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OLG Hamm FamRZ 1993, 704

This case is first published in the German Law Archive courtesy of: Translated German Cases and Materials Under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz

Translated by Mr Raymond Youngs, Southampton Institute (Submitted by Judge Müller, OLG Hamm)


The plaintiff married couple and their adopted son, the former third plaintiff, sought compensation from the defendant town because of violation of official duty in connection with an adoption placement.


The appeal of the defendant is permissible, but unsuccessful.


The Landgericht was correct in accepting the plaintiffs’ claims for official liability against the defendant on the basis of § 839 of the BGB in combination with Art 34 of the GG and allowed the demands for payment and a declaration.

1. The appropriate officials who were involved in preparing and carrying out an adoption by the plaintiffs have negligently violated their official duties owed to the plaintiffs by not informing them that there was a suspicion that the child N, who was very disturbed, was mentally retarded.

a) It is necessary to proceed on the basis that the actions of the Youth Welfare Department in the area of adoption placement, even according to the legal situation in the years 1981 to 1983 (which is the relevant period here), are the exercise of public office in the sense of Art 34 of the GG [reference omitted]. Action in exercise of public office occurs if the real objective in the context of which the official is acting is part of the area of sovereign activity of a public body. There must also be an internal and external connection between this objective and the act (or omission) which causes the damage, so that the act (or omission) must also be regarded as belonging to this area of sovereign activity [reference omitted]. Such a connection exists for the actions of the Youth Welfare Department in the framework of adoption placement. According to § 2 (1) sentence 1 of the Adoption Placement Act in its 2nd July 1976 version [reference omitted] adoption placement is a task for the Youth Welfare Department (and for the State (Land) Youth Welfare Department). Adoption placement is bringing together children under the age of majority and persons who want to adopt a child (adoption applicants) with the object of adopting it as well as providing the evidence of adoption (§ 1 of the Adoption Placement Act). Leaving exceptions aside, the Youth Welfare Departments who have set up an Adoption Placement Office and the State Youth Welfare Departments have a placement monopoly (§§ 2 (1) sentence 2 and 5 (1) of the Adoption Placement Act). The actions of the Youth Welfare Department in the area of adoption placement are accordingly a public task, the purpose of which is to find appropriate and suitable parents who are prepared to adopt for a child who does not have the care of its natural parents. These actions are therefore to assist the young.

b) The employees of the Youth Welfare Department of the defendant acted contrary to their official duty because they neglected to inform the plaintiffs as adoption applicants about the suspicion of mental retardation due to brain damage which was known to them and not dispelled. The content and scope of the official duties of a public employee are determined by the provisions regulating the area of his tasks and duties, whether they are statutes, regulations, administrative provisions or individual directions in the context of employment; and from the kind of tasks to be carried out [reference omitted]. The duty to inform the plaintiffs about the suspicion which existed arose in the present case from the kind of tasks to be carried out by the officials within the framework of the adoption placement.

The Adoption Placement Act itself admittedly contains no express regulations which make it a duty of the Adoption Placement Office to inform the adoption applicants about the state of health of the child to be adopted. However, according to § 7 (1) sentence 1 of the Adoption Placement Act, the Adoption Placement Office must make without delay the enquiries which are necessary for preparing for a placement, and these must also extend to the state of health of the child. Admittedly the implementation regulations provided for in § 7 (2) of the Adoption Placement Act have not so far been made. But the Working Group of the State Youth Welfare Departments has worked out guidelines which at that time applied in the version of the 3rd edition of 1966 and which provided in para 2.22 that the physical as well as the mental and psychological state of health of the child was to be ascertained by a doctor experienced in these areas – if possible a paediatrician or a psychiatrist specialising in the young. Further, it says in para 2.23 (1) that an investigation by a specialist, if necessary even in-patient observation, was to be arranged if inquiries revealed that the child has educational difficulties, suspicion of illness or unexplained abnormalities. Even if these guidelines (which were replaced in the meantime by the “Recommendations of the Federal Working Group of State Youth Welfare Departments and Non-local Education Committees on Adoption Placement” – Version of the 28th November 1988) were merely for practical work assistance, and they therefore did not represent legal or administrative provisions, they nevertheless express what a proper individual adoption placement requires. This is that the adoption applicants should be able to decide to adopt a child in the knowledge of all important facts, so that a successful parent-child relationship which is free from anxiety can come into existence for the welfare of the child. § 9 (1) of the Adoption Placement Act which makes it a duty of the Adoption Placement Office to give detailed advice and support not only to the child and its natural parents but also to the adopters is in harmony with this. It follows from the duty of inquiry mentioned above (§ 7 (1) of the Adoption Placement Act) as well as from the duty of advice owed by the Adoption Placement Office (§ 9 (1) of the Adoption Placement Act) that the adoption applicants have a right to be notified of all the relevant circumstances affecting the child, and especially of suspicion of an illness [reference omitted]. The guidelines of the Working Group of the State Youth Welfare Departments, if and so far as they required that the state of health of the child was to be established by medical examination, therefore corresponded with these requirements. Admittedly the adoption of children with physical or mental peculiarities should also be facilitated. But that can only be considered if the adopters feel they are ready for this in the knowledge of all the circumstances and the consequences of their decision (para 2.23 (2) of the Guidelines).

