Communicated on 16 January 2016

FIFTH SECTION

Application no. 72204/14 Andreas SCHOTT and others against Germany lodged on 11 November 2014

STATEMENT OF FACTS

A. The circumstances of the case

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

1. Background to the case

2. The applicants are a mother and father and their three daughters (see appendix). They are members of the Twelve Tribes church ( Zwölf Stämme ) and lived in a community of around 100 members of the church in Klosterzimmern .

3. In 2012 the press reported about the Twelve Tribes church and its position on the right of parents to apply (corporal) punishment, especially birching. Furthermore, statements by a former member of the community were published, confirming that children had been punished with birches.

4. In 2012 and 2013 the local youth office ( Jugendamt ) visited the community, and its spokespersons were invited to a meeting at the Bavarian Ministry of Education. Corporal punishment and the issue of compulsory schooling were discussed at the meeting.

5. On 16 August 2013 the local youth office and the Nördlingen Family Court received video footage from a television reporter showing ten different instances of corporal punishment in the community. The footage, filmed with a hidden camera, showed the birching of various children between the ages of three and twelve. Neither the parents in the present case nor the three daughters were shown in the video footage. According to the television reporter, the person who carried out the punishment was not, in most cases, a parent of the child being punished.

2. Proceedings at issue

6. After receiving the video footage, the Family Court initiated a preliminary investigation and on 21 August 2013 heard six witnesses, all former members of the Twelve Tribes community. The witnesses confirmed that various forms of corporal punishment were used in the upbringing of children in the community. They further stated that children were punished by whichever adult was supervising the children at the time and that parents were pressured by the community to conform to the rules of upbringing.

7. On 1 September 2013 the Family Court, on an application by the competent youth office, made an interlocutory order regarding the three girls and other children in the Twelve Tribes community. The court withdrew the parents ’ rights to decide where the children should live ( Aufenthaltsbestimmungsrecht ), and take decisions regarding their health ( Gesundheitssorge ), schooling and professional training and transferred those rights to the youth office. The court based its decision on its finding that there was a reasonable likelihood that the children would be subjected to corporal punishment.

8. On 5 September 2013 the youth office took all the community ’ s children into care. They were supported by around 100 police officers in riot gear. A subsequent medical examination of the children did not reveal any physical signs of abuse or beating. The three daughters were moved to a children ’ s home.

9. The Family Court examined the applicant children on 9 October 2013. All three daughters stated that they would like to return to their parents and the community. The two younger daughters refused to answer any questions regarding being disciplined or birched, or about the schooling and health ‑ care system in the community. The oldest daughter confirmed that her two sisters had been birched and that she herself had been birched when she was younger. However, she also stated that this had stopped after her Bat Mitzvah. The applicant parents were examined on 15 November 2013.

10. On 30 November 2013 the Family Court revoked its interlocutory order concerning the parents ’ right to decide on the oldest daughter ’ s place of residence and health, but upheld the rest of the decision. Based on Articles 1631, 1666 and 1666a of the German Civil Code (see paragraphs 15 –17 below), the court considered that it was very likely that the other two girls, if left in the community or returned to it, would be subjected to corporal punishment, and therefore suffer a violation of their personal dignity and integrity, protected by the German Basic Law (see paragraphs 13 and 14 below). The court based its assessment on written submissions from the parents, in which they confirmed that they had disciplined their children, but denied beating or abusing them. The court observed that statements by the daughters and other children in parallel proceedings, the video footage and the statements of other witnesses had confirmed that the disciplining of children in the community might include corporal punishment. Therefore, it had been necessary to take the children out of the community, as that had been the option which had least infringed the family ’ s rights, while ensuring that the children would not be birched or harmed in any other way. It held that even if the parents might be able to resist pressure from the community, they would not be able to ensure that other community members would not birch the daughters when supervising them. The court further found that there was no longer a risk that the oldest daughter would be birched, owing to her age. The court also initiated the main custody proceedings and commissioned a psychologist ’ s expert opinion on the family situation.

11. On 5 March 2014 the Munich Court of Appeal upheld the Family Court ’ s decision in essence. It overturned the decision on the withdrawal of the parents ’ right to take decisions regarding professional training for the two younger daughters because, owing to their age, there was no need for the withdrawal of such a right in an interim decision. The Court of Appeal found it established that all three children had been birched and that there was a high probability that the two younger children would be birched again if returned to their parents and the community. It based its finding on the statements of the oldest daughter, which had been confirmed by the statements of the former members of the community and the guidelines in a leaflet entitled “ Our teachings on child training ”. The court further noted that bringing up children in this way was not justified by the parent ’ s freedom of religion. It further found that there had been no other option entailing less of an infringement of the family ’ s rights while protecting the children, because up to that point the parents had not shown any willingness to refrain from disciplining their daughters, and greater assistance from the youth office would not ensure the safety of the two daughters at all times. It further observed that the wishes of the two girls (nine and twelve years old) had not prevented the taking of such a decision, because only a psychologist ’ s expert opinion in the main custody proceedings would clarify how relevant the wishes of the girls had been and the extent to which they had formed those wishes themselves.

12. On 5 May 2014 the Federal Constitutional Court refused to accept a constitutional complaint by the applicants for adjudication, without providing reasons (1 BvR 959/14).

B. Relevant domestic law

1. Relevant provisions of the German Basic Law ( Grundgesetz )

13. Article 1 of the Basic Law reads as follows:

“(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

(2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.

(3) The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.”

14. Article 2 of the Basic Law, in so far as relevant, reads as follows:

“(1) Every person shall have the right to the free development of his personality in so far as he does not violate the rights of others or offend against the constitutional order or the moral law.

(2) Every person shall have the right to life and physical integrity. ...”

2. Relevant provisions of the German Civil Code ( Bürgerliches Gesetzbuch )

15. Article 1631 § 2 of the German Civil Code reads as follows:

“Children have the right to a non-violent upbringing. Physical punishments, psychological injuries and other degrading measures are prohibited.”

16. Article 1666 § 1 of the German Civil Code reads as follows:

“Where the physical, mental or psychological best interests of a child or a child ’ s property are endangered and the parents do not wish, or are not able, to avert the danger, a family court must take the necessary measures to avert the danger.”

17. Article 1666a of the German Civil Code, in so far as relevant, reads as follows:

“(1) Measures which entail a separation of the child from his or her parental family are only allowed if other measures, including public support measures, cannot avert the danger ...

(2) The right to care for a child may only be withdrawn if other measures have been unsuccessful or if it is to be assumed that they do not suffice to avert the danger.”

COMPLAINTS

18. The applicants complained under Article 8 of the Convention that the separation of the daughters and the parents was disproportionate. Relying on Articles 6 and 8, they also complained that the proceedings before the family courts had been unfair in that, in particular, they had not been given a hearing prior to the first interlocutory order. They also complained about the length of the proceedings and the length of time the interlocutory order had been in place; they submitted that the courts had not grounded their decisions on a sufficient factual basis, but on general considerations about the Twelve Tribes church.

19. The applicants further complained under Articles 9 and 14 of the Convention, and under Article 2 of Protocol No. 1 thereto, that they had been hindered from raising their children in compliance with their religious beliefs; that their religious beliefs were the reason for the withdrawal of their parental rights; and that the court proceedings had led to a stigmatisation of their religious community.

QUESTION S TO THE PARTIES

Appendix

All applicants are represented by Mr H. Forkel .