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Christine Budzikiewicz, Bettina Heiderhoff, Frank Klinkhammer, Kerstin Niethammer-Jürgens - Vorsorge und Verantwortung im Internationalen Familienrecht

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Christine Budzikiewicz (ed.), Bettina Heiderhoff (ed.), Frank Klinkhammer (ed.), Kerstin Niethammer-Jürgens (ed.)

Vorsorge und Verantwortung im Internationalen Familienrecht

Series: Dialog Internationales Familienrecht

Volume 5 2023

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III. Some reflections regarding argumentation, consistency, deduction, etc. on the occasion of recent case law of the Court of Justice on international family law S. 175-178

„… recent case law of the Court of Justice oninternational family lawThe foregoing invites to a closer look …” „… looking at judgments of the Court of Justice inwhich PIL aspects regarding international family law are …” „… question ofpossible further deductions from the case law of the Court.With regard to some recent judgments …”

I. International family law, aspects of interpretation, analysis and the importance of paying attention to these aspects S. 169-171

„… Justice – explicitlyor not ”fits in” or positions the decision against the whole of the Court'scase law …” „… . International family law, aspects of interpretation, analysis and theimportance of paying attention to these …” „… aspectsThis contribution discusses recent case law of the Court of Justice of theEuropean Union (hereinafter …”

doi.org/10.5771/9783748919124

Federal Constitutional Court - Decisions of the Bundesverfassungsgericht - Federal Constitutional Court - Federal Republic of Germany

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Federal Constitutional Court (ed.)

Decisions of the Bundesverfassungsgericht - Federal Constitutional Court - Federal Republic of Germany

2013

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BVerfGK 5, 161 Order of the First Chamber of the First Senate of 5 April 2005 – 1 BvR 1664/04 “Görgülü III case” Binding effect of a decision of the European Court of Human Rights – constitutional requirements placed on the removal of a child from its foster family S. 724-731

„… Higher Regional Court (Oberlandesgericht – OLG) of 9 July 2004 – 14 UF 60/04 –. RULING: 1. The order of …” „… the Naumburg Higher Regional Court of 9 July 2004 – 14 UF 60/04 – violates the complainant’s …” „… – GG) to the extent that, in reversing the order of the Wittenberg Local Court (Amtsgericht) of 19 …”

BVerfGE 79, 51 Order of the First Senate of 12 October 1988 – 1 BvR 818/88 “Foster parents case” Removal of a child from its foster family S. 287-300

„… removal from the foster family could be ruled out. The Federal Constitutional Court had only required such …” „… that the courts had found it reasonable for the child to be transferred to another family was based on …” „… child may be removed from a foster family and transferred to a designated adoptive family (care prior to …”

Titelei/Inhaltsverzeichnis

„… Bundesverfassungsgericht – Federal Constitutional Court – Federal Republic of Germany Volume 5: Family-Related Decisions …” „… Decisions of the Bundesverfassungsgericht – Federal Constitutional Court – Federal Republic …” „… of Germany Volume 5: Family-Related Decisions 1957-2010 Nomos The original decisions in this volume …”

BVerfGE 80, 81 Order of the Second Senate of 18 April 1989 – 2 BvR 1169/84 “Case concerning the adoption of an adult foreigner” Right of residence of an adult foreigner adopted by a German S. 301-310

„… foreigner” HEADNOTE: If a German has adopted an adult foreigner, the protection of a family thereby …” „… representative: …, lawyer – against a) the judgment of the Federal Administrative Court (Bundesverwaltungsgericht …” „… ) of 10 July 1984 – 1 C 11.82 – and b) the judgment of the Higher Administrative Court …”

BVerfGE 6, 55 Order of the First Senate of 17 January 1957 – 1 BvL 4/54 “Taxation of households case” Article 6.1 of the Basic Law is a fundamental provision (binding value decision) and currently binding constitutional law S. 1-19

„… . The provision under § 80.4 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz …” „… – BVerfGG) is not applicable if the Federal Constitutional Court (Bundesverfassungsgericht) received a …” „… court’s submission made pursuant to Article 100.1 of the Basic Law (Grundgesetz – GG) and § 80.1 of the …”

BVerfGE 76, 1 Order of the Second Senate of 12 May 1987 – 2 BvR 1226/83, 101, 313/84 “Entry of aliens to join family members living in the Federal Republic” Waiting periods for the entry of aliens (Turkish and Yugoslavian nationals) to join family members living in the Federal Republic of Germany S. 245-286

„… Constitutional Court recognises that an alien’s duty to exit also affects his family members entitled to stay …” „… family unit in the Federal territory. By forgoing resort to the Federal Constitutional Court prior to a …” „… No. 17 BVerfGE 76, 1 of 12 May 1987 – 2 BvR 1226/83, 101, 313/84 – “Entry of aliens to join family …”

BVerfGE 108, 82 Order of the First Senate of 9 April 2003 – 1 BvR 1493/96, 1724/01 “Biological father case” Decision regarding the legal position of the (putative) natural, but not legal, father and the constitutionality of §§ 1600 and 1685 of the Civil Code and § 1711 of the Civil Code old S. 642-668

