Last Updated on January 13, 2023 by LawEuro
Under Article 8 and in substance also under Article 9 of the Convention, the applicants complained that the domestic courts had refused to return their two youngest children, R. and M., to their care and that the children’s placement with Austrian Christian foster families, who did not speak Turkish, in February 2011 and February 2012, respectively, had deprived them of their Turkish and Muslim identity, estranging them from their culture and religion.
CASE OF KILIC v. AUSTRIA
(Application no. 27700/15)
Art 8 read in light of Art 9 • Positive obligations • Family life • Domestic courts’ refusal to return applicants’ two youngest children to their care based on relevant and sufficient reasons • No indication that foster care placement more than a temporary measure • Family reunification not reasonably feasible despite authorities’ efforts • Regular contact between applicants and their children • Applicants’ interest in children maintaining cultural, linguistic and religious bonds taken into account throughout proceedings
12 January 2023
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kılıc v. Austria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Síofra O’Leary, President,
Anja Seibert-Fohr, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application (no. 27700/15) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Ms Selma Kılıc and Mr Mürsel Kılıc (“the applicants”), on 2 June 2015;
the decision to give notice to the Austrian Government (“the Government”) of parts of the complaints concerning Articles 8 and 9 of the Convention and to declare inadmissible the remainder of the application (see paragraph 104 below);
the observations submitted by the respondent Government and the observations in reply submitted by the applicants;
the comments submitted by the Government of the Republic of Türkiye, who were granted leave to intervene by the President of the Section;
Having deliberated in private on 4 February 2020 and 22 November 2022,
Delivers the following judgment, which was adopted on the latter date:
1. Under Article 8 and in substance also under Article 9 of the Convention, the applicants complained that the domestic courts had refused to return their two youngest children, R. and M., to their care and that the children’s placement with Austrian Christian foster families, who did not speak Turkish, in February 2011 and February 2012, respectively, had deprived them of their Turkish and Muslim identity, estranging them from their culture and religion.
2. The applicants were born in 1975 and 1974 respectively and live in Vienna. They were represented by Mr T. Krankl, a lawyer practising in Vienna.
3. The Government were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.
4. The facts of the case may be summarised as follows.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants are a married couple of Turkish nationality and Muslim faith. They have five children together, born in 1999, 2000, 2004, 2007 and 2010. In the course of the events to which the present case relates, the two youngest children were granted Austrian nationality in addition to their Turkish citizenship in order to facilitate administrative matters for their foster parents.
II. THE EVENTS LEADING TO THE REMOVAL OF THE APPLICANTS’ CHILDREN FROM THEIR CARE
6. In 2006 the applicants’ three children at the time were found alone in the street. Shortly afterwards, the children were again found alone, this time in the family’s apartment, which was in an unhygienic state. As a consequence, the Vienna Youth Welfare Office (Jugendwohlfahrtsträger, which was later, in 2013, renamed Kinder- und Jugendhilfeträger – hereinafter “the YWO”) placed the three children in a childcare facility as an emergency measure. Since the applicants subsequently cooperated with the YWO and renovated their apartment, the children were returned to their care.
7. In October 2010 a chimney sweep carrying out work in the applicants’ apartment informed the YWO that the apartment was again in an alarmingly unhygienic state. For safety reasons, he issued a prohibition on further use of the heating devices (Heizverbot). During a visit carried out immediately, the YWO found four of the five children alone in the apartment, which was in a dirty and uninhabitable state. The whole floor was covered in clothes, dirt, food waste and dirty nappies. In the kitchen there were dirty plates and pans in large quantities, as well as mouldy food scraps. There were barely any free paths in the apartment, with piles of rubbish everywhere. The then three‑year‑old R. (born in 2007) was suffering from nappy rash and had extremely damaged teeth. The three-month-old M. (born in 2010) was dirty and crying. According to the Government’s submissions, which remained undisputed on that point, both M. and R. showed signs of severely delayed development.
8. The YWO, as an emergency measure, immediately removed all five children from the applicants’ care (Kindesabnahme). Pursuant to Article 211 of the Civil Code (see paragraph 79 below), custody of the children (to the extent covered by the provisional measure, namely care and upbringing) was therefore temporarily transferred to the YWO.
9. According to the Government’s submissions based on written comments by the YWO dated 14 October 2010, immediately after the children had been removed from them, the applicants asked the competent social worker to ensure that their children were not placed within the extended family circle. According to the Government, the YWO nonetheless examined the possibility of placing them with relatives, as Article 209 of the Civil Code gives priority to this option (see paragraph 82 below). However, as the grandparents did not prove capable of caring for the children, the three oldest were placed in a childcare facility. Because the two youngest children, R. and M., needed special support, they were placed in the care of separate emergency foster parents (see paragraph 83 below). No further information was provided to the Court as to what steps had been taken by the YWO to ascertain the ability of the family members to look after the children.
III. THE APPLICANTS’ VISITING RIGHTS
A. Initial visiting rights
10. After the children were removed from their care in October 2010, the applicants were granted visiting rights in the presence of experienced, publicly funded social workers whose role was to support the applicants with their children and facilitate communication between the parties. It is not clear from the documents available to the Court or from the applicants’ submissions at what intervals the YWO initially allowed them to see their two youngest children until February 2011 and 2012 respectively (see paragraph 12 below). During a contact meeting with R. in October 2010, the first applicant – in the presence of the child – gave the social worker who was accompanying the visit a strong slap and insulted her using words such as “fool” (Trottel) and “whore” (Hure).
11. From 18 November 2010, after the applicants had renovated their apartment again and had restored it to a habitable condition (see paragraph 28 below), the three oldest daughters were allowed to spend the weekends with their parents.
12. From February 2011, when R. was placed in the care of an ordinary foster mother (see paragraph 31 below), the preliminary visiting rights determined by the YWO (see paragraph 10 above) were reduced to one hour per month. When M. was placed in the care of ordinary foster parents in February 2012, the YWO also reduced the applicants’ visiting rights to one hour per month (see paragraph 34 below). No details of the considerations on which the YWO based its decision regarding the extent of the visiting rights at that stage are available to the Court.
B. The incident concerning the three oldest children
13. On 22 August 2012, after a summer vacation visit, the applicants failed to return their three oldest daughters to their care home. The YWO offered them the opportunity to return the children after the subsequent weekend instead, which they failed to do. Following further interventions by the YWO, on 29 August 2012 the first applicant took two of the oldest children to a police station and was ranting (schimpfen) when handing them over to the police. The third daughter was picked up by the authorities at the applicants’ apartment. A criminal complaint was lodged against the applicants for child abduction. The investigations were later discontinued.
14. After these events, the three oldest daughters were no longer allowed to spend the weekends with their parents. The applicants were only allowed to see them at the children’s home for two hours per week.
C. Attempted abduction of R.
15. On 23 August 2012 the applicants visited R. in the presence of a social worker. The girl was wearing a necklace with a small cross (see paragraph 18 below). The applicants were shocked when they saw it. The first applicant became angry and dragged R., who was scared, by the arm. When the social worker accompanying the visit intervened, the parents reacted by yelling and hurling abuse (mit Geschrei und Beschimpfungen). Both applicants dragged R. and shouted something in Turkish. Thereupon, the second applicant forcibly grabbed the child and ran away with her. Passers-by were able to stop him and R. was returned to her foster mother. R. was severely shocked by the incident and felt afraid of both applicants.
16. As a result of the attempted abduction, on an unknown date the YWO suspended the applicants’ visiting rights in respect of R. and M.
D. Proceedings before the District Court
17. In February 2011 and May 2012 the Leopoldstadt District Court (Bezirksgericht – hereinafter “the District Court”), the competent court in charge of the custody proceedings as well as the proceedings concerning the applicants’ visiting rights, obtained two statements from the Vienna Youth Court Assistance Office (Jugendgerichtshilfe, see paragraphs 30 and 37 below), which was reorganised in 2013 and renamed Vienna Family and Youth Court Assistance Office (Familien- und Jugendgerichtshilfe; see paragraph 69 below). The court further obtained expert opinions from a general psychologist in March 2011 (see paragraph 32 below), a psychiatrist in March 2012 (see paragraph 35 below) and a child and family psychologist in September 2012 (see paragraph 37 below) to determine the extent of the applicants’ visiting rights and to evaluate their child-minding abilities. During oral hearings the applicants, in the presence of their lawyer, had been given the opportunity to question both psychologists and their conclusions (see paragraphs 32 and 37 below).
18. During one of the oral hearings, the District Court reminded R.’s foster mother that she had to respect the child’s belonging to the Muslim religion. The foster mother replied that she herself was “loosely” Christian, but that she certainly did not force her religion on R. and respected her religion (as to her attitude in that regard, see also paragraph 31 below). She explained why the girl had been wearing a necklace with a cross at the meeting in August 2012. R. had drawn the necklace from a chewing-gum machine during their last holiday. On the day of the visit, the girl had vehemently refused to see the applicants. It had taken the foster mother a long time to convince her to get dressed and ready for the meeting. R. had finally retreated to the bathroom, where she had rediscovered the necklace, and had insisted on wearing it during the contact with the applicants. The foster mother had not removed the necklace in order not to put even more pressure on the girl, who was already extremely agitated.
E. The District Court’s decision on visiting rights
19. On 27 December 2012 the District Court dismissed requests by the applicants for the lifting of the emergency measure of removing all five children from their care and a custody application by the maternal grandparents, but reserved its decision on a custody application by the YWO because of the ongoing examination of a further such application by the paternal grandmother (see paragraph 39 below). It granted the applicants visiting rights in respect of the older children at weekends and in respect of M. for one hour every four weeks in the presence of a social worker as had been the case before the incident in August 2012 (see paragraphs 11 and 12 above). It dismissed applications by the applicants for visiting rights in respect of R. The District Court based its decision on visiting rights mainly on the first expert opinion from the child and family psychologist (see paragraphs 17 above and 37 below), who had observed the latest interactions between the applicants and their children and who had taken into account the attempted abduction of R. (see paragraph 15 above). The District Court found that the visits had put a lot of strain on M. and R. (for details of the visits, see paragraphs 40-42 below). M. could not handle more extensive visits than one hour per month. Visiting rights in respect of R. had to be suspended for a period of six months, as she had been traumatised by the second applicant running away with her. She needed time to stabilise.
20. The District Court once again reminded R.’s foster mother that she had to respect R.’s belonging to the Muslim religion. It dismissed a request by the applicants for a special visiting right on the occasion of the Muslim Bayram celebration, as they had not replied to the District Court’s request to clarify the date of their celebration.
F. The Regional Court’s decision and the return of the three oldest children
21. On 12 April 2013 the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen; hereinafter “the Regional Court”) granted an appeal by the applicants against the District Court’s decision of 27 December 2012 in respect of several points and instructed the District Court to further explore how the relationship between the children and their parents could be maintained in the light of Article 8 of the Convention (see paragraph 47 below).
22. On 30 August 2013, further to a decision by the District Court dated 28 August 2013, the three oldest children were returned to the applicants’ care (see paragraph 49 below). The District Court ordered the applicants to accept support from the non-governmental organisation (NGO) “Now – future for all” (Jetzt – Zukunft für alle), which offered counselling in Turkish and focused on persons of Muslim faith living in Austria, and to attend sessions with a Turkish-speaking therapist from the NGO “Learning together” (Miteinander Lernen) every fourteen days. The applicants had received support from “Now – future for all” since autumn 2012. They had made some progress in accepting support. Although there were still strong deficiencies in their child-minding abilities, they were found to be capable, subject to the condition of intensive and regular support and supervision, of providing their three oldest, mostly self-reliant children with the minimum care required (see paragraph 49 below). The District Court reserved its decision on the visiting and custody rights regarding R. and M. as it was still waiting for a supplementary expert opinion it had ordered (the fourth opinion by the child and family psychologist – see paragraph 51 below).
G. The second round of proceedings regarding visiting rights
23. On 14 April 2014, on the basis of a supplementary expert opinion on R. and M. from the child and family psychologist, among other evidence, the District Court transferred full custody of R. and M. to the YWO (see paragraphs 51-57 below). The applicants were granted visiting rights in respect of each child for one hour every four weeks, in the presence of social workers. Regarding R., the District Court ordered the applicants to prepare for the visits by attending five sessions with a Turkish-speaking therapist, in order to help them understand R.’s fears (see paragraph 25 below). To begin with, the therapist would also attend the visits between R. and her parents (ibid.). The supplementary written expert opinion on R. and M. had once again been discussed at an oral hearing during which the applicants and their representative had had the opportunity to question the expert and her conclusions.
24. The District Court found that as a result of the applicants’ behaviour during the visits (see paragraphs 40-41 and 54-55 below), the children were highly agitated. While the applicants had started to realise the benefits of having support in their everyday life with their three oldest children, they still showed no signs of understanding with regard to their problematic behaviour towards R. and M. and their need for support during the contact visits. Therefore, the YWO had only a limited ability to provide such support.
