FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5496/04 by Mousbach REMMO and Sapha UZUNKAYA against Germany

The European Court of Human Rights (Fifth Section), sitting on 20 March 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 2 February 2004,

Having deliberated, decides as follows:

THE FACTS

The first applicant , Mr Mousbach Remmo, is a Lebanese national who was born in 1973. The second applicant, Ms Sapha Uzunkaya, is a Turkish national who was born in 1969. The applicants live in Senden , Germany . They were represented before the Court by Mr F. M ü nsterk ö tter, a lawyer practising in Münster .

A. The circumstances of the case

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

1. Background to the case

The applicants, who both lived in Lebanon before moving to Germany , are married in accordance with the Muslim rituals since 1994 but did not have a civil marriage in Germany . They are the parents of M. who was born on 15 September 1999. They have another four children born in 1997, 1998, 2000 and 2002.

On 29 August 2001 the first applicant brought M. to a hospital in Münster on the advice of a child doctor. Accor ding to the first applicant, M. had fallen three days before, without his parents having observed this, and had been injured. He had a swollen forehead and a glasses haematoma, with his eyes being swollen following massive blood intrusions. When examining the child, the hospital doctors discovered further injuries. Considering these symptoms to be the result of M. ’ s maltreatment, they informed the police thereof.

On 31 August 2001 two experts of the Münster Institute of Forensic Medicine submitted a report on the motion of the Münster Public Prosecutor ’ s Office. Having examined M. on 29 August 2001, they found that the child had numerous older haematoma all over his body, mostly at parts on which he was unlikely to fall, and several smaller scars stemming from injuries inflicted at different moments in time. These findings indicated that he had been ill-treated over a longer period of time and suffered from a so-called battered child syndrome.

In the course of further examinations carried out in hospital, M. was found to have also suffered a fracture of the skull at an earlier date which his parents had not noticed.

2. Proceedings in the Lüdinghausen District Court

On 31 August 2001 the Lüdinghausen District Court, by way of an interim injunction and without having previously heard the applicants, provisionally withdrew the applicants ’ right to determine M. ’ s place of residence and transferred it to the Coesfeld Youth Office. It found that, having regard to M. ’ s multiple injuries, the applicants were suspected of having ill-treated him. It ordered that the applicants ’ other children be equally examined by the Institute of Forensic Medicine .

In their report dated 3 September 2001 the two experts of the Münster Institute of Forensic Medicine, having examined M. ’ s three brothers, found that they did not show any signs of exposure to violent acts.

On 7 September 2001 the applicants, who were from then on represented by counsel in the proceedings before the domestic courts, lodged an appeal against the order of 31 August 2001. They claimed that at no point in time they ill-treated M.

On 17 September 2001 the Lüdinghausen District Court, having heard the applicants in person, confirmed the withdrawal of the applicants ’ right to determine M. ’ s place of residence, provisionally withdrew the right of custody of the second applicant, who, in the court ’ s view, had sole custody pursuant to section 1626a § 2 of the Civil Code (see ‘ Relevant domestic law ’ below), and transferred it to the Youth Office. It further ordered an expert report on the question of whether there were signs that M. had been ill-treated by his mother and possibly also by his father from a psychological point of view.

On 18 September 2001 M. was released from hospital. Since then, he has been living in a foster family. His parents visit him every two weeks.

On 14 September 2002 the Münster Public Prosecutor ’ s Office discontinued the criminal proceedings against the applicants as there was no sufficient evidence that it had been them who had injured M.

On 25 September 2002 the Lüdinghausen District Court withdrew the applicants ’ parental custody of M. pursuant to section 1666 of the Civil Code (see ‘ Relevant domestic law ’ below) and conferred it to the Coesfeld Youth Office.

The District Court had heard the applicants in person without appointing an interpreter for the second applicant, who hardly spoke German and whose submissions in Arabic were translated by the first applicant. It had further consulted a psychological expert and a representative of the Youth Office.

The District Court was convinced that M. had repeatedly experienced violence. It noted that the applicants had stressed that M. had not been deliberately injured by them, but had injured himself while romping around. However, there were no innocent explanations for his numerous injuries inflicted at different points in time. Even assuming that some of them were caused by M. ’ s own inadvertence, there were several signs, such as the fact that he ducked when someone approached him or that he strongly resisted being undressed, which indicated that he had been ill-treated by others.

The court, having regard to the report of the psychological expert, found that it could not be ascertained whether the injuries of the two-year-old M., who was not able to make any concrete statement, had been inflicted by his parents. However, it was clear that they had been unable to protect M. from such injuries.