„… of the Civil Code, it is to be established by the Family Court upon an action by the man against the …” „… position of father if the protection of a family relationship between the child and its legal parents does …” „… not conflict with this. 2. The biological father, together with his child, is also a family of the …”

BVerfGE 24, 119 Order of the First Senate of 29 July 1968 – 1 BvL 20/63, 31/66, 5/67 “Adoption I case” Substitution of parental consent to adoption S. 51-74

„… : 1. The principles developed in Decisions of the Federal Constitutional Court (Entscheidungen des …” „… Basic Law (Grundgesetz – GG) do not apply if a court called to rule on an appeal on points of law or …” „… provision submitted for review to be valid. 2. “Separation from the family” within the meaning of Article …”

BVerfGE 57, 170 Order of the Second Senate of 5 February 1981 – 2 BvR 646/80 “Pre-trial detention II case (correspondence by letter)” Decision regarding the monitoring of letters during pre-trial detention; written correspondence between adult children and their parents S. 166-190

„… of the Basic Law in the family area. As the Federal Constitutional Court has ruled, the principle of …” „… representative: …, lawyer – against a) the order of the Düsseldorf Higher Regional Court (Oberlandesgericht) of …” „… Duisburg Regional Court (Landgericht) of 17 September 1979 – IX 6/79 –. RULING: 1. The order of the …”

BVerfGE 10, 59 Judgment of the First Senate of 29 July 1959 – 1 BvR 205, 332, 333, 367/58, 1 BvL 27, 100/58 “Case concerning parental power” Decision regarding the equality of the mother and the father (father’s final decision) S. 20-39

„… guardianship court would not be introduced as the primary decision-making entity of the family instead of the …” „… 1957 (Federal Law Gazette I p. 609) – referrals from the Local Court (Amtsgericht) of Cologne (referral …” „… decision of 24 July 1958 – 16 VII H 9642) and of the Local Court of Bensberg (referral decision of 13 …”

BVerfGE 105, 1 Order of the First Senate of 5 February 2002 – 1 BvR 105, 559/95, 457/96 “Post-marital maintenance case” Equivalence of family work and gainful employment in the assessment of post-marital maintenance S. 530-540

„… case” HEADNOTE: Decision regarding the equivalence of family work and gainful employment in the …” „… representative: …, lawyer – against the judgment of the Karlsruhe Higher Regional Court (Oberlandesgericht) of 30 …” „… – against the judgment of the Stuttgart Higher Regional Court of 31 January 1995 – 18 UF 361/94 – and …”

BVerfGE 104, 373 Judgment of the First Senate of 30 January 2002 – 1 BvL 23/96 “Double family names case” Exclusion of double family names S. 515-529

„… sections and has given to the family court, instead of to the guardianship court, jurisdiction for the …” „… parents do not make a designation within one month after the birth of the child, the family court shall …” „… No. 33 BVerfGE 104, 373 of 30 January 2002 – 1 BvL 23/96 – “Double family names case” HEADNOTE …”

BVerfGE 109, 256 Judgment of the First Senate of 18 February 2004 – 1 BvR 193/97 “Joint family name case” Unconstitutionality of § 1355.2 of the Civil Code, which prohibits spouses who wish to have a joint family name as their married name the selection of a married name acquired through previous conclusion of marriage S. 681-693

„… No. 42 BVerfGE 109, 256 of 18 February 2004 – 1 BvR 193/97 “Joint family name case” HEADNOTE: It is …” „… Higher Regional Court (Kammergericht) of 26 November 1996 – 1 W 7237/95 –, 2. indirectly against § 1355.2 …” „… of the Civil Code in the version of the Act Amending the Law on Family Names …”

BVerfGE 60, 79 Order of the First Senate of 17 February 1982 – 1 BvR 188/80 “Case concerning the separation of a child from its family” Separation of a child from its family even where the parents fail without being at fault as the strongest encroachment on parental rights, only if principle of proportionality is strictly observed S. 191-202

„… court may order that the child be placed in a suitable family or in an educational institution for the …” „… child from its family” HEADNOTES: It is constitutionally unobjectionable that children can be separated …” „… from the family in accordance with § 1666.1 sentence 1 in conjunction with § 1666a of the Civil Code as …”

BVerfGE 99, 300 Order of the Second Senate of 24 November 1998 – 2 BvL 26/91, 5, 6, 7, 8, 9, 10/96, 3, 4, 5, 6/97 “Civil servants’ children case” (state’s obligation to take care of civil servants’ welfare and family) Remuneration of civil servants and judges with more than two children in the period from 1988 to 1996 S. 432-449

„… maintenance (see C. III. 3. above). The non-constitutional courts are entitled to grant family-related salary …” „… – “Civil servants’ children case (state’s obligation to take care of civil servants’ welfare and family …” „… for the maintenance obligations incumbent on a civil servant by virtue of his or her family. Hence …”

BVerfGE 28, 324 Order of the First Senate of 27 May 1970 – 1 BvL 22/63, 27/64 “Marriage clause case” Incompatibility of the marriage clauses in the orphans’ pension in social pensions insurance with Article 6.1 of the Basic Law S. 75-99

