The Federal Constitutional Court has in its orders dated 14.07.2010 1BvR 3189/09 and 1 BvR 2604/06 of 18.12.2008 on the following principles (Art. 6 GG) through:
- Unjustified use restrictions violate the parents' right under Article 6, paragraph 2, sentence 1 GG
- also the rights of noncustodial parent is under the protection of Article 6 para 2 sentence 1 GG
- The rights allow the access rights to convince continuously from the physical and spiritual being of the child and its development by visual inspection and mutual agreement to maintain their genetic relationship to him and to prevent alienation, and the need for love on both parts into account.
- Even if the child lives with one parent must be offered in principle the personal use of the child with access rights. The same applies if the child is placed externally. (Foster family, home)
- It corresponds to the welfare of children, that family relationships are maintained and the child is not completely separated from its roots.
- Only when a risk would give the mental or physical development of the child when exercising a right of access is a restriction or exclusion to protect the child initiated.
- The will of the child are taken into account, where it is well compatible with his.
- The child must be given the opportunity in court proceedings, his personal relations with his parents to be seen to leave.
- the limitation or exclusion of custody need of explanations, which a more detailed discussion can be necessary with this question.
- Article 6 § 1 Basic Law obliges the state to the respect of parents and children to existing family unit as independent and responsible.
- The Federal Constitutional Court has made clear on several occasions that Article 6 § 2 GG the primacy of parents in the responsibility for the protection and children in need guarantees.
- The constitutional principles require preferential treatment of family members in the selection of nurses and guardians.
- According to the European Court of Human Rights includes family life under Article 8 of the ECHR, at least - well - close relatives - such as grandparents and grandchildren - as they can within the family play a significant role. Respect for family life so understood reasons for the state the obligation to act in a way that allows for the normal development of this relationship (see ECHR, Judgement of 13 June 1979, NJW 1979, p. 2449 \u0026lt;2452>). It follows that the courts have to consider when choosing a guardian existing family ties between grandparents and grandchildren.
- If these relatives for guidance the guardianship suitable for the purposes of paragraph 2 Civil Code § 1779, so they may not be as ignored because an outside third party would be better suited to such a view to optimal spiritual support for the child.
- The access rights are under the jurisdiction of the Federal Constitutional Court and the European Court for grandparents as they falll also under the protection of Article 6 of the Basic Law and Article 8 ECHR (see Constitutional Court, 1 BvR 2604/06 from 18.12. 2008 - on the blog below)
Citation: Constitutional Court, 1 BvR 3189/09 of 14/07/2010, paragraphs No.. (1 - 31), http://www.bverfg.de/
FEDERAL CONSTITUTIONAL COURT
- 1 BvR 3189/09 -
- 1 BvR 3189/09 -
On behalf of the people
In the process of
the constitutional complaint
of Mr. L. ..,
- represented
lawyer Veronica Otten,
firm in Legal & Otten Otten,
Bergisch Gladbach Street 656, 51067 Cologne -
firm in Legal & Otten Otten,
Bergisch Gladbach Street 656, 51067 Cologne -
| against a) | Decision of the Higher Regional Court of Cologne of 20 November 2009 - 25 uF 126/09 - |
| b) | the decision of the District Court of Cologne of 26 Mai 2009 - 313 F 49/08 - |
has the 2nd Chamber of the First Senate of the Federal Constitutional Court by the judge
Hohmann Dennhardt
and the judges Gaier,
Paul
Hohmann Dennhardt
and the judges Gaier,
Paul
14 July 2010 unanimously adopted:
- The decisions of the District Court of Cologne of 26 Mai 2009 - 313 49/08 F - and of the Higher Regional Court of Cologne 20. November 2009 - 25 uF 126/09 - violate the complainant's fundamental right under Article 6, paragraph 2, sentence 1 of the Basic Law. The decision of the Higher Regional Court of Cologne is repealed and the case remanded for a new ruling to the Higher Regional Court of Cologne.
- The state of North-Rhine Westphalia has to reimburse the complainant the necessary expenses in the constitutional complaint procedure.
- The object value of legal work for the constitutional complaint is 8,000 € (in words: eight thousand euros) fixed.
reasons
I.
