Cross-border placement of a child including foster family

Rakúsko
Autor obsahu
European Judicial Network
Európska justičná sieť (pre občianske a obchodné veci)

1 Is there an obligation under your national law for prior consultation and the obtaining of consent before the cross-border placement of a child? Please mention possible exceptions.

1. Relocation abroad

If two people are entrusted with custody, they must also determine the place of residence by mutual agreement, in principle. This principle of mutual agreement applies without restrictions, that is to say, also in the case of the child moving within Austria, especially if the move involves a significant change in their life. Moreover, particularly in the case of a transfer of place of residence abroad, the parent wishing to move abroad will require the consent of the other parent or the approval of the Court. The Court must take into account both the child’s welfare and the interests of the parents.

If one parent has been entrusted with primary custody by a Court decision or by an agreement, he/she has the sole right to determine the place of residence, in accordance with the wording of Section 162(2) of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB). Consequently, no approval is required for a move within Austria.

However, under current case-law in such circumstances – especially when a child moving residence is an important matter – the parent with primary custody must also inform the other parent and take the child’s welfare into account. Moreover, a change in the place of residence should not significantly affect the exercise of custody by the other parent. This restriction applies in particular to a move abroad.

The same applies to foster parents who have custody; however, this rarely happens in practice, as custody usually remains with the Youth Welfare Authority.

2. Placement in institutional care or with foster parents

A placement with the consent of the custody holder(s) (more often than not the parents) does not require any further action. A placement without the consent of the custody holder(s) is nonetheless subject to judicial review by the Court, as an emergency measure within the meaning of the law.

2 If prior consultation and consent are required, which authority is to be consulted and to give the consent?

See question 1.

3 Please describe shortly the procedure for consultation and the obtaining of consent (including required documents, deadlines, modalities of the procedure, and other relevant details).

The consultation procedure must be addressed to the competent Court or Youth Welfare Authority (Kinder- und Jugendhilfeträger) via the Central Authority. If a Youth Welfare Authority is in charge of the consultation procedure, the following conditions apply:


Conditions

Documents required

Magistrat der Stadt Wien (Municipal Authority of the City of Vienna)

Amt für Jugend und Familie (Youth and Family Office)

Gruppe Recht (Legal Services)

Rüdengasse 11

1030 Vienna, Austria

  • Necessary for the child’s welfare
  • The requesting authority agrees to bear the costs

Reference to Section 46 of the International Family Law Procedure Act (Internationales Familienrechtsverfahrensgesetz, IntFamRVG)

Amt der Ober-österreichischen Landesregierung (Office of the Regional Government of Upper Austria)

Direktion Gesellschaft, Soziales und Gesundheit

(Directorate for Society, Social Affairs and Health)

Abteilung Kinder- und Jugendhilfe (Child and Youth Support Department)

Bahnhofplatz 1

4021 Linz, Austria

kjh.post@ooe.gv.at

https://www.kinder-jugendhilfe-ooe.at/

  • Necessary for the child’s welfare
  • Agreement to bear costs
  • Place for care available
  • Consent from the specific care institution
  • Pre-established residence status
  • Clear division of responsibilities between the requesting Member State (type, extent and payment) and the Member State requested (supervision of institution)
  • Recognition of the professional standards of Upper Austria by the requesting authority
  • Specification of the competent authority of the requesting Member State and contact details
  • Institution in which the minor is to be placed (address)
  • Data sheet about the minor, parents, siblings, custody holders
  • Overview of assistance provided so far with upbringing
  • Type of and reasons for the proposed placement
  • Findings, diagnoses, reports, assessments
  • Record of the hearing with the minor
  • Outline of the contact rights of the biological parents
  • Formal consent from the custody holder(s)
  • Proof of health insurance or of existing social insurance cover

Amt der Salzburger Landesregierung (Office of the Regional Government of Salzburg)

Referat Kinder- und Jugendhilfe (Child and Youth Support Unit)

Fanny-von-Lehnert-Strasse 1

Postfach 527

5010 Salzburg, Austria

soziales@salzburg.gv.at

  • Agreement from the institution of placement
  • Written agreement to bear costs from the requesting authority
  • Consent from the carer and the local competent Youth Welfare Authority in the case of placement
  • Specification of the competent authority of the requesting Member State and contact details
  • Institution in which the minor is to be placed (address, contact details)
  • Data sheet about the minor, parents, siblings, custody holders
  • Overview of assistance provided so far with upbringing
  • Information on the reasons for the proposed placement, including a case history and a description of the problem
  • Medical/psychiatric findings, diagnoses, assessments
  • Record of the hearing with the minor
  • Outline of the contact rights of the biological parents
  • Formal consent from the custody holder
  • Court decisions
  • E109 form (proof of health insurance) or proof of existing social insurance cover
  • Copy of the minor’s e-card
  • Date of placement and planned duration

Amt der Steiermärkischen (Office of the Regional Government of Styria)

A11 Fachabteilung (A11 Policy Department) – Soziales und Arbeit, Referat Kinder- und Jugendhilfe (Social Affairs and Labour, Child and Youth Support Unit), Bereich Recht und Gewaltschutz (Law and Protection Against Violence team)

