issued by the Registrar of the Court

ECHR 112 (2018)

22.03.2018

ECHR endorses German courts’ decisions to take

Twelve Tribes Church children into care because of caning

In today’s Chamber judgments¹in the cases of Tlapak and Others v. Germany (nos. 11308/16 and

11344/16) and Wetjen and Others v. Germany (application nos. 68125/14 and 72204/14) the

European Court of Human Rights held, unanimously, that there had been:

no violation of Article 8 (right to respect for private and family life) of the European Convention on

Human Rights.

The cases concerned the partial withdrawal of parental authority and the taking into care of children

belonging to the Twelve Tribes Church (Zwölf Stämme), living in two communities in Bavaria

(Germany). In 2012 the press reported that church members punished their children by caning. The

reports were subsequently corroborated by video footage of caning filmed with a hidden camera in

one of the communities. Based on these press reports, as well as statements by former members of

the church, the children living in the communities were taken into care in September 2013 by court

order. The proceedings before the European Court have been brought by four families who are

members of the Twelve Tribes Church. They complain about the German courts’ partial withdrawal

of their parental authority and the splitting up of their families.

The Court agreed with the German courts that the risk of systematic and regular caning of children

justified withdrawing parts of the parents’ authority and taking the children into care. Their

decisions had been based on a risk of inhuman or degrading treatment, which is prohibited in

absolute terms under the European Convention.

The Court pointed out, moreover, that the German courts had given detailed reasons why they had

had no other option available to them to protect the children. In particular, the parents had

remained convinced during the proceedings that corporal punishment was acceptable and, even if

they would have agreed to no caning, there had been no way of ensuring that it would not be

carried out by other members of the community.

Therefore, the German courts, in fair and reasonable proceedings in which each child’s case had

been looked at individually, had struck a balance between the interests of the parents and the best

interests of the children.

Principal facts

Both cases concerned four families who are members of the Twelve Tribes Church (Zwölf Stämme),

living in two communities in Bavaria (Germany). The applicants in the first case are the parents of

the Tlapak and Pingen families, who resided previously in the Wörnitz community. The applicants in

the second case are the parents and children of the Wetjen and Schott families, who used to live

together in the Klosterzimmern community.

In 2012 the press reported that the Twelve Tribes Church punished their children by caning. A year

later a television reporter sent video footage, filmed with a hidden camera, to the local child welfare

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

services and the Nördlingen Family Court, showing the caning of various children between the ages

of three and 12.

At the request of the child welfare services, the family courts brought interim custody proceedings

regarding all children in the Twelve Tribes communities, including the eight Tlapak, Pingen, Wetjen

and Schott children. They based their decisions on the press reports as well as statements by former

members of the church. The courts withdrew certain of the parents’ rights, including making

decisions on their children’s place of residence, health and schooling, and in September 2013 the

welfare services took the communities’ children into care. Some of the children were placed in

children’s homes, others in foster families.

After the four families’ children had been taken into care, the family courts initiated main

proceedings concerning custody and commissioned psychologists’ expert opinions.

In the proceedings before the European Court, the Wetjen and Schott families complained about the

interim proceedings and the Tlapak and Pingen parents complained about the main proceedings. In

both sets of proceedings, the courts concluded that caning constituted child abuse and that taking

the children into care had been justified by the risk of the children being subjected to such abuse

while living with their parents. The courts established this risk after having heard the parents, the

children (except for two who were too young to be questioned), the children’s guardians ad litem

and representatives of the youth office. In the Tlapak and Pingen families’ case, the courts also

heard the psychologist who had been commissioned to draw up a report as well as the expert

commissioned by the applicants. In the Wetjen and Schott families’ case, which concerned the

interim proceedings, the courts deferred the psychologist’s conclusions to the main proceedings.

The courts also gave detailed reasons why there was no alternative option to protecting the

children, other than taking them into care. In particular, during the proceedings the parents

remained convinced that corporal punishment was a legitimate child-rearing method. Even if the

parents themselves would agree to no caning, there was no way of ensuring that other members of

the community would not carry out such punishment on their children.

Both sets of proceedings ended in August 2015 and May 2014 with the Federal Constitutional

Court’s refusal to admit the applicants’ complaints.

The Tlapak parents moved to the Czech Republic in 2015 and have been living there since, without

their son, who remained in care. The court order concerning the Pingens’ son was temporarily lifted

in December 2014 because he was just one year and six months old, and was still being breastfed.

