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Case:
OLG Hamm Az 11 U 61/96
Date:
20 November 1996
Note:
Translated German Cases and Materials Under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Raymond Youngs
Copyright:
University of Oxford, Institute of European and Comparative Law, and Professor B. S. Markesinis

Facts:

K was born in February 1976. The plaintiff was her mother and the sole person entitled to look after her.

In November 1992 K presented herself at the Youth Welfare Department of the defendant district and told them about recent domestic difficulties with the plaintiff. (K had already been accommodated for a time by the Youth Welfare Department in the children's home B in M, in early 1991). She explained to the officer in charge, Me, that she could not stand things at home any more. She refused a mediation interview with the plaintiff. But K and the plaintiff had a conversation of at least one and a half hours on the morning of the 17th November 1992. Me was present for part of the time. No settlement was reached.

The Youth Welfare Department applied to the Guardianship Court C, which arranged a hearing on the afternoon of the 17th November 1992. K was heard first, and she repeated to the judge her statements contained in the report of the Youth Welfare Department, and said she did not want to go back home. Then the plaintiff was heard. The Guardianship Court tried to arrange a settlement between K and the plaintiff, but failed. It made a temporary order taking away the plaintiff's right to determine K's place of residence, and transferring this to the Youth Welfare Department as guardian.

K was then accommodated by the Youth Welfare Department at first in the Youth Protection Centre in D and from the 10th December 1992 in the children's home B in M. On the 5th September 1993 K left the home of her own accord and returned to the plaintiff.

On the 27th September 1993 the Guardianship Court transferred full custody rights back to the plaintiff. But because of a new argument, the plaintiff finally excluded K from home on the 11th November 1993. The two have since lived separately from one another.

The plaintiff lodged a complaint against the decision of the Guardianship Court. This was rejected by the Landgericht M on the 2nd July 1993 because K's wish not to return home had to be respected.

The plaintiff claimed compensation from the defendant district including damages for distress because the Youth Welfare Department deprived her of K in a manner contrary to their official duty.

The action and the appeal were unsuccessful.

Reasons:

The prerequisites for a claim for official liability under §§ 839 and 847 of the BGB in combination with Art 34 of the GG, which is the only for basis a claim to be considered here, are not present.

I. The work and tasks of youth assistance - and along with this the official duties of the Youth Welfare Department - arise from § 2 of the KJHG. This work includes amongst other things educational assistance and supplementary services (§§ 2 (2) nos. 4, 27-37, 39 and 40 KJHG), and the other tasks include amongst other things taking children and young people into care (§§ 2 (3) Nos. 1 and 42 KJHG SGB VIII).

On this basis, the Youth Welfare Department of the defendant district has not violated any official duties which could be the cause of the plaintiff's alleged harm.

1. The decision of the Youth Welfare Department to take K into care on the 16th November 1992 and to seek a decision of the Guardianship Court on the 17th November 1992 was in accordance with their official duty.

a) According to § 42 (2) of the KJHG the Youth Welfare Department is under a duty to take a young person into care if he or she asks for this. It has to inform the person having custody about the taking into care without delay.

These prerequisites are fulfilled in the present case. K asked to be taken into care by the Youth Welfare Department of the defendant district on the 16th November as a so-called "voluntary admission". The duty of the Youth Welfare Department to take into care applies without any limitation, regardless of the grounds on which the young person asks for care and of whether these grounds are convincing; the requirements to be placed on the content of these grounds must not be too high [references omitted].

The plaintiff as the person having custody had unquestionably been notified of the taking into care, and in this connection it does not matter for the purpose of the decision whether this notification was based on her own initiative or on that of the Youth Welfare Department.

b) According to § 42 (2) sentence 3 of the KJHG the Youth Welfare Department must, if the person having custody challenges the taking into care, either hand the young person over to the person having custody (option 1) or obtain a decision by the Guardianship Court about the necessary measures for the welfare of the young person (option 2). These steps must take place without delay.

aa) Unquestionably, the plaintiff challenged the taking into care in the conversation on the morning of the 17th November 1992. She accuses the Youth Welfare Department of not having kept the appointment arranged at 12 o'clock for the continuation of the discussion, but it is not evident that this would have made a difference in the context of the plaintiff's challenge. On the evidence of the memorandum of the hearing before the Guardianship Court, the plaintiff still stated to the court that she did not agree with the taking into care - at any rate not unconditionally.

bb) In this situation, the Youth Welfare Department was under a duty to make an "immediate" decision. No objection can be raised to the fact that it chose, out of the two alternatives to be considered, not to hand K over to the plaintiff, but to invoke the Guardianship Court. This was in accordance with their official duty.

In the literature [reference omitted] the view is taken that when a person having custody challenges a taking into care, the Youth Welfare Department is always obliged to bring in the Guardianship Court even if the Department considers there is no danger to the child's welfare. According to another view [reference omitted] the Youth Welfare Department only needs to obtain a decision of the Guardianship Court (and also must, without there being any discretion) if the welfare of the young person is endangered. Both opinions lead here to the same conclusion.

In making its decision, the Youth Welfare Department could (and had to) take into account that help for K's upbringing had already been necessary (in January / February 1991), that there were unquestionably school, alcohol and drug problems and that again K absolutely refused to go back home. As K was at that time already nearly 17 years old, the Youth Welfare Department could take this refusal seriously.

