Legal counsel

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The method assistance replaces the entry into force since the Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG) on 1 September 2009 in Germany in the family court process the previous guardian ad litem . It is intended to assert the interests of minors in filing legal proceedings . The interests include the rights and fundamental rights of minors. Therefore, the procedural counsel can make motions, appeal, and attend the hearings. The legal counsel was formerly known as the “child and youth advocate” or “child's advocate”.

Legal basis

Appointment and remuneration of the procedural assistant are regulated in §§ 158, 167, 174 and 191 FamFG . The specific tasks are determined by resolution when the appointment is made. The authority to carry out the task is limited by the GG and BGB, the GDPR and the StGB. The procedural adviser is a participant in the proceedings according to Section 7 FamFG Paragraph 3 without being the legal representative of the child. He can only appeal against decisions of the family court necessary to z. B. to enforce the fundamental right of minors to a fair trial and a fair hearing, whereby a fair trial by the parents rubs off on the minor. The courts are obliged to process the appeals.

The tasks assigned by resolution must not interfere with the (basic) rights of the persons concerned and require a justification by the court. The right to informational self-determination and the parental right with the special protection of the family are particularly affected. The resolution must not contain any tasks that are reserved for others. It is the task of the court to determine the facts, and the task of bringing about an amicable solution is the task of the local youth welfare office (youth welfare office). The resolution cannot contain any power.

The professional association of procedural counselors, supplementary carers and professional guardians for children and young people (BVEB) has drawn up and adopted standards, but these are not binding.

Order by the family court

The court must appoint a suitable legal advisor to the minor child in matters relating to his or her child , insofar as this is necessary to protect his interests. This is usually the case ( Section 158 FamFG):

  • in proceedings in accordance with Section 1666 of the German Civil Code , if partial or complete deprivation of personal custody is possible ( risk to the child's welfare ),
  • if the child is to be separated from the person in whose care it is ( § 1666a BGB)
  • in proceedings that deal with the surrender of the child or an order to remain there ( Section 1632 BGB) or
  • if the exclusion or a significant restriction of the right of access comes into consideration ( § 1684 BGB).
  • when sharing method when a custodial accommodation of / minors (d. e. against his will, and u. U. application of force by the police or the bailiff), such as a child and adolescent psychiatric device in question comes ( § 1631b BGB) .

A procedural assistant should also be appointed if the interests of the child conflict with those of their legal representatives . The child's interest is not understood as the wish, will and best interests of the child, but the rights and fundamental rights of the child as the objective best interests of the child.

Furthermore, the court must appoint an assistant if this is necessary in parentage or adoption matters to protect the interests of the minor involved.

Before appointing the legal representative, the court must check whether none of the legal and natural representatives of the minor is willing or able to protect and, if necessary, assert the interests of the minor, since the legal representative is not the legal representative.

Situation from the age of 14

In addition, a child / adolescent from the age of 14 can also commission a representative to exercise his or her rights ( Section 158 (5) FamFG in conjunction with Section 9 No. 3 FamFG), usually their own lawyer. It is true that a family court assignment is still required, but the court has to comply with the wish of the child concerned to have a specific interest representative assigned as procedural counsel, even for child welfare aspects.

Your own lawyer will then be paid using the legal aid applied for and approved (see also Essen District Court , decision of June 18, 2002, Az. 104 F 80/01 SO, and Hanseatic Higher Regional Court , 3rd Senate for Family Matters, decision of May 2, 2017 , Az. 12 WF 70/17).

The representation of a child by an authorized lawyer takes precedence over the support of a procedural counsel in filing proceedings. In the case of a subsequent assignment of a lawyer, the appointment of a previously determined procedural assistant according to § 158 Abs. 5 FamFG must be canceled (OLG Stuttgart, decision of January 17, 2014, Az. 11 WF 271/13).

tasks

The court is obliged to instruct the legal advisor specifically in terms of type and scope and to justify the appointment. Depending on the assignment 1 , the procedural counselor has to determine the interests of the child and assert it in the judicial process. 2 He must inform the child in a suitable manner about the subject matter, process and possible outcome of the proceedings.

