The legislative amendment introducing a requirement for advance authorisation from a family court for a measure that would deprive a child of his or her liberty went into effect on 1 October 2017. It improves the protections against regular or long-term deprivation of liberty afforded to children placed in hospitals, residential care facilities or other facilities. The legislation also sets a time limit and provides for the involvement of a guardian ad litem (Verfahrensbeistand) for the child within the scope of the court’s jurisdiction. Previously, the person(s) who had custody of the child took such decisions on their own. In the future, the involvement of a guardian ad litem will provide children the opportunity to voice their own concerns. This is important because children wishing to defend themselves against measures depriving them of their liberty have only limited access to official complaints procedures.
The amendment fills a legislative gap and recognises the requirements of article 25 of the UN Convention on the Rights of the Child (UN CRC), which provides the "right to review" for children placed in a facility outside of the family. This means that children have the right to periodic review of the treatment provided and also all other circumstances relevant to their placement. Article 25 of the UN CRC requires a periodic review in which the appropriateness and also the course of the treatment and/or care are examined. In 2014, having reviewed Germany’s state-party report, the UN Committee on the Rights of the Child emphasised that deprivation of liberty should be used with children only as a measure of last resort and that if it is used, this should be for only the shortest possible time and subject to regular review.
The National CRC Monitoring Mechanism intends to address this issue at greater depth in the future, primarily in connection with the issue of complaint mechanisms for children and adolescents . The National CRC Monitoring Mechanism took an active role in the recent phase, submitting a written statement on the draft of the legislation mentioned and taking part in a public hearing held by the German Ethics Council on "benevolent coercion" in child and youth services. It also engaged in conversations with organisations run by and for young people, such as MOMO e.V . and with other civil society organisations and experts.
Stellungnahme der Monitoring-Stelle UN-Kinderechtskonvention zum Referentenentwurf des Bundesministeriums der Justiz und für Verbraucherschutz eines Gesetzes zur Einführung eines familiengerichtlichen Genehmigungsvorbehaltes für freiheitsentziehende Maßnahmen bei Kindern im September 2016