Facts

Parties and involved parties:

  • Claimant: Guardianship authority of Steffisburg
  • Defendant: Guardianship authority of the City of Zurich
  • Ward: Werner Hofer, born 1919, entitled to domicile in Biglen (BE), under guardianship pursuant to Art. 369 CC
  • Guardian: Ernst Spring, appointed by the guardianship authority of Steffisburg
  • Lower court: Zurich District Council, confirmed the decision of the Zurich guardianship authority

Facts of the case:

Werner Hofer, an adult under guardianship, moved to Zurich in 1953 with the consent of his guardian to take up employment there. The guardianship authority of Steffisburg agreed to the change of residence. However, in Zurich, Hofer repeatedly exhibited problematic behaviour: he was repeatedly reported to the police for dine-and-dash and theft, incurred debts and regularly consumed alcohol. The psychiatric outpatient clinic and the welfare office for alcohol-related risks reported that Hofer was a severe alcoholic and particularly at risk in Zurich. The welfare office recommended institutional care and warned against further care in freedom.

In mid-October 1954, the guardianship authority of Steffisburg applied to the Zurich guardianship authority for the transfer of guardianship. It argued that Hofer had regular income in Zurich and could be better cared for there. The Zurich guardianship authority rejected the transfer, stating that Hofer was not leading an orderly life in Zurich and that successful care was unlikely. The Zurich District Council confirmed this decision in December 1954.

The guardianship authority of Steffisburg then filed a constitutional complaint with the Federal Court and sought the annulment of the decision and an order for Zurich to take over the guardianship. It argued that the change of residence was in the ward’s interest and that local care was necessary.

Considerations

The Federal Court first examined the legal basis for the transfer of guardianship pursuant to Art. 377 CC. According to this provision, guardianship transfers to the authority of the new place of residence if the ward resides there with the consent of the previous guardianship authority and this residence corresponds to a domicile within the meaning of Art. 23 CC. However, such consent must be objectively justified, particularly in the best interests of the ward. Consent that contradicts these interests is irrelevant and cannot justify a change of domicile.

In the present case, the change of residence to Zurich was not in the ward’s interest. Hofer exhibited behaviour in Zurich that indicated economic and moral neglect: he consumed alcohol, incurred debts and was repeatedly reported to the police. The welfare office warned against further care in freedom and recommended institutional care. The Zurich…