25. Observation of the visits had shown that M. was motivated to approach his parents at the beginning of the visit but that the applicants’ inappropriate reactions and lack of empathy led him to retreat. The manner in which the applicants behaved discouraged him and overburdened his resources. More extensive visiting rights would harm M. They would increase his resistance and lead to him losing trust in his surrounding environment, including his foster parents (see paragraph 55 below). As to R., who was still scared of the applicants (see paragraph 15 above), the expert had recommended in her supplementary written report that the visits in respect of her should not resume until the applicants were able to react more appropriately towards M. She stated that R. needed a feeling of self‑determination in order to be able to approach her parents. Otherwise, she would once again be overburdened by the visits (see paragraph 54 below). The applicants, however, were currently not capable of such a sensitive approach. During an oral hearing, presumably in February 2014 (see paragraph 51 below), the expert had been ready to modify her recommendation as to the resumption of visits between the applicants and R. after the applicants’ therapeutic preparation and in the presence of the therapist (see paragraph 23 above). As long as the applicants were not able to react appropriately to the needs of their children and show more empathy towards them, the visiting rights could not be extended.
26. An appeal by the applicants to the Regional Court and their subsequent extraordinary appeal to the Supreme Court were dismissed on 28 August 2014 (see paragraph 58 below) and 22 October 2014 (see paragraph 60 below) respectively. Both appeal courts upheld the District Court’s reasoning regarding the visiting rights.
IV. THE CUSTODY PROCEEDINGS
A. Proceedings before the District Court
27. On 14 October 2010, thus within eight days after having removed the five children from the applicants’ care as required by law (see paragraph 79 below), the YWO applied to the District Court to have custody transferred to it relating to their care and upbringing (Antrag auf Übertragung der Obsorge im Bereich Pflege und Erziehung), arguing that this would be in the best interests of the children under the circumstances.
28. The applicants subsequently renovated their apartment again (see paragraphs 6 and 11 above) and repeatedly requested that the emergency measure of removing their children from their care be lifted (Antrag auf Beendigung der Maßnahme der Kindesabnahme), and that their children be returned to their care. On 5 November 2010 the apartment was found to be in an acceptable condition.
29. On 24 November 2010 the maternal grandparents applied for temporary custody of all five children until they could be returned to the applicants (see paragraph 61 below).
30. The District Court ordered a psychological and a psychiatric expert opinion (see paragraphs 32 and 35 below) and obtained a statement by the Vienna Youth Court Assistance Office on the applicants’ ability to raise the children (see paragraph 17 above; as to the second statement by the Vienna Youth Court Assistance Office, see paragraph 37 below). The statement appears to have reached the court in February 2011 and, according to the District Court, recommended that R. and M. should not be returned to the applicants for the time being. They therefore remained with their respective emergency foster families.
31. In February 2011 R. was removed from the care of her emergency foster parents and placed in the care of an ordinary foster mother (see paragraph 12 above). According to the Government, a Turkish and/or Muslim family was not available at that time (as to the general efforts made by the State in that regard, see paragraph 100 below). Therefore, the RAP, a special department at the YWO for adopted and foster children (see paragraphs 87 and 92 below) had selected another suitable foster parent who had completed the training courses and was well prepared to accept children of other cultural origin (see paragraph 90 below). According to the RAP’s written documentation on the assessment process submitted to the Court, R.’s new foster mother had proven to be particularly open towards children from a different cultural or religious background and towards their biological families.
32. The psychological expert opinion appears to have reached the District Court in March 2011 (see paragraph 17 above). It recommended that R. and M. should not be returned to the applicants for the time being. The expert was questioned by the applicants and their lawyer at an oral hearing during which they challenged her conclusions. On 20 July 2011 the YWO applied for full custody of the five children (Betrauung mit der gesamten Obsorge).
33. In the course of an oral hearing on 1 September 2011, the applicants agreed that the processing of their application to have the children returned to them could be suspended for six months.
34. In February 2012 M. was removed from the care of his emergency foster parents and placed with ordinary foster parents (see paragraph 12 above). Once again, according to the Government, owing to a lack of Turkish and/or Muslim foster parents the RAP selected other suitable foster parents (see paragraph 31 above). According to the RAP’s written documentation on the assessment process, M.’s foster parents had proven to be particularly open towards children with different religion or cultural roots.
35. On 8 March 2012 the custody proceedings were resumed. In March 2012 the psychiatric expert opinion on the applicants arrived (see paragraph 17 above). No information is available as to the content of that opinion.
36. On 26 April 2012 the maternal grandparents applied for full custody of all five children. At some point later in 2012, the paternal grandmother also applied for custody (see paragraph 61 below).
37. Following the psychological and the psychiatric expert opinion (see paragraphs 32 and 35 above), the District Court obtained a second statement from the Vienna Youth Court Assistance Office (see paragraphs 17 and 30 above), which arrived in May 2012. According to the District Court, that statement recommended that custody of R. and M. be transferred to the YWO. The District Court ordered a new expert opinion on the applicants’ parenting abilities from a child and family psychologist (see paragraphs 17 and 19 above). This expert provided her first written opinion in September 2012 and took into consideration the attempted abduction of R. on 23 August 2012 (see paragraph 15 above; as to her subsequent three opinions, see paragraphs 48 and 51 below). Her first opinion was challenged by the applicants and their lawyer at an oral hearing. According to the District Court, all the experts, namely the Vienna Youth Court Assistance Office (see paragraph 30 above), the general psychologist (see paragraph 32 above) and the child and family psychologist, unanimously came to the conclusion that R. and M. should not be returned to the applicants for the time being. They therefore remained in foster care.
38. In the course of several oral hearings, the exact number and dates of which are not known to the Court, the District Court heard both applicants, who were represented by their lawyer, and also the foster parents, the three oldest children, the maternal grandparents and officials from the YWO. It is not clear at what point in time the paternal grandmother was first heard but the proceedings regarding her custody application were still ongoing at the time (see paragraphs 39 and 65 below).
B. The District Court’s decision on the lifting of the emergency measure
39. On 27 December 2012 (see paragraph 19 above) the District Court dismissed the applicants’ requests for the lifting of the emergency measure of removing all five children from their care (see paragraph 8 above) and the maternal grandparents’ custody application (see paragraphs 62-63 below), but reserved its decision on the YWO’s custody application owing to the fact that supplementary examinations by the expert in child and family psychology on the paternal grandmother’s custody application were ongoing (ibid.). It held that the measure had been justified and that as matters currently stood, the minors would still be put in danger if returned to the applicants’ care.
40. On the basis of the expert opinions (see paragraph 37 above) and the findings from the oral hearings (see paragraph 38 above), the District Court found that the applicants’ parenting skills were clearly limited and would put the children at danger. During the supervised contact meetings with M. and R., the first applicant had demonstrated a lack of empathy and respect towards her children, for example by ignoring their needs, touching them abruptly when they clearly showed that they did not want to be touched, overstepping their boundaries and feeding them against their will, which had resulted in them turning away from her. She was driven by her own incentives (Impulse) and was not considerate towards her children. She was found to have been unable to recognise the needs of R. in particular, and had behaved angrily and in a subliminally (unterschwellig) aggressive manner towards her. She demanded closeness and attention from R. For example, the first applicant tickled her roughly without her consent and repeatedly interrupted her play. She looked at R. with a penetrating gaze that appeared intimidating. R. showed signs of defence which the first applicant did not perceive but which resulted in her reacting aggressively towards R. As regards M., it was found that the first applicant did not demonstrate any knowledge of how to interact with him, but rather sought the attention of the adults present. Her attention towards M. was fluctuating; apart from feeding, she hardly engaged with him at all during her visiting time. She could not perceive M.’s needs or react appropriately towards the children. Overall, the first applicant reacted angrily if the children were reticent towards her. On the other hand, when she wanted to say something herself she reacted in an abruptly defensive manner (forsch abwehrend) towards attempts by the children to approach her. Both applicants were found to speak little German despite the significant amount of time they had already been living in Austria.
41. The second applicant had not made much active effort to engage with his children in terms of encouraging them to play or explore and had hardly talked to them during their visits. His basic understanding of the children’s needs was limited. On a positive note, he had been attentive and present during the meetings, watching them and accepting when they turned away. Because of that, the children had approached their father on their own initiative and had sought physical contact with him. However, he was found to have been unable to compensate for his wife’s boundary-crossing behaviour, as he was more of a passive bystander and seemed to avoid any conflict situations with her. He hardly corrected her but tended to follow her ideas. Both parents only perceived the children’s needs to a limited extent, and could not stimulate them or maintain communication with them.
42. In summary, the supervised visits placed considerable strain on M. and R., who showed signs of stress after the visits. Moreover, the applicants were unable in practice to use the time they spent with R. and M. to interact with them, and neither of the applicants had shown any understanding of their wrongdoing towards their children. They could only accept offers for support from the YWO to a very limited extent and did not regard them as necessary.
43. The District Court further noted that the two oldest children, when still living with their younger siblings, had developed strong symptoms of “parentification” towards their parents, meaning that they took the role of parents towards their parents. The third daughter displayed regressive behaviour towards the applicants. Two of the children needed to wear glasses. However, the first applicant did not like glasses and considered them unnecessary. The second applicant considered wearing glasses to be “the wish of the child” rather than a medical necessity. Apparently out of solidarity with their parents, the girls left their glasses at their care home when they visited their parents at the weekends.
44. The District Court added that proceedings for the termination of the applicants’ lease initiated by their landlord on account of the significantly detrimental use (erheblich nachteiliger Gebrauch) of their apartment were pending at the time of the decision. From September to November 2012 the first applicant had completed a course at an association for adult education and integration (Erwachsenenbildungs- und Integrationszentrum) to work as a kindergarten assistant, a course which did not require official authorisation. A kindergarten assistant is a person who supports professionals in their duties and carries out other tasks, such as preparation of meals. It was not established whether the first applicant actually worked in a kindergarten.
45. For the above reasons, the District Court dismissed the applicants’ application for the lifting of the emergency measure. Returning to the applicants would endanger the well-being of all five children, as the applicants were not sufficiently able to recognise their needs, this being an essential requirement. The District Court further noted that cooperation with the applicants was difficult, as they trivialised existing problems, denied even proven facts such as that they had left the children alone in the past, and did not consider it necessary to question or improve their child-minding abilities because of their intellectual and emotional capacities. They appeared incapable of implementing suggestions for improvement.
C. The applicants’ appeal and the Regional Court’s decision
46. In an appeal of 22 January 2013 against the District Court’s decision of 27 December 2012 (see paragraphs 21 and 39 above), the applicants complained that the children’s lack of exposure to Turkish language and culture, or to education in the Muslim faith, within their foster families was not in accordance with the children’s best interests and had led to their estrangement. They argued that their own ability to raise children was demonstrated through the fact that the three oldest daughters were well brought up and independent. They contended that the District Court’s decision was ill-reasoned and contradictory, and that their own positive characteristics had not been taken into account. They also submitted that the second applicant had a sufficient command of the German language and that the applicants’ lawyer always communicated with him in German.
47. On 12 April 2013 the Regional Court granted the applicants’ appeal in respect of several points (ibid.). It instructed the District Court to examine, among other things, whether the emergency measure of removing the three oldest children from the applicants’ care could be lifted. The expert opinion needed to be supplemented in that respect. Moreover, the question whether the course to become an assistant in a kindergarten had led to an improvement in the first applicant’s ability to raise her children needed to be explored.
D. The District Court’s decision on the return of the three oldest children
48. The District Court had in the meantime received the supplementary expert opinion drawn up in April 2013 concerning the paternal grandmother (see paragraph 39 above). This was the child and family psychologist’s second expert opinion, and it was discussed at an oral hearing. Further to the Regional Court’s decision, the District Court ordered a third supplementary opinion by the expert in child and family psychology on the applicants’ care‑giving abilities. The expert completed her third opinion in July 2013 and found that the applicants’ parenting abilities were still limited but sufficient for the three oldest children to be returned subject to the condition of intensive support. The applicants did not challenge that opinion or request to discuss it at an oral hearing.
49. On 28 August 2013 the District Court allowed the three oldest children, who were 9, 13 and 14 years old at the time, to return to the applicants under certain strict conditions (see paragraph 22 above). On the basis of the latest (third) expert opinion drawn up in July 2013 by the child and family psychologist (see paragraph 48 above), it found that they were now mostly independent and self-reliant and had also expressed the clear wish to return to their parents’ home. The situation had slightly improved as now the applicants accepted – to some extent – that they needed help from others, such as the paternal grandmother and the NGO “Now – future for all” (ibid.; see also paragraph 22 above). They had opened up to their wider family, especially the paternal grandmother (see paragraph 65 below), which had not been the case before. Their apartment was not in a neglected state anymore and it was easier to maintain the household with only the three oldest daughters visiting during the weekends. Also, the civil proceedings regarding the termination of the applicants’ lease on their apartment (see paragraph 44 above) had been dismissed in a final decision of 12 February 2013, which meant that their accommodation was now ensured.
