I'm here once so my analysis to vd Lieth its ruling, one can then discuss it again. I write my text in red to the original text I leave largely untouched.
Citation: Constitutional Court, 1 BVR 374/09 of 29.1.2010, paragraph no. (1 - 61), http://www.bverfg.de/entscheidungen/rk20100129_1bvr037409.html
not free for commercial use. Commercial use only with the consent of the court.
not free for commercial use. Commercial use only with the consent of the court.
- 1 BvR 374/09
| first | of Herr von d. L. .., |
| second | Women vd L. .., |
- Agent:
lawyer Marcus Gnau,
Am Born Acker 10, 61231 Bad Nauheim -
Am Born Acker 10, 61231 Bad Nauheim -
| against a) | the decision of the Higher Regional Court of Celle, 19 December 2008 - 18 uF 121/08 - |
| b) | the decision of the district court Stade of 8 May 2008 - 42 F 641/07 SO - |
has the 2nd Chamber of the First Senate of the Federal Constitutional Court by the judge
Hohmann Dennhardt
and the judges Gaier,
churchyard
and the judges Gaier,
churchyard
29 January 2010 unanimously adopted:
- The decisions of the district court Stade of 8 May 2008 - 42 F 641/07 SO - and the Oberlandesgericht Celle, 19 December 2008 - 18 uF 121/08 - violate the complainants in their fundamental right under Article 6, paragraph 2, sentence 1 of the Basic Law.
The decision of the Higher Regional Court of Celle is repealed and the case remanded for a new ruling to the Higher Regional Court of Celle.
That's now in my view, once fatal to the appeal decision will be renegotiated, but the removal of the child for the parents remains unchallenged.
- Lower Saxony has to report to the complainants their necessary expenses in the constitutional complaint procedure.
- The object value of legal work for the constitutional complaint to 14,000 € (in words: fourteen thousand Euros).
Well, it is again as before, the lawyer has made a good cut, the parents have not even won the black under the finger nail. Thanks to the Lord Gnau.
reasons
I.
The complainants against the partial deprivation of custody of her daughter.
first The married since October 2002 are the parents of the complainant in January 2003, born V. The girl suffers from a developmental language and speech disorder.
a) first time in December 2006, argued the complainant of the residence determination for her daughter. The background was after the complainant to 1) the complainant disputed lecture 2) violent conflicts in the family. Following a police operation, the complainant was to 1) with their daughter and went to his sister. The complainant went to 2) to the refuge.
This is the root of all evil, the complainants were separated before. He seems aggressive, because the police operation, they were innocent and the women's house - it's great, the JA had a good Attack.
reconciled Subsequently, the complainant and were living together again. However, the complainant applied to 1) in January 2007, the transfer of the residence determination up.
He first, now they are arguing for the child - the JA is the laughing third parties.
In February 2007 the competent District Youth Office, a two family assistants. An assistant took over the care of the child and the conversations with the complainant to 1), while the other cared for the complainant to 2) and in the relationship help should be. With the support of family helpers, the complainant went back to 2) in June 2007 to the women's house.
can not understand me. First she goes to the women's house, then will be reconciled and suddenly she goes, despite family support back into the refuge?
Within three months, two adult people deserve to know whether they fit together or not. She crouches in the refuge, he is fully working, the child is placed externally - that could go well if ever.
The daughter stayed with the complainant to work full-1). This advocated that they could visit in August 2007, speech and language therapy for children. He was involved in the nursery and was elected parent representative. For its support, it remained in the family used now by using a helper. In addition, a maternity care has been opened to a care of the child during the layers of the complainant to 1), who works as a courier driver, was assured. In addition, the girl spent the night during his night shifts twice a week in the foster family.
... and there seems to YES the story to have become too expensive to help a family, a week care and a foster home, everything had been good at the expense of taxpayers ... and the mother claimed not even contact with the child, because ...
In September 2007 the complainant to 2) the family court a question of a policy and a transfer of the residence determination up. Complainant 1) marked by disputes with neighbors and clients and the complainant on 2) used. Multiple crisis talks were held with the youth office to assist it to the education of his daughter. There have been repeated aggressive outbursts, such as the law office of former agents of the complainant method to 2) or the provision of his claims in court, where his daughter was always present. In November 2007, the complainant asked to 1) repeatedly, sometimes even late evening hours to support the family helper.
ABR The third application to the Court, even handling should now be settled in court - and I ask myself as an objective reader, what got these parents regarding their child's general information only to the series.
