Summary:

I.

The applicant’s daughter was born in 1992 and suffers from paranoid-hallucinatory schizophrenia. In 2014, guardianship was established for her. Her mother (the applicant) was appointed as guardian for health care matters. This included the power to determine the daughter’s place of residence. In 2018 and 2019, the daughter was on several occasions briefly placed in the closed ward of the local psychiatric hospital at the applicant’s request. An expert opinion obtained by the Local Court came to the conclusion that further placement was urgently required for curative treatment and for averting an acute risk of self-harm. The expert recommended confinement for at least six months, whereby the daughter should not be confronted with a change of location or guardian. By contrast, the competent authority in guardianship matters suggested the appointment of an unbiased professional guardian from outside the family. In two written statements, the attending physicians also recommended a change of guardian. In their opinion, the dynamics within the family had entirely adverse effects on the daughter. Contrary to the daughter’s express wish, the Local Court then removed the applicant’s guardianship and appointed a professional guardian. At the professional guardian’s request, the Local Court approved the daughter’s placement in the closed ward of a psychiatric hospital and subsequently in the closed ward of a psychiatric home. Based on this decision, she was placed in a psychiatric facility approximately 120 km away from the applicant’s place of residence from September 2019 to April 2020. The applicant challenged the Regional Court’s decision upholding the removal of her guardianship.

II.

Based on the considerations below and having regard to UN Convention on the Rights of Persons with Disabilities, the Federal Constitutional Court held that the constitutional complaint is successful.

Article 6.1 of the Basic Law contains a fundamental value decision for all private law relating to family. In particular, this fundamental right guarantees that family members are able to live together and are free to decide how to organise their family life. Constitutional protection is afforded to supportive family structures in which parents and children take responsibility for one another. Even if a child becomes increasingly capable of reaching decisions and taking action and the parents’ responsibility and right of custody decrease, family ties usually remain of great importance in the individual’s self-image and often have special practical relevance in the everyday lives of family members. Family relationships are often characterised by a special closeness and affection, a sense of responsibility and a willingness to help.

Pursuant to the first sentence of § 1908b.1 of the Civil Code, a guardian must be removed if her suitability to care for the affairs of the person in guardianship is no longer guaranteed or if there is another compelling reason for the removal. A guardian is also no longer suitable if the care she provides is contrary to the best interests of the person in guardianship. The lack of suitability does not have to be proven; justified doubts based on specific facts are sufficient. What is required is a prognosis as to whether the person in question will be able to fulfil the tasks arising from the specific care in the future. In particular, a guardian must be able to base her decisions on the subjective best interests of the person she is protecting - putting aside her own ideas and wishes with regard to what appears sensible from her own point of view in order to support the person concerned in developing and implementing her own wishes and ideas within the scope of her capabilities.

The challenged decision violates the applicant’s fundamental right guaranteed under Article 6.1 of the Basic Law. It is not evident from the challenged decision that the Regional Court took sufficient account of the constitutionally required protection of the family, including in terms of the daughter’s right to self-determination. The Regional Court justified the applicant’s removal as guardian by citing her lack of suitability and the conflicting best interests of her daughter. In the Regional Court’s view, the daughter had not always received adequate medical treatment that was sufficiently continuous and conducive to the daughter’s health. On this basis, the Regional Court drew the conclusion that the inadequate medical treatment resulted from the applicant’s conflict of interests and her emotional involvement as the mother, and therefore considered her an unsuitable guardian.

However, the Regional Court’s assessment of the mother-daughter relationship was one-sided regarding the previous course of the daughter’s medical treatment. There is no indication that the Regional Court attached any importance to the significance of the family relationships, to the cohesion within the family, or to the family as a sheltered environment of the daughter. In particular, the Regional Court should not have disregarded the statement of the court-appointed expert, who had expressly argued against a change of guardian and place.

Furthermore, the Regional Court did not take sufficient account of the daughter’s express wish to keep her mother as guardian. In principle, such a wish must be given priority as an expression of the fundamental and comprehensive right to self-determination of vulnerable persons when selecting a guardian. Private law provisions allow for the appointment of a guardian different to the one desired by the person in guardianship only in exceptional cases where compliance with the vulnerable person’s wishes would be contrary to their best interests. This may be the case where the desired person lacks suitability as a guardian. However, such lack of suitability may not be assumed prematurely in order to appoint a person as guardian whom the court considers more suitable. Lack of suitability must be set out on the basis of the circumstances of the individual case with regard to the specific area of responsibility in question and weighed up against the wishes of the person being cared for. The extent to which the doubts about the person’s suitability can be mitigated by other measures – such as specific support for the desired guardian – must also be considered. However, the appointment of someone other than the person desired by the person in guardianship is required if the lack of suitability in the specific case would create substantial danger for the person in guardianship who cannot, due to their illness or disability, recognise this danger or act in accordance with this realisation.