Erläuterung

The taking into custody of a child or adolescent reflects, neutrally speaking, the right of a child or adolescent to request to be taken into custody because, for whatever reason, they consider their living situation to be intolerable.

Over and above this, the youth welfare office is “entitled and obliged“ to take a child or adolescent into custody

• if there is imminent danger to the welfare of the child or adolescent, or
• if a foreign-born unaccompanied child or adolescent arrives in Germany and neither a person with custody rights nor a guardian is in the country (Article 42 [1] of Book 8 of the Social Code [SGB VIII]).

The act of taking into custody involves placing a child or adolescent in temporary accommodation with a suitable carer, in a suitable facility or in another form of accommodation (Article 42 [1]). During this period, the underlying crisis is discussed and resolved with the child or adolescent and the next steps agreed as soon as possible with the parents/guardians and their children/wards.

The taking into custody of a child or adolescent by the youth welfare office requires the agreement of the parent or guardian, who need to be notified of this act without delay (Article 42 [1] no. 1a). Alternatively, if the situation justifies immediate action in order to protect the child or adolescent, the youth welfare office may do so without waiting for a family court order even though a court order is normally always required when intervening in parental custody rights (Article 42 [1] no. 1b). In such a case, the youth welfare office must then proceed to obtain such a order without delay (Article 42 [3] no. 2).

While the child or adolescent is in custody, the youth welfare office is authorised to take any legal steps required to ensure the welfare of the child or adolescent (Article 42 [2]).

In 2015, large numbers of refugees arrived in Germany, giving rise to amendments in the provisions of Book 8 of the Social Code concerning the “temporary taking into custody” (Article 42a et seq.) of foreign-born unaccompanied minors. The act of taking a child or adolescent into custody temporarily comes into play before the child or adolescent in question is referred to a certain federal state, where they are then taken into “regular” custody (Article 42). These provisions were adopted in a move to relieve the burden on the municipalities that had to deal with a disproportionately large number of arriving minors. The number of unaccompanied minors dropped in the years after 2015, falling to around 8,000 in 2019/20. However, the war in Ukraine in particular has led to a renewed increase, reaching 28,564 in 2022. Most incidences of taking into custody relate to young people aged 14 to 17 years. Around 90% are young males. Article 42e requires a report to be filed with the German Parliament (Bundestag) annually on the situation of unaccompanied foreign-born minors in Germany (see BMFSFJ, 2023).

(Temporary) taking into custody is one of the “other child and youth services tasks” (Article 2 [3]) that as a rule are to be delivered by public-sector child and youth services providers and for which they carry ultimate responsibility (Article 3 [3]). While Article 76 (1) prevents public-sector providers from delegating the act of taking into custody because it is a sovereign task, they may involve recognised independent providers in performing it.

Of the 37,880 children and young people taken into “regular” custody under Article 42 in 2022, around 8,000 had requested this themselves (most of them aged 14-18, and two thirds girls) and 29,800 were taken into custody due to imminent danger to their welfare (fairly evenly distributed across all age groups and genders).

In over 46% of cases the protective measures that ended in 2022 lasted no longer than two weeks; for 15% the custody period lasted longer than three months. Most girls and boys then returned to their parents or guardians or previous foster families or homes (38%). Just under 30% were placed for the first or subsequent time with new foster families, in a new home or in assisted accommodation.

• Bundesministerium für Familie, Senioren, Frauen und Jugend (eds.) (2023): Bericht der Bundesregierung über die Situation unbegleiteter ausländischer Minderjähriger in Deutschland (last accessed: 31 July 2023).
• Fachgruppe Inobhutnahme (ed.) (2022): Handbuch Inobhutnahme. Grundlagen – Praxis und Methoden – Spannungsfelder. 2nd revised and extended edition. Frankfurt/M., IGfH-Eigenverlag.
• Trenczek, Thomas/Düring, Diana/Neumann-Witt, Andreas (2023): Inobhutnahme. Krisenintervention und Schutzgewährung durch die Kinder- und Jugendhilfe, 4th edition, Munich et al.