Subject: MOTION FOR A EU-RESOLUTION: Germany does not respect EU law
Date: Tue, 8 Apr 2008 21:43:06 +0200
To: fr4 groupe , papachris belge vict allemagne



The European Parliament,

- having regard to Article 12 of the Treaty establishing the European Community, in conjunction with Article 21 (Non-discrimination) of the Charter of Fundamental Rights of the European Union and Directive 2000/43/EC of 29 June 2000, which prohibit all discrimination on grounds of nationality, as well as Article 3 of the future Lisbon Treaty, which states that the Union 'shall combat [...] discrimination and shall promote [...] protection of the rights of the child' and, in particular, that 'in its relations with the wider world, the Union shall [...] contribute to [...] the protection of human rights, in particular the rights of the child',

- having regard to Article 13(1) of the Treaty establishing the European Community, under which Parliament may take action to combat all discrimination based on sex or racial or ethnic origin in Member States,

- having regard to Article 251 of the Treaty establishing the European Community, in conjunction with Article 7 of the Treaty on European Union, empowering the Council to call on any Member State guilty of breaches of democratic principles and human rights to take appropriate steps,

- having regard to Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, with particular reference to Article 9 thereof, covering compliance with judgments on child access rights,

- having regard to Article 11 of Council Regulation (EC) No 2201/2003, in conjunction with the Hague Convention of 25 October 1980, on securing the prompt return of children wrongfully removed from a Member State,

- having regard to the United Nations Convention of 20 November 1989 on the Rights of the Child and the protocols thereto,

- having regard to the United Nations Convention on the Rights of the Child, which establishes four fundamental principles, namely: protection against all forms of discrimination; the best interests of the child must be a primary consideration; the right to life and to development; and the right to freedom of expression;

- having regard to its resolution of 14 June 2006 on non-discrimination and equal opportunities for all - a framework strategy,

- having regard to Article 24(3) of the Charter of Fundamental Rights of the European Union, which states that 'every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests',

- having regard to Article 24 of the Charter of Fundamental Rights of the European Union, in conjunction with Article 12 of the United Nations Convention on the Rights of the Child, which guarantee children a right of 'participation' ensuring that their experiences and views are taken into consideration on all matters which concern them, and guarantee that that rights is not subject to any conditions or restrictions,

- having regard to the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children,

- having regard to its resolution of 16 January 2008: Towards an EU strategy on the rights of the child, with particular reference to paragraph 29 thereof, which states that 'a strategy on the rights of the child must include provisions to promote the welfare of families' and paragraph 116 thereof, which calls on 'the Member States to remove all restrictions on the right of parents to have contact with their children resulting from nationality differences, particularly in connection with the choice to speak a language other than the official language within a given country; takes the view that the removal of restrictions on multinational families in which there is a conflict between the parents should entail unrestricted freedom to speak in the language chosen by the child and the parent',

- having regard to its declaration of 13 November 2007 on 'dys'crimination and social exclusion affecting children with 'dys'abilities, calling for special treatment for children with 'dys'-type disabilities, </OptDel>

- having regard to Rule 115 of its Rules of Procedure,

A. whereas on 30 January 2007, during a meeting of Parliament's Committee on Petitions, a Commission representative said that the Jugendamt (German youth welfare agency) was guilty of violations of Article 12 of the Treaty establishing the European Community, which prohibits all discrimination on grounds of nationality,

B. whereas, in a letter of 10 January 2008 pointing to the wholly positive effect that bilingualism has on the development of children, Leonard Orban, Commissioner with responsibility for multilingualism, stated that the Commission takes a positive approach to bilingualism and a multilingual upbringing, which it considers to be an important part of the European project and inter-cultural dialogue,

C. having regard to the Commission document entitled 'A new framework strategy for multilingualism', which states that language is the most direct expression of culture and that respect for the individual, openness towards other cultures, tolerance and acceptance of others and respect for linguistic diversity are core values of the European Union, and to the opinion on the multiple benefits of a multilingual upbringing for young people (Report EAC 89/04),

