CASE OF B.B. AND F.B. v. GERMANY
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary and non-pecuniary damage - award
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens
5. The applicants, who were originally of Turkish origins, were born in 1966 and 1976 respectively and live in Duisburg. 6. On 23 May 2008 the Municipal Authority of Krefeld lodged a request with the Krefeld Family Court to withdraw the applicants’ parental rights over their two children, a daughter (born in 1996) and a son (born in 2000). According to information provided by the girl’s headmistress, their father systematically beat both children if they did not achieve good school grades. The school had already received information during the previous semester that the girl had been beaten. As the girl’s parents appeared to be well adjusted and overly polite, the school did not react immediately, but decided to observe the child more closely. It was thus observed that the children’s family closely supervised the girl via her mobile phone. Furthermore, the father had taken the girl out of biology class because the curriculum provided for sexual education. The girl was not allowed to leave on a school trip and was reported sick instead. 7. When a teacher caught the girl in the act of manipulating the marks of a school exam, she opened up to her teacher. The girl further reported that her brother was under even more pressure to achieve good grades and was punished “draconically” if he did not comply. The headmistress contacted the Society for the Protection of Children in Krefeld, which had informed the Youth Office. 8. By interim order of 23 May 2008 the Krefeld District Court, in its capacity as a family court, and referring to the reasons submitted in the Municipal Authority’s request, temporarily withdrew the applicants’ parental rights over their two children and transferred them to the Youth Office. 9. On 28 May 2008, the Youth Office fetched the two children from their respective schools and brought them to a children’s home. On that same day, the Youth Office informed the second applicant by telephone and in person about the reasons for the placement. The children’s whereabouts were not disclosed to the applicants. The second applicant insisted that they had never beaten the children. 10. On 2 June 2008 the applicants, in the main proceedings, represented by counsel, submitted to the District Court that it was true that they considered it important that their children performed well at school. However, they had never been violent towards the children. They further submitted two medical attestations by their family physician Dr D. dated 29 May 2008, certifying that she had seen both children regularly in her medical practice. Both children had made a balanced, stable and cheerful impression. There was no indication that they had suffered from any violent acts. The physician further noted that she had further examined the boy by sonograph. There were no indications of any use of force against the boy, there had been neither hematoma, nor injuries nor bruises. The applicants further submitted medical attestations to demonstrate that the girl had indeed been ill at the dates she had not attended the school trip. They further submitted a number of school reports in order to demonstrate that the children had good grades, showed adequate social behaviour and had rarely been absent from school. They finally submitted that the children regularly attended sports classes. The applicants suggested that there was the possibility that the girl had made the whole story up when she was caught in the act of manipulating school grades. 11. On 8 July 2008, during a first hearing before the District Court, the parties agreed that the court should hear the children in person. 12. On 16 July 2008, the District Court judge heard the two children in the absence of the other parties to the proceedings. According to the court minutes, both children were heard separately. The girl stated that the applicants exerted considerable pressure on her to achieve good school grades. As soon as she did not deliver the requested results, her father beat her both with his hands and with objects. In the previous years, her father had beaten her on the soles of her feet with an iron rod. Following this, she had to put her feet into cold water in order to avoid marks. At one occasion, her mother had whipped her legs. She further submitted that she was feeling at ease in the children’s home and that she did not want to return home for fear of further violence. 13. The boy stated that, since entering school, he had been permanently beaten if he did not achieve the best school grades. His father had also used objects like an iron rod. He did not want to return home as long as his father remained violent. 14. On 22 July 2008, the applicants wrote a letter to the District Court in which they denied having ever beaten the children. They submitted that their daughter was lying and that she manipulated her brother. Doctors who could confirm that they had never detected any sign of physical abuse had regularly examined both children. They had regularly attended school and sports classes without the teachers detecting any sign of abuse. The applicants further referred to a staff member of the municipality’s psychological service who had repeatedly examined the boy without detecting any physical abuse. 15. On 4 August 2008, the Krefeld District Court, in the main proceedings, withdrew the applicants’ parental authority over their two children and transferred it to the Youth Office. Based on its own examination, in particular the hearing of the two children, the court was convinced that the applicants had repeatedly acted violently towards their children. Following the children’s entry into school, the parents had exerted considerable pressure that culminated in corporal punishment if the children did not achieve the expected school results. Both children had inter alia been beaten on the soles of their feet with an iron rod. 16. As the court was convinced that the children’s statements reflected the truth, it did not deem it necessary to obtain expert opinion on their credibility. Both children had confirmed their statements in their mother’s presence before the Youth Office. It could be excluded that the boy had been influenced by his older sister, as the Youth Office employees had paid express attention that the children were not in a position to discuss the events before the boy had also been interrogated. Even taking into account that the girl might be endowed with a vivid imagination, the court ruled out that the girl could have falsely accused her parents over such a long period of time. Her statements were rather characterised by a tendency to exculpate her parents. 