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Judgments: Personal hearing in the care process is mandatory


BGH: forced demonstration possible if necessary

(jur) Before setting up a care, those affected must always be heard by the care court. This not only serves the right of the person concerned to give them a right to be heard, but above all it should also give the court an immediate personal impression, emphasized the Federal Court of Justice (BGH) in a recently published order of June 29, 2016 (file number: XII Eg 603/15). Just because the person to be cared for refuses not to want the care or rejects the caregiver does not constitute a reason to forego the care, according to the Karlsruhe judges.

In this specific case, a divorced man had requested the care of his ex-wife, a pharmacist and former lawyer. The background to this was a profit equalization procedure that had been ongoing since 2007 as a result of the divorce. It is clarified how the respective assets of the divorced spouses are to be divided. However, the ex-wife refused to cooperate, so the equalization process could not be completed.

The divorced man finally wanted to put his ex-wife under care and referred to her psychological problems. Supervision should only take place in the area "Representation in the profit equalization procedure".

The woman refused care and refused to be examined by an expert. The latter nevertheless assumed that the woman was "partially incapable of doing business" in all of her divorce proceedings.

The district court of Frankenthal was not convinced and rejected the appointment of a supervisor. The woman did not personally listen to it either. This simply did not come to a hearing.

In its decision, the BGH overturned the district court decision. According to the law, the person concerned must be heard in person before appointing a supervisor. However, this does not mean that the hearing can generally be dispensed with if the supervisor is not appointed.

Because the personal hearing by the childcare court not only serves the right to a right to be heard by the person concerned, but also "to give the court an immediate impression of the person concerned". If this does not appear at a hearing, informal opportunities would first have to be exhausted, such as visiting the person concerned in his home. If necessary, the person concerned can also be brought to a hearing by force.

In addition, the unwillingness of the ex-wife to cooperate with a supervisor did not make the need for stimulated care a thing of the past. Here the woman refused to be examined personally by the expert, so that the expert opinion could not justify supervision. However, there are sufficient indications afterwards that there is a need for care. The court should have clarified this with the personal hearing. fle

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