AS TO THE ADMISSIBILITY OF
by Gisela BREDE
European Court of Human Rights (Fifth Section), sitting on
3 February 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 23 September 2005,
Having deliberated, decides as follows:
The applicant, Ms Gisela Brede, is a German national who was born in 1951 and lives in Bielefeld.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the mother of three children born in wedlock in 1990, 1992 and 1997. At the end of 2002 she lodged a criminal complaint against a close friend of her husband alleging that he had sexually abused their eldest son over a long period.
The police alerted the Bielefeld Youth Office to the applicant’s complaint and this resulted in two pre-arranged family visits during which the husband verbally attacked the youth officer and denied the sexual abuse. The applicant’s husband subsequently arranged for further visits of his friend to the family home. Subsequently, the Youth Office placed the children in a foster family.
On 26 February 2003, after hearing representations from the parents, the Bielefeld District Court, sitting as a family court, transferred parental authority to the Youth Office as an interim measure and ordered the applicant’s husband to refrain from contacting his children. The District Court noted that the father showed signs of psychological problems which he was obviously unable to control and which cast doubt on his ability to raise the children. He had not only been aggressive towards the youth officers and foster family, but also seriously unsettled the children, who were not able to cope. The District Court further noted that the applicant, who had been hospitalised for psychological problems, was at that point unable to take care of the children.
The Youth Office subsequently agreed to place the children in the applicant’s care on condition that she accept family aid and resist her husband intrusive behaviour. However, she refused to accept such aid and, following her husband’s incitement of the two older sons, the family situation got out of control. The Youth Office then took the children into public care and granted the parents regular access to them. The youngest son was temporarily hospitalised.
The Youth Office decided to defer the youngest son’s enrolment in school for one year in view of his retarded development.
June 2004 the Bielefeld District Court transferred parental authority
to the Youth Office pursuant to section 1666 of the Civil Code (see
“Relevant domestic law” below). It held that neither she
nor her husband was capable of raising the children. According to the
expert’s opinion, the father, who had refused to undergo expert
examination, showed signs of dissocial behaviour and seemed unable to
control his impulses.
He had on several occasions beaten the applicant in their children’s presence, had threatened to beat up another child and used sexual insults in their presence. Furthermore, he had not only failed to protect his eldest son against contact with a known paedophile but had arranged and facilitated such contacts over the years. Furthermore, he had exerted pressure on his wife to withdraw the criminal complaint against her son’s molester.
This had to be regarded as abuse of parental authority. Furthermore, the father did not take seriously the youngest son’s massive behavioural disorders (refusal to talk, soiling himself, fits of anger and lack of emotional capacity) and did not provide adequate treatment.
The District Court further considered that the mother was technically able to raise the children. However, she was not able to assist the children’s development as she was psychologically dependent on her husband, and allowed herself to be dominated by both the father and children. She had not come to her eldest son’s aid despite her knowledge of the sexual abuse, had constantly denied the obvious retarded development of her youngest son and had failed to give her children the necessary emotional support. She was patently unwilling and unable to set limits on the father’s disruptive behaviour. Under these circumstances, there was no alternative but to place the children into public care, even if this was contrary to their wishes.
In February 2005 the applicant commenced conversational therapy at the Youth Office’s instigation. She perceived the therapy to be burdensome but continued in order to please the Youth Office.
On 12 April 2005 the Hamm Court of Appeal, after hearing representations from the parents and the children in person and relying on expert opinion, upheld that decision as it found that the conditions for a transfer of parental authority under section 1666 of the Civil Code still applied. The situation had not considerably changed since the parents’ separation. The applicant’s inability to raise her children had not been an isolated incident but the sign of a structural problem. According to the expert’s findings, which had been confirmed by the Court of Appeal’s personal impression during the hearing, all three children showed disorders in their psychological and emotional development. The facts underlying these problems had not changed substantially. The applicant, who refused to face and overcome her problems, had only recently and unwillingly commenced conversational therapy which could not have led to an amelioration of her personal ability to raise her children at the time of the decision. At the hearing, she had conveyed an impression of insecurity and declared that she had engaged in the proceedings only because of the children’s wishes and because it allowed her to retain her bigger apartment. Under these circumstances, the Court of Appeal considered that the applicant was not able to raise her children into independent individuals who respected themselves and other people’s needs. There were no less intrusive measures available to safeguard the children’s wellbeing short of a transferral of parental authority to the Youth Office. However, the court noted the need for the measure to be reviewed on a regular basis with a view to enabling the two older children to live with the applicant once she had earnestly worked on her shortcomings and the children had matured.
