CASE OF BUCHBERGER v. AUSTRIA
Violation of Art. 8;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
Georg Ress
9. The applicant is the mother of two children: T., born on 8 April 1993, and A., born on 17 December 1994. 10. On 31 March 1995 the Youth Welfare Office (Jugendwohlfahrtsträger) at the Linz-Land District Administrative Authority (Bezirkshauptmannschaft), pursuant to section 215 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch), took T. and A. provisionally into their care. It noted that on the morning of that day, the applicant, who delivers newspapers, had come back late from work and her children had been at home without supervision for approximately 45 minutes. The applicant’s neighbour, who had seen T. alone in the garden at around 8.30 a.m., had contacted the District Administrative Authority. The Youth Welfare Office placed the children with a socio-pedagogical facility in Salzburg for an evaluation of their development. 11. On 4 April 1995 the Youth Welfare Office requested the formal transfer of the custody of the children to it before the Enns District Court (Bezirksgericht). The Youth Welfare Office, relying on section 215 of the Civil Code, claimed that the living conditions of the children were chaotic. It did not submit a formal statement of reasons, but promised to do so later. 12. On 24 April 1995 the applicant, assisted by counsel, requested the District Court to order the Youth Welfare Office to return T. and A. to her. 13. On 10 May 1995 the District Court rejected the Youth Welfare Office’s request and ordered that T. and A. be promptly returned to their mother’s custody. The District Court found that the removal of the children from their mother was unlawful, as the Youth Welfare Office had failed to submit a formal statement of reasons giving arguments in support of the children’s removal and the transfer of their custody. The court observed that, without such a statement, it could not take the evidence necessary to verify whether the Youth Welfare Office’s request was well-founded. Consequently, the court was not in a position to decide on the merits. 14. On 11 May 1995 the Youth Welfare Office appealed and refused to give T. and A. back to their mother. On 16 May 1995 it supplemented its appeal arguing that the applicant was incapable of bringing up T. and A. It submitted that on the early morning of 31 March 1995 the children had been at home alone. T. was wandering about in the garden alone at 0°C, wearing only pyjamas. In support of its arguments, the Youth Welfare Office filed, inter alia, a fax of the Enns rural police (Gendarmerieposten) of 31 March 1995, certificates of 5 April 1995 concerning the children’s condition of health issued by a medical officer (Amtsarzt), and the transcripts of the statements of the applicant’s neighbour before the District Administrative Authority. 15. On 6 June 1995 the Steyr Regional Court (Landesgericht) quashed the District Court’s decision and remitted the case back to the District Court, instructing the latter to take a new decision after having supplemented its proceedings (Verfahrensergänzung). The Regional Court found that, taking the ex officio character of the custody proceedings (Pflegschaftsverfahren) into account, it had been for the District Court to investigate the facts sufficiently in order to reach a decision. In particular the Youth Welfare Office should have been given the opportunity to correct its procedural mistake by submitting a formal statement of reasons. 16. On 27 June 1995 the Salzburg socio-pedagogical centre (Sozialpädagogisches Zentrum) submitted a report to the Enns District Court. 17. On 28 June 1995 the applicant was heard with regard to the events of 31 March 1995. She submitted that on the morning of that day, she had suffered from a migraine attack and therefore had been unable to return home in time. Normally she returned before her seventeen-year old son, H., who also lived with her, left for work. That day she had unsuccessfully tried to contact a friend of hers to look after her children. 18. On 30 June 1995 the District Court heard the father of T. and A., who did not live with them. He was opposed to the transfer of custody to the Youth Welfare Office as he considered that the applicant took care of the children satisfactorily. He himself was not in a position to take care of them. 19. On 31 July 1995 the District Court again dismissed the Youth Welfare Office’s request for the transfer of custody but ordered the applicant to undergo family therapy together with her children and their father. It instructed the Youth Welfare Office to ensure that the applicant complied with this condition. In refusing the transfer of custody, the District Court relied, inter alia, on the public health officer’s certificates according to which A. had been in a good physical and psychological state, as well as T., although the medical officer had also found a retardation in the latter’s linguistic skills and striking deficiencies in his social behaviour. The applicant’s approach to her children was positive in general. According to the District Court, there existed no danger that the incident of 31 March 1995 could recur, because two persons, Mr K. and Ms L., had accepted to look after A. and T. in case the applicant should come home late from work. 20. The District Court found that, under sections 176 a and 178 a of the Civil Code, the right of custody may only be withdrawn if the child’s well-being was endangered and if this was substantiated by compelling arguments. The court noted that the living conditions at the applicant’s place were below average. Nevertheless the children’s well-being was not in danger. The incident which led to the taking away of T. and A. was a unique one and the applicant cared sufficiently for her children, having regard both to their psychological and physical well-being. Moreover the applicant still breast-fed A. The court concluded that the requested transfer of custody was not justified. 