Facts

Parties and authorities: The appellants are a mother (appellant 1) and her two sons (appellants 2 and 3), represented by a lawyer. The subject matter is the appeal against the judgment of the Higher Court of the Canton of Zurich, II. Civil Chamber, of 5 July 2019 (PQ190036-O/U). The Child and Adult Protection Authority (KESB) Dübendorf is the respondent and the authority that issued the decision.

Facts:

  • The mother, a national of Nigeria, entered Switzerland in 2008 and applied for asylum. The son B.A. was born in 2008; paternity remained unclear. In 2010 the social welfare authority U. established a curatorship under Art. 308 para. 1 and 2 CC. The asylum application was rejected; deportation was not expected within one year.
  • A report on the curatorship found that the mother did not recognise the child's basic emotional needs and was overwhelmed by his reactions.
  • In 2014 the son C.A. was born; the KESB established a curatorship under Art. 308 para. 2 CC. Child welfare reports from the school and a socio-educational assessment confirmed problems.
  • In March 2015 the KESB provisionally withdrew from the mother the right to determine B.A.'s residence, placed him in a foundation, and ordered for C.A. socio-educational family support and temporary external care. The background was the suspicion that the mother had seriously ill-treated B.A.
  • In 2017 the District Court of Uster established the paternity of another man and placed C.A. under the sole parental custody of the mother. The KESB informed the Migration Office that it would not oppose the family's departure and would lift the measure for B.A. once the departure had been carried out.
  • On 22 November 2017 the family was deported to Nigeria. By decision of 17 April 2018 the KESB lifted the child protection measures for B.A., retroactively granted the mother the right to determine residence, and lifted the curatorship for C.A.
  • The District Council of Uster dismissed the appeal on 16 April 2019. The Higher Court of the Canton of Zurich likewise dismissed the appeal (judgment of 5 July 2019) and granted legal aid for the proceedings before the higher instance.

Before the Federal Supreme Court: The appellants maintained their requests (continuation of the measures, placement of B.A. in the home [B.] , alternatively remittal with recusal of the members of the authority, annulment of the decisions) and applied for legal aid. The Federal Supreme Court dispensed with a second exchange of written submissions.

Central question: Whether the appellants have a current and practical interest in the success of the appeal, although they live in Nigeria.

Considerations

Admissibility against the final decision: The Federal Supreme Court accepts that this is a final decision (Art. 90 FSCA) in a matter of public law that is directly connected with civil law (Art. 72 para. 2 let. b no. 6 FSCA). There is no minimum amount in dispute (Art. 74 FSCA), the Higher Court is the last cantonal instance (Art. 75 FSCA), and the appeal was filed in time (Art. 100 para. 1 FSCA).

Standing to appeal (Art. 76 para. 1 FSCA): Standing requires a protectable interest, which consists in the practical benefit of a successful appeal. This must as a rule be current and practical, that is, it must exist when the appeal is filed and at the time of the judgment. If it is lacking, the Federal Supreme Court does not enter the case. The appealing party must set out the requirements; the Federal Supreme Court does not investigate on its own initiative.

Lack of current interest: The appellants have lived in Nigeria since their deportation on 22 November 2017. The appeal does not show how the KESB could implement the measures abroad. The appellants also do not argue that a successful appeal would give them a legal possibility of residence in Switzerland, or that the asylum decision which led to their departure would lose its validity as a result. The letter from the SEM of 2 May 2019, which held out the prospect of visas for the sons, does not change this, especially since it depends on further conditions (support of the placement by the KESB, residence permit under Art. 33 ASEO). The question raised regarding the lawfulness of the lifting of 17 April 2018 therefore has no practical relevance; the effects…