„… the Hamburg Social Court of 30 October 1963 (10 – AN 1510/60) – 1 BvL 22/63; 2. of § 1267.1 sentence 2 …” „… submission order of the Lüneburg Social Court of 26 October 1964 (S 1 J – 35/64) – 1 BvL 27/64 –. RULING …” „… service. II. The submitting social courts consider it to be unconstitutional that the claim to an orphans …”

BVerfGE 66, 84 Order of the First Senate of 10 January 1984 – 1 BvL 5/83 “Maintenance priority case” Priority under the law of maintenance for the divorced spouse with care of children S. 220-230

„… marriage, who is in the care of the non-working wife. 222 The Family Court (Familiengericht) awarded the …” „… Article 1 no. 20 of the First Act for the Reform of Matrimonial and Family Law (Erstes Gesetz zur Reform …” „… Court (Schleswig-Holsteinisches Oberlandesgericht) of 4 January 1983 (8 UF 309/79) –. RULING: § 1582.1 …”

BVerfGE 55, 171 Order of the First Senate of 5 November 1980 – 1 BvR 349/80 “Custody case” Accommodation of the will of a child in a ruling on custody after divorce of the parents and ruling of the judge with jurisdiction on the question of the personal hearing of children under the age of 14 S. 156-165

„… the family courts with jurisdiction and in principle is removed from subsequent constitutional review …” „… ) – Custody Act –: (1) If the parents’ marriage is dissolved by divorce, the family court shall determine …” „… proceedings. In order to guarantee this, the family courts must shape their manner of proceeding in the …”

BVerfGE 97, 332 Order of the First Senate of 10 March 1998 – 1 BvR 178/97 “Graduated kindergarten contributions case” Kindergarten contributions graduated by family income S. 372-385

„… place, but specifically because of their family income. The Hesse Higher Administrative Court is alleged …” „… ” HEADNOTE: Kindergarten fees can in principle be graduated by family income. Order of the First Senate of 10 …” „… Administrative Court (Bundesverwaltungsgericht) of 20 February 1996 – BVerwG 8 NB 1.96 –, b) the order of the …”

BVerfGE 42, 95 Order of the Second Senate of 6 April 1976 – 2 BvR 61/76 “Pre-trial detention I case (visiting permission)” Permission for spouses and children of pre-trial detainees to visit outside general visiting days S. 122-126

„… permission)” HEADNOTE: Protection of marriage and the family also takes on particular significance in …” „… ., – authorised representative: …, lawyer –, 2. of Mrs. M. against the order of the Essen Regional Court …” „… order of the Essen Regional Court of 3 December 1975 – 32 Js 322/74 (26 Qs 68/75) – and the order of the …”

BVerfGE 106, 166 Order of the First Senate of 29 October 2002 – 1 BvL 16, 17/95, 16/97 “Case involving the advantage acquired through additional counted children” Decision regarding the equal treatment of different forms of family under the law on child benefit S. 577-590

„… the Implementation of Family-Law Decisions of the Federal 589 Constitutional Court (Gesetz zur …” „… forms of family under the law on child benefit. Order of the First Senate of 29 October 2002 – 1 BvL 16 …” „… ) – suspension of proceedings and submission orders a) of the Magdeburg Social Court (Sozialgericht) of 31 May …”

BVerfGE 51, 386 Order of the First Senate of 18 July 1979 – 1 BvR 650/77 “Expulsion case” Expulsion of a foreign national convicted of a criminal offence who is married to a German woman and has a legitimate child with her S. 127-137

„… : …, lawyer – against (a) the order of the Federal Administrative Court (Bundesverwaltungsgericht) of 9 June …” „… 1977 – BVerwG I B 70.77 –, (b) the judgment of the Higher Administrative Court (Oberverwaltungsgericht …” „… the Cologne Administrative Court (Verwaltungsgericht) of 30 October 1974 – 5 (4) K 2521/73 –, (d) the …”

BVerfGE 82, 6 Order of the First Senate of 3 April 1990 – 1 BvR 1186/89 “Unmarried civil partner as tenant case” Unmarried civil partner of a deceased tenant as “another family member” within the meaning of § 569a.2 sentence 1 of the Civil Code S. 311-319

„… Regional Court (Landgericht) of 11 August 1989 – 11 S 398/87 –. RULING: The constitutional complaint is …” „… the unmarried civil partner of the deceased tenant has been regarded as “another family member” within …” „… spouses and other family members enter the tenancy arrangement under certain preconditions, regardless of …”

BVerfGE 23, 258 Order of the First Senate of 7 May 1968 – 1 BvR 133/67 “Duty to promote families case” Decision on the duty of the state to promote families S. 45-50

„… – GG). Order of the First Senate of 7 May 1968 pursuant to § 24 of the Federal Constitutional Court Act …” „… representative: …, lawyer – against the judgment of the Federal Social Court (Bundessozialgericht) of 25 November …” „… Establishment of Family Equalisation Funds – Child Benefit Act (Gesetz über die Gewährung von Kindergeld und die …”

BVerfGE 117, 202 Judgment of the First Senate of 13 February 2007 – 1 BvR 421/05 “Secret paternity test case” Decision regarding the right of the legal father to know that his child is biologically his and the obligation of the legislature to make available a suitable procedure S. 759-778