D. having regard to the 'Preliminary Inventory of EU Actions Affecting Children's Rights' published by the Union in connection with the work on the document entitled 'Towards an EU Strategy on the Rights of the Child', with particular reference to section 1.5 thereof, which points to the importance of ensuring that the child is heard in matters concerning it, particularly in legal proceedings relating to international child abductions, and section 1.6, pointing to the need to ensure that contact is maintained with both parents,

E. whereas the report entitled 'Review of the Implementation of Brussels II regulation in relation to parental abduction of children' that was produced by the Freshfields Bruckhaus Deringer organisation on 31 October 2006 states that in many Member States violations of the right of the child to have access to both parents and of the right of the left-behind parent to have a fair trial have been recorded and gives 12 examples of parental child abduction, seven of them to Germany,

F. whereas the Bamberg Declaration adopted in the framework of the international symposium on 'German youth welfare offices and European Convention on Human Rights' chaired by Annelise Oeschger, president of the Conference of International Non-Governmental Organisations of the Council of Europe (Bamberg, 20-21 October 2007), which was forwarded to the EP Committee on Petitions, stated in relation to the Jugendamt that: 'instead of arranging a rapid return of the child, the child very often gets alienated from parents by direct manipulation of the child and/or by procrastination of the proceedings by the youth welfare office and the courts'; that 'it is often made impossible for parents to assert the rights they are entitled to even after a withdrawal of custody (e.g. contact with schools and a right to say, consent to medical procedures, religious education)'; and that 'in numerous cases parents are not allowed to communicate with the children in their native language or the children are barred from speaking in their mother tongue' and may be subjected to physical punishment if they do,

G. whereas during the EP Committee on Petitions meeting of 7 June 2007, Gila Schindler, speaking on behalf of the German Government, acknowledged that the Jugendamt in Hamburg had not acted in accordance with the law in prohibiting the use of Polish during a meeting between a father and his children, stating that the parent involved, a Mr Pomorski, wished to speak to his daughters in Polish, as he usually did, but the Jugendamt forcefully insisted that German be used, thus infringing Mr Pomorski's rights, because the agency's conduct was neither proper nor legal; whereas Mrs Schindler said she was very sorry for what had happened and stated that the Jugendamt had no right to interfere in family law and that, on the contrary, its role was to ensure that decisions handed down by family courts were duly implemented,

H. whereas the Jugendamt's responsibilities have been further increased by the German federal authorities, as evidenced by an amendment to Article 6 of the German Constitution, which gives the state the role of 'primary parent', stating that every child has the right to develop its personality, to an upbringing free of violence and to specific protection against violence, neglect and exploitation, and that it is the state's role to respect, protect and promote the rights of the child's rights and ensure that it lives in an environment that meets its needs,

I. whereas the German Minister of Justice, Brigitte Zypries, has acknowledged that violations of a child's right to choose the language in which it communicates with its parents have occurred, stated that, while a bilingual upbringing, irrespective of the other language involved, is seen as positive and worthy of support in Germany, it may not in some individual cases be in the interests of the child and in such cases it is the duty of the courts - when duly applied to - to determine what form the child's upbringing should take in the future,

J. whereas Jugendamt offices do not come under the jurisdiction of any central authority, but solely that of local authorities, and whereas this arrangement leads to problems,

K. having regard to the large number of cases in which human and children's rights have been violated, pointing to the existence of a general practice of taking children away from non-German parents following the deliberate submission of false or fabricated evidence pointing to the emotional instability or criminal background of the non-German parent, as has happened, among others, to:

* Sabine Vander Elst, a Belgian citizen, who in December 2003 was in absentia deprived of parental rights in respect of her daughter who was eight years old at the time and had been abducted to Lemperheim by her father, a German citizen, and kept in Germany with the help of Jugendamt officials and the courts, which claimed that they were unable to determine where the mother lived, so as to prevent her from attending the court proceedings; the Jugendamt in Lemperheim compiled an unfavourable report on the mother's mental health without attempting to contact her, claiming that there was no need for such contact where the person concerned did not speak German; during meetings with her daughter (under the supervision of a Jugendamt lawyer), the mother was not allowed to speak French; the German federal authorities to which the mother has applied for help have refused to reply, on the pretext that her German is not good enough; the mother has had no contact with the child for some five years;

