FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 12643/02 by Zlatica and Luca MOSER against Austria

The European Court of Human Rights (First Section) , sitting on 19 May 2005 as a Chamber composed of

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 13 March 2002 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant s ,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Ms Zlatica Moser , is the mother of the second applicant, Luca Moser. They are n ationals of Serbia and Montenegro , born in 1973 and 2000, respectively, and live in Vienna . They are represented before the Court by Mr H. Pochieser, a lawyer practising in Vienna . The Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department of the Federal Ministry for Foreign Affairs.

A. The circumstances of the case

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

The first applicant has been living in Austria since 1991 and had a residence and work permit until November 1997. On 27 August 1999 the Vienna Federal Police Authority ( Bundespolizeidirektion ) issued a five - year residence prohibition against her for illegal employment .

On 20 December 1999 s he married an Austrian citizen, Mr M.

On 8 June 2000 the first applicant gave birth to the second applicant in a hospital in Vienna .

1. Proceedings concerning the withdrawal of the first applicant ' s right of custody

On 9 June 2000 the Vienna Youth Welfare Office ( Amt für Jugend und Familie , “the Welfare Office” ) ordered that the second applicant not be handed over to the first applicant upon her departure from hospital since her unclear personal and financial situation and lack of a residence permit would endanger the child ' s welfare.

On 16 June 2000 the Welfare Office , relying on Section 176a of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) requested the Vienna Juvenile Court ( Jugendgerichtshof ) that custody as regards the care and education of the second applicant be transferred to it. The Welfare Office noted that the first applicant had, at first, incorrectly informed the hospital about her personal data, in parti cular on her name and residence. According to the Welfare Office s he had also expressed the wish to place the child with foster parents. One day after she had given birth, she had changed her mind and wanted to keep the baby. Upon i nquiries undertaken by the Welfare Office, her real name, the periods of her lawful resid ence in Austria and he r marri age to Mr M. had been discovered. Confronted with these facts, she had been very upset, had refused to give any further information and had insisted on keeping her child. Given her completely unclear situation, the means of existence of the second applicant were at risk and a transfer of custody to the Welfare Office was necessary.

On the same day, the first applicant was allowed to leave hospital. The second applicant was placed with foster parents.

On 11 August 2000 Mr M. instituted proceedings contesting paternity ( Ehelichkeitsbestreitungsklage ) of the second applicant.

On 3 December 2000 the Juvenile Court granted the Welfare Office ' s request of 16 June 2000 .

It noted in its reasoning that, on 2 August 2000 , the first applicant had appeared at the court of her own motion, had given her new address in the 20 th District of Vienna and further information on her situation and had insisted to have her son back. S he had alleged that she obta ined financial support from her husband, although she was no longer living with him.

Relying on a report by the Welfare Office of 1 September 2000 , the court noted that t he first applicant had not cooperated with that office. I n particular, it had not been possible to arr ange a visit at her husband ' s address and she had not kept her appointments with the Welfare Office. On 23 August 200 0 the first applicant had contacted the Welfare Office and had inf ormed it about her address at the 20 th District of Vienna, where she was allegedly supported by Ms M. That Office ' s subsequent visit at Ms M. ' s apartment had shown that Ms M. was not prepared to further support t he fi r st applicant . Given that she was living with her three children in an apartment of 40 square meters, she could not accommodate the applicant and her son.

Relying further on a report by the Juvenile Court Assistance Office ( Jugendgerichtshilfe ) of 2 November 2000 , the court noted that the first applicant had admitted in a meeting that a baby needed orderly conditions, which she could not offer at that moment. Otherwise, she had given evasive answers and, on questions she had been uncomfortable with, she had started crying or had complained that nobody was helping her. The Assistance Office ' s visit at the foster parents ' home had shown that the second applicant had got accustomed to them. Until that date, the first applicant twice had a right of access at the parents-child centre ( Eltern-Kind-Zentrum ). The first time , she had not appeared at all, the second time she had been thirty minutes late. The foster parents had subsequently met her by chance and had arranged a short meeting at a nearby parking.

