FIFTH SECTION

Application no. 31021/08 by I. S. against Germany lodged on 19 June 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Ms I. S., is a German national who was born in 1962 and lives in Bielefeld . She is represented before the Court by Mr G. Rixe , a lawyer practising in Bielefeld .

A. The circumstances of the case

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

1. Background to the case

The applicant married in 1986 and had her first child in 1988. The son was raised by the applicant and her husband.

In 1991 the applicant suffered a miscarriage. In 1992 she again fell pregnant with twins. One of the foetuses was not developing properly and threatened the life of the other, presumably healthy, foetus. During a medical intervention in the eighth month of pregnancy both foetuses died, causing a long lasting psychological trauma for the applicant.

In 1993 she gave birth to her second son, also raised by the applicant and her husband.

In summer 1999 she became pregnant with twins after a short extramarital affair with a former boyfriend. This man, who was also married, insisted on an abortion, as did the husband of the applicant. Both men threatened to leave her if she would not terminate the pregnancy. The former boyfriend broke off any contact with the applicant; according to her he does not know that she gave birth.

In November 1999 the husband of the applicant moved out of the family home and threatened to stop paying maintenance for his two sons and to the applicant. He put further pressure on her by threatening to break off all contact with his sons if she sued for maintenance. Instead, he offered to move back in with the applicant if she gave away the “illegitimate” children. The applicant ’ s sister and her mother refused to support her. The applicant felt extremely guilty for having destroyed the family situation for her two sons. Yet she was determined not to have an abortion, after the traumatic death of the foetuses in 1992 and after an abortion in her youth on the advice of the same former boyfriend.

On 19 April 2000 the twin sisters, S. and M., were born prematurely, but otherwise healthy. The applicant and the newborn children had to remain in hospital, where until 7 May 2000 the applicant cared for the children.

The applicant did not specify the identity of the biological father of the twins.

2. The adoption proceedings

The applicant made initial contact with the Bielefeld Youth Office during her pregnancy. She allegedly initially thought about having the twins placed in foster care, due to her difficult family and financial situation.

The Bielefeld Youth Office – according to the applicant – instead suggested adoption as the applicant herself or her husband would have to pay for the foster care.

From January until October 2000 the applicant received psychological treatment on the advice of her gynaecologist. According to her psychoanalyst the applicant was depressed, had suicidal tendencies, and suffered from anxiety, panic attacks and extreme feelings of guilt as well as a sleeping disorder. The applicant felt overwhelmed by the situation and the decisions to be taken. The potential adoption was a topic of discussion during the treatment.

As the applicant could not take the newborn children home she consented to having them placed in provisional care with the aim of later adoption. In this way she hoped to avoid too many changes in the primary care takers. She was allegedly told that in case of foster care the newborns would first be given to an emergency foster family for six months before being handed over to a long-term foster family.

From 8 May 2000 onwards a staff member from the Bielefeld Youth Office denied the applicant further contact with the children.

On 19 May 2000 the children were handed over to the couple who later became th e adoptive parents of S. and M .

In summer 2000 the applicant personally met the future adoptive parents of the twin sisters. The applicant was allegedly so upset that she burst into tears and had to cut short the visit.

On 1 September 2000 it was legally acknowledged that the husband of the applicant was not the father of the twin sisters by judgment of the Bielefeld District Court (no. 34 F 1306/00). The applicant began to work full time in order to support herself and her two sons.

On 9 November 2000 the applicant formally consented in a deed to the adoption of the children before the notary public, D.R., in Bielefeld . The declaration reads as follows:

“ I hereby give consent for my children, S. and M., born 19.04.2000 in Bielefeld , to be adopted by th e married couple identified under n o. ... o n the list of the Bielefeld City Youth Office.

I declare this for the use of the competent f amily c ourt. I am aware that this declaration cannot be revoked.

I have been instructed by the notary public as to the legal consequences of the adoption , in particular the fact that all kinship of the children and their children to me and my relatives will cease as will all duties and rights that follow from kinship.

Although I do not know the names of the future parents of my children I trust that the Bielefeld City Youth Office has made a proper choice regarding the parents and respected the interests of the children.

