31233/96

 AS TO THE ADMISSIBILITY OF Application No. 31233/96 by B. W. and W. W. against Switzerland The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present: Mrs. J. LIDDY, President MM. S. TRECHSEL M.P. PELLONPÄÄ E. BUSUTTIL A. WEITZEL C.L. ROZAKIS L. LOUCAIDES B. MARXER B. CONFORTI N. BRATZA I. BÉKÉS G. RESS A. PERENIC C. BÎRSAN K. HERNDL Mrs. M. HION Mr. R. NICOLINI Mrs. M.F. BUQUICCHIO, Secretary to the 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 18 April 1996 by B. W. and W. W. against Switzerland and registered on 30 April 1996 under file No. 31233/96; 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 applicants, a married couple, are Swiss citizens born in 1969 and 1960, respectively. They reside in Madretsch in Switzerland. Before the Commission they are represented by Mrs M. Grütter, a lawyer practising in Bern in Switzerland. The facts of the case, as submitted by the applicants, may be summarised as follows. The first applicant's daughter M. was born in 1992. Shortly after the birth mother and child were separated. On 2 January 1993 the Rumisberg Guardianship Office withdrew the first applicant's parental custody over her child. On 12 January 1993 the second applicant acknowledged that he was the father of the child, and on 1 March 1993 he married the first applicant. On 4 March 1993 the Rumisberg Guardianship Office also withdrew the second applicant's parental custody over his child. The Office relied on S. 310 para. 1 of the Swiss Civil Code (Zivilgesetzbuch). This provision 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 ... and ensure its adequate placement". Upon the applicants' complaints, proceedings were conducted before the District Officer (Regierungsstatthalter) of Wangen a.A., who sought the views of the Parental Advice Office (Erziehungsberatung) of the Canton of Bern. The latter submitted psychiatric expert opinions on each applicant prepared by the Psychiatric Clinic of the Canton of Solothurn. At a hearing on 2 December 1993 the second applicant, who was suffering from alcohol problems, agreed to submit to an antabus treatment of at least one year; the agreement envisaged an interim assessment after six months. It was considered that if the treatment was successful, the child could return to its parents. However, the antabus treatment could not be accomplished, and on 24 January 1994 the District Officer dismissed the applicants' complaints. Upon the applicants' further appeal, the Court of Appeal (Appellationshof) of the Canton of Bern on 15 March 1995 formally withdrew the applicants' parental custody over M. and placed her in a home. The Court also appointed a guardian (Beistand) for the child. The applicants' public law appeal (staatsrechtliche Beschwerde) was dismissed by the Federal Court on 6 September 1995, the decision being served on 20 October 1995. Relying inter alia on S. 310 of the Swiss Civil Code, the Federal Court recalled that the second applicant had for a long time suffered from alcohol problems; in view of these difficulties he had even been placed in detention. Even after the medical expert opinions had stated that his alcoholism was one of the major obstacles to parental custody, the police had found the second applicant driving a car with a blood alcohol level of 2,95%. Despite his antabus treatment he had committed a serious accident under the influence of alcohol; he had broken his arm and was unable to visit his daughter. On another occasion, the second applicant had been unable to visit his daughter as he had assaulted his wife under the influence of alcohol. The Court recalled the conclusions of the medical expert opinions as regards the applicants and their child. According to these opinions, the child was very sensitive and needed a tranquil environment. On the other hand, the first applicant showed a lack of interest towards the duties resulting from motherhood. She was unable to resist pressures and had a tendency, in case of difficulty, to flee, to withdraw, or to break off relations. The second applicant had a potential to be violent which should not be underestimated. He also had the tendency to make others responsible for mistakes. His cynicism and his inability to understand others would not provide the necessary security which the child required. The Court also recalled that the persons who were taking care of the child feared restoring parental custody. The decision continued:

b) It is true that it was disproportionate to separate the child shortly after her birth from her mother, particularly as neither the requirements of the child nor the circumstances of the mother warranted such a severe measure. However, this order of the Guardianship's Office has entered into legal force and is not the object of the present proceedings. For the rest, the subsequent marriage of the parents brought to a head the anyway complex and delicate circumstances of the girl: The excesses of alcohol and the outbreaks of violence and assaults of the applicant and the fact that both married partners are not willing to cooperate with the circle of persons who should have facilitated contacts between the parents and the child, have not favourably affected the reinstitution of parental custody. Furthermore, the Guardianship's Office cannot be blamed that they wish at all costs to withdraw guardianship from the parents: Even during the proceedings before the District Officer it was suggested to the applicant to submit to an antabus-treatment of at least one year; after six months an interim assessment would have been made. In the case of a positive result, the child would then have been brought home. However, the applicants were not in a position to keep to this arrangement. Furthermore, the subsequent events demonstrated that even an antabus treatment did not