Child and adult protection law

from Wikipedia, the free encyclopedia

The current Swiss child and adult protection law dates from 2013 and is regulated in the Swiss Civil Code. The implementation of child and adult protection law lies with the cantons, which in turn have enacted the necessary laws.

Similar to the pattern already practiced in cities, lay people have now also been replaced by specialist staff in rural regions. These experts are organized on an interdisciplinary basis in the Child and Adult Protection Authority (KESB) .

The reform was undisputed in parliament, but its implementation in practice certainly caused controversy and a popular initiative was launched.

Child and Adult Protection Authority

SwitzerlandSwitzerland Child and Adult
Protection Authority - KESB -
Website Address and link collection KOKES
Demonstration against the KESB on March 13, 2015 in the Zurich town hall complex

The Child and Adult Protection Authority (KESB) is an interdisciplinary, professional, specialized authority in Switzerland with at least three members elected according to professional criteria. Depending on the canton , it is a judicial authority or an administrative authority organized at cantonal or (inter) communal level. It is the central body and, in accordance with Art. 440 ZGB, responsible for ordering measures and describing the mandate holders' tasks.

organization

The organization of child and adult protection is the responsibility of the cantons. The federal government makes only minimal requirements. Accordingly, the organization of the authorities is implemented differently depending on the canton.

On January 1, 2013, with the revision of the civil code, guardianship law in Switzerland was replaced by new child and adult protection legislation. The legislature prescribes that decisions in child and adult protection law are to be made by specialist authorities, the child and adult protection authorities.

Child rights are regulated in Articles 252 to 327c of the Swiss Civil Code (ZGB), and adult protection law in Articles 360 to 455 ZGB. The cantonal introductory laws on child and adult protection law (EG KESR) or other cantonal laws contain regulations on the organization and responsibility of the KESB. The procedure is primarily governed by the provisions of the ZGB, then those of the KESR, the law on the organization of courts and authorities in civil and criminal proceedings, and finally those of the Swiss Code of Civil Procedure (ZPO).

The KESB is bound by the law in its activities and may only act where there is a legal basis for doing so. This protects the persons concerned from unjustified interference by the state in their private affairs. The KESB can only offer support where the law provides.

The prerequisites for a child or adult protection measure, the rights and obligations of the client as well as the responsibilities and the procedure are regulated by law. In the case of self-determined support, on the other hand, the type of assistance and representation can be freely designed by means of a power of attorney or on the basis of a contractual relationship. Examples of this are the advance care order, an advance directive or other rights of representation.

Every measure of the KESB is not only help, but also an interference by the state in the personal freedom and privacy of those affected. A measure is therefore only ordered if it is absolutely necessary to protect the person concerned. It has to be as weak as possible, but as strong as necessary. In addition, the KESB examines whether the measure is suitable for fulfilling the intended purpose and whether the expected success is in reasonable proportion to the restriction of freedom.

The KESB can only intervene where voluntary support or representation is insufficient or would not lead to the goal. Therefore, the KESB must always first clarify whether precautions have already been taken, whether the funds and offers of private and public social assistance have been exhausted and whether relatives, people close to them or advice centers cannot provide a person in difficulty with the necessary help and support.

history

19th century

In the course of the 19th century, the cantons standardized public poor relief through welfare laws. Those in need relied on both private charity and public welfare from their communities. Only poor people who were not at fault and who belonged to the community were entitled to support. Foreigners were excluded from public welfare because they had no municipal citizenship. In the 19th century, private and public welfare were mostly financed through donations and not through taxes. The federal government contributed 10 percent of the revenues of the alcohol monopoly.

When the industrialization began to increase the internal migration of workers, the obligation of the civil communities to support became a growing problem. From the middle of the 19th century, some cantons began to switch from civic community to local community care, above all the canton of Bern in 1857. Also in the 19th century, homes and institutions for orphans, alcoholics, the elderly, young people and others were established on private or public initiative Adults.

20th century

A new generation of welfare experts who came together in the Swiss Poor Care Conference in 1905 pleaded for a rationalization of welfare based on foreign models. Guidelines were provided for individual help, the centralization of the organization, the bureaucratization of the procedures and the professionalization of the staff. Social schools founded by women themselves opened up the professional field of care workers to middle-class women.

The new understanding of welfare is paradigmatic in the mostly urban child welfare. It was expanded with the child protection provisions of the Civil Code (1912) and the institutionalization of training and further education courses (from 1908) and made scientific. The city of Zurich professionalized the medical care of school children (1905) and reorganized the guardianship system (1908). This expanded state welfare from needy children to "neglected" and sick children. The authorities increasingly called in scientific experts, especially doctors and curative teachers.