The complainant objects to the rejection of his application for unescorted to the authority, and expanded access to his son.
first a) The complainant's father is a brief from a relationship with the child's mother then married dating in April 2006 born son. The child's mother put the boy out immediately after birth. He came to his 12th Of life in a foster family where he has lived ever since. The child's mother is the sole owner of parental care, with the exception of the residence determination, the delegate to the Youth Welfare Office was. Handling contacts with her son, she refuses.
In July 2006, the complainant, give him every Sunday afternoon dealing with his son. At the hearing in December 2006 represented the family court held that in order to develop a relationship with the complainant to his son, depending on the possibility of the carrier should take place once or twice a month accompanied handling. It then ordered the suspension of the proceedings. From January 2007, were accompanied instead handling contacts.
The complainant has in February 2008, implementation an unaccompanied dealing respectively Saturdays from 10.00 till 18.00 clock, and a holiday scheme because the rare recent handling contacts were insufficient to establish a real relationship with his son. After obtaining written opinions of the youth ministry and the foster parents held a hearing in which the district court announced a non-reasoned decision that accompanied a deal would take place every six weeks. On the complaint of the complainant raised the Higher Regional Court's decision in February 2009 on the basis of lack of support and referred the matter for a new decision back to the family court.
b) After another hearing, the district court ruled the challenged order of 26 May 2009 that the complainant has a right to be accompanied by a child care service use once a month in the afternoon was the presence of the father's care. had the further handling of the request it back.
The question of a policy on the one hand, the constitutionally guaranteed rights of parents and the other the interests of the child are observed. It should be borne in mind that the complainant had an intense interest in his child and wants to build a real relationship with him. On the other hand, it should be borne in mind that the boy grow up in a foster family and its integration in this environment is not disturbed or significant tensions should be exposed. The child knew the complainant, according to the foster-father, could it still does not rank as his biological father. It knows that the complainant came to play with him turn, but after a certain time to return to the foster father. In this situation a "normal" use every weekend and on holidays without companionship was not to advocate currently because of this the child's situation and would not do justice to this demand. The foster father had so far indicated that the visits - the last one lasted an hour - an effort the child would because it can feel the atypical situation and realize that something was expected of him. The ability of the complainant in an appropriate way to address the needs of the child were, however, no doubts have been expressed.
When asked how often should take place to deal, be taken into account that he had originally taken place every four weeks. It should also be borne in mind that this is not a "normal" child care situation, in a special situation but intense interest of the father of his child. The child's welfare is safeguarded by the growth of the child with the foster parents in full and the complainant did not mind that the foster father in the handling of contacts it was. The court think it beneficial in such circumstances for the welfare of children, accompanied by a deal to provide contact once a month.
c) The complaint filed against the complainant rejected the Court of Appeal also attacked with order of 20 November 2009, after the written opinion of the youth ministry and the foster parents without hearing back. A guardian ad litem was - not appointed for the child - as in the official court proceedings.
of the District Court had taken control of the situation currently adequate. Come in the growth of the still-small child in the foster family, which are supported by both parents - and the complainant would leave the child in the foster home - ask for the good of the child a careful design of access rights. It must remain clear for the child that his life had priority in the foster family. This is the life situation of the child in this case is different in principle from that of a child, growing up with separated parents, as they were parents as the primary caregivers of the child, and remained, even if they lived separately. As presently be only the foster parents as the main caregivers be a careful design of the handling of the child to his biological father is required.
The boy was still at an age where the distinction between biological father and foster father to him was almost impossible. With age, this situation will clarify for the child and he'll learn to deal with it. This is the handling of the district court established contacts enabled a sufficient degree. A more intensive use, as desired by the complainant would jeopardize the stability necessary for him in his personal life. This is true despite the fact that there was no objection that the complainant was likely to care for the child. The need of obtaining an opinion it is not in the given situation.
second In his constitutional complaint, the complainant with a violation of his parental rights by the challenged decisions.
third The Federal Constitutional Court, were submitted to the court's case. The constitutional complaint was served on the government of North Rhine-Westphalia, the youth of the City of K. and the child's mother. The participants also had the opportunity to comment on the subject value.
II
The Board accepts the constitutional complaint for decision and, instead of her.
The adoption of the constitutional complaint should be taken to enforce the parental rights of the complainant (§ 93a para 2 letter b Federal Constitutional Court Act). To this decision, the board is appointed, because the relevant constitutional issues are decided by the Federal Constitutional Court and the Constitution already appeal is to be obvious (§ 93c para 1 sentence 1 of the FCC).
first The complainant is violated by the challenged decisions in his parents' right under Article 6, paragraph 2, sentence 1 GG.
a) The rights of the noncustodial parent as well as the custody of the other parent under the protection of Article 6, paragraph 2, sentence 1 GG. Both legal positions arising from the natural parents' rights and the related parental responsibility and must be respected by the parents in proportion to each other. The rights allow the access rights, from the physical and spiritual being of the child and its development by visual inspection and mutual agreement to convince continuously to maintain the relationship to him and to prevent alienation, love and the desire of both parties to take into account (cf. BVerfGE 31, 194 \u0026lt;206>). The parent with whom the child normally resides, must therefore allow in principle the personal use of the child with the other parent (see BVerfGE 31, 194 \u0026lt;206 f.>, 64, 180 \u0026lt;187 , f.>). The same applies even if the child does not live with a parent, but with a foster family. Because usually it corresponds to the welfare of children, maintain family relationships and the child does not completely separate from its roots (cf. BVerfGK 4, 339 \u0026lt;347>; ECtHR, Judgement of 26 February 2004 - 74969/01 - FamRZ 2004, p. 1456 \u0026lt;1459> ).
of a dispute concerning the exercise of rights, the judges make a decision that takes into account the fundamental rights of parents and the child's welfare and their individuality as a fundamental right support (see BVerfGE 31, 194 \u0026lt;206 f.>, 64, 180 \u0026lt;188>). The courts need to in each case to a concordance of the various fundamental rights efforts (see BVerfGK 9, 274 \u0026lt;277 fmwN>). The circumstances of the case are not sufficiently taken into account when the courts without making specific findings, a specific regulation dealing with reasons for its case law in similar cases (see BVerfGK 9, 274 \u0026lt;278>; Constitutional Court, Order of the 3rd Chamber of the First Senate of 18 February 1993 - 1 BvR 692/92 - FamRZ 1993, p. 662 \u0026lt;663>). A limitation or exclusion of rights of access is only initiated if the circumstances of the case, the protection of the child requires it, a threat to his mental or physical development to ward off (see BVerfGE 31, 194 \u0026lt;209 f.>).
The measures taken by the competent courts, and the findings of fact made by them in the individual assessment has not verified the Federal Constitutional Court. The constitutional review is subject, however, whether professional judgments based on a fundamentally incorrect view of the significance and impact of a fundamental right (see BVerfGE 18, 85 \u0026lt;92 f.>). The intensity of this test depends on to what be influenced by the decision affects fundamental rights (see BVerfGE 83, 130 \u0026lt;145> with further references).
protection of fundamental rights must also be ensured through the design of the process (see BVerfGE 55, 171 \u0026lt;182>), the trial must be in its design suitable and adequate for the enforcement of substantive fundamental rights to serve effectively (see BVerfGE 84, 34 \u0026lt;49>). these requirements, the courts only right that they deal with the specifics of each case, the interests of parents and their views and dignified personality and respond to the needs of the child (see BVerfGE 31, 194 \u0026lt;210>). The will of the child is taken into account, as far as is consistent with its well-being. This requires that the child is in the court proceedings to make its personal relationships with their parents can be seen to. The courts must therefore make their procedures so that they can reliably detect the possible basis of a decision on child well-defined (cf. BVerfGE 55, 171 \u0026lt;182>; BVerfGK 9, 274 \u0026lt;278 f.>).
b) These standards are the specialized courts in this case is not done justice. The challenged decision reflects the parental rights of the complainant, both material and not in his charisma to the proceedings sufficiently into account.
aa) Although the specialized courts in the correct approach will assume that the best interests of the key measure for the handling system should apply. Also out of the district court correctly that, in addition, the constitutionally guaranteed right of parents is taken into account. The challenged decisions can not but recognize that the Specialized courts following the constitutional requirement of the above principles have been aware of the parental right to take in account the extent to which it is to be brought into line with the welfare of children (see Federal Constitutional Court, Order of the 3rd Chamber of the First Senate of 18 February 1993-1 692/92 BvR - FamRZ 1993, p. 662 \u0026lt;663>). The decisions provide any argument that parental access in all the circumstances of the individual case in the best interests of the child.
