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 Post subject: ECHR: Haase Mot Tyskland - 8 April 2004
PostPosted: Tue Oct 14, 2008 5:15 pm 
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 Post subject: CASE OF HAASE v. GERMANY App. no. 11057/02
PostPosted: Tue Oct 14, 2008 5:16 pm 
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CASE OF HAASE v. GERMANY
(Application no. 11057/02)
JUDGMENT
STRASBOURG
8 April 2004
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.

HAASE v. GERMANY JUDGMENT 1

In the case of Haase v. Germany,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Mr I. CABRAL BARRETO, President,
Mr G. RESS,
Mr L. CAFLISCH,
Mr P. KURIS,
Mr B. ZUPANCIC,
Mrs M. TSATSA-NIKOLOVSKA,
Mr K. TRAJA, judges,
and Mr V. BERGER, Section Registrar,
Having deliberated in private on 23 January 2003 and 6 April 2004,
Delivers the following judgment, which was adopted on the
last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 11057/02) 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 two German nationals, Mrs Cornelia Haase and
Mr Josef Haase (“the applicants”), on 6 March 2002.
2. The applicants, who had been granted legal aid, were represented by
Mr P. Koeppel, a lawyer practising in München. The German Government
(“the Government”) were represented by their Agent, Mr K. Stoltenberg,
Ministerialdirigent.
3. The applicants alleged, that the suspension of their parental
responsibility for their four children and the three children of Mrs Haase's
first marriage and the prohibition of access to all the children amounted to a
breach of Article 8 of the Convention They also complained about the
unfairness of the court proceedings under Article 6 § 1 of the Convention.
4. The application was allocated to the Third Section of the Court
(Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that
would consider the case (Article 27 § 1 of the Convention) was constituted
as provided in Rule 26 § 1.
5. By a decision of 23 January 2003, the Court declared the application
admissible.
6. The applicants and the Government each filed observations on the
merits (Rule 59 § 1).

2 HAASE v. GERMANY JUDGMENT

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Factual background

7. The applicants were born in 1968 and 1967 respectively and live in
Altenberge (Germany).
8. Mrs Haase is the mother of twelve children. While she was married to
M., she gave birth to seven children, Alexander, born in 1988, Ramona,
born in 1987, Sascha, born in 1986, Matthias, born in 1985, Timo, born in
1990, and the twins Lisa-Marie and Nico, born in 1992. With her second
husband, Mr Haase, she had five children, Anna-Karina born in 1995,
Sandra-Kristin born in 1998, Maurice-Pascal born in 2000, and Laura-
Michelle born on 11 December 2001. In December 2003 Mrs Haase gave
birth to her last child.
9. In 1993 the relations between Mrs Haase and M. deteriorated. In
April 1993 M. instituted divorce proceedings and requested to be afforded
parental rights over the children. By a decision of 29 October 1993 the
Münster District Court (Amtsgericht) afforded parental rights over the three
younger children, Timo, Lisa-Marie and Nico, to Mrs Haase and over the
four older children to her first husband. The Münster Youth Office appealed
against the decision, but withdrew the appeal in September 1994. In
December 1993 Mrs Haase moved with the three children to her present
husband. On 18 November 1994 the Münster District Court pronounced
Mrs Haase's divorce from her first husband. The applicants have been
married since December 1994.

B. The proceedings withdrawing the applicants' parental
responsibility

10. In February 2001 Mrs Haase applied to the Münster Youth Office
(Amt für Kinder, Jugendliche und Familien - KSD) for family aid. In order
to be granted the aid, the applicants agreed that their family situation be
assessed by a psychological expert. In May 2001 the Municipal Social
Service instructed G. to draw up an expert report. The expert met Mrs Haase
and three of her children on 26 September and 11, 15 17 and
22 October 2001 at the applicants' home.
11. Being of the opinion that the questions put to the children by the

expert were irrelevant for the purposes of family aid and having regard to
the expert's objection to Mrs Haase attending the meetings with the

HAASE v. GERMANY JUDGMENT 3

children's teachers, the applicants refus ed to co–operate with the expert any
longer.
12. On 17 December 2001 the expert submitted his report to the Münster
Youth Office. According to this report, the deficiencies in the children's care
and the home conditions risked jeopardising their development seriously.
There was a damaging cycle of events with the applicants being
unreasonably harsh with their children on repeated occasions and having
beaten them. The children needed to be in a secure long-term placement and
any further contact between them and the applicants would have to be
avoided.
13. On the same day the Youth Office applied to the Münster District
Court for an interim injunction (einstweilige Anordnung) withdrawing the
applicants' parental rights over the seven children, namely their four
children, Anna-Karina, Sandra-Christine, Maurice-Pascal and Laura-
Michelle, and Mrs Haase's three children born during her first marriage,
namely Timo, Nico and Lisa-Marie.
14. On that very day, i. e. on 17 December 2001, the Münster District
Court, without hearing the parents or their children, issued the requested
interim injunction. The applicants were ordered promptly to hand over the
children to the Münster Youth Office. The officer in charge of the
enforcement of the decision was authorised to fetch the children, if
necessary, by using force. Relying notably on the findings of the expert
report, the District Court found that the parents' inability to give the children
satisfactory care and education and an abusive exercise of parental authority
jeopardised the physical, mental and psychological well-being of all of the
children to an extent that their separation from the applicants appeared to be
the only possible solution to protect them. The District Court referred to the
relevant provisions of the Civil Code (Articles 1666 and 1666a - see the
section on the relevant Domestic Law below).
15. By a decision of 18 December 2001 the Münster District Court
completed its decision of 17 December 2001 prohibiting all access between
the applicants and their children and the three children of the first marriage,
Timo, Nico and Lisa-Marie. The whereabouts of the children were not to be
communicated to the applicants. The District Court further prohibited all
access between the four other children of the first marriage and Mrs Haase.
She was also forbidden to approach nearer than 500 m to the four other
children's residence and their schools. The District Court considered that the
expert opinion was sufficient evidence to show that the separation of the
parents from their children was necessary for the protection of the children.
It had further been shown that the parents would object and try by all means
to exercise pressure upon the children. In order to avoid stress to the
children, these measures were necessary in their best interests. The parents
were insistently requested to realise their own deficiencies in respect of the
care and the physical and psychological well-being of the children and

4 HAASE v. GERMANY JUDGMENT

taking in particular into account the clearly expressed need of the children
for a change of their situation. The parents were invited to accept - at least
for the time being - the measures taken and to contribute as far as possible
to a pacification of the general situation. This was only possible if the
parents accepted the existing circumstances. The approach of the Youth
Office met in part the expressly stated wishes of the children. The District
Court concluded that the momentarily inevitable measures were
proportional to the urgent needs and the objective interests of all of the
children.
16. The children were taken on the same day about noon from three
different schools, a nursery and from home and were placed in three foster
homes. The seven days old youngest daughter, Laura-Michelle, was taken
from the hospital and is since that time living in a foster family.
17. In a letter of 18 December 2001 Dr W., gynaecologist and head
physician at the Johannesstift hospital in Münster, complained to the
Münster District Court of the conduct of the authorities. He stated that,
according to a telephone call of 17 December 2001, the six children of
Mrs Haase as well as the new born child in the hospital were to be removed
from their mother without her knowledge. His patient was to be informed of
the measure after her child had been taken from the nursery. Staff members
were asked to take the child downstairs to the hospital's entrance and to
hand it to a taxi.
He, as the head physician, and the medical hospital staff were surprised
and shocked by the short term information and considered this conduct as
an affront in respect of both Mrs Haase and the medical staff. Since 1992
Mrs Haase had been taken care of by the medical staff of the hospital. She
had always given the impression of a highly responsible person. She came
regularly to the preventive medical check-ups during her pregnancy. When
she was accompanied by her children, the children behaved well, were
friendly and well–educated. There were no signs that they were in any way
neglected or ill- treated.
18. On 19 December 2001 the Youth Office informed the applicants that
the children were granted financial assistance in an amount of 4,000 EUR
per month and that the parents had to contribute to these fees according to
their financial means.
19. On 19 December 2001 the applicants appealed against the decision
of the District Court of 17 December 2001. They submitted that it was
difficult to understand that in the context of family aid an expert opinion on
the parents' ability to bring up their children had been drawn up and that
they had not been informed about this opinion. The contested decision was
unexpected and was given at a moment when Mrs Haase was in a critical
state of health, having given birth to her daughter a week before. They
proposed witnesses who would confirm that the children had not been illtreated,
but were educated with love and understanding.

HAASE v. GERMANY JUDGMENT 5

20. On 7 January 2002 the District Court held a hearing in the presence
of the applicants assisted by a lawyer, Mrs Haase's first husband,
representatives of the Münster Youth Office, a representative of a nursery
and the expert G. The four witnesses of the applicants' own choosing were
not heard and had to leave the court room.
The District Court instructed G. to proceed with the assessment of the
remaining children and to finalise his report. It further appointed a new
expert, H., to assess the applicants' capacity to educate their children.
21. In the following interviews to prepare the assessment, the applicants
asked the expert to record the interviews on a tape. Upon the expert's refusal
to do so, the applicants were unwilling to continue to co-operate with him.
22. On 1 March 2002 the Hamm Court of Appeal (Oberlandesgericht)
dismissed the applicants' appeal against the decision of 17 December 2001.
It noted that the District Court had had regard to the report submitted by the
Youth Office in connection with its request of 17 December 2001 to revoke
the applicants' parental rights and to the expert opinion submitted by G. and
that the District Court had considered that the impugned measure was
justified. The expert had concluded that the basic needs of the children were
not satisfied and that patterns of violence and a permanent shortcoming in
all the matters determined the children's day to day life. It was thus
necessary to put an end to the risk to which the well-being of the children
appeared to be exposed. A new expert opinion was to be expected by the
middle of April 2002. The Court of Appeal found that the applicants' appeal
could therefore be dismissed without holding a hearing. It was against the
best interests of the children to take them out of the new environment in
which they were building up new contacts, and to restore them to their
former family, there being the risk that they be taken in a new environment
again shortly afterwards.
23. On 8 March 2002 the applicants challenged the judge at the Münster
District Court for bias.
24. On 4 April 2002 the Federal Constitutional Court
(Bundesverfassungsgericht), sitting in a panel of three judges, dismissed the
applicants' request for an interim injunction.
The Federal Constitutional Court found that the applicants' constitutional
complaint was neither inadmissible nor manifestly ill-founded. There were
doubts in particular whether the courts had breached the applicants' right to
a fair hearing and their right to respect of their family life. However, if the
requested interim injunction would be issued and if later the constitutional
complaint had to be dismissed, the children had again to be taken from the
applicants and be placed somewhere else. Having regard to the fact that the
expert opinion was to be drawn up by mid-April 2002, the applicants could
rather be expected to await the outcome of the main proceedings than
having the children take the risk by separating them another time from their
parents. It had to be assumed that the competent courts would conduct the

6 HAASE v. GERMANY JUDGMENT

main proceedings speedily having regard to the time element in these
matters.
25. On 10 April 2002 the Münster District Court dismissed the objection
against the judge and on 11 April 2002 that against the expert G.
26. On 19 April 2002 the Münster District Court appointed a lawyer of
the Münster Bar as curator ad litem (Verfahrenspfleger) to represent the
children in the proceedings. It instructed the already appointed experts to
submit the results of their investigations obtained so far and discharged
them from any further expert activity. It appointed a new expert,
Professor K., with a view to determining whether separating the children
from the family was the only way of eliminating all danger for them.
27. On 11 June 2002 Professor K. interviewed the applicants at their
home. The interview lasted for six hours.
28. On 21 June 2002 the Federal Constitutional Court, sitting as a panel
of three judges, set aside the decisions of the Hamm Court of Appeal of
1 March 2002 and the Münster District Court of 17 December 2001 and
referred the case back to the Münster District Court.
29. Insofar as the applicants complained about the decisions of the
Münster District Court of 18 December 2001 and 7 January 2002, the
Federal Constitutional Court declared the constitutional complaint
inadmissible, since the applicants had failed to appeal against these
decisions, in accordance with Section 19 of the Act on Non-Contentious
Proceedings (Gesetz über die Angelegenheiten der freiwilligen
Gerichtsbarkeit - FGG).
30. Insofar as the constitutional complaint was admissible, the Federal
Constitutional Court considered that, in accordance with the principles
established in its case- law, the decisions of the Münster District Court and
the Court of Appeal violated the applicants' family rights as guaranteed by
Article 6 § 2 first sentence of the basic Law, taken together with Article 6
§ 3 (see the section of the Relevant Domestic Law below).
There were serious doubts whether the courts had respected the
importance of parental rights when giving their decisions and whether they
had sufficiently taken into account the principle of proportionality. The
question of whether the evidence established that there was a risk of harm to
the children had not adequately been considered. The District Court and the
Court of Appeal merely referred to the report of the Youth Office and the
expert opinion. It did not result from their decisions whether the expert's
conclusio ns were based on reliable facts. An assessment of the applicants'
submissions and considerations as to the possibility to order alternative
measures, that would not have required the total revocation of parental
rights, were missing. Both the Court of Appeal and the District Court failed
to hear the children or to provide the persons taking part in the proceedings
the opportunity to be heard.

HAASE v. GERMANY JUDGMENT 7

The measures which had been ordered led to a drastic change of the
living conditions of all the persons concerned and constituted an
interference with the parental rights of a particular high intensity. However,
no inquiries had been made, be it by telephone, before taking the decision.
No reasons were given justifying the urgency of the matter.
The Family Court had no information on the possible effects of its
decision, since the Youth Office and the expert had not commented on this
issue. When examining the advantages and disadvantages of a family
measure, it was, however, relevant to consider that a separation of the
children from their parents could jeopardise the development of the
children, in particular in their first years of life.
The courts failed further to clarify the contradiction between the findings
in the expert opinion according to which the applicants were not ready to
co-operate and the fact that Mrs Haase herself had asked to be granted
educational assistance. Furthermore there was no indication whether and to
what extent the applicants had refused any contact or help offered by the
Youth Office and it was not clear which “specific measures granting
assistance” (einzelne Jugendhilfemaßnahmen) had been carried out in the
past and why they were not successful.
The District Court should have first clarified the questions which arose
and in the meantime could have taken alternative provisional measures if
there was serious reason to believe that the welfare of the children was at
risk.
31. According to the Federal Constitutional Court, it could not be
excluded that, prior to the termination of the proceedings on the merits,
which had to be dealt with by priority, the District Court would issue
another emergency decision. If so, the District Court was directed to
examine carefully whether, in the light of the evidence obtained in the
meantime, the continued separation of the children from the applicants was
still justified and whether a repeated change of the children's place of
residence would be in their best interests. If the District Court found that the
present situation were to be maintained, it would have to consider whether
the applicants should be granted a right of access, if appropriate, restricted
or subject to conditions, and whether, by observing strictly the principle of
proportionality, the effects of such a decision should be limited in time.
32. On 13 and 14 June 2002 the children of the first marriage, Timo,
Nico, Anna-Karina and Lisa, were heard by the judge at the Münster
District Court at the respective institutions where they were placed.
33. According to the minutes of the District Court of 14 June 2002,
Timo declared that he wished to return to his parents. He knew that there
were certain reasons for placing him and his siblings in a different
environment and confirmed that he had had too much work and strain at
home. He sent his greetings to his brothers and sisters.