50. The District Court noted that the second applicant had been unemployed for a while and that he believed that the reason was that his children had been taken away. He blamed others for the situation. Following the intensive support and assistance (engmaschige Betreuung und Begleitung) provided by the NGO since autumn 2012 (see paragraph 22 above), the first applicant, on a positive note, was found to have become more emotionally stable, and better at recognising her children’s needs. On the basis of the latest (third) expert opinion, which remained undisputed by the applicants (see paragraph 48 above) the District Court found that there were nonetheless still deficiencies in their child-raising ability, especially in respect of the youngest of the three oldest daughters, who was still more dependent on adults than her older sisters. However, the three girls relied on each other considerably and should therefore return to their parents together. To provide the youngest of them with sufficient care, the applicants were ordered to put her into an all-day care facility (Ganztagsbetreuung). The District Court concluded that the applicants could fulfil their child-minding and care-giving tasks in respect of their three oldest children under the condition of intensive support to the minimum extent necessary (ibid.). Only ongoing cooperation on the part of the applicants with NGOs and the authorities would ensure the well-being of the three oldest children (for subsequent developments in that respect, see paragraphs 52 and 69 below). As regards R. and M., the District Court continued the proceedings as the (fourth) supplementary expert report by the child and family psychologist ordered in respect of them had not yet been submitted (see paragraph 22 above).
E. The District Court’s decision on custody of R. and M.
51. In November 2013 the District Court received the fourth supplementary expert opinion by the child and family psychologist (as to the first, second and third opinions, see paragraphs 37, 48 and 50 above) as regards the applicants’ care-giving abilities in respect of R. and M. The opinion was discussed at an oral hearing in February 2014 at which the applicants and their lawyer had the opportunity to question the expert and challenge her conclusions. The applicants, the grandparents and the paternal uncles were heard. On 14 April 2014 the District Court formally transferred full custody of M. and R. to the YWO, and dismissed the applicants’ requests to have the children returned to their care and the grandparents’ and uncles’ applications for custody (see paragraph 23 above and paragraph 66 below).
52. The District Court established that shortly after the return of the three oldest daughters to the applicants’ household (see paragraph 49 above), a friend of one of the girls had accused the second applicant of having approached her sexually. The first applicant, accompanied by one of her daughters and her counsellor from the NGO “Now – future for all”, reported the second applicant to the police. She also alleged that the second applicant had used violence against her and had entered the room when his daughters were taking showers. She also asserted that she wanted to file for divorce. Later the first applicant withdrew her claims. Upon the advice of the NGO, the second applicant temporarily slept at the paternal grandmother’s home. The second applicant also indicated that he was considering separating from the first applicant.
53. At a point in time not known to the Court, the second applicant was acquitted of the charge of moral endangerment (sittliche Gefährdung) of persons under 16 years of age in respect of the daughter’s friend and the criminal investigations regarding domestic violence were terminated. However, the latest (fourth) expert opinion (see paragraph 51 above) had shown that the applicants’ relationship had become conflict-prone and the situation within the family was very fragile. The District Court had regard to the positive development of the first applicant and the support net that the applicants now accepted (see paragraphs 22 and 49 above), which enabled them to just about deal with the three oldest children to a minimum level. However, according to the expert, who had also supplemented her opinion with regard to the three oldest daughters, the applicants were already very challenged with this situation and they still had difficulties in providing the youngest of the three oldest daughters with sufficient emotional support. In the light of the latest developments (see paragraph 52 above), the YWO carried out another endangerment assessment in order to protect the three oldest daughters and to evaluate the extent to which they could remain with the applicants. In her fourth supplementary opinion the psychological expert found that the applicants were unable to additionally take care of the two small children R. and M., six and three years old at the time, who needed more care than the older ones. They still showed only very little empathy towards their youngest children and failed to respond adequately to the needs of M. and R., instead putting their own needs first. Their behaviour overburdened the children, causing them to reject the applicants.
54. The District Court noted that at this point R. and M. had already been living for more than three years and more than two years, respectively, with their foster parents and had built up strong ties with them. R. was aware that the applicants were her natural parents, but the incident in August 2012 (see paragraph 15 above), which she had experienced as very threatening, had irritated (irritiert) her profoundly. According to the expert, she had her own child-minded thoughts (kindliche Erlebniswelt) and associations regarding this event, which meant that her memory was autonomous and had not been actively influenced. She was fond of her siblings, but not of her parents, with whom she tried to avoid contact. Her foster mother had encouraged her to interact with them, but also noted that the contact visits prior to the incident in August 2012 (ibid.) had put a massive strain on R. and had severely overburdened her because of the applicants’ need for physical contact against her will and their lack of empathy (see paragraphs 40-42 above). The girl was now still scared of both applicants and of the risk that the second applicant would run away with her again and expressed worries that her parents might not accept her wearing glasses (which she needed to), as with her older siblings. Moreover, she was worried that she might not be allowed to stay with her foster mother, with whom she had built up an intense bond.
55. The District Court found that M.’s foster parents likewise encouraged and supported the visits from the applicants, who nevertheless ignored the rules set up by the foster parents. During the last visit observed by the expert, the applicants had not demonstrated any ability to deal with M. appropriately (see paragraph 25 above). The first applicant had irritated him by suggesting that he come home with her in a taxi. She had snuggled or kissed him, ignoring his resistance and interrupting him playing. At the beginning of the visit, M. had been motivated to approach his parents, but their inappropriate reactions and lack of empathy had led to his turning away from his parents and repeatedly retreating into a corner of the room, and eventually indicating that he wanted to leave. In the course of the visit M. had shown signs of resignation in reaction to the applicants not being able to recognise his needs. The foster parents reported that M. had developed a strong fear of being left alone with the applicants, and of having to leave his foster family. He felt overburdened by the contact visits.
56. Concerning the language barrier, the District Court found that during the visit supervised by the expert for her supplementary report, the first applicant had not initially realised that M. could not understand her if she spoke Turkish with him. Both small children only spoke German. During the visit, one of the older daughters who joined the meeting acted as an interpreter, as the applicants spoke only a little German.
57. Moreover, M. and R. had been very young and severely neglected when they had been taken from the applicants. As the children had had to be transferred from an emergency foster family to ordinary foster parents once before (see paragraphs 12, 31 and 34 above), they both feared having to leave their ordinary foster families with whom they had developed a strong bond. Returning to the applicants would cause them intense emotional stress which could lead to behavioural disorders. The expert doubted that the applicants could handle such a situation, especially if all five children were with them. The return of R. and M. to the family would also cause stress to the two oldest daughters as it was likely that they would have to take care of them. Overall, the District Court observed that R. and M. would be put in severe danger, going beyond adjustment difficulties, if they were returned to their parents. It therefore dismissed the applicants’ applications for M. and R. to be returned to their care.
F. The Regional Court’s decision on the applicants’ appeal
58. An appeal by the applicants against the District Court’s decision of 14 April 2014 was dismissed by the Regional Court on 28 August 2014 (see paragraph 26 above). It upheld the District Court’s finding that the applicants were not sufficiently capable of taking care of their two youngest children. In relation to their complaint that R. and M. had been placed with Austrian Christian families where they were not exposed to the Muslim religion or to Turkish culture and language, the Regional Court held that there were no indications of any “Christianisation” of the children. Concerning the attempted abduction after the incident with the cross (see paragraph 15 above), it found that it “lay in the nature of things” that the minors, who were both living in Austria with Austrian foster parents, were confronted with Christian symbols. This did not amount to endangerment of the children’s best interests. There were no indications that the foster parents were inconsiderate of the children’s cultural background and their religion. The applicants had ignored the fact that the children had been endangered while in their care because of their lack of ability to care for them adequately. Their removal from their natural family did not amount to forced “Christianisation”, “deracination” or “deprivation of their identity”, as the applicants had argued, but constituted a protective measure by the YWO. The expert opinions which the lower court had obtained had provided conclusive evidence as to the applicants’ lack of parenting abilities. Another essential reason for not returning M. and R. to the applicants’ care had been the fragile situation within the family, with three children already present in the household (as regards the applicants’ appeal concerning the dismissal of the relatives’ custody applications, see paragraph 64 below).
G. The Supreme Court’s final decision
59. The applicants lodged an extraordinary appeal on points of law with the Supreme Court (see paragraph 26 above). They argued that “intercultural and religious interferences with their basic rights” had occurred. The deprivation of identity of the two Turkish children, who were now being raised without any contact with Islam or their culture, was contrary to Article 8 of the United Nations (UN) Convention on the Rights of the Child.
60. The appeal was dismissed by the Supreme Court on 22 October 2014. It held that the allegation of “forced Christianisation” was not supported by the facts of the case, and neither was the allegation that the foster parents did not respect the children’s background and religion. According to the Supreme Court, on the basis of the facts as established, the lower courts had justifiably assumed that the return of R. and M. to the applicants’ care would have led to their endangerment. The restriction of the applicants’ custody rights was the result of the applicants’ conduct (as to the Supreme Court’s findings concerning the relatives’ custody applications, see paragraph 62 below). That decision was served on the applicants on 5 December 2014.
V. THE APPLICANTS’ RELATIVES’ CUSTODY APPLICATIONS
61. In the course of the custody proceedings (see paragraph 36 above), both the first applicant’s parents (on 24 November 2010 provisionally and on 26 April 2012 formally) and the second applicant’s mother (on an unknown date in 2012) applied for custody of the five children. According to the District Court, the second applicant’s father was already dead.
62. On 27 December 2012 the District Court dismissed the maternal grandparents’ applications for custody (see paragraph 39 above). It found that the application for custody by the paternal grandmother needed to be examined further (see paragraph 38 above).
63. The District Court based its decision on the maternal grandparents’ statements during their hearing (ibid.), on the first report by the Youth Court Assistance Office from February 2011 (see paragraph 30 above) and on the first expert opinion of the family and child psychologist, who had also examined the maternal grandparents, from March 2011 (see paragraph 37 above). It stated that there were no strong ties between them and the children, and that their apartment was very small (37 square metres). The grandparents were not sufficiently organised or prepared to take care of the children, and had been unable to explain how they envisaged to live with them. It was to be feared that in reality they would let the children live with their parents again. According to the expert opinion, the maternal grandparents did not have sufficient resources to care for the children and the applicants’ expectation that the grandparents would hand over the children to them would cause conflicts within the family. From a psychological view, a transfer of custody to the maternal grandparents was not recommended. The maternal grandparents did not appeal against the dismissal of their custody application.
64. On 12 April 2013 (see paragraphs 21 and 47 above) the Regional Court rejected an appeal by the applicants against the dismissal of the maternal grandparents’ custody application, holding that they did not have legal standing to appeal on behalf of the maternal grandparents. However, it granted the appeal in respect of other points and ordered the District Court to conduct a further examination of the maternal grandparents’ suitability for possible custody of at least one of the five children (see paragraph 21 above).
65. With regard to the paternal grandmother, the expert in family and child psychology issued her supplementary opinion (overall her second opinion; as to her other opinions, see paragraphs 37, 48 and 50 above) in April 2013. No details of its content are available to the Court other than that the expert did not recommend transferring R. and M. to her care. In a decision dated 28 August 2013 on the return of the three oldest daughters to the applicants’ care (see paragraphs 22 and 49 above) the District Court noted that when she was interviewed, the paternal grandmother had confirmed that there had been severe grievances (Missstände) at the time of the YWO’s emergency measure. She described how the first applicant had not been able to accept support but had sent her away. Also, at the relevant time the paternal grandmother had faced challenges herself as a result of deaths in her family, resulting in various stays in Türkiye. She stated that she would take care of the children but limited her offer in view of the fact that she was intellectually and physically dependent on support and believed that the children should live with their parents. Overall, she saw her function as supporting the family in the background. The District Court reserved its decision on R.’s and M.’s custody as the supplementary (fourth) expert opinion concerning them had not arrived (see paragraph 50 above). Meanwhile, on unknown dates, three brothers of the second applicant applied for custody of R. and M.
66. On 14 April 2014, having heard the maternal and paternal grandparents and the uncles, and having obtained the fourth supplementary expert opinion by the family and child psychologist drawn up in November 2013 (see paragraph 51 above), the District Court dismissed their respective applications for custody of R. and M.
67. On the basis of the fourth expert opinion by the child and family psychologist (ibid.), it held that transferring custody to these relatives would not be in the interests of the two children. They had no relationship at all with them. Placing the children with these relatives would thus amount to (gleichkommen) a deracination as they would once again find themselves in an unknown environment. Yet another loss of their familiar living circumstances and reference persons through separation from their foster parents would put the children in danger and neither R. nor M. were able to cope with this. This danger could not be outweighed by the benefits of being cared for by relatives who shared the natural family’s cultural background.
68. An appeal by the applicants against the District Court’s decision of 14 April 2014 was dismissed by the Regional Court on 28 August 2014 (see paragraph 58 above). The Regional Court noted that the applicants’ relatives had not appealed against the dismissal of their respective custody applications. The applicants did not have legal standing to do so on their behalf. In its decision dated 22 October 2014 (see paragraph 60 above) the Supreme Court considered the grandparents’ and the uncles’ custody applications and the possibility of placing the children in their care, and found that the transfer of the custody to the YWO was subsidiary to the transfer to relatives. However, the applicants had not taken into consideration the District Court’s finding, based on the expert’s recommendation, that neither R. nor M. were capable of coping with the loss of their current living and relationship environment and that therefore growing up with their relatives could not justify the endangerment the children would be put in.
