Summary:

I.

The applicant is the father of three children. After his separation from the children’s mother, there were considerable disputes concerning his contact with the children. In 2019, the Higher Regional Court, which was the competent court at the time, ordered a contact arrangement between the applicant and his children. Since mid-2021, the children have refused to have contact with the applicant.

By order dated 26 April 2022, the family court revised the 2019 order of the Higher Regional Court and prohibited the applicant from having contact with the children, issuing a temporary injunction without an oral hearing until 31 December 2022. The order also prohibited the applicant from coming within 300 metres of the house where the children lived or the schools they attended. The family court found the temporary suspension of contact urgently necessary to prevent further danger to the mental, physical and emotional well-being of the children. This was based on the children’s reported fear of the applicant, who they stated repeatedly appeared in front of their home and their schools and rebuked them, telling them that their behaviour showed they did not honour their father or God.

By order of 6 February 2023, the family court again prohibited contact without an oral hearing, citing the urgency of the situation. It relied on its previous order, adding that re-implementing contact would also pose a risk to the welfare of the children. In a hearing on 30 November 2022, which was the last time the children were heard in these proceedings, the children stated that peace had returned since the prohibition against contact and that they could concentrate better on school. The family court also referred to the assessment of the guardian ad litem that ignoring the children's sustained and strongly held desire not to have contact would cause damage to their critical sense of self-empowerment.

At the applicant’s request, the family court held an oral hearing on 5 September 2023 and heard from the applicant, the mother and the guardian ad litem in person, but not from the children. The family court again provisionally prohibited contact and referred to its two previous orders. The court found that the situation had not changed and that the oral hearing made it clear that the applicant was neither empathetic nor responsive to the wishes of his children.

The complainant lodged a complaint with the family court seeking remedy for a violation of the right to be heard (Anhörungsrüge), although it is not clear whether this complaint has been decided. He also submitted a constitutional complaint claiming a violation of Article 103.1 and Article 6.2 of the Basic Law.

II.

The Second Chamber of the First Senate of the Federal Constitutional Court did not accept the constitutional complaint for decision for the following reasons:

The applicant has not shown that he has exhausted the legal remedies available before the ordinary courts; nor has he demonstrated the necessary need for legal protection, as the challenged orders expired by their own terms by the time the constitutional complaint was submitted. It therefore cannot be assessed on the merits whether the orders sufficiently took the first sentence of Article 6.2 of the Basic Law into account.

The Federal Constitutional Court went on to note that there were nonetheless doubts as to whether the family court’s orders, in particular the most recent order of 5 September 2023, adequately considered the requirements of the first sentence of Article 6.2 of the Basic Law. The Court made the following observations:

The family court correctly assumed the requirement of a specific risk to the child's welfare. Nor was it objectionable to justify such a risk based on consequences that might result from overriding the will of the children, which is deemed to be considerable. However, the order of 5 September 2023 raises concerns that the threat to the child's welfare was based primarily on past circumstances. Given that a prohibition against contact has been in place since 26 April 2022, future decisions would need to consider in more detail whether ordering contact in the future could still pose a risk to the best interests of the child. There are also concerns as to whether the principle of proportionality was sufficiently clear to the family court. There are no explicit statements addressing the proportionality of a continued suspension of contact. Nor did the family court address whether contact might be possible in a supervised form in order to prevent the behaviour that the children perceived as threatening. Moreover, none of the challenged orders addressed the respective length of the prohibition against contact.

The way in which the proceedings were conducted also raises concerns with regard to the requirement to create as reliable a basis as possible for a decision based on the best interests of the child. The family court found a risk to the welfare of the children solely based on a risk of harm to their emotional development that might result from ignoring their clear wishes. If the children’s will is decisive for finding a (continuing) endangerment of their welfare, then the procedural requirements arising out of the relevant ordinary law and the first sentence of Article 6.2 of the Basic Law would suggest that a further hearing from the children in this case is necessary.