Cross-border placement of a child including foster family

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.

In principle, yes, the application from another EU Member State (with the exception of Denmark) for the consultation procedure must always precede placement of a minor in Germany.

Essentially, this requirement covers all forms of placement in Germany, i.e. also, in particular, placement in the care of relatives, provided that the placement is based on a measure of an authority or court in the sending Member State. In the case of a measure initiated by an authority or court in another EU Member State (with the exception of Denmark) it can therefore generally be assumed that prior consent will be necessary.

Whether, as an exception, prior consent can be dispensed with in special individual cases must be clarified with the competent state youth welfare office (Landesjugendamt – LJA) prior to placement.

New consent must be obtained in the event of any change to or extension of a placement measure.

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

The consent must be given by the youth welfare office responsible for the federal state in question within whose area placement is planned. Germany has 16 federal states and 17 youth welfare offices (one for each federal state, with two in the federal state of North Rhine-Westphalia; a list of addresses can be found at http://www.bagljae.de/). If no specific proposal has yet been made with regard to where the minor is to be placed, the German central authority will determine the youth welfare office area with the closest connection. Alternatively, the federal state of Berlin is deemed to be competent (Section 45 of the Act to implement certain legal instruments in the field of international family law (Gesetz zur Aus- und Durchführung bestimmter Rechtsinstrumente auf dem Gebiet des internationalen Familienrechts) – International Family Law Act – IntFamRVG).

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 application for consent relating to placement of a minor from another EU Member State (with the exception of Denmark) is sent either directly to the competent German youth welfare office or via the central authority of the other EU Member State to the Federal Office of Justice (Bundesamt für Justiz) in Germany, which, in the latter case, then forwards the application to the competent German youth welfare office.

The German youth welfare office that has local competence should generally grant the request in accordance with Section 46(1) IntFamRVG if

1. carrying out the intended placement in Germany is in the best interests of the child, in particular because he or she has a particular connection to Germany,

2. the foreign authority has submitted a report and, if necessary, medical certificates or assessments setting out the reasons for the intended placement,

3. the child has been heard as part of the foreign proceedings, unless a hearing seemed inappropriate in view of the age or maturity of the child (as a rule, a hearing that is appropriate to the child’s age and development and deals with the subject of placement in Germany is deemed to be necessary from the age of 3),

4. the appropriate institution or foster family has given its consent and there are no reasons not to proceed with placement,

5. any approval required in accordance with the law on aliens has been granted or promised, and

6. arrangements have been made regarding the assumption of costs (including sufficient health insurance).

The youth welfare office must have the intended granting of consent approved by the family court (Familiengericht) at the seat of the higher regional court (Oberlandesgericht) within whose jurisdiction the child is to be placed before notifying the requesting foreign authority of its consent (Section 47(1), first sentence, IntFamRVG).

After the approval has been granted or refused, the competent German youth welfare office informs the requesting foreign authority, the German central authority and the institution or foster family where the child is to be placed of the reasoned, final decision (Section 46(5) IntFamRVG).

The following information and evidence are required:

-       name, address and telephone number of the competent foreign authority placing the child

-       name, date of birth and nationality of the child

(copy of identity card or birth certificate)

-       (intended) duration of placement

-       reasons/professional basis for placement in general and placement in Germany in particular

(including any previous court decisions)

-       information on the child’s state of health

(if available: medical certificates/assessments)

-       name, address and telephone number of the receiving foster institution/foster family in Germany

-       agreement of the foster institution/foster family to placement of the child

-       if available: determination of suitability for fostering/foster licence of the receiving foster family or operating licence of the receiving institution in accordance with German law

-       contact details of the person(s) with custody

-       evidence that the child has been heard as part of the foreign proceedings, unless a hearing seems inappropriate in view of the age or maturity of the child

-       evidence of clarification of who will assume the costs

-       evidence of the child’s health/liability insurance

All information and evidence must be translated into German.

The right to request further information and/or documents in an individual case is reserved.

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

Within the meaning of Article 56 of the Brussels IIa Regulation, this term covers all placement outside institutions. This corresponds to Section 44(1), first sentence, of the Social Code (Sozialgesetzbuch – SGB) – Book Eight – Child and Youth Welfare (SGB VIII): ‘Any person wishing to care for a child or young person on a full-time basis as part of his or her household.’ This is a foster parent.

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

Yes. In principle, all family relationships are covered.