8 HAASE v. GERMANY JUDGMENT

34. Nico, Anna-Karina and Lisa were heard in another foster home. Nico
stated that he wished to know whether his parents and his “favourite” father
(Lieblingsvater) were allright. He asked why he could not join his
“favourite” father and whether somebody, his parents, his father or Maurice,
could not come to see him. Lisa and Anna stayed with him and, according
to them, were allright. Lisa had let him know that she too wished to return
home. He stated that was fine. Asked about his dreams, he said that he
wished to go to his “favourite” father who was very nice, better than his
stepfather. In reply to the question whether the judge should leave a
message, he dictated the following letter on a dictaphone: “Dear Sascha (his
favourite brother), (his favourite sisters Lisa and Ramona), dear Alex, what
a pity that we don't see each other ... Sascha, Matthias, Ramona, Alex, his
favourite father and his parents should come and visit him.” („Lieber
Sascha (sein Lieblingsbruder), (Lieblingsschwestern Lisa und Ramona)
lieber Alex, schade, dass wir uns nicht sehen ... Sascha, Matthias, Ramona,
Alex, sein Lieblingsvater und seine Eltern sollten ihn besuchen kommen.“)
The following letter to his mother was recorded on a dictaphone: “Dear
momma, it is a pity that you do not come and best regards from Maurice
and Sandra and Timo and Lisa. Lisa and Anna are allright. Yes and perhaps
could you come to see us? Or is that not possible? “ („Liebe Mama! Schade,
dass Du nicht kommst und liebe Grüsse von Maurice und Sandra und von
Timo und von Anna und dass es Lisa und Anna gut geht. Ja und, vielleicht:
könntet Ihr ja mal herkommen. Oder geht das nicht?“)
35. Anna-Karina stated that she felt fine. She was in the company of
Lisa and Nico. Everybody said that she should tell her parents that
everything was allright. She then added that she did not like it there.
36. Lisa-Marie regretted that “poor Sandra” was all on her own without
any member of the family. She would never bear this. She had to protect
Nico and Anna. That was her duty as the elder sister. Nico was beaten very
often in that place. She did not know the reason. In reply to a question, she
stated that she was doing her homework thoroughly and that she was doing
well in school. At home she had almost fallen asleep when doing her
homework. At the request what the judge could transmit, she said that she
did not like the place and that she wished to return home. However, the
educators did not believe her. She did not really like them. She did not want
to go to another institution. She wished to go home. If she were not allowed
to go home, she should at least be authorised to see everybody, her brothers
and sisters, parents and stepfather. She missed taking Maurice to bed
sometimes. Having been told that Nico wished to return to his “favourite”
father, Lisa-Maria replied that, unlike Nico, she loved both her father and
her stepfather.
37. On 24 June 2002, as a consequence of the decision of the Federal
Constitutional Court, the Münster District Court set down for hearing on
1 July 2002 the request of the Münster Youth Office of 17 December 2001

HAASE v. GERMANY JUDGMENT 9

to provisionally revoke the parental rights of the applicants over the
children. It transferred to the Youth Office the right to decide where the
children should live (Aufenthaltsbestimmungsrecht). The District Court
found that the best interests of the children did not require a modification of
the present situation before a decision on the merits was given. The District
Court considered that its decision of 18 December 2001 prohibiting the
applicants all access to the children was still relevant, since it had not been
set aside by the Federal Constitutional Court.
38. On 1 July 2002 the Münster District Court held a hearing attended inter
alia by the applicants assisted by a lawyer, Mrs Haase's first husband, the
curator ad litem, a lawyer and representatives of the Münster Youth Office,
the experts G. and Professor K. and the children's paediatrician Dr J.
Professor K. gave details of her visit to the applicants' home on
11 January 2002 and resumed the content s of the interview. Having studied
the extensive files concerning the applicants and G.'s report, Professor K.
could not confirm that the findings in the report were erroneous. She
expessed the view that the children should not be returned to the applicants.
The children's paediatrician, Dr J., stated that all children had been his
patients since their birth except the daughter born in December 2001.
Although he knew about the children's problems, in particular the
difficulties with Nico, the applicants made a quite positive impression on
him. It was a big family with many children. However, the applicants were
loving parents who took great care of their children. There was no
indication that the children had been beaten or otherwise abused.
The curator ad litem was opposed to contacts between the applicants and
the children.
39. By an interim injunction of the same day, namely 1 July 2002, the
Münster District Court provisionally transferred the custody
(Personensorge) over the children to the Münster Youth Office and
confirmed its decision of 18 December 2001. The expert was instructed to
complete her report. She was requested to comment in particular on the
questions as to whether, in the best interest of the children, it was necessary
to maintain the access prohibition, as to whether to grant the children access
to the elder children of the first marriage, Matthias, Sascha, Ramona and
Alexander, and if adequate, in which way such contact could be arranged
while keeping the children's place of residence secret.
40. The District Court relied notably on the findings of the expert G. that
the separation of the applicants from their children had to be maintained.
The applicants were incapable of bringing up their children because of their
own basic and irreparable educational deficiencies and their abuse of
parental authority. The children were emotionally disturbed and presented
unusual patterns of behaviour. They had been beaten and locked up.
Furthermore the four elder children of the first marriage had approved the
separation of the younger children from their mother and had refused any

10 HAASE v. GERMANY JUDGMENT

contact with her. The sole purpose of Mrs Haase giving a positive
impression of her was to obtain support from others. However, any such
support was foredoomed.
The District Court noted that Professor K. had not yet issued her report.
However, she had confirmed the findings of the expert G. and had stated at
the hearing of 1 July 2002 that there was no alternative to separating the
children from the applicants. According to her, Mrs Haase had never shown
willing to call her own behaviour into question. She satisfied exclusively
her own needs and refused to accept educational assistance with a view to
reducing her own deficienc ies. In fact, she had admitted not having
undergone a therapy in 1994. Professor K. had found that G.'s expert
opinion could not be objected to.
The District Court considered that the numerous written statements of
witnesses submitted by the applicants confirming that the children had not
been beaten or ill- treated did not constitute sufficient evidence in their
favour. Harm, such as verbal cruelty, could be of a psychological nature.
The statement made by Lisa-Maire that she wished to return to the
applicants, did not reflect her real intention, but resulted from a conflict of
loyalty.
The District Court further compared the situation described in an expert
report drawn up in 1993 with the present situation: Mrs Haase was always
well-dressed while her husband looked tired and worn out. It concluded that
Mrs Haase was not aware of her problems. She aggravated with each new
pregnancy the emotional deficiencies of the children. This had been
confirmed by Professor K. after a discussion with the applicants on
11 June 2002.
The District Court affirmed that its decision of 17 December 2001 was
based on its experience in cases where coercive measures had to be taken.
Had the parents been warned of the requested measure, they would have
offered resistance, as was shown by their own and the excessive reaction of
the media in this case. An enforcement of the court decisions with the
intervention of the authorities and the police would have been contrary to
the best interests of the children.
41. On 16 July 2002 the applicants appealed against this decision to the
Hamm Court of Appeal.
42. On 20 August 2002 the applicants challenged Professor K. for bias.
They complained that she intentionally delayed the preparation of her expert
report in order to separate the children from their parents for a longer
period. She could not be relied upon to act in the best interests of the
children. Without having seen them, she had recommended at the hearing
before the District Court of 1 July 2002 that they be separated from the
applicants. Her unfriendly conduct vis-à-vis the applicants, when
interviewing them at their home on 11 June 2002, and the reference to files

HAASE v. GERMANY JUDGMENT 11

dating from Mrs Haase's divorce problems in 1993 confirmed the view that
she was not impartial.
43. On 18 September 2002 the applicants challenged the judge at the
Münster District Court for bias. They referred to previous decisions given
by that judge in favour of the Youth Office, allegedly in contrast to expert
recommendations.
On 23 September 2002 the judge declined to recuse himself.
On 30 September 2002 the applicants' lawyer again challenged the judge
at the District Court and Professor K. for bias.
On 7 October 2002 the Münster District Court dismissed the challenge of
the judge on the ground that the applicants' allegations were
unsubstantiated.

