FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14795/06 by Marina SCHACHURINA against Germany

The European Court of Human Rights (Fifth Section), sitting on 4 September 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 8 April 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Marina Schachurina , is a German national who was born in 1970 and lives in Pirmasens . She was represented before the Court by Mr R. Gappa , a lawyer practising in Dahn .

A. The circumstances of the case

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

1. Background to the case

The applicant is the mother of two children, G., born on 25 July 2000, and K., born on 10 May 2002. As the applicant is mentally handicapped, she is under her mother ’ s custody and lives within the latter ’ s household.

The applicant and the children ’ s father separated in May 2003 and were divorced in November 2005. Both parents ’ families emigrated from the Russian Federation .

2. Custody proceedings

On 28 April 2004 the Pirmasens District Court ( Amtsgericht ) , acting as a family court, ordered an expert opinion as to the parents ’ ability to raise the children and to the children ’ s relationship to their parents and grandparents.

On 7 December 2004 the psychological expert submitted her expert opinion. She considered that the applicant had great difficulties in expressing herself either in a verbal or in a nonverbal way. The children enjoyed a close relationship to her, but regarded her rather as a playmate or older sibling. G., in particular, refused to obey orders. The expert considered that the applicant, with her mother ’ s help, seemed to be able to take care of the children. It appeared, however, that the children were rarely offered further occupation or support in their development.

The child G. was not able to communicate using the German language and showed a retarded development. He was in need of expert support. Furthermore, his milk teeth had been destroyed by caries for lack of dental hygiene.

The expert considered that the applicant tried to be a good mother and did her best to raise the children, but that her abilities were limited, which became particularly apparent in the language development. In many respects, the applicant ’ s development was at a similar stage as that of a child of preschool age. The applicant ’ s mother, who spoke only broken German, tried to satisfy her daughter ’ s as the two grandchildren ’ s needs, but did not appear to be able to cope without external help. The father did not show any interest in raising the children. The paternal grandparents, on the other hand, were both willing and able to take care of the children. Because of their language skills, they were better able to support the children ’ s development than the maternal grandmother. They would, however, also be in need of specialist support in order to catch up on G. ’ s retarded development. The expert further considered that the children had developed a stable relationship to their maternal grandmother as well as to the paternal grandparents, who had previously taken care of them.

The expert recommended that custody rights should be split between the applicant and the paternal grandparents. The grandparents should be given the right to decide about the children ’ s place of residence, while the mother should retain the remaining custody rights in order to assure that she was not alienated from her children. Furthermore, the applicant should be granted generous access rights on every second weekend.

On 27 January 2005 the Pirmasens District Court, following an oral hearing, withdrew custody rights from both parents pursuant to section 1666 of the Civil Code (see relevant domestic law, below) and transferred them to the paternal grandmother. The District Court considered this measure to be necessary in order to avert danger from the children ’ s welfare as the applicant was prevented from adequately raising her children through no fault of her own. Referring to the expert opinion and the concurring recommendations given by the Youth Office, the District Court considered that the applicant was willing to be a good mother, but was unable to recognise the children ’ s needs and to satisfy them appropriately. It was of utmost importance to offer the children, in particular the older son, G., specific support, as G. ’ s development was seriously retarded. As the District Court could confirm during the oral hearing, both children were unable to communicate using the German language. The applicant was unable to promote the children ’ s language skills. It did not appear that the support offered by the applicant ’ s mother was sufficient. In this respect, the District Court referred to the expert ’ s findings that the applicant ’ s mother was unable to cope with the different demands. Having regard to her age and her personal capacities, she was unable to offer the grandchildren permanent and adequate support.

It followed that the children should be raised in the paternal grandparents ’ household. Contrary to the expert ’ s recommendation, the District Court deemed it necessary to transfer complete custody rights to the paternal grandmother in order to allow her to instigate the necessary expert support.

On 16 February 2005 the applicant, who was represented by counsel throughout the proceedings, lodged a complaint. She alleged that the paternal grandmother was not sufficiently able to raise the children, as she was working. The family only spoke Russian at home and planned to move to the Eastern part of Germany . The applicant ’ s mother, on the other hand, was better able to take care of the children. This would also prevent the children from being separated from the applicant.

On 6 April 2005 the Palatinate Court of Appeal ( Pfälzisches Oberlandgesgericht Zweibrücken ) confirmed the District Court ’ s decision. The Court of Appeal considered that the children ’ s care during the grandmother ’ s working hours could be assured by their grandfather, as long as the children were not in kindergarten. The applicant ’ s objections were based on mere assumptions. The maternal grandmother, having regard to her continuing duty to take care of the applicant, would not be able adequately to support the children ’ s development. The court finally conceded that there was a certain risk that the applicant ’ s access to her children could be jeopardised because of the tense relationship between the applicant ’ s mother and the paternal grandparents. This had, however, to be accepted having regard to the fact that the paternal grandparents were clearly better able to support the children ’ s development. If the applicant should be prevented from having access to her children, the family courts would have to examine adequate procedural measures.