VI. SUBSEQUENT PROCEEDINGS
69. In a statement of 23 April 2015 the Family and Youth Court Assistance Office (Familien- und Jugendgerichtshilfe), the former Youth Court Assistance Office, which had been reorganised in 2013 (see paragraph 17 above), noted that the applicants had not complied with the court orders in respect of the three oldest daughters. The weekly monitoring by the NGO had not taken place, one of the children had developed a rash on her skin but had not been taken to see a dermatologist, and the school reports for the three daughters had worsened. The NGO had stopped giving support to the applicants in June 2015 as they had not kept up their appointments. In September 2016 the school of one of the daughters had informed the YWO that she had had episodes of anxiety at school and had stopped being able to attend classes, but that the applicants had nonetheless not shown up for a meeting on the issue. The girl had later changed school and her situation had improved, so no further measures had been taken in that respect. The YWO had carried out another risk assessment in respect of the three oldest children, which had lasted a year.
70. The applicants had turned to the Austrian Ombudsman Board (Volksanwaltschaft), complaining about the placement of their youngest children with foster families and the YWO’s alleged lack of respect for the children’s cultural and religious background. On 20 August 2015 the Ombudsman Board had informed the applicants that, after having studied the case file, it had come to the conclusion that the City of Vienna as the authority responsible for the YWO had properly discharged its legal obligation to ensure the best interests of the children. It found the applicants’ complaints to be unjustified.
71. On 15 November 2016 the District Court, having heard all parties and the child advocates (Kinderbeistand) who had meanwhile been appointed in respect of M. and R., and having obtained several statements by the Family and Youth Court Assistance Office, reduced the contact sessions between the applicants and M. to four times a year and between the applicants and R. to twice a year, for one hour each. Previous contact sessions had been difficult. M. had reacted with episodes of fever and bed-wetting. Both children, six and nine years at the time, had vehemently expressed their wishes not to see the applicants. According to the Family and Youth Court Assistance Office, forcing them to see the applicants more regularly against their clearly expressed will would create a feeling of helplessness and would have a negative effect on the development of their sense of self-sufficiency and autonomy. Further psychotherapy for the applicants and for the children, as well as educational counselling for the foster parents, was recommended. No information is available to the Court as to whether that decision was challenged.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. DOMESTIC LAW AND CASE-LAW
A. The Federal Constitutional Law on the Rights of the Children
72. The child’s well-being is protected at the constitutional level by the Federal Constitutional Law on the Rights of Children (Bundesverfassungsgesetz über die Rechte von Kindern – hereinafter “the CLRC”, Federal Law Gazette vol. I no. 4/2011). In essence, the CLRC has adopted the core elements of the UN Convention on the Rights of the Child (see paragraph 102 below) and Article 24 of the Charter of Fundamental Rights of the European Union. The relevant provisions of these instruments specify that in all actions concerning children, whether undertaken by public or private institutions, the best interests of the child must be a primary consideration. The guarantees of the CLRC include, among other things, the right to education without violence, the prohibition of child labour and the right to regular personal relations and direct contact with both parents.
73. The “right to both parents” enshrined in Section 2 of the CLRC may be restricted only if regular contact with both parents is contrary to the child’s best interests (Section 2(1)). The legitimacy and limits of this reservation are derived from Article 8 of the Convention. Section 2(2) of the CLRC implements Article 20 § 1 of the UN Convention on the Rights of the Child and guarantees that “a child temporarily or permanently deprived of his or her family environment, which is the natural environment for the growth and fertile development of all its members, in particular of children, … shall be entitled to special protection and assistance provided by the State”. The phrase “depriving children of their family environment” is to be understood as covering any circumstances interrupting the system of family care, for example if – for the protection of their best interests – children and juveniles are placed with a foster family or a social welfare institution.
B. Civil Code provisions on custody
74. The central regulations regarding custody of minors are to be found in Articles 158 et seq. of the Civil Code (Allgemeines Bürgerliches Gesetzbuch). Under Article 158 § 1 of the Civil Code, custody of a minor comprises both his or her care, upbringing and property administration and his or her legal representation in all matters. Under Article 160 § 1 of the Civil Code, taking care of a child includes, in particular, measures for his or her physical well‑being and health, as well as direct supervision, and raising a child includes, in particular, ensuring his or her physical, mental and moral development, and promoting his or her talents, abilities, preferences and development opportunities and his or her school and vocational education.
75. Under Article 160 § 2 of the Civil Code, the extent of care and upbringing depends on the living conditions of the parents. The law does not contain a “family guideline”; the organisation of the child-parent relationship is protected by Article 8 of the Convention against disproportionate interference. The individual living conditions and autonomy of the family are, however, subject to restrictions where the parents’ conduct is likely to endanger the child’s well-being. The child’s best interests thus constitute a limit on the parents’ rights.
76. The child’s well-being must be determined in each individual case. Aspects of child psychology and education play a special role in such an examination. Through the Law on Family Matters and Names Amendment Act 2013 (Kindschafts- und Namensrechts-Änderungsgesetz, Federal Law Gazette vol I, no. 15/2013; the amended provisions were also applicable to proceedings pending at the time of their entry into force, such as those in the instant case), some aspects which are typically important concerning the child’s well-being were laid down in Article 138 of the Civil Code to provide guidance for parents and courts. Apart from the adequate provision of food, medical and sanitary care and accommodation, these also include diligent upbringing, care, security and protection of the child’s physical and mental integrity, as well as secure ties to reference persons, and the living conditions of the child, the child’s parents and anyone else in the child’s close environment.
77. According to the Supreme Court’s case-law, a court must take into account the concrete circumstances of each individual case, having regard, among other things, to the child’s culture and religion. In the case of older children, not only a change in the cultural environment as such but also the cultural contrast between the previous environment, living conditions and views upheld so far and those of the new cultural background may give rise to the assumption that the child’s well-being is endangered (see Supreme Court judgment of 25 February 2000, no. 10 Ob 25/00z, concerning a case where a mother wanted to move to the United States with her children, against the will of their father).
78. According to the established case-law of the Supreme Court, the child’s best interests prevail over the rights of the parents (see, as a recent example, judgment of 17 April 2020, no. 8 Ob 129/19g; RIS‑Justiz RS0118080). If the parents’ conduct is such as to endanger the child’s welfare, a court must take the necessary measures – upon request or of its own motion – to secure the child’s well-being. The child’s well-being is endangered if the duties of care are not complied with or are grossly neglected, if other interests of the child deserving protection are seriously or particularly endangered, or if the parents’ entire conduct is such as to endanger the child’s well-being.
79. Under Article 211 § 1 of the Civil Code, the YWO may, in situations of imminent danger, take the necessary measures relating to the care and upbringing of minors, such as removing them from their parents. In such cases, the YWO ex lege obtains limited temporary custody (to the extent covered by the provisional measure) of the minors concerned, until a competent court takes a decision on the measures in question. The YWO must request such a decision within eight days after taking the measure. These measures must be the least invasive and must be proportionate (see, for example, the Supreme Court’s judgment of 24 May 2012, no. 1 Ob 4/12p).
80. Article 181 § 1 of the Civil Code provides that the necessary orders to secure the child’s well-being may take the form of individual measures, such as, for example, a judicial order for curative treatment of the child, or total or partial withdrawal of the right of custody from one parent or both parents. Pursuant to Article 182 of the Civil Code, custody may be restricted only to the extent required to secure the child’s well-being. A change in custody is thus to be ordered as an ultimate emergency measure only, subject to the application of stringent standards. The Supreme Court has held that there must be particularly severe grounds for such a decisive and far-reaching measure, which must be deemed urgently necessary because the child’s welfare would otherwise be endangered (see judgments of 9 March 2011, no. 7 Ob 25/11v, and of 29 August 2007, no. 7 Ob 126/07s), for example, if the parent taking care of the child is not capable to raise the child (see judgment of 11 May 2005, no. 7 Ob 79/05a). Not only is the current situation to be examined, but future prognoses are also to be made for such a decision (see, most recently, judgment of 25 March 2021, no. 8 Ob 19/21 h; RIS‑Justiz RS0048632).
81. Since a restriction of custody or the withdrawal of custody from the person entitled to care for the child may be ordered only in so far as this is necessary to secure the child’s well-being, an order to that effect must be set aside pursuant to Article 181 § 1 taken together with Article 226 of the Civil Code if the prerequisites for such an order no longer exist. A request by the person previously entitled to custody for the repeal of a care measure can therefore only be successful if it can be assumed that the child’s well-being is no longer endangered. The decisive question is not whether the raising and care of the child by another person, or by other foster parents, would be better for the child than proper upbringing and care by his or her biological parents. The only decisive question is whether it is to be feared that the child’s well‑being will be endangered if custody is transferred to the biological parents (see the Supreme Court’s judgment of 21 February 1990, no. 1 Ob 511/90; and more recently, of 22 September 2015, no. 4 Ob 143/15 f).
82. Pursuant to Article 209 of the Civil Code, custody of a minor is only to be transferred to the YWO if no relatives or other persons who have a close relationship to the minor or are particularly suitable to exercise custody are available. Therefore, transfer of custody to the YWO is subsidiary (see, most recently, the Supreme Court’s judgment of 3 August 2021, no. 8 Ob 75/21 v; RIS‑Justiz RS0123509). The goal of placing children in foster care is to enable them to return to their biological family.
83. Pursuant to Article 184 of the Civil Code, foster parents are persons who are wholly or partially entrusted to provide care and education for a child and with whom a relationship similar to the relationship between biological parents and children exists or is to be established. The Civil Code does not contain a definition of emergency foster parents, a term used by the YWO in practice (see paragraph 93 below).
84. Pursuant to Article 187 of the Civil Code, the child and each parent, irrespective of custody, have the right to regular contact sessions, depending on the child’s well-being and ensuring the initiation and maintenance of the special close relationship between parents and child. Article 189 of the Civil Code grants the right to a parent who is not entrusted with custody to be informed in due time of important matters concerning the child and to comment on them. Any such comments must be considered should the wish expressed therein correspond with the well-being of the child.
C. Implementing provisions in the Vienna Child and Youth Welfare Act
85. In accordance with an agreement (Federal Law Gazette vol. I, no. 106/2019) concluded pursuant to Section 15a of the Federal Constitution Act between the central government and the provinces (Länder), the provinces are obliged to implement in their legislation the tools, minimum standards and services to be provided by the Child and Youth Welfare Office (Kinder‑ und Jugendhilfe). In Vienna, the implementing provisions are laid down in sections 28 to 44 of the Vienna Child and Youth Welfare Act 2013 (Wiener Kinder- und Jugendhilfegesetz, Reg. Law Gazette, no. 51/2013). Pursuant to sections 28 and 34, educational assistance may only involve the least invasive effective measure according to the child’s talents, abilities, preferences and development opportunities. Section 30 provides that if the child’s well-being is endangered and the danger can only be averted by placing the child outside the family or the previous living environment, the Child and Youth Welfare Office may provide care and education by placing the child with relatives, with foster parents or in a socio-educational facility. Section 39 provides that foster parents suitable for the specific child must be chosen. The placement must serve the child’s well-being and ensure the best possible individual and social development for him or her. Sections 40, 42 and 43 regulate the examination and documentation of a foster carer’s (Pflegeperson) personal suitability (persönliche Eignung), which includes the completion of training (Ausbildung) organised by the Child and Youth Welfare Office. The Child and Youth Welfare Office must provide further training (Fortbildungsangebote). It must offer counselling support for foster carers, as well as for foster children and their families of origin, and encourage contact with the biological parents. Care relationships are subject to supervision by the Child and Youth Welfare Office.
II. DOMESTIC PRACTICE CONCERNING FOSTER FAMILIES
86. The Government submitted the following information in relation to the procedure for the selection of foster parents in Vienna, and the follow-up supervision after the placement of a child in foster care.
87. A special department for adopted and foster children (Referat für Adoptiv- und Pflegekinder – “the RAP”) of the Vienna City Administration is responsible for the selection of foster parents and for examining their credentials. The entire qualification procedure lasts for several months, comprising a thorough examination and extensive training of candidates in order to secure high quality standards.
88. All persons interested in taking care of a child are first comprehensively informed about the legal basis and the requirements of the child and youth welfare organisation for giving permission to take care of and raise a child, and also about the obligation to participate in the relevant training courses. The training consists of seven basic modules, three elective modules and one seminar to deepen their knowledge and understanding. These modules comprise psychological, educational, social, legal and medical issues.
89. For the present case, special reference is made to module no. 3. The subject of that module is the so-called “biography work” and the importance of the family of origin for the child and the child’s personal search for his or her identity. This module is especially aimed at ensuring a high degree of sensitivity among the foster parents in showing respect and tolerance towards the family of origin. Emphasis at the seminar is laid on the importance of contact between the child and the child’s natural parents, the child’s origins and the child’s arrival within the new foster family. Other cultures and religions and contact with relatives are taken into account in the training of the foster parents and are an important element of further available seminars.
