If, on the one hand, a parent with custody does not look after the child's interests but, on the other hand, has granted the youth welfare office comprehensive custody authority and if, for this reason, there is no present or imminent danger to the child's welfare, a withdrawal of custody is disproportionate and therefore inadmissible. Withdrawal of custody can only be considered in strict compliance with the constitutional principle of proportionality. This means that only in the case of a risk to the welfare of the child is such an intervention proportionate and therefore justified. According to the Senate, a risk to the welfare of a child is "always to be assumed if a present or at least imminent danger to the child's development is foreseeable". Although it is not necessary for the negative consequences for the child to occur immediately, if physical, mental or psychological damage to the child can be foreseen with a high degree of certainty, a risk is to be assumed. It is not a question of fault on the part of the custodian. If, however, the youth welfare office (or, it must be concluded, the other parent) is put in a position to make decisions that are in the best interests of the child in all essential areas by granting comprehensive power of attorney, there is no need to interfere with custody rights.

OLG Brandenburg, 10.11.2020, 13 UF 33/20
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