Laws Relevant to Children and Young People in Germany > Index H-X > Law of the Parent and Child (Kindschaftsrecht) ... > Draft Bill Facilitating Family Court Orders in Case of a Danger to a Child’s Well-being

Draft Bill Facilitating Family Court Orders in Case of a Danger to a Child’s Well-being
Entwurf eines Gesetzes zur Erleichterung familiengerichtlicher Maßnahmen bei Gefährdung des Kindeswohls

On 11 July 2007, the Cabinet approved a Bill by the Federal Ministry of Justice which will facilitate Family Court orders in the case of a danger to the child’s well-being.

The Bill is intended to improve the protection of children at risk. Effective child protection presupposes that Family Courts and Youth Offices exercise their respective duties as a shared responsibility and enhance their mutual awareness of their respective roles. The Bill intends to provide better support through the system of assistance laid down in the child and youth services laws when the substantive and procedural provisions governing child protection proceedings in the Family Courts are appropriately designed.

As parents neglecting or abusing their children often suffer from excessive stress and are negligent in claiming the necessary services and assistance, the amendments enable the authorities to make pa-rental obligations more binding. Consequently, the Bill includes several amendments which will promote early recourse to the Family Courts and enable the Family Courts to act at an early stage and possibly by low-threshold interventions. The Bill is intended to create specific opportunities for earlier, enhanced intervention with the parents so that they are more easily induced to seek the public assistance required to restore their parental competence.

The Federal Government’s draft legislation provides for the following changes:
 

  • Simplification of the “Qualifying Barriers for an Offence”, when a Case is Taken to Court

Pursuant to the applicable legislation, child protection orders by a Family Court assume that the parents, due to their misconduct, i. e. abuse of parental custody, neglect of the child or a non-culpable failure, constitute a danger to the child’s well-being and are not willing or able to avert the risk to the child (section 1666 subs. 1 of the Civil Code, BGB).

The draft legislation states that the prerequisite of a “parental educational failure” will be deleted, as it is often hard to prove. The decisive pre-requisites for an offence are and will remain a danger to the child’s well-being as well as the unwillingness or inability of the parents to avert the danger. The amendment is also intended to prevent the risk that parents will no longer co-operate because of their alleged “edu-cational failure”.
 

  • More Specific Potential Legal Consequences 

The Family Court must take the required and appropriate action to avert the risk (section 1666 subs. 1 of the Civil Code). This open wording provides the Family Courts with a wide range of legal options. The range of potential protective measures was not fully exhausted by the courts in the past. The draft legislation therefore provides for more specific rules by listing examples of potential measures.

The Family Courts and the Youth Offices are thus given an illustra-tion of the whole range of potential measures – even below the threshold of withdrawing parental custody. The court may order that parents have to seek public assistance such as child and youth service interventions (e. g. educational counselling and social training courses) and healthcare services (e. g. precautionary medical checkups or screenings). However, the court may also specifically order the parents to ensure the child’s regular attendance at school.

  • Discussion of the Dangers for the Child’s Well-being (“Educational Interview”)

The draft legislation intends to introduce a “discussion of dangers to the child’s well-being”. In an early stage of the proceedings, the Family Court is now able to intervene vis-à-vis the parents so that they seek public assistance and co-operate with the Youth Office, even though the proceedings at still in the preliminary stage and measures pursuant to section 1666 of the Civil Code (BGB) have not yet been invoked. An important objective of the discussion is to get all parties concerned to the same table. It is the responsibility of the Court to show the parents the seriousness of the situation – always with the participation of the Youth Office – and to induce them to accept the necessary youth services, or to alert them to the possible consequences of not availing themselves of these services (possibly a withdrawal of their custody). This option already exists in the current legislation, but it is rarely used in practice. 

  • Review Following Waiving of Judicial Measures

    In the past, a Family Court, which did not order any specific measures in proceedings for a danger to the child’s well-being, was not obliged to review its decision at a later date. According to the planned amendment, the court is to review after a suitable time period whether its decision is still correct. This approach is meant to guarantee that the court will enact measures again if the child’s situation does not improve according to the court’s expectations, or indeed if it deteriorates.
  • Faster Proceedings
The draft legislation includes the comprehensive mandatory principle of prioritizing and expediting proceedings in case of a danger to the child’s well-being and of expediting proceedings regarding the child’s residence, access rights or an obligation to hand over the child. The court must schedule a first explanatory hearing within a month. In cases involving a danger to the child’s well-being, the Family Court has to examine any expedited action immediately after proceedings have been initiated. 
  • More Legal Certainty in Cases of “Secure” Accommodation
It may be necessary as an educational means of last resort in individual cases that a minor is deprived of his/her liberty and committed to a child and youth service home or to a psychiatric institution. Such decisions may not be taken by the parents alone – despite their right to determine the child’s habitual residence. Pursuant to section 1631b of the Civil Code, such an action requires the approval of the court. In practice, there are uncertainties regarding the application of sec-tion 1631b of the Civil Code, especially as it does not explicitly lay down the prerequisites for such court approval. The draft legislation clearly stipulates that depriving a child of his/her liberty and committing him/her to secure accommodation must be necessary for the child’s own benefit and should especially prevent the child from posing a serious threat to himself/herself or to others, and that the principle of proportionality must always be upheld. Secure accommodation is therefore only permitted as a last resort if the danger to the child cannot be prevented by less incisive measures.