Bundesverfassungsgericht

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Successful constitutional complaint against custody decision of Naumburg Higher Regional Court in the matter of Görgülü

Press Release No. 34/2005 of 20 April 2005

Order of 05 April 2005

1 BvR 1664/04

The Federal Constitutional Court has once more criticised a decision of the Fourteenth Senate of the Naumburg Higher Regional Court (Oberlandesgericht - OLG). The Higher Regional Court had rejected the complainant's petition for the custody of his illegitimate child. The First Chamber of the First Senate determined that the decision of the Naumburg Higher Regional Court violated the complainant's fundamental right under Article 6.2 sentence 1 of the Basic Law (parental right) in conjunction with Article 20.3 of the Basic Law (binding force of law and justice) and referred the matter back to a different family senate of the Naumburg Higher Regional Court.

Facts of the case:

The complainant is the father of a child born illegitimate in 1999. Immediately after the birth, the mother agreed to the adoption of the child; since that time, the child has been living with foster parents. After, at the instigation of the complainant, his paternity had been judicially determined, he attempted in a number of judicial proceedings, without success, to have custody transferred to himself and to be given a right of contact. In response to his individual application, the European Court of Human Rights (ECHR), in a judgment of 26 February 2004, found that the custody decision and the exclusion of the right of contact constituted a violation of Article 8 of the European Convention of Human Rights (the Convention). Nevertheless, the Fourteenth Senate of the Naumburg Higher Regional Court rejected the complainant's petition for custody, because, it stated, the judgment of the European Court of Human Rights had no binding effect. The complainant's constitutional complaint directed against the order of the Higher Regional Court was successful.

The decision is essentially based on the following considerations:

The Naumburg Higher Regional Court did not take sufficient account of the judgment of the European Court of Human Rights.

1. A national court must in principle take into account the case-law of the European Court of Human Rights (see Order of 14 October 2004 - 2 BvR 1481/04 -; Press release no. 92/2004 of 19 October 2004). Nor does the application of Article 8 of the Convention as interpreted by the European Court of Human Rights lead to results that are incompatible with the Basic Law. The European Court of Human Rights stated that the Higher Regional Court should have examined whether there were possibilities of bringing the father and the child together that were less onerous for the welfare of the child. In addition, it stated that the long-term effects of a separation of the child from its natural father must be taken into account. This is in compliance with the Basic Law. When the decision is made as to the conditions under which a child may be removed from a foster family in order to move it to its natural parents, then - and this is also the position under the case-law of the Federal Constitutional Court - account must be taken of the parental right, of the fundamental right of the child and of the fundamental right of the foster family. In the weighing of interests, the welfare of the child must in the last instance be the deciding factor. In order to preserve this protection of fundamental rights, the judicial proceedings must be suited to achieve a foundation as reliable as possible for a decision oriented to the welfare of the child.

2. The decision of the Higher Regional Court does not satisfy these requirements. The Higher Regional Court incorrectly takes the view that the judgment of the European Court of Human Rights is not binding on the national courts. In addition, it failed to recognise that it is not important whether the decision of the European Court of Human Rights removes the finality and non-appealability of the criticised decision of the Higher Regional Court. For custody proceedings do not admit the plea of res judicata. The care of the minor always has priority over the finality of a decision once taken. An amending decision requires cogent reasons that have a long-term effect on the welfare of the child. However, it is recognised that a change in case-law may also constitute a reason for amendment. The Higher Regional Court failed to realise that in this connection too the decision of the European Court of Human Rights is to be taken into account.

Finally, the Higher Regional Court also failed to consider how Article 6.2 sentence 1 of the Basic Law (parental right) could have been interpreted in a way that complied with the duties under public international law of the Federal Republic of Germany. Thus, for example, it did not sufficiently consider the question raised by the European Court of Human Rights as to what long-term effects a permanent separation of the child from its father has and whether there are possibilities of bringing the father and the child together that are less onerous for the welfare of the child. In order to counteract a possible endangerment of the welfare of the child by an immediate removal of the child from the foster family, it would, for example, have been conceivable to transfer custody to the complainant, but to link this with an order for the child to remain with the foster family. Finally, the Higher Regional Court did not carry out the necessary investigations in order to be able to answer the questions raised by the European Court of Human Rights. The educationalist K., on whose opinion the Higher Regional Court bases its decision, did not include the complainant himself in her investigations. Since, moreover, this is an opinion commissioned by the Land Youth Welfare Office, which is to be defined as a party opinion, it would have been advisable to obtain the report of an independent expert. In addition, the Higher Regional Court - as far as can be seen - at no time obtained a personal impression of the parties.

Order of 5 April 2005 - 1 BvR 1664/04 -

Karlsruhe, 20 April 2005