The Pingens other children, two daughters, remained in foster care. The Schotts’ eldest daughter

returned to the community in December 2013 as she was 14 years’ old and no longer at risk of being

caned. The Schotts’ remaining two daughters and the Wetjens’ son remained in care at the end of

the interim proceedings.

Complaints, procedure and composition of the Court

Relying in particular on Article 8 (right to respect for private and family life), the applicants

complained about the proceedings to partly withdraw parental authority and separate the parents

from their children. They also alleged that the relevant proceedings (the interim proceedings for the

Wetjen and Schott families and the main proceedings for the Tlapak and Pingen families) had been

unreasonably long.

The applications were lodged with the European Court of Human Rights on 24 February 2016

(Tlapak and Others) and 17 October and 14 November 2014 (Wetjen and Others).

The judgments were given by a Chamber of seven judges, composed as follows:

Erik Møse (Norway), President,

Angelika Nußberger (Germany),

André Potocki (France),

Yonko Grozev (Bulgaria),

Síofra O’Leary (Ireland),

Gabriele Kucsko-Stadlmayer (Austria),

Lәtif Hüseynov (Azerbaijan),

and also Milan Blaško, Deputy Section Registrar.

Decision of the Court

Length of the proceedings

The Court rejected as inadmissible the Tlapak and Pingen parents’ complaint that the main custody

proceedings had been excessively long. The proceedings had taken one year and 11 months, during

which time the Family Court could not be held responsible for any particular delays. On the contrary,

the court had been active: it had commissioned a psychologist’s opinion, heard the applicants, their

children and further witnesses and led negotiations for a settlement between the applicants and the

youth office.

In view of the Government’s declaration recognising that there had been a violation of Article 8

concerning the length of the interim proceedings, namely from September 2013 to May 2014, in the

Wetjen and Schott families’ cases and proposing compensation, the Court decided to strike out of its

list of cases those parts of the applications.

Withdrawal of parental authority

First the Court found that the decisions to withdraw some parental rights had constituted an

interference with the applicants’ right to respect for their family life. The decisions, based in national

law and on the likelihood that the children would be caned, had aimed at protecting the “rights and

freedoms” of the children.

Furthermore, the Court was satisfied that the decision-making process in the cases had been

reasonable. The applicants, assisted by counsel, had been able to put forward all their arguments

against withdrawal of parental authority. The courts had had the benefit of direct contact with all

those concerned and had diligently established the facts. Even though the Tlapaks and Pingens had

withdrawn their consent for the psychologists’ opinion to be used as evidence in the proceedings,

the Court considered that it had been justified for the German courts to use the opinion given the

general interest at stake, namely the effective protection of children in family court proceedings. It

also found it acceptable that the family courts had not awaited the conclusions of the psychologist

concerning the Wetjens and the Schotts in the interim proceedings, given the need for particular

speediness in such proceedings.

Although taking children into care and splitting up a family constituted a very serious interference

with the right to respect for family life and should only be used as a last resort, the domestic courts’

decisions had been based on a risk of inhuman or degrading treatment, which is prohibited in

absolute terms under the European Convention. The courts had taken an individualised approach,

taking into account whether each child was of an age where they were at risk of corporal

punishment. The courts had also given detailed reasons why there had been no other options

available to protect the children and the Court agreed with those conclusions. Moreover, the

proceedings had concerned a form of institutionalised violence against minors, considered by the

applicant parents as an element of the children’s upbringing. Consequently, any assistance by the

youth office, such as training the parents, could not have effectively protected the children, as

corporally disciplining the children had been based on their unshakeable dogma.

Therefore, based on fair proceedings, the domestic courts had struck a balance between the

interests of the applicant parents and the best interests of the applicant children which did not fall

outside the domestic authorities’ wide room for manoeuvre (“margin of appreciation”) when

assessing the necessity of taking a child into care.

Just satisfaction (Article 41)

In the case of Wetjen and Others, the Court, taking note of the Government’s declaration

recognising that there had been a violation of Article 8 as concerned the length of the interim

proceedings, directed that Germany was to pay the Wetjens 9,000 euros (EUR) and the Schotts

EUR 8,000 in respect of pecuniary and non-pecuniary damage as well as costs and expenses.

The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.