"They're not little adults": the struggle for proper and standalone children's rights in the German Basic Law

A pending children’s rights amendment in Germany proposes to change the Basic Law, with the intention of implementing Germany’s obligations under the United Nations Convention on the Rights of the Child. The wording and placement of the proposed amendment, however, may ultimately undermine this goal – writes Dr. Philipp B. Donath.

Background

In January 2021, the German federal government introduced a bill to explicitly incorporate children’s rights into the Basic Law (Grundgesetz), the constitution of the Federal Republic of Germany. If approved, this would be the most substantial change of the text of the fundamental rights section of the constitution in decades. However, its passage is not assured.

Opponents of the amendment contend that the Basic Law already includes fundamental rights for all people, which undoubtedly also apply to children and young people. Critics on the other end of the spectrum assert that the wording of the potential amendment is not strong enough to fulfil Germany’s obligations under the Convention on the Rights of the Child, which Germany ratified in 1992. Since the convention’s ratification, however, the incorporation of specific fundamental rights for children into the Basic Law has been discussed continuously among NGOs and parliamentarians.  

Implementing children’s rights in the Basic Law

The Basic Law came into force in West Germany in 1949 and is now valid in the whole reunified Germany since 1990. It is difficult to change the text of the federal constitution, since an amendment requires a majority of two-thirds in the parliament (Bundestag), and an additional two-thirds majority in the federal council (Bundesrat), in which the governments of the various federated states of Germany (Bundesländer) – such as Bavaria and Hamburg – are represented. In order to achieve the necessary majorities to change the text of the constitution, therefore, there must be a broad political consensus and, hence, a particular need recognized by most parties represented in the legislature, to change the text of the Basic Law.

The text of the Convention on the Rights of the Child (CRC) does not require that its content be incorporated in national constitutions, but it does, in article 4, require that States parties take “all appropriate legislative, administrative, and other measures for the implementation of the rights recognized” in the CRC.

German courts must apply the provisions of the Convention on the Rights of the Child through interpretation.

According to article 59.2 of Germany’s Basic Law, human rights conventions are equal in status to an ordinary federal statute, and so German courts are obliged to apply the provisions through interpretation, as in the case of all federal statute law.  The Federal Constitutional Court (FCC), however, has decided that human rights treaties like the European Convention on Human Rights and the CRC must be used to interpret and concretise the fundamental rights of the Basic Law. German legal scholars have argued, therefore, that it is unnecessary to change the Basic Law.

The CRC consists of 54 articles, four of which contain the so-called core principles of the CRC:

• the right of children to have their best interests taken into account as a primary consideration in all actions concerning them (Art. 3 para. 1 CRC);
• the right of children to participation (Art. 12 CRC);
• the right to development (Art. 6 para. 2 CRC); and
• the right to non-discrimination (Art. 2 CRC).

The UN Committee on the Rights of the Child, a body of independent experts charged with reviewing Germany’s implementation of the CRC, consistently expresses concern that Germany has not incorporated the convention in its Basic Law. The primary consideration of the best interest of the child, the most important provision of the CRC according to the Committee, applies to all decisions made by public authorities –  for example, when planning residential areas, parks and roads, or designing a curriculum. However, state authorities tend to only recognise this essential right of children when it is stated in a national law in a specific field, like in family law or youth welfare law.

A study has shown that many courts and administrative agencies have failed to apply the provisions and standards of the CRC. This was true for different areas of law where the consideration of the best interests of the child is not stated explicitly in German statutes, as in building law, social benefits law, immigration law, or tax law.

NGO and CSO momentum to change the Basic Law

Moreover, from the perspective of many organisations, the Covid-19 pandemic has shown in particular that the rights and concerns of children and young people are too often overlooked in Germany. Children and adolescents suffer significantly psychologically from the lockdown measures and particularly from the closure of schools and day-care centres. During this time, the debate about the incorporation of explicit children’s rights in the German constitution has gained momentum. Yet, the debate is older than this.

Under international law, children are entitled to special rights and protection.