(1) What the district court essentially exhausted in the general statement that the boy grow up in a foster family and its integration in this environment should not be disturbed. It should also be borne in mind that the handling had been initially every four weeks. cause significant disruption in the relationship of the child Whether and to what extent the handling contacts with the complainant and the possible intensification actually his foster parents, the Local Court decision is not apparent. Neither the fact that the complainant nor the child could not be classified as his biological father, nor the statement that it is the whorls after a certain time - for unspecified reasons stated - again turn to the foster father can, then to draw conclusions. offers Neither the Local Court in the decision cited statement by the foster father, the visits would exert the child ample evidence that, even if only moderate expansion will harm the handling of the child's interests, especially since the effort of the child may stem from the fact that dealing in the company and thus takes place at several observation.
The adoption of the district court that the complainant would be required unaccompanied use every weekend and public holidays, the situation the child does not meet demand and it therefore lacks a comprehensible explanation. Above all, consider these remarks not think the court is not at the request of the complainant's revenue and between the currently practiced guided treatment every four weeks for one hour in the foster child agency and to the complainant handling a range of other regulatory options open.
24 (2) The reasoning of the Court of Appeal makes a more detailed discussion miss the question, which scheme specifically requires the welfare of the child. The Higher Regional Court justified rejecting the complaint of the complainant alone with the fact that currently serve only the foster parents as caregivers of the child and are therefore a careful design of dealing with his biological father is necessary. It refers to two decisions of the Senate and a reference in Palandt, Civil Code, § 1632 para. 13 et seq, which all do not deal with a similar question, but the problems of Verbleibensanordnung under § 1632 para 4 BGB. Detailed findings to the extent to which the welfare of the child involved here requires a careful handling of regulation and therefore a comparison with the previous practice of advanced treatment In any case, the child's interests would not be fair, is not found in the decision. The claim that greater use would endanger the child needed stability in his personal life, is neither justified nor is it is in any way. She would also therefore needed further discussion, because the Court of Appeal also noted that the complainant wished to leave his son in the foster family and there are no doubts as to its suitability care.
bb) Also selected by both procedures met constitutional courts Concerns. It was not such as to obtain the most reliable possible foundation for the welfare of the child-oriented decision.
The question of whether time or intensification of previously practiced handling a transition to unsupervised contact with the child welfare is compatible or not, requires a reliable determination as well as the will of the child. This is indeed a small child to discover heavy and has a rather small weight in determining the actual design of his association with the access rights. However, could a child of any express or indirectly voiced desire for more frequent or prolonged contact with the complainant or other activities with his expression of his bond developed with the complainant, which might make it seem necessary to make further arrangements. Conversely, the contrary statements of the child be an indication that intensifying the handling would be premature at present.
this will have (cf. BVerfGE 55, 171 \u0026lt;182>) to the specialized courts by a hearing of from the time the Local Court decision three year old child, at least according to a the child § 50 para FGG ordered a guardian ad litem can bring in experience (see BVerfGK 9, 274 \u0026lt;281>, 10, 519 \u0026lt;523>). If thereafter would still existed a need for clarification, the possibility of obtaining the expert opinion suggested by the complainant had not existed.
cc) The challenged decisions are based on the possible violations of the rights of parents. It can not be excluded that the courts in all the circumstances of the case and investigate the facts sufficient for a decision more favorable to the complainant were taken.
dd) It is appropriate to repeal only the decision of the Higher Regional Court and remanded the case for reconsideration by the Court of Appeal (§ 95 para 2 Federal Constitutional Court Act) because the complainant is any help to better . For it is in its interest to develop as quickly concluding a procedural decision on his rights (see BVerfGE 84, 1 -5, 94, 372 \u0026lt;400>).