In sum, the court stated that t he first applicant was still in a very unstable and obscure situation, which was not enhanced by her unlawful residence in Austria , and which did not entitle her to financial aid. It was also not possible to cooperate with her, as she partly did not keep appointm ents and lacked any wil l in gn ess to make active contributions. In order to assure the second applicant ' s positive development, it was necessary to transfer custody of the second applicant to the Welfare Office and to have him in care of foster parents.

T he Juvenile Court ' s decision was served on the first applicant on 20 December 2000 .

On 3 January 2001 the first applicant, now assisted by counsel, appealed against this decision, in which she made the following submissions.

She had been desperate when giving birth, due to the fact that her husband was not the second applicant ' s father, but Mr U. She stated, that being married to an Austrian national, she had a right to reside in Austria . According to the Administrative Court ' s case-law the residence prohibition against he r would have to be lifted. However, in her contacts with the Juvenile Court and the other authorities involved she had not obtained any support to regulate her residence status or any help to preserve her relationship with her child. She had gained the impression that from the very beginning they were determined to place her child with foster parents.

She had also wished to make use of her access right s . However, the first time, she had not found the address, the second time she had been late, had met the foster parents and had briefly seen her son. She had asked the foster parents to inform the authorities that she had been late on account of an unfortunate obstruction .

Finally, the applicant noted that the decision of 3 December had been served on her shortly before Christmas, namely on 20 December. I t had been impossible to obtain legal advice from service institutions. Not being familiar with legal matters, she had not been in t he position to procure the case- file and had only handed out the decision to her newly appointed counsel, who had returned from holidays one day before the appeal was lodged. Once paternity of Mr U. was established, maintenance payments for the second applicant would be secured. As to her housing situation, she was still accommodated at her friends place. Finally, she requested that an expert opinion be obtained to prove that she was capable of taking care of her child and that meanwhile s he be granted a right of access to th e second applicant once a week.

On 19 January 2001 the Vienna Juvenile Court, sitting as an Appeal Court, dismissed the appeal against the decision of 3 December 2000 without holding a hearing and confirmed the lower court ' s decision.

It noted that the first applicant had only disputed the facts established b y the lower court by alleging that she had not received any support by the authorities. However, this reproach was to be rejected in the light of the reports by the Welfare Office and the Assistance Office. The lower court had correctly decided on the basis of these facts and the first applicant ' s situation at the time of its decision. Any positive developments concerning her situation, as alleged in her appeal, were not to be taken into consideration, but could be taken into account upon a new request. Under Section 176 of the Civil Code the court ha d to undertake measures to ensure the child ' s welfare, if it was at risk due to the parents ' conduct. The court ha d to transfer custody, entirely or in part, to the Welfare Office, even against the wish of the legal guardian, when a child ' s entire dislocation from his or her habitual environment was necessary and a placement with relatives or other qualified persons close to the child was not possible. The first applicant ' s completely unclear financial and personal situation, in particular as regards her residence, and her incapability to cooperate constructively with the Welfare Office - as had been established by the lower court - constituted a situation, which endangered the child ' s well-being. Referring to the Supreme Court ' s case-law in custody matters, it did not allow an ordinary appeal on points of law ( ordentlicher Revisionsrekurs ), pursuant to Section 14 § 1 of the Non-Contentious Proceedings Act ( Außerstreitgesetz ).

On 12 February 2001 the first applicant requested the Appeal Court to allow her ordinary appeal on points of law ( nachträgliche Zulassung des ordentlichen Revisionsrekurses ).

She complained that she had not been sufficiently involved in the proceedings, in particular, that access to the court files had not been possible. She further complained that the courts ' decisions were not in line with this Court ' s case-law under Article 8 of the Convention . She asserted that the authorities involved had not even attempted to take measures which would have allowed her son to stay with her, such as placing her in a mother-child centre for instance.

