Child welfare

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With child welfare , a legal interest is from the German family law and out of the EU Charter of Fundamental Rights referred that the entire welfare includes a child or young person as well as its healthy development. The assessment of the best interests of the child is particularly relevant in proceedings in which parental custody or rights of access are disputed, such as after divorce .

In most western countries, the state is only allowed to intervene in the parents' right to bring up a child in justified exceptional cases. The endangerment of the child's well-being is used by case law as a yardstick for encroaching on the right of custodians to bring up children . This endangerment as an indefinite legal term needs to be interpreted by case law. In essence, it is about the considerable emotional or physical endangerment of a child or adolescent, be it through neglecting the minor or through the harmful behavior of custodians or third parties towards the minor.

The fact that the main problem lies in determining what third parties, i.e. above all state organs, may or must undertake in the name of the child's best interests, can be seen from Article 3, Paragraph 1 of the UN Convention on the Rights of the Child : if they are taken by public or private social welfare institutions, courts, administrative authorities or legislative bodies, the best interests of the child are a priority that must be taken into account. "The Federal Constitutional Court grants in particular the biological parents of a child a leap of faith by assuming that As a rule, the parents' best interests are more important to the parents than to any other person or institution.

Child welfare criteria

Important criteria for the best interests of the child are:

  1. Bond principle (see also family )
  2. Funding principle I: care, support, care
  3. Funding principle II: education
  4. Continuity principle

The concept of attachment

  • The continuity and stability of the parenting relationship.
  • The child's ties to his or her parents and siblings - this is where the quality and intensity of the ties are asked.
  • The attitude of the parents and the child to the formation of parent-child relationships after the parents have separated.
  • The child's will as an expression of his or her self-determination and an expression of his bond with his or her parents.

According to the psychological definition, the best interests of the child are guaranteed if the child can grow up in relationships and a living space that enable physical, emotional and cognitive development , which ultimately enables the child to achieve their own well-being in accordance with the given legal norms and basic social values to care.

The secure attachment, unlike the insecure-ambivalent / insecure-avoidant or the disoriented / disorganized attachment, is considered to be the most favorable for the best interests of the child and can be seen as a decision criterion for granting custody or for or against deprivation of custody . A separation of the child from his / her attachment figure (s) can have both acute and long-term psychological consequences for the child. A court decision based on the best interests of the child should take this into account.

In practice, however, it is not easy to orient the case law to research on attachment theory . In this case it has to be determined who the primary attachment person is, and the question arises as to how the hierarchy of attachment people can be recognized. After the modification of John Bowlby's original assumption of only one primary attachment figure, it can be assumed that a child can attach itself to several people - in the sense of the criteria for attachment. The question of how many adults or older people a child can bond with, however, has not been answered.

If it is a question of whether custody should be withdrawn, then, on the basis of attachment theory, the question is how removing the child from its original family affects its psychological development. Bowlby assumes that the type of attachment manifests itself within the first few years of a child's life and shows great stability into adulthood. Accordingly, early ties to members of the family of origin are considered stronger and more influential.

In principle, it cannot be assumed that children who are insecure or disorganized are more easily and willingly separated from their caregivers. The intensity of the bond is in turn no indication of a good bond quality.

The good quality of a bond (secure bond) may mean that the stably bonded child with positive basic assumptions about his or her social environment can cope better with a separation from the family of origin. On the other hand, this means that separations from attachment figures are more difficult to cope with for insecurely attached and disorganized children. It can be assumed that good quality new bonds are more difficult to establish.

Separation of a child from parents

The first sentence of Article 9 of the UN Convention on the Rights of the Child reads:

“The contracting states ensure that a child is not separated from their parents against the will of their parents, unless the competent authorities determine in a judicially verifiable decision according to the applicable laws and procedures that this separation is necessary for the best interests of the child . "

Child welfare when parents separate

When parents separate, the most important and most common impairments to the child's well-being are:

  1. Quarrel between parents before, during and after the separation
  2. The often extensive loss of a parent
  3. The social and economic decline of the remaining parent

Often associated with that too

  • Further loss of relationships with friends and relatives such as grandparents or even siblings
  • Moving with school changes and the loss of familiar surroundings, neighbors or pets
  • Founding a second family

Parents should counteract this through measures such as mediation , adequate interaction between the children and both parents as well as a division of the economic burden and the care of the children.

