Case of European Court of Human Rights, March 22, 2018 (case WETJEN AND OTHERS v. GERMANY)

Defense:GERMANY
Resolution Date:March 22, 2018
SUMMARY

Struck out of the list (Art. 37) Striking out applications-{general};(Art. 37-1) Striking out applications;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

 
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FIFTH SECTION

CASE OF WETJEN AND OTHERS v. GERMANY

(Applications nos. 68125/14 and 72204/14)

JUDGMENT

STRASBOURG

22 March 2018

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 Wetjen and Others v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Erik Møse, President,Angelika Nußberger,André Potocki,Yonko Grozev,Síofra O’Leary,Gabriele Kucsko-Stadlmayer,Lәtif Hüseynov, judges,and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 20 February 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in two applications (nos. 68125/14 and 72204/14) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eight applicants (“the applicants”), whose names, dates of birth and nationalities are shown on the list appended to this judgment. The applications were lodged on 17 October and 14 November 2014 respectively.

  2. The applicants were represented by Mr H. Forkel, a lawyer practising in Dresden, and Mr A. Garay, a lawyer practising in Paris. The German Government (“the Government”) were represented by their Agents, Mr H.‑J. Behrens and Mrs K. Behr, of the Federal Ministry of Justice and Consumer Protection.

  3. Relying on Article 8 of the Convention, the applicants alleged that the withdrawal of parts of their parental authority and the subsequent separation of the parents and their children had been disproportionate. Invoking Articles 6 and 8 of the Convention they further complained that the underlying proceedings before the family courts had been excessively long, unfair and that the decisions had not been based on a sufficient factual basis, but on general considerations about their religious community. Under Article 9 and 14 in conjunction with Article 8 of the Convention and under Article 2 of Protocol No. 1 the applicants complained that they had been prevented from raising their children in compliance with their religious beliefs; that their religious beliefs were the reason for the withdrawal of parts of their parental authority and that the court proceedings had led to the stigmatisation of their religious community.

  4. On 16 January 2016 the applications were communicated to the Government in respect to Article 8 of the Convention.

  5. Written submissions were received from ADF (Alliance Defending Freedom) International, which had been granted leave by the Vice‑President to intervene as a third party in both cases (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court).

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  6. The applicants in application no. 68125/14 (Wetjen) are a mother and father and their son, born in 2011. The applicants in application no. 72204/15 (Schott) are a mother and father and their three daughters, born in 1999, 2002 and 2004 respectively. All the applicants are members of the Twelve Tribes Church (Zwölf Stämme) who lived in a community of around 100 members of the church in Klosterzimmern. A second community with around 20 members was located in the nearby village of Wörnitz.

    A. Background to the case

  7. In 2012 the press reported about the Twelve Tribes Church and its position on the right of parents to apply corporal punishment, especially caning. Furthermore, statements by a former member of the community were published, confirming that children had been punished with rods.

  8. In 2012 and 2013 the local youth office (Jugendamt) visited the community, and its spokespersons were invited to a meeting at the Bavarian Ministry of Education. Corporal punishment and the issue of compulsory schooling were discussed at the meeting.

  9. On 16 August 2013 the local youth office and the Nördlingen Family Court received video footage from a television reporter showing ten different instances of corporal punishment in the community. The footage, filmed with a hidden camera, showed the caning of various children between the ages of three and twelve. None of the applicants was shown in the video footage. According to the television reporter, the person who carried out the punishment was not, in most cases, a parent of the child being punished.

    B. Taking the children into care

  10. After receiving the video footage, the Family Court initiated a preliminary investigation and on 21 August 2013 heard six witnesses, all former members of the Twelve Tribes community. The witnesses confirmed that various forms of corporal punishment were used in the upbringing of children in the community. These included swaddling (pucken) a child from birth until the age of around three, involving wrapping the child up very tightly to suppress any urge to move. Starting from the age of about three, children would be disciplined by caning, which lasted until about the age of twelve. The witnesses further stated that children were punished by whichever adult was supervising the children at the time and that parents were pressured by the community to conform to the rules of upbringing.

  11. On 1 September 2013 the Nördlingen Family Court, upon an application by the competent youth office, made an interlocutory order regarding all children in the Twelve Tribes community, including the applicant children. The court withdrew the applicant parents’ rights to decide where their children should live (Aufenthaltsbestimmungsrecht), and to take decisions regarding the children’s health (Gesundheitsfürsorge), schooling and professional training, and transferred those rights to the youth office. The court based its decision on its finding that there was a reasonable likelihood that the children would be subjected to corporal punishment. The court also ordered that the youth office, when taking the children into care, could have recourse to compulsion, request support from the police and be permitted to enter the premises of the Twelve Tribes community in Klosterzimmern.

  12. On 5 September 2013 the youth office took the community’s children into care. They were supported by around 100 police officers, who, at the same time, searched the community’s premises under an order from the Augsburg public prosecutor’s office and seized seven wooden rods.

  13. The applicant children were subsequently examined but no physical signs of abuse or beating were revealed.

  14. The applicants B., C. and I. Schott were moved to a children’s home. Since the applicant J. Wetjen was then only two years and five months old and was still being breastfed, he and his mother were housed together temporarily in a home under supervision. On 9 December 2013 J. Wetjen was taken from his mother and placed in a foster family. The mother had been ordered to wean her son two months beforehand. However, since she refused, the son was taken from her by force.

    C. Review of the interlocutory order

  15. Application no. 68125/14 (Wetjen)

  16. The Family Court examined the applicant parents on 10 October 2013. The parents stated that they had restrained their son by swaddling, but denied that this amounted in any way to child abuse. They refused to answer any questions about caning, but quoted passages from the Bible, which justified such a practice.

  17. On 29 November 2013 the Family Court upheld its interlocutory order of 1 September 2013. On the basis of Articles 1631, 1666 and 1666a of the German Civil Code (see paragraphs 30–32 below), the court stated in its reasoning that there was a high probability that leaving the son in the community or returning him there would lead to him being subjected to corporal punishment, thus infringing his personal dignity and integrity, values protected by the German Basic Law (see paragraphs 26 and 27 below). It further found that the use of corporal punishment from such an early age would prevent the free development of his personality and instead teach unconditional obedience. The court based its assessment on the submissions of the parents, in which they had confirmed that they had disciplined their son. The court found that the statements by other children in parallel proceedings, the video footage and the statements of other witnesses confirmed that the disciplining of children in the community would include corporal punishment. Therefore, it was necessary to take the son out of the community as the option which least infringed the family’s rights, but which ensured that he would not be caned or harmed in any other way. It held that even if the parents might be able to resist pressure from the community, they would not be able to ensure that other community members would not cane the child when supervising him. The court also initiated the main custody proceedings and commissioned a psychologist’s expert opinion on the family.

  18. On 28 January 2014 the applicant parents were examined by the Munich Court of Appeal. The father stated that, in his opinion, a mild caning constituted neither violence nor child abuse. Both parents also continued to refuse to answer any questions about whether their son had been caned previously. The court decided against examining the applicant child owing to his age and the mental stress that a hearing would cause and instead heard the guardian ad litem (Verfahrensbeistand).

  19. On 5 March 2014 the Munich Court of Appeal upheld the Family Court’s decision in essence. It overturned the decision on the withdrawal of the parents’ right to take decisions regarding their son’s schooling and professional training, because, owing to his age, there was no need for the withdrawal of such a right in an interim decision. The Court of Appeal found it established that the parents considered caning to be part of their son’s upbringing and that the son would be caned if returned to his parents and the community. It based its finding on the statements of the parents and witnesses...

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