Furthermore, relying on Article 6 of the Convention, she complained that there were no public and oral hearings in custody proceedings and decisions were not pronounced publicly. The courts ' taking of evidence had been insufficient. As regards the second applicant, she complained that he had no legal standing in the proceedings, where he could claim his right to respect for family life with her, pursuant to Article 8 of the Convention, which was also in breach of Article 6 of the Convention . Relying on Article 14 in conjunction with Article 8 of the Convention, she complained of discrimination on the ground of her nationality. Had she been an Austrian citizen or citizen of any other member State of the European Union, she would have had the right to placement in a mother-child centre.

On 30 May 2001 the Liesing District Court allowed Mr M. ' s action contesting paternity of the second applicant. This decision became final.

On 20 August 2001 the Vienna Juvenile Court , sitting as an Appeal Court , referring again to the Supreme Court ' s case-law in custody matters, refused to allow the ordinary appeal on points o f law, as in its decision of 19 January 2001 , it had not departed from that case-law. There was no other reason to allow the ordinary appeal on points of law under S ection 14 § 1 of the Non-Contentious Proceedings Act , as it did not raise any important legal issue . Further, it noted that access to the court file had been possible throughout the proceedings. The decision was served on 13 Septemb er 2001 .

2. Further proceedings concerning the applicant ' s access rights

On 9 December 2002 the applicant request ed the District Court to be granted the right to see the second applicant every other Friday from 1 p.m. until Sunday 6 p.m.

On 4 February 2004 the Liesing District Court dismissed the first applicant ' s request. Before this decision was taken, the first applicant was allowed to see her son in the presence of a representative of the Welfare Office once a month on Monday from 1.30 until 3 p.m. in a visitor ' s café ( Besuchscafé ) run by the Welfare Office.

Upon the first applicant ' s appeal, the Vienna Regional Civil Court ( Landesgericht für Zivilrechtssachen ) quashed this decision and ordered the court to issue a new decision.

At the District Court ' s hearing on 15 July 2004 , at which the first applicant, assisted by counsel, the foster parents and a social worker were present, the parties reached an agreement that the first applicant was allowed to see the second applicant in three-week-intervals in the presence of the foster mother on Wednesdays from 2.30 p.m. until 5 p.m.

On 6 October 2004 the court held another hearing and by a decision of 8 October 2004 amended the agreement of 15 July 2004 in that the meetings were to be held again in the visitors ' café.

It appears that the first applicant has so far not filed a request to re-transfer custody of the second applicant to her.

3. Proceedings relating to the applicant ' s request to lift the residence ban against her

On 20 October 2000 the first applicant filed a request with the Vienna Federal Police Authority ( Bundespolizeidirektion ) that the residence ban be lifted.

On 17 January 2001 the first applicant supplemented her request that the residence ban be lifted and argued that leaving Austria would mean losing her child and would impede her efforts of obtaining custody of the second applicant .

On 17 April 2001 the Federal Police Authority dismissed the first applica nt ' s request of 20 October 2000 . On 6 November 2001 the Vienna Public Security Authority ( Sicherheitsdirektion ) dismissed the first applicant ' s appeal .

On 24 February 2003 the Constitutional Court, allowing the first applicant ' s complaint, quashed the Public Security Authority ' s decision and remitted the case to it. The court found that the authority had failed to take proper account of the first applicant ' s right under Article 8 of the Convention.

On 22 April 2003 the Public Security Authority quashed the Federal Police Authority ' s decision of 17 April 2001 . Subsequently, the residence ban was lifted and on 12 November 2004 , the applicant was granted a residence permit valid until 11 November 2005 .