In 2007, the Children’s Rights Action Alliance (CRAA, Aktionsbündnis Kinderrechte) – which now includes the German Children’s Fund (Deutsches Kinderhilfswerk), the German Child Protection League (Kinderschutzbund), the German League for the Child (Deutsche Liga für das Kind), and UNICEF Germany – launched a campaign entitled Children’s Rights in the Basic Law, and as early as 2013 campaigned for an amendment to the Basic Law to implement the CRC. More than 200 organisations and over 50,000 individuals have supported the CRAA in their campaigns and public relations work. According to the initiative, the main reason to promote children’s rights is that children –  unlike other holders of fundamental rights – usually cannot claim their rights themselves. Further, under international law children are entitled to special rights and protection. It is therefore important that decision-makers in all three branches of government respect their rights. Beyond this, the explicit inclusion of children’s rights in the Basic Law would, above all, make it much clearer that the state has a responsibility to prioritise children’s best interests when exercising its duties towards children.

This seems to be a solid argument. All German law students have to study the Basic Law, but only a few lawyers have heard about the CRC and its binding obligations. Therefore, an explicit article of the Basic Law including the rights of the child would have significant impact on all lawyers and courts, as well as on administrative authorities in Germany. Lower courts’ judicial decisions would also be guided directly by the explicit constitutional rights of children, as there is an explicit obligation to observe the fundamental rights of the Basic Law in all state actions under article 1, paragraph 3 of the Basic Law. No one could consider the rights of the CRC inapplicable in their legal field – as is still declared today. Administrative authorities would, thus, also be explicitly bound and therefore be more likely to ask children for their opinion – for example, when weighing up the right to property and the fundamental rights of children in urban planning procedures. The inclusion of children’s rights into the Basic Law would, thus, most probably lead to more legal certainty.

Unlike in state constitutions, the fundamental rights of the Basic Law are directly applicable nationwide.

Alongside the efforts to amend the constitution in the federal state as a whole, some constitutions of the federated states were also modernised. Children’s rights were, for example, incorporated in the constitution of the federated state of Hesse in a very progressive form following a referendum at the end of 2018. The four core principles of the CRC were used as a guide for the text of the new article in the Hessian constitution. However, the constitutions of the federated states lead a shadowy existence in stark contrast to the Basic Law. Even if authorities in the federated states have to observe the state constitutions when applying state law or federal law, the influence of the constitutions of the federated states is very weak. The fundamental rights of the Basic Law, however, are directly applicable nationwide.

The process of incorporating children's rights into the Basic Law

The current governing coalition led by Angela Merkel consists of two political party groups: the conservatives (CDU/CSU) and the social democrats (SPD). The conservative parties are more hesitant to incorporate children’s rights in the Basic Law. They argue that explicit rights for children could be used against parents; for example, that the state could interfere with parents’ choices regarding the upbringing and education of their children by determining that parents are not observing the rights of their children explicitly stated in the Basic Law. However, a carefully and correctly worded article providing for children’s rights would only contain duties for the state, but not for individuals; hence, not for parents.

After intense pressure by NGOs and CSOs, the governing coalition included the goal to incorporate explicit rights for children in their 2018 coalition agreement. As the amendment of the Basic Law also requires a two-thirds majority of the Bundesländer, the governments of the federated states and the government of the federal state established a working group tasked with drafting a proposal for a new article on children’s rights. The working group was established in summer 2018 and has met seven times. It was chaired by the Federal Ministry of Justice and Consumer Protection and the North Rhine-Westphalian Ministry for Children, Family, Refugees and Integration. For the Bundesländer, the justice and family ministries were involved, with the exception of Saxony-Anhalt. The Federal Ministry of Justice and Consumer Protection, the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, the Federal Ministry of the Interior, for Construction and Home Affairs, and the Federal Chancellery participated on behalf of the federal government. NGOs had little influence and were heard only sometimes by invitation.

In its report of October 2019, the working group gave policy-makers several options for formulations to include children’s rights in the Basic Law. The working group favoured article 6 of the Basic Law as the location for children’s rights, but did not commit to a specific wording. The report provided three variations of wording for the rights of the child amendment, which were similar to the later proposal of the federal government, but which did not deal with parental rights. Following this, the German Federal Ministry of Justice and Consumer Protection presented a draft bill in November 2019, and in mid-January 2021 the federal government agreed on a draft for the inclusion of children’s rights in article 6, paragraph 2 of the Basic Law.

