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

The complainant in 3) was born to a married couple in June 1987 and was placed in the family of the complainants in 1) and 2) in July 1987 through mediation of the youth welfare office. Initially, the foster care was only to last for a period of around one to two months. However, in agreement with the youth welfare office it was extended. In March 1988, the youth welfare office first wanted to place the child in care with a family of its own choice who wished to adopt the child. The foster parents were, however, not prepared to surrender the child.
The youth welfare office thereupon succeeded in getting the court to issue an order that the foster parents had to surrender the child so that he can be taken to the designated adoptive family. It was the court’s view that the fact that the child was to be transferred from the foster parents to the chosen adoptive parents would indisputably place a considerable psychological burden on the child, as the child had built social ties with the foster parents. However, the court did not believe that any permanent damage would be done, especially because the child was to be given into a family who wished to adopt him and the adoptive parents would keep the psychological impairment to the child to a minimum by establishing contact in a loving and careful manner. It was not necessary to obtain a child psychological report as applied for the foster parents. The complaint lodged by the foster parents was unsuccessful, as the child’s development deficit would not be unjustifiably great and irreversible. The adoptive parents had no doubt been carefully selected. A further complaint by the foster parents was rejected, whereupon they filed a constitutional complaint. They complained of a violation of Article 6.1 and Article 103.1 of the Basic Law. In addition, the foster child believed there has been a violation of both Article 6.1 of the Basic Law and of his fundamental right under Article 2.1 in conjunction with Article 1.1 of the Basic Law. 
The FCC held that the constitutional complaint lodged by the foster parents was unfounded. It is true, that the foster family was also protected by Article 6.1 of the Basic Law, so that Article 6.3 of the Basic Law could not be entirely disregarded when taking a decision on whether the child is to be removed from its “social” family. However, the foster child relationship is temporary by design, so that the separation carries less weight. The removal of the foster child from the foster parents’ family they can in principle be expected to bear the loss associated with the separation. A violation of Article 6.1 and 6.3 of the Basic Law can only be assumed in exceptional cases where crucial circumstances prohibit the separation of the child from the foster family. This could not be presumed to be the case here, given the short duration of the foster relationship. Article 103.1 of the Basic Law obligates the non-constitutional courts to take note of the submissions made by the parties to the proceedings and to take them into consideration. However, Article 103.1 of the Basic Law does not grant protection against the courts entirely or partly ignoring the submissions made by the parties for formal or substantive law reasons. In the original proceedings, the courts made statements on the child’s best interests and gave reasons for not obtaining an expert opinion.  Therefore, therewas no violation of Article 103.1 of the Basic Law. 
A violation of the child's fundamental rights under Article 2.1 in conjunction with Article 1.1 of the Basic Law is only excluded where any endangering of the child’s best interests by the transfer to the adoptive family can be ruled out with sufficient certainty. The assumptions made by the court that the adoptive parents had no doubt be carefully selected and could keep the psychological impairment to the child’s development to a minimum by establishing contact in a loving and careful manner did not meet the requirements of this narrow risk limit and did not ensure that the decision is consistent with the child’s best interests. The rejection of the order to remain therefore violated Art. 2.1 in conjunction with Art. 1.1 of the Basic Law.