* Pascal Gallez, a Belgian citizen, who in 1998 was deprived of custody of his son (aged six at the time), who was abducted by his mother, a German citizen, and kept in Germany with the help of the courts; the courts gave the mother exclusive parental rights on the basis of a fait accompli, namely the prior abduction and manipulation of the child; since 2002 the German courts have been dragging out the proceedings concerning visiting rights for the father, at the same time allowing the mother further to manipulate the child; the courts also allowed the child's surname to be changed to his mother's maiden name, without the father being notified of the change, on the grounds that it was for the 'good of the child'; the father has had no contact with the child for some 11 years;

* Wojciech Pomorski, who has Polish and German citizenship and who in 2003 was deprived of access to his two daughters; a court in Hamburg legitimised the children's abduction by their mother, a German citizen, and granted the father supervised visiting rights, in order to ensure that he did not 'abduct the child to Poland'; the Jugendamt in Hamburg forbade the use of Polish during meetings and, when the father protested, cancelled the meetings; in a document of 29 January 2004, the Hamburg Bergedorf Jugendamt maintained that it was clear that, from an educational point of view, it was not in the children's interests for Polish to be used during meetings and that promoting the use of German could not but be beneficial to the children, since they were growing up and were - or would be - attending school in the country; in 2004 the Jugendamt helped the mother to flee with the children to Austria, where they are now living at an unknown address; the father has had no contact with the children for nearly five years;

* Elzbieta Palmer, a Polish citizen, who has been fighting for an equal right to education for her son since 2001; despite the fact that provision of such teaching is compulsory, additional German lessons were not provided for the child when he returned from Poland in 2001, and his knowledge was then assessed; the Jugendamt and the Lower Franconia Education Department refused to recognise Polish certificates attesting to the boy's state of health and intellectual development and repeatedly sent him to a school for children with severe learning and psychological difficulties (Heilpädagogisches Zentrum) or for biased psychological tests, as a result of which the boy, who suffers from a serious heart defect, developed severe psychological blocks and subsequently suffered from psychosomatically triggered life-threatening heart attacks; despite explicit medical recommendations to the contrary, the boy was sent to work during a heatwave, which caused further serious heart disorders; in May 2006 the Jugendamt pressurised the boy into seeing a doctor and secured a decision on the need for him to be placed in a psychiatric hospital on the grounds of his 'excessively emotional relationship with his mother and family'; for the past six years the boy has been refused the right to conventional schooling and the family has been subjected to harassment, with heavy fines and non-recognition of medical certificates;

* Elzbieta Nyks (a Polish citizen) and Zenon Nyks (who has Polish and Austrian citizenship), whose terminally ill daughter was taken away from them and whose older son was allowed to die; in 2003, the Nyks children were diagnosed with muscular dystrophy; in January 2006 the Jugendamt started a campaign of systematic harassment and intimidation against the Nyks, insisting that they gave up their rights to their children and agreed to them being placed with a foster family; the Nyks refused to do so, and in February 2006, with the help of the police, Jugendamt officials took the children to a clinic in Stuttgart and then to Waden, and obtained a court order restricting the parents' rights (depriving them of their right to decide on their sick children's medical treatment and place of stay); at the end of a long struggle, the children returned home, but only for a short time, since on 28 April 2006, the son died at the Instytut Matki Dziecka in Warsaw; the doctors' diagnosis pointed to neglect, a lack of medical treatment and an extremely debilitated physical condition; on the family's return to Germany, the Jugendamt took the second child away from the parents; by order of the courts, the parents may visit their terminally ill daughter for three hours a fortnight, and all attempts to get the child back have to date been thwarted by the Jugendamt;