90. In addition to ongoing training, there is a detailed examination by social workers from the RAP of the suitability of applicants to act as foster parents. The suitability of foster parents, especially their physical and mental health, their educational attitude and ability, the stability of the family system and the accommodation situation, is evaluated by social workers on the spot and in the form of enquiries by the authorities and discussions. Essential elements of these talks are the future foster parents’ own family history, their values and ideas about living with a foster child, their family and social resources and their willingness to accept and support contact between the foster child and his or her family of origin and to show a positive attitude towards the family of origin. The parallel foster-parent training is also intended to enhance and support the trainees’ sensitivity and capacity for reflection and to provide them with further training and support in this respect.
91. Future foster parents must be physically and mentally fit and financially independent, have no criminal record and display a positive attitude towards bringing up children, as well as a substantial appreciation of and openness towards the origins of other persons from a religious, cultural and linguistic perspective. Only if all these criteria have been satisfied and they have completed their training as foster parents will they be granted permission to care for a foster child.
92. If there is a need for a child to be cared for outside his or her family within the framework of full care, babies and infants in particular are placed with foster families. This is always a matter for the RAP, which selects the most suitable family for each child concerned; the child’s origin, religion and mother tongue is also taken into account. The chance that foster parents with the same background and/or religious belief are available at exactly the time when a child with Muslim and/or Turkish background is taken into full care is, however, extremely small. The situation is even more difficult owing to the fact that despite intensive efforts and advertising, only very few foster parents with a Muslim and/or Turkish background are available to the Vienna YWO.
93. The taking of a child into care cannot normally be planned and must be effected very quickly. It is only ever carried out if the child’s well-being is severely endangered and if this risk cannot be sufficiently prevented either by regular care visits or by a transfer of care within the extended family. In this regard, the information brochure submitted by the Government explains that emergency foster parents are experts who take care of small children up to three years of age for a short and limited period, whereas if foster care is needed for a longer period the children are transferred from the emergency foster parents to their ordinary foster parents (see paragraph 83 above). It must be taken into account that children who are placed with foster parents are normally babies or infants who have already been traumatised and/or severely neglected. It cannot therefore be in the best interests of the child to wait until the child can be handed over to foster parents of similar origin. It is true that in such situations foster parents with a different cultural background are selected, although, as outlined above, the foster parents will have been carefully prepared in the training courses to be able to take care, if necessary, of children from other cultural backgrounds.
94. In practice, most foster children are so young at the time of their placement that they cannot express themselves in their mother tongue or can say only a few words. These children would therefore learn the language of the foster family first; should they wish to learn their mother tongue later on, they would be supported and encouraged in that aim by the foster parents and the child and youth welfare organisation. The child and youth welfare organisation in such cases would bear the costs of language courses.
95. After a child is placed with a foster family, very intensive support is given to the family at the beginning. The child’s ability to adapt to the new family system during the integration process and to come to terms with past experiences, while also maintaining contact with his or her family of origin, constitutes a not inconsiderable challenge for the child concerned and for the foster parents. During this difficult phase, the foster parents may, in addition to support and advice from social workers, receive assistance in various forms, for example through supervision, where they can exchange views and experiences with like-minded persons, but also by attending specific training courses and making use of foster-parent coaching by psychologists from the RAP. These possibilities are also available to all foster families after the familiarisation period. If necessary, the child and youth welfare organisation bears the costs of therapy.
96. The biological parents are also offered advice and support by social workers from the child and youth welfare organisation after their child has been placed with foster parents. This support is aimed at helping parents to gain awareness of the personal and family problems that led to the initiation of the care process and to accept that their child will (temporarily or for a longer period) be cared for in the foster family, and also to develop a good basis of trust and cooperation with the foster parents, and last but not least their child. This is to avoid burdensome conflicts of loyalty for the child and to improve the biological parents’ chances of eliminating existing problems and becoming able to care for their child themselves.
97. For the protection and in the best interests of the child and for the assistance of the biological parents, contact between the biological parents and the child takes place in the presence of social workers from the child and youth welfare organisation or another suitable organisation until there is a sufficient basis of trust between the biological parents and the foster parents.
III. STATISTICS RELATING TO FOSTER FAMILIES IN VIENNA
98. The Government provided the following information with regard to the situation of children in foster care in Vienna, and the availability of foster families with a Turkish and/or Muslim background.
99. As of 30 June 2017, a total of 1,404 children for whom the City of Vienna was responsible in the field of education and care were living with foster parents. These foster children were growing up in 724 foster families, consisting of a total of 1,252 individual foster parents. Since there were only very few foster children with a Muslim and/or Turkish background, these children were not recorded in separate statistics.
100. The number of foster parents with a Muslim and/or Turkish background was also very small. There had been several attempts by the City of Vienna to attract more foster parents from the Muslim or Turkish community, but these efforts had unfortunately been unsuccessful so far. Even talks with the Turkish consulate in September and October 2010 and with the Turkish community in 2013 and 2014 had not changed the situation.
101. When placing a child with foster parents, the child’s origin and religious faith were taken into account as far as possible, and foster parents from a similar background were contacted, if any were available. When placing a child with foster parents, the overriding principle was always to select the most suitable of all available foster families. The concrete circumstances of the transfer often made it difficult to find foster parents of the same origin and/or religious belief at the exact time when a child with Muslim and/or Turkish background was taken into foster care. If no foster parents with the same linguistic, cultural and/or religious background were available, foster parents with another cultural background were selected who were especially open to other cultures and religions and had been carefully prepared to care for children of other cultural origin.
IV. INTERNATIONAL LAW
102. The UN Convention on the Rights of the Child was signed by Austria on 26 January 1990 and ratified on 6 August 1992. The relevant parts of the Convention, implemented in the Federal Constitutional Law on the Rights of Children (see paragraph 72 above), read as follows:
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
“1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.”
“1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
2. States Parties shall in accordance with their national laws ensure alternative care for such a child.
3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.”
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
103. Under Article 8 and in substance also under Article 9 of the Convention, the applicants complained that the domestic courts had refused to return their two youngest children, R. and M., to their care and that the children’s placement with their foster families did not take into account the applicants’ cultural, linguistic and religious background. Article 8 reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Scope of the case and legal characterisation of the complaints
104. At the outset, the Court observes that the applicants’ complaints that the children had been removed from their care as an emergency measure, that their visiting rights to their children had been too limited, and that custody had not been transferred to any of their relatives, were declared inadmissible by the President of the Section pursuant to Rule 54 § 3. The Court’s examination of the case is thus limited to the part which has not been declared inadmissible, namely, the refusal to return the children, the alleged lack of measures to facilitate such a return and the alleged failure to take into account the religious, linguistic and cultural background of the children’s natural parents.
105. However, in order to consider the respective proceedings correctly, the Court has to put them into their context, which inevitably means that the Court must to some degree have regard to the related proceedings concerning public care and contact restrictions (see Jovanovic v. Sweden, no. 10592/12, § 73, 22 October 2015 and, mutatis mutandis, E.M. and Others v. Norway, no. 53471/17, § 60, 20 January 2022).
106. In so far as the applicants also relied in substance on Article 9 of the Convention, the Court notes that the compulsory taking into care of a child inevitably entails limitations on the freedom of the biological parent to manifest his or her religious or other philosophical convictions in his or her own upbringing of the child (see Abdi Ibrahim v. Norway [GC], no. 15379/16, § 140, 10 December 2021). In the case of Abdi Ibrahim (ibid.) the Court considered that, in the circumstances of that case, the complaint relating to the adverse effect of the choice of foster home with regard to the applicant’s wish that her child be brought up in line with her Muslim faith was to be examined as an integral part of her complaint concerning her right to respect for her family life as guaranteed by Article 8 of the Convention, interpreted and applied in the light of Article 9, rather than as a separate issue of alleged failures to comply with the rights protected by the latter provision (ibid., §§ 140-41).
107. The Court observes that in Abdi Ibrahim the decision in which the child’s foster home was chosen fell outside of its jurisdiction, which was therefore limited to the effects of this choice in later decisions concerning parental responsibility and authorisation for adoption (ibid, § 159). Nonetheless, being the master of the characterisation to be given in law to the facts of the case (see Söderman v. Sweden [GC], no. 5786/08, § 57, ECHR 2013, and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 113-14, 20 March 2018), the Court considers that, having regard to the specific circumstances of the present case, the applicants’ submissions relating to the authorities’ alleged failure to take into account their cultural, linguistic and religious background fall to be examined under Article 8 alone, where relevant in the light of Article 9.
108. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
109. The Court notes that the applicants challenged, from the standpoint of their rights under Article 8, interpreted in the light of Article 9, a number of separate decisions and measures by the authorities, arguing, in essence, that the combination of those resulted in a breach of the Convention. The Court will examine first the issues related to the fact that R. and M. were not returned to the applicants’ care and, after that, the issues related to the alleged failure by the authorities to take into account the applicants’ religious, linguistic and cultural background. However, having regard to the inseparability of the various aspects of the complaints as formulated before it, the Court will reach its conclusion on whether or not Article 8 has been violated taking into consideration both aspects.
1. Failure to return R. and M. to the applicants’ care
(a) The applicants’ submissions
110. The applicants submitted that their children had been taken away from them because their apartment had been dirty. Soon afterwards they had successfully renovated their apartment. Nonetheless, the authorities had refused to return the children to them. The applicants alleged that the authorities had not assessed whether R. and M. would be endangered in their development if they were returned to their care. They complained that insufficient steps had been taken to reintegrate the children into their natural family. The domestic courts had instead focused on the strong bonds between the children and their respective foster parents without considering the relatives who would have been willing to take care of the children.
(b) The Government’s submissions
111. The Government argued that the Austrian courts had relied on numerous expert opinions and on interviews with all the persons concerned. The applicants had been involved in the proceedings regarding the YWO’s measure from the beginning, had been heard by the experts and by the court and had been able to express their concerns and their wishes regarding the potential placement of their children with the grandparents or uncles. However, the parents had not expressed their wish that the children should be placed with a Turkish-speaking person with ties to Islam until their appeal lodged on 13 January 2013 (see paragraph 46 above), more than two years after their placement, at a time when the children had already developed bonds with their respective foster parents. Shortly after the children had been removed from their care, the applicants had even asked the competent social worker to ensure that the children were not placed within the extended family circle (see paragraph 9 above). In making their prognosis for the future, the courts had carefully examined whether the requested change of care arrangements and social environment would result only in temporary adaptation difficulties or whether it was to be feared that the development of the two infants would be seriously endangered. After the three oldest children had been returned to the applicants, this had been found to be the maximum they could manage.
112. The domestic courts had explained comprehensively and in detail that the return of the two children would be contrary to their best interests. They had established that the applicants’ ability to bring up their youngest children remained inadequate. The foster parents, on the other hand, had been found to have built up a solid and stable relationship with their foster children and to be promoting their development.
113. The applicants had been offered regular contact visits with their children from the very beginning. In order to create a solid basis of communication and trust, contact assistance (paid for by the State), including social workers and later – with respect to R. – a Turkish-speaking psychotherapist, had been implemented (see paragraphs 10 and 22-23 above).
114. However, the YWO, the experts from the Family and Youth Court Assistance Office and the court-appointed experts had found almost all supervised visits to have been highly burdensome for both children. The verbally and physically aggressive behaviour sometimes demonstrated by the applicants had been too much for the two small children; it had put them in a state of uncertainty and frightened them, which is why the contact visits had been limited (see paragraph 10 above).
115. Against that background, the Government took the view that the continued placement of the applicants’ two youngest children with foster parents had been required to ensure the children’s well-being and had thus not been in violation of Article 8 of the Convention.
116. According to the Government, the domestic courts’ decisions demonstrated that the stabilisation of the condition of the two children and the creation of prerequisites for positive physical and mental development, and thus the children’s well-being, had been the utmost priority.
117. The Government further noted that the applicants had been offered the above-mentioned assistance for biological parents (see paragraph 96 above). However, they had hardly been ready to accept the advice and support provided by the Child and Youth Welfare Office. Their reaction had always been rather dismissive and sometimes even aggressive. Other efforts by the Family and Youth Court Assistance Office and court-appointed experts had not been successful either.
(c) The third party’s submissions
118. The Turkish Government reiterated that a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permitted, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child. The authorities were under a positive obligation to take measures to facilitate family reunification as soon as reasonably feasible, always subject to be balanced against the duty to consider the best interests of the child (reference was made to, among other authorities, K. and T. v. Finland [GC], no. 25702/94, § 155, ECHR 2001‑VII).
(d) The Court’s assessment
(i) General principles
119. The general principles applicable to cases involving child welfare measures, including measures such as those at issue in the present case, are well established in the Court’s case-law, and were recently extensively set out in the case of Strand Lobben and Others v. Norway [GC], no. 37283/13, §§ 202-13, 10 September 2019, to which reference is made. For the purpose of the present analysis, the Court reiterates that in the case of imposition of public care restricting family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible. A guiding principle is that a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (ibid., §§ 205 and 208).
