ELLERSIEK v. GERMANY
Inadmissible
The applicants, Mrs Bärbel Ellersiek, Mr Dietrich Ellersiek and Ireen Ellersiek, are German nationals who were born in 1948, 1946 and 1993 respectively. The second and the third applicants live in Enger in Germany. The first applicant passed away on 11 February 2004. By letter of 26 August 2004 the second applicant informed the Court that he wished to pursue the application also on her behalf, with the consent of the first applicant's heirs. The applicants are represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld. The first two applicants are the third applicant's paternal grandparents. The parents of the third applicant and of her brother D., born in 1994, were not able to provide steady care for their children because of their drug addiction. During the first months of their life, the children were raised by their parents, their maternal grandparents and by the first two applicants. On 19 June 1995 the Youth Office requested the Bielefeld District Court (Amtsgericht) to take appropriate measures with respect to the children's care. On 18 July 1995, during a first hearing, the children's parents and the Youth Office agreed that the children should live with their father, who was at that time undergoing therapy. Accordingly, the District Court abstained from taking measures with respect to the children's guardianship. On 7 September 1995 the Youth Office informed the District Court that the children's father had dropped out of therapy and that both children had been placed in the care of a foster family. On 5 October 1995 the District Court heard the children's parents and grandparents. Both parents expressed the wish that the children should be raised by the first and the second applicants. On 4 December 1995 the court-appointed expert K. submitted an expert opinion. He noted that both children had lacked steady relationships and care during their first years. As a result, the third applicant had developed behavioural disorders. While there was no doubt that the first and the second applicant would entertain a loving relationship with the children, the expert feared that they might have difficulties to cope with both children. The expert also noted that the first and second applicant had not demonstrated that they acknowledged their own contribution to their son's (the children's father's) drug addiction. They had stated, on the contrary, that the educational counsellors had assured them that they had done “everything right”. On 24 January 1996 the Bielefeld District Court, following the expert opinion, withdrew the parents' custody rights and appointed the Youth Office as guardian. On 9 February 1996 the first two applicants lodged a complaint with a view to being appointed guardians themselves. On 28 February 1996 the third applicant's father lodged a complaint in support of the first and the second applicants' request. On 11 March 1996 the applicants submitted further pleadings and requested the Bielefeld Regional Court (Landgericht) to issue an interim order assuring that the siblings remained in their current foster family, alternatively that they were not separated, further alternatively to revoke the Youth Office's right to decide on the children's residence. On 1 April 1996 the Regional Court asked the Youth Office whether the siblings were still staying with the same foster family. On 9 April 1996 the first two applicants informed the Regional Court that they had entered into negotiations with the Youth Office with the aim of reaching a friendly settlement. Accordingly, the Regional Court was asked not to pass a decision on the request for interim measures. On 26 April 1996 the third applicant's father withdrew his complaint. On 4 September 1996 the Regional Court asked the first and second applicants' counsel whether an agreement had been reached. On 26 September 1996 the Regional Court judge had telephone conversations with the Youth Office and the applicants' counsel. He noted that the first and the second applicant did not yet wish to withdraw their complaint and that their counsel proposed to suspend the proceedings. On 15 April 1997 the Regional Court asked the first and second applicant's counsel on how they wished to proceed with their complaint. The presiding judge noted that a further suspension of the proceedings could not be justified. In May 1997 D. was placed in the first two applicants' household, while the third applicant remained in a foster family. By letter of 12 May 1997 the first two applicants informed the Regional Court that the endeavours to reach a friendly settlement had failed and that the third applicant had been given into the care of another foster family. They requested the Court to continue the proceedings and to grant them a time-limit to submit further reasoning by 4 June 1997, which they later requested to be extended until 20 June 1997. By letter of 3 July 1997 the first two applicants submitted further pleadings. They submitted an expert opinion, according to which there was no indication that the first two applicants would have difficulties to cope with the task of raising both children. They further declared that they did not pursue anymore their main request for an interim measure of 11 March 1996 and the first alternative request. On 9 July 1997 the District Court requested the Youth Office to comment on the applicants' submissions within a time-limit of three weeks. On 29 July 1997 the Youth Office stated that the third applicant should remain in the foster family. On 21 August 1997 the first two applicants requested the Regional Court to accelerate the proceedings. They further complained that the Youth Office did not comply with its obligation to supervise the visiting rights. On 23 September 1997 the Judge Rapporteur heard the third applicant within her foster family. On 12 November 1997 the Judge Rapporteur heard the first two applicants and the siblings' maternal grandparents. On 20 November and 11 December 1997 the first two applicants requested to be granted leave to submit further comments. On 2 January 1998 the Regional Court decided that the Judge Rapporteur should hear the third applicant's mother, who was at the time serving a sentence in Bielefeld prison. This was carried out on 6 March 1998. On 30 March 1998 the first two