Guardian ad litem
The guardian ad litem has, in Germany the task in the proceedings before the guardianship court (on order of a supervisor or arrangement of accommodation ) represent the interests of the person concerned, where it can make motions, appeal insert and take part in the hearings. Like a lawyer , as a party representative he has the same rights and obligations for his " client ". The same provisions on data protection , documentation ( filing ) and the right to refuse to testify therefore also apply to him .
tasks
The curator ad litem should explain to the person concerned how the judicial proceedings are carried out and explain the contents and notifications of the court to him. He should also convey the wishes of the person concerned to the court. He can also ensure that all possible voluntary help for the person concerned has been exhausted. The legal basis is the law on the procedure in family matters and in matters of voluntary jurisdiction (FamFG) in care procedures ( § 276 FamFG) and in placement procedures ( § 317 FamFG). Approx. 80,000 guard advisor are appointed annually in legal care and placement proceedings. In the cases of legal child of procedure ( § 167 FamFG) takes the method of the caregiver in the place method assistance .
The Frankfurt Higher Regional Court took the following position on this: “The curator advisor is a curator of his own kind. He is to be placed at the side of the person concerned, insofar as this is necessary to safeguard the interests of the person concerned. […] The background to the legislative considerations was, especially with regard to the placement procedure , that the person concerned should not stand alone in these particularly serious encroachments on his freedom, but should be given expert advice and represented. The curator ad litem has the legal status of a legal representative of the person concerned within the framework of the proceedings for which he has been appointed . He does not need to follow the instructions of the person concerned, but only has to look after the objective interests of the person concerned. ”That means, he represents, comparable to a lawyer or legal advisor, only the interests of the child. This is mainly made clear in his written statement, in which an application or a suggestion on behalf of the child should also be formulated. The court usually requests this statement within a certain written period so that all parties know the content and the application of the child and youth attorney or guardian ad litem before an oral hearing is scheduled. In the oral hearing in court he has all the rights that a lawyer is entitled to. He can submit applications, conduct interviews, initiate the taking of evidence, and present evidence.
qualification
The curator ad litem can be a lawyer, but does not have to be, he can even be appointed on a voluntary basis. In view of the necessary knowledge of the legal process, this is unlikely to be of much help in practice. Models have proven to be effective in which basic pedagogical or psychological training (usually a degree) is followed by further training with legal content. Especially due to the very complex areas of substantive family law, social law, the various procedural rules ( ZPO , FamFG, etc.), this possibility of qualification is certainly adequately oriented to needs and later practice. The federal associations for guardian ad litemes develop standards and a code so that the guardian ad litemes work according to the same principles and the quality of the work is assured. However, it is still open to what extent such specifications and recommendations will actually be complied with in practice.
End of proceedings, appeal
The appointment of the guardian ad litem ends when the proceedings for which he has been appointed become final. The curator ad litem can always lodge a complaint against court decisions ( Section 303 (3) FamFG), which will be decided by the regional court. Under the conditions mentioned in Section 70 FamFG, the curator ad litem can also lodge a legal complaint with the Federal Court of Justice (Section 133 GVG).
However, the guardian ad litem's appeal is only admissible if the person concerned could also appeal against the contested decision himself . But he cannot do this if he is not "weighed down" by the decision. This was the case in the decided case, where the supervisory court had not ordered or approved the closed placement of the person concerned, but rejected it.
Supervision procedure
Section 276 of the FamFG particularly highlights three cases in which, as a rule,a curator ad litem has to be appointedin the care procedure:
- if the person concerned is not to be heard personally (para. 1 no. 1);
- if the subject matter of the proceedings is the arrangement of supervision for all matters (Paragraph 1 No. 2);
- if a decision is to be made on the approval of the supervisor's consent to sterilization ( Section 1905 BGB ) ( argumentum e contrario from Paragraph 1 No. 2 Hs. 2) and Section 297 FamFG.
A curator ad litem must also always be appointed if a decision has to be made on the termination of life-support measures (Section 1904 (2) BGB; Section 298 FamFG).
Placement procedure
The curator ad litem should always be appointed in the placement proceedings, unless the judge expressly justifies in the approval or order decision why he does not consider a curator ad litem necessary, cf. Section 317 (2) FamFG.
Criminal proceedings
It is not yet possible to represent those affected in criminal proceedings , for example in the event of a threat to the best interests of the child, abuse, etc., in which they may appear as joint plaintiffs or initiate proceedings. Efforts to employ suitable representatives with basic, experienced pedagogical and psychological knowledge are increasingly observed. Courts in particular often want interest representatives outside the legal profession in order to be fairer to the children in such proceedings and to be able to deal with them more adequately. However, this must go hand in hand with reliable and qualitative training in criminal law and the rules of procedure. The legal side of such an activity should not be underestimated in any of the procedures mentioned. There are and will remain legally pregnant procedures in which principles and methods must be adhered to. The public prosecutor's offices request supplementary guardianship (comparable to the guardianship) for children and young people more regularly in order to assist and support them in judicial interrogations and confrontations. A specific representation, as in §§ 50, 70b FGG, is not usual in these proceedings either.
compensation
Since September 1, 2009 , the curator ad litem has been paid like a professional guardian in accordance with Section 277 of the FamFG, which suspended Section 67a of the FGG . The hourly rate is between € 19.50 and € 33.50, plus sales tax (depending on qualifications).
Payment is always made from the state treasury. However, this can charge the guardian ad litem remuneration within the scope of the court costs if the guardian has assets of more than € 2,600 (§ 93a KostO in conjunction with § 1836c BGB).
Legal development through the FGG reform
The FGG reform law passed in June 2008 brought far-reaching changes on September 1, 2009 (see Family Court Act ). The representation of interests for children and young people in family court proceedings will in future be called " procedural assistance " (cf. §§ 158 , 174 , 191 FamFG). The previous optional rule has become a basic obligation to appoint, but there are exceptions to the rule examples in Section 158 (2) FamFG, which must be justified in a resolution. The reform also resolved to change the remuneration of guardian ad litem in filing proceedings to a flat rate of € 350 per case, which can be increased to a maximum of € 550 ( Section 158 (7) FamFG) if the guardian ad litem also conducts discussions with other parties involved and should examine the possibility of an amicable settlement. The amount includes VAT and any expenses incurred. With a previous average amount of € 800 per hour, the payment is reduced by half. Experts consider this to be a major threat to the quality of procedural maintenance and the best interests of the child.
Note: In practice, the guard advisor (now legal advisor) has to be reappointed for each application in a procedure. The flat-rate remuneration must then also be paid again. In addition, the curator ad litem receives the lump sum per child. This means that in a procedure in which the guardian ad litem is appointed for three children, he will also receive the remuneration three times, regardless of how lengthy the procedure is.
Future prospects
Due to the enormous number of proceedings before the guardianship courts, there is a tendency to appoint guardians ad litem. The courts and authorities have now adjusted to the - no longer entirely new - legal structure and are adopting it well in practice.