3 If the circumstances of the individual case make it necessary, the court may assign the procedural counsel the additional task of holding discussions with the child's parents and other caregivers, as well as helping to reach an amicable settlement on the subject of the proceedings. 4 The court must specify the type and scope of the commissioning and justify the commissioning.

5 The procedural counsel can appeal in the interests of the child 6 He is not the legal representative of the child § 158 Abs. 4 FamFG

The opinion provided for in the draft BT Drucksache 16/6308, which had to include both the subjective interests of the child (will of the child) and the objective interests of the child (best interests of the child ), was subject to social data protection and the lack of opportunity for the procedural assistance to do the job to transfer the investigation. The word "can" survived the draft bill for the possibility of appealing in the interests of the child, which clarifies the essential distinction to the task / obligation of a lawyer and excludes liability claims from omission. Nevertheless, it obliges the courts to deal with appeals that have been lodged. The clarification made clear in the draft bill of the missing status as a legal representative and the missing parental rights when acting in one's own name had become necessary with regard to the interpretation of the replaced (sovereign) curator ad litem.

The procedural assistant influences the child-friendly design of the procedure (duration of the procedure, information for the child, selection and questions to experts, organization of the child hearing ) and, if necessary, has to appeal in the interests of the child. The procedural adviser performs his task independently and on his own responsibility. This also applies to liability for infringement of third party rights.

The procedural counselor will usually have one or more discussions with the child and, as far as possible, be required and commissioned. Also speak to parents or other persons specifically named by the court to the extent instructed. The procedural assistant should take part in the child hearing . As a rule, the procedural assistant will submit a written report by the hearing at the latest, but this is not always possible, especially in the course of the newly introduced "accelerated procedure" and the strict data protection provisions (obligation to inform, also about data collection from third parties, possibility of correction and addition before disclosure) is. As an exception, an oral statement at the hearing which contains the same requirements and represents an opinion of the procedural advisor is sufficient. For the assessment as fact, the formal gathering of evidence by means of testimony is required, taking into account the assigned task and powers.

qualification

Anyone can be appointed to assist in the proceedings; specific training is not absolutely necessary.

Because of the necessary legal, (developmental) psychological and family system knowledge, basic training (study) in social pedagogy, psychology or law, which is supplemented by special additional training, makes sense and must be individualized when ordering as part of the examination by the court for suitability be taken into account. In procedures of taking into care as a separation from the family, the exclusion of professional groups may be necessary if their usual field of activity is limited to education outside the family (home operators, social workers, etc.). The family court is obliged to select a suitable legal advisor.

In principle, there are no standardized requirements for the properties and skills of procedural assistants. However, the procedural assistants (guardians and guardians) organized in the professional association of procedural counselors, supplementary carers and guardians for children and young people (BVEB) have undertaken to work according to written standards. The fundamental characteristics of these standards are appreciation and respect for the child.

Entitlement to remuneration

The professional procedural counsel is remunerated from the judicial coffers on a lump-sum basis, regardless of his actual time expenditure, unlike the previous curator advisor. The remuneration, which also includes expenses for material expenses, such as travel costs and any VAT , is 350.00 euros per procedure ( Section 158 (7) FamFG). If there are several siblings, the remuneration is due for each child. In the complaint procedure, the fee is charged again if the complaint is substantiated and not just legally. The court is responsible for examining professional conduct

If the court assigns the legal counsel the additional task of holding talks with the child's parents and other caregivers as well as helping to reach an amicable settlement on the subject of the proceedings, the fee increases to EUR 550.00. The costs for expenses and remuneration of the procedural counsel are initially always made from the state treasury, but are later imposed on those involved in the proceedings as part of the cost determination. The legal counsel's claim for remuneration expires if it is not asserted within 3 months of the end of his activity.

