INFORMATION LEAFLET - Cross-border placement of children Placement of children abroad by German courts and authorities general advice 1. EU Member States a) Consultation and consent procedure If the German courts or authorities (such as the Youth Welfare Offices) intend to place a child 1 in institutional care or with a foster family in another EU Member State (with the exception of Denmark) 2, a consultation procedure must be generally carried out under Article 56 of the Brussels IIa Regulation 3 which requires the involvement of the authorities of the State in which the child is to be placed (Receiving State). The prior consent of the authorities having jurisdiction in the Receiving State is required, if public authority intervention would be required for domestic cases of child placement in that Member State (Article 56 paragraph 1 Brussels II a Regulation). The judgment on placement may be made in the Requesting State only if the authority having jurisdiction in the Requested State has consented to the placement (Article 56 paragraph 2 Brussels II Regulation). The matters as to whether prior consent is required and which procedures are to be complied with during the consultation under Article 56 of the Brussels IIa Regulation, shall be governed by the national law of the State in which the child is to be placed (Article 56 paragraph 3 of the Brussels IIa Regulation). 1 The Brussels IIa Regulation does not contain any definition of what a "child" is, i.e. it does not specify any age limit, leaving this for the national law of the individual Member State to define. This information leaflet uses the term "child" for all minors, defined under German law as all persons who have not yet reached their 18th birthday (within the meaning of children and young people as used in SGB VIII Eighth Volume of the Social Code). 2 Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, United Kingdom. The Brussels IIa Regulation does not apply to Denmark. In the case of Denmark, Article 33 of the Hague Child Protection Convention applies instead. 3 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Official Journal of the European Union No. L 338 p. 1).
- 2 - Under Article 56 paragraph 1 of the Regulation, the prior consent of the authorities having jurisdiction in the requested Member State must always be obtained when a German court intends to place a child in institutional care or with a foster family in another EU Member State. This also applies to the granting of Youth Welfare assistance benefits by German Youth Welfare Offices on the basis of SGB VIII (Eighth Volume of the Social Code), e.g. socio-educational assistance under Sections 27 et seq. In these cases too, the prior consent of the authorities having jurisdiction in the requested Member State will usually 4 be required. As things currently stand, exceptions from the principle of prior consent as outlined only exist in the cases of Poland, Bulgaria and Luxembourg. In Luxembourg, as set out in Article 56 paragraph 4 of the Brussels IIa Regulation, placements made by German Youth Welfare Offices merely need to be communicated to the authorities. To date, even this kind of notification has not been required in the case of Poland and Bulgaria 5. National laws provide for formal or substantive requirements for consenting to a placement, e.g. may also prescribe that the request for consent be made via the Central Authority of the State in question. If the latter is not the case, the German authority responsible for the placement may also make requests directly to the competent authority having jurisdiction abroad. Furthermore, such requests may also be sent to the Federal Office of Justice in its capacity as the German Central Authority (see 5. for address), which would then forward the request to the relevant authority abroad 6. b) Subsequent consultation and consent procedure In the event that consent is required by national law, such consent must be in place before the placement can be undertaken (Article 56 paragraphs 1 and 2 of the Brussels IIa Regulation). Thus, if a child is already present in another EU Member State, without the German authority responsible for his/her placement having carried out the consent procedure required in that Member State, this would constitute a violation of Article 56 of the Brussels IIa Regulation and result in the judgment on the placement made not being recognised by the Receiving State (Article 23 g of the 4 There may be some exceptions in specific countries for short-term trips and sailing projects. 5 The requirement to comply with the provisions of national law of the requested Member State, set out in Section 78b Subsec. 2 No. 3 SGB VIII, applies without prejudice to the operation of Article 56 (see 6. for further details). These requirements apply regardless of the existence of any consultation procedure under Article 56 of the Regulation. 6 See for details on the consultation and consent procedure: Schlauß, ZKJ 2016, 348-350.