second The arrangement of the reimbursement of expenses follows from § 34 para 2 Federal Constitutional Court Act.
third The amount of the item value is based on § 37 paragraph 2 sentence 2 in connection with § 14 para 1 RVG (cf. BVerfGE 79, 365 \u0026lt;366 et seq).
| Hohmann Dennhardt | Gaier | Paul |
| | | |
Citation: Constitutional Court, 1 BvR 2604/06 18.12.2008, paragraph no. (1 - 36), http://www.bverfg.de/entscheidungen/rk20081218_1bvr260406.html
FEDERAL CONSTITUTIONAL COURT
- 1 BvR 2604/06 -
In the name of the people
In the process of
the constitutional complaint
first of Mr. J. ..,
second wife of J. ..,
against a) the decision of the Higher Regional Court of Dusseldorf on 13 September 2006 - II-4 UF 110/06 -
b) the decision of the Higher Regional Court Dusseldorf, 20 July 2006 - II-4 UF 110/06 -
has the 2nd Chamber of the First Senate of the Federal Constitutional Court by the judge
Hohmann Dennhardt
and the judges Gaier,
churchyard
18 December 2008 decided unanimously
first the decision of the Higher Regional Court Dusseldorf, 20 July 2006 - II-4 UF 110/06 - violates the complainant in her fundamental right under Article 2, paragraph 1 of the Basic Law.
The decision is set aside and the case for a new decision to the Higher Regional Court of Dusseldorf remanded. The second
North Rhine-Westphalia has to report to the complainants their necessary expenses in the constitutional complaint procedure.
reasons: I.
a
The complainants seek as grandparents to transfer the guardianship of her grandchild D., alternatively, the transfer of guardianship.
first two
The complainants are the grandparents of the 30 August 2004-born child D. The child's parents on 16 Married in February 2005. The child's father is the son of the complainant. For the child's mother is a supervisor appointed for the child's father is the - in the way the court proceedings still exist - to care repealed in the meantime.
3
The child's mother has - from a previous relationship - another child, on 14 June 2000-born daughter in a set L. L. daughter of that proceeding before the district court, the expert in his report dated 10th L. January 2005 finds that the child's father is not capable of education and the child's mother was not legitimate, yet even one to look after their children or educate them.
4
a) The district court deprived the child's mother by interim order dated 7 September 2004, the custody of D. and gave that right for the youth office of the district V as a "carer". This ruled that D. should live with a foster family. D. has lived since the 14th September 2004 in the foster family as
5
b) On 30 August 2005, the complainants appealed to the district court with the desire to obtain guardianship or foster care for at least the D. after the complainant's request to 2) of 9 November 2004 to transfer the guardianship of her and D. publication of D. had been allotted for the care refused. By order of 7 April 2006, the district court rejected the application primarily on the grounds that the care situation of D. had not changed since the conclusion of preliminary proceedings. The regularly performed home visits would rather have shown that D. of mentoring is appropriate for children in care as family and have established a viable relationship with his foster parents.
6
c) directed against this complaint, the Higher Regional Court by order of 20 Back in July 2006 and led to the creation, in essence, the requirements of § 1915, Section 1, § 1887 BGB for intervention by the court did not exist. The Senate had already in its decision of 15 July 2005 in the pre pointed out that the family relationship to the complainant D. itself is not sufficient reason alone, repeal an existing guardianship for reasons of child welfare, after it had missed the complainant to apply to time and preferably before the birth of a D. guardianship. The Senate had in these proceedings no reason to depart from this view. It does not serve the best interests of the child, it is familiar from his foster family to take out where it had lived virtually since his birth, to make it live in the future with his grandparents, EXIST about their educational qualification to be adequately assessed. At this point have already mentioned the method of D. nurse.
7
The Senate was - as in pre-trial - the view that his foster family in D. is in good hands. The foster parents had raised three children of her own. The foster mother also had long experience with the care of foster children. The assertion by the complainant, D.'ve become his foster parents do not parent-child relationship, is misconceived. The foster parents also lend themselves better in age as surrogate parents for D. as the complainant, this already 50 and 51 years old, an age were they not predestined (more) for the education of a young child. Overall, therefore, would be available no circumstances that would enjoin the grounds of the child's best interests to amend the previous best state and the complainants, the guardianship or to transfer guardianship of D..