17. Having regard to these facts, the court considered that the applicants were currently incapable of raising their children and that it would seriously jeopardise the children’s welfare to return them to the applicants’ household. 18. On 17 September 2008, the applicants, represented by counsel, lodged an appeal. On 8 October 2008, the applicants submitted that the impugned decision was based on incorrect facts. In particular, the children had never been interrogated in their mother’s presence. Furthermore, the District Court had failed sufficiently to examine the relevant facts before taking the decision on the definite withdrawal of parental rights. In the present case, it was indispensable to hear expert opinion on the children’s credibility. 19. At no point in time had there been any objective facts such as bruises, injuries, frequent absences from school etc., which might indicate physical abuse. Any medical practitioner could confirm that even the submersion in cold water could not prevent the appearance of bruises if the children had indeed been beaten with an iron rod. Furthermore, such treatment would entail reduced mobility, feelings of numbness and pain. No such symptoms had ever been observed on the children. 20. As the parents vehemently denied having ever beaten their children, there was no objective indication for the alleged abuse other than the children’s own statements. Before taking such a drastic decision as the withdrawal of parental authority, the applicants thus deemed it necessary to assess the children’s credibility by hearing expert opinion. 21. On 6 November 2008, the Düsseldorf Court of Appeal rejected the applicants’ appeal. The Court of Appeal considered that the District Court, having heard the applicants and the children in person, had put forward relevant reasons justifying the withdrawal of parental authority under section 1666 of the Civil Code (see relevant domestic law, below). 22. The Court of Appeal confirmed the District Court’s assessment of the evidence. It did not consider it decisive that the District Court had assumed that the statements had also been made in the mother’s presence. 23. There were no indications that the children, in particular the girl, would wrongly accuse the applicants. This followed from the reasons relied upon by the District Court and in particular from the fact that the children, who were fully aware of the consequences of their allegations, repeated these allegations over a longer period of time in a self-consistent way. Under these circumstances, it could be ruled out that the children had invented and maintained their allegations merely because they had been afraid of the teacher’s reaction to the girl’s attempts to manipulate her school marks. 24. According to the Court of Appeal, the District Court had not been obliged further to examine the facts. It was, in particular, irrelevant whether the attending medical practitioners had detected any injuries in the course of regular consultations, as the abusive acts need not have provoked any visible signs, furthermore as such signs could have been overlooked or could have occurred at times when no medical consultation was imminent. 25. Neither was the District Court obliged to hear expert opinion on the children’s trustworthiness. According to the Federal Court of Justice’s case law, it was up to the courts to assess witness evidence and to establish the trustworthiness of witnesses. Expert opinion was only necessary if there were concrete indications that could call into question the reliability of a witness statement and if specific expert knowledge was necessary to establish these factors and their impact on the witness statement’s content. Such a concrete indication could not be derived from the mere fact that the witness was a child or juvenile. In the absence of any concrete circumstances to the contrary, both the District Court and the Court of Appeal were in a position to assess the credibility of the statements made by the children before the District Court without having recourse to expert help. 26. On 3 March 2009, the Federal Constitutional Court refused to accept the applicants’ constitutional complaint for adjudication without giving further reasons. 27. On 17 March 2009, the applicants lodged a request with the District Court to be granted contact rights with the children. During a hearing before that court on 7 July 2009, a first meeting between the parents, the children and the Youth Office was arranged for 16 July 2009. 28. During the meeting on 16 July 2009, the daughter confessed that she had lied and that the allegations she had made the previous year had not been true. The son confirmed this. The daughter further submitted one letter to her parents and one to the District Court, in which she confessed to having lied and in which she expressed her wish to return to her family. 29. On 28 August 2009, both children confirmed before the District Court Judge that their parents had never beaten them. The parties agreed to extend contacts between the applicants and their children with a view to return the children to the parental household. 30. On 9 October 2009, the children returned to the applicants’ household. On 13 April 2010, the District Court lifted its decision of 4 August 2008 and restored the applicants’ parental authority. 31. Section 1666 of the Civil Code provides that in cases of a danger to the child’s welfare the court shall order the necessary measures. Pursuant to section 1666a § 1 measures which entail a separation of the child from the parents are only permitted if the danger cannot be averted by other means, including assistance by public authorities. The complete care for the child (gesamte Personensorge) may only be withdrawn if other measures proved unsuccessful or if it has to be assumed that they are insufficient to avert the danger (section 1666a § 2). 32. Under section 26 of the Rules of Procedure on Family Affairs, the family courts are obliged to carry out on their own motion all investigations necessary to establish the relevant facts.