Summary:

I.

Following a court decision that temporarily deprived a mother (hereinafter: the applicant) of important elements of the custody right for her daughter, the applicant lodged a constitutional complaint with the Federal Constitutional Court.

The applicant and her daughter are Ukrainian nationals who came to Germany in December 2018. The daughter, who was well integrated and popular at her German school, suffered from headaches that got steadily worse. Several doctors were unable to find physical causes for the headaches. Some suggested that the applicant have her daughter admitted to hospital and checked for psychological causes of the headaches, but she refused to do so.

The Youth Welfare Office suggested that child protection proceedings be initiated before the family court. The applicant was heard in these proceedings with the help of a Russian-language interpreter. The family court issued a preliminary injunction depriving the applicant of the right to decide on her daughter’s health care matters and to determine her place of residence on the grounds of specific risks to the daughter’s health, which jeopardised the best interests of the child. Following that decision, the applicant returned to Ukraine. Her daughter, who initially accompanied her, now lives in a German child and youth welfare centre. The Higher Regional Court dismissed the applicant’s complaint against the family court decision. It held that the prerequisites for a temporary removal of custody rights continued to be met. Since the daughter’s separation from the applicant, her symptoms had subsided completely. However, according to the court, the child would be at risk of considerable harm if she were returned to the applicant. The Higher Regional Court rejected as unfounded a subsequent complaint seeking remedy for a violation of the right to be heard; that decision was not challenged in the constitutional complaint proceedings.

The applicant asserts that the challenged decisions violate her right to a fair trial (Article 20.3 of the Basic Law), her right to be heard (Article 103.1 of the Basic Law) and her right to her lawful judge (second sentence of Article 101.1 of the Basic Law). She also asserts a violation of her parental right (first sentence of Article 6.2 of the Basic Law).

II.

The Federal Constitutional Court did not admit the constitutional complaint for decision, since it has no prospects of success and is inadmissible in its entirety.

To the extent that the applicant challenges the decision of the family court, she fails to demonstrate the necessary legal interest in lodging a constitutional complaint, nor is this interest otherwise ascertainable. In terms of procedure, the more recent appellate decision of the Higher Regional Court supersedes the decision of the family court.

To the extent that the applicant challenges the appellate decision of the Higher Regional Court, the constitutional complaint is also inadmissible. The applicant failed to provide the Federal Constitutional Court with the texts of the challenged decisions and other documents necessary to enable the Federal Constitutional Court to assess their compatibility with the Basic Law. Depending on the specific challenge, necessary documents may include previous court decisions, expert opinions and reports and hearing notes. Only on this basis could the Federal Constitutional Court have reviewed whether the Higher Regional Court made significant errors in establishing and appraising the facts of the case, which, given the strict standard of review applicable to a separation of a mother from her child, might have led to the finding of a violation of the applicant’s parental right under the first sentence of Article 6.2 in conjunction with Article 6.3 of the Basic Law.

The applicant likewise failed to sufficiently substantiate the asserted violation of her right to be heard. The Higher Regional Court comprehensively engaged with the applicant’s complaint seeking remedy for a violation of the right to be heard. The applicant did not in any way address the reasoning of the Higher Regional Court decision rendered following this complaint.

The constitutional complaint also fails to meet the substantiation requirements insofar as the applicant asserts a violation of her right to a fair trial. Insofar as the applicant challenges the jurisdiction of the German family courts, she fails to discuss the applicable ordinary law. In particular, she fails to substantiate that, contrary to the finding of the Higher Regional Court, the Hague Child Protection Convention cannot provide grounds establishing jurisdiction of the German courts.

When it comes to the asserted violation of the right to her lawful judge, the applicant fails to address that any potential deficiencies regarding participation in the initial proceedings, which might have arisen from the fact that only a Russian-language interpreter was provided, have been remedied in the complaint proceedings.