ULLMANN v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The first applicant, Mrs Martha Ullmann, and the second applicant, Mr Markus Ullmann, are German nationals who were born in 1966 and 1968 respectively and live in Lappersdorf. They were represented before the Court by Ms C. Schenk and Mr F. Schwinghammer, lawyers practising in Regensburg. The applicants, a married couple, are the parents of a girl, Mi., born on 28 June 2001, and of a boy, Ma., born on 23 September 2003. Since his birth Ma. has been in hospital three times, namely from 29 October 2003 to 12 November 2003 because of pneumonia, from 20 November 2004 until 2 December 2004 due to a haemangioma in his mouth and from 12 January 2004 to 28 March 2004 due to bronchitis. Otherwise, he has been looked after only by his parents, mainly his mother. During this last stay in hospital, acute shortness of breath put his life at risk, which was saved by intubation. Several radiographies disclosed fractures of several ribs and of his right upper arm. Having consulted a radiological expert, the doctors treating him concluded that Ma.’s injuries had not been caused by illness, in particular not by a pathological structure of his bones, but by third persons. Having been confronted with the suspicion of having ill-treated their child, the applicants vigorously denied having injured Ma. On 4 February 2004 the Regensburg District Court, having regard to Ma.’s injuries and having heard the applicants, withdrew the applicants’ right to determine Mi.’s and Ma.’s whereabouts and their right to decide on their health care by way of an interim injunction. Both children were placed in foster families. The District Court subsequently excluded the parents’ access to their children for approximately one month and then allowed the parents supervised contact with both Mi. and Ma. once a week and later once every two weeks. In their report of 21 July 2004 to the District Court, the paediatricians G. and W., who had also consulted Sch., a child radiologist, concluded that the nine fractures of his ribs Ma. had suffered and the fracture of his right upper arm had not been caused by an illness, in particular not by osteogenesis imperfecta (“OI”, commonly known as brittle bone disease), or by his medication. They could thus only be explained by the use of massive force by an adult or teenager on at least two occasions. At least some of the fractures had been caused during periods of time in which Ma. had stayed only with his parents and not in hospital. In his report dated 14 September 2004, psychiatric expert Kr. concluded that, even though neither of the parents was prone to violence, it could not be excluded that one of them had ill-treated Ma. The mother did not suffer from a psychiatric illness, but could have been under strain from raising Ma. with his fragile health in addition to Mi. However, it was more likely that Ma.’s father, who suffered from a narcissistic personality disorder and was unhappy with the strain put on the rest of the family by Ma., had caused the boy’s injuries. In his report of 12 October 2004, psychological expert Ki. found that the applicants’ family did not as such pose high risks of ill-treatment. Assuming that one of the parents had ill-treated Ma., there was an enhanced risk of repeated ill-treatment, particularly for Ma., but also for Mi., as the parents denied any responsibility for Ma.’s injuries, which made it difficult to provide them with assistance. On 2 December 2004 the Regensburg District Court withdrew the applicants’ parental custody of Mi. and Ma. and appointed a guardian for the children. Relying on Articles 1666 and 1666a of the Civil Code (see Relevant domestic law below), it found that the children’s physical well-being had been endangered by the applicants’ abuse of their parental authority and that there were no less intrusive means to avert this danger. Having heard the applicants and their counsel, the first applicant’s brother, the children’s curator and curator ad litem, the Youth Office and the experts G., Kr. and Ki. in person, the District Court was convinced that Ma. had been subjected to physical ill-treatment in his parents’ home. In particular, having regard to the findings of expert G. as to the periods of time in which the fractures, which had not been caused by an illness, had probably occurred, and to the fact that Ma.’s state of health had never deteriorated in hospital, the District Court found that it could be excluded that the boy’s numerous injuries had occurred in the two different hospitals in which he had been treated since his birth. They had thus been caused at Ma.’s home either by one of the parents or by both of them. The psychological and psychiatric expert reports had disclosed that the parents, who continued to deny having injured Ma., had been partly overstrained by having to raise two young children. This finding was not put into question by the fact that four paediatricians whom Ma. had seen on several occasions due to shortness of breath had not noticed any signs of ill-treatment. As to Mi., the District Court considered that she risked becoming the victim of ill-treatment in the future as well. It was impossible to avert the danger to her in practice by less intrusive measures. On 4 May 2005 the Nuremberg Court of Appeal, having heard the applicants and their counsel, the experts G. and Sch., the applicants’ expert V., a doctor having treated Ma. in hospital, the children’s guardian and their curator ad litem in person, and having regard to the written expert reports submitted by Kr. and Ki., dismissed