Article 6 of the Basic Law regulates the relationship between state, parent and child.
The UN Convention on the Rights of the Child (ratified by Germany on 5 April 1992) distinguishes between the following types of child rights:
Further (participation) rights of children, adolescents and parents are formalised in Social Code Book 8.
The subsidiary relationship between state, parent and child is regulated in Article 6 of the Basic Law (Grundgesetz/GG), the constitution. Children and adolescents are in need of protection and support whilst growing up in order to develop into socially competent individuals. Article 6 (2) places primary responsibility for this with the parents, who have a legal duty to provide the care and upbringing of children. Parents can generally fulfil this duty according to their personal convictions, provided their actions preserve the rights of the child.
The right of the parent is thus an altruistic basic right that both serves and is secondary to the child's welfare. The state takes on the role of a vigilant guardian under what is known as the principle of subsidiarity: it accepts the legally enshrined autonomy of parents with respect to raising their children whilst watching over the performance of their duties. Article 8 of the European Convention on Human Rights states that everyone has the right to respect for their family life.
The state is obliged to step in with supportive or controlling measures only if parents fail to raise their children to be independent and socially competent individuals in line with societal expectations, i.e., they do not (or are unable) to fulfil their rights and duties. The combination of Article 2 (1) GG in conjunction with Article 6 (2) GG guarantees children and adolescents the right to a state assurance of parental care and upbringing. Where the child's welfare is endangered, the state may legitimately intervene in the constitutionally protected parent-child relationship.
On 20 November 1989 the UN General Assembly unanimously adopted the Declaration of the Rights of the Child. The UN Convention on the Rights of the Child entered into force on 2 September 1990. It comprises 54 articles: Articles 1–41 deal with the rights of the child, Articles42–45 regulate implementation, and Articles 46–54 cover the procedure for signing. To this day, it is considered a central international instrument for children's human rights. Ratified by 196 nations, the treaty has been binding in the Federal Republic of Germany since 5 April 1992. The Federation only withdrew its reservations – which related in particular to the rights of foreign children – towards the Convention in May 2010.
Child rights fall into three main categories
For the first time in 1968, the Federal Constitutional Court emphasised that children are also considered basic rights-holders and entitled to the protection of the state. However, for many years there has been extensive debate surrounding the rights of children and whether they should be expressly incorporated in the Basic Law. The main points of contention relate to which Article they should be added to and the wording. In 2021 the federal government submitted a draft revision incorporating child rights, but no decision had been made as of mid-year.
The Basic Law, the Civil Code (Bürgerliches Gesetzbuch/BGB) and Book 8 of the Social Code (SGB VIII) also contain a slew of rights designed to guarantee or support children growing up and safeguard the processes surrounding children and adolescents' upbringing, development and education. Selected examples include:
Book 8 Social Code