Federal Constitutional Court - Press office -
Press release no. 44/2008 of 1 April 2008
Judgment of 1 April 2008 – 1 BvR 1620/04 –
Parents who do not wish to have contact with their child
will not as a rule be forced to do so
A child has a constitutional right to have its parents look after it
and a right to have them fulfil their duty to care for it and to bring
it up which is inextricably linked to their parental right.
Nonetheless, contact with a child which can only be enforced against
the parent unwilling to have contact with the aid of coercive measures
is not usually in the child's best interests. Therefore, the coercive
measure contained in § 33 of the Act on Matters of Non-Contentious
Jurisdiction (Gesetz über die Angelegenheiten der freiwilligen
Gerichtsbarkeit - FGG) must be interpreted in conformity with the
constitution as meaning that compulsory enforcement of the duty of
contact must be avoided. The situation is different if there are
sufficient indications in a specific case that enforced contact would
be in the child's best interests. In this case contact can also be
enforced using coercive measures. This was decided by the First Senate
of the Federal Constitutional Court.
As a result, the constitutional complaint of a father who was unwilling
to have contact and who had been threatened with a fine in order to
enforce the duty of contact was successful. The matter was referred to
the Higher Regional Court (Oberlandesgericht) for a new decision.
Facts of the case:
The complainant is married. He has two children from his marriage, who
are both minors. In addition, the complainant has an illegitimate son
who was born in February 1999 as the result of an extra-marital affair.
The complainant has recognised his paternity and pays child support; he
does not, however, have contact with his child. According to the
complainant's submissions, his having contact with his son would lead
to the inevitable breakdown of his marriage. In addition, he claims
that he does not feel any bond to the child who is unknown to him and
who was sired expressly against his will.
In November 2000 the Local Court (Amtsgericht) dismissed the child's
mother's application for an access arrangement between the son and his
father. The Court explained its decision on the basis that enforced
contact would not be in the child's best interests because of the
father's hostile attitude to the child. The Higher Regional Court
(Oberlandesgericht) altered this decision in January 2004 after
obtaining a psychological opinion and ordered the complainant to have
contact with his child. It held that § 1684.1 of the German Civil Code
(Bürgerliches Gesetzbuch - BGB) grants a child the right to contact
with its biological father. According to the court, the father was
obliged to have contact under the same provision. It its opinion the
contact should - as had been suggested by an expert - take place in the
presence of a knowledgeable and informed third party who was willing to
assist and who had been selected by the Youth Welfare Office. The
Higher Regional Court threatened to fine the complainant EUR 25,000 if
he did not comply.
The complainant takes the view that the threat of a fine violates his
general right of personality in Article 2.1 in conjunction with Article
1.1 of the Basic Law (Grundgesetz - GG). He argues that the legislature
did indeed impose an obligation on parents to have contact with their
children, but that it did not wish this moral obligation to be
enforced, however, by coercive means. § 33 FGG, which governs the
imposition of coercive measures, could not therefore be the legal basis
for the compulsory enforcement of contact against the will of the
parent concerned. In addition, in the complainant's view, the threat of
an administrative fine also indirectly affected the right of his family
under Article 6.1 GG (protection of marriage and the family). If
contact were compulsorily enforced, an existing family unit would be
destroyed.
In essence, the decision is based on the following considerations:
I. The threat of a fine to enforce the complainant's duty to have
contact with his child against his will encroaches on his
fundamental right to protection of his right of personality. He is
being forced contrary to his own wishes to see his child. This
influences his personal relationship with his child and puts him
under pressure to behave in a manner towards his child that he
does not wish to behave in. The statutory basis for the threat of
a fine is § 33 FGG. When examining whether the encroachment on
fundamental rights resulting from the threat of a fine can be
justified, § 1684.1 BGB obliging parents to have contact with
their children must be considered.
II. The legislature pursues a legitimate purpose in providing for the
possibility of the threat of an imposition of a fine where a
parent is unwilling to have contact with his or her child.
1. The duty of a parent to have contact with his or her child laid
down by the law in § 1684 BGB is a permissible concretisation
of the responsibility allocated to parents by the Basic Law.
Article 6.2 GG guarantees parents the right to care for and
bring up their child, but at the same time also makes this task
a primary duty imposed on them. The duty of parents to care for
and bring up their child is not owed exclusively to the state
but also to the child. The child's right to parental care and
upbringing in Article 6.2 GG corresponds with this parental
duty. It is for the legislature to elaborate the details of the
right and duty. Since contact between parents and their child
is in principle in the child's best interests, the legislature
obliged parents in § 1684 BGB to have contact with their child
and in doing so urged them to fulfil their responsibility
towards it.
