Information Note on the Court’s case-law 48

December 2002

Venema v. the Netherlands - 35731/97

Judgment 17.12.2002 [Section II]

Article 8

Article 8-1

Respect for family life

Making of provisional care order without providing parents with opportunity to contest: violation

Facts : In July and August 1994 the third applicant, K. (the daughter of the first two applicants), was hospitalised twice. Nothing physically wrong was found but doctors suspected that her mother might be suffering fromMünchhausen syndrome by proxy, a psychological condition in which a parent seeks superfluous medical assistance for a child and may even cause the symptoms of a disease, thus putt ing the child at risk. The doctors informed the Child Welfare Board but did not act on the Board’s advice to discuss their concerns with the parents. In December 1994, after K. had again been hospitalised, it was decided that a report should be submitted t o the Board by the hospital and a children’s psychiatric clinic. The applicants were not involved or informed. The report expressed the view that K.’s life at risk and that it was not possible to discuss this with the parents, who might react in an unpredi ctable way. On 4 January 1995 the Juvenile Judge, on the application of the Child Welfare Board and without hearing the applicants, issued a provisional supervision order. The parents claim that they only learned of this order on 6 January when they went t o the hospital to take K. home. On the same day, the judge ordered that K. be taken to an undisclosed foster home. On 10 January, after hearing the parents, the judge extended the provisional order pending two further psychiatric reports. The first report concluded that there was no evidence of risk to K. Nevertheless, the parents’ appeal against the placement order was dismissed by the Court of Appeal on 15 March and the Juvenile Judge subsequently decided to prolong the placement. The second psychiatric r eport, submitted on 19 May, concluded without reservation that K. should be returned to her parents and the judge consequently rescinded the provisional supervision order and the placement order.

Law : Article 8 – It was not disputed that the separation of K. from her parents constituted an interference with the right to respect for family life or that the interference was in accordance with the law and pursued the legitimate aim of protecting her rights. As to the necessity of the measures, the essence of t he applicants’ complaints was that they had at no stage prior to the making of the provisional supervision order been consulted or given an opportunity to contest the reliability, relevance and sufficiency of the information on which it was based. The Cour t accepted that when urgent action to protect a child is required it is not always possible to involve parents in the decision-making process and it may not even be desirable if they are seen as the source of an immediate threat. However, in the present ca se the Child Welfare Board’s advice to the doctors to discuss their concerns with the parents was not followed and the decision to issue a provisional supervision order was based on the report obtained from the hospital and the clinic. At no stage were the applicants asked to comment on the concerns about them or in any other way involved in the proceedings. It had not been satisfactorily explained why the doctors or the Board could not have made arrangements to discuss the concerns with the applicants and give them an opportunity to dispel them. The possibility of an unpredictable reaction was not sufficient to exclude the applicants from a procedure which was of immense importance to them, in particular as K. was safe in hospital immediately before the pro visional order was made. The parents were able to express their views only six days after that order was made and four days after K. had been placed in a foster home. These were measures which were difficult to redress and it was crucial for the parents to be able to put forward their point of view at some stage before the making of the provisional order. They had thus been denied the requisite protection of their interests.

Conclusion : violation (unanimously).

Article 6 § 1 – The applicants’ complaints und er this provision largely coincided with their complaints under Article 8.

Conclusion : not necessary to examine (unanimously).

Article 41 – The Court awarded the applicants 15,000 € in respect of non-pecuniary damage. It also made an award in respect of costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Cli ck here for the Case-Law Information Notes