Bundesverfassungsgericht - Press office -

Press release no. 34/2005 of 20 April 2005

on the order of 5 April 2005 – 1 BvR 1664/04 –
--- German Version ---

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


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


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