21. On 31 July 1995 the Youth Welfare Office appealed. The Office argued, inter alia, that Mr K., a former life-companion of the applicant, was unsuitable to look after the children and that Ms L. had informed the District Administrative Authority that she had never promised the applicant to look after the children nor was she prepared to do so. 22. In the course of the appeal proceedings, the Youth Welfare Office submitted further evidence, namely a report dated 16 August 1995 with several annexes. Furthermore, the Regional Court obtained several court files all concerning the applicant: one file concerning custody proceedings relating to her son R., one concerning criminal proceedings against P.F. and the applicant for ill treatment of her son R., and one concerning eviction proceedings against the applicant. This evidence was not communicated to the applicant. 23. On 16 August 1995 the Steyr Regional Court granted the appeal and transferred custody of the applicant’s children to the Youth Welfare Office, pursuant to section 176 a of the Civil Code. The Regional Court found that the taking of evidence by the court of first instance had been incomplete. Since the courts had the obligation to safeguard the well-being of the children, it was necessary to decide not merely on the basis of the evidence which existed at first instance but to take into account all subsequent developments and, if necessary, to re-assess the evidence or to supplement the investigations. 24. On the basis of the evidence meanwhile obtained, the Regional Court found that the well-being of T. and A. would not be safeguarded if they were to stay with their mother. The children’s living conditions were desolate and chaotic; the applicant was apparently not willing to co-operate with the Youth Welfare Office and she did not make any efforts to undergo therapy, together with the children, as had been ordered by the District Court in its decision of 31 July 1995. Moreover, T. and A. no longer stayed with the applicant but with her “ex-companion”, as the applicant was due to be evicted from her apartment on 31 August 1995. As from 1 August 1995 the applicant had rented a house in Lambach. According to information obtained from the owner, the house was extremely desolate and hardly fit for habitation. On a visit to Lambach by a staff member of the Youth Welfare Office on 16 August 1995, the applicant had not permitted the official to enter her home on the grounds of desolate living conditions and the decrepit state of the building. She did not disclose the identity of the friend with whom she had placed the two children T. and A. in Linz. 25. The Regional Court also noted that the applicant’s elder sons, R. and H., had been placed in a children’s home from September 1989 to July 1991 as the applicant had not taken adequate care of them. After returning to the applicant, R. had been subject to systematic and repeated abuse by P.F., the applicant’s then companion, who had almost daily beaten R. and had treated him in a degrading manner. In 1993 R. had been committed to hospital because of injuries inflicted on him by P.F. Thereupon criminal proceedings against the applicant and P.F. for abuse of minors had been instituted. In November 1994 P.F. had been convicted of this offence and sentenced to six months’ imprisonment. The applicant had been acquitted. At the same time, custody of R. had been transferred to the Youth Welfare Office. He was no longer living with the applicant. In the Regional Court’s view these events, even though the applicant had been acquitted of the criminal charges, showed that she was incapable of effectively caring for her children. Having regard to the abuse and suffering of R., it was implausible that she had not noticed anything. 26. The Regional Court also considered that, having regard to the retardation in T.’s development and the deficiencies in his social behaviour, there was no guarantee that either he or his brother A. would develop normally if they were to remain with their mother. 27. On 9 November 1995, the Supreme Court (Oberster Gerichtshof) rejected the applicant’s extraordinary appeal on points of law (außerordentlicher Revisionsrekurs) on the ground that the case did not involve questions of law of fundamental importance. 28. Under section 215 § 1 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), the competent Youth Welfare Office shall apply for court orders regarding questions of custody which are necessary in order to ensure a child’s well-being. In case of imminent danger, the Youth Welfare Office shall also make the necessary provisional arrangements concerning care and custody until the competent court has decided. 29. Under section 176 a of the Civil Code, the competent court shall transfer custody to the Youth Welfare Office, even against the wish of the parents, if the well-being of a child is at risk and it is necessary to remove the child from his or her habitual environment, unless the child can be placed with a relative or other qualified persons close to the child.