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FIFTH
SECTION
CASE OF GLESMANN v. GERMANY
(Application
no. 25706/03)
JUDGMENT
STRASBOURG
10 January
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Glesmann v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen,
President,
Karel Jungwiert,
Volodymyr Butkevych,
Margarita
Tsatsa-Nikolovska,
Javier Borrego Borrego,
Renate Jaeger,
Mark Villiger,
judges,
and Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 4 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25706/03) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Polish national, Ms Ewa
Glesmann (“the applicant”), on 13 March 2003.
- The
applicant, who had been granted legal aid, was represented by
Mr
T. Kochanowski, a lawyer practising in Berlin. The German Government
(“the Government”) were represented by their Agent,
Mrs
A. Wittling-Vogel, Ministerialdirigentin, of the Federal
Ministry of Justice.
- On
19 June 2006 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
Polish Government, having been informed of their right to intervene
in the proceedings (Article 36 § 1 and Rule 44), did not
indicate that they wished to exercise that right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Background to the case
- The
applicant was born in 1948 and lives in Berlin.
- She
is the mother of a daughter S., born in wedlock on
19 September
1990.
- On
9 December 1996 the applicant filed a petition to be divorced from
the child’s father. In February 1997 she requested to be
granted sole parental authority.
- On
19 June 1997, during a hearing before the Pankow-Weissensee District
Court (Amtsgericht) in proceedings relating to divorce and
parental authority, both parents declared their consent to the
child’s temporary placement in a foster family. This measure
was originally planned for a short period of time during which a
court-appointed expert was to prepare his opinion on custody rights
and aimed at preventing the child’s welfare being jeopardised
by serious tensions arising from her parents’ divorce
proceedings. According to the applicant’s submissions, which
are contested by the Government, she gave her consent only under the
threat that the child would otherwise be permanently placed in a
children’s home.
- On
25 June 1997 S. was placed in the care of a foster family. According
to the applicant’s submissions, which are contested by the
Government, the applicant was not informed about the foster parents’
place of residence for almost two years and was thus prevented from
exercising access rights.
- On
3 July 1997 the District Court ordered the preparation of an expert
opinion on the questions of parental authority and access rights.
- On
9 February 1998 the expert E. submitted her expert opinion. She
considered that the child S. suffered from a serious emotional
disorder which had been caused by family tensions and that S. should
be offered psychotherapy in order to overcome her traumata. The
decision on custody and access rights should be suspended until the
child had stabilised.
- In
August 1997 a scheduled visiting contact with the applicant failed
because of the child’s objections. On 11 September 1997 the
District Court suggested that visiting contacts with both parents
should be suspended during the child’s examination or should
only take place with the expert’s collaboration. By letter of
23 October 1997 the applicant’s counsel supported the proposal
that both parents’ access should be suspended in order to
prevent the father from negatively influencing the child.
- On
9 July 1998 the applicant consented to the child’s remaining
with the foster family for the duration of the necessary
psychotherapy, which she estimated at one year.
- On
29 October 1998, during the hearing on the parents’ divorce,
both parents’ counsels unanimously declared that they presently
did not lodge any motions regarding parental authority. The divorce
was decreed on that same day.
- On
28 January 1999 staff members of the Youth Welfare Office, of the
Child and Youth Psychiatric Service and the expert E. discussed the
child’s therapy requirements. In the course of the discussion
the Child and Youth Psychiatric Service, whose recommendation was
necessary for instigating therapeutic measures, convinced the expert
that S. was not in need of psychotherapy.
2. Proceedings on parental authority and access rights
- On
10 February 1999 the applicant filed a motion with the
Pankow-Weissensee District Court with the aim to be granted
regular access rights to her daughter. She declared that she
presently did not wish to have the child’s placement with the
foster family terminated.
- On
23 March 1999 the Child and Youth Psychiatric Service submitted its
report. They considered that psychotherapy was currently not
necessary, as the child’s psychological situation had
considerably improved and stabilised. It was proposed to instigate
contacts between the child and her parents under psychotherapeutic or
pedagogical guidance.
- On
21 April 1999 the Youth Office, the applicant and S.’s father
agreed on three initial visiting contacts under the supervision of a
family assistant.
- By
letter dated 23 July 1999 the applicant urged the District Court to
promote the proceedings.
- On
9 September 1999 the District Court held a hearing in the presence of
the applicant, the child’s father and their counsels. The
parties agreed that a supplementary expert opinion should be
commissioned as to how visiting contacts could be instigated and the
child’s return prepared. The District Court judge emphasised
that visiting contacts should take place at least once per month in
order to avoid further alienation.
- On
10 September 1999 the District Court ordered the parents to advance
the costs for the expert opinion. On 26 October 1999 the applicant
advanced her share of the costs. On 9 February 2000 the District
Court, following the applicant’s enquiry, informed her that the
father had failed to advance his share of the costs. On 6 March 2000
the applicant advanced the father’s share of the costs.
- On
6 March 2000 the District Court ordered the psychological expert H.
to prepare an expert opinion on how parental authority, the child’s
residence and access to the child should be regulated.
