Headnote

to the Order of the First Senate of 21 July 2010

– 1 BvR 420/09 –

The parental right under Article 6.2 of the Basic Law of the father of a child born out of wedlock is violated because he is in principle excluded from the parental custody of his child where the child's mother does not consent and because he cannot obtain a judicial review as to whether, for reasons of the child’s best interests, it is appropriate to grant him the parental custody of his child together with the mother or to transfer the sole parental custody of the child to him in place of the mother.

FEDERAL CONSTITUTIONAL COURT

– 1 BvR 420/09 –

IN THE NAME OF THE PEOPLE

In the proceedings
regarding
the constitutional complaint

of Mr. F.,

- authorised representative:

… , lawyer
in Law Firm … –

the First Senate of the Federal Constitutional Court with the participation of

Justices Kirchhof (Vice-President),
Hohmann-Dennhardt,
Bryde,
Gaier,
Eichberger,
Schluckebier, and
Masing

held as follows on 21 July 2010:

1. § 1626a.1 no. 1 and § 1672.1 of the Civil Code (Bürgerliches Gesetzbuch – BGB) as amended by the Act Reforming the Law of Parent and Child (Gesetz zur Reform des Kindschaftsrechts – Kindschaftsrechtsreformgesetz – KindRG) of 16 December 1997 (Federal Law Gazette (Bundesgesetzblatt – BGBl.) I p. 2942) are incompatible with Article 6.2 of the Basic Law (Grundgesetz – GG).
2. Until revised legislation enters into effect, § 1626a of the Civil Code is to apply subject to the proviso that the Family Court, on the application of one parent, transfers parental custody or part thereof to the parents jointly where it is to be expected that this serves the child’s best interests.
3. Until revised legislation enters into effect, § 1672 of the Civil Code is to apply subject to the proviso that the Family Court, on the application of one parent, transfers parental custody or part thereof to the father where joint parental custody is out of the question and it is to be expected that this best serves the child’s best interests.
4. The order of the Bad Oeynhausen Local Court of 30 June 2008 – 23 F 109/08 – violates the complainant’s fundamental right under Article 6.2 sentence 1 of the Basic Law. The order is reversed. As a result of this, the order of the Hamm Higher Regional Court of 20 November 2008 – 1 UF 180/08 – and the order of the Bad Oeynhausen Local Court of 8 January 2009 – 43 F 3/09 – no longer apply. The matter is referred back to the Bad Oeynhausen Local Court.
5. The Federal Republic of Germany and the Land (state) North Rhine-Westphalia are each ordered to reimburse the complainant half of his necessary expenses.

Grounds:

A.

The constitutional complaint relates to the question as to whether it is compatible with the Basic Law that it is not possible under the relevant provisions of family law for parental custody of children born out of wedlock to be transferred in part or solely to the father against the mother’s will, where the situation does not qualify for removal of parental custody under § 1666 of the Civil Code.

I.

When the Act Reforming the Law of Parent and Child (Gesetz zur Reform des Kindschaftsrechts – Kindschaftsrechtsreformgesetz – Parent and Child Law Reform Act – KindRG) of 16 December 1997 (Federal Law Gazette I p. 2942) entered into effect on 1 July 1998, § 1626a of the Civil Code for the first time gave the opportunity to parents who are not married to each other to have joint parental custody of their children, regardless of whether or not they live together, if they intend this and make declarations of parental custody, which may be done even before the child is born (§ 1626b.2 of the Civil Code). If these declarations of parental custody are not made, then in principle the mother has sole parental custody of a child born out of wedlock.

§ 1626a of the Civil Code reads as follows:

(1) Where the parents, at the date of the birth of the child, are not married to each other, they have joint parental custody if they

1. declare that they wish to take on parental custody jointly (declarations of parental custody), or

2. marry each other.

(2) Apart from this, the mother has parental custody.

The Parent and Child Law Reform Act also provided for a transfer of sole parental custody from the mother to the father of a child born out of wedlock where the parents permanently live apart. Such transfer may also only be effected with the consent of the mother.

§ 1672.1 of the Civil Code, which contains this provision, reads as follows:

(1) If the parents live apart for a period that is not merely temporary and if, under section 1626a.2, the mother has parental custody, the father, with the approval of the mother, may apply for the Family Court to transfer to him alone the parental custody or part of the parental custody. The application is to be granted if the transfer serves the child’s best interests.

The father of a child born out of wedlock may be granted the parental custody of the child against the mother’s will only if parental custody is withdrawn from the mother on grounds of endangerment of the child’s best interests (§ 1680.3, § 1680.2 sentence 2 in conjunction with § 1666 of the Civil Code), if her parental custody is permanently suspended (§ 1678.2 of the Civil Code) or if she dies (§ 1680.2 sentence 2, § 1681 of the Civil Code).

II.

1. As long ago as in the year 2003, the Federal Constitutional Court considered the constitutionality of the legislative concept of § 1626a of the Civil Code on the joint custody of parents not married to each other, and at that time the Court held that § 1626a of the Civil Code was only incompatible with Article 6.2 and Article 6.5 of the Basic Law insofar as there was no transitional arrangement for parents who had separated before the Act Reforming the Law of Parent and Child entered into force on 1 July 1998 (Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 107, 150 et seq.).

As grounds, the Court stated that it does not violate the parental right of the father of a child born out of wedlock under Article 6.2 of the Basic Law that, according to § 1626a.2 of the Civil Code, a child is first awarded legally to the mother alone, and the care for the person of the child is assigned to her in principle (see BverfGE 107, 150 (169)). Unlike in the case of the parents of children born in wedlock, who legally undertook, when they married, to take responsibility for each other and for their joint children, the legislature even today could not make a general assumption in the case of parents who were not married to each other that they were living in a domestic community and that they were willing and able to take joint responsibility for the child. The child’s best interests required that from its birth the child had a person who could act for the child with legally binding effect. In view of the diversity of living conditions into which children born out of wedlock were born, it was justified that parental custody of the child was normally attributed to its mother upon the child’s birth and not to the father or to both parents jointly (see BverfGE 107, 150 (169-170)).

The Court also stated that § 1626a.1 no. 1 of the Civil Code did not violate Article 6.2 of the Basic Law. At present there was no evidence to substantiate that the provision, which, on the basis of the child’s best interests, made the parents’ agreement the precondition of joint custody, did not take sufficient account of the parental right of the father of a child born out of wedlock (see BverfGE 107, 150 (172)).

In the child’s best interests, joint custody was dependent on both parents being willing to take responsibility for the child. Exercising this joint responsibility made it necessary for each parent to develop a personal relationship to the child and required a minimum of agreement between the parents. If this was lacking, and if the parents were neither willing nor able to cooperate, joint custody of the child might run counter to the child’s best interests (see BverfGE 107, 150 (173)).

In the case of married parents, the legislature had assumed, by reason of the legal connection they assumed in marrying, that there was agreement between them and willingness to share the care of their child as a requirement for a jointly exercised custody serving the child’s best interests. In the case of parents not married to each other, this indication was lacking and therefore no such assumption could be made. In order to create an equivalent for this which takes account of the statutory assumption of jointly exercised parental custody in the child’s best interests even when the parents are not married to each other, the legislature, in § 1626a.1 no. 1 of the Civil Code, had given them the possibility of expressing by means of concurring declarations that they are willing and prepared to share the care of their child (see BverfGE 107, 150 (174)).

