Federal Constitutional Court - Press office -
Press release no. 101/2010 of 10 November 2010
Order of 12 October 2010 – 1 BvL 14/09 –
Decision regarding the liability exclusion privilege of a parent not
living in the same household as the child according to § 116.6 sentence 1
of the Tenth Book of the Code of Social Law
§ 116 of the Tenth Book of the Code of Social Law (Zehntes Buch
Sozialgesetzbuch – SGB X) provides that a claim for compensation is
transferred from the injured party to the social welfare authority to
the extent the social welfare authority must make social welfare
payments to the injured party because of the event that caused the
injury. In accordance with sentence 1 of subsection 6 of the provision,
which is the relevant legislation here, there is an exception to this
claim transfer for claims arising from non-intentional injury to family
members who live together in a joint household with the injured party.
The defendant in the original proceedings is the father of a son born
out of wedlock in 2000, over whom the parents exercised joint care and
custody. The boy lived with his mother. The defendant completely
fulfilled his obligation to make maintenance payments. There were
regular visits between him and his son every second weekend in the
child’s grandparent’s house, which is where the defendant also lived. In
2001, the child, who was unsupervised for a few minutes, fell into an
unsecured rain barrel on the property and was under water for
approximately 10 minutes. The boy suffered very severe injuries from
this, which foreseeably will lead to the need for lifelong care and
supervision. Since 2002 the responsible social welfare authority has
provided social welfare benefits to the child. It is the plaintiff in
the original proceedings; it sued the defendant for compensation based
upon the right transferred to it in accordance with to § 116.1 SGB X for
violation of his duty of proper supervision.
The Regional Court (Landgericht) assumed that the defendant was grossly
negligent in his violation of the duty of proper supervision and, thus,
the family law exclusion from liability pursuant to § 1664.1 of the
Civil Code (Bürgerliches Gesetzbuch) did not apply to him. However, it
regarded § 116.6 sentence 1 SGB X as unconstitutional because it
violated the general principle of equality and the constitutionally
guaranteed protection of the family. By way of proceedings involving the
concrete review of a statute (konkrete Normenkontrolle) the court
presented the question to the Federal Constitutional Court whether §
116.6 sentence 1 SGB X is compatible with the Basic Law to the extent it
does not provide for a liability exclusion privilege for the father of a
child who is subject to a duty of maintenance and who does not live in a
joint household with the child, in contrast to a family member who lives
in a joint household.
The First Senate of the Federal Constitutional Court has decided that §
116.6 sentence 1 SGB X is compatible with the Basic Law. The privilege,
arising from exclusion of the claim transfer, of family members living
in a joint household as against family members living separately, is
factually justified also in regard to parents and their children.
However, taking into account the fundamental rights protection of the
family and of the parental right, § 116.6 sentence 1 SGB X is to be
interpreted in such a way that a joint household, which is the
prerequisite for the liability exclusion privilege, also exists between
the child and the parent living separately but fulfilling his parental
responsibility in regard to the child to the full extent of what is
legally possible and has contact with the child on a regular basis for
extended periods of time so that the child is temporarily integrated
into his household as well.
In essence, the decision is based on the following considerations:
§ 116.6 sentence 1 SGB X does not violate the protection of the family
guaranteed by Article 6.1 of the Basic Law (Grundgesetz – GG). This is
because the assertion of a claim for compensation by one family member
against another family member subsequent to a transfer of the claim does
not involve a family-produced financial burden. Rather, it involves a
burden that, while it affects the family, arose from the actions of a
family member that are the basis of the claim for compensation. The
state in principle is not obligated by Article 6.1 GG to compensate a
financial burden that arose from the injurious action for which a family
member is responsible.
Likewise, Article 6.5 GG, which prohibits children born out of wedlock
from being placed in a worse position than children born within a
marriage, is not violated by § 116.6 sentence 1 SGB X. The provision
does not differentiate as to whether the injuring or injured family
member is a child born to married parents or out of wedlock. More
accurately it differentiates whether the family member who caused the
injury lives together in a joint household with the injured family
member. This difference also does not lead to indirect unequal treatment
between children born to married parents and children born out of
wedlock. This is because nowadays it can no longer be assumed that as a
rule children born out of wedlock grow up with only one parent and
children born to married parents grow up in a joint household with both
parents. Rather, children born within a marriage whose parents have
separated can be excluded from the liability privilege as well.
