The state is obliged to protect children and adolescents against threats to their welfare (Article 6 para. 2 sentence 2 of the Basic Law; Section 1666 of the Civil Code; Article 1 para. 3 and Article 8a of Book 8 of the Social Code).
The term “threat” in the context of child welfare is understood to mean “a danger of such a magnitude that, if not addressed, is highly likely to cause considerable damage to the child’s development“ (Federal Court of Justice,1956).
All child and youth services activities must be directed at preventing such threats from arising in the first place (broad interpretation of child protection) or to avert them in time (narrow interpretation of child protection).
Parents and children/adolescents must be offered suitable assistance to avert any threats.
If parents refuse such assistance, the youth welfare office must intervene in order to protect their children (taking into custody/referral to the family court in cases involving intervention in parental custody rights).
Besides offering counselling, encouragement, support and assistance, child and youth services is also responsible for protecting children from danger to their welfare (Article 1  no. 4 of Book 8 of the Social Code [SGB VIII]). Underlying this duty to protect is a narrow interpretation of child protection as a means to avert threats to their development. Case law in this area understands a “threat” to be a danger of such a magnitude that, if not addressed, is highly likely to cause considerable damage to the child’s development (Federal Court of Justice, 1956). Section 1666 (1) of Germany’s Civil Code considers the child’s “best interests” to be endangered when, should the child continue to be exposed to an identifiable endangerment, it is justifiable to assume that their physical, intellectual or psychological welfare will very likely be damaged.
Book 8 of the Social Code contains a multitude of references to this duty to protect. The main provisions in this context are:
A large number of other provisions (including Articles 37b and 44 of Book 8: Safeguarding the rights of children and adolescents in family care; Article 38: Allowability of service delivery abroad, etc.) make implicit reference to the duty to protect. The five articles of the act on cooperation and information in child protection matters (Gesetz zur Kooperation und Information im Kinderschutz, KKG) also contain significant provisions on child protection, in particular Article 4, which is worded very similarly to Article 8a of Book 8 of the Social Code: it describes the duty to protect that professionals outside of child and youth services have, too. These legal provisions are the basis for setting procedural rules, assigning responsibilities and defining rights.
Section 8a of Book 8 of the Social Code determines how the youth welfare office needs to respond if it becomes aware of a significant indication that a child’s welfare is in danger. It must then sit down with a number of professionals to assess the risk of danger, if possible involving the child/adolescent and their parent(s) or guardian(s). The youth welfare office must also obtain a personal impression of the child’s/adolescent’s direct environment, where possible with the involvement of the person who notified the youth welfare office in the first place. Should the youth welfare office see any need for action in order to avert the danger, it must provide the means to do so.
In addition, agreements must be concluded with all organisations offering services and facilities for children and adolescents. This is to ensure that they, too, perform an assessment of the risk to the welfare of a child or adolescent should they become aware of significant indicators that a danger exists. Where possible, an experienced expert should be involved in this process; likewise, the young person in question should be involved provided this does not put them at even higher risk. The agreements must list the qualifications that an experienced consultant expert must have; in particular, they must be knowledgeable when it comes to protecting the welfare of children and adolescents with a disability, who are especially vulnerable. Where necessary, efforts should be made to encourage the use of support and assistance. Once the professionals have exhausted all the options they have to provide assistance and protection, they are obliged to inform the youth welfare office of the endangerment (Article 8a ).
If there is imminent danger to a child’s or adolescent’s welfare and immediate action is required, the youth welfare office is both entitled and obliged to take the child or adolescent into custody (Article 42 ) (see Taking into custody). Should the parents disagree, the family court decides whether the child or adolescent must remain in custody or not.
Should it be deemed necessary to involve the family court, the matter must be formally referred to a court (Article 8a ). Under Section 1666 of the Civil Code, as a rule such interventions in parental care is the reserve of the family court (exception: if the child or adolescent is taken into care due to imminent endangerment) (see Involvement in family court proceedings in cases of (suspected) child welfare endangerment). Should it become necessary to intervene in parental custody rights, the court will appoint a suitable guardian or custodian for the underage children or adolescents to represent their legal rights (see Guardianships and custodianships).
Persons who interact with children or adolescents on a professional level (meaning – besides child and youth services experts – facility staff, teachers, paediatric nurses, doctors, etc.) are entitled to request the youth welfare office to provide them with support from qualified child protection experts in cases where they suspect that a child’s welfare is endangered (Article 8b , Book 8 of the Social Code).
Organisations that run facilities are entitled to request the state welfare office to advise them in drawing up protection, participation and complaints management concepts, the existence of which is a prerequisite for obtaining an operating licence (Article 45).
The act on cooperation and information in child protection matters (Gesetz zur Kooperation und Information im Kinderschutz, KKG) is a standalone act containing significant child protection provisions that apply on a general level; it is designed to provide a “framework for mandatory child protection network structures” (Article 3). It also sets out how information on child welfare endangerment must be communicated to the youth welfare office by persons who are obliged to maintain confidentiality (Article 4). The logic behind these provisions is the same as that underlying Article 8a of Book 8 of the Social Code, which applies to child and youth services experts:
Should convincing information come to light during criminal court proceedings about endangerment to a child’s welfare, law enforcement or the court must inform the youth welfare office without delay (Article 5 of the KKG).