EHRM, 10-01-2019, nr. 18925/15

The applicants, Petra Wunderlich, who was born in 1967, and Dirk Wunderlich, who was born in 1966, are married to each other.

The applicants are the parents of four children: M. (born in July 1999), J. (born in September 2000), H. (born in April 2002) and S. (born in September 2005).

The applicants reject the State school system and compulsory school attendance and wish to homeschool their children themselves. In 2005 their oldest daughter, M., reached school age. The applicants refused to register her in a school. Several regulatory fines and criminal proceedings were conducted against the applicants for failing to comply with rules on compulsory school attendance. The applicants accepted these decisions and paid the fines, but did not change their behaviour.

Between 2008 and 2011 the applicants lived with their children abroad. In 2011 they returned to live permanently in Germany, but did not register their children with any school.

By a letter of 13 July 2012 the State Education Authority (staatliches Schulamt — hereinafter ‘the Education Authority’) informed the competent family court that the applicants were deliberately and persistently refusing to send their children to school and provided a chronological list of administrative fines and criminal investigations against the applicants — amongst others for hitting one of the daughters — as well as of other incidents since 2005. The Education Authority concluded that the children were growing up in a ‘parallel world’ without any contact with their peers and that they received no attention of any kind which would enable them to have a part in communal life in Germany. It therefore suggested a court measure under Article 1666 of the German Civil Code (see paragraph 25 below), arguing the children's best interests were endangered owing to their being systematically deprived of the opportunity to participate in ‘normal’ life. The youth office (Jugendamt — hereinafter: ‘the youth office’) supported the request of the Education Authority. It considered that the persistent refusal of the applicants endangered the best interests of the children.

The Darmstadt Family Court initiated court proceedings and heard testimony from the applicants, their children and the youth office. It also appointed a guardian ad litem for the children. In the oral hearing, on 6 September 2012, the applicants stated that they had paid the administrative fines imposed on them for not sending the children to school and that, despite the State sanctions, they would continue to homeschool their children. Already in a previous written submission the applicants had confirmed their unwillingness to send their children to school and had stated that the authorities would have to remove their children from the family home and take them away from them entirely if the children were ever to go to a State school. The children explained during the hearing that it was primarily their mother who taught all four children and that school normally started at 10 a.m. and lasted until 3 p.m., with a break for lunch, which was prepared by their mother.

On 6 September 2012 the Darmstadt Family Court withdrew the applicants' right to determine their children's place of residence, their right to take decisions on school matters and right to apply to the authorities on behalf of their children, and transferred these rights to the youth office. It also ordered the applicants to hand their children over to the youth office for enforcement of the rules on compulsory school attendance and authorised the youth office to use force if necessary. In its reasoning the court stated that the parents' persistent refusal to send their children to a State school or a recognised grant-aided independent school not only violated section 67 of the Hesse School Act (Hessisches Schulgesetz) (see paragraph 31 below) but also represented an abuse of parental authority which risked damaging the children's best interests in the long term. Independent from the question of whether it could be ensured that the children were acquiring sufficient knowledge through the applicants' homeschooling, the children's not attending school was preventing them from becoming part of the community and learning social skills such as tolerance, assertiveness and the ability to assert their own convictions against majority-held views. The court found that the children needed to be exposed to influences other than those of their parental home to acquire those skills. Lastly, the court concluded that no less severe measures were available. Owing to the persistent refusal of the applicants to send their children to school, only withdrawing parts of parental authority could ensure the children's continual attendance at school and would prevent them suffering harm on account of them being educated at home.

The applicants appealed against that decision.