The Court stated that the legislature had assumed that, where they are willing to cooperate, the parents will as a rule make use of the possibility of joint custody, i.e. that they will legalise their factual care by making declarations concerning custody. The legislature had been aware of the fact that there might nevertheless be cases in which the mother did not wish to make a declaration of parental custody even despite living with the father and the child. Its assessment that in such cases the mother’s refusal expressed a conflict between the parents which had a negative impact on the child in a dispute also occurring with regard to joint parental custody was justifiable. The legislature had been justified in assuming that a mother, particularly when she lived with the father and the child, would exceptionally reject the father’s wish for joint custody and that she would only do so if she had serious reasons for this based on the defence of the child’s best interests, and that she would not misuse the possibility of refusing to submit a declaration of custody as a power position against the father (see BverfGE 107, 150 (176-177)).

But § 1626a.1 no. 1 of the Civil Code would reveal itself to be incompatible with Article 6.2 of the Basic Law if this assumption of the legislature were to be incorrect and in particular were it to emerge that even where the parents live together with the child in a large number of cases joint declarations of parental custody were not made for reasons not based on the child’s best interests. Since the legislature had enacted provisions which safeguard the parental right of the father of a child born out of wedlock under Article 6.2 of the Basic Law only if the legislature’s prognostic assumption is correct, the legislature was obliged to observe the actual development and to review whether its assumption also stands the test of reality. If it became apparent that this was normally not the case, it would have to ensure that fathers of children born out of wedlock who live together with the mother and the child as a family were opened an access to joint custody which sufficiently took their parental rights under Article 6.2 of the Basic Law into account, with due consideration being given to the child’s best interests (see BverfGE 107, 150 (178 et seq.)).

2. The European Court of Human Rights (ECHR) also considered the provision of § 1626a of the Civil Code in the year 2009, in the case Zaunegger v. Germany (see ECHR, Zaunegger v. Germany , no. 22028/04, judgment of 3 December 2009). In the judgment, a chamber of the Fifth Section of the ECHR held that the general exclusion of judicial review of the initial attribution of sole custody to the mother was disproportionate with regard to the aim pursued, that is, the protection of the best interests of a child born out of wedlock. Consequently there was a violation of Article 14 in conjunction with Article 8 of the European Convention on Human Rights.

The Court stated that by permitting the parents of a child born out of wedlock to agree on joint parental custody, the legislature attempted to a certain extent to treat the parents who are not married to each other in the same way as married parents, who when they married undertook to take responsibility for each other and for their child. In view of the varying life conditions of children born out of wedlock, and in the absence of a joint declaration of parental custody, it was also justified to initially grant the mother parental custody, in order to protect the child’s best interests and to ensure that from the child’s birth there was one person who could act for the child with legally binding effect (see ECHR, Zaunegger v. Germany , ibid., nos. 53, 55).

The Court stated that there might also be sound reasons for refusing an unmarried father the right to share parental custody. This might be the case if disputes or a lack of communication between the parents endangered the child’s best interests. However, it was by no means proved that the relations between unmarried fathers and their children were generally characterised by such an attitude. If there were no sound reasons, then under § 1626a.1 no. 1 of the Civil Code the father of a child born out of wedlock was nevertheless from the outset deprived by law of the opportunity to apply for a judicial review as to whether the transfer of joint parental custody would serve the child’s best interests, and to initiate legal proceedings to obtain surrogate consent, where the refusal of the mother to consent to joint parental custody might be arbitrary. The argument of the legislature was unconvincing that if the parents lived together but the mother refused to make a joint declaration of parental custody this was an exception to the rule and the mother had serious reasons for this which were based on the child’s best interests (see ECHR, Zaunegger v. Germany , ibid., nos. 56 et seq.).

The Court stated that it was equally unconvinced by the argument that it could not be ruled out that a court order of joint parental custody would lead to conflicts between the parents and therefore had a negative impact on the child’s best interests. Admittedly, court proceedings making arrangements for parental custody always had the potential to result in unsettling the child, but German law always provided for a comprehensive judicial review of the parental custody arrangements if the father had formerly had parental custody, either because the parents were married at the date when the child was born, or because they had married later, or because they had agreed on joint parental custody. No adequate reasons were apparent why the father of a child born out of wedlock had inferior legal protection, and if he recognised his paternity and assumed the role of a father should be treated differently than a father who had originally had parental custody and had later separated or been divorced from the mother (see ECHR, Zaunegger v. Germany , ibid., nos. 61-62).

III.

1. In all twenty-seven Member States of the European Union, there is the possibility of joint parental custody of children born out of wedlock subject to the condition that the paternity of the unmarried father is established with legally binding effect. In the concrete formulation of the arrangements for parental custody, seven EU Member States, unlike Germany, give the mother sole parental responsibility by law, but grant a right of parental custody to the father both if the parents agree and also by court decision (Finland: §§ 9, 10 of the Finnish Child Custody and Right of Access Act; Ireland: section 6A (1) of the Guardianship of Infants Act 1964 as amended by section 6 of the Children Act 1997, section 9 of the Guardianship of Infants Act 1964; Luxembourg: Article 380 of the Luxembourg Civil Code; Netherlands: Article 1:253c of the Dutch Civil Code; Sweden: Chapter 6 section 5 of the Swedish Children and Parents Code; United Kingdom: s. 4 (1) I of the Children Act 1989; Cyprus: section 6 of the Illegitimate Children Law CAP 278). In eighteen EU Member States, unmarried parents are treated largely or completely equally to married parents and obtain joint parental custody by operation of law (Belgium: Article 373, Article 374 § 1 of the Belgian Civil Code; Bulgaria: Article 68 (1), Article 72 of the Bulgarian Family Code; Denmark: Chapter 2 § 7 of the Danish Act on Parental Responsibility; Estonia: §§ 49, 50 of the Estonian Family Act; France: Article 372 of the French Civil Code; Greece: Article 1515 of the Greek Civil Code; Italy: Article 317bis of the Italian Civil Code; Latvia: Articles 178, 181 of the Latvian Civil Code; Lithuania: Article 3.165 of the Lithuanian Civil Code; Malta: Article 90 (1), Article 86 of the Maltese Civil Code; Poland: Article 93 § 1 of the Polish Family and Guardianship Code; Portugal: Article 1911 in conjunction with Article 1901 of the Portuguese Civil Code; Romania: Article 97 of the Romanian Family Code; Slovakia: § 28 (2) of the Slovakian Family Act; Slovenia: Article 102, Article 105.1 of the Slovenian Act on Marriage and Family Relations; Spain: Article 156 of the Spanish Civil Code; Czech Republic: § 34 (1), § 52 (1) of the Czech Family Act; Hungary: § 72 (1) of the Hungarian Family Act).