In case the f amily c ourt wishes to inform me about the beginning or the end of care, the beginning or the end of guardianship regarding my children or about the granting of adoption, I hereby empower the Bielefeld City Youth Office to receive that information for me.”

As the identity of the biological father of the children remained unknown, he could not consent to or object to the adoption.

The applicant then saw both children for the last time. Her husband moved back in with the applicant and their two sons.

On 1 February 2001 the future adoptive parents declared in a deed before a notary public that they wished to adopt the twin sisters S. and M.

In March 2001 the District Administrator ( Landrat ) of Stormarn District, Department of Social Services and Adoption gave an expert evaluation on the development of the children in the care of the prospective adoptive parents.

On 21 June 2001 the guardianship division of the Reinbek District Court (proceedings no. 2 XVI 1/01) held a hearing with the prospective adoptive parents in the presence of the twins. The record of the hearing reads:

“ ... anxieties are mentioned (by the adoptive parents) resulting from the apparently enormous difficulties of the biological mother in psychologically accepting her giving away of the children. Because a half-open adoption was arranged, there have been signs which lead to the conclusion that the biological mother seeks contact with the twins. The arrangement with the staff of the Youth Office and the biological mother by which photos of the children will be sen t each year to the biological mother remains valid. Additionally , the children will be told early on about their adoption. ... ”

On the same day the Reinbek District Cou rt concluded the adoption of S. and M. and declared them the legitimate children of the adoptive parents. The family and the given names of the chil dren were changed respectively.

3. Proceedings to declare the applicant ’ s consent to adoption void

On 11 April 2002 the applicant commenced proceedings before the Bielefeld District Court in order to declare her consent to the adoption void. The court transferred the case to the competent Reinbek District Court (no. 2 XVI 6/02). The applicant argued that the adoption was void because the father of the child had not consented to the adoption. She further argued that at the time of giving her consent she had been either in a temporary or in a pathological state of mental disturbance, which had prevented the free exercise of her will. She had not been aware of what she had been doing. She argued – referring to medical evidence – that she had been suffering from an “aggravated reactive form of depression with acute risk of suicide” since 1992, when she had been traumatised by the death of the foetuses.

The guardian ad litem of the children argued that a revocation of the adoption would be against the best interests of the children, as since their birth the children had been almost continuously in the care of the adoptive parents who had established a very good, parental relationship with the children.

In reaction to the arguments of the guardian ad litem the applicant partly withdrew her application with regard to custody rights and made clear that her aim was no longer to integrate the children into her own family. She acknowledged that the children were well cared for and fully settled in the adoptive family. She underlined that her aim was to regain kinship in order to have a right to contact with the children. In her view her vulnerable situation at the time of the birth had been exploited by the Bielefeld Youth Office; she now felt that she had been unduly influenced to put the children up for adoption.

The Reinbek District Court procured a psychiatric opinion on whether the applicant had been temporarily legally incapable of acting at the time of consenting to the adoption. The expert contacted the applicant, her psychoanalyst at the time and her long-term gynaecologist. According to the psychiatric expert the applicant had been in a situation of extreme conflict from the time she had become aware of her pregnancy. This had aggravated the depression she was already suffering due to the accidental death of the foetuses in 1992. He put the applicant ’ s decision to put the twin sisters up for adoption in the context of her desire to get her husband back. He diagnosed a certain weakness in the personality of the applicant and a dependency on male authority. However, he could not diagnose any past or present psychotic illnesses and therefore concluded that although she had been suffering from a deep inner conflict at the time of consenting to the adoption, the applicant had been legally capable of making a decision on her own.

On 4 June 2003 the court heard the applicant, who explained how, in her view, the Bielefeld Youth Office had unduly used her wish to see her children in the summer of 2000 in order to pressurise her into signing the adoption declaration.

In a decision of 10 June 2003 the Reinbek District Court dismissed the applicant ’ s claim. It acknowledged the situation of extreme conflict the applicant had been in at the time of consenting to the adoption and the psychological implications of that. It stated that solutions other than putting the children up for adoption might have been available to resolve the applicant ’ s personal crisis. In line with the expert opinion, however, the court held that the applicant had still been capable of making decisions. Furthermore, the court stated that the applicant had no legal standing to rely on the lack of consent of the children ’ s father to the adoption.