R. makes even the top dog as a parent representative shall, not just once but several times aggressive, apparently can not even bring the child alone in the evening in bed, so that the state "Helper" must step in - and wonders if the youth office draws as a line?
b) In the late evening of 16 December 2007 called the complainant to 1) the family assistant and asked for help with a problem of education. The following event is described by two different ways. According to the report of the family helper, who had called in the police, the complainants 1) had expressed suicidal intentions. The complainant denies to 1) this, the family assistant took the child over night to his home. The next day the girl was taken into custody by the Youth Office. withdrew at the request of the District Court on 21 December 2007, the complainants by way of interlocutory injunction, the stay-determination for their daughter and it was passed to the Youth Office as a nurse.
This is probably the point, why he won the constitutional complaint - he thinks. I'll come back later to commit suicide. After the previously described, in my view, the taking into care of the child have been more than justified and overdue.
Both parents have one year to be in agreement about their relationship, to find an educational concept, which both can be happy - especially the small. He makes a parent representative on the speech and language therapy for children - educate the child but family helpers, foster parents, teachers in kindergarten - even to bed, he gets the child is not without offending somewhere.
That should be left to melt on the tongue once really, everyone should consider whether it's child when he would have, would provide exactly the same?
By order dated 25th January 2008 held the district court after an oral hearing to determine his interim order. The appeal by the complainant to 1) remained unsuccessful. The child was placed in a foster family given.
early April 2008, notified the Child Protection Services in the course of a dispute with the complainant to 1) the police again. According to the Youth Office, the child should not exercise because of a coryza of vaccinations due to which the complainant wished to 1) bring it. After the complainant had to 1) called the pediatrician foster mother said by telephone that a cold does not stand in the way of vaccination, but she let the child go with him to the doctor. After the deadline, the complainant back to 1) his daughter in the foster family.
In the main hearing before the District Court on 29 April 2008, the expert explained his opinion orally, in which he recommended a Child of the girl in a youth services facility. The decision of the custody issue, the court initially deferred to the complainants with an opportunity to reflect on whether they want to follow this recommendation in principle.
Well, the 2) is of course up to this point hardly have appeared that 1) it has untergebuttert or threatened, is another question, but after not rule out this far read. The court is now building a bridge, it decides not custody cases, but only evaluates the report as get "warning shot" for the parents, your life, not that of the child under control, without touching the child to have.
Here the court has indeed made a mistake, it did not recognize that parents are simply not able to follow the recommendation of the expert. This would have been appropriate to order the child for half a year, that is limited in time to accommodate by recommendation - to give parents the chance to learn from their mistakes.
More error I can not see with both eyes.
brought on the day after the hearing the complainant to 1) his daughter after a deal to return. The youth ministry had previously another deal on 1 May 2008 In approved. The complainant telephoned to 1) with the family court judge and the witness and said he had made his daughter a bed in his truck with her and wanted to flee abroad. On the intervention of the experts he brought them back to the foster family.
Wow, threatened child abduction, because the ABR was indeed at the JA. 1) is then to whisk, even calls to the family court judge and attempts to influence them with this threat. And then he tried the same with the consultant.
I 1) would have beaten not only foam but would have pulled through, but as I said, regarding the child they both get nothing on the series alone. I guess that the Court of Appeals this thing - or the next, adequately acknowledged in its second hearing is referred back.
On 1 May 2008 barred the complainant to 1) the doors of his truck, which was also the complainant to 2) and threatened to go against a bridge pillar. The complainant was able to 2) only after some time near the home of the foster parents fled from the car. It came to a police operation.
Aha, so that was it. If I had been in the place of police, walking in a situation like the idea to the final rescue shot to death when two must have at least one to be saved - and I would not have shot 2).
in other areas of the Republic seems to proceed like this:
The child from social services taken out of the foster family and placed anonymously. It visits now an the complainants unknown integrated kindergarten.
Aha, that was then, then, when two suicide threats by 1) was one such decision was to be expected. Or someone has another suggestion, how to protect against child care and extended family of suicidal ideation 1).
Moreover, men were in the unofficial version of the 1) other debt, the action will need to be killed - at least for me include here a circle.
b) With - under attack - the order of 8 May 2008 deprived the District Court at the request of the Youth Office to the complainants residence determination, the right to regulate health care and educational affairs and the right to apply for social benefits.
... and they still have custody because of what others have lost less.
aa) The court shall endorse on the findings of the expert that it is the welfare of children most likely to correspond, if V does not live with their parents, but in a youth services facility. The complainant to 2) be recognized currently not in a position to to ensure responsible and in contrast to the child's father for his daughter. It is itself fully dependent on aid. Their relationship problems with the complainant to be a) completely unprocessed.