Further, it does not violate the general principle of equality in
Article 3.1 GG that § 116.6 sentence 1 SGB X excludes the transfer of a
claim for compensation to the social welfare authority when the party
that caused the injury lives in a joint household together with the
family member who was injured, but not when they live separately from
one another. This unequal treatment is justified by sufficient grounds.
Pursuant to the established legislative goal indirect economic
disadvantage to the injured party should be avoided by the liability
exclusion privilege. The danger of such an adverse effect from the
recourse of the social welfare authority against the party who caused
the injury is larger when that party lives in a joint household with the
injured party. This also applies when the injured party is a child and
the party who caused the injury is their parent with a duty of
maintenance. Recourse against the parent living separately and obligated
to make maintenance payments only reduces his financial resources for
financing his own life. Recourse as a rule, however, does not have any
effect on the amount of maintenance owed to the child. This is because
the social welfare authority’s claim for recourse is not taken into
account in regard to the law on maintenance and in the event of the
consumer insolvency of the parent owing a duty of maintenance the claim
for maintenance of the injured child, which has priority for payment
before the claim for recourse of the social welfare authority, remains
undiminished. If, on the other hand, a claim for recourse was made
against the parent with whom the injured child lives, this would reduce
the income that the joint household has available. Through this the
injured child would also lose finances for its maintenance and, thus,
its quality of life would be affected. This is because the amount of
expenses for children decisively depends on the amount of the household
income of the parents looking after them.
Similarly, the danger of a disruption in the domestic peace between the
injured family member and the family member that caused the injury upon
the pursuit of recourse by the social welfare authority is significantly
larger when both live in a joint household. The event that caused the
injury created the potential for conflict between the party that caused
the injury and the injured party, which may seriously burden their
relationship. If the recourse taken by the social welfare authority
creates a financial burden, this could significantly increase household
tensions. Both of them, in contrast to when the injured party and the
party who caused the injury live separately, would be subject to this
permanently and inevitably. This affects a child injured by a parent in
a particular way and would have negative effects on the child’s
development. If the child and the parent live separately, the child is
not directly and permanently exposed to these tensions but is confronted
with them only when meeting the parent, i.e. during limited periods of
time, or not at all.
The factual prerequisite for an exclusion of the transfer of the claim,
that the party who caused the injury lives with the injured party in a
joint household, which is relevant according to § 116.6 sentence 1 SGB
X, however, is to be interpreted in cases of a child and their parent
who live separately in light of the protection also of the family
existing between them pursuant to Article 6.1 GG and the parental rights
of the parent living separately arising from Article 6.2 GG. If one
parent has joint custody with the other parent with whom the child
primarily lives or if the other parent has sole custody based on the
best interests of the child, and the parent regularly makes the agreed
or court-ordered child maintenance payments and has regular contact with
the child as agreed or granted to the parent, which also includes visits
and overnight stays by the child in his home, this parent has fulfilled
his parental responsibility in regard to the child to the full extent of
what is legally possible. Life in a joint household with a parent living
separately is to be placed on equal footing with a joint household in
which the child lives with a parent on a daily basis in regard to the
protective goal pursued by § 116.6 sentence 1 SGB X. This type of living
together should not be less protected regarding the negative effects
resulting from a transfer of a claim to the social welfare authority. In
such a parent-child relationship the parent responsible for making
maintenance payments regularly provides maintenance for the child from
his household budget that is beyond his maintenance payment obligation,
which would no longer be possible as it was up until then if the social
welfare authority seeks recourse against him based upon a transfer of
the child’s claim for compensation to it. The avoidance of tensions and
disputes based upon the assertion of transferred compensation claims is
as important for a joint household where the parent and child partially
live together as it is for a joint household where the parent and child
continuously live together.
If the above prerequisites were presented in regard to the defendant and
his child in the original proceedings, which the Regional Court must
assess, recourse cannot be pursued against him in accordance with §
116.6 sentence 1 SGB X even though the child does not live permanently
with him.
This press release is also available in the original german version.
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