Bundesverfassungsgericht - Press office -

Press release no. 117/2004 of 29 December 2004

on the order of 28 December 2004 – 1 BvR 2790/04 –
--- German Version ---

Federal Constitutional Court:
Father is provisionally granted right of access


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


This press release is also available in the original german version.