Hm, but both have now had two years to work up there, but no one thinks of the two. They are both sick and pull alongside the child.
you urgently need the support of the complainant to 1) independent persons. Since they alone could not provide for themselves, they have after being discharged from the refuge again using the claimed, resulting in a re dependence and, moreover, also led the complainant to 1) emotional overload because he had to support both their own problems, his wife. Further escalation due to their mutual dependencies at the same time a significant potential for conflict had feared.
Even the complainant to 1) be in light of his untreated mental health problems are not in a position to provide the daughter in his household. He should have made himself in his childhood traumatic experiences through home care, which draw partly responsible for his personality disorder. If they were his willingness to Responsibility for his child to a second party, by way. He does not trust each ignorant of this but their own shortcomings.
Why the experts, the child does not mention by name, that 1) seems to have borderline, is beyond me ...
measures of family support services have failed and not obvious enough. The view of the complainant, they could make their own responsibility for their child if they had been looked after properly only parts, not the court.
Aha, if the two sufficient been looked after, would they have for their child care on own responsibility - is indeed funny, but never mind.
'll Although recognized that due to illness and subsequently the administrator changes positions and representation in the youth office crisis talks were not always carried out promptly. Nevertheless, the child's parents had been consistently maintained time-consuming since February 2007. I needed the reports of the family assistant demonstrated the considerable expenditure of time, the high demand of the complainant to question 1), comprehensive support for the settlement of his personal and professional problems. Complainant 1) is, despite this extensive support for a variety of personal and professional problems again and again and to cope with rising trend. The offers to lead the family helper, child care discussions with her or the child guidance, he no longer accepted. Nor was he willing to be treated therapeutically. Contrary to the complainant to 1) argued that it was already at the time when his daughter had still been in his care, always been a serious loss of control of his hand, which had been very damaging for them. As an example be made to the incidents in the law firm of former representative procedure the complainant referred to 2). have been joined were the courts in some cases, disputes with neighbors.
The high support needs, the complainant should provide as part of outpatient measures not that it would be irresponsible to let her daughter go back in the family home. Here in particular the significant needs of the child who had to catch up with now five years, significant language deficits and because of his attachment disorder desperately need a reliable environment with clear structures is to consider. Such a reliable environment with clear educational structures and a regulated daily routine can calm did not provide him the complainant. Since they had not taken into care despite urgent judicial council and expert psychological treatment. The complainants are - after multiple divisions, which were sometimes accompanied by police action or family helpers and the refuge - even now pulled together again. They would therefore have considerable personal support needs. Recent conflicts are likely. Her daughter had already gone through two separations of parents, which was preceded by violent confrontations with violence allegations of the complainant to 2). These separations are connected again with parades and unilateral contact terminations and a heavy emotional burden on the complainant. In the light of their already considerable catching-up it can not be responsible, they suspend these unstable conditions again.
bb) The child's parents are currently unable to use their custody for the benefit of the daughter having regard to their own shortcomings and really engage in a home child care. The conduct of the applicant to 1) prove that he was not able to control his emotions when a decision would be made unintelligible to him. He was then ready to resort to means which will not only criminal prosecution but child endangering are highly distinctive. This showed the incidents of 30 April and 1 May 2008. Since the complainant to 1) try fundamentally recognizable to the welfare of his daughter and for each participant was shown that this totally unacceptable behavior must lead to the removal of the child, could only conclude that he in stressful situations in general was not in a position to control his behavior. He lost in his great longing to be close to his child's welfare in mind.
But that is nonsense. Why had the 1) longing for his child, 2) he was involuntarily hearing, could take care of themselves not the child.
one wanted) simply do more for his child as he could, by work, stress of 2) - I see it this way, is that 1) did, in his view everything for his child, but it was just not enough ... been
If the complainant to 1) on it was withdrawing, his conduct was provoked solely by the youth welfare office, be it in the light of the foregoing correctly. Although the expert had assessed the behavior of the Youth Ministry With the agreement of two medical appointments and dealing with the complainants critical. This change, however, nothing the educational deficits of the complainant. Moreover, almost all the parties marked in agreement that the complainant would be perceived to 1) temporarily in his conduct as a threat and a very big issue and needs help at times could not be met. Complainant 1 had) felt the contact with his daughter to be insufficient and such as to be rubbed in it that it's always been a dispute in her presence and loud telephone discussions with the foster parents. In a home care he would accept, however, that handling contacts only after consultation and taking into account the interests of the child and the daily routine in the foster family or body are possible.
The decision is not contrary to the child's will. V. have a very close bond with her father. They have in the judicial hearing and the foster mother asked over and over again for her father. Because of the severe abnormalities of the complainant to 1), however, currently handling an uncontrolled child endangering. It must occur to stabilize the complainant to 1) a therapeutic treatment, which was expected of him that he was beginning its own effort to refrain from accusations against others and to work on themselves.
times to 1), he has held since the wave of a fence post of the court - no. It gave him several people from the scene to offer help
When help did not then be achieved in as he wanted, was his reaction to the threat of violence to the death threat
d) filed against this complaint, the complainant had the Oberlandesgericht Celle - attacked - Decision of 19 December 2008 with the proviso back that Einzelpflegschaft for V. is ordered.