Since the applicant did not appeal against the decision, it became final.

4. The proceedings concerning contact and/or information rights of the applicant

(a) Proceeding s before Reinbek District Court

On 14 November 2002 the applicant filed proceedings (no. 1 F 332/02) for contact with the children and the right to receive information about them at the Reinbek District Court. She argued that she had been promised meetings with the children every six months and letters and photos of them. A meeting with the children in June 2001 had been scheduled according to the agreement, but did not take place because the responsible member of Bielefeld Youth Office was on extended leave. No other member of the Youth Office had replaced the absent staff member. In September 2001 the applicant received photos of the children. When she mentioned that she was thinking about revoking her consent to adoption, staff of the Bielefeld Youth Office threatened to stop her contact with the children. A letter that the applicant wrote to the adoptive parents and handed over to the Bielefeld Youth Office was returned with the remark that the applicant should seek psychological treatment. The applicant based her claim for contact on Article 1666 and additionally on Article 1685 § 2 of the Civil Code (see “Relevant domestic law” below). Her claim for the right to receive information about the children was based on Article 1686 of the Civil Code.

On 2 July 2003 the adoptive parents were heard. They opposed the claim of the applicant and asked for it to be dismissed. They referred to the legal basis of adoption under the Civil Code, which only provided for anonymous adoption. According to the hearing record the adoptive parents declared that they still intended to inform the children about the adoption before they started primary school. They had planned to see the mother of the children together with the children in spring 2001. This meeting had been set up for the sole benefit of the applicant, as the children would not have benefited from it. They had had the intention of sending letters to the applicant with information about the children. Now, in view of the court proceedings, they felt insecure and preferred to wait for the court decisions.

In a decision of 21 July 2003 the Reinbek District Court dismissed the applicant ’ s request for contact with the children. According to the court Article 1684 of the Civil Code was not applicable to the applicant ’ s case as she had lost her legal position as a parent due to the adoption. An analogous application of the Article was, according to a decision of the Federal Constitutional Court of 9 April 2003 (no. 1 BvR 1493/96), not possible. Article 1685 of the Civil Code was applicable, but would not grant contact rights to the applicant as she did not fulfil the legal requirements. The applicant could not be considered as a person who had cared for the children for an extended period of time. The applicant had only cared for the children for two weeks. Even if the criteria of the Federal Constitutional Court in the above-mentioned decision – whether there was a social and family relationship – were applied, the applicant could not be granted contact, as she had not created a significant social and family relationship with the children. The time of pregnancy and the two weeks after the birth did not suffice. The Civil Code grants to the adoptive parents the sole right to establish, grant or deny contact with the children even in respect of the biological mother. Furthermore, the court argued that the children, who were only three years old, might be overwhelmed by the fact that they have two mothers.

On 28 July 2003 the court also dismissed the applicant ’ s claim in regard to the right to receive information about the children. Article 1686 of the Civil Code was not applicable, as the applicant was not a parent any more. Insofar as Article 1686 of the Civil Code might be construed more widely, it would not apply to the applicant as her case did not fall under the scope of Article 1685 of the Civil Code.

(b) Proceedings before the Schleswig Court of Appeal

On 11 August 2003 the applicant filed an appeal with the Schleswig Court of Appeal. She mainly complained that the Reinbek District Court had neither decided on Article 1666 of the Civil Code as a potential basis of her claim nor on whether a contractual agreement existed; furthermore, her petition for an expert opinion on the children ’ s best interests had been ignored. She further argued that the criteria of a “long duration”, when applied to parent-child relationships, had to be interpreted from the perspective of the child, whose concept of time differed from that of adults. The biological mother was always a “relevant person” in the sense of Article 1685 Civil Code, and this evaluation did not change even after the biological mother ceased to have legal responsibilities. Regarding the right to information, she argued that although she had consented to the adoption, she remained the biological mother and the constitutional protection of the family applied to her. Even the Federal Constitutional Court had acknowledged that during pregnancy a psycho-social relationship between mother and the foetus was established (judgment of 29 January 2003 –1 BvL 20/99). Lastly, she complained about the length of the proceedings.

