applicants and their counsel, the first applicant’s brother, the children’s curator and curator ad litem, the Youth Office and the experts G., Kr. and Ki. in person, the District Court was convinced that Ma. had been subjected to physical ill-treatment in his parents’ home.
In particular, having regard to the findings of expert G. as to the periods of time in which the fractures, which had not been caused by an illness, had probably occurred, and to the fact that Ma.’s state of health had never deteriorated in hospital, the District Court found that it could be excluded that the boy’s numerous injuries had occurred in the two different hospitals in which he had been treated since his birth. They had thus been caused at Ma.’s home either by one of the parents or by both of them.
The psychological and psychiatric expert reports had disclosed that the parents, who continued to deny having injured Ma., had been partly overstrained by having to raise two young children. This finding was not put into question by the fact that four paediatricians whom Ma. had seen on several occasions due to shortness of breath had not noticed any signs of
ill-treatment.

As to Mi., the District Court considered that she risked becoming the victim of ill-treatment in the future as well. It was impossible to avert the danger to her in practice by less intrusive measures.

3. The proceedings before the Court of Appeal

On 4 May 2005 the Nuremberg Court of Appeal, having heard the applicants and their counsel, the experts G. and Sch., the applicants’ expert V., a doctor having treated Ma. in hospital, the children’s guardian and their curator ad litem in person, and having regard to the written expert reports submitted by Kr. and Ki., dismissed the applicants’ appeal concerning the withdrawal of custody of Ma. It quashed the withdrawal of custody of Mi. as of 20 May 2005 but imposed several conditions on the parents aimed at safeguarding and controlling Mi.’s welfare.

In a decision running to thirty-one pages the Court of Appeal found that withdrawing the parents’ custody of Ma. was presently the only means of averting danger to the boy’s welfare.

Having regard to the expert reports of G. and Sch., the Court of Appeal found that three of the boy’s ribs had been broken during a period when he was at home, another four had been broken during a period when Ma. was both in hospital and at home, and on two further occasions two and three ribs respectively had been broken in periods in which Ma. had stayed at home. The boy’s right upper arm had been broken in a period in which he had stayed both at home and in hospital. None of these injuries could have been caused by an accident. The Court of Appeal conceded that the experts G. and Sch. had partly modified their diagnosis compared to their initial report of 21 July 2004, finding that Ma. had been injured not only on at least two, but on at least five occasions, and partly modifying the periods in which the injuries had occurred. However, their new findings were based on a particularly thorough further examination of the radiographies in question and were thus convincing.

Moreover, having regard to the reports of experts G. and Sch. and to the two reports dated 10 March 2005 and 20 April 2005 drafted by a laboratory for human genetics, no illness, in particular no osteogenesis imperfecta, could be diagnosed which could have caused Ma.’s bones to break. It was therefore virtually certain that Ma.’s injuries had been caused by an abuse of parental authority. It could also not be explained otherwise that several radiographies done since Ma.’s separation from his parents in January 2004 had not disclosed any further fractures which had occurred either during his stays in hospital or with his foster family. The Court of Appeal assumed that the parents had not been aware that Ma. had suffered numerous fractures before the injuries had been discovered in hospital. As it could not be determined which of the parents, who had both denied being responsible for the injuries, had caused those injuries, the boy could not currently be returned to his parents as his welfare would otherwise be at risk.

In reaching that conclusion, the Court of Appeal also had regard to the submissions of a paediatric expert consulted by the applicants on their own motion, V., who had invited the court to examine more thoroughly whether Ma. was suffering from osteogenesis imperfecta. A report drawn up on 10 March 2005 by a human genetics laboratory obtained by the applicants had concluded that it could not be totally excluded that Ma. was suffering from such a condition. The Court of Appeal, on V.’s proposal, had then obtained an additional expert report dated 20 April 2005 from that laboratory, which found after another analysis that no such genetic illness could be diagnosed. It had refused to allow V. to examine Ma., arguing that it had already obtained a report from a paediatric expert.

In the Court of Appeal’s view, which did not follow the additional report submitted by expert Ki. in this respect, the physical well-being of Mi., who had never been injured and had a close relationship with both parents, was no longer endangered if she was returned to her parents under conditions safeguarding her well-being. It further stated that it considered Ma.’s separation from his family not to be permanent, but that his return could be examined when he reached the age of three and went to kindergarten, provided that Mi.’s return to her family had gone well.

4. The proceedings before the Federal Constitutional Court

On 8 June 2005 the applicants lodged a constitutional complaint with the Federal Constitutional Court. They claimed that the decisions of the family courts ordering their separation from Ma. disproportionately interfered with their right to respect for their family life. It had not been proved that either or both of them had injured the boy and the courts had not sufficiently examined whether the boy suffered from a condition which made his bones particularly fragile.

On 23 June 2005 the Federal Constitutional Court, without giving reasons, declined to consider the applicants’ constitutional complaint
(file no. 1 BvR 1230/05).

5. Subsequent developments

On 9 October 2007 the Nuremberg Court of Appeal, having consulted psychological expert Ki., decided to retransfer custody of Ma. to his parents as of 19 October 2007 under several conditions, including psychological assistance for the parents and regular medical examinations of the boy.
It found that the applicants had sought the help of therapists and had had regular access to Ma., who was now old enough to complain to others about potential ill-treatment. Therefore, the withdrawal of the parents’ custody was no longer necessary to safeguard Ma.’s well-being. Since then Ma. has again been living with the applicants.

B. Relevant domestic law

Article 1666 § 1 of the Civil Code provides that the family courts are under an obligation to order the necessary measures if a child’s welfare is jeopardised.

