Children's rights in the Constitution!?

World Children's Day is celebrated on 20 September to draw attention to issues such as child protection and children's rights. We ask Prof Dr Michael Brenner from the Chair of German and European Constitutional and Administrative Law at the University of Jena what the current situation is regarding children's rights in Germany. The political debate still revolves around whether and to what extent children's rights should be included in the Constitution.

Children's rights are not yet enshrined in the German Constitution. In your view, should this be implemented by the next government? If so, why?

Prof Brenner: There are two possible views on this question: On the one hand, there is no need to anchor children's rights in the Constitution because children's rights are already comprehensively protected under the current legal situation. Children have just as many basic rights as adults - as long as they are able to implement them according to their age. This is because children between the ages of 0 and 18 are entitled to all basic rights. On the other hand, the inclusion of children's rights in the Basic Law would certainly have a certain effect. When something is written in a constitution, it has a special meaning and has an appeal character. This argument speaks for the inclusion of children's rights in our Constitution.

These are the two positions that can be found in academia. Some say that children's rights are already comprehensively laid down in the Constitution and that there is therefore no need to establish children's fundamental rights. The other opinion says that such an anchoring has an appealing effect and brings the issue to the awareness of the population. Perhaps the legislature will then remember better that it should protect the position of children. That is why this different view speaks for the inclusion of children's rights in the Basic Law. Incidentally, there was a similar discussion when the state goal of environmental protection was included in the Basic Law in 1994.

In reverse, this would mean that little would change for the children themselves if children's rights were enshrined in the Fundamental Law? But it is often argued: By including children's rights in the Constitution, criminal proceedings in which children have been victims of abuse, for example, could be made more child-friendly.

Prof Brenner: One always has to be a bit careful with such state objective provisions, because they primarily oblige the legislator, but concrete positions cannot usually be derived from them. This is also the case with environmental law (Art. 20a). This means that it is actually always the legislature that is called upon to implement the state objective provisions. If, for example, a child is not to be repeatedly confronted with his tormentor in court proceedings, then it is the task of the ordinary legislator to include this in the Code of Criminal Procedure. But such a right cannot be derived directly from a child's right laid down in the constitution.

Prof Dr Michael Brenner
/ photo: private

Incidentally, even under the current legal situation, the legislature would be completely free to include certain provisions for such a case in the Code of Criminal Procedure. For this constellation, no amendment of the Constitution is needed.

That means little would change for the children?

Prof Brenner: That is somewhat the view of those who oppose the inclusion of such children's rights in the Basic Law. I have also looked at the draft law again and it says: "The constitutional rights of children, including their right to develop into self-reliant individuals, shall be respected and protected." I can also derive all this from human dignity. Human dignity encompasses every human being, even before birth. This is just another clarification that children and their rights are also to be respected and protected.

"The best interests of the child shall be given due consideration", the bill goes on to say. The legislator can also do this according to the current legal situation and must even do so, because it also has an obligation to protect the well-being and welfare of children. This is also fundamentally included in the Fundamental Law in Article 6, the state's guardianship. The state is obliged to look after the welfare of the children. This can even go so far that a child can be taken into state care if the parents are not in a position to look after the children's welfare. This also serves to protect the child.

"Children's constitutional right to a fair hearing must be upheld." We have established the right to be heard in Article 103 of the Constitution. The legislative proposal would therefore only be a repetition or consolidation. Of course, according to the current legal situation, the child already has the right to a legal hearing and is represented by its parents, who must exercise the right in the child's best interests. A five-year-old child cannot do that. But neither would it be able to do so under the new proposed legal situation.

And then it says "Parents' primary responsibility remains unaffected".. According to the interpretation in the literature, this sentence is intended to address the concern that such children's rights would undermine parental rights. Parents have the right to bring up their children, and if the legislator now wants to emphasise that the parents' right remains unaffected, this is to counter the concern that the state could interfere too much in the development of the children and thus undermine the primary parental responsibility. Therefore, this sentence is certainly due to clarification. The parents' primary responsibility remains unaffected. For this reason, it has been stated in the literature that the position of the children would not improve in practice, and possibly even deteriorate somewhat in relation to the parents. Therefore, this regulation would not necessarily have a pacifying effect, according to an argument used in the literature against the inclusion of children's rights in the Constitution.

In 2020, the youth welfare offices reported a peak in child welfare threats. 45,400 children had to be taken into shelter. If children's rights in Germany do not have to be included in the Constitutional Law, it is obvious that legal improvements have to be made. Where do you think this should happen? Where should the legislator take a closer look?

Prof Brenner: Legislators can improve the rights, legal status and position of children in many ways. Many areas of law are addressed. Consider social law. Various rights of children could be anchored there. The right to child care should also be anchored here.

One can continue to think of improvements in criminal law, such as improving the position of children in criminal proceedings, especially in proceedings concerning the best interests of the child.

However, one can also think of tax law options, for example by increasing the child allowance or by giving parents with children a better tax position.

What also repeatedly flares up in the literature is the discussion about granting children the right to vote. Parents should be granted an additional vote in the election process, as it were on behalf of their children. Personally, I am quite reserved at this point, because it does not systematically fit into the constitution that one is granted an additional vote for children and thus deviates from the basic principle of "one man one vote". I think this is an unenforceable idea that is not compatible with the principle of democracy.

But as I said, it would be quite possible to improve the position of children on many fronts of simple statutory law. But I don't want you to misunderstand me and think that I am against anchoring children's rights in the Fundamental Law. As I said earlier, Article 20a, the state objective of environmental protection, had a clear external effect and therefore it would perhaps not be a bad thing if children's rights or the right of the child were to be included in the Fundamental Law, because this would make people more aware of the responsibility of the state and parents for children.

From a jurisprudential point of view, however, it should always be kept in mind that a constitution should briefly and succinctly contain the essential requirements for the political, social coexistence of people and not list all the desirabilities that we would like to have. This would lead to a decline in the legitimacy of the constitution.

Therefore, I would be in favour of adding the right of the child to the Basic Law, namely by one sentence and not by four sentences, as in the government proposal. One could use a more concise formulation that makes it clear that it is the obligation of all of us, including the obligation of the state, to stand up for the well-being of children. I could therefore imagine that one could formulate it in a striking sentence: The rights or dignity of children must be upheld. After all, children are our future. In times of climate crisis and climate change, this must be emphasised even more than it was 50 or 100 years ago. It is therefore all the more important to consider and name the rights of children.

Could failure on the part of the authorities be prevented by anchoring children's rights in the Constitution? I am thinking of cases where the authorities have consciously or unconsciously "looked the other way".

Prof Brenner:You cannot prevent authority failure with a constitutional provision. You can better equip the authorities in terms of personnel and material. This applies to authorities responsible for child protection, but also to all other authorities. But of course they must also be financed. One can think about whether the rights of the authority concerned should be strengthened - especially when it comes to cases of abuse. If necessary, the legislator may also have to take action and anchor rights of access or rights of search in the law.

There was such a case in Hamburg two or three years ago. A little girl died. Despite several tips, the authorities were there again and again, no one opened the door, then they left again and at some point the child was dead. These are terrible cases and that cannot be allowed to happen. We can consider whether sanctions should be imposed on the employees if they are responsible for the death of a child. Or we have to think about whether rights of access or similar are anchored in the relevant laws if there are concrete indications that a child's well-being is at risk. But you always have to be careful that a neighbour has not quarrelled with the parents and wants to "ride them in". So you will always need tangible, concrete aspects for intervention.

If the legal possibilities, which I do not know in detail, are not sufficient, then one could certainly think about tightening up the possibilities for intervention. And something like that would perhaps also be easier to achieve through a constitutional provision.

On the other hand, the current legal situation does not stop the legislator from anchoring such measures in the law, because there is a mandate to protect and a state duty to protect the life and physical integrity of children. This would not require a state objective provision in the Constitution.

Among the advocates of children's rights in the Constitution, one reads again and again that family court judges should be better trained. In addition, there are often problems finding foster families because they are legally placed in a completely different way than adoptive families and the hurdle to take in a foster child is much too high for many families. These are two examples of issues that have been in the media for years, either in the same way or in a different formulation. If you were a legislator now: Where would you change something here and now for the benefit of children?

Prof Brenner: That is difficult because I am not a family law expert. But what you say is certainly correct, namely that family judges must be properly trained; but I also know from my immediate environment that it is of course always difficult for a family judge to make the right decision, for example in a divorce. It always depends on the age of the children. But it is undoubtedly right to train judges psychologically to give them a broad horizon of experience so that they can make the right decision in each individual case. But in a divorce there is very rarely one and only one blissful decision. The children, and I know this from conversations with family court judges, often refer the divorce to themselves, they always assume that they are also to blame for the failure of the parents' marriage. So you can certainly train the judges, but you will never have a guarantee that the right decision will be made in each individual case. And one more comment on the subject of foster care: one can certainly think of reforms here, but you cannot, after all, oblige people to take in children.

One could make it easier?

Prof Brenner:Yes, one could make it easier and one could also make the conditions for adoption a little easier. There are always children who are given up for adoption. There are relatively rigid age limits. However, it is clear that the state has to take a close look at the hands into which it places a child. That is also important and is also its mandate. But perhaps the conditions can be eased a little in individual cases.

But you also asked in general terms: It would certainly be a good idea to make it even easier than before to reconcile work and family life. And there are various levers that can be used to do this, whether it's in-house day-care centres or something similar. Private companies could certainly also be called upon to do this. Some of the universities have already adapted to this. The University of Jena, for example, always holds its committee meetings during the day and not in the evening at 6, 7 or 8 p.m., so that mothers who are on the faculty council as student representatives, for example, also have the opportunity to attend. We have also timed all lectures so that young parents are able to study alongside their child-rearing responsibilities.

These are all small building blocks, and if we continue to build on them, then this is a good way into the future, because children are our future. And they will still face great challenges, especially with climate change. We will have to do everything, on many fronts, to ensure that we put responsible, responsible children, who are ready to act and who will one day be our actors in society, on the right path.

And if children's rights are written in the Constitution, no matter how they are formulated in detail, then it has an appealing effect, then it is also anchored in people's minds. And that is why I believe that children would benefit if such a provision were to be anchored in the Constitution. It would also make it easier to justify simple laws. One can then always refer to the constitution and the legislator can say: We are implementing here and fulfilling the mandate that the constitutional legislator has written into the Fundamental Law. I believe that this effect should not be underestimated.

But once again: It is ultimately the task of the legislature to make something out of such a state objective. The state goal alone does not achieve anything; the legislator must take action. This applies to the state goal of the welfare state, also to the state goal of environmental protection and also to a state goal of child protection. The provision alone is not able to convey concrete rights to the individual. Therefore, it will always be up to the legislator to make something of such an anchoring in the Fundamental Law.

The interview was conducted on 31 August 2021.