C. Subsequent developments

44. On 10 December 2002 the Hamm Court of Appeal dismissed the
applicants' appeal against the decision of the Münster District Court of
7 October 2002.
On 19 December 2002 the Münster District Court rejected the challenge
for bias in respect of Professor K.
45. On 13 January Professor K. submitted her report. She confirmed her
previous conclusions.
46. On 19 February 2003 the Federal Constitutional Court, sitting as a
panel of three judges, refused to entertain the applicants' constitutional
appeal against the decisions of 10 December 2002 and 7 October 2002.
47. On 18 February 2003 the Münster District Court held a hearing. The
applicants, the Youth Office, the curator ad litem and the experts G. and K.
were present. The curator ad litem declared that the children had adapted to
the changed living conditions and appeared to be comfortable with the new
situation.
48. On 4 March 2003 the three children Matthias, Sascha and Alexander
living with their father were heard separately by the Münster District Court.
They were opposed to seeing their mother.
49. By a decision on the merits of 6 March 2003, the Münster District
Court withdrew the applicants' parental rights over their four children and
the three children of the first marriage previously living with them and
prohibited access to them until June 2004. It relied on Articles 1666, 1666a
and 1684 § 4 of the Civil Code (see the paragraphs 53 - 55 below). The
authorities were compelled to take the contested measures, which were
justified under Article 6 § 3 of the Basic Law, and necessary in a democratic
society for the protection of the health and the rights of the children within
the meaning of Article 8 § 2 of the Convention. It found that the domestic
situation was difficult and that the children were in danger. The applicants,
in particular Mrs Haase, were inflexible and incapable of understanding the

12 HAASE v. GERMANY JUDGMENT

children's needs and with her it would be impossible to implement any
educative measures. The conditions in which the children were brought up
were highly unsatisfactory. The children had made positive progress in the
foster homes in which they were placed, had gained in confidence and
demonstrated less behavioural disorders.
50. By a separate decision of the same day the Münster District Court
prohibited Mrs Haase to get into contact with her four eldest children,
Matthias, Sascha, Ramona and Alexander before the end of 2004,
respectively, as regards Mrs Haase's eldest son Matthias, before he would
have reached majority.
51. The applicants appealed against the above decisions.

II. RELEVANT DOMESTIC LAW

52. Article 6 of the Basic Law (Grundgesetz) reads as follows:
“...

(2) Care and upbringing of children are the natural right of the parents and a duty
primarily incumbent on them. The state watches over the performance of this duty.

(3) Separation of children from the family against the will of the persons entitled to
bring them up may take place only pursuant to a law, if those so entitled fail in their
duty or if the children are otherwise threatened with neglect.

53. Article 1666 of the Civil Code (Bürgerliches Gesetzbuch) lays down
that the family courts are under an obligation to order necessary measures if
a child's welfare is jeopardised (Gefährdung des Kindeswohls).
54. The first sub-paragraph of Article 1666a provides that measures
intended to separate a child from its family are permissible only if it is not
possible for the authorities to take any other measure to avoid jeopardising
the child's welfare.
The second sub-paragraph of Article 1666a provides:
“Full [parental] responsibility may only be withdrawn if other measures have
proved ineffective or have to be regarded as insufficient to remove the danger [Die
gesamte Personensorge darf nur entzogen werden, wenn andere Maßnahmen erfolglos
geblieben sind oder wenn anzunehmen ist, dass sie zur Abwendung der Gefahr nicht
ausreichen].”
55. According to Article 1684 § 4 of the Civil Code, the family court can
restrict or suspend the right of access if such a measure is necessary for the
child's welfare. A decision restricting or suspending that right for a lengthy
period or permanently may only be taken if otherwise the child's well-being
would be endangered. The family courts may order that the right of access
be exercised in the presence of a third party, such as a Youth Office
authority or an association.

HAASE v. GERMANY JUDGMENT 13

THE LAW

I. PRELIMINARY ISSUES

A. New material submitted by the parties

56. The Government contended that in its decision on the admissibility
of the application the Court had considered a number of decisions submitted
subsequent to the decision of the Federal Constitutional Court of
21 June 2002 without, however, having invited them to submit additional
observations in this respect.
57. As the Court has already had reason to observe (see Sahin v.
Germany [GC], no. 30643/96, § 43, 8 July 2003; and K. and T. v. Finland,
no. 25702/94 , § 147, ECHR 2001-VII), it is not prevented from taking into
account any additional information and fresh arguments in determining the
merits of a complaint, if it considers them relevant (see, for instance,
mutatis mutandis, Olsson v. Sweden (no. 1), judgment of 24 March 1988,
Series A no. 130, pp. 28-29, § 56; McMichael v. the United Kingdom,
judgment of 24 February 1995, Series A no. 307-B, p. 51, § 73).
Accordingly, the Court is not precluded from taking cognisance of this
material in so far as it is judged to be pertinent.
58. On the other hand, the Court emphasises that the present judgment is
not concerned with the decision on the merits rendered by the Münster
District Court on 6 March 2003. This issue did not form part of the
application which it declared admissible.

B. The Government's preliminary objections

1. Non-exhaustion of domestic remedies

59. The Government raised a preliminary objection of failure to exhaust
domestic remedies, as required by Article 35 of the Convention, both in
respect of the decision of the Münster District Court of 18 December 2001
concerning the denial of access to the children and the decision on the
merits of the same court of 6 March 2003 against which appeal proceedings
were still pending. They referred to the decision of the Federal
Constitutional Court of 21 June 2002 by which the applicants' constitutional
complaint, in so far as it was directed against the decision of
18 December 2001, was declared inadmissible, since the applicants had
failed to appeal against it, in accordance with Section 19 of the Act on Non-
Contentious Proceedings (see paragraph 28 above).

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60. The applicants admitted that they had not appealed against the
decision of the Münster District Court of 18 December 2001. In their view,
this omission was irrelevant since they had appealed against the decision by
which their parental rights had been revoked. Parental rights included the
right of access to the children. Furthermore, they could not be expected to
await the outcome of lengthy court proceedings, including a complaint to
the Federal Constitutional Court, having regard to the danger that any
procedural dela y would result in the de facto determination of the issue
submitted to the court. An irreversible alienation and separation from the
children, in particular, the younger ones, would be the consequence.
They applicants also pleaded their financial difficulties.
61. The Court recalls that in its decision on the admissibility of the
application it has joined the question of non-exhaustion of
domestic remedies to the merits. This does not mean, however, that the
Court may not examine again issues relating to the admissibility (see Article
35 § 4 of the Convention which empowers the Court to “reject any
application which it considers inadmissible ... at any stage of the
proceedings”).
The Court notes that the Government raised the objection as to the nonexhaustion
of domestic remedies at the stage of the initial examination of
admissibility. They are therefore not estopped from pleading it again.
62. The Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges applicants to use first
the remedies that are normally available and sufficient in the domestic legal
system to enable them to obtain redress for the breaches alleged. Article 35
§ 1 also requires that the complaints intended to be brought subsequently
before the Court should have been made to the appropriate domestic body,
at least in substance and in compliance with the formal requirements laid
down in domestic law (see Cardot v. France, judgment of 19 March 1991,
Series A no. 200, p. 18, § 34, Akdivar and Others v. Turkey, judgment of
16 September 1996, Reports 1996-IV, p. 1210, §§ 65-67, Aksoy v. Turkey,
judgment of 18 December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52,
Sarli v. Turkey, judgment of 22 May 2001, no. 24490/94, § 59).
63. The Court notes that in the instant case the Federal Constitutional
Court declared the applicants' constitutional complaint inadmissible as far as
it was directed against the decision of the Münster District Court of
18 December 2001 on the ground that the applicants had failed to appeal
previously to the Hamm Court of Appeal. Thus, the applicants did not
comply with the formal requirements laid down in German law and did not
provide the Federal Constitutional Court with the opportunity which is in
principle intended to be afforded to Contracting States by Article 35, of
preventing or putting right the violations alleged against them (see, among
other authorities, Remli v. France, judgment of 23 April 1996, Reports
1996-II, p. 571, § 33). Furthermore, an examination of the case does not

