Haase v Germany

JudgeJUDGE CABRAL BARRETO (PRESIDENT),JUDGES RESS,CAFLISCH,KURIS,ZUPANCIC,TSATSA-NIKOLOVSKA,TRAJA,MR V BERGER (SECTION REGISTRAR)
Judgment Date08 April 2004

Human rights – Private and family life – Removal of parental rights – Prohibition of access and contact with children – Whether removal of parental rights and prohibition of access and contact necessary in a democratic society – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.

Mrs H and her second husband (the applicants) had five children. Mrs H had had seven children with her first husband and after their divorce she was afforded parental rights over the youngest three. She applied to the Munster Youth Office for family aid and agreed to have her family situation assessed by a psychological expert. On the basis of that report the youth office applied to the Munster District Court for an interim injunction to withdraw the applicants’ parental rights. That injunction was granted without hearing the applicants (the parental rights decision). The following day the district court prohibited all access between the applicants and the children of both marriages (the access decision). The children were placed in foster homes. The applicants’ appeal against the parental rights decision to the Hamm Court of Appeal was dismissed. Subsequently the Federal Constitutional Court set aside the decisions of the Court of Appeal and the district court and referred the case back to the district court. In so far as it found the applicants’ constitutional complaint admissible the Constitutional Court found that the decisions of the courts below had violated the applicants’ family rights as guaranteed by the Basic Law. After further hearings the district court confirmed its access decision. Ultimately it formally withdrew the applicants’ parental rights and prohibited all access until a certain date. It also prohibited contact with those children living with her first husband. The applicants appealed those decisions. By their originating application they complained to the European Court of Human Rights that, inter alia, the measures taken by the court were in breach of art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

Held – In the instant case the impugned measures evidently amounted to an interference with the applicants’ rights to respect for family life. Those measures were legitimate aims and in accordance with the law. However, having applied the relevant principles, the measures could not have been regarded as necessary in a democratic society. In the instant case the danger had existed over a long period of time and there was therefore no urgency

which justified the interim injunction. The provisional withdrawal of parental rights and the removal of the children were not supported by relevant and sufficient reasons and the applicants had not been involved in the decision-making process to a degree sufficient to provide them with the requisite protection of their interests. In particular the impugned measures had a quality of irreversibility in respect of the separation of the family. Moreover, the method used to implement the parental rights decision went beyond the exigencies of the situation and was not proportionate. Accordingly, there had been a violation of art 8.

Cases referred to in judgment

Akdivar v Turkey (1996) 1 BHRC 137, ECt HR.

Aksoy v Turkey (1996) 1 BHRC 625, ECt HR.

Barberà v Spain [1994] ECHR 10588/83, ECt HR.

Cakici v Turkey (1999) 31 EHRR 133, [1999] ECHR 23657/94, ECt HR.

Cardot v France App no 11069/84 (19 March 1991, unreported), ECt HR.Dalban v Romania (1999) 8 BHRC 91, ECt HR.

Elsholz v Germany[2000] 3 FCR 385, ECt HR.

EP v Italy [1999] ECHR 31127/96, ECt HR.

Eriksson v Sweden (1989) 12 EHRR 183, [1989] ECHR 11373/85, ECt HR.

Gnahoré v France [2000] ECHR 40031/98, ECt HR.

H v UK (1987) 10 EHRR 95, [1987] ECHR 9580/81, ECt HR.

Hokkanen v Finland[1995] 2 FCR 320, [1996] 1 FLR 289, ECt HR.

Johansen v Norway (1996) 23 EHRR 33, [1996] EHRC 17383/90, ECt HR.

K and T v Finland[2001] 2 FCR 673, ECt HR.

KA v Finland[2003] 1 FCR 201, ECt HR.

Kutzner v Germany[2003] 1 FCR 249, ECt HR.

McMichael v UK (1995) 20 EHRR 205, [1995] EHRC 16424/90, ECt HR.

Meulendijks v Netherlands [2002] ECHR 34549/97, ECt HR.

Nielsen v Denmark (1988) 11 EHRR 175, [1988] ECHR 10929/84, ECt HR.

Olsson v Sweden (No 1) (1988) 11 EHRR 259, [1988] ECHR 10465/83, ECt HR.

P, C and S v UK[2002] 3 FCR 1, ECt HR.

Remli v France (1996) 22 EHRR 253, [1996] ECHR 16839/90, ECt HR.

Sahin v Germany[2003] 2 FCR 619, [2003] 2 FLR 671, ECt HR.

Sarli v Turkey [2001] ECHR 24490/94, ECt HR.