Pursuant to Article 1666a § 1 of the Civil Code, measures entailing a child’s separation from his or her family are permissible only if the danger to the child’s welfare cannot be averted by other means, including public assistance. Article 1666a § 2 of that Code stipulates that full parental custody may only be withdrawn if other measures have proved ineffective or have to be considered insufficient to remove the danger.

COMPLAINTS

The applicants complained under Article 8 of the Convention about the withdrawal of their parental custody of Ma. They claimed that the domestic courts had failed to consider less drastic measures, such as public assistance, and had failed properly to investigate the reasons for Ma.’s injuries in the light of contradictory medical expert reports.

Relying on Article 6 of the Convention, the applicants further argued that the proceedings had not been fair because the Court of Appeal had refused to allow their expert V. to examine Ma. despite the contradictory statements made by the court-appointed experts.

THE LAW

The applicants complained under Articles 8 and 6 of the Convention about the withdrawal of their parental custody of their son and about the conduct of the custody proceedings in the domestic courts. The Court considers that these complaints fall to be examined under Article 8 alone, which, in so far as relevant, provides:

“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 prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

1. Interference with the applicants’ right to respect for their family life

The decisions of the domestic courts withdrawing the applicants’ custody of their son interfered with their 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 had a basis in domestic law, namely Article 1666 of the Civil Code, read in conjunction with Article 1666a of that Code. They intended to safeguard Ma.’s best interest by averting physical injuries from him and were therefore aimed at protecting his health and his rights and freedoms. Accordingly, they pursued legitimate aims within the meaning of Article 8 § 2.

2. Necessity of the interference

As to whether the interference was “necessary in a democratic society”, the Court’s case-law interprets this phrase as requiring consideration in particular of whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”, and whether the decision-making process involved in measures of interference was fair and afforded due respect to the interests safeguarded by Article 8. Consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Account must also be given to the fact that the national authorities have the benefit of direct contact with all the persons concerned. It is not the Court’s task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues. While the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access (compare, amongst many authorities, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, §§ 70-73, ECHR 2001 V (extracts); Kutzner v. Germany, no. 46544/99, §§ 65-67, ECHR 2002 I; Görgülü v. Germany, no. 74969/01, §§ 41-43, 26 February 2004; Haase v. Germany, no. 11057/02, §§ 88-94, ECHR 2004 III (extracts); and R.K. and A.K. v. the United Kingdom, no. 38000/05, § 34, 30 September 2008).

In the present case the Court is satisfied that the German courts, which had withdrawn the applicants’ custody of Ma. in order to protect the child’s physical welfare, adduced relevant reasons for their decisions as required by Article 8 § 2.

In determining whether the reasons given 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 serious interference with the right to respect for their family life. Such a step must be supported by sound and weighty considerations in the interest of the child concerned.

The Court observes that Ma. suffered serious injuries, namely multiple fractures of his ribs and a fracture of his arm. The domestic courts, with the help of several experts, thoroughly examined whether the boy could have suffered his injuries other than by use of massive force against him by one of his parents. Even prior to issuing the interim injunction restricting the applicants’ custody, the doctors treating him considered and excluded a pathological cause for Ma.’s fractures. Several expert reports later excluded that the fractures had been caused by an accident or, as had been suggested by the applicants, by brittle bone disease. The domestic courts further consulted a psychological and a psychiatric expert to evaluate the causes of Ma.’s injuries and the risks to his welfare if returned to his parents. Having regard to the experts’ findings and the fact that Ma. did not suffer any further fractures since his separation from his parents, the Court is satisfied that the domestic courts adduced sufficient reasons to conclude that Ma. had been injured in his parents’ household, and that his fractures had not been caused by an illness, accident or injuries suffered in hospital. Consequently, the domestic courts also had sound and weighty grounds to withdraw the applicants’ custody of Ma.

As to the balance struck between the competing interests, the Court further notes that the domestic courts did not consider the applicants’ separation from Ma. to be permanent – which is illustrated also by the fact that Ma. was subsequently returned to his parents – and granted the applicants regular access to their child. Moreover, the domestic courts gave sufficient reasons for their finding that at the relevant time, the threat to the welfare of Ma., who was then only one year old, could not effectively be averted in practice by less intrusive measures than a withdrawal of custody, such as public assistance.

A further consideration in deciding whether the reasons adduced by the national courts to justify the impugned measure 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 domestic courts had failed to investigate the reasons for Ma.’s injuries properly. In particular, the Court of Appeal had refused to allow expert V. to examine Ma. despite the contradictory statements made by the
court-appointed experts concerning the number of fractures and the periods of time in which they had occurred.

The Court observes, however, that both the District Court and the Court of Appeal heard the applicants and their counsel in person. In order to investigate the facts of the case, the courts further heard the children’s guardian and curator ad litem, the Youth Office and several medical experts, and further obtained an additional expert report from a human genetics laboratory on a proposal by the applicants’ expert V. The Court of Appeal notably replied to the applicants’ argument concerning the modifications in the experts’ diagnosis during the proceedings as to the number of the fractures and the periods of time in which they had been suffered, convincingly considering these modifications to be the result of a further, more thorough analysis of the radiographies in question. In view of the fact that the domestic courts appointed a paediatric expert, their refusal to allow additional examinations of Ma. to be carried out by the applicants’ expert V. does also not disclose any insufficient involvement of the applicants in the decision-making process.

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 must therefore be regarded as “necessary in a democratic society”.

It follows that the application must be dismissed as manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President