the applicants’ appeal concerning the withdrawal of custody of Ma. It quashed the withdrawal of custody of Mi. as of 20 May 2005 but imposed several conditions on the parents aimed at safeguarding and controlling Mi.’s welfare. In a decision running to thirty-one pages the Court of Appeal found that withdrawing the parents’ custody of Ma. was presently the only means of averting danger to the boy’s welfare. Having regard to the expert reports of G. and Sch., the Court of Appeal found that three of the boy’s ribs had been broken during a period when he was at home, another four had been broken during a period when Ma. was both in hospital and at home, and on two further occasions two and three ribs respectively had been broken in periods in which Ma. had stayed at home. The boy’s right upper arm had been broken in a period in which he had stayed both at home and in hospital. None of these injuries could have been caused by an accident. The Court of Appeal conceded that the experts G. and Sch. had partly modified their diagnosis compared to their initial report of 21 July 2004, finding that Ma. had been injured not only on at least two, but on at least five occasions, and partly modifying the periods in which the injuries had occurred. However, their new findings were based on a particularly thorough further examination of the radiographies in question and were thus convincing. Moreover, having regard to the reports of experts G. and Sch. and to the two reports dated 10 March 2005 and 20 April 2005 drafted by a laboratory for human genetics, no illness, in particular no osteogenesis imperfecta, could be diagnosed which could have caused Ma.’s bones to break. It was therefore virtually certain that Ma.’s injuries had been caused by an abuse of parental authority. It could also not be explained otherwise that several radiographies done since Ma.’s separation from his parents in January 2004 had not disclosed any further fractures which had occurred either during his stays in hospital or with his foster family. The Court of Appeal assumed that the parents had not been aware that Ma. had suffered numerous fractures before the injuries had been discovered in hospital. As it could not be determined which of the parents, who had both denied being responsible for the injuries, had caused those injuries, the boy could not currently be returned to his parents as his welfare would otherwise be at risk. In reaching that conclusion, the Court of Appeal also had regard to the submissions of a paediatric expert consulted by the applicants on their own motion, V., who had invited the court to examine more thoroughly whether Ma. was suffering from osteogenesis imperfecta. A report drawn up on 10 March 2005 by a human genetics laboratory obtained by the applicants had concluded that it could not be totally excluded that Ma. was suffering from such a condition. The Court of Appeal, on V.’s proposal, had then obtained an additional expert report dated 20 April 2005 from that laboratory, which found after another analysis that no such genetic illness could be diagnosed. It had refused to allow V. to examine Ma., arguing that it had already obtained a report from a paediatric expert. In the Court of Appeal’s view, which did not follow the additional report submitted by expert Ki. in this respect, the physical well-being of Mi., who had never been injured and had a close relationship with both parents, was no longer endangered if she was returned to her parents under conditions safeguarding her well-being. It further stated that it considered Ma.’s separation from his family not to be permanent, but that his return could be examined when he reached the age of three and went to kindergarten, provided that Mi.’s return to her family had gone well. On 8 June 2005 the applicants lodged a constitutional complaint with the Federal Constitutional Court. They claimed that the decisions of the family courts ordering their separation from Ma. disproportionately interfered with their right to respect for their family life. It had not been proved that either or both of them had injured the boy and the courts had not sufficiently examined whether the boy suffered from a condition which made his bones particularly fragile. On 23 June 2005 the Federal Constitutional Court, without giving reasons, declined to consider the applicants’ constitutional complaint (file no. 1 BvR 1230/05). On 9 October 2007 the Nuremberg Court of Appeal, having consulted psychological expert Ki., decided to retransfer custody of Ma. to his parents as of 19 October 2007 under several conditions, including psychological assistance for the parents and regular medical examinations of the boy. It found that the applicants had sought the help of therapists and had had regular access to Ma., who was now old enough to complain to others about potential ill-treatment. Therefore, the withdrawal of the parents’ custody was no longer necessary to safeguard Ma.’s well-being. Since then Ma. has again been living with the applicants. Article 1666 § 1 of the Civil Code provides that the family courts are under an obligation to order the necessary measures if a child’s welfare is jeopardised. Pursuant to Article 1666a § 1 of the Civil Code, measures entailing a child’s separation from his or her family are permissible only if the danger to the child’s welfare cannot be averted by other means, including public assistance. Article 1666a § 2 of that Code stipulates that full parental custody may only be withdrawn if other measures have proved ineffective or have to be considered insufficient to remove the danger.