Around 1900, Switzerland was confronted with rising divorce rates that were well above the European average, and all of Europe was confronted with feminist demands of various political origins for a reform or even a revolution in marriage. While the vast majority of marriages were generally divorced by the City of Bern District Court in the period under review (97%), it also shows that the majority of the lawsuits were decided because of the general and open-ended grounds for divorce of deep disruptions. To an extent that was by no means in line with the intention of the legislature, the Bern magistrates were prepared to perceive marriage crises on an individualized basis and to subordinate them to the state's interest in the stability of marriages as stipulated in the legislation. Those in the dissertation marriage, couples. Crisis of the gender relationship around 1900 Judgment practice examined by Caroline Arni ultimately unfolds a paradoxical dynamic: On the one hand, the legally constituted secondary patriarchal marriage model was normatively consolidated insofar as the divorces were justified in the judgment considerations with deviations from this norm. On the other hand, however, the liberal and individualizing judgment practice characteristic of the City of Bern court stands for the negotiability of norms and, in the long term, led to a deinstitutionalization of marriage and gender relations - the beginnings of which, paradoxically, begin in the same period in which the secondary patriarchal-bourgeois and institutional marriage model normatively generalizes and at the same time is enshrined in law.

Up until the 19th century, motherhood and the family were considered natural risks that did not require any social security. That changed after World War I when maternity insurance and family allowances were put on the political agenda. In 1945 the sovereign enshrined both instruments in the federal constitution. Above all, the rights of the husband, under whose tutelage the wife and children were, should be protected from state interference. At the same time, the birth, care and upbringing of children are the prerequisites for societies to be able to survive for generations. For this reason, questions relevant to the welfare state arose early on: Are childbirth and the family really a private matter or should society as a whole contribute to the protection of the financial risks and burdens associated with motherhood and starting a family? Which family and gender relations should the state orient itself in the case of welfare state measures?

Children of the country road

The aid organization for the children of Landstrasse was set up in 1926 as a project of the semi-public Swiss foundation Pro Juventute . It was set up under the direction of Alfred Siegfried with the intention formulated by him: “Anyone who wants to successfully combat vagueness must try to break the association of the traveling people, he must, as tough as that sounds, tear the family community apart ». The fact that children belonged to a traveling family was sufficient reason to take them away from their parents. The protagonists of such concepts included the Graubünden psychiatrist Josef Jörger with his psychiatric-eugenic writings on the Zero family or the German racial hygienist and Gypsy expert Robert Ritter . Federal Councilor Heinrich Häberlin , President of the Foundation Council of Pro Juventute, described the Yeniche in a brochure published in 1927 as a “dark spot in our Swiss country, which is so proud of its cultural order” that needs to be removed.

In some cases, children were taken away from the mother immediately after birth. The children were usually placed in homes, in some cases also in foreign families, in psychiatric institutions and also in prisons, or as contract children assigned to farm families as workers. Contact between children and parents was systematically prevented. The legislation opened up room for maneuver, which the actors used in different ways, but often extensively. The boundaries of open illegality were exceeded.

In practice, a large number of children and young people - according to estimates, up to five percent of children under the age of 14 - grew up in foster families or homes in the 20th century. Many were outsourced because the family situation was economically unstable or was considered morally questionable. The new civil code of 1907 provided for children to be removed and cared-for third-party placements in homes or private households if a child was “neglected” or “in his physical and mental well-being”. Often a divorce or an illegitimate birth was sufficient as a reason for an outsourcing. Furthermore, unruly children and adolescents were also sent to closed institutions. These so-called "administrative supplies" could be carried out at the instigation of the authorities, without a court decision or appeal. Racist motives could also justify kidnapping. In the 1970s, a critical public mobilized against the grievances in the home and institution system and brought about an improvement in the conditions of care and educational methods. In 1981, for example, the instrument of administrative supplies was abolished and replaced by welfare deprivation of liberty. The European Convention on Human Rights , which Switzerland ratified in 1974, was also decisive for the abolition of the constitutionally questionable authority.

Current situation

Switzerland is currently working on a difficult chapter in its social history. It is about the fate of children and young people who were affected by compulsory welfare measures (FSZM) or external placements before 1981. Those affected include, for example, contract children, children in nursing homes, administratively cared for (people who have been admitted to closed institutions as part of administrative measures, in some cases even to penal institutions), people whose reproductive rights have been violated (abortions carried out under duress or without consent, sterilizations , Castrations), forced adoption, travelers.