2. On account of the instruction to review legislation formulated by the Federal Constitutional Court, pursuant to the Act for the Implementation of Family-Law Decisions of the Federal Constitutional Court (Gesetz zur Umsetzung familienrechtlicher Entscheidungen des Bundesverfassungsgerichts ) of 13 December 2003 (Federal Law Gazette I p. 2547), since 2004 statistics of validly made joint parental custody declarations have been recorded annually. If the number of joint parental custody declarations made in a given year is set in proportion to the children born alive out of wedlock in the year in question, then in the year 2004 this gives a figure of 44.3 per cent, in the year 2005 a figure of 45.2 per cent, in the year 2006 a figure of 46.6 per cent, in the year 2007 a figure of 49.1 per cent and in the year 2008 a figure of 50.7 per cent (see Federal Statistical Office (Statistisches Bundesamt ) 2009, Statistisches Jahrbuch 2009, Tab. 2.23; Federal Statistical Office 2008, Children and Youth Welfare Statistics (Statistiken der Kinder- und Jugendhilfe ) 2004, Tab. 3; Federal Statistical Office 2006, Population (Bevölkerung ) 2005; Federal Statistical Office 2008, Children and Youth Welfare Statistics 2005, Tab. 3; Federal Statistical Office 2007, Population 2006; Federal Statistical Office 2008, Children and Youth Welfare Statistics 2006, Tab. 3; Federal Statistical Office 2008, Population 2007; Federal Statistical Office 2008, Children and Youth Welfare Statistics 2007, Tab. 3; Federal Statistical Office 2009, Population 2008; Federal Statistical Office 2010, Children and Youth Welfare Statistics 2008, Tab. 3). However, in this connection it should be taken into account that this does not indicate precisely how many parents of children born out of wedlock actually made joint parental custody declarations at a particular survey date. On the one hand, no consideration is given to the fact that parental custody declarations may also be made for older children and that a declaration of joint parental custody may be made even before the birth of the child (§ 1626b.2 of the Civil Code). On the other hand, it is impossible to use the official figures for the birth of children born out of wedlock to make direct conclusions as to the number of children born out of wedlock at a particular survey date, since the status of the child may change, for example as a result of adoption or of the parents marrying.

3. In the year 2006, the Federal Ministry of Justice (Bundesministerium der Justiz ) carried out a survey on the joint parental custody of parents not married to each other, in which 440 youth welfare offices and 109 lawyers took part: this produced the result that in the opinion of the youth welfare offices and lawyers polled, approximately 25 per cent to 75 per cent of all parents of children born out of wedlock live together or at least have lived together for a fairly long time (at least for a year) without having established joint parental custody (see Bundestag printed paper 16/10047, pp. 9, 12). The persons polled were also asked what motives the mothers gave for rejecting joint parental custody. Here, a choice of eight possible motives was given, some of which were oriented towards the child’s best interests and some of which took no account of the child’s best interests; multiple answers were permitted. The participants most often named the motives “The mother would like to retain sole parental custody so that she can make decisions on her own” and “The mother wants nothing more to do with the father and so she rejects every contact with him, including contact in matters relating to the child”. These two motives were named by approximately 80 per cent of all youth welfare offices. Approximately 70 per cent of the youth welfare offices named the motives “There are often conflicts between the parents; peaceful communication is impossible” and “There has never been a relationship between the parents, the relationship was casual or has ended”; among lawyers, only approximately 50 per cent of them chose the two last motives (see Bundestag printed paper 16/10047, p. 12). Some of those polled pointed out in addition that parents are often ill-informed on the legal consequences of establishing or rejecting joint parental custody. Accordingly, they said, emotional reasons – such as uncertainty, the need to exercise control and a sense of personal injury – and the influence of third parties played a great role in their decisions. In addition to this, in an intact relationship the decisions relating to the child were in any case made jointly, and therefore many parents did not see the need to establish joint parental custody. This need often only arose when the parents had already separated (see Bundestag printed paper 16/10047, p. 14). After this survey was evaluated, the Federal Ministry of Justice commissioned a research project. The results of this survey to date show the same tendency.

IV.

1. The complainant is the father of a son born out of wedlock in 1998. The parents only lived together for a few weeks, and they separated when the mother was pregnant. Their son has lived in the mother’s household since he was born. After the complainant had questioned his paternity, it was established by an expert witness in proceedings before the Family Court. Following this, in December 1998 the complainant recognised his paternity before the youth welfare office. The mother consented to the acknowledgment of paternity. In January 2001, the complainant had a notarial declaration of parental custody prepared; in this he stated that he wished to have joint parental custody with the mother. The mother refused to make a corresponding declaration of parental custody. In November 2002, the parents agreed before the Family Court on a right of contact which makes it possible inter alia for the complainant to spend every second weekend, without overnight stays, with the son. Arrangements were also made for holidays, public holidays and birthdays. In the following years, both parents adhered to the agreement made. However, since the birth of the child the relationship between the parents has been marked by disputes and mutual distrust.

2. After the complainant learnt, at the beginning of 2008, that the mother intended to move elsewhere in Germany with the child in the 2008 summer holidays, he applied to the Family Court for the mother to be partially deprived of parental custody and for the right to determine the child’s place of abode to be transferred to himself; in addition, in the alternative, he applied for sole parental custody for his son to be transferred to himself or, in order for joint parental custody to be established, for the court to give surrogate consent to his declaration of parental custody in place of the mother.

After the parties were heard, the Family Court, by an order of 30 June 2008, rejected the complainant’s applications. It stated that under § 1626a.1 of the Civil Code, the complainant could not obtain sole parental custody or parts thereof against the will of the mother who had parental custody. Nor could there be a transfer of the right to determine the child’s place of abode or of the parental custody applied for in the alternative to the complainant under § 1672.1 of the Civil Code. § 1672.1 of the Civil Code mandatorily required the mother’s consent to the establishment of sole parental custody. There were no reasons for the mother to be deprived of parental custody under § 1666 of the Civil Code. Since the beginning of the proceedings, the son had expressly desired to live with the father, and to a partial extent rejected the mother; this alone could not justify an intervention under § 1666 of the Civil Code. The father appealed against this order; his appeal was dismissed by the Higher Regional Court (Oberlandesgericht ) by an order of 20 November 2008 as inadmissible, holding that the complainant had no right to lodge an appeal. The court stated that it was not possible to find that there had been a direct violation of the rights of the complainant, who had no parental custody, until parental custody was withdrawn from the mother under §§ 1666, 1666a, 1680 of the Civil Code, since only then would the question arise as to whether the parental custody should be transferred to the complainant. The father lodged a complaint alleging that his right to a hearing in court had been violated by the Local Court; the Family Court rejected this by an order of 8 January 2009, since it stated that the complainant had been given an extensive fair hearing.

