The Decisions of the Federal Constitutional Court and Federal Supreme Court

The formerly weak position of the non-marital father in the adoption proceedings of his child was first strengthened by the BVerfG in 1995. At the time, the father of a non-marital child had no means to stop an adoption of

159 The consent of a parent may also be substituted where he is permanently incapable of caring for and bringing up the child as the result of a particularly serious

psychological illness or a particularly serious mental or psychological handicap and where the child, if the adoption does not take place, could not grow up in a family and the child’s development would as a result be seriously endangered (§ 1748 III).

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his child by the step-father of the child (or indeed an adoption by the mother of the child, which was possible under the law effective at the time). His consent to the adoption of his child was not required, neither were his interests considered by the courts. The BGH in its 7 March 1995 decision¹⁶⁰ stated that a father of a non-marital child as well as a father of a marital child were granted parental rights under § 6 II GG, and that the corresponding regulation in the Civil Code (§ 1747 II S. 1, 2 BGB a. F.) was incompatible with § 6 II S. 1 of the Basic Law to the extent that it required neither the consent of a father of a non-marital child to the adoption of his child by the step-father (or the mother), nor a weighing of his interests¹⁶¹.

One of the central points of deliberation for the BVerfG in the above decision was the necessity of an adoption by a step-parent, and its merits and demerits from the point of view of the interests of the child. The Court pointed to the fact that an adoption of a child by its step-father led to a loss of any rights or obligations of the (biological) father concerning his child, which would reversely also mean the loss of all the corresponding rights of the child, such as rights to maintenance and inheritance (but also a loss of the opportunity to have contact with the father, as the father would lose his right to apply for contact). The Court stated that the “overriding interests of the child” did not justify depriving the (biological) father of any rights concerning the adoption of his child, pointing out first that an adoption by step-father would not occasion any changes in the actual situation of the child. “It is not the case”, the Court stated, “that not until an adoption was granted would the child be given the chance to grow up in a family that would offer him or her good conditions for his or her development” (S. 793). It added that an adoption would rather serve to legally secure an already existing situation.

160 BVerfG FamRZ 1995, S. 789. (The decision was in turn was heavily influenced by Keegan v. Ireland, the 26 May 1994 decision of the European Court of Human Rights.

161 The Court in this decision dealt with applications from three fathers concerning the adoption (or the application thereof) of their non-marital children by the corresponding step-fathers (and/or the biological mothers).

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Such legal securing of the actual situation might be in the best interest of the child, however, it should be borne in mind that “step-child adoptions are often not unproblematic” and “therefore it cannot automatically be assumed that adoption by the stepfather as a rule serves the best interests of the child” (S. 793).¹⁶²

Taking the above into account, the Court also suggested possible changes to the regulations concerning step-child adoption and step-families. It stated that the interests of the child in the step-father exercising parental custody together with the mother might be protected by strengthening the legal standing of the step-father. The Court added that the legislator might also consider changing the legal regulations concerning step-child adoptions in a way that the relationship between the external biological parent and the child would not be extinguished completely through adoption. (S. 793)

As a result of the 1995 decision of the BVerfG, the legal regulation concerning the consent of an non-marital father to the adoption of his child was amended during the 1997 KindRG. However, the legislator did not opt for a complete equalization of the legal standing of the father of a non-marital child and the father of a marital child (as explained above, in the Civil Code a distinction is made in § 1748 I and § 1748 IV between non-marital fathers who once had custody and fathers who never had custody).

In 2005, the BGH and the BVerfG decided once and for all the question of

162 In its decision, the BVerfG also referred to the 1976 reform of law concerning adoption (Das Gesetz über die Annahme als Kind und zur Änderung anderer Vorschriften (Adoptionsgesetz) v. 2. 7. 1976 (BGBl. I S. 1749)). It pointed out that adoption of a minor was to serve the following aim, namely that a child who had been deprived of a “healthy home” would be given a family (vgl. BT-Drucks. 7/3061, S. 1).