2. The encroachment on the fundamental right to protection of
personality, which is associated with the imposition of an
obligation on a parent to have contact with his or her child,
is justified by the responsibility for his or her child imposed
on the parent by Article 6.2 GG and the child's right to
parental care and upbringing. If one weighs the child's
interest in steady contact with both of its parents against a
parent's interest in not wanting to have personal contact with
the child, then one should accord the child's desire
considerably more weight than the parent's wishes. This is
because contact with its parents is, as an important basis for
the establishment and maintenance of a close personal
relationship and the obtaining of support and upbringing, of
considerable significance for a child's development and
contributes in principle to its well-being. It is thus
reasonable to oblige a parent to have contact with his or her
child if this is in the child's best interests.
III. However, as a rule the threat of compulsory enforcement of a
parent's duty of contact with his or her child against his or her
stated will is not suitable for achieving the purpose sought to be
achieved. Contact with a child which can only be enforced against
the parent unwilling to have contact with the aid of coercive
measures is not usually in the child's best interests.
The encroachment on the parent's fundamental right to protection
of his or her right of personality which results from the threat
to apply coercive measures is not justified in this context unless
there are sufficient indications in an individual case which allow
one to conclude that enforced contact will be in the child's best
interests.
1. The compulsory enforcement of contact during which the parent
is expected not just to be physically present, but also
emotionally available to his or her child, conflicts with the
feelings he or she has for the child. Such evident resistance
combined with a hostile attitude towards the child cannot fail
to have an effect on the child if contact is enforced. The
child is put into a situation in which it does not experience
the parental care intended by the contact, but in which it must
experience personal rejection - and this not just from anyone
but of all people from a parent. This entails a large risk that
the child's feelings of self-worth will suffer.
2. What counts in deciding if it would be suitable to use coercive
measures against a parent to force him or her to have contact
with his or her child in cases where he or she does not want
such contact is not whether the contact could endanger the
child's best interests, but whether such contact is in the
child's best interests. The legislature assumed that a child's
contact with its parents is of outstanding significance for its
development and is in its best interests. This justifies the
encroachment on the parents' fundamental right to protection of
their rights of personality resulting from the imposition on
them of a duty to have contact with their child. Nevertheless,
this is only true to the extent that and for as long as contact
with its parent actually serves the child's best interests. If
the statutory means through which this is supposed to be
achieved do not do this, they are not suitable to justify
encroachment on the parent's right of personality. This also
applies to the possibility offered by the law of enforcing the
duty of contact through the threat of coercive measures. The
fact that § 1684.4 BGB only permits restrictions on and the
exclusion of the right of contact if the child's best interests
would otherwise be endangered does not prevent the above. This
provision deals with the limits on the parental right of
contact and not with the enforcement of the duty of contact.
3. Nevertheless, one cannot rule out the possibility that there
are cases in which there is a realistic chance of a child being
able through its behaviour to overcome the resistance of the
parent who wants to avoid it so that what was initially
enforced contact can be in the child's best interests. This
should, if necessary, be clarified with the help of experts.
The older a child is and the more developed its personality is,
the more it can be assumed that even the compulsory enforcement
of its own express and emphatic wish to have contact with its
parent will be in its best interests. In such a case it is
reasonable to expect a parent to have contact with his or her
child and, if necessary, to force him or her to do so by also
using coercive measures.
IV. § 33 FGG is thus to be interpreted in conformity with the
constitution as meaning that compulsory enforcement of the duty of
contact of a parent who refuses to have contact with his or her
child must be avoided unless there are sufficient indications in a
specific case that enforced contact would be in the child's best
interests.
V. The court must also consider the child's right to a hearing and
examine whether a guardian ad litem should be appointed for the
child in the contested access proceedings when it again hears and
decides the matter. The case raises doubt as to whether the
application made by the mother on behalf of the child concerned in
which she sought to oblige the complainant to have contact with
the child, even against his clearly stated will, and to also
enforce this, if necessary, by coercive measures is really in
keeping with the child's best interests or is in fact contrary to
them.
Seven judges concurred on points III-IV, whilst one judge dissented;
otherwise the decision was unanimous.
This press release is also available in the original german version.
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