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FIRST
SECTION
CASE OF KOPF AND LIBERDA v. AUSTRIA
(Application
no. 1598/06)
JUDGMENT
STRASBOURG
17
January 2012
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 Kopf and Liberda v.
Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1598/06)
against the Republic of Austria lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by two
Austrian nationals, Ms Anna Kopf and Mr Viktor Liberda (“the
applicants”), on 22 December 2005.
- The
applicants were represented by Mr P. Ozlberger, a lawyer practising
in Vienna. The Austrian Government (“the Government”)
were represented by their Agent, Ambassador H. Tichy, Head of the
International Law Department at the Federal Ministry for European and
International Affairs.
3. The
applicants alleged, in particular, that the belated decision of the
Austrian courts on their request for the right to visit their former
foster child breached their right to respect for their family life.
- On
17 December 2008 the President of
the First Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1953 and 1943 respectively and
live in Vienna.
- In 1997 the biological mother of F., then two years old
and born out of wedlock, set her apartment on fire after having
consumed drugs. The mother and her child were rescued and, on 19
December 1997, the Vienna Youth Welfare Office (Amt für
Jugend und Familie) handed F. over to the applicants as
foster parents.
- The
applicants subsequently tried to obtain custody of F. and wanted to
adopt him. F.’s mother recovered and was at first allowed
access to visit her son. She then tried to obtain custody of F.,
which led to arguments between her and the applicants. Since these
disputes were to the detriment of F., he was given to a “crisis
foster family” (Krisenpflegefamilie) on 25 October
2001 for approximately eight weeks. After that period F. was handed
over to his biological mother, who obtained provisional custody of
him following a decision of the Vienna Juvenile Court
(Jugendgerichtshof) on 19 December 2001. This decision
entered into force on 18 December 2002, when the Supreme Court
rejected an appeal by the applicants (Revisionsrekurs).
- In
the meantime on 20 December 2001 the applicants requested the right
to visit F. Thereupon the Juvenile Court asked the Vienna Youth
Welfare Office for their observations on the applicants’
request.
- The
Vienna Youth Welfare Office submitted observations on 31 December
2001, stating that because of the long-lasting relationship between
F. and the applicants it would be inappropriate not to allow access
to the foster parents.
- On
31 January 2002 the Juvenile Court heard the biological mother, who
opposed the granting of visiting rights to the applicants because F.
was in the process of getting used to her again.
- On
8 February 2002 the applicants requested the acceleration of the
proceedings (Fristsetzungantrag) under Section 91 of the
Austrian Court Act.
- On
28 March 2002 the Vienna Juvenile Court Assistance Office (Wiener
Jugendgerichtshilfe) submitted their observations to the Juvenile
Court. In the following months both parties repeatedly filed written
observations on that report. The applicants also requested that an
expert for child psychology be appointed.
- On
2 December 2002 the applicants complained about the length of the
proceedings and requested the opinion of an expert on child
psychology. The biological mother objected to this request.
- On
4 December 2002 the Juvenile Court asked the applicants whether they
were maintaining their request for the appointment of an expert,
given that meanwhile a report by the doctor with whom F. had had
therapy had been obtained. On 10 December 2002 the applicants
informed the court that they insisted on the appointment of an expert
and proposed further questions to be put to the expert appointed.
- On
17 February 2003 the Juvenile Court designated Dr. Sp. as the expert.
The biological mother filed objections against Dr. Sp.
- In
July 2003 the court file was transferred to the Vienna Regional Court
for Civil Matters, which was dealing with an appeal lodged by the
applicants in the custody proceedings concerning F. lodged on 23 May
2003. On an unspecified date the Vienna Regional Court transferred
the file to the Wiener Neustadt Regional Court as it considered that
that court was competent to decide on the appeal. The Wiener Neustadt
Regional Court did so on 19 and 29 January 2004; the file was then
forwarded to the Mödling District Court, which had meanwhile
become competent to deal with custody and visiting-rights
proceedings.
- On
16 December 2003 Dr Sp asked the District Court for leave to be
discharged from the duty to prepare an expert report. He submitted
that a report was not feasible because he had not been given the
opportunity to examine F. thoroughly by F.’s mother.
- The
Mödling District Court held a hearing with the parties on 1
April 2004 in order to discuss how to proceed further with the case.
The judge informed the applicants and the biological mother that he
would ask the Youth Office of the Mödling District
Administrative Authority (Jugendamt der Bezirkshauptmannschaft)
for a final report on the issue of visiting rights.
