B.W. AND W.W. v. SWITZERLAND

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:

<Translation>

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.