Moreover, relying on the report of the psychological expert, the District Court found that also M. ’ s mental development was jeopardized. Mere language problems were inevitable in a family in which one of the parents did not speak German and were no reason to separate a child from his parents. However, M. lived isolated in the family ’ s apartment with his mother, who spoke Arabic, hardly knew any German and showed no interest in his education, including his learning German.

According to the psyc h ological expert and the representative of the Youth Office M. had settled well in his foster family. The District Court found that there were no milder measures, such as aids by public authorities, which were suitable to avert risks to M. ’ s welfare. The first applicant was busy with two jobs and the second applicant, whom both applicants considered responsible for their children ’ s education, did not speak German and was unwilling to change this by starting to learn German. It conceded that the applicants had declared to be willing to cooperate with the authorities, if necessary with the help of a neighbour who was ready to interpret for them. However, as confirmed by a representative of the Youth Office, social pedagogic family support, which was based on a relationship of trust between the pedagogue and the parent, was not possible in the permanent presence of an interpreter.

3. Proceedings in the Hamm Court of Appeal

On 8 October 2002 the applicants lodged an appeal against the District Court ’ s decision of 25 September 2002.

On 3 December 2002 the Court of Appeal appointed M. a curator ad litem who subsequently submitted two reports to the Court of Appeal.

On 13 February 2003 the Hamm Court of Appeal heard the parties and the psychological expert.

On 8 April 2003 the Hamm Court of Appeal, following another hearing in which it also consulted M. ’ s foster parents, dismissed the applicants ’ appeal. Agreeing with the District Court, it found that the applicants, by their failure, had jeopardized M. ’ s welfare and that there were no milder means of averting danger to the child ’ s best interest. The applicants were unable to educate M. in a way which safeguarded his physical and mental integrity.

The Court of Appeal found that M. had been considerably injured on several occasions in the applicants ’ household. It could not be ascertained whether it had been M. ’ s parents or third persons who had injured the child so that the criminal investigations against the applicants had been discontinued. Despite this, there were several indications, notably M. ’ s repeated statements that his mother was mean, his aggressive behaviour and the fact that his parents had given different and contradictory explanations for his injuries, that M. had been ill-treated within his family. This could, however, be left open. Even assuming that M. (then aged two) had injured himself while romping around, his parents, despite his serious injuries, had failed to guarantee his full and prompt medical treatment. The applicants were indifferent towards physical injuries of their children. This was not least demonstrated by the fact that during the expert ’ s presence, their children were romping around with dangerous objects like turned chairs and forks without their parents interfering. Therefore, the need to protect M. ’ s physical integrity was already in itself a sufficient reason to withdraw his parents ’ custody.

The Court of Appeal, agreeing with the findings of the psychological expert, further found that the child ’ s mental welfare would be jeopardized if he returned to his family. M. had made traumatising experiences within his family which he had started to overcome as he had settled well in his foster family and, as confirmed by the Youth Office, had developed intensive bonds with them. On the contrary, he had never developed any relationship with his father and had told his mother that she should leave him alone. Visits of his parents had shown that there was hardly any relationship between them and M. any longer.

The Court of Appeal stressed that it was irrelevant that M. ’ s foster parents could further M. considerably more from an intellectual and linguistic perspective than his parents. It was the child ’ s welfare which was decisive for the measures to be taken.

The Court of Appeal observed that pursuant to section 1666a of the Civil Code (see ‘ Relevant domestic law ’ below), measures resulting in the separation of a child from his family were only permitted if the danger to the child ’ s welfare could not be averted by other means, notably aids by public authorities. However, the Youth Office had submitted that it had no pedagogues speaking Arabic and that a direct communication between the pedagogue and the parents was indispensable for a social pedagogic measure to have prospects of success. The parents had not changed their attitude towards physical injuries of their children so that support would be necessary day and night which was impossible to furnish. Even if this was possible, M. ’ s mental welfare would still be jeopardized for the reasons already set out.

The Court of Appeal observed that, the applicants not having had a civil marriage in Germany , it was probably only the second applicant who had custody of M. It had nevertheless dismissed also the first applicant ’ s appeal for reasons of precaution.

On 26 June 2003 the Hamm Court of Appeal dismissed the applicants ’ remonstrance. Referring to the reasons given in its decision of 8 April 2003, it argued in particular that, even assuming delays in the proceedings, these did as such not warrant returning M. to his family.

4. Proceedings in the Federal Constitutional Court

On 29 July 2003 the Federal Constitutional Court , without giving reasons for its decision, refused to admit the applicants ’ constitutional complaint. The decision was served on the applicants ’ lawyer on 4 August 2003.

B. Relevant domestic law

Pursuant to section 1626a of the Civil Code a child ’ s mother has sole custody if the child ’ s parents are not married and have not deposited a declaration of joint custody recorded by a notary with the authorities.

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.

