Communicated on 23 May 2017

FIFTH SECTION

Application no. 27700/15 Selma KILIC and M ü rsel KILIC against Austria lodged on 2 June 2015

STATEMENT OF FACTS

The applicants, Ms Selma Kılıc (“the first applicant”) and Mr M ü rsel Kılıc (“the second applicant”), are Turkish nationals, who were born in 1975 and 1974 respectively and live in Vienna. They are represented before the Court by Mr T. Krankl , a lawyer practising in Vienna.

The circumstances of the case

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

The applicants are a married couple of Turkish origin and of Muslim faith. They have five children together, born in 1999, 2000, 2004, 2007 and 2010 respectively.

Already in 2006 the applicants ’ then three children were found alone in the street in an alarming state of negligence. Shortly after, the children were found left alone in the family ’ s apartment, which was in an alarming hygienic state. As a consequence, the Vienna Youth Welfare Office ( Jugendwohlfahrtsträger – hereinafter, “the YWO”) placed the three children in a child-care facility as an emergency measure. As the applicants subsequently cooperated with the YWO and renovated their apartment, the children were placed in their care again.

In October 2010 a chimney sweeper informed the YWO that the applicants ’ apartment was in an alarming hygienic state. At a visit immediately carried out, the YWO found the five children alone in the apartment. The then three year old R. (born in 2007) was suffering from nappy rash and had severely damaged teeth. The three month old M. (born in 2010) was dirty and crying.

On 14 October 2010 the YWO requested the domestic courts that the custody of all five children be transferred to them, as this was in the best interest of the children.

Because the two youngest children R. and M. needed special support, they were placed in the care of short-term foster parents. The parents were granted visiting rights. The three older children were placed in a catholic childcare facility.

The applicants subsequently renovated their apartment again and requested that the interim measure be lifted. On 5 November 2010 the apartment was found to be in an acceptable condition. The three oldest children were therefore allowed to regularly spend the weekends at their parents ’ place.

In the course of the custody proceedings, the applicants ’ parents requested that they be granted custody over the five children.

The Leopoldstadt District Court ( Bezirksgericht – hereinafter, “the District Court”) ordered psychological and psychiatric expert opinions to determine the capability of the applicants and the grandparents to raise the children, as well as an expert opinion from a child psychologist. The experts unanimously stated that the children should not be returned to the applicants at that time. They further advised against the children being placed with their grandparents.

In February 2011 R. and M. were each placed with long-term foster parents. The applicants made use of their right to visit them each once a month for one hour.

On 23 August 2012 the applicants visited R. in the presence of social workers. R. was carrying a necklace with a small cross. The applicants were shocked when they saw it. The second applicant grabbed the child and tried to run away with it. The social workers present at the scene were able to stop him and R. was returned to her foster mother.

As a result of the above incident, the District Court suspended the applicants ’ visiting rights regarding R. and M. It also ordered additional expert opinions.

On 27 December 2012 the District Court dismissed the applicants ’ requests to end the interim measure, and also dismissed the maternal grandparents ’ requests for custody. It found that the application for custody by the paternal grandmother needed to be examined further. It granted the applicants visiting rights regarding the older children for the weekends, and for M. in the amount of one hour every four weeks. The visiting rights to R. were suspended for a period of six months, as R. had been traumatized by the incident of 23 August 2012 and needed some time to stabilize. In relation to the incident with the cross, the District Court reminded R. ’ s foster mother that she had to respect R. ’ s belonging to the Muslim religion. The foster mother stated that R. had gotten the cross from a chewing gum machine and insisted on wearing it, rather than her having provided the cross. She further gave to protocol that she herself was “loosely” Christian, but that she certainly did not force her religion on R.

The District Court based its decisions on the expert opinions, which stated that the applicants were not capable of raising their children. The needs of R. in particular were not recognized by the first applicant. The second applicant was not able to compensate his wife ’ s behaviour, as he was more of a passive bystander and avoided any conflict situations with her. Moreover, the applicants had not shown any understanding of their wrongdoings towards their children. The two oldest children had developed strong symptoms of “ parentification ”, meaning that they had taken over responsibilities from their parents, such as raising and taking care of the smaller children in the applicants ’ place. Concerning the maternal grandparents ’ request for custody, the District Court stated that there were no strong ties between them and the children. The grandparents themselves had stated that they were not sufficiently organized or prepared to take care of the children.

On 12 April 2013 the Vienna Regional Court ( Landesgericht ; hereinafter, “the Regional Court”) granted the applicants ’ appeal and instructed the District Court to examine, among other things, whether the interim measure regarding the three older children could be lifted.

The District Court ordered further expert opinions. Meanwhile, brothers of the applicants applied for the transfer of custody of the children.

On 28 August 2013 the District Court lifted the interim measure regarding the three older children. It found that they were now mostly independent and self-reliant and also had expressed the clear wish to return to their parents ’ home. Moreover, changes had taken place within the applicants, who now accepted that they needed help from third persons such as the grandmothers and non-governmental organisations (hereinafter, “NGO”). Nonetheless, the expert reports had shown that there were still strong deficits when it came to raising children. The applicants not only accepted help, but heavily relied on it, took advantage of it and used it as an excuse for themselves. The District Court concluded that only an ongoing cooperation between the applicants and the NGOs and other authorities would ensure the well-being of the children.

On 30 August 2013 the three oldest children were returned to the applicants.

On 6 November 2013 the Regional Court dismissed an appeal by the YWO against the District Court ’ s decision of 28 August 2013.

On 14 April 2014 the District Court transferred custody of R. and M. to the Youth Welfare Office and dismissed the applicants ’ , the grandparents ’ and the uncles ’ requests for custody. The applicants were granted visiting rights for each child for one hour every four weeks in presence of social workers. The District Court stated that the expert reports had shown that the situation within the family was very fragile and the applicants could just about deal with the three children with the help of the NGO and the grandmothers.

R. and M. had been living for more than three years with their foster parents already and had built up strong ties with them. R. knew about her siblings and the applicants, but the incident in August 2012 had irritated her profoundly. She was very fond of her siblings but not of the applicants, whom she was afraid of. R. avoided contact to them even when the foster mother encouraged her to interact with them. M. ’ s foster parents encouraged the visits of the applicants, who however ignored the rules set up by them. During the visits, the applicants did not demonstrate any capability to deal with him properly. As a consequence, M. developed a strong fear to be left alone with them. Moreover, both R. and M. only spoke German. The applicants only spoke little German and therefore could not properly communicate with the two children. During visits, one of the older children acted as interpreters.

The psychological expert had found that the applicants still showed only very little empathy and did not react adequately to the needs of the children. As both children had to be transferred from the interim foster family to the long-term foster family once before, they both feared to leave their new foster families. Returning to the applicants would cause them intense emotional stress which could lead to behavioural disorders. The expert doubted that the applicants could handle such a situation especially when all five children were with them. A return of R. and M. to the family would also stress the two oldest children as it was likely that they would have to take care of them. Because the District Court detected a risk for the interests of R. and M. if they were returned to their parents, it dismissed the applicants ’ respective requests. Moreover, it held that a transfer of custody to other relatives would not be in the interest of the two children as they had no relationship with them at all. Placing the children with these relatives would deracinate them as they would once more find themselves in an unknown environment.

The applicants ’ appeal was dismissed by the Vienna Regional Court on 28 August 2014. In relation to the complaint that R. and M. had been placed with Austrian, Christian families where they were not exposed to the Muslim religion or the Turkish culture and language, the Regional Court held that there were no indications of a “Christianisation” of the children. Concerning the incident with the cross, it found that it “lay in the nature of things” that the minors, who were both living in Austria with Austrian foster parents, were confronted with Christian symbols. This did not amount to an endangerment of the best interest of the children. There were no indications that the foster parents were inconsiderate of the children ’ s cultural and religious background. The court held that the applicants ignored the fact that the children had been endangered while in their care because of the applicants ’ lack of ability to adequately care for them. Their removal from the family amounted neither to a forced “Christianisation”, “deracination” or “deprivation of their identity”, as the applicants had argued, but constituted a protective measure by the YWO.

The applicants lodged an extraordinary appeal on points of law with the Supreme Court. They argued that “intercultural and religions interferences with their basic rights” had occurred. The deprivation of identity of the two Turkish children, who now were raised without any contact to Islam, was contrary to Article 8 of the UN Convention on the Rights of the Child.

The appeal was dismissed by the Supreme Court on 22 October 2014. It held that the allegation of “forced Christianisation” was not supported by the facts of the case, neither was the allegation that the foster parents did not respect the children ’ s background and religion. This decision was served on the applicants on 5 December 2014.

COMPLAINTS

Under Article 8 of the Convention, the applicants complain that the domestic courts dismissed their application for custody over their two youngest children R. and M.

The applicants further complain under Article 8 and in substance also under Article 9 of the Convention that their two youngest children have been placed in a Christian foster care family and are now growing up without learning the Turkish language and culture, and without any contact with the Muslim religion. They complain that the domestic courts have completely ignored these cultural, linguistic and religious components when deciding to place the children with Christian foster parents who do not have any Turkish or Muslim background. They allege that R. and M. have thus been deprived of their identity and been “Christianised”.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicants ’ right to respect for their family life, contrary to Article 8 of the Convention, relating to the refusal by the domestic courts to retrocede custody of their two youngest children to them?

2. Has the State complied with its positive obligations towards the applicants under Articles 8 and 9 of the Convention when it comes to the placement of their children in foster families which did not correspond to the cultural, religious and linguistic identity of the applicants ’ youngest children? In particular, did the choice of foster families contribute to an alienation of their youngest children from the applicants in that they were barely able to communicate in Turkish anymore?

3. Have the domestic courts in their decisions concerning custody rights duly taken into account the applicants ’ arguments relating to the alleged violations of Articles 8 and 9 of the Convention?

4 . Are statistics available how many foster families there are in Vienna and its surroundings who are Muslim and/or Turkish origin? Do the domestic authorities take into account the cultural, linguistic, ethnic and religious background of a child when choosing its foster parents? Are foster families sufficiently informed by the authorities on how to respect and take into account the cultural, linguistic, ethnic and religious identity of their foster children (if applicable)? Are foster parents trained in relation to their conduct during visits by the biological parents, in particular in relation to possible cultural, linguistic, ethnic and religious differences?