Scozzari v Italy[2000] 3 FCR 430, [2000] 2 FLR 771, ECt HR.

Sommerfeld v Germany[2003] 2 FCR 647, ECt HR.

TP and KM v UK[2001] 2 FCR 289, ECt HR.

W v UK (1987) 10 EHRR 29, [1987] EHRC 9749/82, ECt HR.

Application

The applicants,Cornelia Haase and Josef Haase, brought an application against the Federal Republic of Germany, alledging that the suspension of their parental responsibility for their four children and the three children of Mrs Haase’s first marriage and the prohibition of access to all the children

amounted to a breach of art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. They also complained about the unfairness of the court proceedings under art 6(1) of the Convention.

PROCEDURE

1. The case originated in an application (no 11057/02) against the Federal Republic of Germany lodged with the court under art 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) (the Convention) by two German nationals, Mrs Cornelia Haase and Mr Josef Haase (the applicants), on 6 March 2002.

2. The applicants, who had been granted legal aid, were represented by Mr P Koeppel, a lawyer practising in München. The German government (the government) were represented by their agent, Mr K Stoltenberg, Ministerialdirigent.

3. The applicants alleged, that the suspension of their parental responsibility for their four children and the three children of Mrs Haase’s first marriage and the prohibition of access to all the children amounted to a breach of art 8 of the Convention. They also complained about the unfairness of the court proceedings under art 6(1) of the Convention.

4. The application was allocated to the third section of the court (r 52(1) of the Rules of Court). Within that section, the chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(1).

5. By a decision of 23 January 2003, the court declared the application admissible.

6. The applicants and the government each filed observations on the merits (r 59(1)).

THE FACTS I. The circumstances of the case

A. Factual background

7. The applicants were born in 1968 and 1967 respectively and live in Altenberge (Germany).

8. Mrs Haase is the mother of 12 children. While she was married to M, she gave birth to seven children, Alexander, born in 1988, Ramona, born in 1987, Sascha, born in 1986, Matthias, born in 1985, Timo, born in 1990, and the twins Lisa-Marie and Nico, born in 1992. With her second husband, Mr Haase, she had five children, Anna-Karina born in 1995, Sandra-Kristin born in 1998, Maurice-Pascal born in 2000, and Laura-Michelle born on 11 December 2001. In December 2003 Mrs Haase gave birth to her last child.

9. In 1993 the relations between Mrs Haase and M deteriorated. In April 1993 M instituted divorce proceedings and requested to be afforded parental rights over the children. By a decision of 29 October 1993 the Münster District Court (Amtsgericht) afforded parental rights over the three younger children, Timo, Lisa-Marie and Nico, to Mrs Haase and over the four older children to

her first husband. The Münster Youth Office appealed against the decision, but withdrew the appeal in September 1994. In December 1993 Mrs Haase moved with the three children to her present husband. On 18 November 1994 the Münster District Court pronounced Mrs Haase’s divorce from her first husband. The applicants have been married since December 1994.

B. The proceedings withdrawing the applicants’ parental responsibility

10. In February 2001 Mrs Haase applied to the Münster Youth Office for family aid. In order to be granted the aid, the applicants agreed that their family situation be assessed by a psychological expert. In May 2001 the Municipal Social Service instructed G to draw up an expert report. The expert met Mrs Haase and three of her children on 26 September and 11, 15 17 and 22 October 2001 at the applicants’ home.

11. Being of the opinion that the questions put to the children by the expert were irrelevant for the purposes of family aid and having regard to the expert’s objection to Mrs Haase attending the meetings with the children’s teachers, the applicants refused to co-operate with the expert any longer.

12. On 17 December 2001 the expert submitted his report to the Münster Youth Office. According to this report, the deficiencies in the children’s care and the home conditions risked jeopardising their development seriously. There was a damaging cycle of events with the applicants being unreasonably harsh with their children on repeated occasions and having beaten them. The children needed to be in a secure long-term placement and any further contact between them and the applicants would have to be avoided.

13. On the same day the youth office applied to the Münster District Court for an interim injunction (einstweilige Anordnung) withdrawing the applicants’ parental rights over the seven children, namely their four children, Anna-Karina, Sandra-Christine, Maurice-Pascal and Laura-Michelle, and Mrs Haase’s three children born during her first marriage, namely Timo, Nico and Lisa-Marie.

14. On that very day, ie on 17 December 2001, the Münster District Court, without hearing the parents or their children, issued the requested interim injunction. The applicants were ordered promptly to hand over the children to the Münster Youth Office. The officer in charge...

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