In a letter dated 15 November 2012 the youth office informed the applicants that it intended to assess the children's knowledge on 22 November 2012 and asked the applicants to have their children ready to be collected on that day. On 22 November 2012 a member of staff of the youth office, acting as the children's guardian, attempted to take the children to the Education Authority's premises to conduct the learning assessment. The children refused to go with him. A second attempt to take the children to the learning assessment on the same day by two members of the public-order office and a police patrol also failed on account of the children's refusal to accompany them. In a letter dated 10 December 2012 the applicants were notified of two dates (19 December 2012 and 17 January 2013) on which the children were to be assessed at home. The applicants submitted statements to the Education Authority in which they informed the latter that the children did not wish to participate in the assessment. In a letter dated 20 December 2012 the Education Authority informed the applicants' lawyer that in order to ensure the children's school attendance the children would, among other things, firstly have to undergo a learning assessment. At the same time the parents were informed that the appointment of 19 December 2012 had been cancelled, but the appointment of 17 January 2013 still stood. However, staff of the Education Authority were not allowed to enter the family home when they arrived for the appointment in January 2013. The father spoke to the members of staff and explained that he believed that the Family Court's decision had been unlawful and that he alone was authorised to decide whether his children attended school or not.

On 25 April 2013 the Frankfurt am Main Court of Appeal rejected the parents' appeal, but clarified that the applicants retained the right to determine their children's place of residence during school holidays in Hesse. At the outset the court noted that up to that date the children had not attended school, even though the decision of the Darmstadt Family Court had not been suspended. It also observed that all attempts to conduct a learning assessment had failed on account of the children's and the parents' resistance. As to the law, the court outlined that the decision to withdraw parts of parental authority under Articles 1666 and 1666a of the Civil Code (see paragraphs 25 and 26 below) presupposed a significant endangerment of the best interests of the children, which the parents were unable or unwilling to prevent. To establish such an endangerment, a process of balancing the various interests had to be undertaken, during which the rights and interests of the children and of the parents as well as the interests of society had to be considered. In particular, a withdrawal of parental authority could not be justified to enable children to receive the best possible education but only to prevent any endangerment of children. Applying these principles to the case at hand, the court concluded that the applicants' persistent refusal to ensure that their children attended school risked damaging the best interests of the children. According to the court, the children's best interests were in concrete danger on account of them being kept in a ‘symbiotic’ family system and being denied an education which met standards which were both well recognised and fundamentally important for growing up in society. The education they were receiving from the applicants could not compensate for not attending school. Five hours of homeschooling — including a lunch break —, which was conducted concurrently for all four children, could not suffice to offer each child a range of schooling appropriate to his or her age. In addition, the children were also not members of any sports club, music school or similar organisation where they could acquire other skills important for their education. The court also noted that the applicants' submissions as a whole showed that their main concern was creating a strong attachment between the children and their parents to the exclusion of others. Moreover, by their persistent refusal they were also teaching the children that they did not need to comply with the rules of community life if they found them disagreeable. Lastly, the Court of Appeal found that there were no less severe measures available, since merely issuing instructions would have been ineffective, as shown by the applicants' previous conduct and submissions. Consequently, the withdrawal of parts of parental authority by the Family Court had been correct.

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.

In later proceedings (see paragraph 23 below) the Frankfurt am Main Court of Appeal transferred the right to determine the children's place of residence back to the applicants on 15 August 2014.

On 26 August 2013 the youth office arranged a meeting between the applicants, their lawyer, the youth office and the Education Authority. During the meeting the applicants declared that they refused — on principle —

to have their children schooled outside the family. In addition, Mr Wunderlich stated, amongst other things, that he considered children to be the ‘property’ of their parents.

On 29 August 2013 the applicants' children were removed from the parental home and placed in a children's home. The children had to be carried out of the house individually with the help of police officers after they had refused to comply with the court bailiff's requests to come out voluntarily.

On 12 September 2013 and on 16 September 2013 the knowledge of the applicants' children was assessed for ninety minutes each during two school appointments with a view to determining the children's appropriate class and schooling requirements.

In written submissions dated 10 September 2013 concerning other ongoing proceedings before the Family Court the applicants agreed to the children's attending school. On 19 September 2013 the court heard testimony from the applicants, their children and a member of staff of the Education Authority. The children were subsequently handed back to the applicants that same day, since the applicants were now willing to allow their children to attend school.

Following the return of the children on 19 September 2013, they attended school for the school year of 2013-14. On 16 May 2014 the Education Authority lodged a criminal complaint against the applicants for failing to comply with rules on compulsory school attendance. On 25 June 2014 the applicants again withdrew their children from school.