„… child she gives birth to, may contest the paternity before the Family Court. Under 1600b.1 of the Civil …” „… proceedings, the Family Court dismissed the suit. The court held that the action was unfounded, since the …” „… evidence in family-court proceedings, in violation of the child’s right of personality. As has been shown …”

BVerfGE 99, 216 Order of the Second Senate of 10 November 1998 – 2 BvR 1057, 1226, 980/91 “Equalisation of family burdens case” Exclusion of parents living in marital community from tax deduction of childcare costs as an extraordinary expense resulting from gainful employment and from granting of the household allowance S. 402-419

„… No. 27 BVerfGE 99, 216 of 10 November 1998 – 2 BvR 1057, 1226, 980/91 – “Equalisation of family …” „… prohibits placing marriage and the family on a worse footing in comparison with other partnerships and …” „… by income tax as a necessary element of the minimum family income (see Decisions of the Federal …”

Index S. 937-956

„… contribution procedure 339, 347, 508 contributory capacity principles 500 convict 177 counsel, court-appointed …” „… , 725-726, 811, 833 – adoptive children 304 – adoptive family 287, 289-291, 294 – adoptive parents 304 …” „… , 276, 282 · entry-limiting effect 274-275 · entry-limiting measures 274 · to join family members in the …”

BVerfGE 127, 132 Order of the First Senate of 21 July 2010 – 1 BvR 420/09 “Case regarding custody rights of fathers of children born out of wedlock” Decision regarding the parental right of the father of a child born out of wedlock; incompatibility of § 1626a.1 no. 1 and § 1672.1 of the Civil Code with Article 6.2 of the Basic Law S. 826-851

„… proviso that the Family Court, on the application of one parent, transfers parental custody or part …” „… proviso that the Family Court, on the application of one parent, transfers parental custody or part …” „… approval of the mother, may apply for the Family Court to transfer to him alone the parental custody or …”

BVerfGE 107, 205 Judgment of the First Senate of 12 February 2003 – 1 BvR 624/01 “Family insurance case” The constitutionality of family insurance (§ 10 of the Fifth Book of the Code of Social Law) S. 633-641

„… No. 39 BVerfGE 107, 205 of 12 February 2003 – 1 BvR 624/01 – “Family insurance case” HEADNOTE …” „… family insurance. Judgment of the First Senate of 12 February 2003 on the basis of the oral hearing of 20 …” „… . directly against a) the order of the Federal Social Court (Bundessozialgericht) of 25 January 2001 … –, b …”

BVerfGK 4, 339 Order of the Third Chamber of the First Senate of 28 December 2004 – 1 BvR 2790/04 “Görgülü II case” Arbitrary review of an unappealable arrangement for access – binding effect of a decision of the European Court of Human Rights – weighing of consequences with regard to contact in the form of access S. 714-723

„… Family Matters) reversed these decisions in the year 2001. Thereupon, the European Court of Human Rights …” „… , FamRZ 2003, pp. 1306-1307; Naumburg Higher Regional Court (First Family Senate), Justiz-Ministerialblatt …” „… the Federal Constitutional Court Act in the version promulgated on 11 August 1993 (Federal Law Gazette …”

BVerfGE 53, 224 Judgment of the First Senate of 28 February 1980 – 1 BvL 136/78, 1 BvR 890/77, 1300, 1440/78, 32/79 “Divorce law case” Dissolution of marriage according to the new law because of breakdown of marriage – also irrefutably presumed after three-year separation –; application to “prior marriages”; hardship clause S. 138-155

„… themselves of the services of a marriage guidance agency. The family court must decide on the divorce and on …” „… assigned the proceedings to the family court after entry into force of the First Marriage Law Reform Act …” „… refutable presumption, the family courts could be forced by the party opposing divorce to penetrate the …”

BVerfGE 121, 69 Judgment of the First Senate of 1 April 2008 – 1 BvR 1620/04 “Parental duty of contact case” Decision regarding the compulsory enforcement of an adjudged duty of contact pursuant to § 1684.1 of the Civil Code S. 804-825

„… have contact with their child, but also have an obligation to have such contact. Family courts are …” „… Family Court may determine the scope of the right of contact and elaborate the details of how it should …” „… be exercised, including in relation to third parties. … (4) The Family Court may restrict or exclude …”

BVerfGE 103, 89 Judgment of the First Senate of 6 February 2001 – 1 BvR 12/92 “Marriage covenant case” Judicial review of agreements in a covenant of marriage concluded with a pregnant woman prior to the conclusion of marriage S. 475-490

„… Family Court over and above this (§ 1587o.2 sentences 1 and 3 of the Civil Code). The contractual …” „… the judgment of the Stuttgart Higher Regional Court (Oberlandesgericht) of 28 November 1991 – 16 UF …” „… 280/91 –. RULING: 1. The judgment of the Stuttgart Higher Regional Court of 28 November 1991 – 16 UF …”

BVerfGE 103, 242 Judgment of the First Senate of 3 April 2001 – 1 BvR 1629/94 “Long-term care insurance case” Long-term care insurance contributions for childcaring and child-raising members of social longterm care insurance S. 491-514

