Sexual violence against a minor often originates from people in the survivor's direct environment. Therefore, family law plays a major role in the sexual abuse context. Below you will find an overview of the family court procedure, the challenges that it faces in practice and the demands that the Independent Commissioner makes for a child-friendly procedure in court.
Basic information about family court proceedings
It is the parents' right and duty to take care of their child. Nevertheless, options exist for the state to intervene in the parents right to custody (so-called "state guardianship", administered under basic law). Such a custodial intervention is always necessary if the child’s welfare is in danger. The state has a duty to protect children and adolescents - even from their own parents in specific circumstances.
A family court has the right to intervene in parents right to custody
If there is an allegation of sexual violence against a child or an adolescent, then the family court can withdraw custody from the parents or one of the parents under specific circumstances and if no other help can prevent the danger. If danger from the parents exists, then the court can also ban them from having any contact with the child involved. In order to be able to make such a decision, the court must involve and hear certain actors in the proceedings:
- as a rule, the court must hear the parents in person. The court must also hear the minor involved in order to gain a personal impression.
- The youth welfare office is usually involved. In most cases, it is the youth welfare office that initially notifies the court that a child or an adolescent is potentially at risk. The staff who are in charge of the case give the court their assessments of the family situation and their prospects for helping the minor(s).
- If sexual violence is involved and the parents' custodial or access rights are being negotiated, then the family court must also appoint a so-called procedural counsel. This person is also referred to as the "child's counsel" and he/she will represent the interests of the minor during the proceedings.
Expert opinions are usually of great importance for clarifying the facts of the case. This is because the court often needs more information in addition to the statements from those involved in order to be able to make a ruling. The court will then formulate evidentiary questions, which the educational, medical or psychological experts have to answer in their detailed reports.
Challenges faced in practice: the survivors often find the court proceedings and questioning about the act very stressful
Proceedings involving the possible child sexual abuse are usually very stressful for the survivors. They are often lengthy and frequently lack clear evidence.
In particular, children and adolescents often find the questions about the act and the court hearings very difficult to cope with: They are confronted with the abuse once again and have to talk about their experience in front of strangers. Many of the survivors also report that their interests were not taken into consideration sufficiently during the proceedings. Therefore it is important that judges, experts and others involved in the proceedings are qualified and that the hearings are always child-friendly.
Criminal proceedings often run adjacent to the family court proceedings. Repeated interrogations or hearings in different proceedings involving the same act of abuse are particularly stressful for the survivors.
Demands of the UBSKM
In view of these circumstances, the Independent Commissioner advocates that the following changes should be implemented to make court proceedings less stressful for children and adolescents who have survived sexual violence:
- the quality of the hearings and the questioning of children and adolescents must be improved
- all of the experts involved in the process must be qualified and trained in developmental psychology, social pedagogy and child-friendly communications
- access to the law must be improved, e.g. through providing legal advice free-of-charge and by making information material child-friendly
- interdisciplinary cooperation must take place between the experts involved so that the survivors do not have to be repeatedly questioned
The law that combats sexualised violence against children, which came into force in July 2021, implements some of these demands. This law also places higher requirements on the qualifications of family court judges and procedural counsels.
Nevertheless, there is still a lot to do. The National Council, which was set up by the UBSKM together with the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth is currently developing a non-binding "practical guideline for applying child-friendly criteria in family court proceedings".
Guidelines for child-friendly proceedings
These criteria are intended to provide orientation for judges and those involved in family court proceedings. They should help to ensure that all of the actors carefully determine the will of the child, that children’s well-being is given priority and that children's rights are respected.
The practical guidelines will be made available to the courts and other actors through the judicial administrations during 2022.
More information can be found on the National Council website.
Important: always contact a lawyer if you need help with a specific case or if you need support in family court proceedings. The Sexual Abuse Help portal’s database is available to you for searching for legal support.