European Court of Human Rights

Hoffmann v. Austria

17 E.H.R.R. 293

The applicant divorced her husband taking their two young children with her when she became a Jehovah’s witness, her ex-husband and children being Roman Catholics. Custody of the children was challenged before the Austrian courts. At first instance and in the Regional Court on appeal, the applicant was granted custody. The Supreme Court overturned the earlier decisions and granted custody to the children’s father. The Supreme Court assessed the following factors against the possible psychological stress that transferring the children from their mother to their father might cause: the possible effects on the children’s social life of being associated with a particular religious minority; the hazards of the applicant’s total rejection of blood transfusions for herself and the children; and the domestic law (Religious Education of Children Act) which rendered unlawful the up-bringing of the children, who were Roman Catholics, under the teaching of the Jehovah’s Witnesses. The applicant complained that she had been denied the custody of her children on the ground of her religious convictions contrary to Artlce 8 of the Convention (her right to respect for family life), Article 9 of the Convention (her right to freedom of religion), Article 2 of Protocol No. 1 (her right to ensure the education of her children in conformity with her own religious convictions) and Article 14 of the Convention (her right against discrimination on the ground of religion).



by five votes to four that there had been a violation of Article 8 in conjunction with Article 14;

unanimously that it was unnecessary to rule on the allegation of a violation of Article 8 taken alone;

unanimously that no separate issue arose under Article 9, either taken alone or in conjunction with Article 14;

unanimously that it was not necessary to rule on the allegation of a violation of Article 2 of Protocol No. 1;

by eight votes to one that the respondent State was to pay the applicant, within three months, for costs and expenses, 75,000 Sch.

Family life: interference (Art. 8).

The fact that the Supreme Court’s ruling which resulted in the withdrawal of the children from the applicant’s custody occurred in the context of a dispute between private individuals, did not alter the fact that the ruling amounted to an interference in the applicant’s family life.

Family life: interference and religious discrimination (Arts. 8 & 14).

(a) Article 14 protects the freedoms guaranteed by the Convention from different treatment of persons in similar situations without an objective and reasonable justification.

In casu, the factors considered by the Supreme Court apart from the position under the Religious Education of Children Act were finely balanced. However, the application of the said Act resulted in a difference in treatment which was based solely on religious grounds. A distinction based essentially on a difference in religion alone was not acceptable, with the result that, whilst the aim pursued by the Supreme Court was legitimate, namely the protection of the health and rights of the children, the means employed, namely the withdrawal of the children from the applicant, were disproportionate.

The bases of the remaining complaints were similar to those of the claim under Article 8 in conjunction with Article 14; no separate finding was necessary.