3. This is challenged by the constitutional complaint filed by the complainant, in which he asserts that there has been a violation of Article 2.1, Article 3.1 and 3.2, Article 6.2, Article 20.3 of the Basic Law and of Article 6.2 of the Basic Law in conjunction with Article 1, Article 6, Article 8 and Article 14 of the European Convention on Human Rights. He regards the provisions on which the decisions are based as unconstitutional insofar as they provide that the establishment of joint or sole parental custody for the father of a child born out of wedlock is dependent on the consent of the mother or on parental custody having been withdrawn from the mother. He submits that, for the legislation to be constitutional, joint parental custody should automatically apply from the date when paternity is determined. At least, there should be a judicial review of the mother’s refusal to make a declaration of consent in the individual case, and an order of joint parental custody or a transfer of sole custody to the father should be possible even where the situation does not qualify for § 1666 of the Civil Code. In his case, because the requirements of § 1666 of the Civil Code are so stringent, no account was taken of the will of the child; there was no review as to whether the complainant was suited to exercise parental custody and the transfer of parental custody or of parts of parental custody to him was in the child’s best interests. If the child had been born in wedlock, sole parental custody could have been transferred to the complainant under § 1696 of the Civil Code where the mother had sole parental custody, and under § 1671.2 of the Civil Code where joint parental custody applied. He submitted that the Higher Regional Court was in error when it denied his entitlement to lodging an appeal.

V.

Opinions were submitted on invitation by the Federal Ministry of Justice in the name of the Federal Government and by the German Family Court Association (Deutscher Familiengerichtstag e.V. ).

1. In its opinion, the Federal Ministry of Justice proceeds on the assumption that in the present state of investigations the main impetus for the mother not to agree to joint parental custody with the father in a large number of cases probably does not primarily lie in serious considerations of the child’s best interests. In view of this and in the light of the latest decision of the European Court of Human Rights, preliminary deliberations were made for a draft statute to amend the legal position with regard to parental custody. The Ministry stated that provisions on the entitlement to lodge an appeal in parental custody matters were amenable to an interpretation that was in conformity with the Basic Law.

2. The German Family Court Association is of the opinion that § 1672.1 of the Civil Code and therefore also § 1626a of the Civil Code and § 1680.3, 1680.2 sentence 2 in conjunction with § 1666 of the Civil Code violate Article 6.2 sentence 1, 6.5 and Article 3 of the Basic Law insofar as the provisions do not provide for a judicial review in the individual case where the mother refuses consent. Giving the father the possibility of obtaining parental custody only by way of § 1666 of the Civil Code is not appropriate to achieving a reasonable balance between the fundamental rights of the parents of a child born out of wedlock, and in particular a balance that does justice to the child’s best interests. § 1666 of the Civil Code offers no standard for a decision on custody in situations where there is a conflict between the parents, but is tailored to the state’s encroachment upon parental rights, legitimated by the child’s best interests. A lowering of the threshold of interference defined in § 1666.1 of the Civil Code would blur the differentiation between the parents’ responsibility and the state’s watchdog function.

B.

The constitutional complaint is admissible and is well-founded.

§ 1626a.1 no. 1 of the Civil Code and § 1672.1 of the Civil Code are incompatible with Article 6.2 of the Basic Law.

It is constitutionally unobjectionable that the legislature initially transfers parental custody of a child born out of wedlock to its mother alone (see BVerfGE 107, 150 (169)). It is also compatible with the constitution that the father of a child born out of wedlock is not granted joint parental custody together with the mother at the same time as his paternity is effectively recognised. Such a provision would indeed be possible, but it is not constitutionally required.

However, the legislature disproportionately encroaches upon the parental right of the father of a child born out of wedlock when it generally excludes the father from parental custody of his child if the child’s mother refuses her consent to joint parental custody with the father or to the father’s sole parental custody of the child, without the father being given the possibility of a judicial review as to whether, for reasons of the child’s best interests, the father should share in parental custody or the sole custody of the child should be transferred to him, on weighing his parental right against that of the mother or otherwise. There has been no confirmation of the legislature’s assumption on which current law is based, that mothers’ refusal of consent is as a rule based on a conflict between the parents which has a negative impact on the child and has reasons which do not serve the mother’s own interests but safeguard the child’s best interests.

I.

The parental right granted by Article 6.2 of the Basic Law to mothers and fathers must be further refined by the legislature. Thus, for example, regulations and procedures in a legal form are necessary which clarify, even for children born out of wedlock, who is to be legally recognised as the father of the child and therefore holds the parental right under Article 6.2 of the Basic Law (see BVerfGE 92, 158 (177-178); 108, 82 (101)). Since both parents hold the parental rights, provisions must also be created giving each of them rights and duties towards the child to provide for the case where they cannot agree on the exercise of their parental responsibility. In this connection, the state, because of its watchdog function established for it by Article 6.2 sentence 2 of the Basic Law, has to ensure that the exercise of parental rights is guided by the child’s best interests and that the child’s rights are respected when parental responsibility is exercised (see BverfGE 121, 69 (94)). If this does not occur, for lack of a necessary minimum of agreement between the parents, the legislature may allocate the principal responsibility for the child to one parent (see BverfGE 92, 158 (178-179); 107, 150 (169)).

1.The parental right under Article 6.2 of the Basic Law of the father of a child born out of wedlock is not violated if parental custody of a child is first awarded legally to its mother alone under § 1626a.2 of the Civil Code and the care for the person of the child is transferred to her. As the Federal Constitutional Court stated in its decision of 29 January 2003, children born out of wedlock are born into a variety of family configurations (see BverfGE 107, 150 (170)). The spectrum ranges from cases in which the identity of the father cannot be established or is not certain, to those in which the father pays maintenance but does not wish to have any part in the custody of the child and sometimes even refuses contact with the child (see BverfGE 121, 69 et seq.), to those in which the father wishes to have parental custody of the child, either together with the mother or alone. At the time of the birth of a child born out of wedlock it can therefore not generally be assumed that the child has a father to whom it can legally be assigned and who is willing to take responsibility for the child.

There have been no fundamental changes to this situation since this decision. It is true that the proportion of children who are born out of wedlock has now risen to 32.1 per cent of the total births in Germany (see Federal Statistical Office 2009, Population 2008). And in addition, the proportion of minor children who grow up in unmarried parental conjugal communities rose from 5.4 per cent in the year 2001 to at least 7.1 per cent in the year 2008. However, at the same time at least 16.1 per cent of the children grow up with only one parent: this also includes children whose parents have divorced (see Federal Statistical Office 2009, Statistisches Jahrbuch 2009, Tab. 2.17). If, on the other hand, the annual figure for joint declarations of parental custody made by parents of children born out of wedlock is set in proportion to the children born out of wedlock in the year in question, then this supports the assessment that there is now joint parental custody of approximately half of all children born out of wedlock (see Federal Statistical Office 2009, Population 2008; Federal Statistical Office 2010, Children and Youth Welfare Statistics 2008, Tab. 3). However, it cannot be established when the declarations of parental custody which are conditional on the acknowledgment of paternity are made. Consequently, a study has not yet been disproved which concluded, on the basis of the cases investigated, that although 80 per cent of the fathers voluntary acknowledged their paternity, in two-thirds of the cases they only did this after the child was born (see Vascovics and others, Lebenslage nichtehelicher Kinder , 1997, pp. 160-161). On the basis of the statistics, it is true that there is a development towards establishing families in which parents who are not married to each other have joint parental custody of their children. But even today, at the time of the birth of a child born out of wedlock it is in many cases not legally clarified who their father is and whether he may also wish to have parental custody of the child.

