Last Updated on November 2, 2019 by LawEuro
Information Note on the Court’s case-law 216
March 2018
Wetjen and Others v. Germany – 68125/14 and 72204/14
Judgment 22.3.2018 [Section V]
Article 8
Article 8-1
Respect for family life
Alleged procedural failings in the domestic court’s decision to remove children from their parents: no violation
[This summary also covers the judgment in the case of Tlapak and Others v. Germany, nos. 11308/16 and 11344/16, 22 March 2018]
Facts – In both cases, the applicants were members of the Twelve Tribes Church, a religious community where it was alleged various forms of corporal punishment were used in the upbringing of children. The domestic court received video footage which demonstrated such treatment, although none of the applicants were shown.
In Wetjen and Others, a preliminary investigation was initiated in which witnesses confirmed corporal punishment was used in the upbringing of children in the community. Subsequently, the domestic court made an interlocutory order withdrawing the applicant parents’ rights to decide where their children should live, and to take decisions regarding the children’s health, schooling and professional training, and transferred those rights to a youth office. The children were also taken into care on the basis that there was a reasonable likelihood that they would be subjected to corporal punishment.
Upon judicial review the interlocutory order was upheld. The court of appeal affirmed that it had been necessary to take the children out of the community and that there had been no other less infringing measure which ensured that the children would not be harmed.
In Tlapak and Others, the court of appeal upheld an order by the family court in main proceedings transferring the parents’ right to decide where their two daughters should live and to take decisions regarding their health and schooling to the youth office. It found that the parents would continue to use corporal punishment on the children in the future since that parenting method was already firmly established and that no less severe measures were available as the parents had already left Germany with their son and refused to return to live there permanently, thus making it impossible for the authorities to provide sufficient support or to effectively monitor the position.
In the Convention proceedings, the applicants in both cases complained that there had been procedural failings by the domestic courts and that the measures constituted, inter alia, a violation of the right to respect for their family life, under Article 8 of the Convention.
Law – Article 8
(a) Wetjen and Others (interlocutory proceedings): The interlocutory order and the withdrawal of some parental rights constituted an interference with the applicants’ right to respect for their family life. However, the interference was in accordance with the law and pursued a legitimate aim, namely, protecting the “health or morals” and the “rights and freedoms” of the children.
In order to avoid any risk of ill-treatment and degrading treatment of children, the Court considered it commendable for member States to prohibit in law all forms of corporal punishment of children (German law contained such a prohibition) and to enforce such provisions by proportionate measures. It therefore found that the risk of systematic and regular caning had constituted a relevant reason to withdraw parts of the parents’ authority and to take the children into care. The domestic courts had complied with the procedural requirements implicit in Article 8 and their conclusions – that caning was or could be used by the applicant parents and that the applicant children would be at risk of being caned – were based on a sufficient factual foundation and were not arbitrary or unreasonable. The withdrawal of parental authority was limited to areas that were strictly necessary and to applicant children that were of an age where corporal punishment could be expected and were therefore in a real and imminent risk of degrading punishment.
In addition the Court emphasised the importance of the domestic courts giving detailed reasons why no other option was available to protect the children which entailed less of an infringement of each family’s rights. They found that the parents had not shown any willingness to refrain from disciplining the children and that greater assistance from the youth office would not ensure their safety at all times. Moreover, even if the parents were willing to refrain from corporal punishment and able to resist pressure from the community, they would not be able to ensure that other community members would not cane the children when supervising them. The Court agreed any assistance by the youth office could not have effectively protected the children, as corporally disciplining the children was based on their unshakeable dogma.
In sum, there were “relevant and sufficient” reasons for the measures. Based on fair proceedings, the domestic courts had struck a balance between the interests of the applicant children and those of the applicant parents which aimed at protecting the best interests of the children and did not fall outside the margin of appreciation granted to the domestic authorities.
Conclusion: no violation (unanimously).
(b) Tlapak and Others (main proceedings): The domestic courts had given detailed reasons why there was no other option entailing less of an infringement of each family’s rights available to effectively protect the children. Moreover, the court of appeal had correctly pointed out that in the situation the parents had created by leaving the country during the proceedings, the detriment to the best interests of the children could no longer be averted by more lenient measures since the competent authorities would not be able to sufficiently monitor and enforce such measures.
Conclusion: no violation (unanimously).
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