120. The Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance. It has emphasised that in cases involving the care of children and contact restrictions, the child’s interests must come before all other considerations (ibid., § 204, and the authorities cited therein). In instances where the respective interests of a child and those of the parents come into conflict, Article 8 requires that the domestic authorities should strike a fair balance between those interests and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents (ibid., § 206).
121. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child. Generally, the best interests of the child dictate, on the one hand, that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit, since severing those ties means cutting a child off from its roots. The ties between members of a family, and the prospect of their successful reunification, will perforce be weakened if impediments are placed in the way of their having easy and regular access to each other. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family. On the other hand, it is clearly also in the child’s interest to ensure his or her development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (ibid., §§ 207-08).
122. In determining whether the reasons for the impugned measures were relevant and sufficient for the purpose of paragraph 2 of Article 8 of the Convention, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interests of the child is in every case of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the care of children and the rights of parents whose children have been taken into public care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (ibid., § 210, and the authorities cited therein).
123. In cases relating to public-care measures, the Court will further have regard to the authorities’ decision-making process, to determine whether it has been conducted in such a way as to ensure that the views and interests of the natural parents are made known to and duly taken into account by the authorities and that they are able to exercise in due time any remedies available to them. What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests and have been able fully to present their case (ibid., § 212). Another aspect the Court will look at is whether the domestic courts conducted an in-depth examination of the entire family situation (see Y.C. v. the United Kingdom, no. 4547/10, § 138, 13 March 2012 and, more recently, M.L. v. Norway, no. 43701/14, § 42, 7 September 2017).
(ii) Application of the above principles to the instant case
124. The applicants’ complaints concern an alleged interference with their family life, but at the same time an alleged failure of the State to abide by a positive duty to facilitate family reunification (see paragraph 121 above). The principles applicable to assessing a State’s positive and negative obligations under the Convention are similar. Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, the aims in the second paragraph of Article 8 being of a certain relevance (see, mutatis mutandis, Hämäläinen v. Finland [GC], no. 37359/09, § 65, ECHR 2014).
125. It was not disputed before the Court that the dismissal of the applicants’ applications to have the two children returned to their care amounted to “interference” with their right to respect for their family life, and that the measure was “in accordance with the law”, namely the Civil Code (see paragraph 80 above). The Court sees no reason to find otherwise. The grounds set out by the domestic courts in their decision not to return R. and M. to the applicants show that they aimed to protect the children’s interests. Thus, they pursued a legitimate aim under Article 8 § 2 of the Convention, namely the protection of the rights and freedoms of others (compare Achim v. Romania, no. 45959/11, § 94, 24 October 2017).
126. It remains to be determined whether the domestic authorities – in their decision not to return R. and M. to the applicants and in their choice of measures – struck a fair balance between the competing interests at stake in line with their both negative and positive obligations to achieve the legitimate aim pursued in the particular circumstances of this case.
127. Examining the proceedings as a whole (see paragraph 123 above), the Court observes firstly that the case was heard at three levels of jurisdiction, with one remittal. From the documents available to the Court it appears that the applicants had every opportunity to present their case and were represented by counsel throughout the proceedings. They lodged numerous requests relating to the care order in respect of their children and their visiting rights, all of which were duly considered by the domestic courts. The District Court obtained two statements from the Youth Court Assistance Office and appointed three different experts throughout the proceedings (see paragraph 17 above), namely two psychologists and one psychiatrist, to give evidence on the applicants’ ability to take care of their children and their interaction with them. According to the District Court’s findings, the experts had unanimously come to the conclusion that the two youngest children should not be returned to the applicants (see paragraph 37 above). The domestic courts ordered the child and family psychologist to supplement her expert opinion based on a fresh expert examination into the applicants’ ability to provide proper care, to ensure that any improvements or changes were taken into consideration (see paragraphs 48 and 51 above; contrast Strand Lobben and Others, cited above, § 222, and A.S. v. Norway, no. 60371/15, § 68, 17 December 2019, where the Court regarded it as significant that no updated expert reports had been obtained). The Court further attaches weight to the fact that the psychological experts’ opinions had been discussed during oral hearings and that the domestic courts subsequently followed the conclusions of the experts who had been questioned by the applicants (see paragraphs 48 and 51 above; contrast Abdi Ibrahim, cited above, §§ 39 and 41, where the domestic court had deviated from the expert’s recommendation). The Court therefore considers that the applicants were involved in the decision-making process to a degree sufficient to provide them with the requisite protection of their interests and were able to fully present their case (contrast Strand Lobben and Others, cited above, § 212, and Abdi Ibrahim, cited above, § 151).
128. The Court reiterates that the State enjoys a wide margin of appreciation in assessing the necessity of taking a child into care (see Strand Lobben and Others, cited above, § 211, with further references). However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure effective protection of the right of parents and children to respect for their family life (ibid., and see also A.S. v. Norway, cited above, § 62, in a case not concerning adoption). In this regard, the Court notes that the applicants complained in essence that the steps that had been taken by the domestic authorities to facilitate M.’s and R.’s reunion with their natural family had been insufficient (see paragraph 103 above). Bearing in mind the limitations of the scope of its examination as described in paragraph 104, the Court will nevertheless consider the contact rights of the applicants in its overall assessment of the measures taken by the State aimed at family reunification.
129. In the beginning, both R. and M. were placed with emergency foster families (see paragraph 9 above), where R. stayed for approximately four months, and M. for one year and four months. This indicates that the placement was intended as a temporary measure pursuing the aim of reuniting the children with their parents in line with Article 181 of the Civil Code (see paragraph 80 above). Family reunification cannot normally be sufficiently supported if there are intervals of weeks, or even months, between each contact session (see A.L. and Others v. Norway, no. 45889/18, § 48, 20 January 2022, and the cases cited therein). In this regard, the Court notes that the applicants had contact with R. and M. from the outset. The District Court found that contact had only been reduced after the children had been placed with ordinary foster parents (see paragraph 12 above), which indicates that before that date more extensive visits had taken place. From February 2011 and 2012 respectively, contact sessions were held once a month until they were temporarily suspended in August 2012 (see paragraph 16 above) owing to the applicants’ conduct, their inability to accept support and advice to an extent sufficient to change their attitude towards their youngest children and the stress that this engendered in the children. Thereafter, the District Court granted visiting rights to the extent recommended by the expert (see paragraphs 19 and 23 above). The Court does not lose sight of the fact that the visiting scheme was very limited (compare Strand Lobben and Others, cited above, § 221) and that the applicants must have suffered as a result of seeing their children so little. However, on the basis of expert opinions the District Court established detailed facts, finding that the applicants’ conduct during the visits had been overburdening for the children (see paragraphs 25, 40-42 and 54-55 above). In this connection, the Court reiterates that a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (compare Strand Lobben and Others, cited above, § 207, and E.M. and Others v. Norway, no. 53471/17, § 59, 20 January 2022).
130. The documents provided by the parties, especially the domestic courts’ decisions, do not provide any indication from which it may be concluded that the authorities had not considered the care placement to be a temporary measure with the aim of returning the children to the applicants’ care (contrast A.L. and Others v. Norway, cited above, § 21; K.O. and V.M. v. Norway, no. 64808/16, § 35, 19 November 2019; Strand Lobben and Others, cited above, §§ 75, 221 and 332; A.S. v. Norway, cited above, § 62; Pedersen and Others v. Norway, no. 39710/15, § 67, 10 March 2020; Hernehult v. Norway, no. 14652/16, § 74, 10 March 2020; and M.L. v. Norway, cited above, § 92, in all of which cases the relevant courts had found the foster care to be a matter of permanent placement or a measure that was envisaged to be prolonged or set out for a long-term period and had used that consideration as an argument for restrictive contact, while in the case of M.L. v. Norway (cited above, § 93), the authorities appeared to have abandoned the goal of reunification early in the proceedings, even when issuing the initial care order). Instead, the Court accepts that the domestic authorities did aim to facilitate R.’s and M.’s return but that on the basis of the evidence before them they had no reason to deviate from the experts’ recommendations and to extend the visits. It notes that the applicants never complained about the settings of the visits as such or about the conduct of the foster parents with regard to those visits. Rather, it appears that the foster parents were helpful and supportive in making the visits work as far as possible. However, the applicants’ antagonism towards the youth welfare authorities during the contact sessions seems to have tended to prevail over their attention to the children (see, for example, paragraph 10 above).
131. The Court finds that the domestic courts gave relevant reasons for the conclusion that the visits between the applicants and their children served the purpose of reuniting them but that the applicants’ undisputed conduct during those visits and its negative impact on the children’s well-being did not prove them fit for the time being for a more extensive visiting scheme, despite the support by social workers and later a therapist aimed at facilitating the applicants’ interaction with their children. Therefore, it appears that it was not the fact that the ties between the applicants and the children were minimal but the reasons lying with the applicants for those limited ties that formed the basis of the domestic courts’ decisions (contrast M.L. v. Norway, cited above, § 96).
132. Moreover, in the course of the custody proceedings, the domestic courts also examined the possibility of placing the children with relatives (see paragraphs 9 and 61-68 above). It is not clear from the documents submitted by the parties at what point the YWO first took steps to examine their care‑giving abilities. However, the Court notes that it was precisely the applicants who had initially expressed their wish not to have R. and M. placed within the extended family (see paragraph 9 above). This is consistent with the District Court’s finding that the applicants had only opened up to their extended family at a rather late stage of the proceedings (see paragraph 49 above). It was in April 2012 that relatives of R. and M., namely the maternal grandparents, submitted a formal custody application (see paragraph 61 above), at a time when the children had already been placed with their respective ordinary foster parents and more than one and a half years after they had been removed from the applicants. The Court would point out that the domestic courts decided on the grandparents’ custody applications on the basis of expert opinions (see paragraphs 63 and 65 above) and after careful consideration of their care-giving abilities. Thus, it cannot agree with the applicants’ unspecified argument that the domestic courts had not considered the children’s placement with relatives (see paragraph 110 above). Reiterating that it has declared the applicants’ complaint concerning the dismissal of the relatives’ custody applications inadmissible (see paragraph 104), what is still at stake is whether placement with one of the relatives would have facilitated the children’s return to the applicants. Considering that the domestic courts gave thorough reasons for finding that the applicants continued to lack sufficient care-giving abilities, the Court has no basis to conclude that reunification would have been more likely had the children been placed with relatives.
133. That the domestic courts aimed to reunite the children with their parents is also evidenced by the fact that the three oldest children were returned to the applicants as soon as it was considered safe to do so. Expert opinions commissioned by the District Court in respect of the two youngest children R. and M., however, unanimously and repeatedly found that the applicants were not able to adequately recognise R. and M.’s needs or ensure their well-being. The two youngest children were of an age where they required much more care than the applicants were capable of providing (see paragraph 53 above). It was found that returning R. and M. to the applicants’ care would cause the two small children intense emotional stress and could lead to their developing behavioural disorders (see paragraph 57 above). Since the applicants already had three children to take care of, the domestic courts considered, in line with the expert opinions, that it would overburden them to take proper care of their two youngest children in addition. On that basis, the domestic courts ultimately refused to return the small children to the applicants and transferred full custody to the YWO. In this regard, having regard to the undisputed facts, the Court cannot agree with the applicants’ submission that the domestic courts had not assessed R.’s and M.’s endangerment (see paragraph 110 above).
134. The Court notes that the domestic courts in their decision concerning M. and R. also took into account the well-being of the applicants’ older daughters and thus examined the entire family situation as required by the Court’s case-law (see paragraphs 53, 57-58 and 123 above). While the three older daughters were not part of the proceedings, the Court observes that the YWO had to intervene and to investigate whether they were at risk shortly after they had moved back with the applicants. The family situation had become conflict-prone, with criminal allegations having been raised and the applicants’ separation possibly impending (see paragraphs 52-53 above). It was only with intensive support from the authorities (see paragraph 22 above) that the applicants managed to retrieve care for their three oldest children. They also received support in managing their everyday life and in maintaining contact with R. and M. In their submissions, the applicants, however, seemed to deny the existence of any difficulties or deficiencies (see paragraph 110 above).
135. The Court observes that in its decision dated 14 April 2014 the District Court additionally found that M. and R. had built up a strong bond with their respective foster parents and taking them out of their familiar surroundings would likewise endanger them (see paragraphs 54 and 57 above). In this connection, the Court has held that when a considerable period of time has passed since the child was originally taken into public care, the interest of a child in not having his or her de facto family situation changed again may override the interests of the parents in having their family reunited (see Strand Lobben and Others, cited above, § 208). At the same time, in the assessment whether the authorities have discharged their obligations under Article 8 the question whether they are responsible for a situation of family breakdown because they have failed in their obligation to facilitate family reunification is relevant (ibid., see also Pedersen and Others, cited above, § 68; Hernehult, cited above, § 74; and Abdi Ibrahim, cited above, § 151). In the present case, however, the Court already found that the authorities tried to facilitate the reunification of the applicants with R. and M. and that the applicants’ behaviour was a central factor frustrating it (see paragraph 131 above).