However, the child’s best interests require that from its birth the child has a person who can act for the child with legally binding effect. The legislature therefore pursues a legitimate goal when it normally attributes parental custody of a child born out of wedlock to its mother upon the child’s birth and not to the father or to both parents jointly (see also ECHR, Zaunegger v. Germany , ibid., nos. 53, 55). For the mother is the only sure relation whom the child encounters at its birth and who is confirmed as a parent by reason of § 1591 of the Civil Code. In order to ensure that factual and legal responsibility for the child may be borne from the first day of its life, it is justified in the first instance not to allow the father to share the parental custody of the child (see BverfGE 107, 150 (170-171))

2. Nor does the parental right under Article 6.2 of the Basic Law require that the fathers of children born out of wedlock should generally be granted the parental custody of their child together with the mother by operation of law when they effectively acknowledge their paternity under §§ 1594 et seq. of the Civil Code.

Admittedly, a statutory provision for such a legal consequence of the acknowledgment of paternity would be compatible with the constitution provided it were combined with the possibility of obtaining a judicial review as to whether joint parental custody in accordance with statute actually serves the child’s best interests in the individual case. But the legislature has sound reasons for not choosing this solution.

a) The acknowledgment of paternity contains the declaration that one is the father of a child born out of wedlock and wishes to take the legal position of father for the child. If the mother of the child consents to this, it is presumed by statute that this corresponds to the facts, and the declarant takes the legal position of father. However, it cannot be generally concluded from this willingness of the father of a child born out of wedlock to be legally assigned to the child as father that the father is also prepared to assume responsibility for the child together with the mother. Similarly, the agreement of the parents on the acknowledgment of paternity does not automatically mean that the parents are willing and in a position to exercise custody of the child jointly, taking sufficient account of the child’s best interests. On the one hand, the configurations of relationships between parents into which children born out of wedlock are born are too various to support such a broad assumption. For it may happen that both parents, despite the legal acknowledgment of paternity, reject each other, and this may not be conducive to beneficial joint parental custody in the interests of the child. Nor can the possibility be excluded that although a father acknowledges his paternity, he refuses to take up or continue contact with his child (see BverfGE 121, 69 et seq.). On the other hand, the fact that after a legal acknowledgment of paternity, in only approximately half of the cases of children born out of wedlock do the parents voluntarily establish joint parental custody under § 1626a.1 no. 1 of the Civil Code speaks against the assumption that when the parents agree on paternity, it can always be inferred that the parents agree on joint parental custody. At all events, it cannot be assumed from this that the father as a general rule wishes to have custody of his child. There is no indication that the failure to establish joint parental custody in approximately half of the cases of children born out of wedlock above all or even solely results from the mother’s lack of willingness to agree.

b) However, this does not prevent the legislature, in view of the fact that, after all, joint parental custody is established for half of the children born out of wedlock, from involving the father of a child born out of wedlock, at the time when he legally acknowledges paternity, by operation of law in taking responsibility for the child and from transferring to him joint paternal custody with the mother, particularly since a large number of parents only fail to make a joint declaration of parental custody for lack of adequate information or because they believe that their de facto joint parental custody of the child does not need to be safeguarded by law (see Bundestag printed paper 16/10047, p. 14). This would not merely take account of the father’s parental right, but the father of a child born out of wedlock would also be more involved in the duty to care for and bring up his child, which is linked to the parental right under Article 6.2 of the Basic Law (see BverfGE 108, 82 (102); 121, 69 (92)). However, in the case of such a general assignment of rights of joint parental custody to the mother and to the father of a child born out of wedlock it must be taken into account that it may not at all be assumed that there is always a stable relationship between the parents of a child born out of wedlock which guarantees that the exercise of joint parental custody will proceed sufficiently free of conflicts and will not harm the child’s best interests. In order to safeguard the child’s best interests, therefore, the legislature ought constitutionally, exercising its watchdog function, to grant each parent the possibility of having a judicial review as to whether joint parental custody in the individual case is genuinely in accordance with the child’s best interests or whether sole parental custody of the child, for reasons of the child’s best interests, should either again be transferred to the mother or now be transferred to the father. For the case of joint parental custody of parents living apart which was established by marriage or by corresponding declarations of parental custody, the legislature has already provided for this in § 1671 of the Civil Code.

c) On the other hand, however, the legislature is also not prevented from taking into account, when parental custody is assigned for a child born out of wedlock, that it cannot be assumed that the fathers of children born out of wedlock are always willing to share responsibility for their child with the mother. For where bearing parental responsibility is coupled to the acknowledgment of paternity, a lack of willingness on the part of the father to share joint parental custody might entail the danger that fathers are then less prepared to acknowledge paternity voluntarily. This might increase the number of proceedings that become necessary for judicial determination of paternity under § 1600d of the Civil Code and adversely affect the relationship between the parents in a manner that is not conducive to the child’s best interests. In addition, the legislature is entitled to include in its considerations the fact that a general statutory arrangement for joint parental custody may also include cases in which as a result of very serious conflicts between the parents the child’s best interests would be detrimentally affected for at least until the joint parental custody of the parents were terminated and replaced by the sole custody of one parent (see Bundestag printed paper 13/8511, p. 66). In order to prevent this, when the child’s best interests are weighed against the parental rights of both parents, it is also constitutionally justified and unobjectionable that the legislature refrained from transferring joint parental custody with the mother to the father of a child born out of wedlock upon his effective acknowledgment of paternity by operation of law, as a result of which, even when the acknowledgment of paternity has been made, at first the mother’s sole parental custody of the child remains in place.

II.

However, the parental right of the father of a child born out of wedlock under Article 6.2 of the Basic Law is violated by the fact that when the mother refuses to consent to him sharing in the parental responsibility for his child, he is generally prevented from involvement, because § 1626a.1 no. 1 of the Civil Code and § 1672.1 of the Civil Code give him no possibility of obtaining judicial review against the will of the mother as to whether, by reason of the best interests of his child, it is appropriate to grant him parental custody of his child together with the mother, or to transfer sole parental custody of the child to him in place of the mother.

1. It is not simply a necessary legislative formulation of the parental right, but is an encroachment upon the parental right of the father of a child born out of wedlock, protected by Article 6.2 of the Basic Law, that in § 1626a.1 no. 1 and § 1672.1 of the Civil Code the legislature makes the possibility of establishing the father’s parental custody dependent on the will of the mother, and refuses parental custody to the father if the mother refuses consent in failing to provide for any judicial review of the individual case in this situation. Parental custody is an essential element of the right of the parents to the care and upbringing of their own child, protected by Article 6.2 of the Basic Law (see BVerfGE 56, 363 (382)). If it is generally withheld from one parent, this is an encroachment.