8
The Anhörungsrüge the complainant was also not successful.
9
second With its constitutional complaint, the complainants allege a violation in spirit of Article 2 paragraph 1 GG because the specialized courts have their close relatives position as grandparents in the selection of the guardian for D. respected nor the desire of the parents, should in D. the family grow up with them as grandparents.
10
is further a violation of Article 103 paragraph 1 GG given. A stage of their education qualification was made in either the first or the second instance. Doubted their Suitability and eligibility should have been informed by the court to initiating end expert opinion.
11
third The constitutional complaint was the state government of North Rhine-Westphalia, the District Youth Office V, the parents of the child and the foster parents for comment.
12
The Federal Constitutional Court, the court's case, the previous procedure, 7 F 447/04 and the following two procedures 7 F 7 F 440/06 and 30/07, and the procedure for termination of parental care and the transfer of guardianship 7 F 264 / 04 pre-set, including the appointment of the Youth Office on the guardian 9 VII 05.26.
II
are 13
The Chamber the constitutional appeal in so far as the complainant against the violation of Article 2 paragraph 1 GG by the decision of the Higher Regional Court of 20 July 2006 contact.
14
The adoption of the constitutional complaint should be taken to enforce the law, the complainant under Article 2 paragraph 1 GG (§ 93a para 2 letter b Federal Constitutional Court Act). This decision is called the chamber because the relevant constitutional issues are decided by the Federal Constitutional Court already and the extent permissible - in particular, sufficient evidence to substantiate (§ 92 Federal Constitutional Court Act) - constitutional complaint is well founded obvious (§ 93c Federal Constitutional Court Act Section 1).
15
first The constitutional complaint is - as far as the complainants in violation of Article 2 paragraph 1 GG claims - is acceptable. The complainants have exhausted the legal process and the monthly period of § 93 para 1 BVerfGG respected.
16
extent that the complainants allege a violation of due process is, however, the constitutional complaint inadmissible. The complainants, the objection of subsidiarity countered. Who in times of court proceedings fails to allege a procedural violation, goes to the possibility that infringement by the constitutional complaint as a violation of fundamental rights claims to make (see BVerfGE 16, 124 \u0026lt;127>, 83, 216 \u0026lt;228 et seq, 84, 203 \u0026lt;208>).
17
The complainants allege the failure to take account of her presentation, the question of their suitability and eligibility education is the need for an expert opinion. The complainants have not raised a Anhörungsrüge. Subject of Anhörungsrüge was not the allegation of failure to comply with her lecture on the need for an expert opinion on their educational qualifications. The applicants have therefore specialized court proceedings do not take all reasonable options taken to correct or prevent a breach of which they have accepted the defense. Moreover, the complainants have also provided no evidence directed to these formal request.
18
second The constitutional complaint is - if it is allowed - founded.
19
The impugned order of the Higher Regional Court of 20 July 2006 violated the plaintiffs in their right under Article 2 paragraph 1 GG and protection of the family under Article 6 § 1 Basic Law.
20
a) The measures taken by the competent courts, and the findings of fact made by them in the individual assessment has not verified the Federal Constitutional Court. Similarly, it in principle for the specialized courts to choose which procedural route them to access the necessary knowledge for their decision (vgl.BVerfGE 79, 51 \u0026lt;62>). The constitutional review is subject, however, whether professional judgments based on a fundamentally incorrect view of the significance and impact of a fundamental right (vgl.BVerfGE 18, 85 \u0026lt;92 f.>). The intensity of this test depends on the degree be affected by the decision-making rights (see BVerfGE 83, 130 \u0026lt;145> with further references).
21
b) The Federal Constitutional Court has repeatedly held that Article 6 § 1 Basic Law obliges the state to respect the existing family of parents and children to community-both in intangible personal as well as in substantive economic field as independent and responsible (vgl.BVerfGE 10 , 59 \u0026lt;83>, 13, 331 \u0026lt;347>, 24, 119 \u0026lt;135>, 28, 104 \u0026lt;112>). It also has made clear on several occasions that Article 6, paragraph 2 GG guarantees the primacy of parents in the responsibility for the protection and vulnerable children (vgl.BVerfGE 24, 119 \u0026lt;138 with further references). These constitutional principles enjoin a preferred account of the family members in the selection of nurses and guardians, unless a conflict of interest exists or requires the purpose of the welfare measure for other reasons, the appointment of a third party.