On 12 May 2005 the applicant lodged a constitutional complaint. She alleged that the withdrawal of custody rights and the separation from her children violated her right to respect for her family life, as guaranteed by Article 6 of the Basic Law. She considered that the domestic authorities had failed to examine other possibilities which would have enabled her to adequately care for the children.

On 29 November 2005 the Federal Constitutional Court , sitting as a panel of three judges, refused to admit the applicant ’ s complaint.

3. Further developments

By friendly settlement concluded before the Pirmasens District Court on 9 November 2005 the applicant was granted access rights on every second Saturday from 10.00 a.m. until 6.00 p.m., and on the second days of major public holidays. As from January 2006, visiting rights were extended on one weekend per month from Saturday 10 a.m. to Sunday 6 p.m.

On 17 January 2007 the parties agreed that the applicant ’ s visiting rights should be further extended.

By letter of 28 February 2007 the applicant informed the Court that she feared that the paternal grandparents planned to move to the Northern part of Germany , thus jeopardising her access rights.

B. Relevant domestic law

S ection 1666 § 1 of the Civil Code provides that the family courts shall be entitled to take the necessary measures to avert dangers to the physical, mental or spiritual welfare of a child caused by an abusive exercise of parental custody, by neglecting the child or by unintentional failure of the parents if the parents are unwilling or unable to avert the dangers.

Pursuant to section 1666a § 1 of the Civil Code measures which entail a separation of the child from the parents are only permitted if the danger cannot be averted by other means, including aids 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.

COMPLAINT

The applicant complained under Article 8 of the Convention about the withdrawal of custody rights over her two children. She emphasised that she loved her children and that the children loved her. The domestic courts had failed sufficiently to take into account this natural bond. There was no compelling reason to separate her from her children. At least with the help of expert assistance offered by the competent Youth Office – which had strikingly failed in the present case – the children could thrive in the applicant ’ s household.

THE LAW

The applicant alleged that the withdrawal of custody rights violated 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 Court finds that the withdrawal of custody rights over her two sons interfered with the applicant ’ s right to respect for her family life, as guaranteed by Article 8 § 1.

Any 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 considers that the decision at issue had a basis in national law, namely section 1666 of the Civil Code, and that it was 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”. In this respect, the Court has to consider whether, in the light of the case as a whole, the reason s adduced to justify these measure s 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 ; and Gör gülü , cited above, § 41 ).

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 right s 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 ). Furthermore, the fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the “necessity” for such an interference with the parents ’ right (see K. and T. v. Finland [GC], no. 25702/94, § 173 , ECHR 2001 ‑ VII ; and Kutzner , cited above, § 173).

The Court further 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) .

Turning to the reasons adduced by the domestic courts in the instant case, the Court observes that the German courts withdrew the applicant ’ s custody rights over her two sons in order to protect the children ’ s healthy development. It is therefore satisfied that the domestic courts, which acted to safeguard the children ’ s best interest, adduced relevant reasons for their decisions.

In determining whether these reasons were also “sufficient” for the purposes of Article 8 § 2, the Court notes that the impugned decisions, which separated the applicant from her children, constitute a serious interference with the right to respect for her family life. Such a step must be supported by sound and weighty considerations in the interest of the children concerned.

The Court notes that the Pirmasens District Court, having heard expert opinion as well as the Youth Office ’ s recommendations, considered that the children ’ s welfare would be jeopardised if they remained in their maternal grandmother ’ s household. That court noted, in particular, that the applicant, while doing her best to provide for the children, was not able adequately to promote their development. Neither the applicant nor her children were able to express themselves intelligibly using the German language. In particular the older son G., who was four years old by the time of examination, suffered from a seriously retarded development which required special care. The applicant ’ s mother did not appear to be able to cope with the task of satisfying both her daughter ’ s and her grandchildren ’ s needs.

The Court further observes that, unlike in other cases concerning the withdrawal of parental rights it had previously been called to decide upon (see, for example, Kutzner and K. and T. , both cited above), the children were not placed in a children ’ s home or within the care of foster parents which were unknown to them, but were placed in the care of their grandparents, whom they knew well and who had occasionally taken care of them before.

The Court finally observes that the applicant enjoyed access rights to her children on every second weekend and the second day of major public holidays, which were continuously extended, thus allowing her to maintain the parental relationship, and that there is no appearance of a conflict about access rights. As regards the applicant ’ s recent fears that the paternal grandparents could move to the Northern part of Germany , thus preventing her from further exercising access rights, the Court notes that the applicant has not submitted any substantial facts supporting these concerns.

Turning to the procedural aspects of the case, the Court notes that the applicant, who had been represented by counsel, had had the opportunity to submit her arguments to the domestic courts. Furthermore, the District Court heard all parties to the proceedings as well as expert opinion. Under these circumstances, the Court considers that the decision-making process, seen as a whole, provided the applicant with the requisite protection of her interests.

In view of the foregoing, and having regard to the wide margin of appreciation accorded to the domestic authorities in issues relating to custody, the Court concludes that the domestic courts based their decision interfering with the applicant ’ s right to respect for her family life on relevant and sufficient grounds and struck a fair balance between the competing interests. The interference can therefore be regarded as “necessary in a democratic society”.

It follows that the application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President