- On
28 June 2000 the applicant urgently requested the District Court to
be granted parental authority and the right to decide on the child’s
residence with the aim to return the child to the applicant’s
household.
- On
29 June 2000 the District Court informed the applicant that the
outcome of the expert examination should be awaited.
- On
24 August 2000 the expert informed the court that the termination of
the expert opinion had been delayed by an attempt to return the child
to the applicant and announced that he would submit his opinion by
mid-September at the latest.
- On
23 October 2000 the District Court received H.’s expert
opinion. Having on several occasions heard and examined both parents,
the child S., the foster family and the Youth Office, the expert
found that S. felt at ease within the foster family, where she was
well taken care of and encouraged. The expert further noted that both
parents were in principle able to raise the child. However, the
child’s relationship with her mother was seriously disrupted.
An attempt gradually to return the child to the applicant had failed.
Having initially agreed to visits, the child had been deeply
disturbed by an overnight stay and expressed the wish not to visit
her mother again. The expert concluded that the child’s fears
could be handled once she could rest assured to permanently remain in
the foster family. The expert suggested that the child should remain
in the foster family, that the Youth Office should be granted the
right to decide about the child’s place of residence and that
visiting rights with the parents should be limited to one visit per
month in order to allow the child to stabilise. The expert further
stressed that S. was in need of psychotherapy.
- On
15 January 2001 the applicant requested to be granted parental
authority and that the child be returned to her.
- On
22 January 2001 the child’s father opposed the applicant’s
request and proposed to leave the child with the foster family.
- On
26 January 2001 the District Court held a hearing in the presence of
the applicant, the child’s father, a representative of the
Youth Office, the child S. and the foster parents. All parties to the
proceedings agreed that the child should be offered therapy without
further delay. During the time of therapy, which was estimated at
fifteen months, S. should stay with the foster family and the parents
should be granted access at least once per month. The parties further
agreed that no decisions should presently be taken on the pending
motions on parental authority and the determination of the child’s
place of residence.
- On
26 March, 25 April and 9 July 2001 the applicant informed the
District Court that visiting contacts had failed due to the child’s
resistance and the foster parents’ lack of cooperation. On 10
July 2001 the applicant requested the court to give a decision on her
motions.
- On
16 July 2001 the court informed the applicant that it did not serve
the child’s best interests to interfere with the current
process of consolidation and asked the applicant if she requested the
court to give a decision.
- On
30 July 2001 the applicant confirmed that she requested that a
decision be given on her motions.
- On
3 September 2001 the District Court judge heard the child S. who
declared that she felt at ease with the foster family and wished to
remain there. S. further stated that the monthly contacts with her
mother were not good since she did not feel at ease with her, while
the monthly contacts with her father were good.
- On
21 September 2001 the applicant requested the District Court to
appoint a curator ad litem to represent the child. On 25
October 2001 the District Court appointed a curator ad litem and
requested the Youth Office to report on the development of
psychotherapy.
- On
9 February 2002 the child’s curator informed the court that she
would need another six weeks to prepare her submissions.
- On
5 March 2002 the applicant requested that a court decision be given
immediately. On 15 March 2002 the District Court judge informed the
applicant that he awaited the curator’s submissions.
- On
25 March 2002 the applicant informed the District Court that
psychotherapy had been terminated and complained about the conduct of
the proceedings.
- On
25 March 2002 the child’s curator submitted her statement to
the court. She reported that S. wished to live with the foster family
and was seriously opposed to contacts with her parents. The curator
recommended that this wish be respected.
- On
28 June 2002 the court requested the Youth Office to report on the
child’s present life circumstances and on the discontinuation
of therapy.
- On
21 October 2002 the Youth Office submitted a report by the
psychologist L. dated 30 August 2002. According to the Youth Office,
it had not been able to submit the report earlier as the applicant
had not given her authorisation for release of
medical information.
- In
her comments, L. reported that her attempts to build up
contacts with S. had failed due to the child’s resistance to
any such efforts. She had discontinued psychotherapy on 5 March 2002
as a continuation of her efforts would be harmful for the child’s
development. The expert further noted that S. suffered from a trauma
caused by the life circumstances in her family of origin and that she
tried to distance herself from her parents.
The expert further
expressed the opinion that the proceedings had been burdened by a
number of shortcomings. Under the present circumstances, the parents
had to cope with the fact that it was in the child’s best
interest to remain with the foster family. However, it was essential
for both the parents and the child that visiting contact were not
discontinued completely.
- On
13 December 2002 the Youth Office recommended that S. should stay
with the foster family until reaching majority and that no contacts
should be instigated against the child’s wishes.
- On
6 January 2003 the District Court proposed that the parents should
abstain from making use of access rights for one year and that
contact should be carefully re-established afterwards.
- On
15 January 2003 the applicant rejected this proposal and submitted
that recent visiting contacts between herself and her daughter had
developed in a more positive way.
- On
24 April 2003 the Pankow-Weissensee District Court, following a
hearing attended by the parents, the child’s curator ad
litem, two representatives of the Youth Office and the foster
parents, withdrew parental authority from the parents and transferred
it to the Youth Office. Furthermore, visiting contacts between the
child and her parents were suspended for one year.