136. Finally, the Austrian Ombudsman Board also examined the applicants’ complaints about their children’s placement with foster families and concluded that the YWO had properly discharged its obligation to ensure the best interests of the children (see paragraph 70 above).
137. Overall, the Court finds that the reasons advanced by the domestic courts for dismissing the applicants’ applications to have their children returned to their care were based on comprehensive testimonies and expert opinions, and all relevant arguments were taken into account in their assessment (compare and contrast Strand Lobben and Others, cited above, § 225). The Court is thus satisfied that the reasons advanced were not only relevant but were also sufficient for the purposes of Article 8 § 2 of the Convention.
2. Omission to consider the applicants’ cultural, linguistic and religious background
(a) The applicants’ submissions
138. The applicants argued that the domestic authorities had completely ignored their cultural, linguistic and religious background when placing their children with Christian foster parents who did not have any Turkish or Muslim background. M. and R. were growing up without learning the Turkish language and culture and without any contact with the Muslim religion and had been alienated from their Turkish identity. As a result, both children only spoke German. The language barrier was particularly difficult for the applicants, as despite the fact that they had been living in Austria for many years they only had a very basic command of the German language, which made it difficult to have a basis for communicating with M. and R. Moreover, they alleged that the domestic courts had not considered the possibility of placing the small children with their grandparents or other relatives, who would have had the same cultural, linguistic and religious background as the applicants, although they would have been willing to care for the children (see paragraph 110 above).
(b) The Government’s submissions
139. The Government noted that the applicants had been involved in the judicial proceedings concerning the measures taken by the YWO from the very beginning. They had been heard by the court-appointed experts and the court itself and had been able to raise their concerns personally or in writing about an external placement and to express their preference for a placement with the grandparents or uncles. In fact, immediately after the children were removed from them, the applicants themselves had asked the competent social worker to ensure that their children were not placed within the extended family circle. The YWO and later the courts during the custody proceedings had nonetheless examined the possibility of placing them with relatives. However, the relevant investigations had shown that none of the relatives had been suitable to take the children into care. Therefore, the children had had to be placed with external foster parents. Unfortunately, at that time, no foster parents of Muslim and/or Turkish background had been available to the YWO. Both children had therefore been placed with foster families who were particularly open to other cultures and religions (see paragraphs 31 and 34 above). M. and R. had subsequently shown a very positive development in their foster families. Both children were aware of their origins and, pursuant to the court order, maintained regular contact with their parents and siblings.
140. The Government argued that the obligation of the authorities and courts arising from Articles 8 and 9 of the Convention was, in any event, no guarantee for the biological parents that their child would not be exposed to impressions in his or her new environment which the biological parents might wish to keep the child away from. In their surroundings M. and R. were not only confronted with Christianity but also with other religions and cultures, without this indicating any indoctrination. While the YWO paid attention to the foster parents speaking with the children about their cultural roots and encouraging their interest in them, the applicants had acted in a manner during the visits that had been burdensome for the children and both children had reacted to the visits by experiencing sleeping problems and psychosomatic illnesses and wetting their beds. Nevertheless, as contact sessions with the applicants and the three oldest sisters were a valuable source for contact with Turkish culture and Islam, special emphasis had been put on the possibility of extending such contact.
141. The Government stated that the first time the applicants had expressed their wish that only persons with knowledge of the Turkish language and a close affinity to Islam should be selected as foster parents had been in their appeal of 22 January 2013 (see paragraph 46 above), at a time when the children had already lived with their ordinary foster families.
142. As to the language barrier between the applicants and their two youngest children, the Government reiterated that M. and R. had had to be placed with emergency foster parents at a very young age (then three years and three months). The children could learn their mother tongue if they so wished. This would not only be supported and encouraged by the foster parents, but the costs for such language courses would also be borne by the YWO. Moreover, it could be assumed that not least because of the long time they had spent in Austria, the applicants had some knowledge of German themselves. According to his own counsel, the second applicant had sufficient knowledge of the German language for everyday use. The YWO had acknowledged that both applicants had a good command of the German language and stated that they had emphasised on various occasions that they had attended school in Austria.
143. The Government concluded that in the light of the compelling need to prevent further psychological and physical neglect of M. and R., the applicants’ interests regarding the linguistic, cultural and religious education of their children had to be deemed less important.
(c) The third party’s submissions
144. The Turkish Government submitted that the placement of children with foster families without taking into account their religious, cultural, ethnic and linguistic background violated their parents’ rights under Article 8 of the Convention. It also infringed their right to raise and educate their children in conformity with their own religious beliefs and convictions, as guaranteed by Article 9 of the Convention. They argued that in that context, it was even more important that such placement should remain a temporary measure, and that the ultimate aim should be to reunite the natural parents with their child.
(d) The Court’s assessment
145. As stated above (see paragraph 106 above), the applicants’ complaint relating to the adverse effect of the choice of foster home in regard to their wish that their children be brought up in line with their Muslim faith and linguistic and cultural roots is to be examined as an integral part of their complaint concerning their right to respect for their family life as guaranteed by Article 8 of the Convention, interpreted and applied in the light of Article 9. In this regard, the Court reiterates that the compulsory taking into care of a child inevitably entails limitations on the freedom of the biological parents to manifest their religious or other philosophical convictions in their own upbringing of the child (see Abdi Ibrahim, cited above, §§ 140-41).
146. In order to facilitate, inter alia, family reunification as soon as reasonably feasible, the authorities must have due regard to the parents’ rights, including their interest in having their children placed in a foster home with a given cultural, linguistic and/or religious background (compare in the context of Article 2 of Protocol No. 1 to the Convention Olsson v. Sweden, no. 10465/83, Commission’s report of 2 December 1986, § 183, and Tennenbaum v. Sweden, no. 16031/90, Commission decision of 3 May 1993). However, the natural parent’s rights under Article 8 of the Convention, as interpreted in the light of Article 9, could be complied with not only by ultimately finding a foster home which corresponds to his or her cultural and religious background. The Court refers to the assessments of the domestic courts of the various interests that have to be taken into account throughout the whole process in cases of this nature where the child’s best interest must remain paramount and to the relatively broad agreement in international law that domestic authorities in circumstances such as those in the present case are bound by an obligation of means, not one of result (see Abdi Ibrahim [GC], cited above, § 161).
147. Turning to the instant case, the Court reiterates that the applicants’ complaints about the initial care placement as an emergency measure, their limited visiting rights and the dismissal of their relatives’ custody applications were declared inadmissible (see paragraph 104 above). What remains at stake is thus the question whether the authorities, when placing R. and M. with their respective foster families and thereafter, had due regard to the applicants’ interest in their children being brought up in line with their cultural and religious origin. According to the information at hand, which was not disputed by the applicants, there are only very few Turkish and/or Muslim foster families available in the Vienna area, despite the active efforts the authorities have made to encourage more such families to apply (see paragraph 100 above). When the YWO needed to find ordinary foster parents for R. and M., no foster parents of Muslim and/or Turkish background had been available, despite the efforts made in that regard. Both children had therefore been placed with foster families who were particularly open to other cultures and religions (see paragraphs 31 and 34 above). Furthermore, according to the undisputed submissions by the Government, the YWO had paid attention to the foster parents speaking with the children about their cultural roots and encouraging their interest in them (see paragraph 140 above).
148. The Court further notes that the applicants had not expressed a concrete wish for a specific foster family at the time of the children’s placement. In October 2010 the applicants explicitly declared themselves against having the children placed with relatives (see paragraph 9 above). Nonetheless, and contrary to what the applicants alleged without substantiating their submissions (see paragraph 138 above in fine), efforts were made by the authorities to check whether the children’s grandparents or uncles were capable of taking the children into their care, as Austrian law gives priority to placing children with relatives (see paragraph 82 above). However, none of them were deemed suitable to take care of the children or capable of doing so (see paragraphs 63 and 67 above).
149. In these circumstances, the Court can accept that – based on the available information – the domestic authorities made efforts to place the applicants’ children with families corresponding to the applicants’ cultural, linguistic and religious background, but that according to the undisputed submissions of the Government at the time when R. and M. had to be placed in ordinary foster care, no such family was available.
150. Furthermore, the Court attaches importance to the fact that, from the information at hand, it appears that it was only in January 2013 (in their appeal against the District Court’s decision of 27 December 2012; see paragraph 46 above), or on 23 August 2012, when R. wore a necklace with a cross (see paragraph 15 above) at the earliest, that the applicants first brought up the issue of the foster parents’ qualifications and suitability. There is no indication of their having been concerned at any earlier stage about the fact that the two children had not been placed with a Turkish and/or Muslim family. Thus, when the applicants first brought up these arguments, R. had already been living with her ordinary foster mother for at least one and a half years, and M. had been with his ordinary foster parents for almost several months (contrast Abdi Ibrahim, cited above, § 19, where the mother specifically expressed her wish to place her child in a Somali or Muslim foster home only slightly over one month after the initial care placement).
151. The expert opinion had shown that meanwhile R. and M. had developed strong bonds with their respective foster families, where their well‑being was ensured. The domestic courts gave relevant reasons when they noted that at that point it would have been detrimental to the children’s best interests to again be taken out of their accustomed environment and be placed with a different foster family.
152. As regards the relevant authorities’ attitude in general, the Court observes that after the attempted abduction of R. (see paragraph 15 above), the domestic courts duly examined the applicants’ allegations regarding the religious estrangement of R. but came to the conclusion that there were no such indications. The explanation given by the foster mother was deemed credible, namely that it had been the girl’s wish to wear the necklace with the cross from a chewing-gum machine (see paragraph 17 above). The District Court nevertheless formally reminded R.’s foster mother of the need to respect R.’s religious background. No other signs of any similar behaviour or indoctrination were discernible, and the applicants have not alleged that any other such incidents took place, or that the foster mother was harming R.’s best interests in any other way. The corresponding allegation in relation to M.’s upbringing with his foster parents was limited to the mere fact that they did not speak Turkish and were not Muslim. The Government, on the other hand, showed that they had chosen particularly open-minded foster parents (see paragraphs 31, 34 and 142 above; contrast Abdi Ibrahim, cited above, §§ 51 and 55, where the foster parents were active Christians who wished to baptise the foster child and to change his name). They made credible submissions regarding the children’s contact with other religions in their everyday social life.
153. The Court reiterates that the applicants’ rights under Article 8 of the Convention, as interpreted in the light of Article 9, could be complied with not only by ultimately finding a foster home which corresponded to their cultural and religious background, but by making arrangements thereafter as to the applicants’ ability to have regular contact with their children, taking due account of the applicants’ interest in allowing the children to retain at least some ties to their cultural and religious origins (see paragraph 146 above). Reiterating the limited scope of its examination (see paragraph 104 above), the Court will therefore only assess whether the domestic authorities fulfilled their positive obligation in that regard. As stated above, the domestic authorities had enabled the applicants to stay in regular contact with R. and M. from the outset, to the extent possible for the children (see paragraph 130 above). The Court observes that in the determination of the frequency of the applicants’ visiting rights, the domestic courts had to strike a balance between the parents’ right to maintain a relationship with their children, and the children’s interest in not being exposed to a harmful situation. The District Court followed the recommendations of the experts, who found that the children could not bear more frequent contact sessions because of the applicants’ behaviour. The visiting scheme, which is not as such the subject of the Court’s assessment, was thus developed to safeguard the children’s well-being and to some extent gave the applicants and their children the opportunity to maintain their cultural, linguistic and religious ties.
154. After the attempted abduction by the applicants of their daughter on 23 August 2012, their visiting rights in respect of R. were suspended by the YWO, as the incident had traumatised the girl and she needed time to stabilise (see paragraphs 15-17 above). This was in line with the expert opinion of the child and family psychologist, who did not find it safe until February 2014 to recommend that the visits between the applicants and R. be resumed under strict conditions (see paragraph 25 above). Following the experts’ recommendation, the District Court reinstated their visiting rights with the support of a Turkish-speaking therapist (see paragraph 23 above).
155. Therefore, with the exception of the period of about one year and eight months in respect of R. and four months in respect of M., when visiting rights were suspended for relevant reasons, the applicants had some access to their children. From the information available, the Court has no basis to conclude that the domestic authorities did not take into account the applicants’ cultural and religious background when choosing the children’s foster parents and when putting in place a visiting scheme. The efforts made in that regard are also shown in the District Court’s attempt to clarify the date of the applicants’ Bayram celebration in order to grant a special visiting right on that occasion. The applicants appear not to have replied to the District Court on that issue (see paragraph 20 above).
156. The Court observes that the Austrian Ombudsman Board also examined the applicants’ allegations regarding their children’s cultural and religious estrangement and concluded that the YWO had properly discharged its obligation to ensure the best interests of the children (see paragraph 70 above).
157. Turning to the alleged language barrier, the Court notes that – on the basis of the facts – none of the parties involved seem initially to have perceived the language spoken during the visits as a problem. In fact, at the time of the care placement, M. had been only three months old. It appears that the applicants did not ask the YWO to provide an interpreter during the visits. Instead, according to the Government’s submissions, the YWO had had the impression that the applicants had a good command of German (see paragraph 142 above), and the applicants do not seem to have discerned any problems during the (supervised) visits. When the District Court found in its decision dated 27 December 2012 that the applicants spoke only a little German (see paragraph 40 above), the applicants disputed that finding in their appeal, arguing that the second applicant in fact had a sufficient command of German (see paragraph 46 above). It was only in their submissions to the Court that the applicants claimed that there was a language barrier between them and their children (see paragraph 138 above).
