KOHLER v. GERMANY
Inadmissible
Peer Lorenzen
The first applicant, Ms Jutta Köhler, is a German national who was born in 1962 and lives in Nuremberg, Germany. She lodged the application also in the name of her daughter Julia Köhler (second applicant), a German national born in 1996. s, may be summarised as follows. The second applicant, Julia Köhler (J.), is the daughter of the first applicant and E. She was born out of wedlock on 2 January 1996. Pursuant to the statutory provisions (section 1626a § 2 of the Civil Code) the first applicant had sole custody of J. who has been living with her mother since her birth. At the age of three, J. was diagnosed with a general development and autistic disorder and with retrogressive speaking capacities. She was not admitted to an ordinary nursery school. On 31 August 2001 the Nuremberg Youth Office lodged a motion with the Nuremberg District Court (no. 110 F 02973/01) to restrict the first applicant’s custodial right to decide on her daughter’s whereabouts and health care and to appoint the Youth Office as special curator (Ergänzungspfleger) to deal with these issues. On 26 November 2001 the Nuremberg District Court appointed Ms L.-K., a lawyer, as J.’s curator ad litem to represent her interests the custody proceedings. On 28 December 2001 the Nuremberg District Court refused to change its decision to appoint a curator ad litem on the first applicant’s motion, arguing that no appeal lay against such an interim decision. In any event, the appeal would also be ill-founded, as the first applicant failed to give convincing reasons against Ms L.-K.’s appointment. On 17 January 2002 the Nuremberg Court of Appeal dismissed the first applicant’s appeal against this decision. On 18 February 2002 the Nuremberg District Court, having heard the first applicant, her daughter’s curator ad litem and a representative of the Youth Office, restricted the first applicant’s sole custody over her daughter pursuant to section 1666 of the Civil Code. It ruled that the first applicant was no longer entitled to choose which nursery school or school her daughter should attend and had no right to determine her daughter’s whereabouts. It appointed the Nuremberg Youth Office as special curator to decide on these issues. The court authorised the Youth Office to enforce the child’s surrender, if necessary with the help of the police, in order to secure the execution of the court’s decision. Having regard to the report of a doctor working for the city of Nuremberg dated 7 February 2002, earlier medical reports and its own attempt on 10 January 2002 to hear J. (with whom, however, a communication had proved impossible), the District Court found that it was almost certain that J. suffered from a severe development disorder and showed clearly autistic behaviour. Therefore, J. was in need of care in a specialised institution. The first applicant was acutely endangering her daughter’s mental welfare by refusing to accept her daughter’s illness and to send the child to an institution responding to her needs. Instead, the first applicant insisted on sending her daughter to an ordinary (nursery) school or to a school merely treating speaking irregularities. Her custody of J. therefore had to be restricted in respect of these issues. The District Court observed that it was in J.’s best interests to attend an institution individually educating children with autistic behaviour while living with her mother. However, should the first applicant continuously refuse to send her daughter to a suitable institution it was necessary, as a last resort, to separate mother and daughter and to place J. in a home providing her with the necessary individual care. On 3 April 2002 the Nuremberg District Court dismissed the first applicant’s motions to rectify the protocol of the court’s hearing. It found that the changes proposed by the first applicant concerned additional information she had not yet given in the hearing itself. On 16 May 2002 the Nuremberg Court of Appeal dismissed the applicant’s appeal against the District Court’s decision dated 3 April 2002, as no appeal lay against this decision. On 30 July 2002 the Federal Constitutional Court refused to admit the applicants’ constitutional complaint against the decisions of 26 November 2001, 28 December 2001, 3 April 2002 and 16 May 2002 (no. 1 BvR 1067/02). In July 2002 J. attended test lessons in an ordinary school together with her mother and grandmother. At the outset J. was crying and shouting loudly and refused to stay in the classroom. She only calmed down after she had been running up and down the corridor with her mother and both had been shouting for twenty minutes. Back in the classroom, she refused to follow any of the teacher’s instructions and did not react to any questions. She then wrote the alphabet on the blackboard and, when interrupted, had a rage attack and was jumping around in the classroom to calm down. She did not speak a single word during the lessons and did not establish contact with anyone. In further test lessons at a later date J. was only running around in the classroom, did not react to any instructions and frightened other children by running closely towards them uttering inarticulate sounds. In view of this, the school director and teachers informed the first applicant that it was impossible to educate J. and respond to her needs in an ordinary school. On 19 August 2002 J. was taken away from her mother with the help of the police on the motion of the Youth Office, acting as J.’s