2. With regard to encroachment upon the parental right by the general exclusion of the father from parental custody where the mother does not consent, another reason why this cannot be denied is that subject to certain conditions, § 1680.3 sentence 2 in conjunction with § 1666 of the Civil Code permits, where there is danger to the child’s best interests, the parental custody of the child to be withdrawn from the mother and transferred to the father, if this is in the child’s best interests. This does not give the father of a child born out of wedlock general access to parental custody. § 1666 of the Civil Code is not a provision that fundamentally assigns rights to the parents in relation to each other or that is aimed at balancing the parental rights. Instead, this provision sets limits to encroachments of the state upon the right of the parents and defines the conditions subject to which the state must comply with its watchdog function under Article 6.2 sentence 2 of the Basic Law (see BVerfGE 107, 150 (182-183)). It is therefore also not permitted to interpret § 1666 of the Civil Code in such a way that the father of a child born out of wedlock has easier access to parental custody. For this would at the same time lower the threshold of the state’s right to encroach upon the parental right, and this might result in a disproportionate and therefore unjustified restriction of the personal responsibility of parents for their children, which is protected by Article 6.2 of the Basic Law. § 1680.3 sentence 2 in conjunction with § 1666 of the Civil Code is therefore neither intended by statute nor appropriate as a general provision on access for fathers to parental custody rights.

3. In requiring the consent of the mother as a condition for the access of the father of a child born out of wedlock to parental custody, the legislature pursues a legitimate goal. It intends to avoid danger to the child’s best interests, which might arise if joint parental custody were established by reason of the parents’ failure to agree on the custody of their child, or which might be established if the mother-child relationship were adversely affected where sole parental custody is transferred to the father against the will of the mother (see Bundestag printed paper 13/4899, pp. 58, 60).

a) Exercising joint responsibility for a child requires a minimum agreement between the parents. If this is lacking, and if the parents are neither willing nor able to cooperate, joint parental custody of the child may run counter to the child’s best interests. If the parents engage in their argument to the detriment of the child, the child’s ability to relate to others may be impaired and its development endangered (see BVerfGE 107, 150 (173)).

If the parents are in agreement on the parental custody of the child, and if this is expressed in a joint consistent declaration, it may be assumed that both parents also have the intention to cooperate in the care and upbringing of their child. But if there is no such agreement, this may indicate a conflict between the parents which may have a major impact on the child (see BVerfGE 107, 150 (174 et seq.)). For lack of agreement to establish joint parental custody suggests that there may also be arguments on exercising it, and these arguments may possibly take place to the detriment of the children. In the opinion of the legislature, it may be assumed that joint parental custody enforced against the will of one parent as a rule entails more disadvantages than benefits for the child (see Bundestag printed paper 13/4899, pp. 58 et seq.; Bundestag printed paper 13/8511, p. 66). In order to avoid such disadvantages and to take account of the child’s best interests, the legislature has provided that joint parental custody may be established under § 1626a.1 no. 1 of the Civil Code only where the parents both agree to it, and has excluded it where the parents fail to agree.

b) The fact that the transfer of sole parental custody to the father is made subject to the mother’s consent is also intended to serve the child’s best interests. In thus providing, the legislature intends to avoid the mother’s sense of insecurity because the parental custody of the child could be withdrawn from her against her will and transferred to the father, putting a strain on the existing close relationship between mother and child and thus having an adverse effect on the child. In addition, it intends to avoid the mother’s fear that the father might turn out to be the “better” parent having an effect on her willingness to pursue the determination of paternity and also affecting the father’s contact with the child to the detriment of the child (see Bundestag printed paper 13/4899, pp. 59-60).

4. The provisions of § 1626a.1 no. 1 and § 1672.1 of the Civil Code which subject the access to parental custody of the father of a child born out of wedlock to the consent of the mother are fundamentally also appropriate to safeguard the child’s best interests and to prevent endangerment of the child’s best interests. Admittedly, they cannot prevent conflicts between the parents on the parental custody of their child. However, because these conflicts cannot be taken to court, they have no decisive influence on the exercise of parental custody, which may therefore take place without conflicts and may give the child orientation. In addition, the child is also not additionally burdened by a court dispute (see BVerfGE 107, 150 (177)).

5. However, there are doubts as to whether, in order to prevent endangerment of the child’s best interests by joint parental custody of the parents or by a transfer of sole custody to the father against the will of the mother, it is necessary for the father of a child born out of wedlock to be generally excluded from parental custody, without the possibility of judicial review, if the mother refuses consent. At all events, the encroachment contained in this upon the father’s parental right under Article 6.2 of the Basic Law is disproportionate in the narrow sense and violates the parental right of the father of a child born out of wedlock because the father is unable to subject the exclusion of parental custody to a judicial review of the individual case by the standard of the child’s best interests.

a) § 1626a.1 no. 1 of the Civil Code only gives the father of a child born out of wedlock the opportunity to share the joint parental custody of the child with the mother if the mother consents to this. If the mother refuses this consent, the father is permanently excluded from the joint parental custody of his child. Under §§ 1601 et seq. of the Civil Code, he is in fact called upon to pay child maintenance, and under § 1615l of the Civil Code he must pay maintenance to the mother for the care of the child insofar as he is able to pay, but he may not share in the decisions on the fate of his child and on its upbringing. He retains only the right to contact with the child (§ 1684 of the Civil Code), if and insofar as contact is in the child’s best interests. This refusal to allow the father to influence the care and upbringing of the child, without the possibility of judicial review, is a far-reaching encroachment upon the father’s parental right.

In contrast, the mother is not only unconditionally granted by statute sole parental custody, which can be withdrawn only if there is danger to the child’s best interests. She is also given the competence to decide whether the father is to have access to the parental custody of his child. In this arrangement it is irrelevant whether the exercise of parental custody which the mother desires or rejects is conducive to the child’s best interests. In this dependence of the father’s sharing in joint parental custody on the will of the mother, the legislature disproportionately provides that generally the father’s parental right takes second place to that of the mother, without this being required to safeguard the child’s best interests. Admittedly, court proceedings may temporarily constitute an additional burden for the child (see ECHR, Zaunegger v. Germany , ibid.., no. 61). But fundamentally clarifying the question of parental custody is specifically in the child’s best interests. Only the child’s best interests may justify excluding a parent from the parental custody of the child (see BVerfGE 121, 69 (94)).

(1) One has to agree with the statement of the European Court of Human Rights that the legislature itself did not consistently base its overall concept for the parental custody of children born out of wedlock on its premise justifying the provision of § 1626a.1 no. 1 of the Civil Code, that lack of agreement between the parents on parental custody reveals a conflict between the parents which always leads to an exercise of joint parental custody that is detrimental to the child’s best interests (see ECHR, Zaunegger v. Germany , ibid., nos. 61-62). For if parents who are not married to each other who once established joint parental custody live apart, and if one parent wishes to be given sole parental custody of the child against the will of the other, then under § 1671 of the Civil Code that parent is given the right to make an application for transfer of sole parental custody to this effect. Here, the legislature does not conclude from this application itself and from the lack of consent of the other parent that the parents are unwilling and unable to cooperate and this will have detrimental effects on the child. On the contrary, the court must then consider whether it is to be expected that the transfer of sole parental custody to the applicant is actually most favourable to the child’s best interests. In this case, therefore, it is the child’s best interests that decide the assignment of parental custody, not the lack of agreement of the parents, which is only taken into account in the consideration of the individual case if it needs to be clarified whether it arises from the parents’ inability to cooperate which gives rise to fear that there may be negative effects on the child (so also argued, for example, by the Cologne Higher Regional Court, Zeitschrift für das gesamte Familienrecht – FamRZ 2009, p. 62 (62-63); Hamm Higher Regional Court, FamRZ 2006, p. 1058 (1059)).

