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 unaccompanied refugee minors (URM).

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 refugee minors in 2015. The Federal Ministry for Family Affairs, Senior Citizens, Women and Youth (BMFSFJ) was required to submit an evaluation of the relevant provisions to the Bundestag (lower house of parliament) by the end of 2020. In addition, the Bundestag must be presented with an annual report on the situation of unaccompanied refugee minors in Germany (Article 42e).

(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.

In 2019, approx. 49,550 children and adolescents were taken into custody. 8,400 had requested this themselves (most of them aged 14-18, and two thirds girls); 32,500 were taken into custody due to an imminent danger to their welfare (fairly evenly distributed across all age groups and genders); and 8,650 were unaccompanied refugee minors (most aged 14-18, approx. 80% were boys).

In over 50% of cases the custody period lasted under two weeks. Most girls and boys then returned to their parents or guardians or previous foster families or homes (38%). Just under 30% were placed with new foster families, in a new home or in assisted accommodation.

• Bericht der Bundesregierung zu dem Gesetz zur Verbesserung der Unterbringung, Versorgung und Betreuung ausländischer Kinder und Jugendlicher gem. § 42e SGB VIII – Die Situation unbegleiteter Minderjähriger in Deutschland (last accessed: 31 May 2021).
• Fachgruppe Inobhutnahme (ed.) (2020): Handbuch Inobhutnahme. Grundlagen – Praxis und Methoden – Spannungsfelder. Frankfurt/M., IGfH-Eigenverlag.
• Trenczek, Thomas/Düring, Diana/Neumann-Witt, Andreas (2017): Inobhutnahme. 3rd edition, Munich et al.