Analysis of the resolution of the European Parliament on the role of the German Children and Youth Office (Jugendamt) in cross-border family disputes

On 29 November 2018, the European Parliament adopted a resolution on the role of the German Children and Youth Office (Jugendamt) in cross-border family disputes^[1]. The resolution is a response to petitions received by the Committee on Petitions of the European Parliament for more than 10 years by non-German parents who complain of systematic discrimination and arbitrary measures taken against them by the German Jugendamt in family disputes with cross-border effects involving children, such as parental responsibility and child custody^[2].

In the resolution, the European Parliament drew attention to the huge role played by the Jugendamt in the German family law system. The Office is a party to any family dispute involving children. It not only represents the interests of the child, but also has important discretionary powers - it issues recommendations binding on judges, may adopt interim measures against which the law does not provide for the possibility of appeal, and is responsible for the enforcement of decisions of German courts^[3].

The document refers to a number of allegations made by petitioners against the Jugendamt, engaging in discriminatory practices. These allegations indicate, inter alia, that

• broad interpretation of court rulings by the Jugendamt often undermines the effective legal protection of non-German parents^[4];
• the competent German authorities have systematically interpreted the concept of 'child's best interests' in such a way as to indicate that it will only be pursued if the children remain on German territory, even in cases where abuse and domestic violence against a non-German parent has been reported^[5];
• the competent German authorities do not recognize and enforce judgments and other decisions issued by judicial authorities of other EU Member States in family disputes with cross-border implications^[6].

In so doing, the Parliament drew attention to insufficient assistance and legal advice offered by the countries of origin to parents who are not Germans^[7].

The resolution stresses the need to ensure protection of children's rights guaranteed by international agreements, both by the EU institutions and EU Member States, in particular in the context of increased number of cross-border disputes resulting from enhanced mobility in Europe^[8]. It is recalled that “according to Article 24 of the Charter of Fundamental Rights of the European Union, every child has the right to maintain a stable personal relationship and direct contact with both parents if the parents exercise their right to free movement, provided that such contact is not contrary to the best interests of the child”.^[9]. On the other hand, however, it should be remembered that substantive family law remains the sole responsibility of the Member States, and the European Union does not have a general competence to act in matters relating to the above.

At the same time, in the light of the said Resolution, all decisions on childcare should follow the guiding principle according to which the family is the primary and optimal environment ensuring the welfare of the child^[10]. The principle of non-discrimination on the grounds of nationality and the principle of mutual trust between the legal systems of the EU Member States were emphasized^[11].

With this in mind, the European Parliament has expressed its concern at the lack of resolution of problems relating to the German family law system, as evidenced by the petitions from EU citizens to the EP Committee on Petitions, which report on discrimination against non-German parents in cross-border family disputes. In so doing, the European Parliament criticized the passivity of the European Commission, which for years 'has failed to implement thorough checks on the procedures and practices of the German family law system, including the Jugendamt, with regard to family disputes with cross-border implications, and has thus failed to provide effective protection for the welfare of the child and other related rights'.^[12].

In the opinion of the European Parliament, there is a worrying phenomenon of systematic repetition of situations in which German authorities refuse to recognize decisions issued by the courts of other Member States if a child under the age of three has not been heard^[13]. Although 'the German Federal Constitutional Court has ruled that the court may order the hearing of a child who is under three years of age at the time of the decision'.^{[14], the} practice of the Jugendamt with regard to non-recognition of judgments of courts of other countries violates the principle of mutual trust between Member States when they have introduced different minimum age thresholds for the child to be heard - which is fully permissible and does not violate any standards provided for by international law.

In addition, the European Parliament considered requirement, established by the Jugendamt, to speak German with the child in the case of supervised parent-to-child contact as clear discrimination on grounds of origin and language. Violation of this requirement may result in the interruption of the conversation and a ban on the parent's contact with his or her children^[15]. The Parliament stressed that the use of a common language "plays a key role in maintaining strong emotional ties between parents and children and ensures effective protection of children's cultural heritage and well-being".^[16]. The prohibition of conversations in a language other than German is also contrary to one of the objectives of the European Union, which is to promote multilingualism and the diversity of cultural backgrounds in the Union, and constitutes an infringement of fundamental rights in the area of freedom of thought, conscience and religion^[17].

Criticism has also been expressed at the method of determining 'habitual residence'.^[18] of a child by German authorities. It has been pointed out that the Court of Justice of the European Union has defined the criteria that should be used to determine the place of permanent residence by national judicial authorities^[19].

Subsequently, the European Parliament criticized "the lack of statistics on the number of cases in Germany where court rulings did not comply with the recommendations of the Jugendamt and the results of family disputes involving children of bipartite couples, despite repeated requests for this data to be collected and made publicly available for years".^[20].