In this respect no reason is apparent why the legislature, in connection with the establishment of joint parental custody, was not also primarily guided by the consideration whether this, despite differences of opinion on it between the parents, was in the individual case in the child’s best interests, but instead in this case found the mother’s contrary intention sufficient to support the general assumption that the child’s best interests would be adversely affected, and on this basis excluded a judicial review of the individual case by the standard of the child’s best interests affected. When joint parental custody is terminated, there has at least in the past been a certain degree of willingness to cooperate on the part of the parents, which is not the case when joint parental custody is first established; but this is not a sound reason to treat these cases differently in law. For in both cases there is a disagreement between the parents on the exercise of parental custody for their child, which can in each case be an indication that a newly established or continuing joint parental custody is likely to be detrimental to the child’s best interests in future by reason of the conflicts between the parents. But whether this assumption can really be relied on can also only be clarified by judicial review in the individual case.

(2) Above all, however, recent empirical findings do not confirm the legislature’s assumption that mothers’ refusal of consent is as a rule based on a conflict between the parents which has detrimental effects for the child and has reasons which do not serve the mother’s own interests but safeguard the child’s best interests.

In its decision of 29 January 2003, the Federal Constitutional Court conceded that when the legislature provided for the joint parental custody of parents not married to each other, it was justified in assuming that in future parents, where they were willing to cooperate, would as a rule make use of the possibility of joint parental custody and that mothers would only reject the father’s wish for joint custody if they had serious reasons for this based on the defence of the child’s best interests, that is, mothers would not misuse the possibility of refusing to submit a declaration of parental custody as a power position against the father (see BVerfGE 107, 150 (177)). But the Federal Constitutional Court pointed out that § 1626a.1 no. 1 of the Civil Code would reveal itself to be incompatible with the parental right of the father under Article 6.2 of the Basic Law if this assumption of the legislature were not confirmed, and in particular were it to emerge instead that in a large number of cases where, for reasons not based on the child’s best interests, the parents of children born out of wedlock did not establish joint custody (see BVerfGE 107, 150 (178-179)). For this reason it obliged the legislature to observe the actual development and to review whether its assumptions also stood the test of reality. For if this were not the case, the legislature would have to open the fathers of children born out of wedlock an access to joint parental custody that took sufficient account of their parental rights under Article 6.2 of the Basic Law, with due consideration given to the child’s best interests (see BVerfGE 107, 150 (180-181)).

There are now sufficient data available showing that the legislature’s assumptions at that time have not been confirmed as correct. This relates on the one hand to the number of cases in which parents of children born out of wedlock have established joint parental custody. The statistics gathered show that only slightly over half of the parents agreed to make declarations of parental custody to this effect (see Federal Statistical Office 2009, Statistisches Jahrbuch 2009, Tab. 2.23). Nor are a relevant number of cases of joint parental custody established even when the parents live together (see Bundestag printed paper 16/10047, pp. 11-12). On the other hand, there has been no confirmation – as the Federal Government also states in its opinion – of the legislature’s assumption that mothers’ refusal to consent to joint parental custody is as a rule based on reasons guided by the child’s best interests. The surveys on this carried out by institutions and experts which are permanently concerned with the parental custody of parents of children born out of wedlock and therefore have experience of the motivation of mothers who do not consent to joint parental custody, but also the results of surveys of mothers available to date show that in addition to considerations of the child’s best interests personal wishes of the mothers often also lead to the mothers’ rejection of joint parental custody with the father of the child. Thus, for example, it has often been given as a reason that the mother wishes to retain sole custody in order to be able to decide alone on the child’s affairs, that is, she does not wish to have to reach an agreement with the father or she wants nothing to do with the father (see Bundestag printed paper 16/10047, pp. 12 et seq.).

But if the legislature’s assumption is therefore not confirmed, and instead it must be assumed that a considerable number of mothers refuse their consent to joint parental custody merely because they do not wish to share their traditional parental custody with the father of their child, then the access to parental custody of fathers of children born out of wedlock depends in a significant number of cases on the dominant will of the mother and is excluded if she is not prepared to consent to it, without it being established by this whether joint parental custody of the parents is beneficial or detrimental to the child’s best interests. The fact that when the mother refuses to consent to joint parental custody fathers are not by law given the possibility of having a judicial review as to whether joint parental custody in their individual situation might not actually be advisable for reasons of the child’s best interests therefore has an adverse effect on the father’s parental right as against that of the mother in a manner that is disproportionate and therefore unjustified.

b) Under § 1672.1 of the Civil Code, the transfer of sole parental custody for a child born out of wedlock which is held by the mother under § 1626a.2 of the Civil Code to the father of a child born out of wedlock is also dependent on the mother’s consent. If this consent is not given, the father has no possibility of obtaining a judicial review as to whether his own parental custody might be more conducive to the child’s best interests than the parental custody of the mother. This general exclusion of access to parental custody where the mother does not consent is also a serious encroachment, which is disproportionate and unjustified, upon the father’s parental right under Article 6.2 of the Basic Law.

(1) Where the parents are unable to cooperate in the parental custody of their child, which may be expressed in the mother’s refusal to consent, this cannot justify the exclusion of the father from sole parental custody. For in the opinion of the legislature too, the very unwillingness and inability of the parents to cooperate is an important reason not to establish or continue joint parental custody but to transfer the parental custody of the child to one parent alone, in order that the child does not suffer detriment as a result of the lack of agreement and disputes between the parents. This assessment is at all events the basis of § 1671 of the Civil Code, which makes it possible to replace the joint parental custody of parents living apart by the sole custody of one parent by reason of the child’s best interests.

(2) Insofar as the legislature intends by this provision to avoid placing strain on the existing mother-child relationship as a result of the mother’s constant fear that if the father makes an application, the parental custody of her child could be withdrawn from her and transferred to the father (see Bundestag printed paper 13/4899, p. 60), this is also not a sufficient reason to generally exclude the father from parental custody where the mother refuses consent and to grant him no possibility of judicial review as to whether, by reason of the child’s best interests, it is appropriate to transfer to him the sole parental custody of the child.

However, it must be taken into account that enabling a court transfer of sole parental custody to the father on the one hand takes account of the father’s parental right, but on the other hand is a serious encroachment on the mother’s parental right if the father’s application is granted. For, unlike in the case where the father is admitted to joint parental custody with the mother, the mother does not merely have to share the parental custody of the child with the father, which Article 6.2 of the Basic Law protects as the standard case when it assigns the care and upbringing of the children not to one parent, but to both parents as a natural right. Instead, the parental custody previously exercised by the mother is completely withdrawn from her, and not because she has failed in her duty of upbringing and therefore the child’s best interests are endangered, as § 1666 of the Civil Code presumes, but because the father, in competition with her, claims his right to have parental custody of the child in her place. It is also important in this connection that the legislature in the first instance assigns to the mothers of children born out of wedlock the parental custody of these children from their birth. The mothers thus not only obtain the right of parental custody, but are also obliged by statute to take responsibility for their child. Unlike the fathers of children born out of wedlock, they do not have the choice of deciding for or against taking parental responsibility for their child. Depriving them of the parental responsibility imposed on them despite the fact that their exercise of it was unobjectionable therefore weighs heavy and constitutes a serious encroachment on their parental rights.

