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26.2.2002

Press release issued by the Registrar

CHAMBER JUDGMENT IN THE CASE OF KUTZNER v. GERMANY

In a judgment [fn] delivered at Strasbourg on 26 February 2002 in the case of Kutzner v. Germany (application no. 46544/99), the European Court of Human Rights held unanimously that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 15,000 euros (EUR) for non-pecuniary damage and EUR 8,000 (less EUR 350.63) for legal costs and expenses. (The judgment is in French only).

1.  Principal facts

The applicants, Ingo and Annette Kutzner, are German nationals who were born in 1966 and 1968 respectively and live at Badbergen (Germany). They are married and have two daughters: Corinna, who was born on 11 September 1991, and Nicola, who was born on 27 February 1993.

The applicants and their two daughters had lived since the children’s birth with Mr Kutzner’s parents and an unmarried brother in an old farmhouse. The applicants had attended a special school for people with learning difficulties. Owing to their late physical and, more particularly, mental development, the girls were examined on a number of occasions by doctors. On the advice of one of the doctors and on application by the applicants, the girls had received educational assistance and support from a very early age.

On 27 May 1997 the Bersenbrück Guardianship Court withdrew the applicants’ parental rights over their two daughters and ordered their placement with foster parents, notably on the ground that the applicants did not have the intellectual capacity required to bring up their children, but also on the ground that the girls were very late in their mental and physical development and the applicants had failed to cooperate with social services.

In a judgment of 29 January 1998 the Osnabrück Regional Court, relying on two expert reports, one highlighting the parents’ mental retardation and the second their emotional underdevelopment, upheld the Guardianship Court’s order for the girls’ placement.

The girls were placed in separate, unidentified, foster homes and restrictions were imposed on the applicants’ visiting rights. The applicants were not permitted to see their children during the first six months; thereafter they were given visiting rights in the presence of third parties initially of one hour monthly, subsequently increased to two hours monthly.

2.  Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 5 July 1998 and transferred to the Court on 1 November 1998. It was declared admissible on 10 July 2001.

Judgment was given by a Chamber of seven judges, composed as follows:

Antonio Pastor Ridruejo (Spanish), President,
Georg Ress (German),
Lucius Caflisch (Swiss),
Jerzy Makarczyk (Polish),
Ireneu Cabral Barreto (Portuguese),
Nina Vajić (Croatian),
Matti Pellonpää (Finnish), judges,

and also Vincent Berger, Section Registrar.

3.  Summary of the judgment

Complaint

The applicants maintained that the withdrawal of their parental rights over their daughters and their placement with foster parents had infringed their right to respect for family life, as guaranteed by Article 8.

Decision of the Court

Article 8

The Court recognised that the authorities may have had legitimate concerns about the late development of the children noted by the various social services departments concerned and the psychologists. However, it found that both the order for placement in itself and, above all, its implementation were unsatisfactory.

It appeared that the children had benefited from an early age – and at the applicants’ request – from educational support and that the situation had become acrimonious as a result notably of a conflict between the applicants and a social worker who submitted a very negative report to the Osnabrück Youth Office.

Further, the opinions of the psychologists consulted at various stages of the proceedings before the domestic courts were contradictory if not as regards their conclusions then at least as regards the reasons relied on (one psychologist referred to the parents’ lack of intellectual capacity while the other referred to emotional underdevelopment that made them incapable of contributing to the development of the children’s personality). Moreover, other psychologists who had been retained as expert witnesses by the German Association for the Protection of Children and the Association for the Defence of the Rights of the Child and family doctors urged that the children be returned to their family of origin. They emphasised in particular that there was no danger for the children’s welfare and that the applicants were entirely fit to bring up their children both emotionally and intellectually. They said that the children should be given additional educational support. Those conclusions could not be disregarded simply because their authors were acting privately. Lastly, at no stage was it alleged that the children had been neglected or ill-treated by the applicants. Accordingly, although the educational support measures taken initially subsequently proved inadequate, the question arose whether the domestic administrative and judicial authorities had given sufficient consideration to additional measures of support as an alternative to what was by far the most extreme measure, namely separating the children from their parents.

The Court reiterated that a care order had in principle to be regarded as a temporary measure, to be discontinued as soon as circumstances permitted, and that any measures implementing temporary care had to be consistent with the ultimate aim of reuniting the natural parents and the child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible would begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child.

However, in the case before the Court, not only had the children been separated from their family of origin, they had also been placed in separate, unidentified, foster homes and all contact with their parents severed for the first six months. The children were at no stage heard by the judges.

The case file also showed that the applicants had only been granted visiting rights after making an application to the court, while the visits were in practice systematically obstructed by the Osnabrück Youth Office and, initially, were restricted to one hour monthly in the presence of eight people who were not members of the family, before being extended to two hours monthly (with the grandparents being authorised to visit once every two months) by a decision of the Osnabrück Guardianship Court of 9 October 2000.

Having regard to the fact that the children were very young, severing contact in that way and imposing such restrictions on visiting rights could, in the Court’s opinion, only lead to the children’s increased "alienation" from their parents and from each other. Similarly, the dispute on that issue could not be regarded as having been resolved, as the applicants had consistently contested not only their children’s placement with foster parents, but also the restrictions imposed on their visiting rights and they could not in practice be criticised for having made use of the arrangements afforded by the domestic courts to enable them at least to see their children.

 

Having regard to all those circumstances, the Court considered that although the reasons relied on by the administrative and judicial authorities were relevant, they were not sufficient to justify such a serious interference in the applicants’ family life. Notwithstanding the domestic authorities’ margin of appreciation, the interference had therefore not been proportionate to the legitimate aims pursued. Consequently, there had been a violation of Article 8 of the Convention.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human Rights
F – 67075 Strasbourg Cedex
Contacts: Roderick Liddell (telephone: (0)3 88 41 24 92)
Emma Hellyer (telephone: (0)3 90 21 42 15)
Fax: (0)3 88 41 27 91

The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court.

[fn]  Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.