COMPLAINTS

The applicants complained under Article s 6, 8 and 14 of the Convention about the withdrawal of their parental custody of M . and the conduct of the court proceedings. They considered the withdrawal of custody to be a disproportionate measure. They had offered to cooperate with the Youth Office, but were refused pedagogic aid as the second applicant spoke only Arabic. The courts had not duly considered their arguments and had failed to appoint the second applicant, who did not have sufficient knowledge of German, an interpreter for the court proceedings. Moreover, they claimed that the duration of the custody proceedings had been excessive and that, thereby, they had been alienated from their son.

THE LAW

1. The applicants claimed that the withdrawal of their right of custody had been disproportionate and that they had not duly been heard in the court proceedings ordering this measure. The Court considers that these complaints fall to be examined under Article 8 of the Convention which, in so far as relevant, reads:

“1. Everyone has the right to respect for his ... family life ...

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 ... for the prevention of ... crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

a. The interference with the applicants ’ right to respect for their family life

Assuming, as did the national courts, that not only the second, but also the first applicant had parental custody of M., the Court finds that the decisions of the German family courts withdrawing custody of their son interfered with their right to respect for their family life as guaranteed by Article 8 § 1.

This interference will constitute a violatio n of Article 8 unless it is “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.

The decisions of the domestic courts had a basis in national law, namely section 1666 of the Civil Code, read in conjunction with section 1666a of the Civil Code. They intended to safeguard M. ’ s best interest by averting physical injuries and dangers for his mental welfare and were therefore aimed at protecting his “health or morals” and his “rights and freedoms”. Accordingly, they pursued legitimate aims within the meaning of Article 8 § 2.

b. Necessity of the interference in a democratic society

i. General principles

In determining whether the impugned interference was “necessary in a democratic society” the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them 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 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 T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001-V; K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII; Görgülü v. Germany , no. 74969/01, § 41, ECHR 2004-...).

The margin of appreciation so to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as the importance of protecting the child in a situation in which its health or development may be seriously at risk and the objective of reuniting the family as soon as circumstances permit. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation when assessing the necessity of taking a child into care, in particular where an emergency situation arises. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see, amongst other authorities, T.P. and K.M. v. the United Kingdom , cited above, § 71; Kutzner v. Germany , no. 46544/99, § 67, ECHR 2002-I; Haase v. Germany , no. 11057/02, § 90, ECHR 2004-III).

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 Buchberger v. Austria , no. 32899/96, § 42, 20 December 2001; Sahin v. Germany [GC], no. 30943/96, § 68, ECHR 2003-VII; Sommerfeld v. Germany [GC], no. 31871/96, § 66, ECHR 2003-VIII) .

ii. Application of the principles to the present case

The Court observes that the German courts withdrew the applicants ’ custody of M. in order to protect the child ’ s physical and mental welfare. It is therefore satisfied that the domestic courts, which acted to safeguard M. ’ 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 sanction the splitting up of the applicants ’ family, constitute a serious interference with the right to respect for their family life. Such a step must be supported by sound and weighty considerations in the interest of the child concerned.

The Court observes that when examined by medical doctors M. ’ s body was not only covered with haematoma and several smaller scars. He was also found to have suffered a fracture of the skull for which he had never been medically treated as well as a swollen forehead and a glasses haematoma for the treatment of which he was hospitalized for twenty days. It notes that, despite several indications pointing in that direction, it had neither been established in the criminal proceedings nor by means of M. ’ s psychological examination that it had been the applicants who had ill ‑ treated the child. Nevertheless, in view of the fact that M. had repeatedly suffered partly considerable injuries while in their care, the national courts convincingly argued that his parents had at least jeopardized his physical welfare by failing to protect him from being injured many times and to secure his prompt medical treatment. In the Court ’ s view, these serious threats to M. ’ s physical integrity alone must be considered as being sound and weighty grounds to withdraw the applicants ’ custody rights in M. ’ s best interest. As the national courts indicated, this threat could not at present be averted by a milder measure, as this would necessitate uninterrupted supervision and support which was impossible to furnish in practice. The Court observes in this connection that the Court of Appeal made it clear that it was not the fact that the second applicant did not speak German, but the child ’ s best interest which was decisive for its decision to withdraw the applicants ’ parental custody.

A further consideration in deciding whether the reason s adduced by the national courts to justify the impugned measure were “sufficient” for the purposes of Article 8 § 2 is whether the decision-making process, seen as a whole, provided the applicant s with the requisite protection of their interests. This was contested by the applicants, who argued that the courts had not duly considered their arguments and had failed to appoint the second applicant, who did not have sufficient knowledge of German, an interpreter for the court proceedings.

