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Decision regarding the liability exclusion privilege of a parent not living in the same household as the child according to § 116.6 sentence 1 of the Tenth Book of the Code of Social Law
Press Release No. 101/2010 of 10 November 2010
Order of 12 October 2010
1 BvL 14/09
§ 116 of the Tenth Book of the Code of Social Law (Zehntes Buch Sozialgesetzbuch - SGB X) provides that a claim for compensation is transferred from the injured party to the social welfare authority to the extent the social welfare authority must make social welfare payments to the injured party because of the event that caused the injury. In accordance with sentence 1 of subsection 6 of the provision, which is the relevant legislation here, there is an exception to this claim transfer for claims arising from non-intentional injury to family members who live together in a joint household with the injured party.
The defendant in the original proceedings is the father of a son born out of wedlock in 2000, over whom the parents exercised joint care and custody. The boy lived with his mother. The defendant completely fulfilled his obligation to make maintenance payments. There were regular visits between him and his son every second weekend in the child's grandparent's house, which is where the defendant also lived. In 2001, the child, who was unsupervised for a few minutes, fell into an unsecured rain barrel on the property and was under water for approximately 10 minutes. The boy suffered very severe injuries from this, which foreseeably will lead to the need for lifelong care and supervision. Since 2002 the responsible social welfare authority has provided social welfare benefits to the child. It is the plaintiff in the original proceedings; it sued the defendant for compensation based upon the right transferred to it in accordance with to § 116.1 SGB X for violation of his duty of proper supervision.
The Regional Court (Landgericht) assumed that the defendant was grossly negligent in his violation of the duty of proper supervision and, thus, the family law exclusion from liability pursuant to § 1664.1 of the Civil Code (Bürgerliches Gesetzbuch) did not apply to him. However, it regarded § 116.6 sentence 1 SGB X as unconstitutional because it violated the general principle of equality and the constitutionally guaranteed protection of the family. By way of proceedings involving the concrete review of a statute (konkrete Normenkontrolle) the court presented the question to the Federal Constitutional Court whether § 116.6 sentence 1 SGB X is compatible with the Basic Law to the extent it does not provide for a liability exclusion privilege for the father of a child who is subject to a duty of maintenance and who does not live in a joint household with the child, in contrast to a family member who lives in a joint household.
The First Senate of the Federal Constitutional Court has decided that § 116.6 sentence 1 SGB X is compatible with the Basic Law. The privilege, arising from exclusion of the claim transfer, of family members living in a joint household as against family members living separately, is factually justified also in regard to parents and their children. However, taking into account the fundamental rights protection of the family and of the parental right, § 116.6 sentence 1 SGB X is to be interpreted in such a way that a joint household, which is the prerequisite for the liability exclusion privilege, also exists between the child and the parent living separately but fulfilling his parental responsibility in regard to the child to the full extent of what is legally possible and has contact with the child on a regular basis for extended periods of time so that the child is temporarily integrated into his household as well.
In essence, the decision is based on the following considerations:
§ 116.6 sentence 1 SGB X does not violate the protection of the family guaranteed by Article 6.1 of the Basic Law (Grundgesetz - GG). This is because the assertion of a claim for compensation by one family member against another family member subsequent to a transfer of the claim does not involve a family-produced financial burden. Rather, it involves a burden that, while it affects the family, arose from the actions of a family member that are the basis of the claim for compensation. The state in principle is not obligated by Article 6.1 GG to compensate a financial burden that arose from the injurious action for which a family member is responsible.
Likewise, Article 6.5 GG, which prohibits children born out of wedlock from being placed in a worse position than children born within a marriage, is not violated by § 116.6 sentence 1 SGB X. The provision does not differentiate as to whether the injuring or injured family member is a child born to married parents or out of wedlock. More accurately it differentiates whether the family member who caused the injury lives together in a joint household with the injured family member. This difference also does not lead to indirect unequal treatment between children born to married parents and children born out of wedlock. This is because nowadays it can no longer be assumed that as a rule children born out of wedlock grow up with only one parent and children born to married parents grow up in a joint household with both parents. Rather, children born within a marriage whose parents have separated can be excluded from the liability privilege as well.