22
c) According to the European Court of Human Rights includes family life under Article 8 ECHR, at least - well - close relatives - such as grandparents and grandchildren - as it within the family an play significant role. Respect for family life so understood reasons for the state the obligation to act in a way that the normal development This relationship allows (see ECHR, Judgement of 13 June 1979, NJW 1979, p. 2449 \u0026lt;2452>). It follows that the courts have to consider when choosing a guardian existing family ties between grandparents and grandchildren.
23 The European Human Rights Convention and their Additional Protocols are international treaties. The Convention leaves it to the parties, how they meet their duty to respect the treaty (ECtHR, Judgement of 6 February 1976, Series A No. 20, Section 50 - Swedish Engine Drivers Union. ECtHR, Judgement of 21 . February 1986, Series A no. 98, paragraph 84 - James and Others: see Geiger, the Basic Law and International Law, 3 Edition 2002, p. 405; Ehlers, in id
24
Rank This assignment means that German courts to respect the Convention and other laws of the federal law in a methodologically justifiable interpretation and have applied. The guarantees of the European Human Rights Convention and their Additional Protocols are in the German legal basis of this rank in the hierarchy is no direct constitutional standard of review (see Article 93 para 1 no 4 a GG, § 90 para 1 the FCC). A complainant can so far before the Federal Constitutional Court did not directly challenge the breach of a contained in the European Convention on Human Rights with a constitutional complaint (vgl.BVerfGE 74, 102 \u0026lt;128> with further references; BVerfGK 3, 4 \u0026lt;8>). The guarantees of the Convention, however, affect the interpretation of fundamental rights and constitutional principles of the Basic Law. The text of the Convention and the jurisprudence of the European Court of Human Rights can serve at the level of constitutional law as an interpretative aid for the provision of content and scope of fundamental rights and constitutional principles of the Basic Law, unless this is a - of the convention is not self-imposed (see . Article 53 ECHR) - Reduction or loss of fundamental rights protection under the Basic Law, the (vgl.BVerfGE 74, 358 \u0026lt;370>, 83, 119 \u0026lt;128>; decision of the 3rd Chamber of the Second Senate the Federal Constitutional Court of 20 December 2000 - 2 BvR 591/00 - NJW 2001, p. 2245 \u0026lt;2246 f>).
25
d) These requirements are sufficient, the challenged decision of the Higher Regional Court of 20 Th July 2006.
26
aa) The district court, the mother of the child D. hitherto only by way of interim measures provisionally deprived of parental care and it therefore only temporarily transferred to the juvenile office as guardian of the child D..
27
The decision on the termination of parental care and the transfer of guardianship of a child by way of interlocutory injunction is a temporary arrangement. It can be left open whether and to what Extent this legitimate interests of third parties - such as relatives - must be considered. These are certainly to be considered in the proceedings on the final termination of parental concern and the final appointment of a guardian in the selection of the guardian for the child D.. can
28
bb) Under Civil Code § 1697, the Family Court in the case that led to arrange because of it has taken a guardianship or trusteeship is to make these arrangements, and choose the guardian or caretaker. Unless otherwise specified, these decisions are subject to the child and the legitimate interests of the parties, § 1697a BGB. In this case, the family court - like the guardianship court - considered in the selection of several suitable persons including the presumed intention of the parents, the personal ties of the ward and the marriage or relationship with the ward, § 1779 BGB.