- P.,
who was the officer in charge at the Youth Office of the Mödling
District Administrative Authority, submitted the report on 29 July
2004. She recommended refusing visiting rights to the applicants,
because the reestablishment of contact with F. after it had been
interrupted for more than two years might harm the psychological
stability of the child. On 17 August and 16 September 2004 the
parties submitted their comments on that report.
- On
3 August 2004 Dr. Z. of the Niederösterreich Child and Youth
Psychological Consulting Office (Kinder- und jugendpsychologischer
Beratungsdienst) also suggested that the applicants should not be
granted access to F., explaining that F. was aware of the
difficulties between his mother and the applicants and therefore, as
a protective measure, had said that he did not want to see the
applicants. Dr. Z. further stated that not seeing the applicants was
not to the detriment of the child. The applicants submitted
observations regarding these recommendations.
- On
9 November 2004 the Mödling District Court rejected the
applicants’ request to visit F. and found that failure to
provide for personal contact (Unterbleiben des persönlichen
Verkehrs) between the applicants and F. did not endanger his
well-being.
- It
found that under Article 148 (4) of the Civil Code a court, upon the
request of a parent, the child, a youth welfare body or of its own
motion had to take the necessary measures if failure to provide for
personal contact between the child and the third person would
endanger his or her well-being. Third persons, in contrast to parents
or grandparents, had no legal right to be granted contact rights and
consequently no legal standing in related court proceedings. They
could merely suggest to the court (anregen) that it examine
the matter of its own motion, and a court could only grant contact
rights if failure to do so would endanger the child’s
well-being.
- Taking
the applicants’ request as such a suggestion, visiting rights
could not be granted. From all the material in the possession of the
District Court it was evident that F. was vehemently opposed to
meeting the applicants, while at the same time he had developed a
close and positive relationship with his mother. The District Court
acknowledged that the applicants had a genuine concern for F.’s
well-being; however, in the present situation the interests of the
applicants did not coincide with the child’s best interests.
Given that F. had not been in contact with his foster parents for
more than three years, the District Court would follow the
conclusions in the reports of P., from the Youth Office of the
Mödling District Administrative Authority, and Dr. Z., from the
Niederösterreich Child and Youth Psychological Consulting
Office. It was quite possible that immediately after F. had been
placed with the “crisis foster family” in October 2001
the granting of visiting rights to the applicants might have been
useful. However, this was no longer the case and it now served the
best interests of the child, who was living with his biological
mother, not to put him back in a situation of divided loyalties
(Loyalitätskonflikt) between her and his “former
family”, the applicants.
- On
6 December 2004 the applicants appealed against the District Court’s
decision. They argued that the refusal of visiting rights breached
their rights under Article 8 of the Convention.
- The
Regional Court dismissed the applicants’ appeal on
17 February 2005. It found that foster parents could file
requests in proceedings concerning the foster child and also had the
right to appeal against decisions. The status of a foster parent was,
however, a matter which depended rather on whether the person
actually cared for the child and whether a lasting emotional link
similar to the one between parents and children had developed. Even
though the applicants had lived with F. for approximately forty-six
months in the same household with the intent to develop such
emotional ties, it was actually more than forty months since they had
had care of him and they could now no longer be considered his foster
parents. Nevertheless, their appeal had to be considered on its
merits, and, for the reasons given by the District Court, granting
visiting rights to them was not in the best interests of F. The
appeal was therefore unfounded.
- On
25 May 2005 the Supreme Court dismissed an extraordinary appeal by
the applicant (außerordentlicher Revisionsrekurs). That
decision was served on the applicants’ counsel on 7 July 2005.
II. RELEVANT DOMESTIC LAW
- Article
148 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch)
reads as follows:
“(1) If one parent does not live in a
common household with a minor child, then the child and this parent
have the right to be in personal contact with each other. The
exercise of this right shall be regulated by mutual consent between
the child and the parents. Whenever such an agreement cannot be
reached, the court shall regulate the exercise of this right in a
manner appropriate for the welfare of the child, upon an application
by the child or a parent, giving due consideration to the needs and
wishes of the child.
(2) If necessary, the court shall restrict or
not permit the exercise of the right to personal contact, especially
if the authorised parent does not comply with his/her obligation
under Section 145b.
