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| The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database. | |
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| Please cite the abstract as follows: | |
| Abstract of the Federal Constitutional Court’s Order of 14 September 2021, 1 BvR 1525/20 [CODICES] |
First Chamber of the First Senate Order of 14 September 2021 1 BvR 1525/20
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Headnotes (non-official): 1. The Court affirms its case-law on the fundamental rights of parents to care for and raise their children (first sentence of Article 6.2 of the Basic Law), the mandate of the state to act as guardian watching over the exercise of parental case, and the right of children to be protected against irresponsible exercises of parental case (second sentence of Article 6.2 of the Basic Law).
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Summary:I. A mother with sole custody and her 16-year-old daughter challenged the partial withdrawal of parental custody, including in relation to school matters. The daughter had been found to have special needs, particularly in the area of learning, as well as a mild intellectual disability. The ordinary courts found that the mother put enormous pressure on her regarding her academic performance, which led to the daughter being permanently overwhelmed, sad, desperate and without any joy. The mother had refused or discontinued all help offered to her. In proceedings initiated by the authorities, the family courts ordered the partial withdrawal of parental custody. The mother’s complaint lodged before the family courts was unsuccessful. With her constitutional complaint, the mother challenges the decisions rendered by the family courts in the initial custody proceedings and in the subsequent complaints proceedings. II. The Federal Constitutional Court did not admit the constitutional complaint for decision, based on the following considerations: It was not ascertainable that the decisions of the family courts violated the mother’s right of parental care guaranteed in the first sentence of Article 6.2 of the Basic Law. Based on the established facts of the case, the family courts found that the continued pressure put on the daughter, especially in school matters, endangered the best interests of the child within the meaning of § 1666 of the Civil Code. The interpretation of ordinary law applied by the courts in this case, and the underlying value-based judgments, were not untenable under constitutional law. It was not necessary for the Court to decide whether an individual right of the child to inclusive schooling under Article 24 of the Convention on the Rights of Persons with Disabilities or an indirect disadvantaging on the basis of disability (second sentence of Article 3.3 of the Basic Law) would have to be taken into account. In establishing the existence of risks to the child’s welfare – as grounds for withdrawal of custody – the ordinary courts did not base their findings on the daughter’s impairments, but only on the mother’s conduct, who failed to provide the child with the necessary support and encouragement.
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