Facts

Parties and procedural history:

The appellant [A.] (born 2008) is the son of the first respondent [B.] (born 1988) and the second respondent [C.] (born 1986), both of Portuguese nationality. The parents were never married. After the parents separated, [A.] initially lived with the mother until, in 2015, she was no longer able to care for the children due to precarious living conditions and a lack of parenting capacity. As a result, [A.] and his half-sister [E.] (born 2011) were initially placed provisionally and later permanently with a foster family by the Child and Adult Protection Authority (KESB) Dietikon. In 2017, the KESB withdrew the mother’s right to determine the child’s place of residence and permanently placed [A.] with the foster family [F.] in [X.] (BE).

The mother appealed against this decision to the District Council of Dietikon, which confirmed the withdrawal of the right to determine the child’s place of residence. She then appealed to the Higher Court of the Canton of Zurich, which, by judgment of 2 March 2021, revoked the withdrawal of the mother’s right to determine the child’s place of residence and ordered [A.] to be returned to his mother as of 14 August 2021. The appellant appealed against this judgment to the Federal Supreme Court.

Development of the facts:

  • After [A.] ’s birth, the parents separated. The mother lived in difficult social and financial circumstances and was overwhelmed by parenting. In 2015, [A.] and [E.] were placed with the foster family [F.] due to a crisis situation. The mother initially accepted this measure but later refused a return placement.

  • In 2017, the mother applied for the return of her children but was refused. The KESB Dietikon withdrew her right to determine the child’s place of residence and confirmed the foster placement. A psychological expert report from 2018 concluded that the mother was unable to adequately care for the children due to her limited parenting capacity.

  • Over the years, the mother’s situation improved both privately and professionally. The contact arrangements were gradually relaxed, and [A.] developed a close bond with his parents. The Higher Court concluded that the original risk to the child’s welfare no longer existed and that a return placement now corresponded to the child’s welfare.

  • The appellant opposed this assessment and argued that the mother was still unable to care for him adequately and that a return placement would endanger his welfare. He applied for the withdrawal of the mother’s right to determine the child’s place of residence to be maintained.

Considerations

Admissibility of the appeal:

The Federal Supreme Court examines the admissibility of the appeal ex officio. The appellant is legally represented by his child representative and is therefore capable of acting in the proceedings. The appeal is directed against a final decision of the Higher Court in a public-law matter with a connection to civil law and was filed in a timely manner. The appellant’s right to appeal exists because he has a legitimate interest in the revocation or amendment of the contested decision. The Federal Supreme Court does not enter into the requests in which the appellant seeks the express confirmation of various judgments of the Higher Court.

Review of the discretionary decisions of the lower court:

When reviewing child protection measures, in particular the withdrawal of the right to determine the child’s place of residence and foster placement, the Federal Supreme Court has limited powers of review. It only intervenes if the lower court has deviated without justification from recognised legal principles, disregarded legally relevant circumstances or if the decision appears manifestly unreasonable or unjust. The lower court has comprehensively assessed the facts and based its decision on the established facts. The appellant was unable to demonstrate any arbitrary or manifestly incorrect factual findings.

Child’s welfare as the central criterion:

The child’s welfare is the decisive criterion for assessing child protection measures. The withdrawal of the right to determine the child’s place of residence and foster placement are only permissible if the child’s welfare is at risk due to the parents and milder measures are insufficient. The lower court found that the original risk to the child’s welfare no longer exists. The mother has stabilised in recent years, and the bond between [A.] and his parents is intact. The expert report from 2018, which attested to the mother’s limited parenting capacity, was considered no longer current as the mother’s living conditions have since improved significantly. The lower court also found…