* Beata Pokrzeptowicz-Meyer, a Polish citizen, who for the past four years has been fighting for custody of and the right to visit her son; in 2004 Jugendamt officials advised the mother, who was bringing up her son on her own, to go to Poland with her son to look for work; once she had left, together with the child's father (who had full visiting rights at the time), they applied to the courts for an order depriving the mother of custody; the mother immediately returned to Germany with the child, and the Jugendamt took the child away and gave the mother supervised visiting rights (28 hours over a nine-month period); the Jugendamt forbade the mother from speaking Polish with the child, who up to then had been bilingual, threatening to end all visits if she did; in 2005 the mother was given a prison sentence for allegedly abducting the child and her parental rights were taken away from her; the German courts granted a Jugendamt request for the boy no longer to be allowed to learn Polish or to have any contact with his Polish family; in September 2006, in a letter to the Polish consular authorities, the Jugendamt said that the child was not Polish and would not be taught Polish; despite the involvement of three courts, the mother has had no contact with her son since August 2006;

* Miroslaw Kraszewski, a Polish citizen, who has been fighting for the right to visit his son for eight years; in 2000 the courts found that a bilingual upbringing was harmful to the child and threatened to take away all visiting rights; in response to an appeal, in 2001 the father was allowed a few hours' supervised visiting time, but forbidden to use Polish during the visits; in 2004 the Jugendamt applied to the courts for a total ban on visits, claiming that the father was not cooperating with it and that he wanted to pass on Polish values to the child and teach him Polish; the court took away the father's visiting rights until 2006, stating that the son was German and German alone; the father has not seen the son for six years;

* Cédric Crouzatier, a French citizen, who in 2006 lost contact with his five children (aged 11, 9, 5 (twins) and 18 months); when the mother filed for divorce, the Jugendamt became involved and drew up an unfavourable report on the father's mental health, without attempting to contact him; it drew up a similar report on the state of health of the oldest son (aged 16), who had gone to France to stay with his father; the Jugendamt drafted an untrue report on the mental health of the other children, about which the children complained to the father over the telephone; although there has been no court ruling on the matter, the father currently has no contact with his children;

* Christian Rost, a German citizen, and Suphon Rost, a Thai citizen, whose daughter was taken away and placed in a children's home by the Jugendamt on the basis of unproven accusations of sexual exploitation, despite the fact that during the court proceedings the parents drew attention to ADHS symptoms in the child; in March 2005, on the basis of suspicions voiced by the mother of one of the girl's friends, Jugendamt officials took the child away while she was at school, falsely stating that she had contacted them, asking for help; for six months the officials prevented all contact between parents and child and, after granting the parents supervised visiting rights, ordered them to sign a document stating, among other things, that German would be spoken during the visits; the courts refused to take account of the evidence produced by the parents and granted the Jugendamt's application for parental rights to be withdrawn; in December 2007 a further psychological examination found that the girl had a wide range of ADHS symptoms and ruled out the possibility of sexual exploitation of the child; despite this, the parents have still not recovered their daughter,

L. whereas more than 250 complaints have been submitted to the EP Committee on Petitions by parents of various nationalities whose interests have been harmed by the Jugendamt and who condemn the methods used by that organisation

1. Voices deep concern at the acts carried out within a Member State by an agency that has been in operation since 1939, when it had responsibility for the racial purity of German children and which is now keeping children away from their non-German parents, often against those children's best interests;

2. Condemns the actions of the Jugendamt, which constitute discrimination on grounds of nationality;

3. Condemns the bans and restrictions placed on communication in the mother tongue of a non-German parent between that parent and his or her children;

4. Condemns the support given by the Jugendamt for parental abductions of children to Germany aimed at creating a fait accompli as regards loss of contact with the non-German parent, and the children's forced assimilation in Germany;

5. Condemns the unfounded applications to family courts made by the Jugendamt in respect of non-German parents;

6. Recommends that children be brought up in accordance with Europe's multicultural and multilingual traditions;

7. Calls on the German Government put an end to the discriminatory methods used by the German youth welfare agency (Jugendamt) and to bring German law in this area into line with Community law, with particular reference to Article 12 of the Treaty establishing the European Community, which prohibits all discrimination on grounds of nationality and Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, which should have been implemented in the Member States by 19 July 2003;

8. Instructs its President to forward this resolution to the Council, the Commission and the German Government.


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