Communicated on 16 December 2015

FOURTH SECTION

Application no. 60331/13 Richard LECHNER and Sabine LECHNER against Austria lodged on 9 September 2013

STATEMENT OF FACTS

The applicants, Mr Richard Lechner and Ms Sabine Lechner , are Austrian nationals, who were born in 1968 and 1972 and live in Vienna. They are represented before the Court by Mr A.O. Rippel , a lawyer practising in Vienna.

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

The applicants are the parents of A. and S., both born in wedlock in May 1998, and in May 2001 respectively.

On 5 November 2009, the Vienna Youth Welfare Office ( Jugendwohlfahrtstr ä ger , hereinafter: Youth Welfare Office) pursuant to Article 215 of the Austrian Civil Code ( Allgemeines B ü rgerlichers Gesetzbuch , ABGB ), took A. and S. provisionally into care because of a direct threat of the children ’ s ’ well-being.

On 9 November 2009 the Youth Welfare Office requested the D ö bling District Court (hereinafter: District Court) to transfer custody to it and stated that already in 2007 school authorities had informed it that A. showed psychological and emotional syndromes of neglect. Investigations committed by the Youth Welfare Office had shown already at this time that the second applicant showed emotional disabilities to educate the children and locked them up in a room, when she felt unable to deal a situation. Because of the first applicant ’ s logistics enterprise, he was not at home even most weekends and therefore took not part in the raising of the children. In an intensive support and supervision programme, social workers of the Youth Welfare Office and the applicants had worked on a plan to stabilise the children and the family. Even after one year of intensive support, the parents had not shown improvement in regard to their ability to bring up the children but refused help. The applicants had declined to bring their children to necessary medical, psychological and educative programmes, which could help the children to adjust shortcomings. The psychological status of the children had worsened in the meantime. Therefore, the measure taken by the Youth Welfare Office was necessary.

The applicants opposed this request.

On 19 May 2010 the District Court held a hearing and decided to appoint a psychological expert in order to examine the psychological status of A. and S. as well as the abilities of the applicants to bring up their children. The hearing was adjourned sine die .

On 29 September 2010 the District Court appointed Dr. W. as expert to the proceedings and ordered her to file her report within 4 months. Only on 3 November 2010, this decision as well as the case file was sent to the expert.

On 6 and 10 October 2010 the Youth Welfare Office informed the District Court that it had denied the applicants to visit their children because of the suspicion of sexual abuse which was raised by a psychological testing and ongoing medical examinations. Criminal information had been filed to the Vienna Public Prosecutor ’ s Office which opened criminal investigations against an unknown offender.

On 10 December 2010 the applicants requested the District Court to allow them to bring their children to their home for the 24 December 2010 until 25 December 2010 and from 31 December 2010 until 1 January 2011. On 13 December 2010 the applicants requested the District Court to grant them, or at least the second applicant alone, visiting rights in the amount of two times a week for 4 hours in a specialised facility ( Besuchscafe ) under the supervision of a person of the Youth Welfare Office. This request was reiterated by the applicants on 13 January 2011. The District Court did not deal with these requests as the case file was still with the expert.

On 2 March 2011 the applicants filed a request under Section 91 of the Courts Act ( Gerichtsorganisationsgesetz ) to the Vienna Regional Court for Civil Matters (hereinafter: Regional Court) and requested it to set a time limit for a decision upon the applicant ’ s requests for visiting rights.

On 15 April 2011 the Regional Court dismissed the applicant ’ s request under Section 91 of the Courts Act and found that it was reasonable to entrust an expert with the task of examining the psychological status of the children as well as the ability of the applicants to raise their children before deciding on the issues of custody and visiting rights. As the request ’ s aim was to preclude this evidence, it was inadmissible. Nonetheless, taking into account the seriousness of the issue at hand, the Regional Court disapproved of the time span which the District Court had needed from appointing an expert to sending her the case file. The District Court was asked to monitor the progress of the expert attentively.

As the expert had not filed her expert report until 1 July 2011 the applicants requested the District Court to se t the expert a time limit of 14 days to submit her report. Moreover, on 7 July 2011, the applicants complained about the length of proceedings before the Ombudsstelle at the Vienna Court of Appeal. The Ombudsstelle informed the applicants on 18 July 2011 that it had contacted the expert who had stated that the report would be delivered in the middle of July.

On 5 August 2011 the expert report was filed to the District Court which summoned to a hearing on 13 October 2011.

On 6 September 2011 the applicants filed a request to the District Court to order the expert to answer questions related to visiting rights. Moreover, the applicants contacted again the Ombudsstelle and complained about the fact that the expert report did not deal with the visiting rights. The Ombudsstelle forwarded the complaint to the judge in charge at the District Court who declared that questions concerning visiting rights would be dealt within the hearing of 13 October 2011 in which the expert would be present. This information was transferred to the applicants on 3 October 2011.

