The State of the Art of Child Hearings in Germany. Results of a Nationwide Representative Study in German Courts
| DOI | http://doi.org/10.1111/fcre.12212 |
| Author | Sandra Gathmann,Michael Karle |
| Date | 01 April 2016 |
| Published date | 01 April 2016 |
HEARING THE VOICE OF THE CHILD
THE STATE OF THE ART OF CHILD HEARINGS IN GERMANY.
RESULTS OF A NATIONWIDE REPRESENTATIVE STUDY IN
GERMAN COURTS
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Michael Karle and Sandra Gathmann
According to German family law, in family court proceedings that deal with custody or access rights, family judges are obli-
gated to personally hear the child if the feelings, ties, or will of the child are significant for the decision. In a research study
commissioned by the Federal Ministry of Justice, a nationwide representative survey of all judges compiled their personal
information and their attitudes and expectations as well as various parameters regarding the concrete practice of hearing chil-
dren. Also, with a very complex methodological design, over 50 children and their parents were studied one week in advance
of the hearing, directly before and after the hearing, and four weeks following the hearing. The results of the study are pre-
sented, particularly those pertaining to the burden and relief for the children and the expectations of judges. The practical expe-
riences of family judges in personally hearing children are included as well.
Key Points for the Family Court Community:
There is no other study concerning this topics worldwide
There is no burden for children in child hearings.
Judges found child hearings to be useful.
Further educations are required.
Keywords: Access Rights; Child Hearing; Custody Rights; Family Court Proceedings; Family Law Cases; and
Nationwide Representative Study in Family Courts in Germany.
INTRODUCTION
The views of children directly affected by family court proceedings are commonly sought by
judges, and rightfully so. Guidelines and practices concerning “child hearings” differ across
countries and courts. This article presents the results of rigorous research on German judges’
experience with child interviews in court. The study was commissioned by the German Federal
Ministry of Justice. The Ministry investigated the implications for the child in cases of custody
and access regulations. The central question concerned the immediate stress or relief felt by
children as a result of being interviewed by a judge and any possible effects of the hearing on
family relationships. This question was to be viewed and differentiated according to the child-
ren’s age and gender. Of further interest were: (1) judge’s epidemiological data and attitudes,
(2) the state of professional development, (3) the experience level of judges, and (4) practical
aspects of the hearing situation. In addition, the importance of other professionals and, in par-
ticular, the guardians ad litem, were to be investigated. The Ministry, with the directive to take
a gender-based mainstreaming approach into consideration, formulated 20 questions alto-
gether. In order to answer both the questions concerning judges’ approach to child hearings
and the effects of the hearings on the children, the study took a two-step approach. Overall our
findings show that child-hearings are viewed as meaningful and advantageous by judges. In
addition, children appear to experience only modest increases in stress, which appear to be
temporary.
FAMILY COURT REVIEW, Vol. 54 No. 2, April 2016 167–185
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C2016 Association of Family and Conciliation Courts
LEGAL PREREQUISITES
A passage on taking the wishes of a child into consideration from Article 12 Paragraph 1 of the
United Nations Convention on the Rights of the Child (2009), says that:
“States/Parties shall assure to the child, who is capable of forming his or her own vi ews,
the right to express those views freely in all matters affecting the child, the views of the
child being given due weight in accordance with the age and maturity of the child.”
And explicitly in Paragraph 2 that:
“For this purpose, the child shall in particular be provided the opportunity to be heard in
any judicial and administrative proceedings affecting the child, either directly, or through a
representative or an appropriate body, in a manner consistent with the procedural rules of
national law.”
Germany first ratified this Convention on April 5, 1992, with caveats, finally fully ratifying it eight-
een years later on July 15, 2010. The UN Convention is in complete conformity with Article 103 GG
Paragraph 1 of the German Constitution. Herein, it is determined that “every person shall be entitled
to a hearing in court in accordance with the law.”
In fact, in German law there has been a commitment to the representation of children in court hear-
ings under relevant circumstances since January 1, 1980. The commitment to child representation was
made in connection with the revision of German divorce law in 1977, which introduced the principle of
the irretrievable breakdown of marriage, implying that neither partner had to prove fault. Thus the term
“in the best interests of the child” was given new weight in the process of determining child custody.
It was at this point in history that the inclinations, bonds, attachments, and wishes of the child were
now necessarily recognized and became important criteria for child custody. This was first regulated in
section 50b of the Law on Matters of Voluntary (Non-contentious) Jurisdiction (FGG) and was most
recently modified in section 159 (Court hearings with children) in the Law on Procedure in Family
Affairs in Matters of Non-contentious Jurisdiction (FamFG) (Act on Proceedings in Family Matters
and in Matters of VoluntaryJurisdiction, 2008), which came into force in September 2009.
Herein is stated that:
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Section 50b 1.The court is to hear the child if he has reached the age of 14. If the matter relates solely to
the child’s assets a personal hearing will be waived, unless it is indicated by the particular case.
Section 50b 2. A child under the age of 14 it is to be interviewed under the circumstance that the child’s
inclinations, bonds and wishes are of importance for the court’s decision or if a hearing is indicated for
other reasons.
Section 50b 3. The court may decide for serious reasons to refrain from a hearing of the kind described in
§1 and §2, if the hearing is temporarily waived on grounds of extraordinary circumstances; however, it is
to be carried out as soon as is possible afterwards.
Section 504. As long asno disadvantages to a child’s development, upbringing and health are to be feared,
the child is to be informedabout the subject, the procedureand the possible outcome of the proceedings in a
suitable manner and one that is appropriate to his age. The child is to be given the opportunity to express
his views. If, accordingto § 158, the court has appointed a guardian ad litem for thechild, the hearing is to
take place in thisperson’s presence. Furthermorethe hearing is to be conducted asthe court sees fit.
AIMS, METHODS, AND EXECUTION OF THE STUDY
On May 26, 2006, the German Federal Ministry of Justice commissioned an investigation into the
practical implications for the child in cases of custody and access regulations (German Federal Min-
istry of Justice, 2006). The central question concerned the immediate stress or relief felt by children
168 FAMILY COURT REVIEW
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