Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21947/93

by E.F.

against Switzerland

The European Commission of Human Rights (First Chamber) sitting

in private on 30 June 1993, the following members being present:

MM. F. ERMACORA, Acting President of the First Chamber

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 January 1993 by

E.F. against Switzerland and registered on 1 June 1993 under file

No. 21947/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant, a Swiss citizen born in 1937, is a housewife

residing at Kronbühl in Switzerland.

The case concerns the placement of two children, Elvira, born in

1981, and Chantal, born in 1983. Their parents are Mr. and Mrs. G.

From 1983 until 1992 the applicant acted as foster mother to these

children.

Particular circumstances of the case

In 1983, when Mrs. G. was expecting her second child, the

St. Gallen social authorities organised an apartment for the mother and

Elvira in the applicant's house. Thereafter, the applicant supported

Mrs. G. in the education of the children.

Mr. and Mrs. G. divorced in 1984. According to the divorce

judgment, Mrs. G. kept parental custody of the children who were

nevertheless placed under educational tutorship

(Erziehungsbeistandschaft).

In 1986 tension arose between the applicant and Mrs. G. whereupon

Mrs. G. left the apartment. The children remained with the applicant.

On two weekends per month, however, the children visited their mother.

In 1989 the applicant and Mrs. G. concluded a contract concerning

the terms of fosterage (Pflegeverhältnis) of the children. The

educational tutor was not involved in this contract. Parental custody

continued to lie with Mrs. G.

In 1989 Mrs G. remarried, though this did not affect the

fosterage arrangement. On the other hand, against Mrs. G.'s will, the

applicant henceforth permitted the children to visit their mother only

once a month.

As from 1991 the applicant refused to let the children visit Mrs.

G. on the ground that Mrs.G.'s new husband had indecently touched them.

Difficulties arose with the children in their progress at school.

The St. Gallen guardianship authorities (Vormundschaftsbehörde)

thereupon ordered a psychiatric expert opinion of the children. The

expert opinion, submitted on 11 December 1991 by a doctor, concluded

that both children required psychotherapy, and that they should only

remain with the applicant if she accepted psychotherapeutic treatment

of the children and that she herself underwent educational counselling.

However, the applicant resisted the children's psychotherapy as

well as her own educational counselling. As a result, on 24 March 1992

the educational tutor requested the guardianship authorities to place

the children in a foster home or in a therapeutic family

(heilpädagogische Grossfamilie). Reference was also made to Elvira's

difficulties at school.

In April 1992 Mrs. G. terminated the fosterage contract with the

applicant and requested the guardianship authorities to place the

children elsewhere.

The applicant expressed her surprise when confronted with this

request. She considered that as a mother of five children she was in

a good position to educate Elvira and Chantal. The applicant advised

against "doctoring" ("herumgedökterlt") the children and refused to

allow psychotherapy.

On 10 July 1992 the St. Gallen guardianship authorities decided

that the children should be placed away from the applicant, and it

ordered the tutor to find a home or a family for the children. It also

terminated Mrs. G.'s parental custody. Relying on Section 310 para.

1 of the Swiss Civil Code (Zivilgesetzbuch, see below, Relevant

domestic law), the decision referred in particular to the conclusions

of the psychiatric expert opinion; the continuing difficulties between

the mother and the applicant; and the fact that the applicant refused

to accept psychotherapy for the children and educational counselling

for herself.

The applicant filed an appeal with the Council of State of the

Canton of St. Gallen (Regierungsrat). In these proceedings she

insisted that the children undergo a Christian therapy. The appeal was

dismissed on 20 October 1992.

The applicant's public law appeal (staatsrechtliche Beschwerde)

was dismissed by the Federal Court (Bundesgericht) on 23 December 1992.

The Court first addressed the issue whether the applicant was

entitled to file the appeal. It noted that a close relationship often

arose between children and their foster parents, and that in the

present case the guardianship authorities had not been involved in the

fosterage arrangement.

The Court nevertheless decided not to resolve this issue since

it considered that the appeal was in any event unfounded. Insofar as

the applicant claimed that she had not resisted psychotherapy, the

Court noted that according to the case-file she had stated that she

would only accept such therapy if God instructed her to do so, or if

the therapy was Christian. The Court agreed with the previous instance

that the applicant's religious convictions had contributed to the

difficulties. Finally, it considered that the measure was in the best

interests of the children.

The children have meanwhile been placed in a children's home in

Zizers in Switzerland.

Relevant domestic law

Section 310 para. 1 of the Swiss Civil Code (Zivilgesetzbuch)

states that "if there are no other means to avoid damage to a child,

the guardianship authorities have to take it away from the parents or,

if it is with a third person, from the latter, and ensure its adequate

placement" ("Kann der Gefährdung des Kindes nicht anders begegnet

werden, so hat die Vormundschaftsbehörde es den Eltern oder, wenn es

sich bei Dritten befindet, diesen wegzunehmen und in angemessener Weise

unterzubringen").

COMPLAINTS

The applicant complains under Article 8 of the Convention that

she no longer has fosterage over the children. She claims that the

present situation is damaging for them. The applicant also relies on

Articles 5, 7, 9, 10 and 11 of the Convention.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention that she no longer has fosterage over the children.

Article 8 (Art. 8) of the Convention states:

"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 question arises whether the applicant can claim a "right to

respect for (her) family life" within the meaning of Article 8

(Art. 8) of the Convention. The Commission notes, on the one hand,

that the applicant is not the mother of the children concerned. On the

other hand, the children have been living with the applicant since

1983, in the case of Elvira, and in the case of Chantal since her

birth. As a result, a close relationship has apparently arisen between

the applicant and the children.

The Commission need not resolve this issue. Thus, even if the

applicant could invoke Article 8 para. 1 (Art. 8-1) of the Convention,

and there had been an interference with the rights under this provision

since the children have been taken away from the applicant, this part

of the application would in any event be inadmissible for the following

reason.

The Commission observes that the domestic authorities, when

deciding on the placement of the children, relied on Section 310 para.

1 of the Swiss Civil Code. The measure was therefore "in accordance

with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention.

Moreover, when deciding on the placement of the children, the

authorities relied on the advice of a medical expert. The authorities

in fact envisaged the possibility of leaving the children with the

applicant, if the she accepted psychotherapeutic treatment of the

children and she herself underwent educational counselling. However,

in view of the applicant's resistance to such treatment, the

authorities found that it was in the interests of the children to take

them away from the applicant and to place them either in a foster home

or in a therapeutic family.

The Commission thus accepts that any interference with the

applicant's right to respect for her family life could reasonably be

considered "necessary in a democratic society ... for the protection

of health (and) morals (and) the rights and freedoms of others", namely

the children concerned.

If considered as an interference, the measure complained of was

therefore justified under Article 8 para 2 (Art. 8-2) of the

Convention. It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 8-2) of the

Convention.

2. Insofar as the applicant also relies on Articles 5, 7, 9, 10

and 11 (Art. 5, 7, 9, 10, 11) of the Convention in support of her

application, the Commission finds no issue under these provisions. The

remainder of the application is, therefore, also manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber Acting President of the

First Chamber

M.F. BUQUICCHIO F. ERMACORA

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E.F. v. SWITZERLAND

E.F. v. SWITZERLAND

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