Bundesverfassungsgericht

You are here:

Regulations on the challenge of paternity by public authorities are null and void

Press Release No. 4/2014 of 30 January 2014

Order of 17 December 2013
1 BvL 6/10

The regulations on the challenge of paternity by public authorities that were introduced in 2008 are unconstitutional and void. This was decided by the First Senate of the Federal Constitutional Court in a decision that was published today. A challenge by public authorities results in the retroactive loss of paternity and the child's loss of German citizenship. While the legislative purpose in creating these provisions was legitimate, namely to prevent that the rules of immigration law are deliberately circumvented through an acknowledgment of paternity, the specific framing of the regulations violates Art. 16 sec. 1 of the Basic Law (Grundgesetz - GG) as well as Art. 6 sec. 1 GG, Art. 6 sec. 2 sentence 1 GG and Art. 2 sec. 1 GG in conjunction with Art. 6 sec. 2 sentence 1 GG. Because of the broad range of reasons allowing for such a challenge, the regulations also cover those acknowledgments of paternity that do not aim to circumvent the laws of residence.

Facts of the Case and Course of the Proceedings:

1. With an order of 15 April 2010, the Hamburg-Altona Local Court (Amtsgericht Hamburg-Altona) suspended proceedings concerning a challenge of paternity by public authorities in order to obtain a decision from the Federal Constitutional Court as to whether the regulations relevant to the matter are compatible with the Basic Law.

2. The challenge of paternity by public authorities was introduced in 2008. The legislature was of the impression that, in certain scenarios, an acknowledgment of paternity is used to circumvent the rules of immigration law, in particular, to obtain German citizenship for the child, which results in the foreign mother's right to residence in Germany.

Public authorities are entitled to challenge a legal paternity which was established by acknowledgment if - in addition to the lack of biological paternity - the person having acknowledged paternity is not bearing actual responsibility for the child ("social and family relationship") nor has done so at the time the acknowledgment was made or the acknowledger died, and if the acknowledgment creates the legal prerequisites for a legal entry, stay or residence of the child or a parent in Germany (§ 1600 sec. 3 of the Civil Code, Bürgerliches Gesetzbuch - BGB). Moreover, the challenge must be brought within a certain time limit, which may not commence prior to 1 June 2008 (Art. 229 § 16 of the Introductory Law of the German Civil Code, Einführungsgesetz zum Bürgerlichen Gesetzbuch - EGBGB). Once the decision on the non-existence of paternity has become final, the legal paternity ends, which means that the child no longer fulfils the prerequisites for the acquisition of the German citizenship, and its citizenship, as well as the foreign parent's right of residence, lapse. These legal consequences have retroactive effect until the time of the child's birth.

Key Considerations of the Senate:

The regulations on the challenge of paternity by the authorities are unconstitutional and void.

1. a) Art. 16 sec. 1 GG protects Germans against deprivation and loss of their citizenship. This protection is also accorded to children who have acquired German citizenship as a result of an acknowledgment of paternity. Accordingly, a successful challenge of paternity by public authorities interferes with these constitutional guarantees.

b) Because the parties affected are, in some cases, unable to exert any influence on such a loss of citizenship or, in other cases, cannot be reasonably expected to do so, the challenge of paternity by public authorities constitutes a deprivation of citizenship within the meaning of Art. 16 sec. 1 sentence 1 GG, which is absolutely prohibited.

aa) The children themselves cannot influence the loss of their citizenship.

bb) Inasmuch as acknowledgments of paternity are covered that were made before the regulations on challenges of paternity by public authorities entered into force, the loss of citizenship is also beyond the parents' influence. Regarding Art. 16 sec. 1 GG it may, in principle, be possible to attribute to the children the influence of their parents on the loss of citizenship. Further, the influence on the acquisition of citizenship may, as an exception, be considered an influence on the loss of citizenship, provided that the parties affected are already at the time they acquire citizenship responsible for its instability.

However, until the challenges by public authorities were introduced, parents could assume that an acknowledgment of paternity would be effective regardless of its purpose. They did not have to expect that the regulations on challenges by public authorities include acknowledgments of paternity that had been made prior to the regulations entering into force on 1 June 2008.

cc) Inasmuch as acknowledgments of paternity are affected that were made after the regulations on challenges by public authorities entered into force, it was possible, but could not in all cases reasonably be expected, to influence the loss of citizenship by the parents forgoing any acknowledgment of paternity that might end up being challenged by the authorities.

(1) In general, the regulations on the acknowledgment of paternity do not establish a legal expectation that certain acknowledgments of paternity will be forgone. The parents may acknowledge paternity for a wide range of reasons; this also applies to cases in which they expect - or even know - that the person acknowledging paternity is not the child's biological father. By contrast, where the requirements set out in § 1600 sec. 3 BGB are met, the regulations on challenges by public authorities demand that the parents forgo such an acknowledgment of paternity if they do not wish to risk that, at a later time, the child might lose its citizenship as a result of the challenged paternity. The sole parties affected are bi-national couples and foreign couples where the residence status of at least one parent is not secured.