„… of social long-term care insurance (§ 54.2 of the Eleventh Book of the Code of Social Law). Family …” „… members are insured free of contributions for the duration of family insurance in accordance with § 25 of …” „… the children, and like them is covered by family insurance. The complainant objects to the …”

BVerfGE 61, 358 Judgment of the First Senate of 3 November 1982 – 1 BvL 25, 38, 40/80, 12/81 “Joint custody case” Decision regarding the exclusion of the joint custody of divorced parents S. 203-219

„… Code (1) If the parents’ marriage is dissolved by divorce, the family court shall determine which …” „… family court being obliged according to the relevant procedural provisions in any case to hand down a …” „… Constitutional Court for review of the constitutionality of § 1671.4 sentence 1 of the Civil Code. The family …”

BVerfGE 99, 145 Order of the Second Senate of 29 October 1998 – 2 BvR 1206/98 “Hague Child Abduction Convention case” Hague Child Abduction Convention; accommodation of the best interests of the child in the special case of converse child return applications S. 386-401

„… appointing a curator ad litem to defend the interests of the children already in family court proceedings if …” „… will of the father, the complainant re 1. The Local Court (Amtsgericht) – Family Court – thereupon …” „… courts were said to have ignored a partial rights of custody ruling of a German family court on the right …”

BVerfGE 111, 307 Order of the Second Senate of 14 October 2004 – 2 BvR 1481/04 “Görgülü I case” Obligation to take into account the European Convention on Human Rights and the decisions of the European Court of Human Rights, and the limits of such obligation, in the context of the principle that the judge is bound by statute and law (Article 20.3 of the Basic Law) S. 694-713

„… foster family and was clearly happy there. The order of the Local Court on access, which was admissibly …” „… family-law cases relating to the right of access, the Higher Regional Court is not bound in its particular …” „… and Fundamental Freedoms and the decisions of the European Court of Human Rights (ECHR) as part of a …”

BVerfGE 107, 150 Judgment of the First Senate of 29 January 2003 – 1 BvL 20/99, 1 BvR 933/01 “Case regarding parental custody for children born out of wedlock” § 1626a of the Civil Code is currently compatible with Article 6.2 and 6.5 of the Basic Law, lack of a transitional arrangement for old cases is unconstitutional S. 611-632

„… of 1998, the father once more applied to the family court accordingly. He pointed out that he …” „… , the family court suspended the proceedings and submitted the question to the Federal Constitutional …” „… Federal Government, by the Federal Court of Justice, by the Academic Association for Family Law …”

BVerfGE 84, 168 Order of the First Senate of 7 May 1991 – 1 BvL 32/88 “Case regarding custody rights for children born out of wedlock” Joint parental custody for children born out of wedlock S. 320-335

„… .) I p. 1061) – suspension of proceedings and submission order of the Hamburg Local Court (Amtsgericht …” „… the child. The first key changes were brought about by the Act to Standardise and Amend Family Law …” „… Provisions (Family Law Amendment Act) (Gesetz zur Vereinheitlichung und Änderung familienrechtlicher …”

BVerfGE 87, 1 Judgment of the First Senate of 7 July 1992 – 1 BvL 51/86, 50/87, 1 BvR 873/90, 761/91 “Rubble women case” Allowance of child-raising periods in the statutory pensions insurance of wage-earners and salaried employees (“rubble women”) S. 336-354

„… ) – suspension of proceedings and submission order of the Detmold Social Court (Sozialgericht) of 4 July 1986 …” „… : …, lawyers – a) directly against aa) the judgment of the Federal Social Court (Bundessozialgericht) of 29 …” „… ) directly against the judgment of the Federal Social Court of 29 November 1990 – 5 RJ 36/88 –, b) … – 1 BvR …”

BVerfGE 22, 93 Order of the First Senate of 7 June 1967 – 1 BvR 76/62 “Maintenance I case” Taking Article 6.1 of the Basic Law into account in determining the maintenance of spouses living apart S. 40-44

„… - Fuerth Regional Court (Landgericht) of 15 December 1961 – 11 S 148/61. RULING: The constitutional …” „… monthly payment of DM 300; the Nuremberg-Fuerth Regional Court, at second instance, ordered … the husband …” „… complainant. In the statement of reasons for its decision, the Regional Court stated in essence that although …”

BVerfGE 99, 246 Order of the Second Senate of 10 November 1998 – 2 BvL 42/93 “Minimum child income case” Minimum child income for the 1987 assessment period to be allowed for in income tax S. 420-431

„… Ministry for Family Affairs and Senior Citizens, the case-law of the Federal Administrative Court …” „… : Art 6.1 of the Basic Law (Grundgesetz – GG) requires that with regard to the taxation of a family the …” „… minimum income of all family members is to be exempt from tax: a) Here, the minimum income defined by the …”

BVerfGE 113, 88 Judgment of the First Senate of 7 June 2005 – 1 BvR 1508/96 “Parental support case” Constitutional limits where children are required by the social assistance funding agency to pay support for their parents as the result of an assigned right S. 732-746

„… : …, lawyer – against the judgment of the Duisburg Regional Court (Landgericht) of 3 May 1996 – 24 (4) S …” „… 285/95 –. RULING 1. The judgment of the Duisburg Regional Court of 3 May 1996 – 24 (4) S 285/95 …” „… . The judgment is reversed and the matter is referred back to the Regional Court. … 732 EXTRACT FROM …”

BVerfGE 105, 313 Judgment of the First Senate of 17 July 2002 – 1 BvF 1, 2/01 “Civil Partnerships Act case” Correction of an adopted bill; right of approval of the Bundesrat; compatibility with Articles 6.1, 3.1, 3.3 sentence 1 and 14.1 of the Basic Law S. 541-576

„… family-law provisions that give the parent no custody, or the family-court decisions that award sole custody …” „… Civil-Court Protection in the case of Violence and Stalking and to Facilitate the Transfer of the Matrimonial …” „… . For this purpose, the registered civil partnership has been created as a family-law institution for a …”

BVerfGE 31, 58 Order of the First Senate of 4 May 1971 – 1 BvR 636/68 “Spaniard case” Validity of fundamental rights (here: Article 6.1 of the Basic Law) for German international private law; freedom of marriage (act of marriage between a Spanish man and a German woman divorced by a German court) S. 100-121

„… a German court is denied exemption from furnishing a certificate of no impediment because Spanish …” „… . – authorised representative: …, lawyer – against the order of the Hamm Higher Regional Court (Oberlandesgericht …” „… ) of 3 September 1968 – 15 VA 4/67 –. 100 RULING: 1. The order of the Hamm Higher Regional Court of 3 …”

BVerfGE 96, 56 Order of the First Senate of 6 May 1997 – 1 BvR 409/90 “Case concerning information about father’s identity” Decision regarding the obligation of a mother to provide information to her adult illegitimate child about the identity of the biological father S. 364-371

„… Basic Law (Grundgesetz – GG), nor under Article 6.5 of the Basic Law. 2. The courts have substantial …” „… Gesetzbuch – BGB) invoked by the court in the present case. Order of the First Senate of 6 May 1997 – 1 BvR …” „… representatives: …, lawyers – against the judgment of the Münster Regional Court (Landgericht) of 21 February 1990 …”

BVerfGE 72, 122 Order of the First Senate of 18 June 1986 – 1 BvR 857/85 “Withdrawal of custody rights case” Safeguarding the status of children as holders of fundamental rights in the proceedings (supplementary curator) S. 231-244

„… First Senate of 18 June 1986 pursuant to § 24 of the Federal Constitutional Court Act …” „… : …, lawyers – against a) the order of the Hamm Higher Regional Court (Oberlandesgericht) of 19 June 1985 – 15 …” „… W 175/85 –, b) the order of the Bochum Regional Court (Landgericht) of 19 March 1985 – 7 T 366/84 …”

BVerfGE 118, 45 Order of the First Senate of 28 February 2007 – 1 BvL 9/04 “Childcare maintenance case” Incompatibility of the different assessment of childcare maintenance because of the care or bringing up of children born in and out of wedlock (§§ 1570 and 1615 l.2 sentence 3 of the Civil Code) with Article 6.5 of the Basic Law S. 779-803

„… rulings in the family courts and after entry into force of the new regulation to a delay in processing the …” „… – suspension of proceedings and submission order of the Hamm Higher Regional Court (Oberlandesgericht) of 16 …” „… Marriage and Family Law (Erstes Gesetz zur Reform des Eheund Familienrechts) of 14 June 1976 (Federal Law …”

BVerfGE 108, 351 Order of the First Senate of 7 October 2003 – 1 BvR 246/93, 2298/94 “Case relating to the splitting advantage in case of spousal maintenance” Unconstitutionality of the consideration of fiscal advantages from a new marriage of a person obliged to provide maintenance in the assessment of the maintenance payable to the former spouse S. 669-680

„… Braunschweig Higher Regional Court (Oberlandesgericht) of 13 January 1993 – 1 UF 78/92 – 1 BvR 246/93 –, II. 1 …” „… Stuttgart Higher Regional Court of 27 October 1994 – 16 UF 181/94 –, b) the judgment of the Waiblingen Local …” „… Court (Amtsgericht) of 21 April 1994 – 11 F 72/94 – 1 BvR 2298/94 –. RULING: I. 1. In the proceedings 1 …”

BVerfGE 107, 104 Judgment of the Second Senate of 16 January 2003 – 2 BvR 716/01 “Parental involvement in proceedings under the Juvenile Court Act case” Exclusion of a father with parental rights from proceedings before a juvenile court which involve his son (§ 51.2 of the Juvenile Court Act) S. 591-610

„… decisions which do not permit court-appointed counsel to be assigned to his son. This also applies to the …” „… under the Juvenile Court Act case” HEADNOTES: 1. It is part of the parental responsibility, protected by …” „… parents to participate early on in criminal proceedings before a juvenile court. Provisions which deprive …”

BVerfGE 115, 259 Order of the First Senate of 28 March 2006 – 1 BvL 10/01 “Maternity protection period case” Incompatibility with Article 6.4 of the Basic Law of the employment promotion law in force between 1998 and 2002, according to which periods in which mothers interrupted employment requiring the payment of social security contributions because of the prohibitions under maternity protection law were not taken into account in the calculation of the qualifying period for receiving unemployment benefit S. 747-758