July 2005 the Federal Constitutional Court refused to accept the
applicant’s constitutional complaint for examination
(case no. 1 BvR 1248/05).
At an unspecified date in 2005 the applicant lodged a fresh request with the family court for the return of her children, but she withdrew it at a hearing before the Bielefeld District Court on 20 December 2005.
On 15 February 2006 the Bielefeld District Court found the alleged molester of the applicant’s eldest son guilty of sexual abuse, sentenced him to a suspended prison term and ordered him pay damages to the boy.
B. Relevant domestic law
Under section 1666 of the Civil Code the family courts are under an obligation to order necessary measures if a child’s welfare is jeopardised (Gefährdung des Kindeswohls). The first sub-paragraph of section 1666a of the Civil Code provides that measures intended to separate a child from its family are permissible only if it is not possible for the authorities to take any other measure to avoid jeopardising the child’s welfare. According to the second sub-paragraph of Article 1666a full parental authority may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger to the child’s welfare.
“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 Court observes that the transfer of parental authority amounted to an interference with the applicant’s right to respect for her family life as guaranteed by Article 8 § 1. Such an interference entails a violation of Article 8 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under Article 8 § 2 and is “necessary in a democratic society” for the aforesaid aim or aims.
The Court notes, at the outset, that the interference was in accordance with the law for the purposes of Article 8, the relevant provision being section 1666 of the Civil Code.
Court further considers that the impugned decisions were aimed at
protecting the “health or morals” and “rights and
freedoms” of the children. Accordingly they pursued legitimate
aims within the meaning of
Article 8 § 2.
determining whether an impugned measure was “necessary in a
democratic society”, the Court has to consider whether, in the
light of the case as a whole, the reasons adduced to justify this
measure were relevant and sufficient for the purposes of Article 8 §
2 of the Convention.
The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, among other authorities, Gnahoré v. France,
no. 40031/98, § 50 in fine, ECHR 2000 IX).
Court observes that consideration of what lay in the best interests
of the children is of crucial importance in the present case. In this
regard the national authorities have the benefit of direct contact
with all the persons concerned, often at the very stage when care
measures are being envisaged or immediately after their
implementation. The Court’s task is accordingly not to
substitute itself for the domestic authorities in the exercise of
their responsibilities for the regulation of the public care of
children and the rights of parents whose children have been taken
into care, but rather to review under the Convention the decisions
taken by those authorities in the exercise of their power of
appreciation (see Haase v. Germany,
no. 11057/02, §§ 90 et seq., ECHR 2004 III (extracts)).
Turning to the circumstance of the present case, the Court notes that the applicant does not dispute the findings of the domestic courts that her eldest son was sexually abused by a friend of his father. Both the applicant and the child’s father knew about the sexual abuse for some time but did nothing to help their child. The domestic courts further established that the applicant’s youngest son showed massive signs of retarded development, which the parents preferred to ignore. All the children dominated the applicant, who was unable to control and educate them. According to the Court of Appeal this unhappy situation was caused by structural problems that the applicant had been reluctant to face and overcome.
The Court observes that in these circumstances the competent national authorities did not overstep their margin of appreciation by ordering the transfer of parental authority and by placing the applicant’s children in public care even against the children’s expressed wishes.
Turning to the decision-making process (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001-V), the Court observes that the applicant was assisted by counsel and actively participated in the proceedings before the District Court and the Court of Appeal. She has accordingly been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her with the requisite protection of her interests. The domestic courts personally heard all parties to the proceedings and relied on expert opinion.
is accordingly no appearance of a violation of the applicant’s
rights under Article 8. It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen