21947/93

 AS TO THE ADMISSIBILITY OF Application No. 21947/93 by E.F. against Switzerland The European Commission of Human Rights (First Chamber) sitting in private on 30 June 1993, the following members being present: MM. F. ERMACORA, Acting President of the First Chamber E. BUSUTTIL A.S. GÖZÜBÜYÜK Sir Basil HALL Mr. C.L. ROZAKIS Mrs. J. LIDDY MM. M. PELLONPÄÄ B. MARXER G.B. REFFI B. CONFORTI Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 8 January 1993 by E.F. against Switzerland and registered on 1 June 1993 under file No. 21947/93; Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant, a Swiss citizen born in 1937, is a housewife residing at Kronbühl in Switzerland. The case concerns the placement of two children, Elvira, born in 1981, and Chantal, born in 1983. Their parents are Mr. and Mrs. G. From 1983 until 1992 the applicant acted as foster mother to these children. Particular circumstances of the case In 1983, when Mrs. G. was expecting her second child, the St. Gallen social authorities organised an apartment for the mother and Elvira in the applicant's house. Thereafter, the applicant supported Mrs. G. in the education of the children. Mr. and Mrs. G. divorced in 1984. According to the divorce judgment, Mrs. G. kept parental custody of the children who were nevertheless placed under educational tutorship (Erziehungsbeistandschaft). In 1986 tension arose between the applicant and Mrs. G. whereupon Mrs. G. left the apartment. The children remained with the applicant. On two weekends per month, however, the children visited their mother. In 1989 the applicant and Mrs. G. concluded a contract concerning the terms of fosterage (Pflegeverhältnis) of the children. The educational tutor was not involved in this contract. Parental custody continued to lie with Mrs. G. In 1989 Mrs G. remarried, though this did not affect the fosterage arrangement. On the other hand, against Mrs. G.'s will, the applicant henceforth permitted the children to visit their mother only once a month. As from 1991 the applicant refused to let the children visit Mrs. G. on the ground that Mrs.G.'s new husband had indecently touched them. Difficulties arose with the children in their progress at school. The St. Gallen guardianship authorities (Vormundschaftsbehörde) thereupon ordered a psychiatric expert opinion of the children. The expert opinion, submitted on 11 December 1991 by a doctor, concluded that both children required psychotherapy, and that they should only remain with the applicant if she accepted psychotherapeutic treatment of the children and that she herself underwent educational counselling. However, the applicant resisted the children's psychotherapy as well as her own educational counselling. As a result, on 24 March 1992 the educational tutor requested the guardianship authorities to place the children in a foster home or in a therapeutic family (heilpädagogische Grossfamilie). Reference was also made to Elvira's difficulties at school. In April 1992 Mrs. G. terminated the fosterage contract with the applicant and requested the guardianship authorities to place the children elsewhere. The applicant expressed her surprise when confronted with this request. She considered that as a mother of five children she was in a good position to educate Elvira and Chantal. The applicant advised against "doctoring" ("herumgedökterlt") the children and refused to allow psychotherapy. On 10 July 1992 the St. Gallen guardianship authorities decided that the children should be placed away from the applicant, and it ordered the tutor to find a home or a family for the children. It also terminated Mrs. G.'s parental custody. Relying on Section 310 para. 1 of the Swiss Civil Code (Zivilgesetzbuch, see below, Relevant domestic law), the decision referred in particular to the conclusions of the psychiatric expert opinion; the continuing difficulties between the mother and the applicant; and the fact that the applicant refused to accept psychotherapy for the children and educational counselling for herself. The applicant filed an appeal with the Council of State of the Canton of St. Gallen (Regierungsrat). In these proceedings she insisted that the children undergo a Christian therapy. The appeal was dismissed on 20 October 1992. The applicant's public law appeal (staatsrechtliche Beschwerde) was dismissed by the Federal Court (Bundesgericht) on 23 December 1992. The Court first addressed the issue whether the applicant was entitled to file the appeal. It noted that a close relationship often arose between children and their foster parents, and that in the present case the guardianship authorities had not been involved in the fosterage arrangement. The Court nevertheless decided not to resolve this issue since it considered that the appeal was in any event unfounded. Insofar as the applicant claimed that she had not resisted psychotherapy, the Court noted that according to the case-file she had stated that she would only accept such therapy if God instructed her to do so, or if the therapy was Christian. The Court agreed with the previous instance that the applicant's religious convictions had contributed to the difficulties. Finally, it considered that the measure was in the best interests of the children. The children have meanwhile been placed in a children's home in Zizers in Switzerland. Relevant domestic law Section 310 para. 1 of the Swiss Civil Code (Zivilgesetzbuch) states that "if there are no other means to avoid damage to a child, the guardianship authorities have to take it away from the parents or, if it is with a third person, from the latter, and ensure its adequate placement" ("Kann der Gefährdung des Kindes nicht anders begegnet werden, so hat die Vormundschaftsbehörde es den Eltern oder, wenn es sich bei Dritten befindet, diesen wegzunehmen und in angemessener Weise unterzubringen"). COMPLAINTS The applicant complains under Article 8 of the Convention that she no longer has fosterage over the children. She claims that the present situation is damaging for them. The applicant also relies on Articles 5, 7, 9, 10 and 11 of the Convention. THE LAW 1. The applicant complains under Article 8 (Art. 8) of the Convention that she no longer has fosterage over the children. Article 8 (Art. 8) of the Convention states: "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." The question arises whether the applicant can claim a "right to respect for (her) family life" within the meaning of Article 8 (Art. 8) of the Convention. The Commission notes, on the one hand, that the applicant is not the mother of the children concerned. On the other hand, the children have been living with the applicant since 1983, in the case of Elvira, and in the case of Chantal since her birth. As a result, a close relationship has apparently arisen between the applicant and the children. The Commission need not resolve this issue. Thus, even if the applicant could invoke Article 8 para. 1 (Art. 8-1) of the Convention, and there had been an interference with the rights under this provision since the children have been taken away from the applicant, this part of the application would in any event be inadmissible for the following reason. The Commission observes that the domestic authorities, when deciding on the placement of the children, relied on Section 310 para. 1 of the Swiss Civil Code. The measure was therefore "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. Moreover, when deciding on the placement of the children, the authorities relied on the advice of a medical expert. The authorities in fact envisaged the possibility of leaving the children with the applicant, if the she accepted psychotherapeutic treatment of the children and she herself underwent educational counselling. However, in view of the applicant's resistance to such treatment, the authorities found that it was in the interests of the children to take them away from the applicant and to place them either in a foster home or in a therapeutic family. The Commission thus accepts that any interference with the applicant's right to respect for her family life could reasonably be considered "necessary in a democratic society ... for the protection of health (and) morals (and) the rights and freedoms of others", namely the children concerned. If considered as an interference, the measure complained of was therefore justified under Article 8 para 2 (Art. 8-2) of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 8-2) of the Convention. 2. Insofar as the applicant also relies on Articles 5, 7, 9, 10 and 11 (Art. 5, 7, 9, 10, 11) of the Convention in support of her application, the Commission finds no issue under these provisions. The remainder of the application is, therefore, also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission, unanimously DECLARES THE APPLICATION INADMISSIBLE. Secretary to the First Chamber Acting President of the First Chamber M.F. BUQUICCHIO F. ERMACORA