Further, it does not violate the general principle of equality in Article 3.1 GG that § 116.6 sentence 1 SGB X excludes the transfer of a claim for compensation to the social welfare authority when the party that caused the injury lives in a joint household together with the family member who was injured, but not when they live separately from one another. This unequal treatment is justified by sufficient grounds.
Pursuant to the established legislative goal indirect economic disadvantage to the injured party should be avoided by the liability exclusion privilege. The danger of such an adverse effect from the recourse of the social welfare authority against the party who caused the injury is larger when that party lives in a joint household with the injured party. This also applies when the injured party is a child and the party who caused the injury is their parent with a duty of maintenance. Recourse against the parent living separately and obligated to make maintenance payments only reduces his financial resources for financing his own life. Recourse as a rule, however, does not have any effect on the amount of maintenance owed to the child. This is because the social welfare authority's claim for recourse is not taken into account in regard to the law on maintenance and in the event of the consumer insolvency of the parent owing a duty of maintenance the claim for maintenance of the injured child, which has priority for payment before the claim for recourse of the social welfare authority, remains undiminished. If, on the other hand, a claim for recourse was made against the parent with whom the injured child lives, this would reduce the income that the joint household has available. Through this the injured child would also lose finances for its maintenance and, thus, its quality of life would be affected. This is because the amount of expenses for children decisively depends on the amount of the household income of the parents looking after them.
Similarly, the danger of a disruption in the domestic peace between the injured family member and the family member that caused the injury upon the pursuit of recourse by the social welfare authority is significantly larger when both live in a joint household. The event that caused the injury created the potential for conflict between the party that caused the injury and the injured party, which may seriously burden their relationship. If the recourse taken by the social welfare authority creates a financial burden, this could significantly increase household tensions. Both of them, in contrast to when the injured party and the party who caused the injury live separately, would be subject to this permanently and inevitably. This affects a child injured by a parent in a particular way and would have negative effects on the child's development. If the child and the parent live separately, the child is not directly and permanently exposed to these tensions but is confronted with them only when meeting the parent, i.e. during limited periods of time, or not at all.
The factual prerequisite for an exclusion of the transfer of the claim, that the party who caused the injury lives with the injured party in a joint household, which is relevant according to § 116.6 sentence 1 SGB X, however, is to be interpreted in cases of a child and their parent who live separately in light of the protection also of the family existing between them pursuant to Article 6.1 GG and the parental rights of the parent living separately arising from Article 6.2 GG. If one parent has joint custody with the other parent with whom the child primarily lives or if the other parent has sole custody based on the best interests of the child, and the parent regularly makes the agreed or court-ordered child maintenance payments and has regular contact with the child as agreed or granted to the parent, which also includes visits and overnight stays by the child in his home, this parent has fulfilled his parental responsibility in regard to the child to the full extent of what is legally possible. Life in a joint household with a parent living separately is to be placed on equal footing with a joint household in which the child lives with a parent on a daily basis in regard to the protective goal pursued by § 116.6 sentence 1 SGB X. This type of living together should not be less protected regarding the negative effects resulting from a transfer of a claim to the social welfare authority. In such a parent-child relationship the parent responsible for making maintenance payments regularly provides maintenance for the child from his household budget that is beyond his maintenance payment obligation, which would no longer be possible as it was up until then if the social welfare authority seeks recourse against him based upon a transfer of the child's claim for compensation to it. The avoidance of tensions and disputes based upon the assertion of transferred compensation claims is as important for a joint household where the parent and child partially live together as it is for a joint household where the parent and child continuously live together.
If the above prerequisites were presented in regard to the defendant and his child in the original proceedings, which the Regional Court must assess, recourse cannot be pursued against him in accordance with § 116.6 sentence 1 SGB X even though the child does not live permanently with him.