Bundesverfassungsgericht

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Federal Constitutional Court: Father is provisionally granted right of access

Press release No. 117/2004 of 29 December 2004

Order of 28 December 2004
1 BvR 2790/04

The Federal Constitutional Court (Bundesverfassungsgericht) has once more criticised a decision of the Fourteenth Senate of the Naumburg Higher Regional Court (Oberlandesgericht) that refused a father access to his own child. The Third Chamber of the First Senate has issued a temporary injunction making it possible for the father to have access to his child until the decision on the constitutional complaint.

Facts of the case:

The complainant is the father of a child born illegitimate in 1999. The mother of the child gave the child up for adoption one day after the birth and declared her prior consent to adoption by the foster parents, with whom the child has been living since its birth. Since October 1999, the complainant has endeavoured in a number of judicial proceedings to be given custody and granted a right of access. In response to his individual application, a chamber of the Third Section of the European Court of Human Rights, in a judgment of 26 February 2004, declared unanimously that the decision on custody and the exclusion of the right of access violated Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Notwithstanding this, the Fourteenth Senate of the Naumburg Higher Regional Court prohibited the complainant's exercise of the right of access to his child. The decision to this effect was overturned by the Second Senate of the Federal Constitutional Court in the order of 14 October 2004 - 2 BvR 1481/04 - (on this, see Press Release no. 92/2004 of 19 October 2004) and referred the matter back to another senate of the Higher Regional Court. However, this senate took the view that it was not authorised to make a decision on the merits. Following this, the Wittenberg Local Court (Amtsgericht) issued a temporary injunction with regard to the complainant's right of access to his child and granted him the right to see his son every Saturday in the time from 15.00 to 17.00 hours.

This decision in turn was challenged by immediate appeal by the Youth Welfare Office (Jugendamt) and the child's guardian. On the basis of these complaints, the Fourteenth Senate of the Naumburg Higher Regional Court first, in an order of 8 December 2004, suspended the enforcement of the Local Court decision, but it reversed this order again on 20 December 2004. In a further order of 20 December 2004, the Fourteenth Senate of the Naumburg Higher Regional Court ordered the Local Court to proceed with the (principal) proceedings on access "with extreme dispatch and bring them to a conclusion". It held that until there was a final decision of the Local Court, the complainant's access to his child had been excluded "in order to avoid endangerment of the best interests of the child, which might otherwise occur".

In his constitutional complaint challenging the decision of the Higher Regional Court, which is accompanied by an application for the issue of a temporary injunction, the complainant submits inter alia that his constitutional rights under Article 3.1 of the Basic Law, Article 6 or the Basic Law and Article 101.1 of the Basic Law have been violated.

The decision of the Third Chamber of the First Senate on the application for a temporary injunction is based essentially on the following considerations:

The constitutional complaint is not inadmissible, nor is it patently unfounded. On the contrary, there is much to suggest that the Higher Regional Court has violated Article 101.1 sentence 2 of the Basic Law in conjunction with Article 3.1 of the Basic Law, and has thus arbitrarily violated the complainant's right to his lawful judge. There is a violation of Article 101.1 sentence 2 of the Basic Law inter alia if a decision of the court, in interpreting and applying a provision on jurisdiction, deviates so far from the constitutional principle that no one may be removed from the jurisdiction of his lawful judge that it cannot be justified, that is, it is arbitrary. It is likely that these requirements are satisfied in the present case. The objective course of the proceedings to date strongly supports the assumption that in its decision the Higher Regional Court allowed itself to be influenced by irrelevant considerations when it examined the substantive decision of the Local Court on access, and in this way it circumvented the provisions of the Code of Civil Procedure, which provides that a complaint against a temporary ruling on access is not admissible. In addition, the Higher Regional Court probably once again failed to give sufficient consideration to the instructions of the European Court of Human Rights, and thus violated the complainant's right under Article 6.2 of the Basic Law in conjunction with Article 20.3 of the Basic Law. The European Court of Human Rights held that the complainant's right under Article 8 of the European Convention on Human Rights was violated by the exclusion of the right of access and that he should at least be guaranteed access to his child. According to the order of the Federal Constitutional Court of 14 October 2004 that was pronounced in response to this decision, the binding effect of a decision of the European Court of Human Rights extends to all state bodies and in principle imposes on these an obligation, within their jurisdiction and without violating the binding effect of statute and law, to end a continuing violation of the Convention and to create a situation that complies with the Convention. Courts are at all events under a duty to take into account a judgment that relates to a case already decided by them if they preside over a retrial of the matter in a procedurally admissible manner and are able to take the judgment into account without a violation of substantive law.

The Higher Regional Court once again patently did not comply with these requirements. In particular, it did not even begin to consider the question as to how the complainant can succeed in reuniting the family at all if he remains prohibited from building up any contact with his child at all. Nor did the Higher Regional Court sufficiently consider the deliberations of the European Court of Human Rights, under which it is in the best interests of the child to maintain the family relationships, since breaking off such connections means separating the child from his roots, which is justified only in quite extraordinary circumstances. The Higher Regional Court gave as little consideration to the fact that the endangerment of the best interests of the child, indiscriminately postulated by the Higher Regional Court and supported by no concrete facts, may be averted by the presence of a trained person at the meetings, ordered by the Local Court, as it did to the fact that access is planned only for a period of two hours per week in any case.

The judicial order of the Federal Constitutional Court means that the access ruling made by the Local Court continues in force for the duration of the temporary injunction issued by the Federal Constitutional Court and therefore - failing a change of the factual situation - is for this time not open to a judicial review by the Higher Regional Court.

Order of 28 December 2004 - 1 BvR 2790/04 -

Karlsruhe, 29 December 2004