Facts

Parties: [A.] (appellant) against [B.] (respondent) and the Child and Adult Protection Authority Leimental.

Court: Federal Supreme Court, II. Civil Division, judgment of 18 January 2022 (5A_443/2021).

Facts:

  • [C.] (born 2013) is the daughter of [A.] and [B.] , who were never married and separated in 2015. [C.] lives with her mother.
  • On 9 June 2016, the Child and Adult Protection Authority of the Canton of Basel-Stadt granted the parents joint parental authority.
  • On 19 October 2016, [C.] initiated a maintenance claim against [A.] , leading to a separate proceeding regarding custody and care shares.
  • On 25 September 2018, the Civil Court approved an agreement on the provisional regulation of custody and visitation rights.
  • On 8 November 2018, the Civil Court established a visitation and educational guardianship pursuant to Art. 308 para. 1 and 2 CC and appointed [D.] as guardian.
  • On 18 September 2019, the Civil Court recognized the alternating custody of the parents, which was confirmed by the Appellate Court and the Federal Supreme Court.
  • On 11 February 2020, [A.] applied to the KESB for a change of the guardian, which was rejected by the KESB and the Cantonal Court.
  • With an appeal filed on 25 May 2021, [A.] turns to the Federal Supreme Court.

Considerations

The appeal is directed against the authority's refusal to change the person entrusted with the guardianship for the child [C.] . This child protection matter without a value in dispute is subject to the appeal in civil matters (Art. 72 para. 2 lit. b no. 6 FSCA). The Cantonal Court is a higher court that has decided on legal remedies as the last cantonal instance (Art. 75 FSCA). The contested decision affects the appellant, who is a party to the proceedings, in his protectable interests (Art. 76 para. 1 FSCA). The contested decision, which confirms the rejection of the request for a change of guardian, concludes the proceedings in this respect (Art. 90 FSCA). The appeal, which was filed in time (Art. 100 para. 1 in conjunction with Art. 45 para. 1 FSCA), is admissible.

In the ordinary appeal proceedings, all complaints are admissible in legal terms according to Art. 95 FSCA. FSCA. The Federal Supreme Court applies the law ex officio as a matter of principle (Art. 106 para. 1 FSCA) and judges with free cognition. However, it is not obliged, like a court of first instance, to examine all legal questions arising ex officio if the appellant no longer raises them (BGE 137 III 580 E. 1.3). Therefore, in the appeal, it must be explained in a concise manner to what extent the contested act violates the law (Art. 42 para. 2 FSCA; BGE 140 III 86 E. 2 with references). The reasoning must be substantive and relate to and limit the subject matter of the dispute; the appellant must, in a targeted examination of the considerations decisive for the result of the contested decision, plausibly demonstrate which rights or legal norms the previous instance is alleged to have violated (BGE 140 III 86 E. 2, 115 E. 2).

As far as the facts are concerned, the Federal Supreme Court bases its judgment on the findings of the previous instance (Art. 105 para. 1 FSCA). In this respect, the party seeking legal redress can only argue that the findings of the previous instance are obviously incorrect (Art. 97 para. 1 FSCA), i.e. arbitrary (see BGE 140 III 264 E. 2.3; 135 III 127 E. 1.5 with reference), or are based on another violation of the law within the meaning of Art. 95 FSCA (e.g. Art. 29 para. 2 Cst. or Art. 8 CC) (judgment 5A_374/2010 of 9 July 2010 E. 1). In the appeal, it must also be shown to what extent the remedy of the alleged defects can be decisive for the outcome of the proceedings (Art. 97 para. 1 FSCA; BGE 135 I 19 E. 2.2.2). The strict principle of pleading applies according to Art. 106 para. 2 FSCA. The Federal Supreme Court only examines clearly and detailedly raised and, as far as possible, substantiated complaints, while it does not enter into insufficiently substantiated complaints and purely appellate criticism of the facts (BGE 141 IV 249 E. 1.3.1, 317 E. 5.4; 140 III 264 E. 2.3).

The occasion for the appeal is the rejection of the appellant's application for a change of the guardian. For the daughter of the appellant, there is a visitation and educational guardianship pursuant to Art. 308 para. 1 and 2 CC (see facts lit. B). The guardianship as such and its design are not disputed. The law does not contain any regulation concerning the dismissal and thus the change of the guardian for the guardianship according to Art. 308 CC. In this…