applicants submitted their comments on the mother's hearing. On 24 April 1998 the Youth Office submitted further comments. On 28 April 1998 the first two applicants requested the Regional Court to accelerate the proceedings. On 7 May 1998 the Regional Court requested the case-file from the District Court, which reached the Regional Court by 29 May 1998. On 24 June 1998 the first two applicants informed the Regional Court that their rights of access to the third applicant had been extended from once every six weeks to once every four weeks. Further access rights had been denied. In view of the fact that a further lapse of time could actually weaken the applicants' position, they requested the Regional Court to accelerate the proceedings. By decision of 20 July 1998 the Regional Court discharged the Youth Office as D.'s guardian and appointed the second applicant as his guardian. It rejected however the first and second applicants' complaint with respect to the third applicant's guardianship. The Regional Court found that the first and the second applicant were well suited to raise D. However, it would not be in the third applicant's best interests to be deprived of her current foster family. The passages regarding the third applicant's development read as follows: “According to the expert K.'s opinion, which concurs with the content of the casefile, Ireen had not been able to build steady and supportive relationships during the first three years of her life. She had been taken care of by continuously changing attachment figures, including her mother, her maternal grandparents, her father, her paternal grandparents, and finally the first foster parents. When examined by the expert, she already showed considerable behavioural disorders, such as a lack of distance (Distanzlosigkeit), an inability to bond (Bindungsschwäche) and an inability to adjust (fehlende Einordnung). As [the first two applicants] had told the expert, she walked up to anybody and would not accept to be told anything. This had been confirmed by the maternal grandparents and [the first foster mother]. The latter added that Ireen did not show any inhibitions concerning her contact with men, that she followed and even kissed them. At the beginning of her stay with the foster family, she had shown distinct rocking motions, could not accept limits, put everything into her mouth and had a phase of spitting. During the subsequent time she intensively smeared around with excrement. She was also very jealous of her brother. Both children lacked a daily routine and had to learn how to play. After Ireen had stayed for 8.5 months in the care of the [first] foster family, a new change of attachment figure occurred by her placement in the [second] foster family. As [the second foster mother] reported on the occasion of Ireen's hearing, Ireen continued to show considerable behavioural disorders. She appeared mask-like, was “just a friendly child”, did not show sorrow or pain and lacked any sense of distance. Furthermore, she was hyperactive and unable to adjust. She fell down on straight paths, which, as [the foster mother] supposed, was owed to the fact that her mind was so restless that she was unable to control her movements. Ireen had a totally disordered day and night rhythm. She was temporarily very restless and demanded permanent attention, but also to be set limits. She was now able to abide by simple rules. Ireen suffers from neurodermatitis, which – according to [the second foster mother] had been aggravated in situations of stress. The statements of [the second foster mother] show that the behavioural disorders which had been found by the expert K., who attributed them to her unsteady socialisation, persisted after she was taken into the household of [the second foster family]. Ireen's behaviour during her hearing showed that she had since developed positively and in particular that she had learned to adjust. She followed [the foster mother's] requests and propositions without opposing to them. She did not try to raise special attention...The hearing and observation of the child made it clear that she had settled well into the foster family and that she had obviously bonded with her foster parents...” The Regional Court concluded that, given the third applicant's lack of socialisation during the first three years of her life and her positive development in the second foster family, where she had stayed for two years, it could not be justified to deprive her of this stable environment. On 10 August 1998 the first two applicants lodged a further complaint with the Hamm Court of Appeal (Oberlandesgericht) with a view to being granted guardianship of the third applicant. They argued that the Regional Court had failed to hear expert opinion, to hear the interested parties before the whole chamber and to appoint a curator ad litem (Verfahrenspfleger) to represent the third applicant during proceedings. They further requested the Court of Appeal to pass an interim order granting them the right to determine the third applicant's residence. On 17 August 1998 the first two applicants submitted thirty additional pages of reasoning and requested the Court of Appeal to establish that the Regional Court had failed to respect their right to a trial within a reasonable time. On 23 October 1998 the first two applicants requested the Court of Appeal to accelerate proceedings and to pass a decision on their request for an interim order. On 9 November 1998 the Court of Appeal rejected the request for an interim order on the grounds that it would soon pass a decision in the main proceedings and that a change of the third applicant's attachment figures would be contrary to the child's best interests. On 1 December 1998 the Court of Appeal quashed the decision of 20 July 1998 and remitted the case to the Regional Court. It found that the Regional Court had failed to raise evidence by expert opinion on the relationship between the third applicant and her foster parents. The Court of Appeal rejected the applicants' request of 17 August 1997 to establish the allegedly undue length of proceedings for lack of a legal basis. It further ordered the Regional Court to appoint a curator ad litem (Verfahrenspfleger), to safeguard the third applicant's interests during proceedings. On 4 January and 17 