Hostname: page-component-848d4c4894-p2v8j Total loading time: 0.001 Render date: 2024-05-19T13:28:03.323Z Has data issue: false hasContentIssue false
  • English
  • Français

Family Matters: European Court of Human Rights Finds German Parenting Rights Decisions to be in Violation of Article 8 of the Convention

Published online by Cambridge University Press:  06 March 2019

Cristina Hoss

Extract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

The fourth section of the, European Court of Human Rights (ECHR) in Strasbourg, in a judgment from 26 February 2002, held that the German authorities, in a case involving the revocation of parenting rights, violated Article 8 of the European Convention on Human Rights. The circumstances of the case are compelling: the painful separation of parents and children ordered by the German authorities in the interests of the children, followed by several years of hard-fought litigation as the parents struggled to reestablish their parenting rights over their children and to restore their natural family. The Court concluded that the interference in the right of private and family life was not proportionate to the legitimate aim pursued by the German authorities.

Type
Research Article
Information
German Law Journal , Volume 3 , Issue 4 , April 2002 , E7
Copyright
Copyright © 2002 by German Law Journal GbR 

References

(1) ECHR, 26 February 2002, Kutzner v. Germany, Request no. 46544/99. Only the French version of the judgment is available under http://hudoc.echr.coe.int.Google Scholar

(2) The parents based their application on Articles 6 and 8 of the Convention. The Court, however, limited its ruling, finding only a violation of Article 8. Article 6 reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …” 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.”Google Scholar

(3) “… die Kindeseltern sind intellektuell nicht in der Lage, ihre Kinder ordnungsgemäß zu erziehen“.Google Scholar

(4) Section 1666 Civil Code [Jeopardy to the welfare of the child]: Google Scholar

1. If the physical, mental or spiritual welfare of the child is in jeopardy due to the abuse of parental care, neglect toward the child, by reason of failure of the parents without fault, or because of the conduct of a third person, the Guardianship Court shall, if the parents are unwilling or unable to avert jeopardy, take steps necessary for the elimination of the jeopardy. The Court may take steps which are effective also against a third person.Google Scholar

2. The Court may substitute declarations of the parents or of one of the parents.Google Scholar

3. The Court may also deprive either parent of the care of property if he violated the right of the child to receive maintenance and there is reason to fear that the future maintenance is in jeopardy.Google Scholar

Section 1666a Civil Code [Separating the child from the parental family; total deprivation of the care for the person]: Google Scholar

1. Measures which involve the separation of the child from parental family, are only permissible, if the jeopardy may not be countered in another manner, even with public assistance.Google Scholar

2. The complete care for the person may only be withdrawn, if other measures failed or if there is reason to assume that they are not adequate for the avoidance of the jeopardy.Google Scholar

[Translation: S. L. Goren, The German Civil Code, 1994].Google Scholar

(5) Kutzner, paras 54 to 55.Google Scholar

(6) Cf. note 3, Section 1666a of the German Civil Code.Google Scholar

(7) Kutzner, para. 56. Citing Mc Michael v. UK, 24 February 1995, A No. 307-B, p. 55 para. 87; Ignaccolo-Zenide v. Rumania, Request No. 31679/96, para 99.Google Scholar

(8) See also, Frowein/Peukert, EMRK Kommentar, p. 349.Google Scholar

(9) Kutzner, para 61.Google Scholar

(10) Id., para. 65.Google Scholar

(11) Id., para. 60.Google Scholar

(12) Id., para 70.Google Scholar

(13) Id., para. 76.Google Scholar

(14) Id., para. 75.Google Scholar

(15) Id., para. 81.Google Scholar

(16) ECHR (Fourth Section), Sommerfeld v. Germany, 11. October 2001, EuGRZ 2001, 588. ECHR (Fourth Section), Sahin v. Germany, 11. October 2001, EuGRZ 2002, 25.Google Scholar

(17) Section 1705 [Parental authority of the mother]: Google Scholar

The illegitimate child is placed under the parental authority of the mother as long as he is minor. The provisions on parental authority over legitimate children apply mutatis mutandis to the relationship between the illegitimate child and his mother, to the extend that the provisions of this title do not indicate otherwise.Google Scholar

Section 1711 [Personal contact between father and he child]: Google Scholar

1. The person who is entitled to care for the person of the child decides the nature of the contact between a child and his father. (…) Google Scholar

2. If the contact with the father serves the welfare of the child, the Guardianship Court may rule that the father be entitled to personal contact with the child. (…) Google Scholar

(18) Sahin, para. 61.Google Scholar

(19) Cf. Benda, E., Verkehrtes Verkehrsrecht, EuGRZ, 2002, p. 1 seq.Google Scholar