(3) Paragraphs (1) and (2) shall apply by
analogy to the relationship between grandchildren and their
grandparents. However, the exercise of the right of grandparents
shall also be restricted or not permitted to such an extent that this
would otherwise disturb the family life of the parents (a parent) or
their relationship to the child.
(4) Where the absence of personal contact
between the minor child and a third party that is ready to engage in
such contact may jeopardise the child’s welfare, the court
shall issue the disposition necessary to regulate the personal
contact upon an application by the child, a parent, the youth welfare
agency, or of its own motion.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained under Article 8 of the Convention that their
right to family life had been infringed as a result of the Austrian
courts’ decisions to refuse them access to their former foster
child. They also submitted that the conduct of the Austrian courts
amounted to a breach of the “reasonable time” requirement
under Article 6 of the Convention. The Government contested that
argument.
- The
Court considers that the complaint should be examined under Article 8
of the Convention, which reads as follows:
“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.”
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) 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
- The
applicants submitted that the District Court had
not rejected the petition for visiting rights on the ground that the
visiting rights would endanger the child’s welfare. The request
had instead been rejected on the ground that not granting visiting
rights to the foster parents would not endanger the welfare of the
child. Such a criterion was not in accordance with the requirements
of Article 8 of the Convention. The Regional Court and the Supreme
Court had not examined what would really be in the child’s
interests but had concentrated on the issue of the applicants’
standing in the proceedings. They had found that because of the
considerable period of time which had elapsed since the proceedings
had started the applicants could no longer be considered F.’s
foster parents. Such an approach was unacceptable. It was the
responsibility of the Austrian courts that the proceedings had been
conducted at such a slow pace and that they had consisted of a
continuing exchange of submissions between the parties, the District
Courts and various youth welfare bodies, whereas the authorities
should have acted particularly speedily given what was at stake for
the applicants and the importance the element of time has in such
proceedings. Once the District Court had made its decision, the
visiting rights had been refused with the argument that it had been a
very long time since the child had been with the applicants. Thus,
the delay caused by the Austrian courts had been used as an argument
for refusing the visiting rights. The applicants did acknowledge the
importance of the child’s welfare but considered that regard
should also be had to the interests of the foster parents.
- The
Government accepted that the judgments of the Austrian courts on the
applicants request for visiting rights constituted an interference
with their right to respect for their family life. That interference
was in accordance with the law, that is, it was based on Article 148
(4) of the Civil Code, and it also served a legitimate aim, namely
the protection of the rights and freedoms of others, that is, the
child concerned and his biological mother. The interference was also
necessary in a democratic society. The Austrian courts had carefully
balanced the interest of the applicants in further personal contact
with their former foster child against the interest of the biological
mother of the child in re-constituting and protecting an undisturbed
and fruitful mother-child relationship, as well as taking into
account the welfare of the child himself. Austrian law attributed a
particularly high priority to the welfare of the child in decisions
on family-law matters and the interests of adults had often to give
way to this priority.
- The
Government also argued that the proceedings on the issue of visiting
rights had been conducted expeditiously; the matter had been complex
and the Austrian courts had done their best to establish the
essential basis for their decisions, whereas the applicants and the
other party to the proceedings had filed numerous applications and
submissions to which the court had had to react, which had inevitably
slowed down the proceedings.
2. The Court’s assessment
- The
Court must first examine whether there existed a relationship
amounting to private or family life between the applicants and F.
within the meaning of Article 8 of the Convention.
- In
this respect the Court reiterates that the notion of “family
life” under Article 8 of the Convention is not confined to
marriage-based relationships and may encompass other de facto
“family” ties (see Anayo v. Germany, no.
20578/07, § 55, 21 December 2010, with
further references). The existence or non-existence of “family
life” for the purposes of Article 8 is essentially a question
of fact depending on the real existence in practice of close personal
ties (see K. and T. v. Finland [GC], no. 25702/94, §
150, ECHR 2001 VII). Although, as a rule, cohabitation may be a
requirement for such a relationship, exceptionally other factors may
also serve to demonstrate that a relationship has sufficient
constancy to create de facto “family ties” (see
Kroon and Others v. the Netherlands, 27 October 1994, §
30, Series A no. 297-C).
- In
the case of Moretti and Benedetti v. Italy the Court
considered the relationship between the applicants as foster parents
and the child entrusted to them, who had lived with them from the age
of one month for a period of nineteen months, as falling within the
notion of family life within the meaning of Article 8 § 1
because there had been a close inter-personal bond between the
applicants and the child and the applicants had behaved in every
respect like the child’s parents (Moretti and Benedetti v.
