Hearing the Voice of the Child: Current Practice in Family Courts in Germany

• Published date: 01 July 2019
• DOI: http://doi.org/10.1111/fcre.12418
• Author: Joseph Salzgeber,Sophie Warning‐Peltz
• Date: 01 July 2019

HEARING THE VOICE OF THE CHILD: CURRENT PRACTICE IN

FAMILY COURTS IN GERMANY

Joseph Salzgeber and Sophie Warning-Peltz

German family courts have a long-standingtradition of hearing the child’s voice when proceedings affect the child. This article

aims to provide an overview of the German procedural rules. The current role and practice of child hearings in family courts

and the direct effects on the child are discussed in detail. The perceived benefits, challenges, and pitfalls are deliberated from

the viewpoint of the psychological expert. Hearing the voice of the child in person is increasingly viewed as beneficial to the

proceedings if thejudges and other professionals involvedpossess the necessary qualificationsand competence.

Key Points for the Family Court Community:

Child hearings are a well established and researched practice in German family courts.

Judges consider hearing the child helpful and quintessential for their decision.

The benefits outweigh the risks of stress for the child.

Child hearings require training and competence.

Keywords: Hearing the Child in the Family Court Proceedings; Impact on Parents and Children; Practice and Experience

in Germany; Qualification of the Judges and Other Professionals.

Since 1980, following major reforms relating to divorce and custody, German family law has stated

that every child is entitled to be heard in person by the family court when the child’s inclinations, attach-

ment and relationships,

1

and wishes are significant to the court’s decision. The Act on Proceedings in

Family Matters and in Matters of Non-contentious Jurisdiction (FamFG) came into force in September

2009 and emphasizes the status and representation of the child in accordance with Article 12 of the

United Nations Convention on the Rights of the Child(UNCRC) and the German constitution.

I. GERMAN PROCEDURAL RULES (FAMFG)

German procedural rules do not allow participation in the proceedings of children under the age

of 14. According to Section 9 of the FamFG, children are considered to have the capacity to partici-

pate in the proceedings and may assert their right to do so. Section 159 (FamFG) explicitly

demands that if a child is aged 14 years or older, the court must hear the child in person and the

child must be given the opportunity to express his or her wishes. Furthermore, the child is to be

informed in a manner appropriate to his or her age and understanding about the objective, course,

and potential outcome of the proceedings. If the proceeding solely concerns the child’s property, the

hearing may be omitted. Other than that, the court may only refrain from an in-person hearing if

there is significant concern that it might negatively affect the child’s physical or emotional well-

being (BT-Drs. 8/2788, 74; OLG Schleswig Beck RS 2008, 07591; BGH NJW-RR 1986, 1130).

This may be the case if a parent does everything to hinder the hearing or manipulates the child

Correspondence: salzgeber@gwg.info; swarningpeltz@t-online.de

FAMILY COURT REVIEW, Vol. 57 No. 3, July 2019 387–391

© 2019 Association of Family and Conciliation Courts