On 15 August 2014, 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. The court held that, as pointed out in its decision of 25 April 2013 (see paragraph 15 above), the applicants' persistent refusal to send their children to school constituted child endangerment and that neither their temporary schooling nor the learning assessment of the children had changed that conclusion. However, the court continued, the situation had changed in comparison to that of August 2013, at which point — according to the information provided by the youth office — several elements had led to the children's removal from the family home: a risk emanating from the children's father to their physical integrity could not be excluded; failed attempts to bring the children to school by the police had led to the risk of the children internalising the attitude that laws had had no bearing on them; attempts to carry out a learning assessment had failed owing to the resistance of the applicants; and according to the information available at the time, it had been possible to assume that the children had had no contact with anyone outside of the family whatsoever. According to the information gathered since the removal of the children by the youth office, any risk to their physical integrity emanating from the applicants could now be excluded. Moreover, the learning assessment had showed that the knowledge level of the children was not alarming and that the children were not being kept from school against their will. Since permanent removal of the children from their parents would be the only possible way to ensure the continued schooling of the children, this was no longer proportionate as it would have a greater impact on the children than being homeschooled by their parents. The Court of Appeal however emphasised that the present decision should not be understood as permission for the applicants to homeschool their children. In that regard it observed that the Education Authority had already lodged a criminal complaint against the applicants for failing to comply with the rules on compulsory school attendance, which carried a maximum sentence of six months' imprisonment.

Article 6 of the Basic law, in so far as relevant, reads as follows

31. Article 1666 of the German Civil Code reads, as far as relevant, as follows:

Article 1666a of the German Civil Code, in so far as relevant, reads as follows:

Article 1696 of the German Civil Code, in so far as relevant, reads:

According to an earlier decision of the Federal Court of Justice (no. XII ZB 42/07, 17 October 2007), parents' persistent refusal to send their children to a State primary school or an approved grant-aided independent school represents an abuse of parental authority which endangers the best interests of the children concerned and can necessitate that a family court takes measures under Articles 1666, 1666a of the Civil Code. A partial withdrawal of parental authority and the ordering of guardianship are in principle suitable for countering such an abuse of parental authority. The Federal Court of Justice also concluded that it might be appropriate for a guardian to be authorised to enforce the handing over of children, if need be by using force and by means of entering and searching the parents' home, as well as by drawing on the assistance of the bailiff's office or the police.

Section 56 of the Hesse School Act reads, as far as relevant, as follows:

Section 60 of the Hesse School Act, in so far as relevant, reads as follows:

The relevant part of section 67 of the Hesse School Act reads as follows:

The Government submitted that the complaint as far as the decision taken by the youth office — in the exercise of the right to determine the children's place of residence was transferred to the office — to take the children into care between 29 August and 19 September 2013 was inadmissible. The Government argued that the application received by the Court in April 2015 had been lodged after the expiry of the six-month time-limit set out in Article 35 § 1 of the Convention, which had begun to run from the children's time in a children's home between 29 August and 19 September 2013.

The applicants contested that argument.

The Court reiterates that the six-month time-limit provided for by Article 35 § 1 marks out the temporal limit of the supervision exercised by the Court and signals, both to individuals and State authorities, the period beyond which such supervision is no longer possible. The existence of such a time-limit is justified by the wish of the High Contracting Parties to prevent past judgments being constantly called into question and constitutes a legitimate concern for order, stability and peace (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 40, 29 June 2012, with further references). Rule 47 of the Rules of Court closer defines the relevant date of introduction and reads, in so far as relevant:

The Court observes that the removal of the children constituted the execution of the Darmstadt Family Court's decision of 6 September 2012 and is therefore intrinsically tied to that decision. The applicants appealed against the decision and exhausted the domestic remedies by lodging a constitutional complaint, which was not admitted for adjudication. The decision of the Federal Constitutional Court was served upon the applicants on 16 October 2014 (see paragraph 16 above). The applicants' duly completed application form accompanied by copies of all relevant documents was sent to the Court on 16 April 2015. The Court therefore concludes that the applicants' application was lodged within the six-month time-limit.

The Court also notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.