If the separation leads to legal disputes about parental care , contact or maintenance , many local courts orientate themselves on the Cochem model , which mainly takes up the approach of mediation.

The euro Council demanded in 2015 in resolution 2079 its member states to the legislation to uniformly distributed handling of children with both parents in terms of a double residence model to work.

Child welfare risk

Change of mind

Example physical and psychological violence

The threat to the child's well-being has been interpreted differently over the course of time. The question of the extent to which the use of physical violence is accepted by parents used to be answered differently than it is today and has been a contentious issue for decades. Today, repeated or significant physical violence by custodians is viewed as a child welfare risk.

In many cultures, forms of corporal punishment were accepted or expressly approved, in Europe sometimes until around 1960. An example of this is the saying, sometimes quoted by conservative parents and educators, "He who loves his son punishes him" (note: this is sometimes meant ). It is indirectly expressed here that the child's well-being could suffer if the upbringing is too gentle . The saying is based on models as they appear several times z. B. formulated in the Old Testament, for example in the Book of Proverbs :

  • Whoever saves the rod hates his son / whoever loves him takes him for breeding early. (Prov 13:24 according to the standard translation ), or
  • Rods are available for the outlaws / and blows for the fool's back. (Prov 19:29; similar to the boy in Prov 23:13).

The sentence with the drastic notion Ὁ μὴ δαρεὶς ἄνθρωπος οὐ παιδεύεται ( Ho mä dareis anthropos ou paideuetai , 'Man who is not abused is not educated' ) comes from ancient Greece (by the comedy poet Menandros ). He became known above all because Goethe put it in front of the first part of his autobiography as the motto.

With the beginning of the modern era , this view of the child's best interests was increasingly questioned, and with the renewed expansion of European democracy , counter-models came to the fore, which have been almost universally accepted since around the middle of the 20th century. At the same time, there was a greater awareness of the importance of positive motivation instead of punishment, which, however, also led to exaggerations in educational policy at the expense of other educational goals (aspects 3 and 4 above).

At the turn of the 21st century, corporal punishment for children was socially and legally questioned. In 2000, for example, the German Bundestag passed the law to outlaw violence in upbringing . The use of violence in bringing up children by custodians with reference to the provisions of the Bible (see above) or other "holy scriptures" of a religious community does not count as a legitimate religious practice under German law within the meaning of Article 4, Paragraph 2 of the Basic Law.

Example child labor

For centuries children have been viewed as "little adults". It was taken for granted that they for maintenance helped her family as soon as they were to due to their skills in the area. Even today it is common in many parts of the world to see children as usable, exploitable and, above all, cheap labor.

The "Geneva Declaration" of September 26, 1924, which followed the "Children's Charter" of the League of Nations , does not provide for a right to education. Instead, it says in the declaration: "The child should be put in a position to earn his living [...]." The UN Convention on the Rights of the Child of November 20, 1989 only stipulates that the member states must guarantee free primary school (in Art. 28; from the age of ten there is no right to attend school as guaranteed by the Convention), and Art. 32 of the Charter only stipulates that children must be protected from economic exploitation and may not be used for work, " which could cause dangers, hinder the child's upbringing or harm the child's health or physical, mental, emotional, moral or social development. ” The Convention allows other forms of child labor , especially if they do not involve school-based learning affect.

The International Labor Organization (ILO) sets the age limit up to which child labor should normally be prohibited at 15 years in Article 2, Paragraph 3 of “Convention 138” (“Minimum Age Convention”) passed on June 26, 1973 . But Convention 138 was only ratified by around a quarter of the ILO member states.