- The
District Court considered that the applicant was unable to accept the
child’s wishes and her present life circumstances within the
foster family. She was, in particular, unable to accept that a
parent-child relationship had developed between the child and her
foster parents. Accordingly, she was unable to try to alleviate the
conflict constantly arising from this situation. Taking into account
the fact that the child was deeply rooted within the foster family,
it would be potentially harmful for the child’s well-being to
remove her from there, as requested by the applicant.
- The
District Court further considered that S.’s father had shown
great understanding with regard to the child’s needs and that
he had given his consent to the child’s remaining with the
foster family. However, transferring sole parental authority to the
father would distort the situation of conflict the child was exposed
to and could jeopardise her psychological well-being. It followed
that parental authority had to be withdrawn from both parents and
transferred to the Youth Office.
- Finally,
the District Court considered that, taking into account the child’s
serious objections, the applicant’s tendency to massively
interfere with the child’s life in the foster family and the
need to stabilise and strengthen the child, access rights would very
probably jeopardise the child’s well-being and had to be
suspended for one year.
- This
decision was served on the applicant’s counsel on 9 July 2003.
On 8 August 2003 the applicant lodged an appeal with the Berlin Court
of Appeal (Kammergericht). She emphasised that the child’s
placement in the foster family had been devised as a temporary
measure and considered the measures taken by the District Court to be
disproportionate.
- On
13 November 2003 the child’s curator submitted her comments.
She considered that the child’s persistent wish not to see her
parents should be respected.
- On
9 January 2004 the child’s father submitted his comments.
He
considered that the child should remain with the foster family, but
requested to be granted monthly access rights.
- On
12 January 2004 the Court of Appeal held a hearing in the presence of
S., her curator ad litem, her parents, the foster parents and
a Youth Office representative.
- Following
the hearing, the Court of Appeal quashed the District Court’s
decision, transferred sole parental authority to the child’s
father and granted the applicant visiting rights once per month for
five and a half hours each.
- Referring
to the opinion submitted by the court-appointed expert H. and to the
comments submitted by the therapist L., the Court of Appeal
considered that the relationship between the child and the applicant
had to be regarded as problematic. The applicant’s wish to
remove the child from the foster family would cause the child serious
psychological damage.
All parties heard in the proceedings had
confirmed that the child found a sense of security and stability in
the foster family, where she had been living for six and a half
years. The child had consistently expressed the wish to live with the
foster family as a full family member.
- The
Court of Appeal conceded that the alienation between the applicant
and her daughter had to a substantial degree been caused by the
period of time which had elapsed since her placement in the foster
family, which was originally planned as a short-time measure. The
proceedings could and should have been conducted in a considerably
more stringent way. However, the decision had to be taken in
accordance with the child’s welfare, which was not defined by
earlier shortcomings of the proceedings. The child’s welfare
required to assure her that she could remain with the foster family
without having to fear that her stable life situation would change
for reasons which she could not understand.
- The
Court of Appeal noted, however, that the prerequisites of section
1666 of the Civil Code had not been met, as the child’s father
was able and willing to accept the child’s wishes and to
co-operate with both the
Youth-Office and the foster family.
Accordingly, sole parental authority was to be awarded to him.
- The
Court of Appeal finally found that there were no reasons to suspend
the applicant’s access rights. While the child S., when heard
by the Court of Appeal, had confirmed that she did not have any
interest in meeting her mother, she had also declared that she was
ready to visit her once per month if the court proceedings and
permanent hearings would come to an end. The Court of Appeal
considered monthly visits of five and a half hours each necessary and
sufficient to give the applicant and her child the possibility to get
closer again. It also stated that the child was free to visit her
mother at any other time if she should wish to do so.
- On
1 March 2004 the applicant lodged a complaint against the Court of
Appeal’s decision, in which she gave a full account of the
proceedings before the civil courts and alleged that the impugned
decision was disproportionate and violated her right to the enjoyment
of her family life under Article 6 of the Basic Law.
- On
8 March 2004 the Federal Constitutional Court’s Registry
requested the applicant’s counsel to submit a copy of the
District Court’s decision dated 24 April 2003. On 22 March 2004
the applicant’s counsel submitted the requested document.
- On
12 October 2004 the Federal Constitutional Court, sitting as a panel
of three judges, refused to admit the applicant’s
constitutional complaint for adjudication pursuant to the relevant
provisions of that court’s Rules of Procedure without giving
any further reasons.
3. Proceedings concerning accommodation costs
- On
2 July 2002 the Reinickendorf-Berlin District Council (Bezirksamt)
ordered the applicant to contribute a specific amount to the costs
incurred by the accommodation of her daughter in the foster family
from 25 June 1997 until 31 December 1998.
- On
4 June 2004 the Berlin Administrative Court (Verwaltungsgericht)
rejected the applicant’s complaint.
On 19 September 2005
the Berlin-Brandenburg Administrative Court of Appeal
(Oberverwaltungsgericht) refused to grant the applicant leave
to appeal.
II. RELEVANT DOMESTIC LAW
1. The Civil Code
- If parents holding joint custody separate permanently,
either parent may apply to be awarded full parental authority
pursuant to section 1671 of the Civil Code. The family courts will
follow this request if the other parent gives his or her consent or
if it is to be expected that withdrawal of parental authority from
one parent and transferral to the other best serves the child’s
interests.
