Jurisprudential definitions of relevant institutions for the field: concept of family (s); parenting, parental responsibility and co-responsibility; best interests of the child; right of the child to be heard; progressive autonomy; equality between spous

§ 1666 of the Civil Code allows the state, in the exercise of its guardianship, to separate a child from its parents. The conditions for this are very high and require that the child is endangered. This also applies in the case of failure of the parents without fault of their own. Based on § 1666 of the Civil Code the complainants' child was separated from them. The complainants were married and had been cared for by the municipal social welfare office for years as part of the care for the disabled. After the birth of a daughter in the seventh month of pregnancy, the youth welfare office filed an application with the guardianship court to withdraw custody from the parents and transfer it to the youth welfare office, whereupon a corresponding temporary order was issued.
In the course of an assessment, the doctor came to the conclusion that both complainants were not capable of caring for the child without considerable danger to its physical development. In August 1976, the court finally detracted the child custody from the complainants and based the decision on § 1666 of the Civil Code. The complainants appealed against this unsuccessfully. The higher regional court reversed the decision of the regional court and referred the case back to it for further clarification and a new decision.
The regional court then obtained an expert opinion, which came to the conclusion that the parents lacked sensitivity, empathy and independence and that the child's socialization in line with changing social and professional requirements was not guaranteed. § 1666 of the Civil Code did not only permit removing custody from parents who were at fault but also those who were not able to care for their children. 
The higher regional court subsequently restored the decision of the local court in its entirety. With their constitutional complaint, the complainants complained of a violation of their fundamental right under Article 6.2 of the Basic Law.
The FCC held that the constitutional complaint was well-founded. Article 6.2.1of the Basic Law guarantees parents the right to care for and educate their children independently of state interference. Only in the case of endangerment of the child's welfare does an obligation to intervene follow from the state's guardianship under Article 6.2.2 of the Basic Law. A separation of the child from its parents is only under the strict conditions of Article 6.3 of the Basic Law permissible. 
It is consistent with these constitutional requirements that § 1666 also applies in the case of failure of the parents without fault of their own. A risk to the welfare of a child may also arise if an allegation of fault can’t be made or at any rate - for example, in the case of a certain mental or psychological abnormality – can’t be proven. 
The separation of children from their parents represents the greatest encroachment on parental rights. Insofar, the provision of § 1666a of the Civil Code ensures that sufficient account is taken of parental rights when measures are taken to protect the child.
The findings made in the present case with regard to the parental inability to educate the child were not sufficient to justify a separation of the child measured by the principle of proportionality. Even if a failure of the complainants within the meaning of § 1666 I 1 of the Civil Code was assumed, it was not apparent from the grounds of the impugned decision that the child was in acute serious danger in physical or psychological respect. 
The decision of the higher regional court was to be set aside and the case referred back.