B. Relevant domestic law and practice

1. Transfer of custody

Section 176 of the Civil Code empowers the courts to withdraw or restrict custody. So far as relvant , the version in force at the material time, read as follows:

“1. If the parents put the well-being of the minor child at risk, on account of their conduct, the court shall take the decisions necessary to ensure the well-being of the child, ... In particular, the court may withdraw entirely or in part custody for the child, ... ”

Section 176a of the Civil Code, in the version in force at the material time, read as follows:

“If the child ' s well-being is at risk, therefore requiring the complete removal of the child from his/her previous environment against the will of the person entitled to raise the child, and if the child cannot be accommodated with relatives or other suitable persons close to the child, the court shall transfer custody of the child entirely or in part to the youth welfare institution. The youth welfare institution may transfer the exercise of custody to third parties.”

2. Placement in a mother-child centre

Section 14 of the 1990 Vienna Youth Welfare Act ( Wiener Jugend - wohlfahrtsgesetz ) deals with social services for parents, babies and young children. Section 14 § 2 (3) mentions the placement of mothers/fathers with babies or young children in crisis apartments, specialised centres or other institutions as one of these services. According to Section 3 of that Act youth welfare is to be granted to all persons residing in Vienna .

There is no enforceable right to social services, such as a placement under Section 14 § 2 (3). C onsequently, no legal remedy lies against the refusal or the failure to grant social services.

General social services, designed to help persons in an emergency situation, are provided for in the Vienna Social Services Act ( Wiener Sozialhilfegesetz ). Austrian nationals a nd certain groups of foreigners who are legally resident in Austria (e.g. nationals of countries having concluded a reciprocity agreement with Austria , persons with refugee status or nationals of member States of the European Economic Area) are entitled to benefits or services under this Act.

3. Non-Contentious Proceedings Act

The Non-Contentious Proceedings Act 1854 ( Außerstreitgesetz ) , in the version in force at the material time, did not contain any specific provision on hearings . It was the Austrian courts ' practice and the understanding of academic writers that hearings under this act were not public (see Fasching , Lehrbuch des österreichischen Zivilprozessrechts , Wien , 1984 , marginal number 682 ; Gögl , Der Beweis im Verfahren außer Streitsachen , ÖJZ 1956, 344 (347) ).

On 1 January 2005 a new Non-Contentious Proceedings Act entered into force replacing the 1854 Act. It provides for the conduct of oral and public hearings (Sections 18 and 19) as a general rule and leaves it to the discretion of the court to decide whether or not the public should be excluded , for instance for the protection of the persons involved in a particular case.

In family-law and guardianship proceedings, Section 140 provides for oral hearings open only to the parties. The court may decide to hold a public hearing, unless protected details of a person ' s private and family life are d iscussed, a party opposes a public hearing or if such a hearing would be incompatible with the child ' s well-being.

COMPLAINTS

1. The applicants complained under Article 8 of the Convention that the Austrian courts ' decision transferring custody of the second applicant to the Welfare Off ice violated their right to respect for family life. Instead, a less intrusive measure, such as a placement in a mother-child centre, should have been taken.

2. They further alleged under Article 14 in conjunction with Article 8 of the Convention that the decision to transfer custody took place on accou nt of their nationality. It would not have happened to an Austrian citizen or a citizen of any other member state of the European Union, who would have been placed in a mother child-centre.

3 . The first applicant also complain ed under Articles 6 and 8 that she had not been sufficiently involved in the decision-making process. By a letter of 1 October 2002 , she stated in particular that the Juvenile Court ' s decision of 3 December 2000 mainly relied on the report by the Juvenile Court Assistance Office, which had not been submitted to her for comments.

4 . The first applicant also complained under Article 6 of the Convention about the lack of a public and oral hearing and any public pronouncement of the decisions in the custody proceedings.

5 . The second applicant complain ed under Articles 6 and 13 of the Convention that he had no legal standing under Austrian law in the custody proceedings to claim his right to respect for family life, as guaranteed by Article 8 of the Convention .

6 . Th e second applicant also allege d that he had been a mere “object” of the proceedings which would amount to a breach of Article 3 of the Convention .

THE LAW

1. The applicants complained that the transfer of custody of the second applicant to the Youth Welfare Office violated their r ight to respect for family life as guaranteed by Article 8 of the Convention, which provides 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.”