The Court notes in this respect that the District Court and the Court of Appeal heard the applicants, who were represented by counsel, in person, consulted a representative of the Youth Office, M. ’ s curator ad litem , M. ’ s foster parents and a psychological expert and had regard to several medical reports. They duly reasoned their decisions on the basis of these submissions, addressing, in particular, the applicants ’ arguments.

As to the alleged failure to appoint the second applicant an interpreter for the proceedings in the family courts, the Court notes that the applicants did not submit any documents to the Court which disclosed that they had raised this issue already in the proceedings before the domestic courts. In any event, having regard to the evidential basis of the court decisions as a whole, including the facts that the first applicant translated the second applicant ’ s submissions and that both were represented by counsel in the proceedings before the family courts, the Court finds that the proceedings do not disclose an insufficient involvement of the applicants in the decision ‑ making process (compare Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000-IV).

In view of the foregoing, the Court concludes that in the circumstances of the present case the German courts based their decisions interfering with the applicants ’ right to respect for their family life on relevant and sufficient grounds and struck a fair balance betwe en the competing interests. The interference can therefore be regarded as “necessary in a democratic society”.

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

2. The applicants further argued that they had been victims of discriminatory treatment. They had been refused pedagogic aid by the Youth Office because the second applicant did not have sufficient knowledge of German and spoke only Arabic . The Court considers that this complaint falls to be examined under Article 14, read in conjunction with Article 8 of the Convention. Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court therefore has to determine whether the interference with the applicants ’ right to respect for their family life, which was in itself permissible under paragraph 2 of Article 8, occurred in a discriminatory manner (compare, among others, Rekvényi v. Hungary [GC], no. 25390/94, § 67, ECHR 1999-III; Sommerfeld , cited above, § 89).

The Court concedes that according to the domestic courts, it was impossible to offer the applicants social pedagogic family support as the Youth Office did not have any pedagogues speaking Arabic and as such a measure had no prospects of success in the permanent presence of an interpreter. In this respect, the German courts therefore made a distinction on grounds of language. However, the Court of Appeal did not only find the said measure of support to be insufficient to avert danger to M. ’ s mental welfare. Contrary to the District Court, the Court of Appeal further made it clear that it was irrelevant that M. ’ s foster parents could further M. considerably more from a linguistic perspective than his parents and that it was only the child ’ s welfare which was crucial for its decision. The decisive reason, which was in itself sufficient for the national courts to withdraw the applicants ’ custody rights, was their failure to protect M. from repeated and partly serious injuries and to secure his timely medical treatment. They noted in this respect that an uninterrupted support of the applicants in order to avert dangers to M. ’ s physical integrity was in practice impossible to furnish.

The Court is therefore convinced that – irrespective of whether a difference in treatment related to the applicants ’ language could be objectively and reasonably justified in the present case – the German courts did not treat the applicants in a different way on grounds of language as they would have treated a German-speaking couple in deciding to withdraw the applicants ’ custody rights.

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

3. The applicants complained that the proceedings before the German courts did not meet the requirements of Article 6 § 1 of the Convention, the relevant part of which reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”

The applicants claimed that the duration of the custody proceedings had been excessive and that, thereby, they had been alienated from their son.

The Court observes that the custody proceedings began on 31 August 2001 when the Lüdinghausen District Court withdrew the applicants ’ right to determine M. ’ s place of residence. It ended on 4 August 2003 when the decision of the Federal Constitutional Court served its decision on the applicants ’ lawyer. They thus lasted approximately one year and eleven months in three levels of jurisdiction.

The reasonableness of the length of proceedings is to be considered in the light of the criteria laid down in the Court ’ s case-law, in particular the complexity of the case, the conduct of the applicant and that of the relevant authorities. On the latter point, the importance of what is at stake for the applicant in the litigation has also to be taken into account. It is thus essential that custody cases be dealt with speedily (see, inter alia , Niederböster v. Germany , no. 39547/98, § 39, ECHR 2003-IV).

The Court considers that the present case is of some complexity due to the necessity to obtain a psychological expert opinion on the question of whether there were signs of M. ’ s maltreatment by the applicants. The total length of the custody proceedings before the Lüdinghausen District Court was some one year and one month, before the Hamm Court of Appeal six months and before the Federal Constitutional Court some four months. The Court finds that, even taking into consideration the special diligence necessary in custody cases in order to prevent a rupture of the family bonds, the authorities must be considered to have terminated the proceedings within a reasonable time.

In so far the applicants must be understood to have complained about the conduct of the custody proceedings also under Article 6 of the Convention, the Court, having examined these complaints under Article 8 of the Convention, considers that no separate issue arises under Article 6 § 1 in these respects.

It follows that this part of the application, in so far as a separate issue arose, must likewise be rejected as being 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 P eer Lorenzen Registrar President