Lexploria

The European Commission of Human Rights sitting in private

on 15 May 1986, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of

Human Rights and Fundamental Freedoms (Art. 25);

Having regard to the application introduced on 18 April 1985 by

U. and G.F. against the Federal Republic of Germany and

registered on 10 June 1985 under file No. 11588/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as they have been submitted by the applicants

may be summarised as follows:

The applicants, a married couple, are German citizens resident in

Stade, Germany. Before the Commission they are represented by

Mr. Priebisch, a lawyer practising in Stade.

The first applicant, born in 1943, is a labourer. The second

applicant, born in 1948, is a housewife. She has one child born out

of wedlock who is currently under statutory guardianship. Four

children were born in wedlock.

As regards the eldest child, born in 1975, both applicants were

convicted for having caused bodily harm to this child in 1977. The

child was placed under statutory guardianship the same year and has in

the meantime been adopted by foster parents.

The present application concerns the three other children, born in

1977, 1978 and 1979 respectively, and living in foster families. The

applicants' previous application (No. 10841/84) to the Commission was

declared inadmissible on 2 October 1984. While it concerned the loss

of custody over these three children, it is not directly related with

the present application based on new and separate complaints.

On 22 October 1979, the Stade District Court (Amtsgericht) partially

withdrew the applicants' custody over these three children in order to

render possible the necessary medical treatment of the children.

On 7 December 1979, the court issued a temporary order (einstweilige

Anordnung) for the transfer of the applicants' custody to the District

Youth Office. Each child was then placed in a foster family.

After the transfer of the applicants' custody over these three

children to the Stade District Youth Office on 15 July 1981, the

respective foster families in the meantime expressed their wish to

adopt the children.

On 1 March 1984, following a request of the Stade District Youth

Office, the Stade District Court ordered that the applicants' consent

to an adoption of these children was replaced by a court order

according to S. 1748 para. 1 of the German Civil Code. S. 1748

para. 1 provides for the judicial replacement of a parent's consent to

adoption, if the parental duties to the child have been continuously

violated in a gross manner and if the omission of the adoption would

prove an unreasonable disadvantage to the child.

The Stade District Court proceeded from the fact that the applicants

had been convicted on the ground of having caused bodily harm to their

eldest child. Nevertheless they had refused educational assistance by

public institutions and the church in respect of the three other

children born afterwards. The court then referred to the custody

proceedings and pointed out that it had first partially withdrawn the

custody in view of their medical treatment. During the medical

treatment at the local hospital, the pediatricians established

seriously retarded developments and impaired health of the children,

which arose from an objective neglect (objektive Vernachlässigung) on

the part of the applicants. In a first medical opinion of 1981, which

had been ordered during the custody proceedings, the expert

Prof. W. stated that the applicants' ability to educate their children

was seriously reduced in view of the first applicant's slight weakness

of mind in combination with his predominant position in the family.

In the second report of 1982 Prof. W. concluded after a further

examination that the children could not be given back to the

applicants without seriously affecting their well-being. The

children's separation from their respective foster families would

necessarily amount to a shock and set them back in their development

with unknown consequences. The court concluded that these facts which

had led to the loss of custody demonstrated the applicants' gross and

continuous neglect of parental duties within the meaning of S. 1748

para. 1 of the Civil Code. Not to order the adoption of the children

would entail an unreasonable hardship for the respective children. In

particular without being adopted they would not be able fully to

integrate into their respective foster families and to develop

normally.

The applicants' appeal was dismissed by the Stade Regional Court

(Landgericht) on 25 April 1984. The court held that both requirements

of S. 1748 para. 1 of the Civil Code, i.e. the gross violations of

parental duties and the unreasonable disadvantage in the case of an

omission of the adoptions, had been properly established.

The court proceeded from the medical opinions which had been delivered

by two pediatricians after the first examination at the hospital in

1979 as well as from the several opinions of Prof. W. in 1981 and

1982.The court separately considered the situation of each child, the

seriously retarded development of the children and the injuries to

their health. The court concluded that these shortcomings were due to

the applicants' disability to educate their children which was

confirmed by the medical opinion of Prof. W. The latter had referred

in his opinion to a lack of the first applicant's intelligence

combined with the unreasonable refusal to accept outside educational

assistance. Moreover, the court observed that according to a further

report of a diaconate institution (Diakonisches Werk) dated

7 June 1983, the children's well-being would require their continued stay

with the respective foster families. A separation would amount to a

shock for the children and would jeopardise the continuous development

which the applicants would not be able to handle capably. The adoption

appeared to be the only means of providing legal security, for the

children's future well-being and normal development in their

respective foster families.

The applicants' further appeal was rejected on 25 July 1984 by the

Celle Court of Appeal (Oberlandesgericht) which held that the previous

instance had correctly applied the German law. It had been justified

to rely, inter alia, on the medical expert's opinion of 1982 and had

not violated its legal duty to clear all aspects of the case.