- Pursuant to Section 1632 § 1 of the Civil Code
parental authority comprehends the right to order anybody – who
unlawfully deprives the parents or one parent of their child –
to have their child returned.
- According
to section 1684, a child is entitled to have access to its parents;
each parent is obliged to have contact with, and entitled to have
access to, the child. The family courts can, however, restrict or
suspend that right if such a measure is necessary for the child’s
welfare. A decision restricting or suspending that right for a
lengthy period or permanently may only be taken if otherwise the
child’s well-being would be endangered (section 1684 § 4).
- Section
1666 provides that in cases of a danger to the child’s welfare
the court shall order the necessary measures. Pursuant to section
1666a § 1 measures which entail a separation of the child from
the parents are only permitted if the danger cannot be averted by
other means, including assistance by public authorities. The right of
personal custody may only be withdrawn in its entirety if other
measures proved unsuccessful or if it has to be assumed that they are
insufficient to avert the danger.
2. The Act on Non-Contentious Proceedings
- Section
50 § 1 of the Act on Non-Contentious Proceedings (Gesetz über
die Angelegenheiten der freiwilligen Gerichtsbarkeit) determines
that in proceedings concerning a minor child, the Family Court may
appoint a curator ad litem (Verfahrenspfleger) for that
child to assist him or her if this should be necessary for the
protection of his or her interests.
- Pursuant
to section 50 § 2, the appointment of a curator ad litem
is usually necessary where the child’s interests conflict
substantially with those of his legal representative, where the
subject-matter of the proceedings concerns measures to be taken to
avert a risk to the child’s well-being involving a separation
of the child from his or her family or the withdrawal of full
parental authority or where the subject matter concerns the child’s
removal from the foster carer, spouse, partner or person entitled to
access.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings on access
rights and parental authority, in particular before the
Pankow-Weissensee District Court, had been incompatible with the
“reasonable time” requirement, laid down in Article 6 §
1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The Government
- According
to the Government, the period to be taken into account with regard to
parental authority began on 17 January 2001 when the applicant
submitted her request to be transferred sole parental authority.
The
Government considered that the length of the proceedings was
justified by the circumstances of the present case. They emphasised,
in particular, that the District Court attempted several times to
find a preliminary solution to the conflicts and to intensify the
relationship between the parents and their child. They further
pointed out that the applicant had given her consent to the measures
taken by the District Court.
- In
the Government’s view, the proceedings had to be regarded as
factually complex, having regard to the number of parties involved
and to the tensions arising between them. The dynamical process
inherent in the proceedings made it difficult to establish the facts
by expert opinions and to promote the proceedings.
- The
Government further emphasised that supervised visiting contacts
between the applicant and her daughter were already instigated in
April 1999, thus satisfying the applicant’s demands. On 9
September 1999 the applicant gave her consent to the preparation of a
fresh expert opinion. On 26 January 2001 all parties concerned gave
their consent to the instigation of psychotherapy. It was expressly
declared that the Court should not give a decision on the requests
regarding parental authority and the child’s return to the
applicant.
- Following
the applicant’s request of 30 July 2001 to give a decision on
her motions, the District Court took all necessary steps to promote
the proceedings. The Government contested the applicant’s
argument that the District Court would have been under an obligation
to appoint a curator
ad litem at an earlier stage of the
proceedings. They submitted that the prerequisites of section 50 of
the Act on Non-Contentious Proceedings had not been met. While
conceding that the District Court could have reminded the curator at
an earlier stage to submit her comments, this did not contribute to a
delay of more than a few weeks. The same applied to the District
Court’s potential failure to press the Youth Office to submit
their final submissions at an earlier date.
(b) The applicant
- According
to the applicant, the length of the proceedings was exclusively
caused by procedural shortcomings on the domestic authorities’
side. The applicant complained, in particular, that the District
Court did not take any decision on the merits of her case during its
first hearing held in September 1999. The applicant further alleged
that the District Court had only belatedly appointed a curator to
represent the child’s interests.
The appointment of the
child’s curator ad litem in October 2001 served the
District Court as a pretext not to take a decision on the merits.
Instead, the court ordered the instigation of psychotherapy, which
had already been recommended in February 1998, and which delayed the
proceedings by a further year and a half.
2. The Court’s assessment
- The
Court observes that the period to be taken into consideration with
regard to the access proceedings began on 10 February 1999, when the
applicant filed her motion to be granted access rights, and ended on
12 October 2004, when the Federal Constitutional Court refused
to admit her constitutional complaint. The first instance decision
was handed down on 2 January 2004. The proceedings thus lasted some
five years and eight months for three levels of jurisdiction. The
Court further observes that the case had been pending approximately
four years and five months before the Pankow-Weissensee District
Court.
- As
regards the parallel proceedings relating to parental authority, the
period to be taken into consideration began on 28 June 2000, when the
applicant lodged her first request to be granted sole parental
authority
(see § 23, above), and likewise ended on 12
October 2004. It thus lasted some four years and three months for
three levels of jurisdiction.