special curator, as her mother had refused to allow her to attend a specialised school taking account of her educational needs. She was placed in an open youth home – the location of which was not disclosed to the first applicant – in which she subsequently attended a school furthering its pupils’ learning progress individually. On 21 August 2002 the Nuremberg Court of Appeal, having heard the first applicant, the second applicant’s curator ad litem and a representative of the Youth Office, dismissed the applicant’s appeal against the District Court’s decision dated 18 February 2002, which thereby became final. On 16 September 2002 the applicants lodged a complaint with the Federal Constitutional Court (no. 1 BvR 1792/02) against the impugned decisions of the District Court dated 18 February 2002 and of the Nuremberg Court of Appeal dated 21 August 2002. In at least one letter dated 22 January 2003 the Youth Office invited the first applicant to contact the Youth Office in order to set up a visiting arrangement. However, no contacts between mother and daughter could be built up. A subsequent action for damages brought by the first applicant with the Nuremberg civil courts against J.’s curator ad litem because of her conduct in the custody proceedings was to no avail. The Federal Constitutional Court refused to admit the first applicant’s constitutional complaint concerning these decisions on 25 August 2005 (no. 1 BvR 1439/05). On 13 October 2006 the Federal Constitutional Court refused to admit the applicants’ constitutional complaint (no. 1 BvR 1792/02) against the decisions of 18 February 2002 of 21 August 2002. On 23 February 2004 the first applicant lodged a motion with the Nuremberg District Court (no. 110 F 610/04) to be surrendered her daughter. She argued that the separation from her and her daughter’s placement in a youth home constituted an illegal deprivation of liberty. Moreover, her daughter’s right to be integrated in an ordinary school as protected by the Constitution had been breached. In its report dated 3 March 2004 the Youth Office stated that J. had settled well in the institution for disabled children she lived in since August 2002. While her father was visiting her regularly since May 2003 her mother had not reacted to several attempts made in letters addressed to her by the Youth Office in 2003 to re-establish contacts with her daughter and showed no real interest in being informed about her daughter’s development. Sending J. back to live with her mother would not be in J.’s best interests. On 15 April 2004 the Nuremberg District Court held a hearing, in which it heard the first applicant, a representative of the Youth Office and the child’s father E. It did not hear J. in person, because, as confirmed by E., a verbal communication with her was impossible, as had also been found by the court itself in its hearing on 10 January 2002 in the custody proceedings. On 27 April 2004 the Nuremberg District Court dismissed the first applicant’s motion to surrender her daughter to her. It found that the first applicant did not have a right to be rendered her daughter pursuant to section 1632 § 1 of the Civil Code. The court noted that the District Court’s decision dated 18 February 2002 restricting the first applicant’s custody of her daughter had become final. The Youth Office, acting as J.’s special curator, had therefore been entitled to order her full-time placement in a home and to take the child away from her mother, as had been done on 19 August 2002. In particular, a child’s right to attend an ordinary school was subject to his or her physical and mental ability to meet its demands. As had been found by the civil courts in previous decisions, J. could not meet these demands due to her illness and could not be expected to do so in the future. The District Court further found that there was nothing to indicate that it was in J.’s best interests to re-award custody in all respects to her mother. In particular, J.’s placement in a youth home which furthered her adequately in view of her illness had clearly proved to be beneficial to her. As long as her mother was unable to accept that her daughter would be absolutely overstrained in and could not be integrated in an ordinary school, the child could not be taken care of in her mother’s home. In an obiter dictum the District Court noted that it could not understand why the Youth Office refused the first applicant any contacts with her daughter whose whereabouts still had not been disclosed to her. It considered it indispensable for the child’s welfare to organise visits of her mother as soon as possible. On 17 June 2004 the Nuremberg Court of Appeal (no. 7 UF 1604/04), following the first applicant’s appeal, heard the first applicant, J.’s curator ad litem and a representative of the Youth Office. The latter stated that she had now informed the first applicant about her daughter’s whereabouts and offered to organise contacts either at the first or the second applicant’s place of residence. The first applicant stated that she had not visited her daughter yet because she feared that the Youth Office could again assert that she was endangering her daughter’s welfare which, in her view, amounted to an allegation that she had abused or ill-treated her daughter. On 18 June 2004 the Nuremberg Court of Appeal dismissed the first applicant’s appeal as ill-founded. It found that the Youth Office had acted legally in taking away the child from her mother and placing the child in a youth welfare