The decision of the district court was delivered correctly. The partial withdrawal of parental custody under Civil Code § 1666 is necessary because without it the child's welfare is at risk and not less severe measures would qualify. The complainants had to provide because of their personality structure is not currently in a position to look after the daughter child-friendly, and promote in a way that it enables a child-friendly and promising development.
this is to imply that the two complainants to seek the daughter forces. Their deficit was, however, that they would not recognize that they inflicted their damage by their behavior. This applied particularly to the complainant to 1).
This sentence should be 1) remember exactly, because he says, where the journey goes according to this constitutional complaint.
This was due to his personality disorder (the child mentioned by name) temporarily unable to control himself. This leads to massive and indiscriminate attacks scream, panic, almost amokartig looking behavior, during which even adults, the calming of the complainant to 1 no success). An assertive Adults could escape the situation aware a child be to the conduct of the applicant to 1), however, helpless . It realized the complainant to 1) do not even know he confront the child in this fatal way for it. Because the motive of his actions always seem to be the child's welfare. Escalate a situation doing so it considers that the perception of the complainant to 1) because he was fighting for the welfare of the child. The fact that the escalation of the situation harms the child, he is not reflective. The fact that he also attended by the child was not to calm the fighting and lead to the child in his presence, be amply documented. Also if the child is present, it tends to completely uncontrolled behavior . His behavior ultimately prevent the consistent adoption of necessary assistance.
The behavior of the complainant to 2 am) anti diametrically. They prefer at the outbreak of the complainant to 1) all the way back and was not able to withstand them. She was also unable to protect the child from the outbreaks of the Father.
had the meantime, the situation in such a critical point that had the child must be placed anonymously. Given the Circumstances that had led to the accommodation was anonymous, an unaccompanied contact currently excluded. line with the reasoning of the expert is the host and proof of treatment of both complainants - especially for the complainant to 1) - is urgently needed.
has driven so far as it 1), either he can treat himself, or he sees his child never without supervision. This was a clear announcement of the court to the next in the negotiations, under no circumstances must.
The situation is currently not taken Measures are not resolvable. The reduction of the girl in the family budget come out of the question, because his health at risk and the use of aid in solving the problems was not sufficient. It saw the Senate, that the complainants had not closed in the past, such aid. Ultimately, this would have a difficult situation but can not catch. The Senate in supposing that the two complainants had cared intensely about the welfare of their daughter, the escalation would not have prevented. In that regard, it needs no further examination of witnesses. The complainant to 1) be considered a good visibility. This is demonstrated especially in the situation that led to the taking into care. According to credible accounts of the family assistant was the main concern of the complainant to 1) was subject to the fact that strangers could see the chaotic state of his apartment. The complainant to a succeeding) to people to exploit for themselves, have pointed out, inter alia in the appointment of the experts from the rapporteur of the Senate. The persons who occupy the complainant to 1) for himself, had it no idea of the actual difficulties of the situation. A meaning for the interests of the child come to the representations of outside people so not the case.
On a personal consultation with the family assistant was able to dispense. It would be available and understandable written detailed reports of the family helper, which would be sufficient for decision support. At issue, therefore not as relevant to how the situation had actually played before the taking into care. Rather, the situation is as relevant in their entirety. Given the overall difficulty is the removal of portions of custody, the only way to meet a child's welfare at risk.
The Senate consider it appropriate to order a Einzelpflegschaft. The situation between the Youth Office, the agency currently the keeper and the applicants had so acute that even a House prohibition was pronounced. An individual nurses have more time and more opportunities to adapt to the needs of the parties, and was desirable in view of the difficulties on the part of the complainant to 1) a male nurse. A rights have not controlled the Senate, since in view of the current difficulties of the complainant to 1) A specific regulation was not possible.
second With its constitutional complaint, the complainants allege a violation of their fundamental rights under Article 2 Section 1 and Article 6, paragraph 2, sentence 1 Basic Law by the challenged decisions.
third The file on the case were before the board.
4th The constitutional complaint was the government of Lower Saxony and the youth department of the city as a nurse delivered the child. The Lower Saxony Justice Ministry defended the decision.
