FIFTH SECTION

Application no. 74556/11 Blanka FUXOVÁ against the Czech Republic lodged on 28 November 2011

STATEMENT OF FACTS

The applicant, Ms Blanka Fuxová , is a Czech national, who was born in 1969 and lives in Plzeň . She is represented b efore the Court by Mr V. Vlk , a lawyer practising in Prague .

A. The circumstances of the case

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

1. The placement of the applicant ’ s baby into institutional care

On 4 August 2001 the applicant gave birth to a daughter at home. On 7 August she brought her daughter to a doctor who examined the child and concluded that she was in good health.

On 17 August the doctor informed the Klatovy Office for Social and Legal Protection of Children (“the Office for Children Protection”) of the birth of the applicant ’ s daughter. He further stated that the applicant had not come as instructed on 9 August for the newborn ’ s vaccination and blood test and on 14 August for a regular medical check-up. The doctor gave the same information to the local office administering the birth register.

During August and September 2001 employees of the Office for Children Protection tried unsuccessfully to meet the applicant and her daughter at home, but they were at that time staying abroad with the child ’ s father. As a consequence, on 26 October 2001 it requested the Police to carry out a national search for the child.

On 10 April 2002, after being informed by the Police that the applicant had been back home, employees of the Office for Children Protection carried out an inquiry at the applicant ’ s home. The official report stated that the applicant had admitted that she had made some mistakes by having omitted certain formalities connected with the birth of her daughter and had been aware that she might have committed an administrative offence and had promised to try to remedy the situation. The applicant had not, however, allowed them to enter the house but showed them the daughter briefly outside. The daughter had looked satisfied and normally developed for her age. The outside of the house and its surrounding had looked very nice and in good state of repair.

On 12 April employees of the Office for Children Protection came to the applicant ’ s home again but nobody answered.

On 17 April the Office requested the Klatovy District Court ( okresní soud ) to institute custody proceedings regarding the applicant ’ s daughter and to issue an interim measure placing her into institutional care.

On the same day the court granted the request holding that a week has passed since the applicant had been notified that she needed to fulfil her legal obligations connected with the birth of her daughter, including her vaccination, registering with a health insurance company and with a Register Office and that she had still not done so. Moreover, the Office for Children Protection had doubts whether the applicant was able to materially support her daughter as her only income seemed to have been a maternity benefit of CZK 2,400 monthly (EUR 96) which, moreover, she had sometimes failed to collect. Lastly, it had been unable to verify the conditions in which the child was living.

The applicant was not informed that the proceedings had been brought and could not take part in them.

On 23 April 2002, without any prior notice, the interim measure was enforced. A court bailiff approached the applicant ’ s home together with two judicial guards, two police officers, a doctor and an employee of the Office for Children Protection. The doctor expressed some concern that a baby should be taken from the applicant even though she was fully breastfeeding it. Nevertheless, the baby was taken by car to a nursing home in Plzeň and the applicant was told that there was no place in the car for her but she could follow them by her own means of transport. For the first hour of the journey the child was crying but, for its second half, she fell asleep.

The applicant travelled to the nursing home. According to the information provided by the nursing home to the Office for Children Protection, the child loved the applicant very much and was always extremely happy when she could be with her. The applicant was allowed to spend the days in the nursing home with her daughter. Since 26 April 2002 she was allowed to stay there overnight. The applicant consented that her daughter could be vaccinated against tetanus but requested postponement of the other vaccinations, which was accepted by the nursing home.

On 3 May 2002 the applicant ’ s daughter received a birth certificate with the name of E. G., the chosen name “ Půlnoční bouře ” (Midnight Storm), as she was born during a midnight storm, not being authorised. The daughter was also registered with a health insurance company and agreement was made with a paediatrician on an individual vaccination plan. The applicant also notified the authorities that she would live with her daughter in a flat in Plzeň . The flat was inspected by the Office for Children Protection and found to be suitable.

On 15 May 2002 the District Court terminated the custody proceedings and lifted the interim measure holding that the reasons for which it had been applied no longer existed. The applicant was, however, able to take the daughter home only on 21 May 2002.

2. The proceedings against the State brought by the applicant

The applicant instituted civil proceedings against the State for protection of personality rights claiming non-pecuniary damages for violations of her right to family life because of placing her daughter into institutional care for 29 days.

On 23 March 2006 the Prague Municipal Court ( městský soud ) rejected the claim finding no illegality in the conduct of the State authorities. It considered that the interim measure had been fully justified in the circumstances. It noted that the applicant had not been taking her daughter for regular medical check-ups, she had not been vaccinated, the applicant had not informed the Birth Register of her birth, had not registered her with a health insurance company and had not allowed employees of the Office for Children Protection to inspect the material conditions in which the child had been living. Accordingly, the fear for life and health of the child had been justified. Furthermore, the interim measure had been limited in time and had lasted only until reasons for it had ceased to exist and the applicant had been allowed to live with the daughter in the nursing home.

