© Prostock-studio / Adobe Stock
The negative consequences of this violation of the child’s fundamental right to free personal development outweigh the legitimate contact interest of the parent spurned by the child, emphasizes the Higher Regional Court (decision of April 3, 2024 – 7 UF 46/23incontestable).
The case concerned a girl who was raised exclusively by her mother. After many years of regular and extensive contact with the separated father, the child suddenly refused contact at the age of seven. The mother assumed that there had been sexual incidents between father and daughter. Since then she had encouraged the girl in her refusal to contact her. An expert report showed that there was no sufficient suspicion of child abuse for a criminal conviction. The Higher Regional Court therefore had a number of reasons to believe that the girl’s rejection was largely due to influence from her mother.
After years of dispute, the girl’s father requested that parental custody be transferred to him. Since it did not seem possible to give the girl into his household due to the girl’s absolute refusal, the Bad Hersfeld district court took the then nine-year-old from her mother’s household in an expedited procedure and placed her in a children’s home. This corresponded to the recommendations of an expert, which were also followed by the youth welfare office and the child’s legal guardian. During the stay in the home – away from the influence of the mother, with whom there was no contact allowed – the child should stabilize himself so that he gives up the inexplicable refusal to have contact with the father. In this way, the desired move of the child into the father’s household should be made possible in the future.
The child’s wishes must not be ignored
The Higher Regional Court found this procedure to be unlawful. In response to the mother’s complaint against the AG’s custody decision, it immediately arranged for the child to move back in with the mother. Completely ignoring the child’s wishes and ideas represents an unjustifiable violation of fundamental rights. The Higher Regional Court particularly emphasized that there was no evidence of inadequate care for the child in the mother’s household. The girl is an excellent primary school student with age-appropriate contacts with her peers and good social skills.
Under such circumstances, the conflicting wishes of a nine-year-old girl cannot be ignored. The understandable desperation of the father, who had access rights, contributed to the youth welfare office, experts and procedural counsel advocating such a measure that broke the child’s will. However, it was not sufficiently taken into account that the loss of contact with the main carer mother was unbearable for the child, while the child did not suffer in any way from the lack of contact with the father, but actively desired it.
It is also extremely questionable whether the desired goal of moving to the father’s household could even be achieved through institutional care. The measure is therefore completely unsuitable.
OLG Frankfurt a. M., resolution of April 3, 2024 – 7 UF 46/23
Editorial team beck-aktuell, bw, May 6, 2024.
Related Links
From the beck-online database
OLG Frankfurt aM, child care in a home, access rights, influence, child welfare, BeckRS 2024, 9067 (detailed reasons)
BGH, Requirements for interference with custody rights in the event of a child’s well-being endangerment through thwarting access, BeckRS 2011, 27602
Balloff, Will of the child, basic needs of the child and child welfare in questions of access rights, FPR 2002, 240