Child protection: criteria for the adoption of protection measures based on human rights criteria, especially regarding alternative care (hospitalization, foster families and adoption)

The right of custody includes the right of parents to determine with which persons the child has contact. In cases where the child was living in foster care and the parents want to take it away from the foster parents, the family court may order the child to stay with the foster parents in view of the child's best interests, according to § 1632.4 of the Civil Code. The decision concerned this law. The complainant, who was born in November 1983, had two sisters, one of whom is growing up with her grandmother and the other with her step-aunt. In December 1983, the guardianship court was informed that the mother had mistreated the complainant and that the father cared little for the child. As a result, the court provisionally withdrew parental custody from the parents in December 1983 and appointed the district youth welfare office as guardian. In January 1984, the district youth welfare office placed the complainant in the care of a childless married couple. 
The parents have lived separately since May 1984. The father then regained custody and in January 1985 he demanded that the foster parents hand over the complainant in order to place her not with him but with his stepsister, where his other daughter lived. Although the foster parents applied for a retention order under § 1632.4 of the Civil Code, the guardianship court complied with the father's request.
The complaint filed by the foster parents with the regional court was unsuccessful. On the basis of an expert opinion, it advocated the surrender of the complainant to the father. In particular, the establishment of the foster relationship was not due to the father's misconduct.
The higher regional court confirmed the decision of the regional court as free of legal errors.
With her constitutional complaint, the complainant complained above all of a violation of her fundamental rights under Article 1.1 of the Basic Law and Article 2.1 of the Basic Law. In addition, her fundamental right to remain in the foster family (Article 6.3 of the Basic Law) was disregarded.
The FCC held that the complainant's fundamental right under Article 2.1 in conjunction with Article 1.1 of the Basic Law was violated. In the context of the decision under § 1632.4 of the Civil Code, both the parental right under Article 6.2 sentence 1 of the Basic Law and the fundamental right position of the child under Article 2.1 in conjunction with Article 1.1 of the Basic Law as well as its best interests must be taken into account.  The acceptable level of uncertainty about possible impairments of fundamental rights is largely determined by whether the child is to return to its family or whether only a change of foster parents is intended. While in the first case the risk limit is generally to be drawn wider, the change of foster parents is only compatible with the child's fundamental rights if psychological or physical harm can be ruled out with sufficient certainty. § 1632.4 of the Civil Code is to be interpreted in conformity with the constitution in this respect. 
In the present decisions, the requirements arising from Article 2.1 in conjunction with Article 1.1 of the Basic Law were not sufficiently taken into account. The surrender of the complainant was to be followed by her placement with a family that had hitherto been strangers. Although a reunification with the complainant's sister was intended, there was no expert determination that the development of permanent damage through the removal from the foster family could be ruled out with sufficient certainty.