II
The Board accepts the constitutional complaint for decision and, instead of her.
first 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).
a) The complainants are infringed by the challenged decisions in their parents' right under Article 6, paragraph 2, sentence 1 GG.
aa) Article 6, paragraph 2, sentence 1 Basic Law guarantees the right of parents to raise and educate their children. The child's education is therefore primarily the responsibility of the parents down with this "natural right" to parents has not been awarded by the state, but is recognized by the law as given. Parents can in principle be free of government interference to decide their own ideas about how they design their care and upbringing of their children and their parents' responsibility to do justice (BVerfGE 60, 79 \u0026lt;88>). This primary responsibility of the parents' decision is based on the consideration that the interests of the child are best fulfilled by the parents. Here even the possibility is taken into account that the child suffers from a decision of the parents disadvantages in a basis of objective Education standards adopted decision could be perhaps avoided (BVerfGE 34, 165 \u0026lt;184>). In the relationship with the child but the child's welfare must be the supreme guiding principle of parental care and promotion (BVerfGE 60, 79 \u0026lt;88 with further references). The protection of parental rights, the father and mother belongs equally extends to the essential elements of custody (see BVerfGE 84, 168 \u0026lt;180>, 107, 150 \u0026lt;173>).
As far as the separation of the child from its parents as the strongest interference with the rights of parents, this is only under the conditions of Article 6 Section 3 Basic Law permitted. Then children can against the will of the guardian of the family are separated only by law, if incapacity of the parents or the children threatened with neglect for other reasons (see BVerfGE 72, 122 \u0026lt;137 f.>). Not every failure or negligence of the parents gives the State on the basis of his off its due under Article 6, paragraph 2, sentence 2 Basic Law Guardian Office, the parents of the care and upbringing of their child or even himself to take on this task (see . BVerfGE 24, 119 \u0026lt;144 f.>, 60, 79 \u0026lt;91>). The parental misconduct rather must reach such a level that the child is at risk for long term persistence in the family in his physical, mental or emotional well-being (BVerfGE 60, 79 \u0026lt;91>).
If parents deprived of custody of their children and at the same time maintaining the separation of children is assured of them, this should also be made in strict compliance with the principle of proportionality (see BVerfGE 60, 79 \u0026lt; 89>). This demands that the nature and extent of state intervention must be the reason for the failure of parents and then determine what is in the interest of the child is offered. The state must therefore possible, try to helping, supporting, reaching as manufacturing or restoration of responsible behavior for the birth parents looking measures its target (see BVerfGE 24, 119 \u0026lt;145>, 60, 79 \u0026lt;93>). In this context, the Federal Constitutional Court ruled that the legislature created § 1666 para 1 in conjunction with § 1666a BGB, an arrangement that allows the family court, for measures to protect the child even the constitutionally guaranteed rights of parents sufficiently account (cf. BVerfGE 60, 79 \u0026lt;88 f.>; 72, 122 \u0026lt;138>).
is basically the design of the process, the Administration and the assessment of the facts and the interpretation and application of constitutionally unobjectionable provisions in the specific case matter to the relevant specialized courts and removed from the investigation by the Federal Constitutional Court. He only responsible for monitoring whether the challenged decision reveals error of interpretation based on a fundamentally incorrect view of the importance of a fundamental right or the extent of its protection area. In the performance of these tasks can be the limits to intervention by the Federal Constitutional Court but draw not fixed and stable. They depend in particular on the intensity of the fundamental right impairment (BVerfGE 72, 122 \u0026lt;138>; established case law). When escape judicial decisions that parents or parents for custody of her child, is due to the weight of the material impairment of the parents' fundamental rights under Article 6, paragraph 2, sentence 1 and Article 2 paragraph 1 GG occasion the basic scope of the audit go (BVerfGE 55, 171 \u0026lt;181>, 72, 122 \u0026lt;138>). Therefore, in addition to the question of whether the decision can detect errors, which in principle on a erroneous view of the importance of the fundamental law, in particular the extent of its scope based, individual interpretation errors are not disregarded (cf. BVerfGE 60, 79 \u0026lt;91>, 75, 201 \u0026lt;222>).
bb) These standards are the specialized courts with the challenged decision is not done justice. They have, instead, the parental rights of the complainant in scale and scope misjudged.
Now begins the Rumgewurschtele because of parental rights, the District Court did not decide, because it was not requested - or is it?
(1) The official court decision can not be seen that the high court of the constitutional requirements for separation of a child from its parents against their will was aware that in § 1666, Section 1, § 1666a BGB just come legally expressed. The Court's findings are insufficient to prove a danger to the physical, mental or emotional well-being of the child with the necessary security and are therefore not likely to take the decision.
This sentence should be put to the Archive National Board of VafK behind the mirror, wishing to get rid of the.