Following the memorial event in April 2013, a round table was set up, made up of representatives from victims and various authorities and institutions. This has now initiated numerous measures. At the same time, parliament rehabilitated those administratively cared for in 2014 by passing a corresponding federal law.

After the reparation initiative came about in December 2014, the Federal Council had an indirect counter-draft drawn up. At the beginning of December 2015, the Federal Council took note of the results of the consultation process and at the same time passed the message on the reparation initiative and the counter-draft for submission to Parliament. The plenary session of the National Council discussed the matter in the special session on April 26 and 27, 2016 and very clearly approved the indirect counter-proposal with 143 votes to 26 and 13 abstentions. On September 15, 2016, the Council of States dealt with the proposal and clearly approved the indirect counter-proposal with 36 votes to 1 with 0 abstentions.

The new child and adult protection law has been in force since 2013. The first case numbers collected throughout Switzerland are now available. The trend clearly shows that the number of protective measures for adults and children has decreased proportionally since the introduction of the KESB. The system of measures is implemented in a differentiated manner, and subsidiarity and proportionality (as much as necessary, as little as possible) are taken into account. The conference for child and adult protection KOKES wants to further improve the procedures of the KESB.

The statistics of the Conference for Child and Adult Protection (KOKES) include data from 144 (out of a total of 146) KESB and for the first time allow for trend statements across Switzerland. It shows that the KESB does not produce more cases than the guardianship authorities did before.

On May 4, 2016, the Federal Council took note of the status of the ongoing evaluation of the new child and adult protection law. An externally commissioned report shows the different organizational implementation in the cantons and provides key figures on services and costs. The Federal Council will comment on any legislative action that may be required by spring 2017.

Continuous criticism

The guardianship and assistance system in Switzerland was clearly marked by National Socialism by General Ulrich Wille junior and his aid organization Pro Juventute .

The procedures are discriminatory and violate human rights several times. Victims of the measures were mistreated: between 1950 and the mid-1970s, Roland Kuhn carried out clinical tests on over 1,600 people in the Münsterlingen Psychiatric Clinic. The tests were carried out under ethically questionable and scientifically dubious conditions. In addition, the patient's consent was missing. From today's perspective, this may seem questionable; at the time, however, this procedure was common. According to the files, a total of 23 people died between 1954 and 1957 in the test series of tablets G22150 and G28568. The Swiss psychiatrist is known as the "father of antidepressants". Yet that fame is based on the abuse of hundreds of unsuspecting patients. Those affected still suffer today, and deaths have never been investigated.

Joint custody has only been in effect in the event of a divorce since July 1, 2014 . Up until then, fathers were systematically discriminated against based on gender. The consequences for society have not yet been investigated, and it is still a long time to come to terms with it.

In the concluding remarks on the second, third and fourth Swiss national reports, the United Nations criticized Switzerland’s child rights policy and strategy in particular. The committee notes that the Swiss Competence Center for Human Rights was created. Nonetheless, he is concerned that there is no central, independent body to monitor the implementation of the Convention that has the authority to receive and deal with complaints about violations of children's rights at all levels of government. In the spirit of general comment No. 2 (2002) on the role of an independent human rights institution and in line with previous recommendations (CRC / C / 15 / Add.182, para. 16), the Committee strongly recommends that the State party immediately set up an independent monitoring body of human rights with a specific monitoring mechanism for children's rights. This institution must be empowered to receive complaints from children in a child-friendly manner, to investigate them and to investigate the matter. It must be able to guarantee the privacy and protection of the victims, to monitor developments and to take follow-up measures for the benefit of the victims. The Committee also recommends that the State party ensure the independence of such a monitoring mechanism, in accordance with the Paris Principles, in particular with regard to funding, mandate and prosecution.

The Committee takes note of the information provided by the State party on the measures taken and planned to regulate the activities of multinational companies, including the development of the Ruggie strategy for Switzerland. However, it is concerned that the state party relies solely on voluntary self-regulation and does not provide for any legal framework that explicitly regulates the obligations of those companies that are under the jurisdiction or control of the state party so that children's rights are observed outside the state party. The Committee is also concerned that there is insufficient training in this area for professionals who work with or for children.