The resolution also expresses concern at the phenomenon described by the petitioners, namely that the competent German authorities set too short deadlines and the documents are worded in languages which the petitioners who are not German do not understand^[21].

In response to these allegations, the European Parliament, in this resolution, called on the European Commission to take a series of active measures to ensure fair and consistent non-discriminatory practices across the Union that will be applied to parents in cross-border child custody cases^[22]. The Parliament called on the Commission:

• to ensure that the child's habitual residence is adequately determined by the German judicial authorities in the cases referred to in the petitions received by the Committee on Petitions^[23];
• to assess, with regard to these petitions, whether, in determining their jurisdiction, the German judicial authorities have respected the provisions of the Brussels IIa Regulation and whether they have taken into account judgments given by judicial authorities of other Member States^[24];
• to ensure that thorough checks are carried out to detect discriminatory procedures and practices in the German family law system, including by the Jugendamt, in the framework of cross-border family disputes^[25];
• to check whether the relevant language requirements have been complied with in the cases described in the petitions submitted to the European Parliament for cross-border disputes in family cases heard by German judicial authorities ^[26];
• to offer more training and international exchange opportunities for social service officials, in order to increase their knowledge of the functioning of their counterparts in other Member States and the exchange of good practices^[27];
• to assess carefully the implementation in Germany of the provisions of Regulation (EC) No 1393/2007 concerning the service of documents in languages which non-German parents do not understand, in order to remedy all possible infringements in an appropriate manner^[28].

Furthermore, the European Parliament has called on Member States to implement targeted measures to improve legal support, assistance, counselling and information for their citizens in cross-border family disputes involving children^{[29] , as} well as information on discriminatory or unfavorable judicial and administrative procedures brought against them by German authorities in cross-border family disputes involving children^[30].

The European Parliament has paid particular attention to the practice of making it difficult for parents to communicate with their children in their mother tongue. The resolution not only dedicates a significant amount of space to this issue, but directly calls on Germany 'to do more to ensure that parents can use their mother tongue with their children during supervised visits'.^[31].

In the final part of the document, the European Parliament reminded all Member States of their obligations under international treaties, and in particular the Convention on the Rights of the Child, as regards the need to provide the child with all necessary and reasonable alternative care, including the need to provide custody of the child at all times, taking into account the child's ethnic, religious, linguistic and cultural identity^[32].

The resolution of  the European Parliament on the Jugendamt is the first act of such determination on the part of the EU institutions to condemn systemic discrimination against non-German parents in disputes over childcare in the Federal Republic of Germany. As the Committee on Petitions has acknowledged, no effective measures have so far been taken to prevent parents of non-German origin from being separated from their children and to prevent children from preserving their linguistic, cultural and national identity, despite receiving petitions containing descriptions of infringements for more than 10 years. However, it should be mentioned that the resolution adopted by the European Parliament is part of the so-called EU soft law and does not create legally binding standards. It is therefore crucial that further decisive steps in this situation are taken by the European Commission, which, in cooperation with the government of the Federal Republic of Germany, has the opportunity to find appropriate and binding solutions. To date, however, the European Commission has taken the view that it does not have any power to "intervene in individual cases of possible infringements of rights which are governed solely by national regulations and have no connection with EU law"^[33]and its recommendations were limited to the use by EU citizens of complaints and redress procedures in Germany and possible referral of the case to the European Court of Human Rights.

It is worth recalling that on 28 June 2018 another international organization spoke out on the issue of unjustified separation of children from their parents. The Parliamentary Assembly of the Council of Europe adopted Resolution 2232 (2018) on striking a balance between the protection of the best interests of the child and the need to maintain family unity. The document stresses that children have the right both to be protected from all forms of violence, abuse and neglect, and to be inseparable from their parents against their will. Despite the existence of clear international standards on the rights of the child, unjustified and unnecessary breaking of the child's ties with parents during family law proceedings is still a fact. This is why the Parliamentary Assembly has called on the Member States of the Council of Europe to implement a uniform practice for resolving family matters, especially with regard to the removal of a child, adoption, transfer to a foster family and the restoration of parental rights.

The indicated Resolution of the Parliamentary Assembly of the Council of Europe was the subject of a press release^[34] and the analysis of experts of the Ordo Iuris Institute for Legal Culture^[35].

                The adoption in 2018 by the Council of Europe and the European Parliament of two documents criticizing unjustified deprivation of parental custody in European countries shows that important international bodies recognize the problem that European families have been facing for years and the serious violations of children's rights associated with it. However, the answer to the question as to whether the declarations will be followed by concrete actions that will prevent further family dramas remains open.