Communicated on 16 January 2016

FIFTH SECTION

Application no. 68125/14 Peter WETJEN and others against Germany lodged on 17 October 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 son (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 their son 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. Interim 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. These included swaddling ( pucken ) a child from birth until the age of around three, involving wrapping the child up very tightly to suppress any urge to move. Starting from the age of about three, children would be disciplined by birching, which lasted until about the age of twelve. The witnesses 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 Nördlingen Family Court, upon an application by the competent youth office, made an interlocutory order regarding the son and other children in the Twelve Tribes community. The court withdrew the applicant parents ’ rights to decide where the son should live ( Aufenthaltsbestimmungsrecht ), and to take decisions regarding the son ’ s 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 son would be subjected to corporal punishment.

8. On 5 September 2013 the youth office took the community ’ s children into care. They were supported by around 100 police officers in riot gear. A subsequent medical examination of the son did not reveal any physical signs of abuse or beating. Since the son was then only two years and five months old and was still being breastfed, he and his mother were housed together temporarily in a home with supervision.

9. The Family Court examined the applicant parents on 10 October 2013. The parents stated that they had restrained their son by swaddling, but denied that this amounted in any way to child abuse. They refused to answer any questions about birching, but quoted passages from the Bible, which justified birching.

10. On 29 November 2013 the Family Court upheld its previous decision. On the basis of Articles 1631, 1666 and 1666a of the German Civil Code (see paragraphs 17–19 below), the court stated in its reasoning that there was a high probability that leaving the son in the community or returning him there would lead to his being subjected to corporal punishment, thus infringing his personal dignity and integrity, values protected by the German Basic Law (see paragraphs 15 and 16 below). It further found that the use of corporal punishment from such an early age would prevent the free development of his personality and instead teach unconditional obedience. The court based its assessment on the submissions of the parents, in which they confirmed that they had disciplined their son. The court found that the statements by other children in parallel proceedings, the video footage and the statements of other witnesses confirmed that the disciplining of children in the community would include corporal punishment. Therefore, it was necessary to take the son out of the community, as that was the option which least infringed the family ’ s rights, while ensuring that the son 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 child when supervising him. The court also initiated the main custody proceedings and commissioned a psychologist ’ s expert opinion on the family.

11. On 9 December 2013 the son was taken from his mother and since then he has been living with a foster family. The mother had been ordered to wean her son two months beforehand. However she refused to do this, and the son was separated from her by force.

12. On 28 January 2014 the applicant parents were examined by the Court of Appeal. The father stated that, in his opinion, a mild birching constituted neither violence nor child abuse. Both parents also continued to refuse to answer any questions about whether their son had been birched previously. The court decided against examining the applicant child owing to his age and the mental stress that a hearing would cause and instead heard the guardian ad litem ( Verfahrensbeistand ).

13. 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 their son ’ s schooling and professional training, because, owing to his age, there was no need for the withdrawal of such a right in an interim decision. The Court of Appeal found it established that the parents considered birching to be part of their son ’ s upbringing and that the son would be birched if returned to his parents and the community. It based its finding on the statements of the parents and witnesses, 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 parents ’ freedom of religion. It also found that there had been no other option entailing less of an infringement of the family ’ s rights, because up to that point the parents had not shown any willingness to refrain from disciplining their son, and greater assistance from the youth office would not ensure the safety of the son at all times. It further observed that only the opinion of the expert in the main proceedings would be able to determine the potential consequences of degrading educational methods aimed at unconditional obedience.

14. On 5 May 2014 the Federal Constitutional Court refused to accept a constitutional complaint by the applicant for adjudication, without providing reasons (1 BvR 770/14).

B. Relevant domestic law

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

15. 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.”

16. 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 )

17. 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.”

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

“Where the physical, mental or psychological best interests of the child or the 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.”

19. 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

20. The applicants complained under Article 8 of the Convention that the separation of the son and his 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 decision on a sufficient factual basis, but on general considerations about the Twelve Tribes church.

21. The applicants further complained under Article 9 of the Convention and under Article 2 of Protocol No. 1 that they had been prevented from raising their son in compliance with their religious beliefs, and that their religious beliefs were the reason for the withdrawal of their parental rights.

QUESTION S TO THE PARTIES

Appendix

All applicants are represented by Mr H. Forkel .