The Gov ernment argued that the interference with the applicants ' right to respect for their family life was justified under Artic le 8 § 2 of the Convention. I t was prescribed by law, namely by Section s 176 and 176a of the Civil Code, and it pursued legitimate aims, namely the protection of health or morals and of the rights and fr eedoms of the second applicant.

In the Government ' s view, t he measure was also necessary in a democratic society as it met an urgent need, namely to secure the second applicant ' s well-being. Referring to the findings of the Vienna Juvenile Court, the Government maintained that the first applicant had been unable to offer her son adequate lodging conditions and to secure a regular income. In addition, the residence ban issued against the first applicant had still been in force at the material time.

Furthermore, the Austrian authorities had not overstepped their margin of appreciation and the measure was proportionate to the legitimate aim pursued. The Government asserted in particular, that the authorities had attempted to find alternative solutions to placing the second applicant with foster par ents. However, as was stressed i n the Juvenile Court Assistance Office ' s report of 2 November 2000 , the first applicant did not cooperate with the authorities. The alternative proposal made by her, namely that a friend of hers with whom she was staying could also accommodate the second applicant proved to be unrealistic in view of the limited size of the apartment and the number of persons already living there. The alternative of placing the second applicant with relatives or other persons close to the child, as provided for by Section 176 a of the Civil Code, was not available either , si nce the first applicant ' s husband had refused any co-operation and she had not disclosed the name of the second applicant ' s father. In sum, less intrusive measure s had not been available.

Finally, t he Government pointed out that the first applicant had access rights and that custody of the second applicant was only transferred on a temporary basis, and had to be re-transferred immediately, when no further impairment of the child ' s well-being was to be feared. Thus far, the first applicant had not submitted any motion for a re-transfer of custody.

The applicants contested the Government ' s view and referred in substance to their previous submissions. They reiterated that the Youth Welfare Office had never offered any constructive a lternative proposal to the transfer of custody. The Juvenile Court ' s finding that the first applicant had not co-operated was exclusively based on the reports of the Youth Welfare Office. Given the lack of an oral hearing in custody proceedings under the Non-Contentious Proceedings Act, the first applicant had not been able to challenge these findings. The applicants contested the Government ' s statement as untrue insofar as it concerned the second applicant ' s father, whose name and address the first applicant h ad disclosed in her appeal of 3 January 2001 .

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants complained under Article 14 in conjunction with Article 8 of the Convention of discrimination on the ground of their nationality as they no right to be placed in a mother-child centre.

Article 14 provides as follows:

“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 Government submitted that a placement in a mother-child centre was a social service provided for by Section 14 § 2 (3) of the 1990 Vienna Youth Welfare Act ( Wiener Jugendwohlfahrtsgesetz ), which applied to all residents in Vienna (Section 3 of that Act).

The applicants, on their part, contended that its legal basis was the Vienna Social Services Act ( Wiener Sozialhilfegesetz ), which applied only to Austrian citizens and certain groups of foreigners who were lawfully residing in Austria .

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3 . The first applicant also complained that she had not been sufficiently involved in the decision-making process concerning the transfer of custody of the second applicant. She relied on Articles 6 and 8 of the Convention.

Article 6, so far as relevant for this and the appliants ' further complaints, reads as follows:

“1. In the determination of his civil rights and obligations ... , everyone is entitled to a fair and public hearing ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

T he Government maintained that t he Austrian courts had complied with the procedural requirements inherent in Article 8. They pointed out that proceedings under the Non-Contentious Proceedings Act are governed by the principles of flexibility and expediency. T he first-instance court took its decision, after having heard the first applicant on 2 August 2000 and having obtained the reports of the Youth Welfare Office of 1 September 2000 and the Vienna Court Assistance Office of 2 November 2000 . Contrary to the first applicant ' s statements, she had had the possibility to examine the case-file throughout the entire proceedings . H owever, she had not made use of this possibility. Furth ermore, the first applicant had raised the complaint concerning her alleged insufficient involvement for the first time in her application to the Court . Moreover, she had not challenged the Juvenile C ourt ' s findings of fact in her appeal.