- With
regard to the previous proceedings before the District Court, the
Court observes that the applicant’s counsel, by letter to the
District Court dated 23 October 1997, supported that court’s
proposal that both parents’ access to the child should be
suspended. In the hearing on their divorce held on 29 October 1998,
both parents declared through their counsels that they presently did
not wish to lodge any motions regarding parental authority. Even
assuming that the period of time which had elapsed between the
child’s placement in the foster family in June 1997 and the
lodging of the applicant’s request for access rights in
February 1999 had to be taken into account when assessing the overall
length of the proceedings, the Court, having regard to these
circumstances, considers that this period of time cannot be held
imputable to the domestic authorities.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII). In cases relating to civil status, what is at
stake for the applicant is also a relevant consideration, and special
diligence is required in view of the possible consequences which the
excessive length of proceedings may have, notably on enjoyment of the
right to respect for family life (Laino v. Italy [GC],
no.
3158/96, § 18, ECHR 1999-I).
- The
Court considers that the present case has to be regarded as complex
because of the number of the persons involved and, in particular,
because of the child’s fragile psychological situation. The
Court further observes that the establishment of the relevant facts
necessitated the taking of expert opinion.
- The
Court further observes that the applicant, on 26 January 2001,
expressly agreed that no decision should be taken on the pending
motions on parental authority and the determination of the child’s
place of residence during the period of time necessary for
instigating psychotherapy, which was estimated at fifteen month. Even
though she revoked this consent on
30 July 2001, the Court
considers that the period of some thirteen month which elapsed until
the failure of psychotherapy on 5 March 2002 cannot be held imputable
to the District Court, as it would have been contrary to the child’s
best interests prematurely to abort psychotherapy.
- As
regards the conduct of the proceedings by the District Court, the
Court notes, at the outset, that the District Court complied with the
applicant’s request of 21 September 2001 to appoint a curator
ad litem to represent the child’s interests. There is no
indication that the applicant, who had been represented by counsel
throughout the proceedings, would have been prevented from lodging
her request to appoint a curator at an earlier stage of the
proceedings. If she should not have been correctly informed by her
own counsel, this failure cannot be held imputable to the District
Court. It follows that the delays which were caused by the necessity
to give the freshly appointed curator sufficient time to get
acquainted with the circumstances of the case cannot be held
imputable to the District Court.
- The
Court further notes that both the Court of Appeal and the Federal
Constitutional Court conducted the proceedings before them speedily.
It took the Court of Appeal only some five months to render a
decision on the applicant’s appeal. The proceedings were then
pending before the Federal Constitutional Court for approximately
eight months.
- The
Court does not overlook that the proceedings at issue concerned the
applicant’s access to and reunification with her daughter and
thus had to be treated with special diligence, as the passage of time
could lead to growing alienation between parent and child and could
thus have irreversible consequences. It notes, however, that the
District Court, with the consent of all the parties to the
proceedings, undertook time-consuming efforts to improve the personal
relationship between the applicant and her daughter. Furthermore, the
District Court judge encouraged regular personal contacts between the
child and her parents in order to avoid alienation.
The Court
further observes that visiting contacts were instituted under the
Youth Office’s supervision as early as April 1999 and appear to
have been continued on a more or less regular basis throughout most
of the proceedings before the District Court. Having regard to S.’s
consistent resistance to contacts with her mother, which she only
gave up during the hearing before the Berlin Court of Appeal, the
Court considers that the instigation of visiting contacts was
essential for eventually deciding the question of access rights in
the applicant’s favour.
- In
view of the above, the Court considers that the length of the
proceedings before the civil courts can still be regarded as being
reasonable. There has, accordingly, been no violation of Article 6 §
1.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant alleged that the domestic decisions on access and parental
authority infringed her right to respect for her family life, as
guaranteed by Article 8 of the Convention, which provides:
“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
Government contested that argument.
A. Admissibility
1. The Government’s submissions
- The
Government maintained that the applicant had failed to exhaust
domestic remedies within the meaning of Article 35 § 1 of the
Convention, as she had failed to satisfy the formal requirements for
lodging a constitutional complaint. In particular, she had failed to
submit the
Pankow-Weissensee District Court’s decision
dated 24 April 2003 within the statutory time-limit of one month
following delivery of the impugned decision. Even though the
Constitutional Court, in its decision given on
12 October 2004,
did not explicitly refer to the inadmissibility of the applicant’s
complaint, this became clear from the correspondence which had taken
place between the applicant’s counsel and that court’s
registry.
The Government further alleged that the applicant,
before the Constitutional Court, exclusively referred to the
withdrawal of parental authority, but did not complain about the
regulation of access rights.
2. The applicant’s submissions
- The
applicant contested this view. She argued that her constitutional
complaint had not been inadmissible and that it had not been declared
inadmissible by the Federal Constitutional Court. As regards the
Government’s objection that she did not complain before the
Constitutional Court about the regulation of access rights, the
applicant pointed out that the impugned decision expressly concerned
the regulation of access rights.