Assuming a danger to the child's welfare in this situation, and bringing in the Guardianship Court, were not contrary to the Youth Welfare Department's official duty. It could regard the decisions of the Guardianship Court and of the Landgericht based on §§ 1666 and 1666a of the BGB (endangering of child's welfare) as retrospectively confirming this assumption. The urgency of the measures to be taken by the Youth Welfare Department also did not permit - contrary to the view of the plaintiff - the making of further enquiries, in particular the hearing of the witnesses who were later heard by the Guardianship Court. The necessary elucidation of the matter was ensured because the Guardianship Court was under a duty to investigate of its own motion (§ 12 of the FGG).

2. The Youth Welfare Department would certainly have acted contrary to its official duty if it had "wangled" the right to determine K's accommodation by - as the plaintiff claims - influencing K by insinuation to make untrue statements to the Guardianship Court.

But the plaintiff has not substantiated this sweeping accusation in any greater detail, either in writing or at her examination in accordance with § 141 of the Civil Procedure Code at the Senate's hearing; so taking evidence did need to be considered here. The plaintiff has merely asserted that the Youth Welfare Department stated to K that she must only stick to her point of view and say that she did not want to return home in any circumstances. The Senate cannot see any improper influencing of K in this.
The decision of the Guardianship Court is based in substance on K's wish, as stated to it, that she did not want to go back home. This stated wish was not however inconsistent with the truth.

The plaintiff herself admitted on her personal examination before the Senate that K, at the point in time in question, did not in fact want to go back home and that even in the conversation on the morning of the 17th November 1992 there were no prospects of this. Moreover, K stated this wish approximately eight months later to the Complaints Chamber of the Landgericht. There is no allegation that the facts of the case were presented to the Guardianship Court in some other way which was inconsistent with the truth and based on improper influence by the Youth Welfare Department.

3. The Youth Welfare Department has also not violated its official duties by accommodating K after the decision of the Guardianship Court, at first in the Youth Protection Centre Ka in D and afterwards in the children's home B in M.

a) On the basis of the decision of the Guardianship Court, the right to determine K's place of residence was provisionally transferred to the Youth Welfare Department as guardian (§§ 1631 (1), 1666 and 1666a of the BGB). The Youth Welfare Department could therefore decide on K's place of residence without the agreement of the plaintiff [reference omitted]. The right to determine a place of residence also includes the authority to exercise care of the person concerned to the extent necessary for a parent. This includes entrusting the person to a family or - as here - the houseparents in a home. This authority is part of the right to determine the place of residence.

b) Besides this, the plaintiff shows no alternative to accommodation in a home - which was in any case only provisional for the period of the temporary order - especially as she and K could not agree at the hearing before the Guardianship Court on accommodation with another appropriate care person. Accommodation with the plaintiff herself was out of the question as a serious alternative after the Guardianship Court had just taken this aspect of guardianship away from her.

4. Finally it cannot be established that the Youth Welfare Department violated its official duty just because it did not, following the decision of the Guardianship Court, provide any services - additionally to accommodation in the home - under § 2 (2) of the KJHG.

a) In this connection, the Senate can leave open the question of whether the Youth Welfare Department, under the given circumstances of the plaintiff, ought to have offered such services, namely educational assistance (§ 27 of the KJHG) educational advice (§ 28 of the KJHG) or socio-pedagogical family assistance (§ 31 of the KJHG). The Senate can therefore also leave open the question of whether it was due to lack of readiness on the part of the Youth Welfare Department or on the part of the plaintiff that this did not occur; even at the Senate hearing this could not be resolved by examination of the parties on both sides.

b) But this does not need to be resolved in order to decide the legal dispute; that is why it is not necessary to go into the question of whether the memoranda submitted by the defendant district were - as the plaintiff asserts - made out after the event or not. Because even if the Youth Welfare Department breached its duty in not offering to the plaintiff and K services in accordance with § 2 (2) of the KJHG, it cannot be established within the framework of the necessary examination of causality that matters would then have taken such a course that the harm which is the subject of the plaintiff's claim would not have arisen.

aa) Even according to the plaintiff's own allegation, no sufficient grounds were present for saying that if services under § 2 (2) of the KJHG had been obtained the relationship between the plaintiff and K would have improved. The plaintiff herself described K as a "very egocentric girl with a very strongly demanding nature". K's behaviour, in so far as this is of importance for the resolution of the legal dispute, confirms the plaintiff's own assessment. Within the framework of § 287 of the Civil Procedure Code, which is to be applied here, success from services under § 2 (2) of the KJHG cannot in any case be established or even assumed; demonstrating this is the responsibility of the plaintiff who is under a duty of explanation and proof in respect of causality.

bb) Even if a different view is taken, there is nothing to indicate within the framework of § 287 of the Civil Procedure Code that services under § 2 (2) of the KJHG would have succeeded so quickly that the harm which is the subject of the plaintiff's claim would thereby have been avoided or at least reduced; demonstrating this also falls to the plaintiff who is under a duty of explanation and proof in respect of it.

The harm to her reputation which the plaintiff asserts - and the sale of her house in H associated with this - is based only on the taking into care under § 42 (2) of the KJHG, the ensuing deprivation of the right to determine the place of residence by the Guardianship Court and the subsequent accommodation of K in the Youth Protection Centre Ka and in the children's home B. Even the legal costs and the costs of visits and telephone calls arose exclusively in connection with the taking into care, the deprivation of the right of determination of the place of residence and the accommodation. This harm would therefore also not have been avoided by additional services by the Youth Welfare Department under § 2 (2) of the KJHG. The same applies for the impairment which the plaintiff claimed occurred to her health. Apart from the fact that, according to the statements of the plaintiff to the expert D, this impairment must for the most part have existed previously, there is nothing to indicate that it would have been avoided or even significantly reduced by services by the Youth Welfare Department under § 2 (2) of the KJHG.

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