In the spirit of General Comment No. 12 (2009) on the right of the child to be heard, the Committee recommends that the State party take measures to strengthen this right in accordance with Article 12 of the Convention. The Committee therefore recommends that the State party: (a) Step up its efforts to ensure that the child's right to be heard is applied in all judicial and administrative proceedings affecting the child and that the child's views are sufficiently taken into account; (b) To intensify its efforts so that children are given the right to express their opinions freely on all matters affecting them. In addition, their opinions are to be adequately taken into account in school and in other educational institutions, in the family and also in political planning and decision-making. Particular attention should be paid to children in situations that are exclusive and disadvantageous to them; (c) Ensure that legal, social security and other child-related professionals are systematically trained on how children can participate effectively.

The Committee is concerned about the frequency of diagnoses of attention-deficit hyperactivity disorder (ADHD) or attention-deficit disorder (ADD) and the associated prescription of psychotropic substances, particularly methylphenidates, in children, despite increasing evidence of harmful effects of these drugs. The Committee is also concerned about reports of threats of expulsion from school if parents do not consent to their children being treated with psychotropic substances.

Compared to other European countries, Switzerland has one of the highest proportions of compulsory psychiatric admissions: Almost a quarter of all psychiatric patients in Switzerland are involuntarily hospitalized according to a study from 2009.

In response to the criticism, the Guido Fluri Foundation initiated the contact point for child and adult protection (KESCHA). Together with Integras (Professional Association for Social and Special Education), the Swiss Child Protection Foundation, the Swiss Children's Ombudsman, PACH (Foster and Adoptive Children Switzerland), Pro Senectute , Pro Infirmis and KOKES (Conference for Child and Adult Protection), the Contact point set up in 2017. The family institute of the University of Freiburg (CH) provides the contact point with scientific support so that findings can flow back to the authorities.

The KESCHA offers an information and contact point for people who are affected by child or adult protection measures, including questions about assistance or proceedings by the child and adult protection authorities or the courts.

literature

Web links

Individual evidence

  1. ↑ Child and adult protection , Federal Social Insurance Office, 2016-12
  2. ↑ The Kesb is to be deposed , NZZ, 2018-05-15.
  3. ^ Organization of the cantons. In: Conference on Child and Adult Protection website, accessed September 22, 2016 .
  4. ↑ Stefan Rieder, Oliver Bieri, Christof Schwenkel, Vera Hertig, Helen Amberg: Evaluation of child and adult protection law. In: FDJP website (PDF; 803 kB).
  5. ↑ Principles. In: Website of the child and adult protection authorities in the canton of Zurich.
  6. ^ Organization of social assistance. ( Memento of the original from September 23, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. In: Website of the history of social security in Switzerland. @1@ 2Template: Webachiv / IABot / www.geschichtedersozialensicherheit.ch
  7. ↑ Rationalization and expansion: modernization of urban welfare. In: Website of the history of social security in Switzerland.
  8. ↑ Caroline Arni: Marriage, Couples. Crisis of gender relations around 1900. In: Infoclio.ch (Diss. Univ. Bern 2001/2002).
  9. ↑ Family and Motherhood. In: Website of the history of social security in Switzerland.
  10. ↑ Homes and institutions. ( Memento of the original from September 23, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. In: Website of the history of social security in Switzerland. @1@ 2Template: Webachiv / IABot / www.geschichtedersozialensicherheit.ch
  11. ↑ A dark chapter in Swiss social history. In: Website of the delegate for victims of compulsory welfare measures.
  12. ↑ 4 years KESB - balance sheet and number of cases. In: Website of the conference for child and adult protection (media release; PDF; 77 kB).
  13. ↑ First report on child and adult protection law is available. In: website of the FDJP.
  14. ↑ Beat Grossrieder: Pro Juventute founder Ulrich Wille. The man who brought Hitler to Switzerland. In: Observer . No. 8, April 11, 2012.
  15. ^ Otto Hostettler: Psychiatry. The human experiments of Münsterlingen. In: Observer. No. 3, February 7, 2014.
  16. ↑ Divorce and custody. In: ch.ch. Portal of the Swiss Federal Chancellery .
  17. ↑ Concluding remarks on the second, third and fourth Swiss national reports. ( Memento of the original from November 14, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. In: Website of the Federal Social Insurance Office (PDF; 258 kB). @1@ 2Template: Webachiv / IABot / www.bsv.admin.ch
  18. ^ Report CRC / C / CHE / CO / 2-4 in several languages on the website of the United Nations High Commissioner for Human Rights .
  19. ↑ Forced admissions to psychiatry from a fundamental rights perspective. In: Information platform Humanrights.ch .
  20. ↑ Website of the contact point for child and adult protection (KESCHA)