3. The Court’s assessment
- The Court reiterates that the purpose of Article 35 is
to afford the Contracting States the opportunity of preventing or
putting right the violations alleged against them before those
allegations are submitted to the Court (see, among other authorities,
Civet v. France [GC], no. 29340/95, § 41,
ECHR 1999 VI). Whereas Article 35 § 1 of the
Convention must be applied with some degree of flexibility and
without excessive formalism, it does not require merely that
applications should be made to the appropriate domestic courts and
that use should be made of remedies designed to challenge decisions
already given. It normally requires also that the complaints intended
to be brought subsequently before the Court should have been made to
those same courts, at least in substance and in compliance with the
formal requirements and time-limits laid down in domestic law (see,
among other authorities, Cardot v. France, judgment of 19
March 1991, Series A no. 200, p. 18, § 34;
Elçi and others v. Turkey, nos. 23145/93 and
25091/94, § 604, 13 November 2003; Uhl v. Germany
(dec.), no. 64387/01, 6 May 2004).
- Turning
to the circumstances of the present case, the Court observes that the
Federal Constitutional Court declined to consider the applicant’s
complaint without giving any reasons for its decision. As the Court
has already found in comparable cases (see Süss v. Germany
(dec.), no. 63309/00, 13 October 2005; Petersen v. Germany
(dec.), nos. 38282/97 and 68891/01, 12 January 2006 and argumentum
a fortiori Uhl v. Germany, no. 64387/01, 6 May 2004),
it is not its function in such circumstances to substitute itself for
the Federal Constitutional Court and to speculate why that court
decided not to admit the applicant’s complaint. It follows that
the applicant has to be regarded as having exhausted domestic
remedies.
- As
regards the Government’s objection that the applicant’s
constitutional complaint did not refer to the regulation of access
rights, the Court observes that the Berlin Court of Appeal’s
decision dated
12 January 2004 concerned both the regulation of
access rights and the withdrawal of parental authority and that there
is no indication that the applicant intended to limit the scope of
her constitutional complaint to the latter issue.
- The Court further notes that this complaint is not
manifestly
ill-founded within the meaning of Article 35 § 3
of the Convention and that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
- The
applicant alleged that the impugned decisions had not been in
accordance with the law. There had, in particular, never been a
reason to separate her from her child. There was no indication that
the applicant had been in any way unable adequately to raise the
child. Neither had it ever been established that the child’s
return to her would jeopardise the child’s welfare. She had not
given a valid consent to the child’s placement in the foster
family, as she had acted under the threat that the child would
otherwise be permanently placed in a children’s home. She
further complained that she had been denied any access to her child
during the first two years of her placement with the foster family,
and that she had not been informed about her daughter’s
whereabouts during that time. The State’s failure to prepare
the ground for a family reunification had led to the alienation
between herself and her daughter.
- According
to the applicant, the withdrawal of parental authority had been the
result of arbitrary State actions combined with a number of
procedural mistakes and the excessive length of the proceedings
before the District Court. Contrary to the pertinent legal
provisions, the District Court had failed to hear the child and the
foster parents.
(b) The Government
- The
Government pointed out that the circumstances relating to the child’s
placement in the foster family did not form the subject-matter of the
present application. They emphasised, however, that the applicant had
given her consent to the child’s placement with the foster
family. During the child’s stay with the foster family, the
authorities attempted to promote contact between S. and her parents
and to help in particular mother and daughter to come closer by means
of regular talks and agreements on access.
- According
to the Government, the first applicant’s right to respect for
her family life had not been violated. While conceding that the
impugned decisions interfered with the applicant’s rights under
Article 8 § 1 of the Convention, the Government considered that
this interferences had been justified within the meaning of paragraph
2 of that same Article.
The measures taken had been in accordance
with the law and necessary in order to avert danger from the child’s
welfare. The Court of Appeal had based its decision on parental
authority on expert opinion and, in particular, on the child’s
consistent refusal to get in touch with the applicant.
The
regulation on access rights was based on section 1684 § 4 of the
Civil Code and respected the wishes and needs of the persons
concerned.
It allowed mother and daughter to carefully come close
without overburdening the daughter, who was not ready to accept any
additional contacts. Furthermore, the measures taken were
proportionate. In this respect, the Government pointed out that the
regulations on access rights did not exclude an extension of future
visiting contacts.
2. The Court’s assessment
- The
Court notes, at the outset, that the applicant did not contest her
daughter’s original placement in the foster family before the
domestic courts and that she did not lodge a request with the
domestic courts to be granted access rights before February 1999. It
follows that the circumstances surrounding the child’s
placement in the foster family in June 1997 and the Youth Office’s
activities before February 1999 do not fall within the scope of the
present complaint.
- The
Court observes that the parties agree that the withdrawal of parental
authority and the limitation imposed on access rights interfered with
the first applicant’s right to respect for her family life, as
guaranteed by Article 8 § 1. The Court, having regard to its
case-law, endorses this assessment. Any such interference will
constitute a violation of this Article unless it is in accordance
with the law, pursues an aim or aims that are legitimate under
paragraph 2 of Article 8 and can be regarded as “necessary in a
democratic society”.
