Bundesverfassungsgericht

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The non-biological father’s right to information concerning the sexual relations of the child’s mother requires an explicit statutory basis

Press Release No. 16/2015 of 18 March 2015

Order of 24 February 2015
1 BvR 472/14

A court order requiring a mother to disclose information on sexual relations in order to enable the non-biological, former legal father (so-called Scheinvater) to assert his compensation claim for child support payments constitutes a serious interference with the mother’s general right of personality. Such an order requires a sufficiently explicit statutory basis, which does not exist for this scenario. This was decided by the First Senate of the Federal Constitutional Court in an order published today. The Senate reversed an order of the Schleswig-Holstein Higher Regional Court (Oberlandesgericht), which in the initial proceedings had required the complainant to disclose the information in question, and remanded the case for a new decision.

Facts of the case and procedural history:

1. Following a successful paternity challenge, the child’s maintenance claims against the legal father retroactively cease to exist. The child’s maintenance claims vis-à-vis the biological father are vested in the former legal father to the extent that the latter actually previously paid maintenance. A right to information on the part of the former legal father requiring the mother to disclose the identity of the putative biological father is not explicitly provided for by law. In a series of recent decisions, the Federal Court of Justice (Bundesgerichtshof) recognised and further delineated such a right to information on the basis of the principle of good faith under § 242 of the Civil Code (Bürgerliches Gesetzbuch – BGB).

2. The complainant, who was twenty years old at the time, had a relationship with the plaintiff in the initial proceedings in the course of which the complainant became pregnant. After the complainant and the plaintiff were married, the complainant’s daughter was born in wedlock in early October 1991, thereby making the plaintiff the legal father of the child. In 1994, the complainant informed the plaintiff that he might not be the child’s biological father. The complainant and the plaintiff were divorced in 1995. The plaintiff applied for sole custody of the daughter. In 2010, the plaintiff successfully challenged his paternity. In October 2012, he requested that the complainant disclose the identity of her daughter’s putative biological father, but the complainant refused. The Local Court (Amtsgericht) and the Higher Regional Court ordered the complainant to provide the information in question; the constitutional complaint challenges these court decisions.

Key considerations of the Senate:

1. The challenged decisions violate the complainant’s general right of personality since they fail to recognise the scope of this fundamental right. The general right of personality protects the private and intimate spheres, and thus also the right to decide oneself whether and how to disclose information relating to one’s intimate sphere and one’s sex life. This includes not having to disclose sexual relations with a specific partner.

The courts correctly set this right against the former legal father’s interest in asserting his statutory claim to compensation. Even though the interest in deciding oneself whether and to whom one wishes to disclose information on one’s sex life carries great constitutional weight, the mother’s interest in confidentiality may in certain cases – on grounds, for example, of earlier conduct – merit less protection than the former legal father’s interest in financial compensation. Therefore, under constitutional law it cannot be ruled out from the outset that the mother may be required to disclose to the former legal father the identity of the actual father, even against her will, in order to enable him to assert his claim to compensation.

In the present case, however, the courts failed to correctly assess the significance of the complainant’s right to decide for herself whether, how and to whom she wishes to disclose information on her intimate sphere and her sex life. The Local Court did not attach any importance to the complainant’s general right of personality solely because she had not informed the plaintiff that he was not the only possible biological father. The Higher Regional Court, by contrast, found that the complainant’s general right of personality was affected, but did not further balance her fundamental right against the plaintiff’s financial interest. According to the court, the successful paternity challenge had shown that the complainant had had sexual intercourse with another man around the time of conception; the “only” remaining question was the identity of the father. In pursuing this line of argument, the court failed to recognise that the mother’s constitutionally protected intimate sphere encompasses in particular information about the partner or partners with whom she had sexual relations. The complainant did not forfeit this right when she disclosed that she had had other sexual relations.

2. Regardless of the specific circumstances of the case, a court decision ordering the mother to disclose information on the identity of a child’s putative father in order to enable the former legal father to assert his claim to compensation exceeds the constitutional limits of judicial development of the law since it has no sufficiently clear basis in statutory law. This violates the complainant’s fundamental rights (Art. 2(1) in conjunction with Art. 20(3) of the Basic Law, Grundgesetz – GG).

a) In principle, it is permissible under constitutional law for courts to base rights to information within special relationships on the blanket clause of § 242 BGB [good faith]. From a constitutional law perspective, it is one of the functions of the blanket clauses of civil law to enable the civil courts to give effect to the protection afforded by fundamental rights, thereby supporting the legislator in fulfilling its mandate of protection arising from fundamental rights; in doing so, the civil courts give effect to fundamental rights in practice to an extent the legislator alone would hardly be able to achieve in view of the immense diversity of possible scenarios.

However, there are constitutional limits to judicial development of the law, including limits deriving from fundamental rights. Insofar as the solution chosen by the court by way of judicial development of the law serves to give effect to constitutional law, and in particular constitutional rights of the individual, these limits are less stringent given that such a solution gives specific shape to higher-ranking constitutional requirements that also bind the legislator. Conversely, the limits of judicial development of the law are narrower if the courts’ solution adversely affects an individual’s legal position; the more important the affected legal position is under constitutional law, the more the court must limit itself to applying the existing statutory framework.

b) The limits set by fundamental rights on judicial development of the law are narrower in the present case. The obligation to disclose information considerably impairs the complainant’s fundamental rights. This impairment is solely set against the former legal father’s interest in asserting his claim to compensation under statutory law. The fact that the legislator designed the claim to compensation in a manner that makes it difficult to assert by not pairing it with a right to information does not require correction under constitutional law. The decision of how to reconcile the mother’s interest in keeping intimate information relating to her sex life confidential on the one hand, and the former legal father’s interest in financial compensation on the other hand lies within the legislator’s scope of latitude.

c) Accordingly, in the present scenario, the courts may not base a right to information solely on the blanket clause of § 242 BGB. Rather, court decisions obliging a mother to disclose information on a sexual partner or partners require a more explicit statutory basis, from which an obligation to disclose information of the type in question can be derived. In the present case, there is no such statutory basis. § 1605 BGB sets out the obligation of relatives to provide information to each other on their income and assets where necessary. However, the law does not set out any obligation on the part of the mother to provide information on sexual relations with a partner, even though it is obvious that asserting claims to compensation requires knowledge of the biological father’s identity and that the mother will often be the only person able to provide information in that regard. Nor can the necessary basis be derived from the child’s claim to maintenance payments set out in § 1607(3) BGB. That provision merely awards a substantive right without providing for its enforcement.

Strengthening the former legal father’s claim to compensation would require action on the part of the legislator. However, the legislator would have to take the mother’s conflicting general right of personality into account, which carries great weight under these circumstances.