Germany signed the Minimum Age Convention on April 8, 1976. Nevertheless, there is resistance to the restrictive handling of child labor, as the German government stated in its “Report on Child Labor” in 2000:

“According to the findings of the federal states, children are often interested in taking up employment. Employment is mostly sought for financial reasons. In addition, the interest in the work itself also plays a role. The parents usually have no objection to the employment of their children. They asserted that by having a job, the children could make good use of their free time and earn their own money. In the opinion of many parents, it also offers children the opportunity to gain initial experience in professional life. In light of this, some parents and children see the applicable child labor legislation primarily as restrictions rather than measures to protect children. As a result, they show little understanding for state controls. The awareness of wrongdoing in the case of legal violations is sometimes not very pronounced. The sense of the fundamental ban on child labor in the commercial and industrial sector is being questioned. "

The Federal Agency for Civic Education took up the report and published an article in 2012 with the title: “Do children need the right to work? Childhood Concepts and Child Labor ”a contribution in which such child protection concepts are presented as problematic for Germany, which are based on exploitation conditions in European capitalism of the 19th century and in today's developing countries.

Diagnostics and assessment in the 21st century

There are various standardized questionnaires available to diagnose whether the parents are at risk for the child's welfare, such as B. the Child Abuse Potential Inventory (CAPI; Milner 1986, 1990), the Parent-Child Relationship Inventory (PCRI; Gerard, 1994) and the Bricklin Perceptual Scales (BPS; Bricklin, 1984). The German version of the CAPI is also available with the parent stress screening for child welfare risk (EBSK; Deegener, Spangler, Körner & Becker, 2009). What is important with such forms of expert opinion is the risk of deliberate or unconscious falsification of the answer to the questions. Partly contain validity scales of different complexity that are intended to reveal falsifications in response behavior. However, under no circumstances should only test results be used to determine or exclude a hazard. The addition of other sources of information, such as B. the youth welfare office and patient files, anamnesis talks or the use of other psychometric methods is required for assessment in any case.

See also: family law psychological report .

Country-specific definitions and regulations

European Union

The Charter of Fundamental Rights of the European Union stipulates in Art. 24 Paragraph 2: "In all measures concerning children by public or private institutions, the best interests of the child must be a primary consideration."

The way in which the Charter is formulated makes it clear that the concept of “child welfare” applies above all to interventions by third parties in the relationship between children and their legal guardians. Not only civil servants come into question as “those implementing measures”, but B. also teachers at private schools, educators in non-municipal kindergartens, etc.


Function of the child's best interests in German law

According to Section 1 of Book VIII of the Social Code , the best interests of the child are a key concept that guides action in child and youth welfare. With the indefinite legal term “child welfare”, the legislature limits the exercise of parental custody ( Section 1666 BGB ). The state uses the concept of child welfare to exercise its guardianship, which is anchored in the Basic Law, and can intervene in the parents' private upbringing ( Article 6 Basic Law ). Consequently, the concept of the best interests of the child is central to the historically developed, social and legal tension between parents, who are responsible for upbringing in accordance with Art. 6 II 1 GG, children who are fundamental rights holders with recognized personal rights, and the state, which has the obligation to promote and the state guardianship in accordance with Art 6 II 2 GG.

Definition of child welfare risk

According to German law, a child's well-being is at risk if the physical, mental and emotional well-being of a child suffers serious impairments as a result of the actions or omissions of the parents or third parties, which result or can have permanent or temporary damage to the development of the child. If the child is at risk, the impairment the child suffers must be serious and the biographical and temporal dimension must be taken into account. Child welfare refers to the present, past and future life experience and lifestyle of a child.

Family law and child welfare endangerment

The youth welfare office ( Section 8a of Book VIII of the Social Code ) and the family court are responsible for the state “guardianship” in the case of child welfare risks .

If the child's welfare is found to be at risk, the family court has various options for intervening vis-à-vis the custodians in accordance with Section 1666 of the German Civil Code, ranging from instructions or prohibitions to partial or complete withdrawal of custody. In 2008, this section was expanded to include a special catalog of measures by the law to facilitate family court measures in the event of a threat to the best interests of the child . Help is often suggested that comes from the catalog of help for upbringing (in Germany § 27 ff SGB VIII / KJHG ). Important such aids are educational assistance , socio-pedagogical family assistance , accommodation with foster parents , home upbringing or forms of assisted living . As a rule, the youth welfare office tries to offer this help to the family in advance. It should be noted that the family court has no right to issue instructions to the youth welfare office. This means that the family court cannot oblige the youth welfare office to finance a service. This is no longer a matter of dispute since the introduction of Section 36a of Book VIII of the Social Code.