On 13 October 2011 the hearing before the District Court took place and the expert was questioned.

On 28 November 2011 the District Court transferred custody of A. and S. to the Youth Welfare Office and granted the applicants visiting rights together or each on their own for both children within the limits of organisational possibility approximate in a 14 days period for two to four hours under the supervision of R.S., a psychologist of the Youth Welfare Office, at the children ’ s centre of the Youth Welfare Office. The District Court found that S. had been victim of sexual abuse with utmost certainty. Based on the expert report and the expert ’ s statement during the hearing of 13 October 2011, the Court stated that the applicants would not show empathy with the children and were not able to react properly to the wishes and needs of the children. The applicants had refused psychotherapy facilitating them to deal with future problems in regard to their children. Because of the lack of ability to raise A. and S., the custody had to be transferred to the Youth Welfare Office. Concerning to request for visiting rights, the District Court based its decision on the findings of the expert in the hearing of 13 October 2011 and the applicants ’ basic consent to this arrangement expressed in the hearing.

The applicants appealed against the decision on the transfer of custody and against the decision concerning visiting rights.

Beginning in December 2011, supervised visits of the applicants took place approximately on a monthly basis.

On 23 February 2012 the Regional Court dismissed the appeals of the applicants concerning the transfer of custody, but ordered the District Court to specify the applicants ’ visiting rights after having supplemented its proceedings ( Verfahrenserg än zung ). The Regional Court stated that the Youth Welfare Office had confirmed in a statement in response to the applicants ’ appeal that visits would take place only once a month. According to the Youth Welfare Office this was due to the lack of time of the first applicant and other problems when fixing dates taking into account the children ’ s needs and wishes. As it seemed that the situation was changing constantly, the District Court should examine the new situation.

The District Court ordered a report by the Youth Welfare Office and granted on 30 July 2012 the applicants the following visiting rights under supervision of R.S. at the children ’ s centre of the Youth Welfare Office:

In respect of S.: the first applicant together with the second applicant or by himself every 4 weeks; the second applicant every 14 days.

In respect of A.: both applicants together every four weeks.

The District Court based its decision on the report of the Youth Welfare Office which stated that since December 2011 visits by the applicants had taken place approximately once a month. As S. had reacted positively to the contacts with the second applicant, the Youth Welfare Office had advised to extend these visits. On the other hand, there were no positive reactions on the visits of the first applicant. Contrary to S., A. had not reacted positively but reverted to former patterns of behaviour by showing aggression and shrieking attacks as well as enuresis. Therefore, the visits of the applicants should be maintained at the same level.

The applicants appealed against this decision.

On 21 November 2012 the Regional Court quashed the District Court ’ s decision of 30 July 2012 and again ordered the re-examination of the visiting rights of the applicants after having supplemented its proceedings ( Verfahrenserg ä nzung ). The Regional Court found that the District Court was not allowed to base its decision only on the report of the Youth Welfare Office which had become a party to the proceedings when obtaining custody rights to the children but should for example have heard witnesses and consulted the expert Dr. W.

After obtaining evidence, on 1 August 2013 the District Court granted the applicants visiting rights for two hours under the supervision of the qualified social education worker E of the Youth Welfare Office in a specialised facility ( Besuchscafe ) as follows:

In respect of S.: The first applicant every four weeks, the second applicant every 14 days:

In respect of A.: The first applicant every 14 days, the second applicant every four weeks.

The District Court stated that both children were still living in a supervised and assisted shared flat ( “ betreute Wohngemeinschaft ” ) of the Familienbund and had achieved major improvement in the meantime. Especially S. would show major achievements in her development. A. would face a period of difficulties as he had hit puberty. The applicants would cooperate on a very good basis and the visits would proceed satisfying. As A. had asked to see his father more often, the visiting rights in this regard had to be adapted. S. had not asked to change or adapt visiting rights but would enjoy time with her mother. Therefore, an adaptation of these visiting rights was not required.

The applicants filed an appeal.

On 18 December 2013, the Regional Court confirmed the District Court ’ s decision of 1 August 2013 but re-phrased the first instance ’ s decision for reasons of clarity. The wording in the court ’ s order “under the supervision of the qualified social education worker E. of the Youth Welfare Office” was changed into “under the supervision of the qualified social education worker E. or other representatives of the Youth Welfare Office”. The order concerning A. was reformulated as well. The Regional Court emphasised that these modifications were not caused by legal errors but were made in a view to prevent future disputes about the interpretation of the order.

According to the applicants, this decision had become final and since December 2013 the visits of both children take place as granted by the courts.

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention about the length of proceedings for contact rights to their children. They also invoke Article 8 in this respect.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

2. Was the length of the civil proceedings on the applicants ’ request for visiting rights in breach of the “reasonable time” requirement of Articl e 6 § 1 of the Convention?

2. Has there been an interference with the applicants ’ right to respect for their family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference necessary in terms of Article 8 § 2?