Hofgasse 12/1/115

8010 Graz, Austria

abteilung11@stmk.gv.at

  • Necessary for the child’s welfare
  • The requesting Member State bears the costs
  • Consent given by the legal guardians
  • Court decisions
  • Medical findings
  • Handover report from the competent requesting authority (background history, current social and family situation, description of problems and resources, conclusions and forecasts from the social worker, meeting of targets, brief assessment)

Amt der Tiroler Landesregierung (Office of the Regional Government of Tyrol)

Abteilung Kinder und Jugendhilfe (Child and Youth Support Department)

Leopoldstrasse 3

6020 Innsbruck, Austria

  • The requesting Member State bears the costs
  • Consent from the institution
  • Support plan, case history and problem description are absolutely essential:

-          minor’s data

-          parents’ data

-          siblings’ data

-          person holding custody

-          support provided so far

  • Any relevant reports, psychological assessments, etc.
  • Written consent from the custody holders
  • Proven consent from the minor under care – unless a hearing seems inappropriate due to the child’s age or (proven) degree of maturity
  • Proof of the minor’s health insurance
  • Copy of the minor’s ID
  • Written consent from the institution of placement
  • Reasons given:

-          why this institution specifically?

-          if applicable, reason for the urgent need for assistance

  • Start date and intended duration of assistance
  • Future situation of the minor upon return

Amt der Vorarlberger Landesregierung (Office of the Regional Government of Vorarlberg)
Landhaus
Römerstrasse 15
6901 Bregenz, Austria

Abteilung Soziales und Integration (Social Affairs and Integration Department)

soziales-integration@vorarlberg.at

  • Consent from the institution of placement/foster family
  • Agreement to bear costs
  • Competent requesting authority and contact details
  • Desired institution/foster family (address)
  • Minor’s and parents’ data
  • Custody decision with the annotation: With the placement of ...in ..., the responsibility for care and upbringing is transferred to the institution/foster family.
  • Support provided so far with upbringing
  • Reasons for the placement; Support plan agreement; Future prospects
  • Child and youth psychiatrist’s/psychologist’s findings/diagnoses

Observations

  • Minor’s hearing
  • Consent from the custody holders
  • Proof of health insurance

Amt der Niederösterreichischen Landesregierung (Office of the Regional Government of Lower Austria)

Gruppe Gesundheit und Soziales (Health and Social Affairs)

Abteilung Jugendwohlfahrt (Youth Welfare Department)

Landhausplatz 1,

3109 St. Poelten, Austria

  • Necessary for the child’s welfare and/or there is a reference person in Lower Austria for the child’s welfare
  • Written agreement to bear costs
  • Suitable care placement
  • Agreement from the specific institution
  • Recognition of the professional standards of Lower Austria
  • Regular review of the support plan, including objectives for upbringing, by the requesting authority
  • Declaration of a contact person in case ending the measure becomes necessary
  • Current reports on physical, emotional, social, school/professional development
  • Current medical findings
  • Copy of essential documents for the minor, e-card
  • Information on pharmaceutical therapies
  • Support plan, including support granted so far
  • Problem description, social and psychological diagnosis, target setting, duration and forecast of the measure
  • Record of the minor’s hearing with regard to the planned measure
  • Written consent from the custody holder
  • Agreement on how to organise potential visiting rights

Amt der Burgenländischen Landesregierung (Office of the Regional Government of

Burgenland)

Landesregierung

Abteilung 6 – Soziales, Gesundheit, Familie, Sport (Department 6 –

Social Affairs, Health, Family, Sport)

Europaplatz 1,

7000 Eisenstadt, Austria

  • Necessary for the child’s welfare
  • Agreement to bear costs
  • Consent from the institution or carer
  • Specification of the competent authority and declaration of competence
  • Minor’s data
  • Information on the problem at hand (reason for placement, objectives, findings, assessments, certificates, Court decisions)
  • Declaration of consent from the custody holders

4 What is a “foster family” according to the national law of your Member State?

We would like to highlight two things about the concept of ‘foster parent’ in Austrian law. If parental responsibility is involved, foster parents are the persons who (in part or in full) provide care for and raise the child and with whom a relationship similar to that between biological parents and children exists or is envisaged (Section 184 ABGB). The conditions and measures for checking which persons (or couples) to whom (only) care and upbringing can be entrusted by youth welfare authorities are set out in the laws of each of the nine Austrian regions.

5 Does the notion of “foster family” encompasses relatives or not? If yes, which ones?

In Austrian legislation, the concept of ‘foster parent’ can intentionally be interpreted very broadly. Apart from grandparents, who have special status under Section 178 ABGB, any (other) relative may be a foster parent if he/she provides care for and raises the child (in part or in full) and, at the very least, has the intention of establishing a child-parent relationship close to that of a biological parent. Whether such persons are subject to checks by the Youth Welfare Authorities is also determined by the laws of each of the nine Austrian regions. In general, close relatives such as grandparents and parents’ siblings are exempt from such checks.

Last update: 21/06/2021

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