Today's society is, on the one hand, more aware of the threat to child welfare than it used to be; on the other hand, there are still cases in which neighbors who have become aware do nothing. In the event of a conflict, the legal system of most industrialized countries gives the best interests of the child priority over other principles of family law . B. Careful consideration of the parents' right of upbringing ( Art. 6 GG ) or the prohibition to separate a child from their family against the will of the legal guardian ( Art. 6 GG Paragraph 3).

When blatant violations become known - such as malnutrition or neglect - the media usually react very strongly, or such cases sometimes lead to legislation . For example, the Jessica von Hamburg murder case was used as an opportunity to introduce an emergency telephone that had been planned for a long time, or the pilot project “Baby in the district”. Other such incidental laws can overshoot the mark, for example if the penalties for offenses on the occasion of extreme cases are increased, which can impair the balance of criminal law . Parental custody after the death of one or both parents can be regulated in a custody order.

Effects of the 1998 reform of child rights

Since the reform of the law of children in 1998, the German Civil Code (BGB) has granted children the right to a non-violent upbringing and has specified this since 2000 in Section 1631 (2) of the German Civil Code: “Children have a right to a non-violent upbringing. Physical punishments, mental injuries, psychological impairments and other degrading measures are prohibited. "This also light are slaps or taps no more than" educational measure "justifiable or as petty dismiss.

The best interests of the child also include the minors' need to be able to maintain social contacts. In particular, it is considered a child welfare risk if the custodians prevent contact with important caregivers ( e.g. parent, grandparents or siblings who do not have custody). See § 1685 BGB as the legal basis .

A prosperous development of the child's cognitive , intellectual abilities, which are necessary for the acquisition of education , are not regarded as part of the child's well-being in German case law or by youth welfare offices in Germany, since an enforceable individual right to a minimum standard in schools is an inadmissible interference would represent in the budget law of the legislature (see also the above-mentioned lack of a right of courts to force youth welfare offices to provide services to a specified extent). Incidentally, the UN Convention also holds back (see above) with binding regulations in this area.

Further important legal provisions on the best interests of the child can be found in § 1626 BGB (Principles of Parental Care ), § 1666 f. BGB (child welfare endangerment ) and § 1697a BGB (decision-making maxim of the court). Also in criminal law § 171 StGB (violation of the duty of care and upbringing ).

A debate on the well-being of the child, which has also received international attention, began in Germany in June 2012 after the Cologne Regional Court had passed a judgment on the religiously motivated circumcision of a four-year-old boy that deviated from previous case law. At the same time, different views of the welfare of children, especially those of atheists on the one hand, and Muslims and Jews on the other, collided.


The best interests of the child are described in the General Civil Code (ABGB) as follows:

In all matters relating to the minor child, in particular custody and personal contacts, the best interests of the child (child welfare) must be taken into account as a guiding aspect and guaranteed as best as possible. Important criteria when assessing the best interests of the child are in particular

  1. Appropriate provision, in particular with food, medical and sanitary care and housing, as well as careful upbringing of the child;
  2. the care, security and protection of the physical and emotional integrity of the child;
  3. the appreciation and acceptance of the child by the parents;
  4. promoting the child's disposition, abilities, inclinations and development opportunities;
  5. taking into account the opinion of the child depending on their understanding and ability to form an opinion;
  6. avoiding the impairment that the child could suffer through the implementation and enforcement of a measure against his will;
  7. avoiding the danger for the child of being assaulted or violent himself or of experiencing it with important caregivers;
  8. avoiding the danger for the child of being unlawfully removed, withheld or otherwise harmed;
  9. reliable contacts between the child and both parents and important caregivers as well as secure ties between the child and these persons;
  10. avoiding conflicts of loyalty and feelings of guilt in the child;
  11. safeguarding the rights, claims and interests of the child and
  12. the living conditions of the child, his parents and his other environment.

