Kapitel 1: Grundsätze
1. Basic principles

1.a Best interests of the child

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1.b Non-discrimination

The term ‘best interests of the child’ from Article 3 of the UN Convention on the Rights of the Child is officially translated into German as ‘Wohl des Kindes’ (‘Wellbeing of the child’). This non-literal translation may encourage paternalistic attitudes. The term ‘Kindeswohl’ disregards the child’s perspective and does not adequately take into account the opinions of the children and adolescents according to their age and maturity (Article 12 of the UN Convention on the Rights of the Child). It is thus necessary to rethink the concept and work on an understanding of the best interests that directly combines the right to participate and be heard (as the most urgent expression of subject status) with best interests.

The German Constitution, the Basic Law (Grundgesetz), does not consider a child’s best interests as of primary concern. In accordance with Article 59 Paragraph 2 of the Grundgesetz, the UN Convention on the Rights of the Child ranks alongside a simple federal law, and thus below the Constitution. In the event of conflicts between the UN Convention on the Rights of the Child and the Grundgesetz, the latter takes precedence. Although the overarching priority favouring the best interests of the child, established in Article 3 of the UN Convention on the Rights of the Child, as a directly applicable principle, is valid under German law, the best interests of the child are only recognised as a guiding principle in the Law of Parent and Child established in the German Civil Code (BGB), in the Act on Court Procedure in Family Matters (Familienverfahrensgesetz), and in the German Child and Youth Services Act (Vol. VIII of the German Social Code); it does not figure in many areas of common federal law (e.g. in asylum and immigration law).

In the application of law by the authorities and specific case law, the best interests of the child are thus usually only taken into account as part of deliberations specified in the relevant legislations, without respecting the overarching principle applicable under the UN Convention on the Rights of the Child. Legislators and the government thus have great responsibility when it comes to the extent to which obligations from Article 3 of the UN Convention on the Rights of the Child are upheld, yet they are not fulfilling this adequately, as was found by a legal opinion commissioned by the German Federal Ministry for Family Affairs, Senior Citizens, Women and Youth (BMFSFJ).

A number of laws significantly affecting the key interests of children and adolescents, particularly in the area of migration, have been launched through summary proceedings, such as access to education and appropriate health care, family unity, or the right to grow up protected from physical, mental and sexual abuse. The relevant legislative procedures did not comprehensively identify children’s interests, nor give these priority over other matters.

The failure to properly identify and take into account children’s interests in judicial and administrative procedures means children cannot be guaranteed adequate access to the law. There are virtually no procedures or criteria for identifying and determining the ‘best interests of the child’ in an administrative or judicial context. A children’s rights approach, whose core element revolves around giving preference to the best interests of the child, is gradually taking hold in civil society, and in programmes and projects relating to children. However, most local, state and federal institutions relating to children (e.g. administrative authorities, legislative bodies, welfare institutions, courts), and even the general public, are barely aware of this approach and the priority given to the best interests of the child, and thus do not adequately take these factors into account.

But the principle of giving priority to the best interests of the child, as the child’s right and a binding decision-making guideline, is also frequently neglected in cases such as medical decisions, particularly those relating to young children in the context of birth and the first few years of life. Examples here include non-medically-indicated procedures affecting physical integrity, such as planned Caesareans, interventions to initiate and accelerate birth, and gender-corrective surgery in the case of intersexuality. In general, Germany has not implemented the relevant recommendations issued by the UN Committee in 2014. There are significant shortcomings, both in terms of conceptual understanding and legal priority for the best interests of the child, and in relation to the practical implementation thereof.

  • The National Coalition Germany recommends that the UN Committee call on the German federal government to
  • 33. introduce the best interests of the child as a primary consideration into the Constitution. Its legal contents should be assessed as per General Comment No. 14 (2013) in consultation with non-governmental organisations and all levels of government – federal, state and municipal – made aware of the result The government should help ensure the best interest of the child as a primary consideration is upheld through guidelines and advanced training.
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1.b Non-discrimination