(Apr. 19, 2018) On March 22, 2018, the European Court of Human Rights (ECtHR) unanimously held in the cases of Tlapak and Others v. Germany and Wetjen and Others v. Germany that the withdrawal of the applicants’ parental authority did not violate article 8 of the European Convention on Human Rights (ECHR), which grants the right to respect for private and family life. The applicants, members of the Twelve Tribes Church living in communities in Bavaria, had challenged German court decisions that partially withdrew their parental authority and placed their children in foster care because the applicants continuously punished their children by caning. (Tlapak and Others v. Germany, App. Nos. 11308/16 & 11344/16 (Eur. Ct. H.R., 2018), ECtHR website; Wetjen and Others v. Germany, App. Nos. 68125/14 & 72204/14 (Eur. Ct. H.R., 2018), ECtHR website; Convention for the Protection of Fundamental Rights and Freedoms (European Convention on Human Rights) (ECHR), art. 8, Nov. 4, 1950, 213 U.N.T.S. 221, ECtHR website).
The Twelve Tribes Church is a Christian religious community centered on the Apostolic Age of Christianity. Among other beliefs, the members of the community maintain that corporal punishment of children by caning is prescribed by their particular faith, relying on several sections of the Bible for evidence. (Ulrike Heidenreich, Abgewiesene Klage der “Zwölf Stämme” – Eine Wohltat für die Rechte von Kindern [Rejected Lawsuit of the “Twelve Tribes” – A Blessing for Children’s Rights], SUEDDEUTSCHE (Mar. 22, 2018).)
For over ten years, the Twelve Tribes communities in Bavaria have clashed with the local authorities many times over issues like homeschooling (which is generally not allowed in Germany) and corporal punishment. Repeatedly, the police have taken children away from their parents and placed them in the care of foster families, and attempts have been made to prosecute the parents and teachers for causing bodily harm to the children entrusted to them. (Christian Rost, Prügelnde Sekte “Zwölf Stämme“ nach Tschechien übergesiedelt [Beating Sect “Twelve Tribes” Relocates to Czech Republic], SUEDDEUTSCHE (Jan. 4, 2017).) In 2013, after video footage of the systematic practice of caning even very small children was brought to the public’s attention, the police raided two communities in Bavaria and separated 40 children from their parents. (Heidenreich, supra.)
According to article 6, paragraph 2 of the German Basic Law—the German Constitution—parents generally have the right and obligation to care for and raise their children as they see fit under the supervision of the state. (Grundgesetz [GG] [Basic Law], May 23, 1949, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, as amended, art. 6, para. 2.) On the other hand, article 1, paragraph 1 and article 2, paragraph 2 of the Basic Law also guarantee human dignity and children’s right to physical integrity. Moreover, in 2000, the right of children to a nonviolent upbringing was codified in section 1631, paragraph 2 of the German Civil Code. (BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, BGBl. I at 42, 2909; 2003 BGBl. I at 738, as amended, German Laws Online website). Section 1666, paragraph 1 of the Civil Code provides that courts can order necessary measures if the well-being of children is at risk and the parents are unwilling or unable to avert the risk. (Id.)
Facts of the Case
The applicants—four families belonging to Twelve Tribes Church communities in Bavaria—challenged German family court decisions that in part withdrew their parental authority and ordered that their children be placed in children’s homes and foster families.
After the widespread caning of children by the members of the Twelve Tribes Church was made public, the local child welfare services initiated interim proceedings before the family courts, which partially withdrew the parental authority and authorized some children to be placed with foster families. In the main proceedings that followed, the family courts came to the conclusion that the caning constituted child abuse and the separation of the families was justified because, as the parents insisted that corporal punishment was a legitimate child-rearing method, the child abuse was expected to continue. The Court of Appeal dismissed the applicants’ appeal and the Federal Constitutional Court refused to hear the applicants’ constitutional complaints. (Tlapak and Others v. Germany, paras. 7–49; Wetjen and Others v. Germany, paras. 7–24.)
The applicants claimed that these decisions violate their right to respect for private and family life (ECHR, supra, art. 8) and that the proceedings before the German family courts were not only excessively long but also unfair, being based only on general perceptions regarding their religious community (id. arts. 6 & 8). Moreover, the applicants invoked articles 9 and 14 in conjunction with article 8 of the ECHR and article 2 of Protocol No. 1, alleging that they were deprived of the opportunity to raise their children in accordance with their religious beliefs and that, as their religion was the reason for the withdrawal of parental authority, their religious community was stigmatized by the courts’ decisions. (Tlapak and Others v. Germany, para. 3; Wetjen and Others v. Germany, para. 3.)
The ECtHR rejected the applicants’ claims in Tlapak and Others v. Germany regarding excessively long main proceedings before the family courts because the proceedings took only one year and eleven months and the courts did not cause any particular delays. (Tlapak and Others v. Germany, paras. 65–66.) In the case of Wetjen and Others v. Germany, the German government made a declaration recognizing a violation of article 8 of the ECHR due to the length of the interim proceedings before the family courts, thus removing the issue from the scope of the decision. (Wetjen and Others v. Germany, paras. 42–43, 45–48.)
Furthermore, the ECtHR decided that the risk of inhuman or degrading treatment of children, which is prohibited in absolute terms in article 3 of the ECHR, justified the partial withdrawal of parental authority and the splitting up of the families. (Tlapak and Others v. Germany, paras. 97–101; Wetjen and Others v. Germany, paras. 84–87.)
Thus, the Court concluded that the German courts had struck the right balance between the conflicting rights at issue and had not violated the ECHR in their decisions. (Tlapak and Others v. Germany, paras. 97–101; Wetjen and Others v. Germany, paras. 84–87.)
In the meantime, the families of the Twelve Tribe Church communities in Bavaria have moved to the Czech Republic, where corporal punishment of children is not prohibited conclusively and comprehensively. (Heidenreich, supra.)
Prepared by Felicia Stephan, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist.