Adopted child has claim against natural mother for information about identity of natural father

Year of issue 2022
Date of issue 19.01.2022

Decision dated 19 January 2022 - XII ZB 183/21

The Twelfth Civil Panel of the Federal Court of Justice (BGH, Bundesgerichtshof), responsible for matters including family law, has ruled that a natural mother has a duty in principle to give her child information about the identity of its natural father, even after the child has been adopted.

The underlying case related to an applicant born in 1984 who demanded information from her natural mother, the respondent, concerning the identity of her natural father. The respondent, who grew up in problematic family circumstances, had just turned 16 at the time of the birth. She only noticed the pregnancy in the seventh month, and left school secondary school (Hauptschule), where she was attending year seven, without a school-leaving certificate. After the birth, she lived with the applicant, first in a mother and baby home and later in a girls’ flat-sharing community, before the applicant was adopted by a married couple. Proceedings for the establishment of paternity in 1985 were unsuccessful, as was an out-of-court paternity test taken by another man. At the end of 2003, a meeting between the applicant and the respondent took place, arranged by the youth welfare office. After the applicant unsuccessfully called on the respondent to tell her the name of her natural father in March 2018, she has now demanded this information in court proceedings. The Local Court rejected this application on the grounds that it was impossible for the respondent to give her this information. Upon the applicant’s complaint, the Higher Regional Court amended this decision, placing the respondent under an obligation, in accordance with the application, to provide the full names and addresses of all the men with whom she had had sexual intercourse during the statutory period of conception.

The Federal Court of Justice dismissed the complaint on points of law lodged against this ruling by the respondent.

The basis for the claim to the desired information is the provision of section 1618a of the German Civil Code (Bürgerliches Gesetzbuch, BGB) according to which parents and children owe each other assistance and respect. Although the provision does not specify any sanctions in case of breach, parents and children may derive reciprocal legal claims from it. The state has a constitutional obligation deriving from the general right of personality to take due account of the need to protect individuals against the withholding of available information about their own parentage in the arrangement of legal relations between the persons concerned. This must be taken into account when interpreting section 1618a BGB, especially because the legislator did not set any explicit standards for a right to obtain information. Unlike the claim of a so-called ostensible father towards the child’s mother to obtain information about the identity of the child’s natural father, for which the Federal Constitutional Court (Bundesverfassungsgericht) rejected derivation from the principles of good faith (section 242 BGB) and demanded an explicit statutory basis, the issue here is not merely to enforce financial interests. Rather, the right to information strengthens a legal position of very considerable constitutional significance, namely the right to know one’s own parentage.

The fact that the respondent is no longer the applicant’s legal mother on account of the applicant’s adoption and the subsequent extinction of the legal parent-child relationship due to adoption on the basis of section 1755 (1) sentence 1 BGB is not an obstacle to the claim because the relationship involving an obligation to give information came about between the child and her mother prior to adoption. Were this to be seen differently, adoption would lead to an adopted child being unjustifiably disadvantaged with regard to the right to knowledge of their own parentage vis-à-vis children whose legal parent-child relationship with their natural mother continues to exist. In the present case, the respondent did not provide any significant aspects for consideration that would oppose her having an obligation to provide information; on the contrary, she did not dispute at any time the applicant’s right to information in principle. Thus, she did not invoke any specific concerns which, with regard to respect for her privacy, a right which is also constitutionally protected, could lead to denial of the existence of the right to information.

In simply stating that she could not remember any possible father, the respondent has not fulfilled her obligation to give information. She has also not demonstrated that it is impossible for her to fulfil her obligation even after making the enquiries that may reasonably be expected of her. The Higher Regional Court has listed a number of possible contact persons the respondent can address to obtain information concerning people who may potentially be the applicant’s natural father. These avenues of enquiry neither lack prospects of success, nor is it unreasonable for the respondent to pursue them.

Lower Courts:

Local Court Stuttgart decision dated 30 October 2019 (23 F 642/18)
Higher Regional Court Stuttgart decision dated 30 March 2021 (17 UF 52/20)

Relevant legal provisions:

Section 1618 a of the German Civil Code (Bürgerliches Gesetzbuch, BGB) Duty of assistance and respect

Parents and children owe each other assistance and respect.

Section 242 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) Performance in good faith

An obligor has a duty to perform according to the requirements of good faith, taking customary practice into consideration.