The court observed that the applicants had grossly failed to take care

of their children and that they had thereby caused serious

retardations in development. The court pointed out that the

applicants had known about the serious consequences of a child's

neglect after the loss of custody and the adoption of their eldest

son. Moreover, not to order the adoption would impair the four years'

continuous education and sever the strong personal bonds which had

developed within the respective foster families and would amount to

unreasonable disadvantages.

On 12 October 1984, the Federal Constitutional Court dismissed the

applicants' constitutional complaint as it offered no prospect of

success. The decision was received by the applicants' representatives

on 19 October 1984.

The court found that from a constitutional point of view no objections

could be made to the decisions to replace the applicants' consent to

their children's adoption. The conditions provided for by law had

been well established by the previous courts. In particular, the

previous courts had not been required to order a further medical

opinion as there had been no indication that such an opinion would

have given different results.

COMPLAINTS

1. The applicants complain that their consent to their children's

adoption has been replaced by a court order so that they will now

finally lose their children. They specially refer to the fact that

the German courts relied on the opinion of only one medical expert

delivered during the previous proceedings concerning the children's

custody. The applicants invoke Article 8 of the Convention (Art. 8).

2. Under Article 12 of the Convention (Art. 12), the applicants

complain about not being able to continue their marriage together with

these three children.

THE LAW

1. The applicants complain under Article 8 of the Convention

(Art. 8) of the judicial replacement of their consent to their

children's adoption. Article 8 (Art. 8) reads:

"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 Commission observes that the German courts decided to replace the

applicants' consent to their children's adoption and thereby created

the conditions to a final legal separation between the applicants and

their children. This measure constituted a serious interference with

the applicants' right to respect for their family life, protected by

Article 8 of the Convention (Art. 8).

The Commission's next task is to examine whether or not such

interference was justified under Article 8 para. 2 of the Convention

(Art. 8-2).

The Commission notes that the German courts' decision was taken in

accordance with the domestic law, as laid down in S. 1748 para. 1 of

the German Civil Code.

The Commission furthermore considers that the interference had a

legitimate aim under Article 8 para. 2 (Art. 8-2), namely the health

and future well-being of the children. It remains to be determined

whether or not the decision to replace the applicants' consent to

their children's adoption was "necessary in a democratic society" to

protect the children's interests.

The Commission is aware that only the most pressing grounds can be

sufficient in a democratic society to justify the disruption of

existing family ties even where the material conditions of a family

are poor (see No. 8059/77, Dec. 3.10.1978, D.R. 15 p. 208).

The Commission first observes that under the relevant S. 1748 para. 1

of the Civil Code the replacement of a parent's consent to his child's

adoption by a court order is subject to the two strict requirements

that gross and continuous violations of parental duties must have been

established as well as that the omission of the adoption must prove an

unreasonable disadvantage to the child concerned.

On the one hand, the courts had special regard to the serious retarded

development of the children as well as to injuries and their state of

health in general. The courts based their findings on the reports of

a medical treatment immediately after the children's separation from

the applicants as well as by further medical opinions during the

custody proceedings in 1981 and 1982.

The courts moreover considered the applicants' disability to take due

care of their children on the basis of the medical opinion of

Prof. W. of 1982 and in view of the previous conviction on the ground of

having caused bodily harm to the eldest child which was placed under

statutory guardianship in 1977 and adopted afterwards. Nevertheless,

the applicants had objected to educational assistance and refused the

necessary medical treatment. It was in fact this refusal to have the

children medically treated which was at the basis of the first

decision in 1971. The applicants though still claiming the ability to

educate their children properly have not substantiated any new facts

supporting this affirmation and, thereby, rendering a new expert

opinion necessary.

On the other hand, the courts considered Prof. W.'s medical opinion of

1982 and a further opinion of a diaconate institution of 1983 insofar

as they confirmed the children's progress in their respective foster

families and the need to provide for legal security.

Furthermore, they indicated that a separation of the children and

their respective foster families after four years' continuous

education would create a risk for negative effects on the children's

developments.

The Commission notes that the children were taken into public care at

the age of two years, one year and six months. They had apparently no

contact with their parents since then. They have been integrated well

into their respective foster families.

It concludes that the replacement of the applicants' consent to the

adoption of their children was necessary in a democratic society for

the protection of the health and the rights of the children concerned

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

2. The applicants also complain under Article 12 of the

Convention (Art. 12) about not being able to continue their marriage

together with their children. However, the Commission finds no

separate issue under this Article (Art. 12) in relation to the

complaints examined under Article 8 of the Convention (Art. 8).

It follows that the application as a whole is manifestly ill-founded

within the meaning of Article 27, para. 2 of the Convention

(Art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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U. and G.F. v. THE FEDERAL REPUBLIC OF GERMANY

U. and G.F. v. THE FEDERAL REPUBLIC OF GERMANY

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