(a) The grounds of the official court order (and previously also the question of the expert) suggest that the court from the relevant for the partial withdrawal of parental care standard of review of § § 1666 , 1666a BGB is assumed. The district court does not set standards on the basis of which it considers the termination of parental rights is justified. It also reviews the merits of whether there is a sustained and serious child welfare endangerment, but merely notes that "the welfare of children is the closest to" if the child with his parents, but living in a youth services facility. This raises substantial doubt that the district court has the constitutional significance of the parental rights of the complainant recognized and considered.
Aha, a dazzling set for umgangsvereitelnde mums - it is not harmful to child when the father threatened to commit suicide in his presence.
It is not child harm if the father does not threaten not only themselves but also the mother of the child with death, perhaps had the JA, the child should to get in the car before 1) drives to the bridge pier ...
For The scene raises the question of what a child needs for parents when the father died (Disposed), it harms the child, if he takes the mother, it is only half the wild, mainly the parents' rights are respected.
The children are the ones the state are shit ... which I will return to these grounds.
(b) Notwithstanding the scale of assessment employed the assets of the district court's findings and content of the partial withdrawal of custody is not justified.
(aa) the termination of parental Concern is in accordance with § 1666 BGB is a risk to the child, so a previously incurred injury of a child or an actual and present danger to such a degree that can predict its further development, a major injury with reasonable certainty (Diederichsen, in: Palandt, BGB, 69 ed 2010, § 1666 para 10).. Further details on this are not found in the challenged order of the district court.
The Law does not contain statements about where the concrete damage caused by the parents' behavior with the child or fear are, nor whether this one reach a level that would justify termination of parental rights.
The Damocles sword of democracy, it will only act after something has happened. Such justifications infanticide are in affect again opened the door.
mentioned introduction, only that V. suffer according to the findings of the expert on a attachment disorder with anxious and distance-free units and a developmental disorder of speech and language, among other educational weaknesses due to need of treatment adverse effects on parents was due. But is it not from the district court discussed question is whether the attachment disorder of childhood actually caused by the behavior of parents or mitausgelöst also prompted by the juvenile office workers frequent change.
What would the opinion of the court must still happen - as the father of one's hair stand on end.
But above all, is not in the grounds of decision in the approach to address the question if the attachment disorder of childhood was so serious that his removal from the now again the same household Parents required.
What would the opinion of our Constitution guards have to be done, that 1) the child first and then hang himself?
Even the expert's report contains no further statements. From it goes so far show only that, according to the statement kindergarten director in March 2008, the previous lack of distance of the daughter, the complainant had improved in the meantime.
regard to speech and language delayed development of the child is undisputed that the Complainant 1) is involved has sought to remedy.
Where, When, not he, others have done, he has only given in order, like thousands of others seeking help parents
He has ensured that his daughter in the Speech therapy for children was included, where they did, according to the kindergarten director and the weekly foster family to the experts, good progress. Risk arising from the complainant in this context is not clear.
(bb) If the district court proceeds as a result of failure of a parent or child's parents maintain that the findings in this respect at least in relation to the complainant to 1) this conclusion is not.
was here to complain about and no one, or the child was taken into care because it visits the speech and language therapy for children, it was taken into care because his father wanted to kill himself - then would the speech therapy school in vain, for sure then not only the child "speechless" was. not
That the complainant to 1) to a supply of the child in his household and with the support of the family support would be able to rise to the District Court with particular his untreated mental problems that the - has regarded as experts attachment disorder with high militancy and recurrent loss of control - acting as child and adolescent psychiatrist.
that regard, the Complainant 1), however - at least not exceeded until the removal of the child from his household, the level of verbal attacks against third parties - as far as you can on the file.
are for violence, contradicting earlier statements by the complainant to 2), above, no evidence. The mere fact that the complainants 1) verbally in stressful situations, lose control, but it justifies not yet, take away the child , especially as directed not the aggression of the complainant to 1) against his daughter.
Brilliant solved the statement.
This is also true in view of the fact that the complainant 1) himself in the presence of his daughter, unable to restrain. Although this behavior is not conducive to the child's education. A sustainable caused by this threat to their mental or emotional well-being is not determined and not be seen from the circumstances.
"But even the possibility is taken into account that the child suffers from a decision of the parents erosion which could under an agreement concluded by objective standards, education decision may be avoided (BVerfGE 34, 165 \u0026lt;184>)." So is the official version of judicial reasoning. I dread today, as the child will later interact with their partners and their children.
is here laid the seeds for something that we want to resist - because you should think about it.
has rather as the head of the child ' attended speech therapy kindergarten to the expert explained that V. is quite robust to feel loved and to resist her extended development risks "surprisingly trouble-free" is.
The child can only feel loved because Vato allows no other option - who says his child - I do not like you that is created by the father yelled.