Concerning the extinguishing of the relationship to the external parent in the case of a step-parent adoption, the legislator justified this effect of adoption by arguing that any disruption to the new parent-child relationship should be avoided, and claimed that the ties between the child and the external parent were in most cases rather loose (limited to the mere payment of maintenance) (BT-Drucks. 7/3061, S. 22). (referred to on page 789 of the decision)

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the constitutionality of such a distinction. The BVerfG in its 29 November decision clearly stated that § 1748 IV was open to an interpretation that could prevent unequal treatment of fathers who had never held custody of the child. The Court, quoting its own 1995 decision (introduced above) and the 23 March 2005 decision of the BGH, confirmed that, considering the constitutionally protected rights of the parties involved, a weighing of the interests of father and child was required, and (bearing in mind that when the relationship to the father is extinguished through adoption, the child will be deprived of all the corresponding rights, such as rights to maintenance and inheritance; that “moreover, as a general rule it does not serve the best interests of the child when any chances of the father to have contact with the child are completely and permanently excluded”¹⁶³; considering the “often not unproblematic nature of step-parent adoption” and the fact that the adoption would occasion no changes to the actual situation of the child (again quoting the 1995 decision)), the adoption not taking place would constitute a

“disproportionate disadvantage” for the child in the sense of § 1748 IV “if the adoption would offer the child so notable an advantage that a parent who cares reasonably for the child would not insist on upholding the relationship”

(BVerfG FamRZ 2006, 94, 95; BGH FamRZ 2006, 891, 892).

When weighing the corresponding interests, the BGH stated that it would be necessary to weigh whether and how far there was or had been a lived (gelebt) father-child relationship or what reasons had prevented the father from developing or maintaining such a relationship (BGH FamRZ 2006, 891, 892). The BVerfG clarified in addition that motives and concerns of the father in refusing consent to the adoption were to be considered, as well as the conduct of the child’s mother (here the court added that it was “of particular significance, whether and to what extent the mother of the child

163 BVerfG 2005, S. 95; also BVerfG 1995 S. 793, albeit, referring here to adoption by the mother.

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and her husband were attempting to prevent the father from having a relationship to his child”. Indeed, the BGH had stated clearly that “it should be borne in mind that it does not as a rule serve the best interest of the child when the (possibly even primary) aim of the adoption is to completely and permanently exclude the father`s chances to have contact with his child” (S.

892)¹⁶⁴. Furthermore, the BGH stated that even if there was no lived (gelebt) relationship between the father and the child, a substitution of the father’s consent under § 1748 IV would only be permissible if the father himself, through his own conduct, was responsible for the failure of such a relationship (BVerfG FamRZ 2006, 94, 95).

The latest decision by the BVerfG concerning step-child adoption and the consent of the (non-marital) father (decision of 27 April 2006) reconfirmed the possibility of a constitutional interpretation of § 1748 IV, as well as the points that were to be considered when weighing the interests of the father and the child against each other (introduced above). In connection with the latter, the Court clarified once more that the integration of the child into an

“ideal” or “normal” family through adoption was not to be prioritized above everything else (including in cases where external circumstances – in that particular case the incarceration of the father – had hindered the father from building up a relationship with his child), with the BVerfG criticizing the preceding OLG decision which described contact between the (biological)

164 In that particular case, according to the understanding of the court, it was precisely the permanent exclusion of the father`s right to contact that primarily motivated the application for adoption. In addition to stating that such motivations on the side of the mother and step-father did not justify the substitution of the consent of the father to adoption, the Court added that it was rather the duty of the mother to promote a relationship between the child and its (biological) father. ”Insofar as the [mother] has until the present time not come to terms with the separation from the father of her child, and the child – as a reaction to this – is allegedly afraid of potential visits by the father, it does not follow that there is a need to legally secure the integration of the child into the new family of the mother; rather these circumstances reveal a serious failure of the mother in bringing up her child (Erziehungsversagen), one that ought not to be

redressed by means of an adoption of the child through the husband of the mother” (S.

893).

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father and the child as the father “forcing his way into” the family circle of the mother, the spouse who is willing to adopt, and the child (BVerfG FamRZ 2006, 1355). The Court stated, that “… it is by no means guaranteed that the new relationship will develop as “ideally” (idealtypisch) as the [lower] courts implied it would.” Referring to the specific circumstance of the case, it went on to say: “Should there be any truth in the father´s claim (although no longer relevant as to the decisions at hand), that the mother and her husband (the adoptive father) have been living separately for many months, this would be evidence, even in the case at hand, that it can be in the interest of the child not to automatically allow adoption already in cases where external circumstances – here, incarceration - have obstructed the biological father from building a close relationship to his child. The relationship between father and child, which is feasible also during the time the father is incarcerated, can be more stable and lasting than the relationship of the child to the new partner of the mother.”¹⁶⁵

2.3 Step-child Adoption and Contact with a Child Living in a Step-Family