See also


  • Timo Ackermann: Decide on the best interests of the child. An ethnographic study on casework in the youth welfare office. transcript-Verlag, Bielefeld 2017.
  • Harry Dettenborn: Child welfare and child will: Psychological and legal aspects. Ernst-Reinhard Verlag, Munich, 2014.
  • Katharina Parr: The best interests of the child in 100 years of the German Civil Code . Dissertation, University of Würzburg 2005. ( full text )
  • Galm Beate u. a .: Child welfare and child welfare endangerment. In: Deutsches Jugendinstitut eV, Arbeitsstelle Kinder- und Jugendkriminalitätsprävention (Ed.) Strategies of violence prevention in children and adolescents. An interim balance sheet in six fields of action, Deutsches Jugendinstitut: Munich 2007, pp. 31–59
  • Prof. Peter-Christian Kunkel at Verwaltung.modern@Kehl: Overview of § 8a SGB VIII - test schemes and graphs
  • Hendrik Cremer: Children's rights and the primacy of the child's best interests. The UN Convention on the Rights of the Child offers a wide field of application. In: Lawyer Gazette . 4/2012, p. 327.
  • Christoph Schickhardt : Child ethics. The moral status and rights of children. Mentis publishing house. Münster 2012, ISBN 978-3-89785-789-6 .
  • Handbook on child welfare risk according to § 1666 BGB and General Social Service (ASD) (2006), ed. von Kindler, Heinz / Lillig, Susanna / Blüml, Herbert / Meysen, Thomas / Werner, Annegret, Munich: Deutsches Jugendinstitut eV (see summary published in: IKK-Nachrichten (2005), 1–2, pp. 55–56 by Susanna Lillig, DJI):
  • Johannes Münder: Child welfare between youth welfare and justice. Beltz, Juventa, Weinheim, 2017
  • Michael Wutzler: Child welfare and the order of care. Dimensions, problematizations, case dynamics. Beltz, Juventa, Weinheim 2019.
  • Maud Zitelmann: Child welfare and will in the field of tension between education and law. Before 2001.

Web links

Wiktionary: best  interests of the child - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. UN Convention on the Rights of the Child: Art. 3, Paragraph 1
  2. ^ Matthias Jestaedt: Child welfare and parental primacy . Lecture at the Evangelical Academy Bad Boll . 1st - 3rd April 2005. p. 2
  3. Michael Coester: The child's welfare as a legal concept. Metzner, Frankfurt am Main 1983
  4. ^ Paul R. Amato, Bruce Keith: Psychological Bulletin, 1991 Parental Divorce and the Well-Being of Children: A Meta Analysis
  5. ^ Paul R. Amato: Journal of Family Psychology, Vol 15 (3), Sep 2001, 355-370 Children of divorce in the 1990s: An update of the Amato and Keith (1991) meta-analysis.
  6. ^ Council of Europe: Resolution 2079 (2015): Equality and shared parental responsibility: the role of fathers
  7. Johann Wolfgang von Goethe : From my life. Poetry and truth. Leipzig 1899
  8. Federal Ministry of Justice, press release 2005: The ideal of upbringing without violence prevails. (PDF; 61 kB)
  9. ^ Federal Ministry for Family, Seniors, Women and Youth: Convention on the Rights of the Child. UN Convention on the Rights of the Child in full with materials . Berlin, November 2014, p. 34
  10. Status of treaties - ratification status from the CRC. Published by: UN Treaty collection , accessed on March 19, 2019 (English).
  11. ILO: C138 - Minimum Age Convention, 1973 (No. 138)
  12. Kaushem Basu: Basu, K. (1999): Child Labor: Cause, Consequence, and Cure, with Remarks on International Labor Standards. Journal of Economic Literature, Vol. 37, pp. 1083-1119. (PDF; 182 kB)
  13. ^ ILO: Ratifications for Germany
  14. ^ Federal government report on child labor in Germany . June 2, 2000. Bundestag printed matter 14/3500; Link available at
  15. Manfred Liebel / Philip Meade / Iven Saadi: Do children need the right to work? Childhood concepts and child labor . In: From Politics and Contemporary History . October 16, 2012
  16. Nina Oelkers / Mark Schrödter: Child welfare and child will. For the well-being of children from the perspective of the capability approach . In: Capabilities - Empowerment and Realization Chances in Educational Science (Ed. Hans-Uwe Otto / Holger Ziegler). VS Verlag. January 2008, p. 144
  17. ^ DJI Handbook, September 2004
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