According to the father, whose family for V. maternity care was the child the "piling" of the complainant to 1 did not) impressed. The evaluation team itself has the effect of the cry of the attacks Child's father on the psyche of the girl made no specific statements. As far as the district court therefore on the edge out, the strong excitation of the complainant to 1) be a traumatic experience for his daughter, is not clear what it supports that conclusion. Furthermore, even its scale and scope is unclear.
The relationship problems of the complainant in connection with the considerable linguistic needs of the child are not a sufficient reason for his separation from parents. First, the district court in this context can be entirely disregarded, that the complainants 1) quite successfully by an appropriate Language support his daughter's care. Second, it ignores the fact that the parents and their socio-economic conditions generally on the fate and lifetime risk of a child are (see Coester, in: Staudinger, BGB, revised edition 2004, § 1666 para 81.). The fact that the girl elsewhere may be a more structured and more predictable environment can be provided with better promotion opportunities can, a (partial) withdrawal of custody is not justified. For the office of guardian of the state does not count the role to provide for the abilities of the child's best promote (see BVerfGE 34, 165 \u0026lt;184>; 60, 79 \u0026lt;94>). That the relationship problems of the child's parents would have been so severe that the risk of a serious injury to her daughter has passed, is again not found. Moreover, the presence of the district court so far adopted child welfare risk is questionable, since the parental conflicts were back in the decision point for several months. The danger of re-separation of the child's parents can be difficult to withdraw custody substantiated.
(cc) To the extent the district court also states that measures of family support and failed apparently were not enough, is also not a sufficient factual basis can be seen. The decision is not apparent to what specific circumstances or events it supports this assumption.
Hey, nothin 'happened?
A physical, emotional or mental neglect of the child in about six months, in which the complainant has to 1) lived alone with her not occurred. Neither the reports of the youth welfare office or the family helper contain this evidence.
While it is true that the support effort by family support, day care and two overnight care per week has been high. That the complainant to 1) but despite this support, "repeatedly and with increasing tendency to cope" was how the district court assumed, is not used to understand.
Aha, 5 people are permanently busy to take care of the child (2 family helper, a kindergarten teacher, the week foster parents - 2 people) - I will be my 5 people who paid for by taxpayers, since writing the here is the 1) without any problem?
This may even be, but expect the Youth Welfare Office has also, and now has the cheapest form of family support found, it has the little bit of what 1) is capable of assumed alone, even with the placement of the child overnight. - But that is only my truth.
The - from the incident 16 - controversial in the details December 2007 justifies this conclusion certainly not alone and it is also the district court is not itself used as the basis for his conclusion.
not understand is also derived from which the district court's conclusion that the Complainant 1) educational meetings was no longer available. Perhaps it is based so far on a report of Family assistant of 21 January 2008, after which the complainant 1) is on 29 November and 11 December 2007 had refused to agree dates for further education talks, because he had to attend to urgent orders for the courier service. From this it can not be concluded that the complainant was to 1) were generally not willing to accept help, as suggested by the official court decision. This is not his otherwise shown application issue. The district court out elsewhere in saying that the complainant had had to 1) a high speech, especially concerning the solution of his problems. Not take into account also remains that the complainant to 1) straight on 16 December 2007 had sought from the support and advice of the family helper.
50 (2) The Court of Appeal makes its decision restrictions, unlike the district court advanced the standard of § 1666 BGB. been apparent from the following discussion, however, that the circumstances of the case are not sufficiently taken into account and are assessed incorrectly.
(a) Also, the Higher Regional Court does not deal with the crucial question of what damage the child by the behavior of his parents threaten and whether they are of such weight that a separation of the Complainants need.
(b) If the Court of Appeal to the conduct of the complainant to 1) received by him and "poorly thought out, almost seeming amokartig practices' have, it does not sit apart so that the incident of 1 May 2008, to which it refers here particularly visible, as is the threat from the previous day to settle abroad with his daughter, a response to the hearing before the District Court on 29 April 2008 show in which the complainant to 1) have shown to be that he can not expect a return of his daughter. Viewed in this light, although it is to completely inappropriate, but understandable from the despair of Complainant 1) out yet inexplicable short circuit acts in a very exceptional situation. As such they came for the assessment of everyday togetherness of the complainant and his daughter any decisive importance. That the complainant to 1) in the time when the child was living in his household, would have acted completely out of control and child endangering is not clear. In any case, there are no findings to that of the higher regional court in so far relied cry attacks of Complainant 1) the mental or spiritual welfare of the child in the custody of a withdrawal required dimensions are affected.