(3) In addition, a change of parental custody from the mother to the father, unlike the establishment of joint parental custody, as a general rule also entails a removal of the child from the mother’s household to the father’s household. This not only affects the existing mother-child relationship, but also impinges on the child’s need for stability and continuity with regard to its personal ties that have grown up over the years and its social environment.

(4) Taking account of this, and weighing the constitutionally protected interests of both parents and of the child, it is admittedly disproportionate and therefore incompatible with Article 6.2 of the Basic Law that the legislature has excluded the father of a child born out of wedlock from parental custody of his child for the mere lack of the mother’s consent and has also, because there is no possibility of a judicial review of the individual case, refused him access to sole custody. But if the possibility of a judicial review of the individual case is granted, sufficient account must also be taken of the parental right of the mother of the child born out of wedlock. Withdrawing parental custody from her is justified only if there is no other possibility to safeguard the father’s parental right which encroaches less seriously upon the mother’s parental right, and if there are important reasons of the child’s best interests which suggest withdrawing parental custody from the mother. Joint parental custody by the parents would be less of an encroachment upon the mother’s parental right than the withdrawal of parental custody from her. For this reason, in proceedings for the transfer of sole custody to the father of a child born out of wedlock it must also first be examined whether joint parental custody by the parents might be appropriate where it is not detrimental to the child’s best interests. Where this is the case, in order to safeguard the mother’s parental right, there may be no transfer of sole custody to the father. Otherwise, important concerns of the child and its best interests may justify the transfer of sole custody to the father.

6. Since the provisions challenged even violate Article 6.2 of the Basic Law and have proved to be unconstitutional, there is no need to further investigate whether they also violate Article 3.1 or 3.2 of the Basic Law and Article 6.5 of the Basic Law. Admittedly, when the legislature reforms the law of the parental custody of children born out of wedlock, it must ensure that these fundamental rights are guaranteed too. This also applies in particular to the question as to whether in the case where the fathers of children born out of wedlock are granted a right, when the mother refuses to consent, to apply for the establishment of joint parental custody or transfer of sole custody of their child to themselves, mothers must also be granted such a right if the father of their child is not prepared to share parental custody or to take on sole custody.

III.

The decision of the Local Court of 30 June 2008 challenged by the constitutional complaint violates the complainant’s fundamental right under Article 6.2 of the Basic Law, since it is based on § 1626a.1 no. 1, § 1672.1 of the Civil Code, which violate this fundamental right. The decision is therefore reversed. The decision of the Higher Regional Court of 20 November 2008, pronounced only for procedural reasons, and the order of the Local Court of 8 January 2009 relating to the complaint of the complainant alleging that his right to a hearing in court had been violated thus no longer apply. The matter is referred back to the Local Court for a new decision.

C.

I.

If a provision is not compatible with the Basic Law, then it must in principle be declared null and void (§ 95.3 sentences 1 and 2 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG)). However, this does not apply if the nullity would create a situation which was even further removed from the constitutional order than the previous one (see BverfGE 119, 331 (382-383)). Consequently, § 1626a.1 no. 1, § 1672.1 of the Civil Code may not be declared null and void here because this would have the consequence that establishing joint parental custody or transferring sole parental custody to the father would no longer be possible even if the parents of a child born out of wedlock unanimously desired it. In addition, it is an obstacle to a declaration of nullity that the legislature has a variety of possibilities of removing the unconstitutional situation (see BverfGE 109, 256 (273)).

II.

Nor is it possible to treat the provisions as inapplicable (see BVerfGE 84, 9 (21)) because they are incompatible with Article 6.2 of the Basic Law, since this too would only further aggravate the unconstitutional state.

However, it is also not appropriate merely to declare the unconstitutional provisions as continuing in application until the law is reformed by the legislature. This would lead to a perpetuation of the violation of the fundamental rights of the fathers of children born out of wedlock which it might be impossible to reverse when a constitutional provision entered into force, because in parent-and-child law matters the time factor plays an essential role (see Heilmann, Kindliches Zeitempfinden und Verfahrensrecht , 1998, p. 26). With the increasing passing of time, the personal ties of a child may change, and as a result it is possible that there would be de facto changes of course which may have effects on later decisions under new law.

But above all, the non-constitutional courts would be obliged to continue to apply provisions which are not only incompatible with the Basic Law, but in the case of § 1626a.1 no. 1 of the Civil Code even a provision which the European Court of Human Rights has declared to be incompatible with the European Convention on Human Rights because it violates Article 14 in conjunction with Article 8 of the European Convention on Human Rights (see ECHR, Zaunegger v. Germany , ibid., no. 64). Since the non-constitutional courts are required in the application of the law to take sufficient account of the guarantees of the European Convention on Human Rights and the case-law of the European Court of Human Rights (see BVerfGE 111, 307 (323-324)), and a suspension of relevant parental custody cases might be contrary to the procedural requirement of expediting parent-and-child cases, it is necessary, in order to provisionally ensure a situation complying with the constitution and the Convention, to make a transitional arrangement. Here, a solution should be chosen which does not anticipate the statutory provision and does not put obstacles in its way (see BVerfGE 84, 9 (23)).

III.

It therefore appears appropriate to proceed from the present legislative concept of the legislature, which makes the establishment of joint parental custody of parents of children born out of wedlock dependent on making joint declarations of parental custody. Consequently, supplementing this provision of § 1626a.1 no. 1 of the Civil Code, it is provisionally ordered, until revised legislation enters into effect, that the Family Court, on the application of one parent, shall transfer parental custody or part of parental custody to the parents jointly, provided it is to be expected that this is in the child’s best interests. The selected standard of review of the child’s best interests is intended to ensure that the concerns of the child are taken decisively into account, but the requirements for access to joint parental custody are not made too stringent.

With regard to the transfer of sole custody to the father, an appropriate arrangement for the transitional period until the reform of the law would follow the provision of § 1671 of the Civil Code. Since this provision also requires that the transfer of sole parental custody is to be made only if the requirements for joint parental custody of the parents are no longer satisfied, and at the same time, as set out under B.II.5.b) (4), the establishment of joint parental custody where the mother previously had sole parental custody is less detrimental to her parental right than a complete change of parental custody from herself to the father, then in supplementation of § 1672.1 of the Civil Code, until a reform of the law enters into effect it is provisionally ordered that the Family Court, on the application of a parent, shall transfer to the father the parental custody or part of the parental custody where joint parental custody is out of the question and it is to be expected that this best serves the child’s best interests.

With regard to the provisional arrangement made, the Senate does not fix a period of time for the legislature to pass the necessary reform of the law, particularly since the Federal Government stated in the proceedings that there have already been preliminary deliberations for a reform of the law.

IV.

The decision on the reimbursement of expenses is based on § 34a.2 of the Federal Constitutional Court Act.