1. INTRODUCTION

Article 8(1) of the European Convention on Human Rights (ECHR) grants the right to respect for one’s private and family life. Parents are given the right to decide autonomously on how to bring up their children and how to educate them. In this regard, Article 8(1) ECHR is complemented by Article 2 Protocol 1 to the Convention, which obliges the Contracting States to respect the right of parents to ensure, for their children, an education in conformity with the parents’ religious and philosophical convictions.

Parents’ autonomy in raising their children, however, faces its limits in the children’s rights to physical and psychological integrity. If their integrity is threatened by how their parents raise them, the Contracting States have a positive obligation to intervene in order to protect the children from their own parents. Such measures can be necessary when parents are unable, or unwilling, to provide their children with a family life that respects the children’s rights and best interests. Accordingly, child protection measures can range from supportive measures that aid the parents in raising their child, to coercive measures enacted against the will of the parents.

If other measures fail, states can partially or fully withdraw parents’ custody over their children, and transfer the children into the care of family members, foster parents or other institutions. Such a family separation constitutes a grave interference with the respect for one’s family life, as protected by Article 8(1) ECHR. Like any other interference with Article 8(1) ECHR, such a family separation can only be justified under the conditions set out in Article 8(2) ECHR. This latter provision states that interferences by a public authority in the right to respect for one’s family life have to be in accordance with the law, and have to be necessary in a democratic society for the protection of certain interests, including the protection of the rights and freedoms of others.

The jurisprudence of the European Court of Human Rights (ECtHR) has spelt out these general conditions in detail for cases of family separation, and has established strict standards. In what follows, some of the standards set by the ECtHR will be highlighted, and how German law implements these standards will be analysed.