On 12 September 2006 the Prague High Court ( vrchní soud ) dismissed the applicant ’ s appeal and upheld the judgment.

On 6 August 2009 the Supreme Court ( Nejvyšší soud ) dismissed her appeal on points of law finding that the case did not raise an issue of crucial legal importance.

The applicant lodged a constitutional appeal claiming violations of her right to a fair trial and the right to respect for her family life

On 19 May 2011 the Constitutional Court ( Ústavní soud ) dismissed her constitutional appeal as manifestly ill-founded. It held that the interference with the applicant ’ s family life had been justified and proportionate in the circumstances for the protection of the child ’ s interests. It agreed that a child can be taken from parents only as a last resort but it considered that this condition had been fulfilled in the present case as other means, like to fine the applicant would have not been effective as it was necessary to react quickly to the situation.

It stated that the Office for Children Protection had to react to a situation when the applicant had not registered her daughter and they could not have ascertained whether the child ’ s health had not been endangered and whether the conditions, in which she had lived, had been adequate. Fears about the health of the child had been the main reason for the interim measure. The reaction of the Office for Children Protection had not been particularly disproportionate. It was also material that the applicant had been allowed to be in permanent contact with her daughter during her stay in the nursing home.

3. The Ombudsman ’ s report

On 30 April 2002 the applicant complained to the Ombudsman about the placement of her daughter into the nursing home. After inquiry into the conduct of the Office for Children Protection a Deputy Ombudsman issued a final report on 13 May 2002.

The report concluded that the interim measure had been clearly disproportionate in the circumstances. The applicant had been forced to fulfil her legal obligations by taking away her child, even though other possibilities had not been tried. The child should leave the nursing home as soon as possible and the Office for Children Protection should request the court to lift the interim measure.

The report stated that the reasons advanced for the interim measure had not been sufficient. A child was automatically health insured from the birth and the fact that the applicant had not registered it with an insurance company could have been an administrative offence but had not anyhow endangered the provision of health care if this had been needed. Similarly, the absence of vaccination could not have constituted a serious threat to the child ’ s development and the applicant could have been induced to comply with the compulsory vaccination plan by means of fines. Furthermore, it did not seem that the applicant was refusing vaccination altogether as she had consented to a tetanus vaccination and had asked for an individual vaccination plan in respect of the other diseases.

The Deputy Ombudsman reached similar conclusions regarding the obligation of the applicant to inform the Register of the birth of her daughter. A doctor had informed the Register and whether in that situation the applicant still had the obligation was unclear. In any case the applicant had at most committed an administrative offence for which she could have been fined.

The report further stated that it was understandable that the Office for Children Protection had been worried when they could not have contacted the applicant and had not known what had been happening with the Child. Nevertheless, these fears must have consi derably subsided after 10 April 2002 when employees of the Office for Children Protection had met the applicant, had seen her daughter and the house where they had been living. It was also material that there was no law ordering a mother to reside with a newborn at a particular address or to inform the Office for Children Protection of their residence.

Before requesting the interim measure, the Office for Children Protection had only asked a local paediatrician whether the mother had already come for vaccination. It had, however, disregarded that everybody had a right to choose a doctor and in fact the applicant had contacted another paediatrician and had agreed to an individual vaccination plan for her daughter before the interim measure had been issued. The fact that the Office for Children Protection had been unaware that the child had still been exclusively breastfed was another proof that its fact finding had been insufficient before it requested the interim measure.

B. Relevant domestic law

Under Article 76a of the Code on Civil Procedure a court can issue an interim measure to place a child into a suitable environment if the child is without any care or his or her life or favourable development is seriously threatened or disturbed.

A decision on this interim measure is delivered to the parties at the same time as its enforcement takes place.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that she was not given the opportunity to comment on the proposal to take her baby into care before such an interim measure was issued by the court.

2. The applicant further complains under Article 8 of the Convention that the placement of her baby into institutional care violated her right to respect for her family life.

3. Relying on Article 13 of the Convention, she also complains that she had no effective remedy for the alleged violations of her rights.

4. Lastly, relying on Article 14 of the Convention, she complains that the baby was taken from her because of her believe in an alternative lifestyle.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to respect for her family life, contrary to Article 8 of the Convention? In particular was the interference proportionate?

2. Was the stay of the applicant ’ s daughter in the nursing home between 15 May 2002 and 21 May 2002 in accordance with law?