March 1999 the first two applicants requested a swift processing of the proceedings in view of the fact that the third applicant still remained with a foster family. On 16 April 1999 the Regional Court decided to hear expert opinion and appointed a curator ad litem to represent the third applicant. On 27 July 1999 the expert informed the court that she had agreed with the first two applicants and with the foster parents that the third applicant should also be examined with respect to her behaviour during and after a three weeks' holiday which she would spend with the first two applicants. Accordingly, she would submit her expert opinion by the end of September 1999. On 3 October 1999 the expert submitted her expert opinion. She found that the foster family, especially the foster mother, had succeeded to help the third applicant to develop from a disturbed, mentally disordered child, who had been unable to build relationships, into a healthy, self-confident six year old girl. This positive development was owed to the foster mother's high qualification as a trained social pedagogue and the additional support offered by a professional institution devoted to the welfare of children. In spite of the fact that the third applicant was very much attached to her foster family, she nevertheless expressed the strong wish to live with the first two applicants. With regard to the fact that the child felt torn between the two families, the expert recommended to postpone a final decision for one year until the third applicant's entrance into primary school. However, if a decision had to be taken earlier, the expert found that the first and the second applicant were very well able to raise both grandchildren, and that they were willing to seek professional assistance if this should appear necessary. Considering the third applicant's strong wish to live with her grandparents, the expert recommended to place her into the care of the first and the second applicants. On 14 October 1999 the expert opinion was served on the parties for comments within two weeks. On 4 November 1999 the first two applicants submitted their comments and requested the Regional Court to schedule a hearing. On 11 November 1999 the foster family organisation submitted their comments, according to which the third applicant should remain within the foster family, while maintaining regular contact with the first two applicants. On 12 November 1999 the third applicant's curator ad litem submitted her comments, according to which the expert had not sufficiently explored the first two applicants' ability to raise the third applicant. She further found that, while the child's own wishes were not to be neglected, a child of six years was not able to reach an autonomous decision on its circumstances of life. On 15 November 1999 the curator ad litem asked that the expert should be heard by the court. On 16 November 1999 the District Court served the comments to the applicants for further comments within two weeks. On 1 December 2001 the first two applicants submitted comments drafted by a psychological expert, which supported the court-appointed expert's conclusions. On 6 January and 11 February 2000 the applicants requested the Regional Court to promote the proceedings and to schedule a hearing. On 8 January 2000 the curator ad litem asked to be granted one week's leave for further comments. On 10 February 2000 the Regional Court informed the applicants about its intention to schedule a hearing for 1 March 2000, which could not take place because of the expert's illness. Should the expert be able to attend a hearing on 15 March 2000, the hearing would be scheduled accordingly. On 28 February 2000 the expert informed the Court that she could appear on 15 March 2000. On 29 February 2000 the Regional Court scheduled a hearing for 15 March 2000. On 13 March 2000 the first two applicants submitted further comments. On 15 March the Regional Court held a hearing, in which it heard the foster parents, the first two applicants, the expert and the curator ad litem. By decision of 20 March 2000 the Regional Court discharged the Youth Office and appointed the first and the second applicants as the third applicant's guardians. In its reasoning, the Regional Court referred to the expert's finding that the first two applicants were well suited to raise the third applicant and that the latter had expressed a strong wish to live with them. On 26 April 2000 the first and second applicant lodged a further complaint against the decision of 15 March 2000 with the aim to be granted legal aid and to establish that the length of the proceedings before the Regional Court had violated their rights under the Basic Law and under Articles 6 § 1, 8 § 1 and 13 of the Convention. On 25 September 2000 the Hamm Court of Appeal refused to grant legal aid and rejected the complaint as inadmissible, maintaining that there was no provision in the procedural law which allowed establishing that proceedings had lasted too long. On 3 November 2000 the first and second applicant raised an objection (Gegenvorstellung) against the refusal to grant them legal aid, which was rejected on 5 December 2000. On 11 January 1999 the first and second applicant lodged a constitutional complaint in which they complained about the length of the proceedings before the Regional Court and about the decision of the Hamm Court of Appeal of 1 December 1998. On 6 November 2000 all three applicants lodged a constitutional complaint complaining about the length of the proceedings before the Regional Court, about the decisions of the Regional Court of 20 July 1998 and 20 March 2000 and about the decisions of the Hamm Court of Appeal of 1 December 1998 and 25 September 2000. On 9 November 2000 the applicants requested the Constitutional Court to grant them adequate compensation for the length of proceedings. On 15 December 2000 the applicants lodged a complaint in which they complained about the Court of Appeal's decisions of 25 September and 5 December 2000 to deny them legal aid. On 25 January 2001 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the applicants' complaints as being inadmissible. That Court further found that there was no legal basis to grant the applicants compensation. This decision was served on the applicants on 5 February 2001.