c) The defendant’s officials knew of the suspicion of mental retardation on the basis of brain damage parentally or in early childhood.

That emerges clearly from the memorandum by the witness N dated 7th October 1981, in which the possibility of mental retardation on the basis of inborn brain damage was expressly taken into consideration. Even the official doctor, Dr M, who had examined the child, regarded the mental retardation as so significant that, according to the memorandum of the witness M referred to above, she thought a “very meticulous examination” in a hospital was necessary. Arrangements were consequently made to examine the child in the children’s clinic B; but this did not happen. But the doctors at the children’s clinic at the St V hospital in P, according to their letter of the 11th November 1981, of which the defendant’s Youth Welfare Department received a copy, diagnosed not only wildness and behavioural disturbance in the child but also the suspicion of mental retardation, which could have meant that this retardation had its cause in brain damage. The appropriate officials could not regard this suspicion of mental retardation as dispelled by the interim report of the 8th December 1981 by the witness T. The only thing which emerged from this report was that a particular positive development had occurred on the basis of psychotherapeutic treatment by the witness T. No grounds for saying that N had been subjected to a detailed specialist examination were revealed by the interim report. T made no comment at all in it on the question of mental retardation based on brain damage. From the outcome of the evidence taken by the Senate, it is not possible to proceed on the basis that the witness T (who in any case was not a neurologist or a psychiatrist, but a psychologist) explained to the witness M (as it says in her memorandum of the 4th December 1981) that the child had a normal intelligence and no mental handicap could be established. The witnesses T and M who were heard on this issue made contradictory statements. The witness T denied having expressed himself in this way to the witness M. But even if T had so expressed himself to the witness M, as she describes, the employees of the defendant cannot reassure themselves by saying that the suspicion of mental retardation was dispelled. This is because the statement by T did not in any case mean anything more than that he – as a psychologist – had not established any such damage.

d) The employees of the defendant did not tell the plaintiffs about the suspicion which existed of mental retardation.

The witness M has stated that she did not speak about this with the plaintiffs. According to her testimony, the witness Ü had had nothing to do with the adoption placement. The claim by the defendant that the plaintiffs had been advised in detail by the witness T as well as by the Adoption Placement Office is unsubstantiated, as it cannot be deduced from this allegation whether the plaintiffs were also informed about the suspicion which existed of mental handicap. According to the account of the defendant’s representative in the hearing before the Senate of the 15th May 1992, nothing was known to the witness B who was summoned to this hearing of the suspicion of mental handicap, so she could not explain about this to the plaintiffs. As the witness M was at least informed by the defendant’s Youth Welfare Department about the suspicion which existed, she would have had to take care that the plaintiffs were correctly, clearly, unequivocally and completely informed about this suspicion. That did not happen.

2. This duty to inform was also owed to the plaintiffs as third parties in the sense of § 839 (1) sentence 1 of the BGB. This follows – for the reasons given more precisely above – from the fact that the adoption applicants should have been able to make their decision to adopt in the knowledge of all the important facts and that this is not ensured if such facts – even if it is only a question of suspicion of a serious illness – are not communicated to them.

3. The employees of the defendant culpably, ie negligently, did not inform the plaintiffs about the suspicion which existed of the child N being mentally handicapped, although they must have realised that the knowledge of this suspicion was of fundamental importance for the plaintiffs as adoption applicants. They ought not, without arranging a detailed specialist examination to make matters clear, to have proceeded on the basis that the suspicion was dispelled by the interim report of the witness T, a qualified psychologist, or in some other way. Without satisfying themselves in this respect, they ought not to have relied on T informing the plaintiffs about a suspicion of mental retardation. It is true that the employees of the Youth Welfare Department cannot be assumed to have the knowledge of a doctor or a psychologist. But they had medical statements before them about the child N, from which it was to be inferred that there was suspicion of mental retardation. They ought to have informed the plaintiffs about this, so that they could then freely decide whether they wanted nevertheless to adopt the child.