- The
Court accepts that the decisions at issue had a basis in national
law, namely sections 1671 and 1684 § 4 of the Civil Code, and
that they were aimed at protecting the best interest of the child,
which is a legitimate aim within the meaning of paragraph 2 of
Article 8 (see Keegan v. Ireland, judgment of 26 May
1994, Series A no. 290, p. 20, § 44 and
Görgülü v. Germany, no. 74969/01,
§ 37, 26 February 2004). It therefore remains to be
determined whether the decisions could be regarded as “necessary
in a democratic society”.
(a) General principles
- In this respect, the Court has to consider whether,
in the light of the case as a whole, the reasons adduced to justify
these measures 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 Sahin
and Sommerfeld v. Germany [GC], nos. 30943/96 and
31871/96, § 64 and § 62 respectively, ECHR 2003-VIII; T.P.
and K.M. v. the United Kingdom [GC], no. 28945/95, § 71,
ECHR 2001-V; Görgülü, cited above, § 41
and Wildgruber v. Germany (dec.), no. 32817/02, 16 October
2006).
- 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. In particular when deciding
on custody, the Court has recognised that the authorities enjoy a
wide margin of appreciation. However, a stricter scrutiny is called
for as regards any further limitations, such as restrictions placed
by those authorities on parental rights of access, and as regards any
legal safeguards designed to secure an effective protection of the
rights of parents and children to respect for their family life. Such
further limitations entail the danger that the family relations
between a young child and one or both parents would be effectively
curtailed (see Elsholz v. Germany [GC], no. 25735/94, §
49, ECHR 2000-VIII; Kutzner v. Germany, no. 46544/99, §
67, ECHR 2002-I; and Görgülü, cited above, §
42).
- Although the essential object of Article 8 is to
protect the individual against arbitrary action by the public
authorities, there may in addition be positive obligations inherent
in an effective “respect” for family life. Thus, where
the existence of a family tie has been established, the State must in
principle act in a manner calculated to enable that tie to be
developed and take measures that will enable parent and child to be
reunited (see Margareta and Roger Andersson v. Sweden,
judgment of
25 February 1992, Series A no. 226 A, p. 30 §
91; Olsson v. Sweden (no. 2), judgment of 27 November 1992,
Series A no. 250, pp. 35-36, § 90; Ignaccolo-Zenide v.
Romania, no. 31679/96, § 94, ECHR 2000 I; and Gnahoré
v. France, no. 40031/98, § 51 ECHR 2000 IX). However,
the parent cannot be entitled under Article 8 to have such measures
taken as would harm the child’s health and development (see
Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR
2000 VIII and T.P. and K.M., cited above, § 71).
- The
Court finally 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., cited above, § 72; Sahin, cited above, §
68 and Sommerfeld, cited above, § 66).
(b) Application of these principles in the present
case
i. As regards the withdrawal of parental authority
- Turning
to the reasons given by the domestic courts for withdrawing parental
authority from the applicant, the Court notes that the Berlin Court
of Appeal considered that S. had become deeply rooted with the foster
family, where she had lived for six and a half years. Referring to
expert opinion, that court considered that it would cause the child
serious psychological damage if she were removed from the foster
family against her will. The Court of Appeal further observed that
the applicant was not ready to accept the child’s remaining
with the foster family, while the father was ready to accept the
child’s continued stay with them. The Court of Appeal thus
considered that the child’s father was better placed to
exercise parental authority. The Court further observes that the
Court of Appeal, unlike the District Court, did not transfer parental
authority to the Youth Office, but to the child’s father. In
view of this, the Court is satisfied that the domestic courts’
decisions can be taken to have been in S.’s best interests
which, due to their serious nature, must override the applicant’s
interest in maintaining parental authority.
- In
assessing whether those reasons were also sufficient for the purposes
of Article 8 § 2, the Court will notably have to determine
whether the decision making process, seen as a whole, provided the
applicant with the requisite protection of her interests. The Court
notes that the applicant, assisted by counsel, was in a position to
put forward all her arguments in favour of retaining parental
authority both personally and in written form. The evidential basis
for the District Court’s decision further included the
statements of S., the curator ad litem, the father, the foster
parents, and the Youth Office. Furthermore, the District Court based
its decision on expert opinion and on the written comments submitted
by the psychological expert L. The Court of Appeal based its decision
on the content of the case-file and on a fresh hearing of all
interested parties. The Court finally observes that the length of the
proceedings before the family courts was acceptable under the
circumstances of this specific case, as set out above (see §§
77-86, above). Accordingly, the Court considers that the decision
making process, seen as a whole, provided the applicant with the
requisite protection of her interests.
- Having
regard to the balancing of interests, the Court attaches weight to
the fact that the Berlin Court of Appeal – unlike the
Pankow-Weissensee District Court – did not completely
withdraw parental authority from both parents, but transferred it to
the child’s father. Taking into account the wide margin of
appreciation granted to the domestic authorities in issues regarding
custody (see § 103, above) the Court accepts that this measure
could be regarded as necessary in a democratic society. There has,
accordingly, been no violation of Article 8 in this respect.
ii. As regards the regulation of access rights
- With
regard to the regulation of access rights, the Court notes that the
Pankow-Weissensee District Court, in its decision given on
24
April 2003, suspended the applicant’s access rights for the
period of one year. The Berlin Court of Appeal, in its decision given
on 12 January 2004, overturned the District Court’s decision
and granted the applicant monthly visiting rights of a length of five
and a half hours each. The Court of Appeal considered this extent of
access rights, to which the child S. had given her consent during the
hearing, both necessary and sufficient to give the applicant and her
child the possibility to get closer again. It also stated that the
child was free to visit her mother at any other time if she should
wish to do so.