158. Irrespective of these contradictory statements on the applicants’ level of German, it is undisputed that the language spoken in the applicants’ household was Turkish and that the applicants understandably preferred to speak Turkish to their children during the visits (see paragraph 56 above). Moreover, in their appeal dated 22 January 2013, at a time when the children were three and five years of age, the applicants did raise their concerns about the children’s lack of exposure to the Turkish language and culture (see paragraph 46 above).
159. In this connection, the Court notes that the best interests of a child who has been taken into care at a very young age would normally require that the child learn his or her mother tongue as soon as possible and appropriate, in order to maintain his or her cultural background and to facilitate reunification with his or her natural family. According to information submitted by the Government, Turkish language courses are available free of charge to the applicants’ children (see paragraphs 94 and 142 above). However, the applicants or their lawyer do not appear to have requested such offers.
160. As stated above (see paragraph 153), the regular visits gave the applicants an opportunity, albeit a limited one, to maintain their cultural and linguistic ties with R. and M. According to findings of fact which have not been disputed in this regard, the applicants, despite the authorities’ support, had difficulties in making use of the time spent with their children to actually engage in communication with them. The Court would add that communication in the wider sense not only consists of verbal interaction but also includes non-verbal communication skills, empathy, body language and being able to react to the signals of one’s child; this holds particularly true when it comes to babies and very small children who have not yet acquired any (significant) language skills. The Court notes that from the documents at hand, it appears that the language barrier itself was not the main problem in communication between the applicants and their children. Far more significantly, the applicants were found to be unable to react to their children’s signals appropriately or to recognise their needs (for example, hunger or refusal of physical contact; see paragraph 40 above). The Court therefore concludes that the lack of effective communication between them was initially not the result of a language barrier.
161. Overall, the Court agrees with the domestic courts that there was no indication of any indoctrination on the part of R.’s and M.’s respective foster parents, let alone of any harm to the children’s well-being. It further notes that the choice of their foster families did not deprive the applicants of their right to maintain a relationship with and to pass on their cultural heritage to their children. The domestic authorities complied with their positive obligations and provided for regular contact between the applicants and their children and for support through well prepared foster parents and social workers, taking into account the applicants’ interest in maintaining their cultural, linguistic and religious bonds with R. and M.
162. Having regard to its conclusions regarding the two central aspects of the applicants’ complaints (see paragraphs 137 and 161 above), the Court finds that there were relevant and sufficient reasons for the domestic authorities not to return R. and M. to the applicants’ care since family reunification was not reasonably feasible and that throughout the proceedings, the authorities had due regard to the applicants’ interest in their children being brought up in line with their cultural, religious and linguistic origin. There has accordingly been no violation of Article 8 of the Convention, interpreted alone and in the light of Article 9.
FOR THESE REASONS, THE COURT
1. Declares, unanimously, the application admissible;
2. Holds, by six votes to one, that there has been no violation of Article 8 of the Convention;
Done in English, and notified in writing on 12 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Victor Soloveytchik Siofra O’Leary
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Hüseynov is annexed to this judgment.
DISSENTING OPINION OF JUDGE HÜSEYNOV
1. I respectfully disagree with the majority’s finding that there has been no violation of Article 8 of the Convention. In my view, the Austrian authorities did not comply with their positive obligations under that provision, as interpreted in the light of Article 9 of the Convention, since they failed to take into account the linguistic and cultural background of the applicants at a time when their two youngest children (R. – born in November 2007 and M. – July 2010) had been kept in foster care since October 2010.
2. At the outset, I note with regret that the applicants’ complaint concerning their restricted visiting rights in respect of their children was declared inadmissible at the time it was communicated to the parties. As a result, the Chamber was unable to examine that important complaint. It is true that the Chamber considered it appropriate to regard those allegations as part of the context (see paragraph 105 of the judgment) and referred to them when examining the applicants’ other complaints. Nevertheless, the majority, in my view, failed to have due regard to the impact of the limited contact between the applicants and their two youngest children on the maintenance of the children’s religious, linguistic and cultural identity.
3. As it appears from the case file, after R. and M. had been placed with emergency foster families and later with ordinary foster parents, the applicants were allowed to see them for one hour per month. Between 2012 and 2013 visiting rights were suspended for about one year and eight months in respect of R. and four months in respect of M. Since 2016 the applicants have been allowed to see M. only four times a year, for one-hour-visits, and R. twice a year, for similar one-hour sessions. The majority admit that “the visiting scheme was very limited … and … the applicants must have suffered as a result of seeing their children so little” (see paragraph 129 of the judgment).
4. That said, I do take note of the fact that the Austrian child welfare authorities and courts provided reasons (relating, in particular, to the care‑giving abilities of the natural parents, their behaviour during the visits and the needs of the children) for the subsequent restriction of the applicants’ visiting rights as well as for the decision not to return the two youngest children to them. The crux of my dissent is not that aspect of the present application. Indeed, there may have been reasons, for a certain period, to impose limitations on contact between the applicants and the children, and to refuse to return the children to the applicants’ care. The key point I wish to make is that the parents’ behaviour during the visits could not, as a matter of principle, justify the failure by the national authorities to take the requisite measures to preserve the children’s cultural, linguistic and religious identity.
5. In a recent Grand Chamber judgment (Abdi Ibrahim v. Norway [GC], no. 15379/16, 10 December 2021), the Court clarified the scope of the positive obligations of Contracting Parties to the Convention as regards maintaining the religious, linguistic and cultural identity of children in care. Of particular note is paragraph 161 of that judgment, which I set out in full:
· “The Court notes that the applicant’s rights under Article 8 of the Convention, as interpreted in the light of Article 9, could be complied with not only by ultimately finding a foster home which corresponded to her cultural and religious background. It refers to the assessments of the domestic courts of the various interests that have to be taken into account throughout the whole process in cases of this nature where the child’s best interest must remain paramount (see, in particular, paragraphs 23-26, 36-37 and 51-56 above) and to the relatively broad agreement in international law that domestic authorities in circumstances such as those in the present case are bound by an obligation of means, not one of result (see paragraphs 80-82 above). Nor can the Court question the fact that, on the basis of the information available, the actions of the authorities included efforts, which ultimately proved unsuccessful, to find a foster home for X at the outset that was more suitable from this perspective (see paragraph 17 above). However, the Grand Chamber agrees with the Chamber (see paragraph 64 of the Chamber judgment) that the arrangements made thereafter as to the applicant’s ability to have regular contact with her child (see paragraph 152 above), culminating in the decision to allow for X’s adoption (see paragraphs 44-56 above) failed to take due account of the applicant’s interest in allowing X to retain at least some ties to his cultural and religious origins.”
6. It follows that the obligation incumbent on States in similar childcare cases is an obligation of means, not of result. States are not obliged, when placing a child in foster care, to find a family which corresponds to the biological parents’ cultural and religious background. Appropriate means can and should be employed by domestic authorities, throughout the process, to ensure respect for the rights of the biological parents guaranteed by Article 8 of the Convention as interpreted in the light of Article 9 of the Convention. The authorities should have due regard to the biological parents’ wishes in respect of the care and education of their children and – as long as this is considered to be in the best interests of the child – should take into consideration the importance of the children’s continued contact with their biological parents, their common cultural, linguistic and religious background and the prevention of the development of communication barriers, in order to facilitate the children’s reunification with the parents as soon as feasible. That said, I am of the opinion that what essentially matters is whether the contact afforded is sufficiently meaningful and effective to safeguard, strengthen and develop family ties and avoid an estrangement of the children from their culture and religion.
7. By the same token, I believe that respect for family life, as interpreted in the light of Article 9 of the Convention, should not be limited to facilitating contact but should encompass other positive action, beyond that, to prevent children from being cut off from their cultural and religious roots, especially at a very young age. The Court’s task in such cases is, in my view, to ascertain whether the competent national authorities have taken all appropriate measures which are reasonable in the circumstances, and with paramount importance being attached to the best interests of the child, in order to prevent his or her linguistic, cultural or religious estrangement.
8. Now I turn to the question of whether and how the Austrian authorities complied with the general principles briefly outlined above.
9. I find it difficult to discern from the case file that the Austrian authorities “complied with their positive obligations and provided for regular contact between the applicants and their children and for support through well prepared foster parents and social workers, taking into account the applicants’ interest in maintaining their cultural, linguistic and religious bonds with R. and M.” (see paragraph 161 of the judgment). First, as I noted above, contact between the applicants and their two youngest children was very limited; second, no evidence was submitted to the Court that the foster parents and social workers had genuinely taken into account “the applicants’ interest in maintaining their cultural, linguistic and religious bonds with R. and M.”.
10. The majority state that the two youngest children were placed with foster families “who were particularly open to other cultures and religions” (see paragraph 147 of the judgment). This conclusion, which is in fact based on an assessment made by the RAP, a special department of the YWO for adopted and foster children (see paragraph 31 of the judgment), appears to be in contradiction with the fact that the Leopoldstadt District Court at least twice reminded R.’s foster mother that she had to respect the fact that R. was Muslim (see paragraphs 18 and 20 of the judgment). In this regard, I am not convinced that the incident involving R.’s wearing of a necklace with a cross (see paragraph 15 of the judgment) can simply be overlooked.
11. That said, the principal focus below will be on the alleged lack of linguistic ties between the applicants and their two youngest children.
12. It was undisputed that the language spoken in the applicants’ household was Turkish and that the applicants understandably preferred to speak Turkish to their children during the visits (see paragraph 56 of the judgment). Moreover, in their appeal of 22 January 2013, at a time when the children were about three and five years of age, the applicants did raise their concerns about the children’s lack of exposure to the Turkish language and culture (see paragraph 46 of the judgment).
13. The best interests of a child who has been taken into care at a very young age require that the child learn his or her mother tongue as soon as possible and appropriate, in order to facilitate reunification with his or her natural family. According to information submitted by the Government, Turkish language courses are available free of charge to children (see paragraphs 94 and 142 of the judgment). However, no information was submitted to the Court from which it could be concluded that the foster parents or the applicants had been made aware of such courses. It should be noted that it is incumbent on the authorities to inform the foster parents of the possibility of language courses and other opportunities to use a language, and to provide them with guidance in this respect. Although the Vienna Youth Welfare Office (YWO) paid attention to the need for the foster parents to speak with the children about their cultural roots and encourage them to take an interest in them (see paragraph 140 of the judgment), there is no indication that the foster parents received guidance of the sort to which I refer. One can accept that in certain cases the best interests of a child may militate against teaching an additional language, for example if an expert finds the child’s psychological state too fragile or his or her linguistic development already challenged. In the present case, however, the domestic courts do not seem to have examined R. and M.’s capacity to learn their native language. Consequently, on the basis of the material before them the domestic courts had no reason to consider that it was not in R. and M.’s best interests to learn Turkish.
14. In its decision dated 14 April 2014 the Leopoldstadt District Court stated that M. did not understand his mother when she was talking to him in Turkish and that one of the three oldest daughters acted as an interpreter (see paragraph 56 of the judgment). One should not lose sight of the difficulties which member States would quite understandably face if they were expected to organise visits in all parents’ and children’s native languages. However, in the present case, a Turkish-speaking therapist was made available to attend the visits with R. from April 2014 (see paragraph 22 of the judgment). That said, no attempts were made to find a suitable Turkish-speaking person to attend the visits and facilitate communication between the parents and the children at an earlier stage and no explanations were given in that respect. Instead, the Government submitted that the children could learn Turkish if they became interested in doing so at a later stage (see paragraphs 94 and 142 of the judgment), which means in turn that the authorities apparently never envisaged on their own initiative that R. and M. should be actively exposed to their native language.
15. Considering that R. and M. did not have the opportunity to learn their mother tongue either while in the care of their foster parents or during the limited visiting time, I am not convinced that sufficient alternative measures were taken to facilitate the maintenance of the linguistic ties between the applicants and their children at a time when it was not yet clear whether the children would return to their parents’ care.
16. The domestic courts apparently realised that there existed a language barrier between the applicants and their two youngest children (see paragraphs 40 and 56 of the judgment) but did not envisage any measures to remedy the situation.
17. I am not convinced that the visits put in place without any additional measures specifically related to language abilities were sufficient to encourage R. and M.’s command of the native language of their biological parents. Because of this linguistic estrangement, the authorities failed to facilitate meaningful contact and reunification.
18. In my view the foregoing considerations, relating specifically to the failure of the Austrian authorities to put in place requisite measures to secure the maintenance of linguistic ties between the applicants and their two youngest children and prevent the children’s linguistic and cultural estrangement (language being a fundamental aspect of cultural identity), provide a sufficient basis on which to conclude that there has been a violation of the State’s positive obligations under Article 8 of the Convention.