HAASE v. GERMANY JUDGMENT 15

disclose any special circumstances which might have absolved the
applicants, according to the generally recognised rules of international law,
from exhausting the domestic remedies at their disposal.
64. It follows that the applicants have not complied with the condition as
to the exhaustion of domestic remedies in respect of the decision of the
Münster District Court of 18 December 2001 on the prohibition of access
between the applicants and their children and the three children of the first
marriage, Timo, Nico and Lisa-Marie (see paragraph 15 above).
65. In so far as the decision of the Münster District Court of
6 March 2003 is concerned, the Court recalls that this decision does not
form part of the present application (see paragraph 57 above).
66. On the other hand, the applicants have exhausted domestic remedies
in relation to the decision of the Münster District Court of 17 December
2001 and the decision of the Federal Constitutional Court of 21 June 2002.

2. Loss of “victim” status

67. The Government argued that the Federal Constitutional Court set
aside the decisions of the Münster District Court of 17 December 2001 and
the Hamm Court of Appeal of 1 March 2002 and that for that reason the
interference with the applicants' rights ceased to exist. They furthermore
maintained that the applicants were not any longer affected by the interim
injunction of the Münster District Court of 17 December 2001, since it had
been replaced by the District Court's decision on the merits of
6 March 2003. According to the Government, the same reasoning had to
apply to the decision of the Münster District Court of 1 July 2002 by which
provisional measures had been ordered.
68. The applicants submitted that although the decision of the Münster
District Court of 17 December 2001, by which their parental rights were
revoked, had been set aside by the Federal Constitutional Court, they were
still being separated from their children.
69. The Court reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status as a
“victim” unless the national authorities have acknowledged, either expressly
or in substance, and then afforded redress for, the breach of the Convention
(see Dalban v. Romania, [GC], no. 28114/95, § 44, ECHR 1999-VI).
70. Even assuming that the decision of the Federal Constitutional Court
of 21 June 2002 could be seen as an acknowledgment, whether explicit or in
substance, of an alleged breach of Article 8 of the Convention, the Court
considers that that decision did not have any de facto suspensive or remedial
effect in respect of the measures taken by virtue of the District Court's
decision of 17 December 2001.
71. As to the decision on the merits rendered on 6 March 2003, the
Court notes that the reasons relied on are basically the same as those given
in the interim injunction. However, the additional reason invoked for the

16 HAASE v. GERMANY JUDGMENT

interim injunction was the urgency of the situation resulting in the sudden
removal of the children from the applicants and its drastic consequences for
the applicants' family life.
72. In conclusion, the Court considers that the applicants can claim to be
“victims” within the meaning of Article 34 of the Conve ntion.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

73. The applicants complained that their parental rights had been
withdrawn, and the children taken into public care. They also complained of
the way the contested decis ion was implemented. They alleged a violation
of Article 8 of the Convention, the relevant part of which provides:

“1. Everyone has the right to respect for his ... family life ...

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
... for the protection of health ... or for the protection of the rights and freedoms of
others.”

A. Arguments before the Court

1. The applicants

74. The applicants pointed out that, as soon as the expert G. had
submitted his report to the Youth Office on 17 December 2001, the latter
applied for an interim measure to the Münster District Court, which on the
same day withdrew the applicants' parental authority and ordered the
removal of the children as requested by the of the Youth Office. They
questioned whether such a close cooperation of the Youth Office and the
District Court was in conformity with the rule of law and the principle of an
effective judicial control.
75. The applicants argued that the taking of the children into public care
and their removal from their home were extremely drastic measures. It was
not appropriate to refer to investigations done in 1992 and 1993 and to order
the contested measures without hearing them or any witnesses as to the
arguments put forward by the Youth Office. According to them, in
particular the taking into care and the removal of the child Laura-Michelle
shortly after her birth, constituted a serious breach of Article 8 of the
Convention and had to be considered as inhuman treatment in respect of
both, mother and child. Further, the removal of the new-born baby deprived
Mrs Haase of the possibility of breastfeeding which had recognised health
benefits. This child was neither mentioned in the expert report and nor
included in the Youth Office's request to the District Court. The removal of

HAASE v. GERMANY JUDGMENT 17

Laura-Michelle from the hospital was therefore unlawful. In spite of the
decision of the Federal Constitutional Court of 22 June 2002, they were still
affected by the decision of the Münster District Court of 17 December 2001,
since they were still being separated from the children and some of the
children from each other.
76. The applicants further submitted that the declarations of the
children's paediatrician, Dr J., who knew the children, except Laura-
Michelle, since their birth, were not sufficiently taken into account by the
District Court. Contesting the findings of the experts G. and Professor K.,
the applicants submitted that there was no convincing evidence showing
that they were incapable of educating their children. Professor K. had based
her findings on the written statements of a social assistant of 17 May 1993,
made at a critical time when Mrs Haase was 25 years old and going to be
divorced from her first husband. There was no indication in what context
these statements had been made approximately ten years ago. However, the
Münster District Court based its decision of March 2003 to a large extent on
this statement. Furthermore Professor K. referred in her report to the files
put at her disposal by the Youth Office and to the report of G. rather than
relying on her own observations. The abuse of drugs by one child, as
mentioned in Professor K.'s report, concerned one single event, when the
four years old daughter came accidentally in the possession of a
medicament. For years they consulted the same doctors, the paediatrician
Dr J. and the gynaecologist Dr W. No deficiencies had been identified in the
care and upbringing of the children. It had never been reported that their
children were victims of violence or neglect necessitating educational or
social consultation. The difficulties with one son were brought to the
attention of a psychiatric institution in Münster by Mrs Haase herself. The
Youth Office considered this as a failure of the applicants' educational
capacity. In support of their submissions, the applicants relied on two
reports established by private experts whom they had consulted as from
June and July 2002.

2. The Government

77. The Government maintained that there had been no violation of
Article 8 as a result of the withdrawal of the applicants' parental rights and
the taking into care of the children. The interference with their right to
respect for their family life was provided for by law and the related
decisions were intended to protect the best interests of the children and thus
“necessary in a democratic society”.
78. The decision to withdraw the applicants' parental rights over their
children and the children of Mrs Haase's first marriage living with them was
based on Articles 1666 and 1666a of the Civil Code. The children's physical
and psychological well-being would be seriously endangered if they were to
be returned to the applicants as a result of the abusive exercise of parental

18 HAASE v. GERMANY JUDGMENT

authority and the neglect of the children and the failure of both parents
irrespective whether of any fault of their own or not. Any other less radical
measure would have been inadequate. The District Court had relied on all
available information at its disposal at the time: it considered the reports of
the expert G. of 17 and 18 December 2001, took note of the submissions of
Professor K. at the hearing of 1 July 2002, heard the applicants and the
children Anna-Karina, Lisa-Marie, Nico and Timo, appointed a curator ad
litem and asked for his assessment of the situation.
79. The findings of the first expert G. that separating the children from
the applicants was the only way of eliminating all dangers for the children
had been confirmed by the second expert, Professor K., on the main lines.
80. As to the decision denying the applicants' access to the children, the
Government pointed out that the children were placed in unidentified foster
homes. Had the applicants been granted a right of access, the children could
no longer have stayed in these institutions, having regard to the conduct of
certain media which had to be qualified as excessive. According to
Professor K., the children's well-being would be jeopardised if access were
allowed for the very reason that the mother absolutely failed to understand
the need for separation. In the expert's view, the mother was not prepared
and, being deeply affected by the measures taken, apparently not in a
position to observe any rules in connection with such contact, and also
uncontrollable. The same would have to be assumed of Mr Haase. The
children should at least get some peace, and they would clearly be incapable
of coping with seeing their parents who were unable to understand the
situation, did not accept it, and would not be able to conceal this from the
children.
81. As to the decisions of the Münster District Court of 6 March 2003,
the Government submitted that the contested measures were intended to
protect the interests of the children, were proportionate to that aim and thus
necessary in a democratic society as required by Article 8 § 2.