(2) It can reasonably be expected of parents to forgo an acknowledgment of paternity under the circumstances mentioned in § 1600 sec. 3 BGB if the acknowledgment aims at obtaining advantages under the immigration law that would not otherwise be granted. On the other hand, where an acknowledgment of paternity is not made solely to circumvent the requirements of the German immigration law, it cannot reasonably be expected of the parents to waive the possibility of acknowledging paternity, which the legislature has otherwise instituted without regard to the motives behind it and that is available to all other couples who are in exactly the same situation. Accordingly, the authorities' ability to challenge paternity must be restricted to cases in which the acknowledgment is solely motivated by specific residence-related interests.

(a) The prerequisites for a challenge of paternity by public authorities chosen by the legislature cannot ensure this restriction with sufficient reliability. Inasmuch as § 1600 sec. 3 BGB refers to creating prerequisites for permitted entry or residence, all acknowledgments of paternity are covered in which the mother did not have a secured residence status. It has not been shown in the course of the legislative process, nor are there any other indications, that in such cases paternity is acknowledged generally for residence-related reasons. The lack of a "social and family relationship" between the father and the child is not a reliable indicator either. As a general rule, a social and family relationship exists if the father has lived with the child in domestic community for a certain period of time (§ 1600 sec. 4 BGB). In the present context, this requirement is too narrow, since it does not allow for a sufficiently safe assumption that the acknowledgment of paternity was made specifically in order to circumvent the stipulations of the immigration law.

(b) In view of the set-up of the legal system, this deficit cannot be remedied by interpretation. The criterion of a "social and family relationship" between the child and its legal father is also used to restrict challenges of paternity by the biological father; the restriction of the biological father's fundamental rights is constitutional only to protect an existing social and family relationship between a legal father and his child. Although said restriction to the challenge of legal paternity by the biological father exists in a completely different constitutional-law context than in case of a challenge by public authorities, this criterion has been defined in § 1600 sec. 4 BGB in the same way for both constellations. The double function of this criterion does not allow it to be interpreted broadly in case of a challenge by the authorities since, in case of a challenge by the biological father, it must be construed narrowly for constitutional reasons.

(c) Although there are no external factors allowing one to distinguish without ambiguity acknowledgments of paternity motivated by residence-related interests from other acknowledgments of paternity, the chosen legal prerequisites are not the only way a challenge of paternity by public authorities can be asserted at all. It is not impossible to use criteria that are targeted more narrowly than the lack of a social and family relationship. Even if such criteria could not completely cover all cases of acknowledgments of paternity motivated by residence-related interests, this could be tolerated. Neither the legislative process nor anything else has shown that it is particularly urgent to combat acknowledgments of paternity that are motivated by residence-related interests.

c) Moreover, the regulations on challenges by the authorities violate Art. 16 sec. 1 sentence 2 GG.

aa) Pursuant to Art. 16 sec. 1 sentence 2 GG, the loss of citizenship may occur against the will of the persons affected only if they do not become stateless as a result. The legislature would have had to make arrangements for cases resulting in statelessness.

bb) Furthermore, the regulations constitute a violation of the principle obligating parliament to restrict fundamental rights only by or pursuant to a law (Gesetzesvorbehalt). Contrary to Art. 16 sec. 1 sentence 2 GG, the fact that a challenge of paternity by public authorities will lead to the loss of citizenship has not been expressly provided for by law, but only follows from the application of unwritten legal rules. This also violates the requirement of specifying the fundamental right affected and the Article in which it appears (Zitiergebot, Art. 19 sec. 1 sentence 2 GG).

cc) Additionally, the principle of proportionality is violated, because there are no appropriate provisions regarding deadlines and the age of the persons concerned. From the perspective of the child affected, inducing the loss of its citizenship is a serious interference with its fundamental rights. The detrimental effects of this loss increase as the child grows older and as the period of time becomes longer during which the child possessed German citizenship. Accordingly, narrower limitations of time are to be established where children stand to lose citizenship at a later age than during relatively early childhood. That this will not allow for every acknowledgment of paternity made to circumvent the prerequisites of immigration law to be reversed through a challenge by public authorities can be tolerated, considering, among other things, that it is doubtful that this regulation was urgent.

3. Furthermore, the regulations on challenges by the authorities violate the rights of parents (Art. 6 sec. 2 sentence 1 GG) as well as the right of the child to parental care and upbringing (Art. 2 sec. 1 in conjunction with Art. 6 sec. 2 sentence 1 GG). Constitutionally protected parenthood also exists when paternity was established through acknowledgment and the acknowledging father neither is the child's biological father nor has established a social and family relationship with the child. However, the intensity of the protection afforded by the Constitution depends on whether the legal paternity is reflected in the social interactions. If - due to the overly broad wording of the legal requirements - the authorities can also challenge paternities acknowledged for other purposes than circumventing immigration law, the interference is disproportionate.

4. Furthermore, the regulations violate the fundamental right to family life under Art. 6 sec. 1 GG. The unnecessarily broad conditions based on which challenges can be made tend to subject unmarried foreign or bi-national parents who do not live together to the suspicion of having acknowledged paternity solely for residence-related reasons, and burden their family life with investigations by the authorities. Constitutional law requires a more precise wording of the prerequisites for challenges in this regard as well.

This press release is also available in the original.