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Parents who do not wish to have contact with their child will not as a rule be forced to do so
Press Release No. 44/2008 of 01 April 2008
Judgment of 01 April 2008
1 BvR 1620/04
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.