institution, as its decision could be based on the District Court’s decision dated 18 February 2002. The Court of Appeal observed that pursuant to the statements of a child psychiatrist dated 4 June 2004 it was clear that J. showed severe signs of autism so that intensive care was necessary which her mother could not provide and which made it impossible for her to attend an ordinary school for the time being. As the first applicant was unable to understand her daughter’s needs it was necessary to uphold the partial deprivation of her custody. On 7 July 2004 the first applicant lodged a complaint with the Federal Constitutional Court against the decisions of the District Court dated 27 April 2004 and of the Court of Appeal dated 18 June 2004. She argued in particular that the continuous restriction of her custody and the failure to surrender her daughter, who was kept in a care institution and had to attend a school for disabled children, violated her parental rights and her daughter’s right to liberty and education as guaranteed by the Basic Law. On 25 November 2004 the Federal Constitutional Court refused to admit the first applicant’s constitutional complaint (no. 1 BvR 2248/04). On 13 October 2006 the Federal Constitutional Court refused to admit another constitutional complaint lodged by the applicants against, inter alia, the decisions of the Nuremberg District Court dated 27 April 2004 and of the Nuremberg Court of Appeal dated 18 June 2004 (1 BvR 1416/04). On 8 December 2002 E., the father of the second applicant, brought a motion with the Nuremberg District Court (no. 110 F 4498/02) to be granted access to his daughter. On 20 February 2003 the Nuremberg District Court dismissed the first applicant’s motion for bias against District Court judge A. On 26 March 2003 the Nuremberg Court of Appeal dismissed the first applicant’s appeal against this decision as ill-founded. In the court’s view, the fact alone that judge A. had already sat in earlier cases brought by the first applicant in the District Court in accordance with the court’s internal assignment of functions did not warrant the conclusion that he was biased. The applicant’s constitutional complaint against these decisions was to no avail (decision no. 1 BvR 726/03 of 22 September 2004). On 24 April 2003 the Nuremberg District Court, having heard the first applicant and the child’s father E. and having consulted the Youth Office, granted E. a right of access to his daughter for four hours once in three weeks. On 27 May 2003 the Nuremberg Court of Appeal dismissed the first applicant’s appeal against this decision as inadmissible. It argued that the first applicant was not prejudiced by the decision as she had expressly claimed not to object to the access order, but merely complained against the court’s reasoning referring to her daughter as being a “sick child”. On 22 September 2004 the Federal Constitutional Court refused to admit the first applicant’s constitutional complaint against the latter decision (no. 1 BvR 1537/03). On 10 July 2003 the Nuremberg Court of Appeal dismissed as inadmissible the applicants’ motion for a judicial decision on the refusal of the Nuremberg General Public Prosecutor to institute criminal proceedings for fraud against P. It observed that the applicants failed to set out in a comprehensible manner facts which could warrant the conclusion that P., a representative of the Nuremberg Youth Office, had committed fraud. On 17 November 2003 the Federal Constitutional Court refused to admit the applicants’ constitutional complaint (no. 2 BvR 1297/03). On 19 November 2003 the Nuremberg Court of Appeal dismissed as inadmissible the applicants’ motion for a judicial decision on the refusal of the Nuremberg General Public Prosecutor to institute criminal proceedings for having threatened another person with the commission of a crime against M., O., H. and L. It found that the applicants’ motion was in any event ill-founded as there were no sufficient grounds for suspicion that an offence had been committed by the impugned representatives of the Youth Office and policemen when separating J. from her mother on 19 August 2002. A further identical motion lodged with the Court of Appeal was to no avail. On 3 and 9 March 2004 and on 24 November 2004 the Federal Constitutional Court refused to admit the applicants’ constitutional complaints against the Court of Appeal’s decisions (nos. 2 BvR 57/04, 2 BvR 2330/03 and 2 BvR 1806/04). Pursuant to section 1629 § 1 of the Civil Code, parental custody encompasses the right to legal representation of the child. It is uncontested that the scope of the right to legal representation is identical to the – possibly restricted – scope of a parent’s right of custody. Pursuant to section 1632 § 1 of the Civil Code, the right to personal custody comprises the right to claim the surrender of the child from anyone illegally withholding the child from one or both parents. Section 1666 § 1 of the Civil Code provides that the family courts are entitled to take the necessary measures to avert dangers to the physical, mental or spiritual welfare of a child caused by an abusive exercise of parental custody, by neglecting the child or by unintentional failure of the parents if the parents are unwilling or unable to avert the dangers. Pursuant to section 1666a § 1 of the Civil Code measures which entail a separation of the child from the parents are only permitted if the danger cannot be averted by other means, including aids by public authorities.