„… Federal Social Court (Bundessozialgericht) of 20 June 2001 – B 11 AL 20/01 R –. RULING: 1. It was …” „… protection under Article 6.4 of 748 the Basic Law (see Decisions of the Federal Constitutional Court …” „… Court (Bundessozialgericht), which stayed the proceedings and submitted to the Federal Constitutional …”

Index of Statutes S. 957-962

„… – § 3.3 sentence 1 of the 577 Federal Constitutional Court Act – § 31.1 of the 704 – § 34a.2 of the 286 …” „… the 100 ‑101, 103, 115-116, 120 J Juvenile Court Act – § 51 of the 594 – § 51.2 of the 592, 598 …” „… , 602-603, 606 – § 67 of the 593 – § 69.2 of the 607 L Law on Family Names Act 515, 517, 519, 681, 684 …”

BVerfGE 101, 361 Judgment of the First Senate of 15 December 1999 – 1 BvR 653/96 “Caroline of Monaco II case” Publication of photographs from the daily and private life of prominent persons – Caroline of Monaco S. 450-474

„… present in a courtroom, for instance, is the feature that distinguishes the public in court proceedings …” „… representatives: …, lawyers – 450 against a) the judgment of the Federal Court of Justice (Bundesgerichtshof) of …” „… 19 December 1995 – VI ZR 15/95 –, b) the judgment of the Hanseatic Higher Regional Court …”

Appendix The Basic Law for the Federal Republic of Germany S. 852-936

„… . [Marriage – Family – Children] (1) Marriage and the family shall enjoy the special protection of the state …” „… recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies …” „… on persons deprived of their liberty by the judgment of a court. [Compulsory military and alternative …”

doi.org/10.5771/9783845237534

Florian Heindler, Katharina Huber, Judith Schacherreiter - Liber Amicorum Bea Verschraegen

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Florian Heindler (ed.), Katharina Huber (ed.), Judith Schacherreiter (ed.)

Liber Amicorum Bea Verschraegen

Series: MANZ – Festschrift

Volume 2023

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Talia Einhorn Parenthood in Israeli Law S. 11-24

„… child’s mother. The Family Court held that, even though this case is not a case of surrogacy, since, under …” „… except by an order of the family court (§ 28A). A test made without a court order or made not in …” „… (Tel Aviv) 28519-02-10, Nevo (15 December 2011), in which the Family Court set aside a declaration of …”

Titelei/Inhaltsverzeichnis

„… Human RightsECJ = European Court of JusticeECtHR = The European Court of Human Rightsed = a) editor …” „… International LawHCJ = High Court of JusticeHeb = Hebrewibid = ibidemNevo = Nevo legal databaseNo = Number op …” „… Recht, Luchterhand-Verlag/München (1997) 140 Druck-seiten.4. Council of Europe and Family Law, in W …”

Olga A. Khazova Interim Measures under the Third Optional Protocol to the UNCRC and the Concept of ,Prompt Return‘ of the 1980 Hague Convention S. 93-114

„… / (ed) Scherpe, ‘European family law I’ (2016) 143–208 at 154–155; McEleavy, The European Court of Human …” „… wrongful removal. Two weeks, later the father initiated proceedings before the Irish High Court.The author …” „… related to non-refoulement, age determination, administra-tive detention of migrant children, family …”

Matthias Lehmann Scheibchenweise internationale Rechtsetzung – Die Bemühungen der Haager Konferenzum die gerichtliche Zuständigkeit und die Anerkennung und Vollstreckung von Urteilen in Zivil- oder Handelssachen S. 133-148

„… Support and Other Forms of Family Maintenance, in russischer Sprache, in “Application of the 1980 Hague …” „… . ___ (2017), 137 S. Ct. 1549; Bristol- Myers Squibb Co. v. Superior Court of California, San Francisco County …” „… zwischen den Haager Übereinkommen und der Brüssel Ia-VO vor diesem Hinter-grund Weller, Choice of Court …”

doi.org/10.5771/9783214253233

Stephan Beichel-Benedetti, Constanze Janda - Hohenheimer Horizonte

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Stephan Beichel-Benedetti (ed.), Constanze Janda (ed.)

Hohenheimer Horizonte

2018

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Kees Groenendijk, Tineke Strik Family Reunification in Germany, Netherlands and the EU since 2000. S. 355-381

„… the courts”.27 Therefore, despite the national reflexes described previously, the norms of the Family …” „… Family Reunification in Germany, Netherlands and the EU since 2000. Reciprocal Influence and the …” „… regarding family reunification in Germany and the Netherlands influence developments in the other state …”

Anuscheh Farahat, Nora Markard Flüchtlingssteuerungsrecht: Auf der Suche nach der verlorenen Souveränität S. 323-354

„… release/eu-turkey-deal-deportation-of-homosexual-syrian-threatened-by-is-loomin g/ ; Kanzlei Prakken d’Oliveira, Syrian family submits complaint at European Court Human Rights …” „… ), http://www.prakkendoliveira.nl/en/news/syrian-family-submits-complaint-at-euro pean-court-human-rights-court-about-expulsion-under-eu-turkey-deal/. S.a. PACE Resolution 2109 …” „… Court about expulsion under EU-Turkey deal (21.4.2017 …”

doi.org/10.5771/9783845278797

Dagmar Coester-Waltjen, Volker Lipp, Donovan W.M. Waters - Liber Amicorum Makoto Arai

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Dagmar Coester-Waltjen (ed.), Volker Lipp (ed.), Donovan W.M. Waters (ed.)

