The personal hearing or personal inspection of the child required by Section 159 Paragraph 1 FamFG is a procedural principle with constitutional status that protects the child’s position as a subject in the procedure, his fundamental rights and his right to be heard. The right to be heard guaranteed in Article 103 Paragraph 1 of the Basic Law is, as the BVerfG explained in its decision of October 31, 2023, “in a functional connection with the guarantee of legal protection and the state’s duty to provide justice. The individual should not be a mere object of judicial review decision, but rather to have their say about a decision that affects their rights in order to be able to influence the procedure and its outcome as a subject. 103 Para. 1 GG gives everyone involved in legal proceedings the right to comment on the facts of the case and the legal situation, as well as to submit applications and make statements. Accordingly, the granting of a legal hearing and a court decision only requires such facts and evidence on which the parties involved were able to comment beforehand. The court’s duty to take note of and take into account statements made by those involved corresponds to the right to express themselves. The right to expression is closely linked to the right to information, which is also rooted in Article 103 Paragraph 1 of the Basic Law. A granting of a fair hearing that satisfies the constitutional requirements requires that those involved in the proceedings be able to recognize which facts may be relevant to the decision. You must be able to inform yourself about the entire subject matter of the procedure with due care. In this context, the courts are responsible for informing those involved of everything that is essential to the proceedings.
With this in mind, the child’s will cannot be derived from the statements of those involved, but must be determined in particular by hearing the child personally. The child’s communication can definitely influence the decision to be made because it gives them the opportunity to bring their own perspective into the family court proceedings. Only in this way will the obligation to be heard as part of the official investigation in accordance with Section 26 FamFG be satisfied and the necessary protection of fundamental rights taken into account through the design of the procedure.
