CASE OF WUNDERLICH v. GERMANY (Application no. 18925/15) JUDGMENT STRASBOURG 10 January 2019

Der Heimunterricht ist in vielen, darunter EU Staaten erlaubt, in Deutschland jedoch nicht. Hier geht es zur Länderübersicht

Schätzungen zufolge sind es mehr als 100 Familien in Deutschland, die ihre Kinder zu Hause unterrichten. Am 10.01.2019 musste der EGMR einen Fall aus Deutschland entscheiden.

Ein Ehepaar aus Deutschland, Dirk und Petra Wunderlich weigerten sich, ihre vier Kinder bei der Schule anzumelden. Petra Wunderlich unterrichtete die Kinder zu Hause. Als das Jugendamt ihren Wissensstand überprüfen wollte, weigerten sich die Kinder mehrfach. Die Eltern erhielten Geldbußen wegen Verletzung der Schulpflicht, bezahlten sie, aber schickten ihre Kinder dennoch nicht in die Schule. Den Eltern wurde daraufhin vom Amtsgericht Darmstadt das Sorgerecht teilweise entzogen. Im August 2013 standen überraschend rund 20 Sozialarbeiter und Polizisten vor der Tür, nahmen die vier Kinder mit und brachten sie in ein Kinderheim. Begründung: Es bestehe die Gefahr, dass die Kinder sozial isoliert in einer Parallelwelt aufwachsen und keine Chance haben, ein normales Sozialverhalten zu lernen. Erst nach drei Wochen konnten die Kinder zu den Eltern zurückkehren. Diese hatten zuvor schriftlich versprochen, dass sie künftig der Schulpflicht nachkämen. Gegen den Teilentzug des Sorgerechts und die Wegnahme der Kinder klagten Dirk und Petra Wunderlich vor dem Bundesverfassungsgericht und vor Europäischen Gerichtshof für Menschenrechte in Straßburg, jedoch ohne Erfolg. Der Gerichtshof hat die Angemessenheit der behördlichen Maßnahmen geprüft und ist zum Ergebnis gekommen, dass u.a. die Weigerung der Kinder, ihren Wissensstand zu überprüfen und nicht ausreichende Kooperation der Eltern, die Behörden zu Maßnahmen ultima ratio veranlasst haben. Daraus kann man schlussfolgern, dass der Gerichtshof in ähnlichen Fällen bei der Prüfung der Angemessenheit sehr wohl zu einem anderen Ergebnis kommen kann.
THE FACTS
The applicants, Petra Wunderlich and Dirk Wunderlich, are German nationals who were born in 1967 and 1966 respectively. They are parents of four children born between 1999 and 2005. In 2005 the applicants refused to register their oldest daughter at school. Regulatory fines and criminal proceedings were conducted against them for failing to comply with rules on compulsory school attendance. They paid the fines but did not send her to school. From 2008 to 2011 the applicants lived with their children abroad. They returned to Germany in 2011 but did not register their children at any school. By a letter of 13 July 2012 the State Education Authority (staatliches Schulamt), supported by the youth office, informed the family court that Mr and Mrs Wunderlich were deliberately and persistently refusing to send their children to school, thereby endangering the children’s best interests as they were growing up in a “parallel world”. Two months later the Darmstadt Family Court withdrew the applicants’ right to determine their children’s place of residence and their right to take decisions on school matters and transferred these rights to the youth office. It also ordered them to hand their children over to the youth office for enforcement of the rules on compulsoryschool attendance. It found in particular that the parents’ refusal to send their children to school prevented them from becoming part of the community and learning social skills such as tolerance. Attempts by the youth office to conduct learning assessments of the children failed on several occasions between 2012 and 2013. In April 2013 the Frankfurt am Main Court of Appeal rejected an appeal by the parents against the family court’s decision. It considered that there was a concrete danger to the children’s best interests as the education they were receiving from their parents could not be considered as compensating for not attending school. In October 2014 the Federal Constitutional Court refused to accept a constitutional complaint by Mr and Mrs Wunderlich for adjudication. The children were removed and placed in a children’s home for three weeks between August and September 2013. They attended school between 2013 and 2014. In June 2014 Mr and Mrs Wunderlich again withdrew their children from school. Two months later, in parallel proceedings, the Frankfurt am Main Court of Appeal transferred the right to determine the children’s place of residence back to the applicants, noting in particular that the learning assessment had shown that the children’s level of knowledge was not alarming and that, in contrast to August 2013, a risk from Mr Wunderlich to their physical integrity could now be excluded. The Court of Appeal, however, emphasised that the decision should not be understood as permission to educate the children at home.
Relying on Article 8, Mr and Mrs Wunderlich complained about the decision by the German authorities to withdraw parts of their parental authority by transferring them to the youth office. In particular, they complained about the forcible removal of their children and their placement in a children’s home for three weeks.