B. The Court's assessment

1. Whether there was an interference with the applicants' right to
respect for their family life

82. As is well established in the Court's case-law, the mutual enjoyment
by parent and child of each other's company constitutes a fundamental
element of family life, and domestic measures hindering such enjoyment
amount to an interference with the right protected by Article 8 of the
Convention (see, amongst others, Johansen v. Norway, judgment of
7 August 1996, Reports 1996-III, § 52). The impugned measures, as was not
disputed, evidently amounted to an interference with the applicants' right to
respect for their family life as guaranteed by paragraph 1 of Article 8.

HAASE v. GERMANY JUDGMENT 19

2. Whether the interference was justified

83. An interference with the right to respect for family life entails a
violation of Article 8 unless it is “in accordance with the law”, has an aim or
aims that is or are legitimate under Article 8 § 2 and is “necessary in a
democratic society” for the aforesaid aim or aims.
84. Although the essential object of Article 8 is to protect the individual
against arbitrary action by the public authorities, there may in addition be
positive obligations inherent in an effective “respect” for family life. Thus,
where the existence of a family tie has been established, the State must in
principle act in a manner calculated to enable that tie to be developed and
take measures that will enable parent and child to be reunited (see, among
other authorities, Eriksson v. Sweden, judgment of 22 June 1989, Series A
no. 156, pp. 26-27, § 71, and Gnahoré v. France, no. 40031/98, § 51, ECHR
2000-IX ).
85. The boundaries between the State's positive and negative obligations
under this provision do not lend themselves to precise definition. The
applicable principles are, nonetheless, similar. In both contexts 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; and in both
contexts the State enjoys a certain margin of appreciation (see, among other
authorities, W., B. and R. v. the United Kingdom, judgments of 8 July 1987,
Series A no. 121, respectively, p. 27, § 60, p. 72, § 61, and p. 117, § 65; and
Gnahoré, cited above, § 52).

a. “In accordance with the law”

86. It was common ground that the impugned interference was in
accordance with the law for the purposes of Article 8, the relevant
provisions being Articles 1666 and 1666a of the Civil Code.

b. Legitimate aim

87. In the Court's view, the court decisions of which the applicant
complained were aimed at protecting the “health or morals” and the “rights
and freedoms” of the children. Accordingly they pursued legitimate aims
within the meaning of paragraph 2 of Article 8.

c. “Necessary in a democratic society”

(i) General principles

88. In determining whether the impugned measure was “necessary in a
democratic society”, the Court has to consider whether, in the light of the
case as a whole, the reasons adduced to justify this measure were relevant

20 HAASE v. GERMANY JUDGMENT

and sufficient for the purposes of paragraph 2 of Article 8 of the
Convention. The notion of necessity implies that the interference
corresponds to a pressing social need and, in particular, that it is
proportionate to the legitimate aim pursued (see, among other authorities,
Gnahoré, cited above, § 50 in fine).
89. Undoubtedly, consideration of what lies in the best interests of the
child is of crucial importance in every case of this kind. 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
(see Johansen, cited above, pp. 1003, § 64, K. and T. v. Finland, cited
above, §§ 151, 154 and 173). 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 public care of
children and the rights of parents whose children have been taken into care,
but rather to review under the Convention the decisions taken by those
authorities in the exercise of their power of appreciation (see Hokkanen v.
Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55,
Kutzner v. Germany, no. 46544/99, § 66, ECHR 2002-I; and Sahin, cited
above, § 64, and Sommerfeld v. Germany [GC], no. 25735/94, § 62, ECHR
2003-VIII).
90. The margin of appreciation so to be accorded to the competent
national authorities will vary in the light of the nature of the issues and the
seriousness of the interests at stake. While the authorities enjoy a wide
margin of appreciation in assessing the necessity of taking a child into care,
in particular where an emergency situation arises, the Court must still be
satisfied in the particular case that there existed circumstances justifying the
removal of the child, and it is for the respondent State to establish that a
careful assessment of the impact of the proposed care measure on the
parents and the child, as well as of the possible alternatives to taking the
child into public care, was carried out prior to implementation of such a
measure (see K. and T. v. Finland, cited above, § 166, Kutzner, cited above,
§ 67, and P., C. and S. v. the United Kingdom, no. 5647/00, § 116, ECHR
2002-VI).
91. Furthermore, the taking of a new-born baby into public care at the
moment of its birth is an extremely harsh measure. There must be
extraordinarily compelling reasons before a baby can be physically removed
from its mother, against her will, immediately after birth as a consequence
of a procedure in which neither she nor her partner has been involved (see
K. and T. v. Finland, cited above, § 168).
92. Following any removal into care, a stricter scrutiny is called for in
respect of any further limitations by the authorities, for example on
restrictions on parental rights and access, and on any legal safeguards
designed to secure the effective protection of the right of parents and

HAASE v. GERMANY JUDGMENT 21

children to respect for their family life. Such further limitations entail the
danger that the family relations between the parents and a young child are
effectively curtailed (see Elsholz v. Germany [GC], no. 25735/94, § 49,
ECHR 2000-VIII; Kutzner, cited above, § 67; and Sahin, cited above, § 65).
93. The taking into care of a child should normally be regarded as a
temporary measure to be discontinued as soon as circumstances permit, and
any measures of implementation of temporary care should be consistent
with the ultimate aim of reuniting the natural parent and child (see
Johansen, cited above, pp. 1008-09, § 78, and E.P. v. Italy, no. 31127/96,
§ 69, 16 November 1999). In this regard a fair balance has to be struck
between the interests of the child remaining in care and those of the parent
in being reunited with the child (see and Hokkanen, cited above, p. 20,
§ 55). In carrying out this balancing exercise, the Court will attach particular
importance to the best interests of the child which, depending on their
nature and seriousness, may override those of the parent (see Johansen,
cited above, pp. 1008-09, § 78). In particular, a parent cannot be entitled
under Article 8 to have such measures taken as would harm the child's
health and development (see Elsholz, cited above, § 50; and Sahin, cited
above § 66).
94. Whilst Article 8 contains no explicit procedural requirements, the
decision-making process involved in measures of interference must be fair
and such as to ensure due respect of the interests safeguarded by Article 8.
The Court must therefore determine whether, having regard to the
circumstances of the case and notably the importance of the decisions to be
taken, the applicants 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 (see W. v. the United Kingdom judgment of
8 July 1987, Series A no. 121, p. 29, § 64, Elsholz cited above, § 52, and
T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR
2001-V).
95. The Court accepts that when action has to be taken to protect a child
in an emergency, it may not always be possible, because of the urgency of
the situation, to associate in the decision-making process those having
custody of the child. Nor may it even be desirable, even if possible, to do so
if those having custody of the child are seen as the source of an immediate
threat to the child, since giving them prior warning would be liable to
deprive the measure of its effectiveness. The Court must however be
satisfied that the national authorities were entitled to consider that there
existed circumstances justifying the abrupt removal of the child from the
care of its parents without any prior contact or consultation. In particular, it
is for the respondent State to establish that a careful assessment of the
impact of the proposed care measure on the parents and the child, as well as
of the possible alternatives to the removal of the child from its family, was
carried out prior to the implementation of a care measure (see K. and T. v.