On 22 October 2003 the applicant was granted legal aid.

On 30 January 2004 the Schleswig Court of Appeal - 10 UF 199/03 and 10 UF 222/03 - dismissed the appeal of the applicant against the decisions of the Reinbek District Court of 21 and 28 July 2003. Two hearings, one on 15 December 2003 and the other on 30 January 2004 had taken place. Regarding the length of the proceedings before the district court, the Schleswig Court of Appeal found that the district court had dealt adequately with the complex case within seven and a half months. Concerning the contact rights of the applicant, the court found that only Article 1685 Civil Code was applicable. Although the applicant was the children ’ s biological mother, she did not belong to the circle of persons who had lived in domestic community with the child for a long period of time. According to the court, only foster parents are covered by this terminology. Furthermore, in order to determine “a long period of time” one had to establish whether a child had come to accept that his or her “relevant surroundings” ( Bezugswelt ) are with the individual in question. In the present case, the time of pregnancy was irrelevant, as an unborn child does not have a concept of its surroundings. Article 1685 Civil Code was in line with the constitutional protection of the family. The biological mother ceased to have contact or custody rights at the moment of adoption. The legal provisions regarding adoption were aimed at the undisturbed development of the child, and they served the best interests of the adopted child, who had to be fully integrated into the adoptive family; the biological family became irrelevant in accordance with the law. Even if the criteria of the judgment of the Federal Constitutional Court of 9 April 2003 regarding the biological father of a child born out of wedlock were applied, the biological mother would have to have lived with the children for a considerable time, which was not the case here. As the applicant knew, the right to contact on the basis of a contractual agreement could not be enforced by the family courts, as they were not empowered to regulate such matters. Article 1666 Civil Code did not give grounds for a different solution.

Having considered the claim for the right to receive information about the children under Article 1686 Civil Code, the court found that the applicant had ceased to be a parent at the moment of adoption. As the legal basis was unambiguous and the circle of persons who had a right to such information was strictly limited to the parents, the court found no room for a different interpretation.

(c) Proceedings before the Federal Constitutional Court

On 8 March 2004 the applicant raised a constitutional complaint regarding the denial of her rights to receive information about and have contact with the twin sisters after adoption. In addition to her legal argument, she submitted factual information on the state of medical, psychological and pedagogical research on adoption and its effects on the adopted child and the biological parents.

In a decision of 13 December 2007, served on the applicant ’ s representative on 19 December 2007, a panel of three constitutional judges refused to admit the constitutional complaint.

5. Other developments and proceedings

The applicant also commenced proceedings in June 2003 concerning the appointment of a guardian ad litem for the twin sisters, in order for the children to be able to raise a constitutional complaint against the adoption decision of the guardianship division of the Reinbek District Court of 21 June 2001 (no. 2 XVI 1/01). These proceedings are the issue of another complaint before this Court (application no. 30296//08).

The applicant divorced her husband and is now remarried. She had a child with her new husband in 2003.

With letter of 16 December 2011 of this Court the applicant was informed that on 3 December 2011 the Law on a remedy against lengthy court proceedings and criminal investigations (Federal Law Gazette Part I, 2011, page 2302 et seq.) came into force in the Federal Republic of Germany.

B. Relevant domestic law

1 . Article 6 § 1 and 2 of the Basic Law

“ (1) Marriage and the family shall enjoy the special protection of the state.

(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty. ”

2 . Relevant provisions of the Civil Code

(a ) Provisions on adoption

Pursuant to Article 1754, insofar as it is relevant to this case, adoption has the effect that the adopted child attains the legal position of a child of the adoptive parents. Parental custody is held by the adoptive parents jointly. Article 1755 provides that when the adoption takes effect, the relationship of the child and its descendants to the previous relatives and the rights and duties arising from this are extinguished.

Article 1758 § 1 provides that facts that might disclose the adoption and its circumstances may not be revealed or inquired into without the approval of the adoptive parent and of the child , unless special reasons of public interest make this necessary.

(b ) Provisions on contact with a child

Pursuant to Article 1684 § 1, a child is entitled to have contact with both parents; each parent is obliged to have contact with, and entitled to have contact with , the child.