On 9 October 2014 the Federal Constitutional Court refused to accept the applicants’ constitutional complaint for adjudication, without providing reasons. The decision was served upon the applicants on 16 October 2014.
The applicants complained that the German authorities had violated their right to respect for family life as provided in Article 8 of the Convention by withdrawing parts of parental authority (Entzug von Teilen des elterlichen Sorgerechts) – including the right to determine the children’s place of residence (Aufenthaltsbestimmungsrecht) –, by transferring these parts to the youth office and by executing the withdrawal in the form of forcibly removing the children from the applicants and placing them in a children’s home for three weeks. Article 8 reads as follows:
“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 morals, or for the protection of the rights and freedoms of others.”
The Court’s assessment
The Court further reiterates that it has already examined cases regarding the German system of imposing compulsory school attendance while excluding home education. It has found it established that the State, in introducing such a system, had aimed at ensuring the integration of children into society with a view to avoiding the emergence of parallel societies, considerations that were in line with the Court’s own case-law on the importance of pluralism for democracy and which fell within the Contracting States’ margin of appreciation in setting up and interpreting rules for their education systems (see Konrad and Others; Dojan and Others; and Leuffen; all cited above).
The Court finds that the enforcement of compulsory school attendance, to prevent social isolation of the applicants’ children and ensure their integration into society, was a relevant reason for justifying the partial withdrawal of parental authority. It further finds that the domestic authorities reasonably assumed – based on the information available to them – that children were endangered by the applicants by not sending them to school and keeping them in a “symbiotic” family system.
Lastly, the Court has to examine whether the decisions to withdraw parts of the parents’ authority and to take the children into care were proportionate. The domestic courts gave detailed reasons why less severe measures than taking the children into care were not available. They held, in particular, that the prior conduct of the applicants and their persistent resistance to measures had shown that merely issuing instructions would be ineffective. The Court notes that not even prior administrative fines had changed the applicants’ refusal to send their children to school. It therefore finds, in the circumstances of the present case, the conclusion by the domestic courts acceptable.
The Court would further reiterate that the seriousness of measures which separate parent and child requires that they should not last any longer than necessary for the pursuit of the child’s rights and that the State should take measures to rehabilitate the child and parent, where possible (see T.P. and K.M. v. the United Kingdom, cited above, § 78, with further references). In that regard it notes that the children were returned to their parents after the learning assessment had been conducted and the applicants had agreed to send their children to school. The Court therefore concludes that the actual removal of the children did not last any longer than necessary in the children’s best interest and was also not implemented in a way which was particularly harsh or exceptional (see K. and T. v. Finland, cited above, § 173). In that regard, the Court also observes that the applicants did not complain about the placement of their children in a particular facility or the treatment of their children while in care.
In so far as the applicants complained that the partial withdrawal of parental authority had only been lifted in August 2014, the Court notes that, after the first learning assessment, a further in depth long-term assessment of the children’s development was necessary, which required continuous attendance at school. Furthermore, the Court finds that the existence of the non-enforced decision did not impose any identifiable actual prejudice (compare R.K. and A.K. v. the United Kingdom, cited above, § 38).
The foregoing considerations are sufficient to enable the Court to conclude that there were “relevant and sufficient” reasons for the withdrawal of some parts of the parents’ authority and the temporary removal of the children from their family home. The domestic authorities struck a proportionate balance between the best interests of the children and those of the applicants, which did not fall outside the margin of appreciation granted to the domestic authorities.
There has accordingly been no violation of Article 8 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning Article 8 of the Convention admissible;

2. Holds that there has been no violation of Article 8 of the Convention.

 

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