Facts

Parties and instances: The mother (appellant) is represented by a lawyer. The father (respondent) is represented by a lawyer. The two children (born 2012 and 2014) are represented by a child representative. The parents are divorced; the children are under joint parental authority and in the custody of the mother.

Background: In February 2019 the father filed a report of endangerment with the Child and Adult Protection Authority (KESB) concerning behavioural abnormalities of the children, disturbed eating behaviour, lack of hygiene and instrumentalisation of the children in the parental conflict. On 12 April 2019 the mother requested the superprovisional suspension of personal contact; the KESB suspended it on 17 April 2019. In June 2019 the mother filed a criminal complaint against the father for bodily injuries and assaults against the son, in July 2019 supplemented by the allegation of sexual acts in the year 2016.

Decision of the KESB of 29 July 2019: The KESB ordered, as provisional measures, supervised contacts of two hours every fourteen days for two months, thereafter four, then six hours. It established a beistandschaft under Art. 308 para. 1 and 2 CC and withdrew suspensive effect from any appeal. Since then no contact has taken place between the father and the children.

Cantonal proceedings: The mother challenged the decision before the District Council and requested the restoration of suspensive effect. The President of the District Council rejected this on 2 September 2019. The appeal lodged against this was dismissed by the Higher Court of the Canton of Zurich by judgment of 25 September 2019.

Proceedings before the Federal Supreme Court: By appeal of 14 October 2019 the mother requested the annulment of the judgment of the Higher Court and the restoration of suspensive effect, further suspensive effect of the appeal to the Federal Supreme Court, and legal aid. The President of the adjudicating division rejected the request for suspensive effect on 6 November 2019. The cantonal files were obtained, but no responses were requested.

Subject matter in dispute: The suspensive effect (provisional measures concerning personal contact) as an interim decision.

Considerations

Admissibility: The contested decision is an interim decision of the last cantonal instance on the restoration of suspensive effect. It may cause an irreparable disadvantage (Art. 93 para. 1 let. a FSCA). The matter is not pecuniary, since the legal remedy for interim decisions follows that of the main proceedings. The mother has standing (Art. 76 para. 1 FSCA) and observed the time limit (Art. 100 para. 1 in conjunction with Art. 45 para. 1 FSCA). The appeal is in principle admissible.

Requests for evidence: Questioning of the parties and examination of witnesses are ordered before the Federal Supreme Court only exceptionally, namely where the lower instance established the facts in violation of constitutional rights. The appellant has not shown this (BGE 136 II 101 consid. 3), therefore the requests for evidence are to be rejected.

Limited scope of review and principle of complaint: The decision on suspensive effect is a provisional measure (Art. 98 FSCA; BGE 137 III 475 consid. 2). In proceedings against an interim decision, only the violation of constitutional rights may be complained of. A complaint of violation of Art. 274 para. 2 CC is inadmissible, since it is not arbitrary and concerns the main proceedings. Equally inadmissible are the complaint of excess of discretion (Art. 4 CC) and the implicit complaint of violation of the official and investigative principle. For the complaint of constitutional rights the strict principle of complaint applies (Art. 106 para. 2 FSCA); it must be presented precisely and substantiated, and the appeal must engage with the reasoning of the contested decision.

Complaint of the right to be heard: The mother complains that the decision was issued without further hearing of the parties, in particular the child representative, whose statement of 26 August 2019 was not taken into account. She does not explain which component of the right to be heard she considers violated (right to evidence, duty to give reasons, inspection of files). The complaint is not sufficiently substantiated. The complaints concerning the right to be heard and the personal liberty of the children (Art. 10 para. 2 CC... [see note below] Art. 10 para. 2 FC) miss the subject matter, since they are directed against the decision on the merits. The alleged will of the children does not follow from the contested decision; the mother would have had to prove that it was on file. Moreover, there is no engagement with the requirements of Art. 36 FC. The complaint that the withdrawal of suspensive effect prejudges the final decision does not concern constitutional rights. The mother furthermore does not engage with the consideration that the alienation of the children should be counteracted and that supervised visits adequately…