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Grandparents must be considered when choosing a guardian

Press Release No. 67/2014 of 25 July 2014

Order of 24 June 2014
1 BvR 2926/13

In a decision published today, the First Senate of the Federal Constitutional Court has found that the protection of the family under Art. 6 sec. 1 of the Basic Law (Grundgesetz – GG) also includes family ties between close relatives, in particular between grandparents and their grandchild. To the extent that a close family tie actually exists, grandparents therefore have a right to be considered when a guardian for their grandchild is chosen. They have a right to take precedence over non-relatives, unless there are specific indications in the case at hand that the best interests of the child are better served by other arrangements. The constitutional complaint brought before the Federal Constitutional Court by a grandmother was unsuccessful because the family court had paid sufficient attention to the constitutional requirements in its selection decision.

Facts of the Case and Course of the Proceedings:

The complainant’s first granddaughter was born in 2001. After her birth, she was put in the care of the complainant by her mother, the complainant’s daughter. In 2008, the second granddaughter was born, and lived initially with her mother in the complainant’s household. In 2011, the mother moved in with a boyfriend and took the younger child with her. In autumn 2011, the family court issued a temporary order removing both children from the parental custody of the mother and initially appointed the Youth Welfare Office (Jugendamt) as guardian. In December 2011, the younger granddaughter was moved to a foster family. In the principal proceedings, by order of 8 January 2013, the family court took away the mother’s custody of both children. It appointed the complainant as guardian for the older daughter, while appointing the Youth Welfare Office as guardian for the younger one. The Higher Regional Court (Oberlandesgericht) rejected the appeal against this decision as inadmissible, since the complainant was not entitled to lodge such an appeal.

Key Considerations of the Senate:

The decisions of the family court and the Higher Regional Court do not infringe the fundamental rights of the complainant.

1. As the grandmother, the complainant has a right to be considered in the selection of a guardian (Vormund) or supplementary curator (Ergänzungspfleger) pursuant to the protection of the family under Art. 6 sec. 1 GG.

a) However, the complainant cannot plead the fundamental right of a parent (Art. 6 sec. 2 sentence 1 GG). Generally, only the parents of the child are entitled to the protection of this fundamental right. It is true that in practice, and at the wish of the parents and child, the fundamental right of the parents as well as the fundamental right of the child to the guarantee of parental care and upbringing (Art. 2 sec. 1 in conjunction with Art. 6 sec. 2 sentence 1 GG) tend to make it the obvious choice to appoint the grandparents as guardians or supplementary curators of their grandchild. With regard to grandparents, however, these two rights are merely legal reflections which do not establish any protection of their subjective interests in terms of fundamental rights of their own.

b) Family ties between grandparents and their grandchild are, however, covered by the protection of the family under Art. 6 sec. 1 GG.

aa) Art. 6 sec. 1 GG protects the family as, first and foremost, a living arrangement and child-raising community. Furthermore, the fundamental family right generally aims at protecting specific family ties, such as those which can exist among adult family members and – although usually less prominently – over several generations among the members of an extended family. Family ties tend to be of great importance in the self-conception of the individual and frequently have special practical relevance in the family members’ day-to-day lives.

bb) The protection of family relationships between close relatives as a fundamental right covers their right to be taken into consideration in the choice of a guardian or supplementary curator, to the extent that close family ties with the child actually exist. Guardianship or supplementary curatorship make it possible for relatives to take in the child, to look after it, and to bring it up in their own responsibility. In this way they are able to continue their family tie with the child and exercise the due responsibility of relatives. Grandparents and other close relatives therefore take precedence in the choice of a guardian or supplementary curator over non-relatives, unless there are specific indications in an individual case that the best interests of the child, which are decisive for such a choice, are better served by choosing another person.

2. The challenged decisions satisfy the requirements of Art. 6 sec. 1 GG with regard to taking close relatives into consideration in the choice of a guardian.

a) The Federal Constitutional Court reviews the interpretation and application of ordinary law by the courts in the original case on the basis of general principles. Its task is merely to examine whether the challenged decision contains errors of interpretation that are based on a fundamentally erroneous view of the meaning of a fundamental right or of the scope of its area of protection. Insofar as the Federal Constitutional Court applies a stricter standard when reviewing cases of withdrawal of custody, this is due to the particular protection of the parent-child relationship under the Constitution. The intensity of the intervention in the decision under review tends to be less severe than if the child were to be separated from its parents.

b) The challenged decisions show no disregard of the extent of the complainant’s interests protected under Art. 6 sec. 1 GG. The family court proceeded from the assumption that the complainant had a special position when the guardian was chosen, and it did not make exaggerated requirements for her appointment. In particular, it did not assume that the complainant should only be chosen if the well-being of the child would be better served by doing so as compared to her remaining with the foster family. Based on easily understandable arguments, the family court came instead to the conclusion that the well-being of the child would be better served if she remained in the foster family than if she were moved to the care of the complainant.

c) The complainant’s fundamental rights have not been violated by the fact that she was refused the possibility of appealing to the Higher Regional Court.

aa) The legislature is not obliged under the Constitution to make a legal remedy against the choice of guardian by the family court judge available to close relatives. The Basic Law guarantees the right of access to justice but does not guarantee the right to pursue the legal process over several instances.

bb) Nor does the interpretation of § 59 sec. 1 of the Act on Procedure in Family and Non-Contentious Matters (Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit – FamFG), under which the complainant as a grandmother is not entitled to appeal, violate the complainant’s fundamental rights. Under § 59 sec. 1 FamFG, the person who is entitled to appeal is the person whose rights have been infringed by a decision. It is true that the selection decision touches on the fundamental right of the complainant under Art. 6 sec. 1 GG. In view of this fact, she would generally have a right to be heard by the family court in the procedure of choosing a guardian. However, the Higher Regional Court followed the case-law of the Federal Court of Justice (Bundesgerichtshof), which generally does not grant any right of appeal to grandparents in proceedings involving the court’s appointment of a guardian or supplementary curator for their grandchild. This interpretation of § 59 sec. 1 FamFG is not arbitrary. It is based upon an understandable systematic interpretation and takes account of the legislature’s legitimate aim to keep the number of persons entitled to appeal manageable in order to enable a rapid conclusion of the court proceedings. This is especially important in custody proceedings.