- The
Court notes, at the outset, that the applicant’s access to her
daughter S. was effectively suspended for a period of some 8 months
until the Court of Appeal overturned the District Court’s
decision given on
24 April 2003. The Court further observes that
S., who was at the time almost thirteen years of age, consistently
declared before the District Court that she did not wish to have
contact with the applicant and only gave up her resistance during the
hearing before the Court of Appeal under the prospect that court
proceedings would come to an end.
- Having
already found that the decision-making process, seen as a whole,
provided the applicant with the requisite protection of her interests
(see § 107, above), the Court, even applying a strict
scrutiny as the applicant’s access rights were concerned,
cannot find that the German courts did not sufficiently take into
account the applicant’s interests. In this respect, the Court
attaches particular weight to the fact that the Berlin Court of
Appeal did not exclude an extension of access rights in the future,
but expressly declared that S., who had reached the age of thirteen,
was free to visit her mother more frequently if she should wish to do
so.
- There
has, accordingly, been no violation of Article 8.
III. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
- The
applicant further complained about the fact that her daughter S., in
spite of having been raised in a catholic family, had been taken to a
protestant foster family and had not been sent to first communion.
She relied on Article 9 of the Convention, which reads as
follows:
“1. Everyone has the right to freedom
of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion
or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the
interests of public safety, for the protection of public order,
health or morals, or for the protection of the rights and freedoms of
others.”
- The
Government considered that the applicant’s complaint fell to be
examined under Article 8 and Article 2 of Protocol No. 1 to the
Convention. They submitted, however, that this complaint was
inadmissible as the applicant, who held joint parental authority
together with the child’s father until the District Court’s
decision of 24 April 2003, did not take any joint action together
with the father in order to influence the child’s religious
education. They further alleged that the applicant had not
established that she had raised the issue of her daughter’s
attending first communion either before the Youth Office or before
the domestic courts.
- The
Court notes that the applicant has not established that she had
raised the issue of her daughter’s religious practice and
education before the domestic courts. It follows that this complaint
must be rejected under Article 35 §§ 1 and 4
of the Convention for non-exhaustion of domestic remedies.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained about being obliged to pay the costs
incurred by her daughter’s placement in the foster family.
- The
Court observes that the applicant has not established that she lodged
a constitutional complaint against the final decision on
accommodation costs given by the Berlin-Brandenburg Administrative
Court of Appeal on 19 September 2005. It follows that also this
complaint must be rejected under Article 35 §§ 1
and 4 of the Convention for
non-exhaustion of domestic
remedies.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaints concerning
the length of the proceedings before the civil courts and concerning
the withdrawal of parental authority and the regulation of access
rights admissible and the remainder of the application inadmissible;
- Holds by four votes to three that there has been
no violation of
Article 6 § 1 of the Convention;
- Holds unanimously that there has been no
violation of Article 8 of the Convention;
Done in English, and notified in writing on 10 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
P.L.
C.W.
JOINT PARTLY DISSENTING OPINION OF JUDGES LORENZEN,
TSATSA-NIKOLOVSKA AND BORREGO BORREGO
While
we agree with the majority that there has been no violation of
Article 8 of the Convention, we are not able to find that there
likewise has been no violation of Article 6 § 1 of the
Convention.
The
proceedings concerning the applicant’s access right lasted some
five years and eight months and the parallel proceedings relating to
parental authority some four years and three months. Both set of
proceedings were heard by three levels of jurisdiction. Whereas the
Court of Appeal and the Constitutional Court conducted the
proceedings speedily, respectively within some five months and eight
months, it took the District Court no less than four years and five
months to decide the access case and a little more than three years
to decide the case on parental authority.
Recalling
that special diligence is needed in cases relating to civil status,
not least cases like the present one where the time-element may be
crucial for the outcome, such a lengthy period is only justified in
special circumstances and provided not only that the proceedings were
conducted without delays, but also that the procedural decisions
taken served the best interests of the parties.
We
admit that national courts may often be better placed in such cases
to rule what is necessary in order to provide the best basis for the
decisions to be taken, and we do not dispute that the District Court
acted with the clear aim of improving the personal relationship
between the applicant and her daughter in order to make access
possible. However, when assessing the length of the proceedings it
must not be overlooked that the applicant’s daughter had been
placed in a foster family at the initial stage of the divorce
proceedings and that this placement was originally planned only as a
short-time measure. Furthermore we consider it important that the
Court of Appeal did not agree with the way the proceedings had been
conducted by the District Court, but stated that they “could
and should have been conducted in a considerably more stringent way”
(cf. § 55 of the judgment).
On
this background it is our opinion that the proceedings were not
terminated within a reasonable time and that accordingly there has
been a violation of Article 6 § 1 of the Convention.