Liber Amicorum Makoto Arai

2015

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Sieh-chuen Huang Adult Guardianship and Care in Taiwan: An Analysis on Decisions relating to Compensation for Guardian S. 375-392

„… the parent fifth, and finally, the person recommended by the family council and approved by the court …” „… instead of the family council, the court has become the only authority to oversee the guardian. This …” „… occupational training for persons with mental disabilities and lack family networks, the court designated the …”

Cheolung Je Korean Guardianship under the Influence of the UN Convention on the Rights of Persons with Disabilities S. 393-410

„… competent family court for cancellation of bigamous marriage and marriage between relatives (Korean Civil …” „… kinship are eligible to apply to a competent family court for the cancellation of adoptions (Korean Civil …” „… psychologist report was mandatorily required. A competent family court18 then declared that the person in the …”

Michael Ganner, Maria Isolina Dabove Developments in Austrian and Argentine Guardianship Law S. 318-340

„… of the courts family members can incapacitate someone by placing that person under guardianship …” „… appointed by court and steps in for the ward in certain matters that are determined by the judge in advance …” „… , Austrian law in general prefers the “family model”. That means that primarily a family member is appointed …”

Donovan Waters The Trust in the International Scene S. 705-723

„… or family affairs. There is no domestic trust in Italy, but the courts, following the advocacy of the …” „… Asian jurisdictions, of the individual and the family from employing the local domestic trust in private …” „… trust. Largely because providing for the welfare of one’s family members is itself such a purpose, the …”

Lusina Ho Unleashing the Potential of Trust Law for the Elderly: the Hong Kong Challenge S. 363-374

„… main parts: first, it takes stock of the primary usage of private family trust service in Hong Kong …” „… for courses. Private family trusts in Hong Kong As a former British colony, Hong Kong has inherited …” „… its trust laws and principles, and through this heritage the private family trust, from England. The …”

Denzil Lush The Evolution of the Statutory Will Jurisdiction S. 498-516

„… family member, and the court approved a statutory will in order to ensure that the assailant did not …” „… someone to sign on behalf of the disposing person, who lacks testamentary capacity. Judges of the Court of …” „… , which conferred on the court the power to make a statutory will; • the ‘substituted judgment’ approach …”

Kees Blankman The Yokohama Declaration and maximizing autonomy in the Netherlands S. 115-124

„… require the professional caregiver to request a court-appointed mentor if the client is or will be …” „… of attorney and court-ordered guardianship measures is not a hard one. In the future, a coming …” „… law of a power of attorney and a court-appointed supervisor.13 11 See Van den Broeck …”

A. Kimberley Dayton, Rebecca C. Morgan An Essay on Reform: Guardianship in the United States S. 192-209

„… surrounding areas…The court should explore how family, friends, and community resources such as Meals on …” „… court-appointed guardian …50 Another case, this one from the District of Columbia, also illustrates how the …” „… aspect of probate and/or family law, is strictly an area of state regulation. Although state guardianship …”

Anita Smith Should guardianship practices be abolished? S. 609-631

„… , particularly interpreta- 30 Norway, p1-2. Anita Smith 622 tions given by the European Court of Human Rights.31 …” „… could continue to smoke within acceptable boundaries.42 • HDH’s family arranged his admittance at 90 …” „… over 27 years should be prevented from seeing him. A guardian was appointed to override the family …”

David English Amending the UGPPA to Implement the Third National Guardianship Summit S. 247-273

„… US states, the court-appointed manager is referred to as either a “guardian of the person” or …” „… the court or court-designated third party be- 5. 74 UGPPA (1997) § 316(c) (guardians); § 411(d …” „… guardian shall seek review by a court or other court-designated third party with no conflict of interest …”

Dagmar Brosey Supported Decision-making and the German Law of BETREUUNG. A legal perspective on supported and substitute decision-making regarding Art. 12 CRPD S. 125-141

„… attorney is also possible for family and friends, even for court and administrative procedures12 …” „… mental capacity to act. The appointment of a Betreuer is made by a specialized court and has no influence …” „… and not of a status as a result of a court decision. The adult is presumed to have capacity and the …”

Chih-Cheng Wang Convergence or Divergence: A Comparative Study on Trustee’s Fiduciary Duties among Japan, Taiwan and the United States S. 681-704

„… possible use of family trusts and individual trusts. There are some criticisms that Japan’s new Trust Act1 …” „… that the difference of law rules between the individual or family trust and the business trust have …” „… , there were divided opinions in Taiwan among courts. Some courts held that the banks did fulfill the …”

doi.org/10.5771/9783845262017

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