Transitional law

In family court proceedings, which began before September 1, 2009, the old law applies, so it will, if appropriate, a guardian ad litem (111 FGG Reform Law Art.) (Not -beistand) ordered.

literature

  • Reinhard Bork, Florian Jacoby, Dieter Schwab: FamFG. - Law on the procedure in family matters and in matters of voluntary jurisdiction - . Gieseking Verlag, 2009.
  • Ludwig Salgo : The child's lawyer. Frankfurt am Main 1996, ISBN 3-518-28820-2 .
  • Ludwig Salgo, Gisela Zenz , Jörg M. Fegert, Axel Bauer, Corina Weber, Maud Zitelmann: procedural support: a manual for practice. 3. revised and actual Edition. Bundesanzeigerverlag, 2014, ISBN 978-3-8462-0249-4 .
  • Rainer Balloff, Nicola Koritz: Handout for curator ad litem . Kohlhammer, Stuttgart 2006, ISBN 3-17-018466-0 .
  • Werner Bienwald: procedural guardianship law . Gieseking, Bielefeld 2002, ISBN 3-7694-0906-X .
  • Uwe Harm: Guardian of litigation in care and accommodation matters. 2nd Edition. Bundesanzeiger-Verlag, Cologne 2005, ISBN 3-89817-437-9 .
  • Walter Röchling (Hrsg.): Handbook lawyer of the child . Nomos-Verlags-Gesellschaft, Baden-Baden 2001, ISBN 3-7890-7384-9 .
  • Ludwig Salgo (ed.): Procedural care business for children and young people . Bundesanzeiger-Verlag, Cologne 2002, ISBN 3-89817-040-3 .
  • Corina Weber, Maud Zitelmann: Standards for guardian ad litem . First edition Luchterhand 1998; documented in Salgo among others: Procedural assistance: A manual for practice. 3. Edition. Bundesanzeigerverlag, 2014, ISBN 978-3-8462-0249-4 .
  • Walter Zimmermann: Recent case law on the remuneration of supervisors, guardians ad litem, legal advisers and administrators. In: FamRZ. 2011, p. 1776.
  • Maud Zitelmann: Child welfare and will in the field of tension between education and law. Dissertation. Votum, Münster 2001, ISBN 3-933158-78-8 .

Web links

Individual evidence

  1. ↑ cf. Definition in Manfred Günther : Dictionary youth - age. Berlin 2010, p. 18f.
  2. ↑ a b § 158 FamFG Paragraph 4 Clause 4
  3. ↑ http://www.verektivenbeistand-bag.de/sites/default/files/bag_files/infos_fuer_ververfahrenbeistaende/standards_hp.pdf
  4. ^ Essen District Court, decision of June 18, 2002, Az. 104 F 80/01 SO ; FamRZ 2002, 1713 = FPR 2002, 673
  5. ↑ Hanseatisches Oberlandesgericht Hamburg, 3rd Senate for Family Matters, decision of May 2, 2017, Az. 12 WF 70/17
  6. ↑ OLG Stuttgart, decision of January 17, 2014, Az. 11 WF 271/13
  7. ↑ BT print. 16/6038, 239 draft bill
  8. ↑ cf. Bork 2009, 524.
  9. ↑ Professional association of procedural counselors, supplementary carers and guardians for children and young people (BVEB)
  10. ↑ Standards of the professional association for procedural assistants, supplementary caregivers and professional guardians for children and young people (BVEB)
  11. ^ BGH, decisions of January 19, 2011 - XII ZB 486/10 - FamRZ 2011, 467 and of November 17, 2010 - XII ZB 478/10 - FamRZ 2011, 199 as well as of August 1, 2012 - XII ZB 456/11
  12. ↑ KG Berlin Accel v 08.31.2016, 25 WF 51/16