The first app licant contested this view and maintained that she had not been given an opportunity to comment on the reports on which the Juvenile Court relied in its decision of 3 December 2000 . I n the proceedings of first instance, she had not been assisted by counsel, and the judge had failed to instruct her of her right to examine her file and to make copies. Therefore, when she had finally found a lawyer after the Christmas holidays, she had not been in a position to provide her lawyer with copies of the case-file at the end of the statutory time-limit for filing an appeal.

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4 . The first applicant complained under Article 6 of the Convention about the lack of a public and oral hearing and any public pronouncement of the decisions in the custody proceedings.

a. As regards the co mplaint concerning the lack of a hearing, the Government asserted that the applicant did not request a hearing during the first instance proceedings. In any case , the court ha d heard the applicant in person on 2 August 2000 .

As to the question whether there should have been a public hearing, the Government asserted that the 1854 Non-Contentious proceedings act left it to the discretion of the court whether or not to hold a hearing in public. However, the right to a public hearing was not absolute and an exclusion of the public was admissible under Article 6 § 1 of the Convention, inter alia , in the interests of a minor or for the protection of the private life of the parties. Referring to B. and P. v. the United Kingdom (nos. 36337/97 and 3 5974/97, § 38, ECHR 2001-III). T he Government argued that Court proceedings involving custody decisions of minors were prime examp les of such justified exclusion of the public.

The first applicant pointed out that the Juvenile Court had “heard” her rather in the form of obtaining a witness statement than by conducting an adversarial hearing.

As to the lack of a public hearing she maintained that the domestic courts had not examined whether there were specific circumstances which justified excluding the public from the present proceedings. Moreover, there were no such circumstances in the case at issue.

b. The Government submitted further that a public pronouncement of decisions in proceedings where the public had been excluded would undermine the objective pursued, namely to secure the protection of the private sphere to the persons involved in custod y proceedings. R eferring to the case of Sutter v. Switzerland (judgment of 22 February 1984, Series A no. 74, §§ 33-34), the Government pointed out that under Austrian law any person who could establish a legal interest in receiving a decision was entitled to consult the file and to obtain copies. In addition, decisions of special interest were published on a broad scale electronically in the Federal Legal Information System, whereby the decisions of the Supreme Court and appellate courts were given priority over first-instance court decisions. The applicants did not submit any comments on this issue.

The Court considers, in the light of the parties ' submissions, that the se complaint s raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaint s are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

5 . Ins o far as the second applicant complained under Articles 6 and 13 of the Convention that under Austrian law he ha d no legal standing in custody proceedings and that he , thus, could not claim his right to respect for family life under Article 8 of the Convention, the Court notes that under Austrian law the child is represented by his or her parent until a decision on custody is taken. It is true that only the first applicant was a party to the proceedings at issue. However, it has not been argued that that the second applicant ' s interests in these proceedings differed in any way from her own.

It follows that this part of the application is manifestly ill-founded and must be rejecte d in accordance with Article 35 §§ 3 and 4 of the Convention.

6 . As to the applicants ' complaint under Article 3 that the second applicant was a mere “ object ” of the proceedings, the Court reiterates that any f orm of ill-treatment must attain a min imum level of severity to bring it within the scope of Article 3 (see, among many other authorities, Peers v. Greece , no. 28524/95, § 67, E CHR 2001 ‑ III ). The Court finds that this minimum level was not reached in the present case.

It follows that this part of the application is manifestly ill-founded and must be rejecte d in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without preju dging t he merits, both applicants ' complaint under Article 8 about the transfer of custody and under Article 14 taken in conjunction with Article 8 about the alleged discrimination on account of their status as foreigners; the first applicant ' s complaint under Articles 6 and 8 about the lack of involvement in the custody proceedings; and the first applicant ' s complaint under Article about the lack of a public, oral hearing and of any public pronouncement of the decisions;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis Registrar President