Italy, no. 16318/07, §§ 49-50, 27 April 2010).
- In
the present case F. came into the applicants’ household at the
age of two and lived with them for a period of approximately
forty-six months. The applicants tried to obtain custody of F. and to
adopt him. In their different decisions the Austrian Courts
acknowledged that the applicants had a genuine concern for F.’s
well-being and that an emotional link between F. and the applicants
similar to the one between parents and children had started to
develop during that period. The Court therefore considers, and this
is not in dispute between the parties, that such a relationship falls
within the notion of family life within the meaning of Article 8
§ 1. Article 8 therefore applies to the present case and the
Court must determine whether there has been a failure to respect the
applicants’ family life.
- As
regards compliance with Article 8, the Court reiterates that although
the object of Article 8 is essentially that of protecting the
individual against arbitrary interference by the public authorities,
it does not merely compel the State to abstain from such
interference: in addition to this primarily negative undertaking,
there may be positive obligations inherent in an effective respect
for private or family life. The boundaries between the State’s
positive and negative obligations under Article 8 do not lend
themselves to precise definition. The applicable principles are
nonetheless similar. In particular, in both instances regard must be
had to the fair balance which has to be struck between the competing
interests; and in both contexts the State enjoys a certain margin of
appreciation Odièvre v. France [GC], no.
42326/98, § 40, ECHR 2003 III).
- The
Court further notes 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. v. the United Kingdom [GC], no. 28945/95, § 72,
ECHR 2001 V (extracts), and W. v. the United Kingdom,
8 July 1987, §§ 62 and 64, Series A no. 121). The
Court has repeatedly found that in cases concerning a person’s
relationship with his or her child there is a duty to exercise
exceptional diligence in view of the risk that the passage of time
may result in a de facto determination of the matter. This
duty is decisive in assessing whether a case concerning access to
children had been heard within a reasonable time
as required by Article 6 § 1 of the Convention
and also forms part of the procedural requirements implicit in
Article 8 (see Kaplan v. Austria, no. 45983/99, §
32, 18 January 2007; Hoppe v. Germany, no. 28422/95, §
54, 5 December 2002; and Nuutinen v. Finland,
no. 32842/96, § 110, ECHR 2000-VIII). The
principle of exceptional diligence applies mutatis mutandis to
the present case.
- The
Court considers that in the present case the essential question is
whether the Austrian courts in their various decisions struck a fair
balance between the competing interests of the applicants, the child
and the biological mother and, in doing so, complied with the
inherent procedural requirements of Article 8 of the Convention. For
this reason the Court will view the case as one involving an
allegation of failure on the part of the respondent State to comply
with its positive obligation under Article 8 of the Convention.
- In
this connection, the Court recalls that its role is not to substitute
itself for the competent domestic authorities, but rather to review
under the Convention the decisions that those authorities have taken
in the exercise of their power of appreciation (see Hokkanen v.
Finland, 23 September 1994, § 55, Series A no. 299 A
).
- The
applicants argued that the Austrian courts had not properly examined
their request for the granting of visiting rights because, on the
basis of Article 148 (4) of the Civil Code, the courts had
concentrated on the issue of whether the applicants had standing in
the proceedings or a right to appeal and had dismissed their request
merely on the ground that the refusal of visiting rights would not
endanger the well-being of F. That was not the kind of weighing of
interests required by Article 8 of the Convention.
- The
Court observes, however, that the District Court did consider the
case on its merits and, as is apparent from its decision, examined
whether contact between the applicants and F. would be in the child’s
best interests. It concluded, however, that it was in the best
interests of the child, who was living with his biological mother,
not to bring him back into a situation of divided loyalties
(Loyalitätskonflikt) between her and his “former
family”, namely the applicants, and the District Court
therefore refused the request. Moreover, the Regional Court examined
the applicants’ appeal on the merits but concluded that the
District Court had correctly resolved the matter before it.
- The
Court, whose task is not to substitute itself for the domestic
authorities in the exercise of their responsibilities regarding
custody and access issues, therefore considers that the domestic
courts, at the time they took their respective decisions, struck a
fair balance between the competing interests. It is not persuaded by
the applicants’ argument that the wording of Article 148
(4) of the Civil Code, which provides for visiting rights only if
“the absence of personal contact between the minor child and
a third party ... would jeopardize the child’s welfare”,
prevented the domestic courts from doing so. In this context the
Court reiterates that, in the balancing process, particular
importance should be attached to the best interests of the child,
which may override those of the parents (see Sahin v. Germany
[GC], no. 30943/96, § 66, ECHR 2003 VIII, and
Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, §
134, 6 July 2010).