4. The violation of official duty was also the cause of the harm which is the subject of the claim.

a) It has to be asked here what course things would have taken if the official had acted in accordance with his duty and what the financial position of the injured parties would have been if the official had not committed the breach of official duty, but had acted in accordance with it [reference omitted]. This question is to be decided in accordance with § 287 of the Civil Procedure Code. If – as here – the violation of official duty consists in an omission, then there is only a causal connection with the harm if action according to duty would have prevented the occurrence of the harmful consequences [reference omitted].

b) If the appropriate officials had informed the plaintiffs about the suspicion which existed, they would not have adopted the child N. This follows from the fact that the plaintiffs had stated with sufficient clarity in the application form that they did not want to adopt a mentally handicapped child. This is not changed by the fact that they had made this declaration subject to limitations which did not affect its essential content.

c) It would certainly have been possible for the plaintiffs, after receiving information about the suspicion of mental retardation, to have made the adoption dependent on a prior detailed neurological or psychiatric examination. Such an examination could not be expected to have dispelled the suspicion which existed, in the face of the child’s evident behavioural symptoms. Such an examination would either have – as in the case of the later examinations in the children’s hospital O and in the University clinic – revealed the presence of childhood brain damage or would have had an outcome which was admittedly unclear, but which would not have dispelled the suspicion. But even in the latter case, the plaintiffs would have refrained from adopting the child N because of the risk of adopting a mentally handicapped child. As they did not want to adopt such a child, they would also not have taken the risk of possibly having to bear the responsibility and burdens of such a child.

5. a) The plaintiff can claim from the defendant compensation for her loss of earnings in the undisputed sum of 30,610.44 DM. The plaintiffs have, without being contradicted, argued that the plaintiff giving up her job had been a prerequisite for the adoption placement. According to the testimony of the plaintiff, which likewise remained uncontradicted, when she gave evidence at the Senate hearing of the 15th July 1992, she had given up her job on the 16th December 1981, when the plaintiffs took N into their care. The plaintiff would have not have suffered loss of earnings if the defendant’s officials had fulfilled the duty to inform which they owed to the plaintiffs; because then no adoption would have taken place and the plaintiff would not have needed to give up her job for the time being. The defendant, in this respect under a duty of explanation, has not substantiated that the plaintiffs, who certainly wanted to adopt a child, would have had the actual opportunity before the lapse of 19 months – reckoned from the 16th December 1981 – to adopt another child, and that the loss of earnings would therefore still have arisen in whole or in part.

b) On the same grounds the court costs and notarial expenses borne by the plaintiff in the undisputed sum of 91.59 DM are to be compensated.

6. The claim for a declaration by the plaintiffs in relation to the duty of the defendant to compensate for possible future harm is also well founded. The prerequisite for the issue of a declaratory judgment is merely that there is a certain probability that claims have arisen or could arise from the legal relationship which is to be established [reference omitted]. The prerequisite is fulfilled in this case. The future harm exists predominantly in the expenditure on maintenance which the plaintiffs must provide for the handicapped child, possibly for the whole of its life. The duty to compensate for harm is not limited to the additional expenditure on maintenance which arises through the special needs of a mentally handicapped child. The defendant must instead reimburse the plaintiffs for the whole of the expenditure on maintenance. The provision of information about all the important facts and circumstances of the adoption to the adoption applicants which was due from the employees of the Youth Employment Department is not only to protect them from the additional expenditure which they incur for the maintenance of a handicapped or sick child. The fulfilment of the duty to give information is also to ensure freedom of decision by the adoption applicants, and this consists of not adopting a mentally handicapped child at all. If such a child is adopted, the risk of providing full maintenance has been realised, and fulfilment of the duty to provide information should protect the adopters from this. In this respect the legal situation is similar to the one which arises when a doctor advises a pregnant woman during early pregnancy incorrectly or incompletely about the possibilities on early recognition of damage to the foetus which would have provided legal justification for the wish of the mother to terminate the pregnancy. Even in this case, the BGH has not limited the claim of the parents to compensation for harm to the additional expenditure on maintenance, but extended it to the complete maintenance requirement for the child who has been harmed [reference omitted]. In this case, the issue cannot be decided otherwise.


No contributory fault for the origination of the harm can be laid at the door of the plaintiffs in connection with the adoption of the child N (§ 254 (1) of the BGB).


The appeal is accordingly rejected.

© 1999 University of Oxford. Since 2002: © Translation The University of Oxford and Professor Markesinis 1999. HTML edition by Lawrence Schäfer. © 1999 Gerhard Dannemann.

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