22 HAASE v. GERMANY JUDGMENT

Finland, cited above, § 166). The fact that a child could be placed in a more
beneficial environment for his or her upbringing will not on its own justify a
compulsory measure of removal from the care of the biological parents;
there must exist other circumstances pointing to the “necessity” for such an
interference with the parents' right under Article 8 to enjoy a family life
with their child (see K.A. v. Finland, no.27751/95, § 92 ECHR 2003-I).

(ii) Application of these principles in the present case

96. Turning to the facts of the instant case, the Court notes that the
expert G. has met Mrs Haase and three of the children in September and
October 2001 at the applicants' home. On 17 December 2001, he submitted
his report to the Youth Office. On 17 December 2001 the Youth Office
applied for an interim injunction and this very day the Münster District
Court, without hearing the parents, issued the requested interim injunction.
The following day the children were separated from their family and partly
from each other and placed in unidentified foster homes. The new born baby
was taken from the hospital. On 1 March 2001, without holding a hearing,
the Hamm Court of Appeal dismissed the applicants' appeal.
97. On 21 June 2002 the Federal Constitutional Court set these decisions
aside, finding that the applicants' parental rights had been violated.
According to the Federal Constitutional Court, the question of whether the
evidence established that there was a risk of harm to the children had not
adequately been considered. It noted in particular that an assessment of the
applicants' submissions and considerations as to the possibility to order
alternative measures, that would not have required the total revocation of
parental rights, were missing. Both the Court of Appeal and the District
Court failed to hear the children or to provide the persons taking part in the
proceedings the opportunity to be heard. No reasons were given justifying
the urgency of the matter. The Family Court had no information on the
possible effects of its decision, since the Youth Office and the expert had
not commented on this issue. When examining the advantages and
disadvantages of a family measure, it was, however, relevant to consider
that a separation of the children from their parents could jeopardise the
development of the children, in particular in their first years of life (see
paragraph 30 above).
98. In the Court's opinion, the findings of the Federal Constitutional
Court show that the provisional withdrawal of their parental rights and the
removal of the children were not supported by relevant and sufficient
reasons and that the applicants were not involved in the decision-making
process to a degree sufficient to provide them with the requisite protection
of their interests.
99. The Court observes moreover that, before public authorities have
recourse to emergency measures in such delicate issues as care orders, the
imminent danger should be actually established. It is true that in obvious

HAASE v. GERMANY JUDGMENT 23

cases of danger no involvement of the parents is called for. However, if it is
still possible to hear the parents of the children and to discuss with them the
necessity of the measure, there should be no room for an emergency action,
in particular when, like in the present case, the danger had already existed
for a long period. There was therefore no urgency as to justify the District
Court's interim injunction.
100. The Court has also given consideration to the method used in
implementing the District Court's decision of 17 December 2001. Taking
suddenly six children from their respective schools, kindergarten and from
home and placing them in unidentified foster homes, and forbidding all
contact with the applicants, went beyond the exigencies of the situation and
cannot be accepted as a proportionate.
101. In particular, the removal of the new-born baby from the hospital
was an extremely harsh measure. It was a step which was traumatic for the
mother and placed her own physical and mental health under a strain, and it
deprived the new-born baby of close contact with its natural mother and, as
pointed out by the applicants, of the advantages of breast-feeding. The
removal also deprived the father of being close to his daughter after the
birth. It is not for the Court to take the place of the German authorities and
to speculate as to the best child care measures in the particular case. The
Court is aware of the problems facing the authorities in situations where
emergency steps must be taken. If no action is taken, there exists a real risk
that harm will occur to the child and that the authorities will be held to
account for their failure to intervene. At the same time, if protective steps
are taken, the authorities tend to be blamed for unacceptable interference
with the right to respect for family life. However, when such a drastic
measure for the mother, depriving her totally of her new-born child
immediately after birth, was contemplated, it was incumbent on the
competent national authorities to examine whether some less intrusive
interference into family life, at such a critical point in the lives of the
parents and child, was not possible.
102. As stated above (see paragraph 89), there must be extraordinarily
compelling reasons before a baby can be physically removed from the care
of its mother, against her will, immediately after birth as a consequence of a
procedure in which neither she nor her husband has been involved.
103. The Court is not satisfied that such reasons have been shown to
exist in relation to the daughter born in hospital. Although the contested
decision of the Münster District Court of 17 December 2001 has been set
aside by the Federal Constitutional Court, it remains that it formed the basis
of the continuing separation of the applicants and the children since
18 December 2001. Experience shows that when children remain in the care
of youth authorities for a protracted period, a process is set in motion of
driving them towards an irreversible separation from their family. When a
considerable period of time has passed since the children were first placed

24 HAASE v. GERMANY JUDGMENT

in care, the children's interest in not undergoing further de facto changes to
their family situation may prevail over the parents' interest in seeing the
family reunited. The possibilities of reunification will be progressively
diminished and eventually destroyed if the biological parents and the
children are not allowed to meet each other at all. Time takes on therefore a
particular significance as there is always a danger that any procedural delay
will result in the de facto determination of the issue before the court (H. v.
the United Kindom, judgment of 8 July 1987, Series A no. 120, pp. 63-64,
§§ 89-90). Moreover, the Draconian step of removing the applicants'
daughter shortly after her birth from her mother could in the Court's opinion
only lead to the child's alienation from her parents and siblings and entail
the danger that the family relations between the parents and the young child
are effectively curtailed. The measures taken, because of their immediate
impact and their consequences, are therefore difficult to redress.
104. In the light of the foregoing, the Court concludes that the decision
of the Münster District Court of 17 December 2001, the unjustified failure
to allow the applicants to participate in the decision-making process leading
to that decision, the methods used in implementing that decision, in
particular the Draconian step of removing the new born daughter from her
mother shortly after birth, and the particular quality of irreversibility of
these measures were not supported by relevant and sufficient reasons and
cannot be regarded as having been “necessary” in a democratic society.
105. Consequently, there has been a violation of Article 8 of the
Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION

106. The applicants also complained that they had not had a fair hearing
within the meaning of Article 6 § 1 of the Convention, the relevant part of
which reads:
“In the determination of his civil rights and obligations ..., everyone is entitled to a
fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law. ...”
107. The applicants submitted in particular that they were not heard by
Münster District Court before giving the order separating the children from
them.
108. The Court observes that the applicants' complaints under Article 6
largely coincide with their complaints under Article 8. The Court does not
find it necessary to examine the facts also under Article 6 § 1 of the
Convention.

HAASE v. GERMANY JUDGMENT 25

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

109. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”

A. Damage

1. Submissions of the parties

110. The applicants maintained that the withdrawal of their parental
authority had caused them pecuniary damage, which they calculated as
follows:
As from December 2001, they did no longer receive child benefits. The
child benefits for six children amounted to 1,050 euros (EUR). For seven
children the amount would have been EUR 1,250 as from December 2001.
Because of the non-payment of child benefits they had been obliged to
move out of their flat (monthly rent EUR 765) and to rent a smaller one
(monthly rent 430 EUR). The removal costs amounted to EUR 400.
In June 2002 the Catholic Church put a house with a big garden at their
disposal. They moved to that house in order to have enough space for the
children in the event of their return and renovated it. The removal costs
amounted to EUR 400. For the renovation they paid EUR 2,700. The
monthly lease to be paid since June 2002 was EUR 872.
The applicants did not claim the retroactive payment of child benefits
since December 2001. They requested, however, to be paid the difference of
EUR 500 monthly between the rent for their first flat and the house as from
June 2002.
The mail and telephone costs paid exclusively in connection with the
removal of the children amounted in the period from December 2001 to
April 2003 to at least EUR 1,200.
The interference with their family life had considerable negative effects
on the applicants' and in particular Mrs Haase's health. On 11 April 2002 the
applicants went to see a doctor in Würzburg. The costs of travel amounted
to EUR 200.
Since June 2002 the applicants underwent psychological treatment. The
costs of travelling to the doctor on 29 occasions amounted to EUR 725 by
April 2003.
111. The Government expressed no view on that question.