(c) For the further assumption that the current situation without the partially resolved custody deprivation and the use of aid for the solution of the problem is sufficiently lacking any justification. The Senate is not so apart that accepted by the complainants concept combines a family support work with a part-time care for several months has.
not taken into account remains in this regard that both the family with whom the child was first in day care and the foster mother in whose care it following the incident of 16 December is added in 2007, compared to the experts or the magistrate court have accordingly indicated that the complainant to 1) be difficult but was ultimately affect. Only positive assessment from the head of the kindergarten language therapy, the complainants 1) talking to the experts as open to counseling, has described in great effort and also as parents of the Council in the appropriate fora reasonable and constructive. These statements suggest that the Complainant 1) is in principle to a constructive cooperation in the situation.
the extent that the higher regional court states on the other hand, the representations of outside people come for the interests of the child to no significance, because the complainant to 1) assume they know for themselves, also lack a firm basis for this assessment. Because normally a personal impression of the person in question may be necessary to impute to her an unconscious manipulation by the complainant can. Moreover, the adoption of the Higher Regional Court is therefore hard to understand, because almost everyone involved, especially the foster care and the pediatrician, the conduct of the applicant to 1) not only positive signs, but rather represent him very differentiated.
Finally, the Higher Regional Court does in its considerations, the question raised by the complainants, out of consideration to what extent may also have the employees of the county youth office contributed to the escalation.
And here is the Achilles heel of 1), because if the Court of Appeal would have dealt with it, namely the complete loss of custody occurred.
not only the complainant himself, the last of the foster families and court expert have the work of the Youth Office strongly criticized. According to the foster families, there have been no lack of sufficient information, consultation and flexibility. Moreover, it is after the provisional withdrawal of the residence determination in connection with the then still the child's parents are entitled health care for the child not to objectively comprehensible excesses of come from the Youth Office, which have probably led to a further hardening of the existing frontiers between youth ministry and complainants.
lie Moreover, there is evidence that the family assistant to the disputed nature of the complainant's difficult to 1-over) calls have been could be. According to the head of the Youth Office to the court-appointed expert has said that the family helper may have lost with time, the professional distance.
The second attack surface if already a (professional) family helper is unable to cope with the difficult nature of the 1) - how should manage the child so that, if they ever even go to school or Puba is?
The foster mother, with whom the child was in custody, is quoted by the expert to the effect that family assistant was not a reasonable Party was because she was "mad at the family" was. Against this background, it is otherwise an error of procedure, when the Court of Appeal in its decision on the information and reports from the family helper, refers not to have heard them in person.
... and if the now unpack, then it's over to the custody of 1). As I said, it's just my prediction.
cc) The decisions of the district court of 8 May 2008 and the Higher Regional Court of 19 December 2008 based on violations of the parental rights of the complainant. It can not be that the courts had refrained from all the circumstances of the case and sufficient investigation of the facts by a (partial) withdrawal of custody.
b) Since the challenged decisions already of Article 6 para 2 sentence 1 GG notices may be left open whether the decisions also violate the complainants in Article 2 paragraph 1 GG .
Wow, the judges are obviously not stupid, alleging breach of Article 6 claim, but on the right of parents to the care and upbringing of their child alone - no one notices it, that takes exactly this approach by the entire sentence ...
c) It is appropriate to repeal only the decision of the Court of Appeal and the case for a new decision remanded to the Court of Appeal (§ 95 para 2 Federal Constitutional Court Act), because the complainants is better served thereby. For it is in their interest to obtain as quickly concluding a procedural decision on the withdrawal from social services stimulated their custody (see BVerfGE 84, 1 -5, 94, 372 \u0026lt;400>).
... and that's what happened now, because of Article 6 also has a so-called Pflichtpassus:
"... and duty primarily incumbent on them. Watches over the state community. "
Now we for 1) the" prompt final decision on the withdrawal from social services stimulated their right of custody "be plain and simple ...
second The arrangement of the reimbursement of expenses follows from § 34 para 2 Federal Constitutional Court Act.
third The setting the object of 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 | churchyard |
final remark
lawyer Gnau, find out as legal representative, a member of the VafK, would 1) never have to guess this constitutional complaint.
Very well, his average, 14 000 € he has now made all the harm he has serious fathers who fight desperately for years in vain for her children - and now, with this ruling as a basis - continue to struggle in vain be.
also umgangsboykottierende mothers are just parents and are still equal, that they also apply for the verdict.
No court is more of a mother boycott sanction because they exploited her child - the child does this in no visible damage - we have read here.
Every mother can now also tell you if the child sees the father, then I take my life, every parent, the child child care leave, around the clock, so it is not the father must - now even legimitiert Constitution.
I personally am grateful for Mr. VanderMeer Lieth and Mr. Gnau for this landmark ruling.