ensure that the applicant really abstained from alcohol. In addition, it must be considered that the child has now been living outside her family for two years, and a reintegration into the family would need to be prepared and could only occur gradually. Apart from the just mentioned personal problems of the parents, one should also not overlook the difficulties on the part of the child. Thus, reintegration with the family can only occur on the basis of a factual cooperation of the parents with the guardian and those persons who in the past two years have taken care of the child." COMPLAINTS 1. The applicants complain of the withdrawal of custody which amounted to a severe interference with their right to respect for family life within the meaning of Article 8 of the Convention. Thus, the Federal Court itself considered that the separation at the outset was disproportionate, and it has not been shown how the applicants' marriage should have brought the child's situation to a head. The decisions rely mainly on statements made in the village on the applicants, thus reflecting their precarious social situation. However, the parents never had the possibility to show how they would rear the child. Without doubt, the parents would need assistance, though none of their problems would justify depriving them of parental custody. There are no indications of a threat to the well-being of the child. To the contrary, the child feels happy when she is with her parents. In respect of these complaints the applicants also rely on Article 12 of the Convention. 2. The applicants complain that they did not have an effective remedy at their disposal within the meaning of Article 13 of the Convention. Thus, the domestic authorities did not duly consider the applicants' right to respect for their family life within the meaning of Article 8 of the Convention. THE LAW The applicants complain under Articles 8 and 12 (Art. 8, 12) of the Convention of the withdrawal of parental custody. Article 8 (Art. 8) of the Convention states, insofar as relevant: "1. Everyone has the right to respect for his private and 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 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 Commission considers that the withdrawal of the applicants' parental custody over their child M. amounts to an interference with their right to respect for their family life within the meaning of Article 8 para. 1 (Art. 8-1)of the Convention. The Commission must therefore examine whether this interference was justified under Article 8 para. 2 (Art. 8-2) of the Convention. The Commission observes that the domestic authorities, when deciding on the withdrawal of parental custody, relied on S. 310 para. 1 of the Swiss Civil Code. The measure was, therefore, "in accordance with the law" within the meaning of Article 8 (Art. 8) of the Convention. Moreover, when ordering the withdrawal of parental custody, the authorities considered the well-being of the child. The interference was therefore imposed "for the protection of health (and) morals (and) the rights and freedoms of others", namely the child concerned. Finally, the Commission has examined whether the measure was "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention, as interpreted in the Convention organs' case-law (see Eur. Court HR, Berrehab v. Netherlands judgment of 21 June 1988, Series A no. 138, p. 15, para. 27). The Commission notes that the domestic authorities carefully balanced the various interests concerned, having particular regard to the situation of the child, and relying on medical expert opinions and the views of other persons involved. Thus, the Federal Court in its decision of 6 September 1995 considered that, while the separation of the child from her mother shortly after birth was disproportionate, the subsequent marriage of the applicants had not been positive for the child's needs. The second applicant suffered from alcohol problems and was prone to violence. The first applicant, on the other hand, had a tendency, in case of difficulties, of fleeing or withdrawing. The Court concluded that these circumstances would not be conducive to the well-being of the child who was of a sensitive nature and required a secure environment. The Commission accepts, therefore, that the interference with the applicants' right to respect for their 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 child concerned. As a result, the interference was justified under Article 8 para. 2 (Art. 8-2) of the Convention. Insofar as the applicants rely on Article 12 (Art. 12) of the Convention, no separate issue arises under this provision. This part of the application is, therefore, manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicants complain under Article 13 (Art. 13) of the Convention that they did not have an effective remedy at their disposal. The Commission recalls that Article 13 (Art. 13) of the Convention requires a remedy in domestic law only in respect of grievances which can be regarded as "arguable" in terms of the Convention (see Eur. Court HR, Powell and Rayner judgment of 21 February 1990, Series A no. 172, p. 14, para. 31). In the present case, the Commission has just found that the complaints under Articles 8 and 12 (Art. 8, 12) of the Convention are manifestly ill-founded. The Commission finds that the applicants' submissions in this respect do not raise any prima facie issue under the Convention. As a result, no arguable claim can be maintained in respect of a violation of these provisions. It follows that the complaint under Article 13 (Art. 13) of the Convention is also manifestly ill-founded. For these reasons, the Commission, by a majority, DECLARES THE APPLICATION INADMISSIBLE. M.F. BUQUICCHIO J. LIDDY Secretary President to the First Chamber of the First Chamber