- 3 - Regulation). In the event that the procedure has not yet been carried out, but is required, this should be done without delay. Some EU States categorically refuse consent if the child has already been placed within that country prior to the required consent (e.g. Portugal, Romania, Spain). The ensuing lack of recognition means that the authorities are obliged to end any measures undertaken. For more specific details on each of the countries, see the separate information sheets available for each country. 2. Other Contracting States to the Hague Child Protection Convention of 1996 The Hague Child Protection Convention of 1996 (hereinafter referred to as "the 1996 Convention") entered into force in Germany on 1 January 2011 7. In contrast to the requirements set out in Article 56 paragraph 1 of the Brussels IIa Regulation, under Article 33 of the 1996 Convention, every placement of a child within the territory of another Contracting State requires the prior consent of the authorities of the Receiving State, i.e. regardless of whether the intervention of the authorities would be required in similar domestic cases. However, Article 33 of the Convention shall only apply to the placement of children from Germany in other Contracting States to the 1996 Convention if the child is to be placed in a country which is not an EU Member State, or Denmark. As far as the placement of children in other EU Member States (other than Denmark) is concerned, the conditions of the Brussels IIa Regulation as stated above apply: As a rule, prior consent is required under Article 56 paragraph 2 of the Brussels IIa Regulation. 3. Extension or renewal of a placement or change of accommodation Whether dealt with in the framework of the Brussels IIa Regulation or the 1996 Convention, any extension of the placement shall be dealt with as if it were a new placement, as shall any change of accommodation 8. The required documentation must then be handed in on time and the consent procedure undertaken once again. If, before the extension, no consent has yet been granted in respect thereof, the minor must be in Germany at the time of the new application. 7 https://www.bundesjustizamt.de/en/topics/citizen_services/hkue/states/list_node.html 8 See European Court of Justice Case C-92/12 PPU - (Health Service Executive)
- 4-4. Required documents and translations a) Required documents The Federal Office of Justice is able to give advice as to which documentation is required by each of the Receiving States on the basis of our experience in these matters. This is made available on our website, specifically, in the individual country information sheets and the accompanying data sheets. In contrast to the Regulation, Article 33 of the Convention expressly provides that the requesting authority is to transmit a report on the child together with the reasons for the proposed placement or provision of care to the Receiving State. For data protection reasons, all concerned are requested to refrain from sending copies of identity documents. b) Translations The Brussels IIa Regulation itself does not make any specific mention of whether or not, or what type of translations are to be included by the requesting authority when making the request. However, it does state that the procedure shall be governed by the national law of the Requested State. Most States' national law requires the request and any supporting documents to be made available to the authorities in the official language of that country. The rules as to translation requirements, set out in Article 54 paragraph 1 of the 1996 Convention, are as follows: "Any communication sent to the Central Authority or to another authority of a Contracting State shall be in the original language, and shall be accompanied by a translation into the official language or one of the official languages of the other State or, where that is not feasible, a translation into French or English." At present, there is no need for officially certified translations; a translation without any sort of certification is regarded as sufficient. If necessary, this can be carried out by the involved representatives of the youth welfare organisation responsible for the placement of the child.
- 5-5. Contact details of the German Central Authority Bundesamt für Justiz (Federal Office of Justice) Zentrale Behörde für internationale Sorgerechtskonflikte (Central Authority for International Custody Conflicts) Adenauerallee 99 103 53113 BONN Germany Phone: +49 228 99 410-5212 Fax: +49 228 99 410-5401 E-mail: int.sorgerecht@bfj.bund.de Website: www.bundesjustizamt.de/custody-conflicts 6. Registration of the child with the local German mission abroad Irrespective of the necessity of carrying out a consultation procedure, the child must be registered with the local German mission abroad before the measure is initiated. This requirement is laid down in section 78b subsection 2 sentence 2 No. 3 of SGB VIII. Should you have any further questions on the subject of registration, we would recommend that you contact the Federal Foreign Office or the local German mission abroad.