KNEIPP v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Ms Petra Kneipp, is a German national who was born in 1970 and lives in Reichelsheim in Germany. She was represented before the Court by Mr R. Eschstruth, a lawyer practising in Bad Wildungen. The applicant is the mother of a son born out of wedlock on 10 July 2000. The applicant, who had full parental authority, raised the child until the age of one. Subsequently, the child was placed in the care of foster parents. On 25 June 2002 the Büdingen District Court (Amtsgericht) withdrew the applicant’s parental authority over her son and transferred it to the District Youth Office. Following expert opinion, that court considered that the applicant was permanently unable adequately to raise her child as she suffered from borderline-syndrome or a comparably serious personality disorder. Since October 2002 the child lives with the foster parents Mr and Mrs L., who have special pedagogical training. The applicant, represented by counsel, lodged a request with the Büdingen District Court to be granted weekly access rights to her son. On 29 November 2002 the District Court, following an oral hearing, granted the applicant monthly visits of a duration of one hour and a half within the premises of a social institution and in the presence of a staff member of that institution. On the basis of the expert opinion submitted in the custody proceedings and of the result of the oral hearing, that court considered that the applicant was permanently unable to take care of the child and that the child was to remain permanently with the foster family. It was presently of eminent importance that the child formed bonds with the foster parents which came close to those existing between parents and their natural children. An extension of access rights would seriously disturb the formation of such bonds and would be contrary to the child’s best interests. On 20 December 2002 the applicant lodged a complaint with the Frankfurt Court of Appeal (Oberlandesgericht) with the aim of being granted more extensive access rights. She argued that the monthly access rights were not sufficient to maintain the parental relationship to her son. Conversely, the foster parents opposed further access rights on the grounds that the child was very much disturbed following contacts with the applicant and that they could not cope with further visiting contacts having regard to the problems which were likely to arise. The Court of Appeal held three hearings in the presence of the applicant, the foster parents and a representative of the social institution supervising the exercise of access rights. On 11 December 2003 the Court of Appeal ordered the preparation of an expert opinion as to which extent of access rights were in the child’s best interests. On 26 May 2004 the psychological experts submitted their expert opinion. Having examined the applicant and attended one meeting between the applicant and her son, they considered that the applicant’s psychological disorders had been confirmed by their examination. According to the experts, the applicant displayed erratic behaviour and lacked, in particular, the capability adequately to react on a social and emotional level. There was no evidence of an emotional bond between the applicant and her son. The child did not seem to feel at ease with his mother and was relieved to return to his foster parents. Having regard to the applicant’s psychological disorder, the experts considered that intensive contacts with his mother would jeopardise the child’s development. More frequent visiting contacts would disturb and destabilise the child. Conversely, it was presently important for the child to build a stable relationship to his foster parents. It followed that the present regulations on access rights best served the child’s interests. Having regard to the child’s further development, an extension of access rights could be envisaged in the future. On 21 December 2004 the Frankfurt Court of Appeal rejected the applicant’s appeal. Referring to the written expert opinion and the statement given by one of the experts during the oral hearing, the Court of Appeal considered that an extension of access rights was not completely excluded, but should not be envisaged before the child had reached the age of six to nine years. Following the expert recommendations, the Court of Appeal considered that the child was too young to cope with the applicant’s rapid mood swings, which also became apparent during the court hearing, and her inability adequately to respond to her social counterpart. This did not mean that the present access rights had to be further restricted. While the meetings between the applicant and the child could be described as harmonious during the allotted hour and a half, the child was content to say good-bye after the visits and looked forward to see his foster parents. As had been confirmed during the oral hearing, the applicant was much better able to concentrate during the first hour and a half. Under these circumstances, it was understandable that the visiting contacts took place in a harmonious way within the given time-frame, while further contacts would presently not be favourable to the child’s development. On 14 October 2005 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint for adjudication. This decision was served on the applicant’s counsel on 26 October 2005. According to section 1684 of the Civil Code, a child is entitled to have access to his or her parents; each parent is obliged to have contact with, and entitled to have access to, the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be jeopardised (section 1684 § 4).