Child Welfare Act
| Basic data | |
|---|---|
| Title: | Federal law amending the Non-Disputes Act, the Code of Civil Procedure, the Court Fees Act and the Judicial Care Agency Act to introduce child welfare |
| Abbreviation: | Child Welfare Act |
| Type: | Federal law |
| Scope: | Republic of Austria |
| Legal matter: | Civil procedural law |
| Reference: | BGBl. I No. 137/2009 |
| Date of law: | December 30, 2009 |
| Effective date: | January 1, 2010 |
| Please note the note on the applicable legal version ! | |
The Child Assistance Act is an Austrian federal law for the establishment of child assistance in contentious and non-contentious proceedings before courts.
The Child Welfare Act is a law with which certain paragraphs or sentences or parts of sentences have been inserted in other laws to implement it. The law itself does not contain a separate wording.
The Child Welfare Act was passed by the Austrian National Council on December 10, 2009 and adopted by the Federal Council on December 18 .
implementation
According to Section 2, Paragraph 5 of the JBA-G, the judicial care agency is responsible for implementing the Child Welfare Act (based in Vienna with branch offices as required). This is entitled to conclude contracts for the provision of child support. The judicial support agency has an operational obligation to fulfill its obligations under these contracts.
According to Section 104a, Paragraph 1 of the Non-Disputes Act, the court can only appoint persons named by the Justice Care Agency on its behalf to act as child counsel. Only those persons can be named who are particularly suitable for this activity based on their profession, their professional experience in dealing with children and young people and their education. Child welfare workers must have basic training in a psychosocial profession and have several years of experience with children. Have also attended a special course. Child advocates are self-employed and not employed by the judicial care agency. In 2010 child advocates were appointed in nine cases; in 2018 there were 384 completed proceedings.
Goal of the Child Welfare Act
The child counselor should be at the child's side as a contact person and person of trust and should be the “voice of the child” insofar as the child cannot or does not want to articulate himself.
The child welfare officer is not the legal representative of the child and is also not a party to the proceedings and cannot be compared with a court-appointed expert (sui generis function of the child welfare worker). The role of child support in court proceedings is largely limited to conveying (articulating) the child's wishes. It is usually not his job to find evidence for the court or to present it.
Section 104a of the Non- Disputes Act is the central norm of the Child Welfare Act. In it, the instruments used by child welfare are fundamentally and largely standardized.
According to Section 104a (1) of the Child Welfare Act, child support is generally available for minors from 5 years to under 14 years of age
- Procedure about custody or
- on the right to personal communication (contact law procedure)
to order,
- if it is in terms of the intensity of the dispute between the remaining parties
- is required to support the minor and
- suitable persons are available to the court.
It is the tasks of the child welfare (Section 104a (2) Non-Dispute Act)
- to maintain the necessary contact with the minor and
- to inform him of the progress of the proceedings.
Legal status of child support
Child Welfare Duties
The child welfare officer is obliged to maintain secrecy about the facts entrusted to him or made known to him in the exercise of his function. In agreement with the minor, he has to express his or her opinion to the court (Section 104a (2) Non-Dispute Law).
Child Welfare Rights
The child welfare officer has the right to inspect files. He must be informed of all appointments. He may take part in all oral hearings and accompany the minor to take evidence outside of the hearing if he so wishes. All applications of the parties are to be sent to him; he is to be informed of further personal custody proceedings by sending the application initiating the proceedings (Section 104a (3) of the Non-Disputes Act).
The child counselor has the right to refuse to give evidence under Section 321 (1) (3) ZPO and Section 157 (1) (3) StPO .
For example, the child guardian is not allowed by the court
- the child's condition,
- to its maintenance and development status
- on circumstances of family life (such as the housing and income situation) etc.
be interviewed.
Rejection of child support
The provisions on the rejection of an expert apply mutatis mutandis to the rejection of child welfare (§ 104a Paragraph 4 Non-Dispute Law in conjunction with § 355 f ZPO ).
costs
In principle, the costs of child support are to be borne by all parties in the form of a flat-rate court fee (§ 28 Z 9 GGG). However, the child is not obliged to bear the costs.
End of the duties of child support
In any case, the appointment of child support ends with the final settlement of the matter. The court can remove the child guardian beforehand if this is required in the minor's best interests.
In the temporal connection with the legally binding settlement of the matter, the child counselor must finally discuss the procedure and its results with the minor.
If, during the appointment of a child welfare officer, another procedure referred to in paragraph 1, first sentence, is pending regarding the same minors, the appointment of the child welfare officer is extended until this further procedure has been concluded (Section 104a paragraph 5 Non-Dispute Act).
The Federal Ministry of Justice and the office that appointed the child welfare officer can revoke the appointment for important reasons. If there is such a reason, the court must remove the child guardian and, under certain conditions, appoint another one (Section 104a (6) Non-Dispute Law).
See also
- Ordinary jurisdiction (Austria)
- Family court assistance
- Visiting agent
- Child and youth advocacy
- Psychosocial process support
Sources and References
- ↑ Number of the National Council meeting: 49, Government draft: 486, Committee report of the National Council: 563, Amendment in the plenary session of the National Council: 8218
- ↑ Number of the Federal Council meeting: 780, Committee report of the Federal Council: 8230
- ↑ Information for applicants , website of the Justizbetreuungsagentur, last accessed on May 26, 2019.
- ↑ Stefanie Zach: Procedural law institutions for the protection of children in civil proceedings - an overview , Zak - civil law up-to-date , Zak 8/2019, p. 147.
- ↑ Minors under 16 years of age with special approval.
- ↑ Section 190 (2) sentence 2 ABGB, Sections 180 f ABGB, Section 211 (1) ABGB, Section 111d Foreign Trade Act
- ↑ Parties to the proceedings are e.g. E.g. parents, foster parents or grandparents.
- ↑ Court Fees Act, Federal Law Gazette No. 501/1984
- ↑ § 104a Abs. 5 AusStrG.