The wording of the draft reads:

“The constitutional rights of children, including their right to develop into independent personalities, shall be respected and protected. The best interests of the child shall be given appropriate consideration. The constitutional right of children to a legal hearing shall be upheld. The primary responsibility of parents remains unaffected.”

The draft amendment clarifies that children are bearers of fundamental rights which are to be respected and protected. Furthermore, three of the four core principles of the CRC are explicitly addressed: the best interests of the child, the right of children to develop, and the right to participate. The other core principle of non-discrimination was already incorporated in article 3 of the Basic Law.

However, the draft article is placed in the section of the Basic Law related to marriage and family. The drafters’ intention is to reaffirm that parents’ primary responsibility towards the child, and the state’s guardianship in cases where the child’s welfare is endangered – both of which are already incorporated in the Basic Law – shall not be changed.

Criticism of the draft amendment

The CRAA welcomed the fact that the federal government, after tough wrangling, agreed on a joint wording for the proposal, which will soon be discussed in the German Bundestag. The CRAA, however, thinks that the proposal is insufficient. In particular, they criticised the wording of the text on the best interests of the child as well as on the child’s right to participation, which, in their view, falls short of the CRC’s obligations and also of the current case law of the Federal Constitutional Court.

Opponents consider the amendment’s language too weak to satisfy Germany's international obligations.

According to the CRAA, the best interests of the child should be given “a primary consideration” and not only “appropriate consideration” as articulated in the draft amendment. The best interest principle, a core provision of the CRC, should be the fundamental decision-making lens through which all decisions that impact children are made, not just a mere consideration. The CRAA maintains that it is vital to reflect this specific aspect in the wording of the amendment of the Basic Law. Furthermore, in the opinion of the CRAA, the rights of children to participate must not be limited to legal hearings. This should, thus, be formulated as a comprehensive right of participation as called for in the CRC.

The CRAA and others, therefore, call on all parliamentary groups in the Bundestag to improve and strengthen the wording of the amendment. They demand that children and young people themselves as well as children’s rights organisations and family associations should be involved in the debate on the final text of the amendment of the constitution.

The amendment’s placement is problematic: sandwiched into an article concerning parents’ rights

Beyond this, and from a legal perspective, the government proposed – as the result of a compromise between the government parties and due to pressure on the conservative side – a rather problematic systematic placement of the new right for children, namely directly into the passage about the rights of parents and specifically into the text which describes the powers of the state to intervene in parental rights. However, even if children are dependent on their parents in most cases, they are still legally autonomous human beings with their own rights and dignity. Therefore, the rights of children should not be incorporated in the paragraph with parents’ rights, but rather in a different stand-alone paragraph or article of the Basic Law.

Outlook for the proposed amendment

Even though the CRC received the highest approval of all UN conventions and has seen the most ratifications by the UN member states, what is crucial is the actual implementation of the CRC. How Germany incorporates the CRC rights can illustrate an appropriate constitutional wording for children’s rights. Special care must be taken when transferring the CRC into the Basic Law in order to avoid contradictions with the current text and with the interpretations of the constitution by the Federal Constitutional Court.

The Bundestag and the Bundesrat should either change the wording and placement of the amendment or reject it.

By the end of March 2021, the Bundesrat is expected to give its opinion on the government proposal and in April 2021, the bill will be debated in the Bundestag for the first time. Due to the above-mentioned shortcomings of the current proposal, it may be wise for the members of the Bundestag and the Bundesrat not to agree to this bill. They should either change the wording and placement of the amendment or reject it. In autumn 2021, a new federal government will be constituted. The new government would face the same struggles, but likewise would be given the chance to submit a better proposal that correctly transfers the content of the core principles of the CRC into German constitutional law.

Dr. Philipp B. Donath is Lecturer for International Law, Social Law and Constitutional Law at the Goethe-University and at the European Academy of Labour in Frankfurt.