- The
applicants also submitted that the Austrian courts had failed to
decide expeditiously on their request, and that had had a direct
impact on the decision taken because when the District Court
eventually decided on the request it concluded that because of the
time that had elapsed since its introduction the granting of visiting
rights was no longer in F.’s best interests.
- The
Court observes that the proceedings on the applicants’ request
started on 20 December 2001, when they asked the District Court to
grant them visiting rights, and ended when the final decision of the
Supreme Court was served on them on 7 July 2005, thus lasting for
three years, six months and thirteen days. Before the District
Court, which took its decision on 9 November 2004, the
proceedings lasted for two years, ten months and eleven days.
During this period the applicants had no contact with F., who had
meanwhile returned to his biological mother. It is true that the case
was of some complexity and the applications filed by the applicants
during the proceedings may have contributed to their length, but this
is not sufficient to explain the total length. On the other hand,
before the District Court, notwithstanding the applicants’
repeated requests for the acceleration of the proceedings, the
proceedings progressed particularly slowly and, on two occasions,
namely between March 2002 and December 2002 (see paragraphs 12-13
above) and between February 2003 and April 2004 (see paragraphs 15-18
above), they came to a standstill, for which no satisfactory
explanation has been furnished by the Government.
- This
passage of time also had a direct and adverse impact on the
applicants’ position. At the beginning of the proceedings the
Vienna Youth Welfare Office recommended that because of the
long-lasting relationship between F. and the applicants a right to
access should be granted, and the District Court, in its decision of
9 November 2004, indicated that if the decision had been taken
earlier there would have been good reasons to grant the request.
Eventually, the District Court, basing itself on reports by the Youth
Office of the Mödling District Administrative Authority and the
Niederösterreich Child and Youth Psychological Consulting Office
drawn up in 2004, dismissed the applicants’ request. From its
decision it is apparent that the passing of time was crucial for the
District Court. It noted that F. had not had contact with his former
foster parents for more than three years, that meanwhile he had
re-established a positive relationship with his biological mother and
that it was not in his interests to put him in a situation of divided
loyalties between her and his “former family”, namely the
applicants.
- In
these circumstances, the Court cannot find that the domestic courts
complied with their duty under Article 8 to deal diligently with
the applicants’ request for visiting rights. The Court,
therefore, finds that the procedural requirements implicit in this
Article were not complied with.
- Accordingly,
there has been a violation of Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 100,000 euros (EUR) in
respect of non-pecuniary damage. They argued that the conduct of the
Austrian courts had caused them profound and lasting psychological
harm as they still had no contact with their foster-child and had no
information on his well-being or development.
- The
Government considered the claim excessive.
- The
Court considers that the applicants must have suffered feelings of
frustration, uncertainty and anxiety which cannot be compensated
solely by the finding of a violation. Making an assessment on an
equitable basis, as required by Article 41, the Court, therefore,
awards the applicants 5,000 EUR in respect of non-pecuniary
damage, plus any tax that may be chargeable to the applicants on this
amount.
B. Costs and expenses
- The
applicants also claimed EUR 4,119.79 for the
costs and expenses incurred before the domestic courts and EUR
6,739.30 for those incurred before the Court.
- The
Government argued that the applicants had failed to show that the
costs claimed for the domestic proceedings had been actually and
necessary incurred in order to ward off the violation of the
Convention found. As regards the costs incurred for the proceedings
before the Court, the amount claimed was excessive. Taking the
correct basis for the calculation of fees under the Austrian law in
respect of lawyer’s fees, only an amount of EUR 3,243.92 was
justified.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above
criteria, the Court considers it reasonable to award the sum
of EUR 5,000, covering costs under all heads, plus any tax that may
be chargeable to the applicants on this amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been a violation of Article
8 of the Convention as regards the duty of the domestic courts to
deal diligently with the applicants’ request for visiting
rights;
- Holds
(a) that
the respondent State is to pay the applicants,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the following amounts:
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
5,000 (five thousand euros), plus any tax that may be chargeable to
the applicants, in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses
the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 17 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