Pursuant to Article 1685 §§ 1and 2 in the version applicable when the courts of first instance and the appeal court decided in this case, g randparents and siblings ha d a right to contact the child if this serve d the best interests of the child. The same applie d to the spouse or former spouse and the civil partner or former civil partner of a parent, where this person had lived in domestic community with the child for a long period, and to persons with whom the child had spent a long period as a foster child.

Pur suant to the current version – valid since 23 April 2004 – persons with whom the child has a close relationship ( enge Bezugspersonen ) have a right to contact the child if it serves its best interests and if these persons have or have had actual responsibility for the child (social and family relationship). It is assumed that actual responsibility has been taken if the person has lived for a long period in domestic community with the child. The law had to be changed because the Federal Constitutional Court, by judgment of 9 April 2003 – 1 BvR 1493 /96, 1724/01–, declared Article 1685 in its old version incompatible with Article 6 § 1 of the Basic Law regarding biological fathers with a relation to the child.

(c ) Provisions on information on a child

In accordance with Article 1686 , e ach parent may , when it is justified, request information from the other parent on the personal circumstances of the child, to the extent that this is not inconsistent with the best interests of the child. Disputes are decided by the family court.

(d ) Power of the family court

Pursuant to Article 1666 in the version applicable before July 2008 the family court was empowered to take the necessary measures if the parents were not willing or not able to avert a danger to the physical, mental or psychological best interests of a child caused by abuse of parental c ustody , neglect of the child or by any other failure of the parents to carry out their duty.

3. Law on a remedy against lengthy court proceedings and criminal investigations

Under this Act ( Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren ) which came into force on 3 December 2011 a national remedy against excessive length of court proceedings and criminal investigations was created. According to its Article 23, the transitory provision, the new remedy shall be applicable to pending cases as well as to terminated proceedings on the national level if the latter already form part of an application with the European Court of Human Rights.

COMPLAINTS

The applicant complained under Article 8 of the Conventio n that the decisions of the German courts violated her right to have contact with and to receive information about the children of whom she is the biological mother. She emphasised that the courts had construed the concept of “family” too narrowly, excluding in particular mothers who had placed newborn children up for adoption. The courts disregarded the fact that during pregnancy a relevant relationship between mother and child is already developing, and does not de facto end with placement in adoption. Moreover, Article 1685 of the Civil Code can be easily interpreted in the light of the applicant ’ s right to respect for her family life. The refusal to allow a biological mother contact with the adopted child is disproportionate, especially in this case, where the adoptive parents, the Bielefeld Youth Office and the applicant agreed to a “half-open” adoption, namely, that the applicant would be informed about the development of the children and would be able to meet them twice a year.

Additionally, she alleged a violation of her right to respect for her private life by the decisions of the German courts.

The applicant further complained under Articles 8 and 14 of the Convention that she had been discriminated against as a biological mother in comparison to step- or foster parents, who had a potential right to contact with children formerly in their care if that contact was deemed suitable for the children. These rights continued to exist even if the child was adopted by third persons. In regard to her right to receive information about the children, she considered that she had been discriminated against compared to legal parents.

She lastly complained under Article 6 of the Convention about the length of the proceedings before the national courts. The proceedings started in November 2002 and lasted until December 2007 with the decision of the Federal Constitutional Court . The proceedings before the Federal Constitutional Court alone lasted for three years and nine months.

She noted that there was no effective national remedy available for her complaint concerning the length of the proceedings and that there had therefore been a breach of Article 13 in conjunction with Article 6 of the Convention.

QUESTION TO THE PARTIES

Has there been a lack of respect for the applicant ’ s right to private and/or family life within the meaning of Article 8 § 1 of the Convention by the decisions on 21 and 28 July 2003 of the Reinbek District Court -1 F 332/02 - and by the decision of the Schleswig Court of Appeal on 30 January 2004 - 10 UF 199/03 and 10 UF 222/03 -?

If so, was that interference in accordance with the law and “necessary” within the meaning of Article 8 § 2? Concerning the necessity test, the observations should take into account the applicant ’ s argument that she was promised a “half–open” form of adoption.