According to § 29 para 2 BGB in 1779 to select the guardianship court a person is suitable to their personal circumstances and their financial situation and other circumstances to guide the guardianship. Under the revised provision on the basis of childhood Reform Act of 16 December 1997 (BGBl I p. 2942) when choosing among several suitable to consider the person alleged will of the parents, the marriage or relationship with the child and its religious beliefs. Suggestions and wishes of the parents are therefore - in any case - not binding if the child's welfare would be jeopardized with the order. Preferably the consideration of family members and relatives of the child, according to the law of the Federal Constitutional Court a constitutional requirement, unless a conflict of interest exists or the purpose of the welfare measure for other reasons, the appointment of a third party demands (vgl.BVerfGE 33, 236 \u0026lt;238 f.> ). It is also widely taken for granted then that in intact families and kinship children when their parents for whatever reason, always resign as guardian, be taken up and reared by grandparents or other close relatives, they allow their conditions so warrant. This document is grown family relationships, connectedness and responsibility. If these relatives to guide the guardianship suitable for the purposes of paragraph 2 Civil Code § 1779, so they may not be as ignored because an outside third party would be better suited to such a view to promoting optimal mental child.
30
Other persons may be considered only as a guardian if a non-identified in accordance with the principles of appropriate relatives or present. Also an order of the youth office in accordance with § 1791b para 1 BGB only if a suitable person as an individual guardian is not present.
31 cc) The above principles will not meet the challenged decision. The Higher Regional Court, in its decision of 20 July 2006 on the fact that the request of the complainant seeks a change of guardian. A change of the guardian is to accept only if one is appointed permanently. If the appointment of the guardian as here, a temporary withdrawal of parental concern basis, notify the appointment of the guardian, the legal fate of this "fundamental decision". The initial final order is related to the final termination of parental concern. The appointment as guardian on the basis of a provisional custody of withdrawal can only be viewed as preliminary.
32
The Higher Regional Court in its order dated 20th July 2006 denied that the basis is the guardian of order, a temporary custody of deprivation, therefore the first definitive appointment of a guardian - as yet - has to be found in the framework of just the relative position of the complainant as grandparents taking into account needs. The Higher Regional Court has thus overlooked the importance and scope of the personal relations of the complainant as grandparents to their grandchild D., protection of the family is not sufficiently taken into account and therefore violated Article 2 paragraph 1 GG.
33
The appointment of a guardian for the child is D. - having regard to the child - the will of the parents to be observed and the relative position near the complainant to her grandchild. Admittedly, also left in office procedure with determination principle the trial court stay, which way it considers relevant to the statutory provisions to be appropriate to get to the necessary evidence for its decision (Vgl.BVerfGE 79, 51 \u0026lt;62>). The legal process must be in its design, however, suitable and adequate to serve the enforcement of the substantive fundamental rights effective (vgl.BVerfGE 84, 34 \u0026lt;49>). The courts have to design their procedures so that they can reliably detect the possible basis of a decision based on the child's welfare. The specialized courts are constitutionally held thereafter not always obtain an expert opinion (vgl.BVerfGE 55, 171 \u0026lt;182>). If they refrain, but by the assistance of an expert, they must dispose of the most reliable possible Basis for decision have (see Federal Constitutional Court, 1st Chamber of the First Senate decision of 18 January 2006
- 1 BvR 526/04 - FamRZ 2006, p. 605 \u0026lt;606>, 26 September 2006-1 BvR 1827/06 -, NJW 2007, p. 1266 \u0026lt;1267>; of 19 December 2007 - 1 BvR 2681/07 - FamRZ 2008, p. 492 \u0026lt;493>).
34
Where the Court of Appeal focussed objective of that education on the ability of the complainant was unconfirmed secure evidence and that the foster parents and in age more suitable as surrogate parents for the child than the complainants, who were at an age when the they do not (more) predestined for the education of a young child is to point out that the establishment of a full state of knowledge now an expert report has not been obtained and predestined, given the age difference between the complainants and the foster parents of two and three years of the argument, their age the complainant no longer for the raising of a young child, little appears viable.
35
third The violation of the right of the complainant on compliance with its close relatives in the selection of the guardian for her grandchild D. by the challenged decision of the Higher Regional Court of 20 July 2006, according to § 95 Para 1 sentence 1 BVerfGG determine. The decision of the Court of Appeal is set aside and the case for reconsideration by the Court of Appeal (§ 95 para 2 Federal Constitutional Court Act).
36
The arrangement of the reimbursement of expenses follows from § 34 para 2 Federal Constitutional Court Act.
Hohmann Dennhardt Gaier churchyard
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