Federal Court overturns directive of the KESB Basel-Landschaft
Published: Tuesday, Jan 23rd 2024, 12:10
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One of the child and adult protection authorities in the canton of Basel-Landschaft wanted to issue an order to ensure that a ten-year-old found out why his father was in prison. The Federal Supreme Court has now upheld the mother's appeal and described the official intervention as disproportionate.
The contested decision of the Cantonal Court of Basel-Landschaft "does indeed raise concerns in a number of respects". This is what the Federal Supreme Court writes about the ruling of the lower court, which supported the child and adult protection authority (Kesb) in its actions.
The starting point of the proceedings was a letter from the father in prison. He asked one of the Kesb offices for permission to contact his son.
The man has been behind bars since 2015. He was convicted of serious sexual offenses - including raping the boy's half-sister. His mother, who has sole parental custody of the child, refused contact.
According to the Kesb, the child should first be informed about the father by a specialist with regard to any visitation rights. The Kesb issued the corresponding directive in the fall of 2022. The cantonal court dismissed an appeal by the mother.
Wrong law
The Federal Supreme Court overturned the cantonal decisions. The lower court had referred to a statutory provision that serves to regulate personal contacts as the basis for informing the boy. The content of the instruction therefore went beyond the scope of this provision.
In addition, the mother, as the sole custodian, is responsible for regulating the child's contact. It is at her discretion to decide when and whether the child learns more about its father. In addition, the decision of the cantonal court contains hardly any information on the extent to which the child's welfare would be endangered if everything remained as it was. That was the real question at issue.
According to the Federal Supreme Court, the lower court was satisfied with the reasoning that the child could not form its own opinion of its father without information. This cemented the idea of a "disabled psychopath", which was not in the child's best interests. How the cantonal court knew what image the child had of its father was left in the dark. (Judgment 5A_375/2023 of 21.11.2023)
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