26 HAASE v. GERMANY JUDGMENT

2. Decision of the Court
112. The applicants also sought compensation for non-pecuniary
damage, pointing to the distress and frustration they had felt as a result of
the withdrawal of their parental rights and the sudden removal of the
children. Referring to previous award made by the Court in other cases, they
claimed EUR 25,000 for non-pecuniary damage suffered by Mrs Haase and
EUR 10,000 by Mr Haase although their immense suffering, which had
generated serious health problems necessitating psychological help, could
not in any way be measured in terms of money.
113. In the event of a finding by the Court that the applicants were also
acting on behalf of the children, as submitted in their letter of 19 December
2002, they claimed EUR 2,000 on behalf of each of the children for damage
the children had sustained as a result of their separation from the applicants
and to some extent from each other.
114. The Government did not comment on this claim.
115. The Court points out that by Article 46 of the Convention the High
Contracting Parties undertook to abide by the final judgments of the Court
in any case to which they were parties, execution being supervised by the
Committee of Ministers. It follows, inter alia, that a judgment in which the
Court finds a breach imposes on the respondent State a legal obligation not
just to pay those concerned the sums awarded by way of just satisfaction,
but also to choose, subject to supervision by the Committee of Ministers,
the general and/or, if appropriate, individual measures to be adopted in their
domestic legal order to put an end to the violation found by the Court and to
redress so far as possible the effects. Furthermore, subject to monitoring by
the Committee of Ministers, the respondent State remains free to choose the
means by which it will discharge its legal obligation under Article 46 of the
Convention, provided that such means are compatible with the conclusions
set out in the Court's judgment (Scozzari and Giunta v. Italy [GC],
no. 39221/98 and 41963/98, § 249, ECHR 2000-VIII).
Accordingly, under Article 41 of the Convention the purpose of awarding
sums by way of just satisfaction is to provide reparation solely for damage
suffered by those concerned to the extent that such events constitute a
consequence of the violation that cannot otherwise be remedied (Scozzari
and Giunta, cited above, § 250).
116. As regards the applicants' claims for pecuniary loss, the Court's
case-law establishes that there must be a clear causal connection between
the damage claimed by the applicants and the violation of the Convention
(see, among other authorities, Barberà, Messegué and Jabardo v. Spain
(Article 50), judgment of 13 June 1994, Series A no. 285-C, pp. 57-58,
§§ 16-20, and Çakici v. Turkey [GC], no. 23657/94, § 127, ECHR 1999-IV).
In this case, the Court has found a violation of Article 8 in respect of the
provisional withdrawal of the applicants' parental rights and the removal of
the children.

HAASE v. GERMANY JUDGMENT 27

117. In the absence of documentary substantiation of this part of the
applicants' claim, and having regard to equitable considerations, the Court
awards the applicants an amount of EUR 10,000 under this heading.
118. As to the non-pecuniary damage, the Court considers that the
applicants undoubtedly sustained such damage on account of the violation
of Article 8. The Court observes in particular that since being separated
from the children in December 2001 the applicants have never seen them
again. It is reasonable to presume that this must have caused the applicants
very great and acute suffering which will have worsened as the proceedings
continued and the hope of seeing the children again diminished.
119. The Court thus conc ludes that the applicants sustained some nonpecuniary
damage which is not sufficiently compensated by the finding of a
violation of the Convention (see, for example, Elsholz v. Germany [GC],
no. 25735/94, §§ 70-71, ECHR 2000-VIII). Having regard to the
circumstances of the case and ruling on an equitable basis, the Court awards
the applicants jointly EUR 35,000.
120. As to the non-pecuniary damage claimed on behalf of the children,
the Court points out that in principle a person who is not entitled under
domestic law to represent another may nevertheless, in certain
circumstances, act before the Court in the name of the other person (see,
mutatis mutandis, Nielsen v. Denmark, judgment of 28 November 1988,
Series A no. 144, pp. 21-22, §§ 56-57). In the event of a conflict over a
minor's interests between a natural parent and the person appointed by the
authorities to act as the child's guardian, there is a danger that some of those
interests will never be brought to the Court's attention and that the minor
will be deprived of effective protection of his rights under the Convention.
Consequently, even though the parents have been deprived of parental rights
– indeed that is one of the causes of the dispute which they have referred to
the Court – their standing suffices to afford them the necessary power to
apply to the Court on the children's behalf, too, in order to protect their
interests (see, mutatis mutandis, Scozzari and Giunta, cited above, § 138).
121. However, in accordance with Rule 38 § 1 of the Rules of Court, no
written observations filed outside the time- limit set by the President of the
Chamber shall be included in the case file unless the President of the
Chamber decides otherwise. In the present case, the applicants' request to
present the application also on behalf of their children was submitted on
19 December 2002, that is after the close of the written procedure (Rule 38
§ 1 of the Rules of Court) on the admissibility of the application. The Court
therefore considers that it cannot take the damage claimed on behalf of the
children into account.

28 HAASE v. GERMANY JUDGMENT

B. Costs and expenses

122. The applicants claimed EUR 3,091.64 before the German courts
and 5,000 EUR before the Court. They submitted a detailed list of the
claims.
123. The Government did not comment.
124. According to the Court's consistent case-law, to be awarded costs
and expenses the injured party must have incurred them in order to seek
prevention or rectification of a violation of the Convention, to have the
same established by the Court and to obtain redress therefor. It must also be
shown that the costs were actually and necessarily incurred and that they are
reasonable as to quantum (see, as a recent authority, Meulendijks v. the
Netherlands, 34549/97, 14 May 2002, § 63).
125. The Court is satisfied that the claim for compensation of counsel's
fees and expenses has been properly substantiated and notes that the
applicants' complaints were declared admissible in their entirety. On the
other hand, the Court has restricted its finding of a violation to the
provisional taking into care of the children and the implementation of the
care measures. Making its assessment on an equitable basis, the Court
awards the applicants EUR 8,000, together with any relevant value-added
tax. From this award must be deducted the EUR 700 and EUR 655 already
received in legal fees from the Council of Europe by way of legal aid,
totalling EUR 1,355.

C. Default interest

126. The Court considers it appropriate that the default interest should
be based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that, by reason of the failure to exhaust domestic remedies, it is
unable to take cognisance of the merits of the case in respect of the
decisions of the Münster District Court of 18 December 2001;

2. Holds that the applicants may claim to be “victims” for the purposes of
Article 34 of the Convention;

3. Holds that there has been a violation of Article 8 of the Convention;

HAASE v. GERMANY JUDGMENT 29

4. Holds that there is no separate issue under Article 6 § 1 of the
Convention;

5. Holds
(a) that the respondent State is to pay the applicants, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following amounts:

(i) EUR 10,000 (ten thousand euros) in respect of pecuniary
damage;

(ii) EUR 35,000 (thirty-five thousand euros) in respect of nonpecuniary
damage;

(iii) EUR 8,000 (eight thousand euros), less EUR 1,355 (one
thousand three hundred and fifty- five euros), in respect of costs and
expenses;

(iv) any tax that may be chargeable on the above amounts;

(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;

6. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 8 April 2004, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Cour t.

Vincent BERGER Ireneu CABRAL BARRETO
Registrar President

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