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013 – What is the “Beistandschaft”? (pronounce: Bye-Staand-Tschaaft)


The exchange of questions and responses between italian representatives and the European Commission (see: 008-european-parliament-committee-on-petition-beistandschaft-of-the-jugendamt) makes me understand two points:

1.
The questions raised  were limited to one sole aspect of  the Beistanschaft: the request of advances of maintenance payments.
Nevertheless, the impact of the Beistandschaft on German legal procedures in family matter and its transnational application within the EU is much much broader.
Non-German representatives are not aware of what is really the Beistandschaft, nor understand the terrific consequences it will have – in a couple of decades – , once applied automatically in combination with the (EC) regulations (2201/2003, 4/2009 and 650/2012) in all non-German jurisdictions (hundreds of billions of euros will be then transfered to Germany without any legal mean for the non-German states to hinder these obligatory withdrawals).

2.
German officials did not tell all the truth to the Commission.
They hid deliberately the central aspect of HOW and WHAT FOR the Beistandschaft is implemented. They kept silent its function to introduce secretly, BEFORE the legal procedure, a fait accompli that then never can be contested.
This for a single reason: It doesn’t exist a legal way, nor a legal mean to oppose a Beistandschaft of the Jugendamt (even if German lawyers pretend the opposite), this means, with other words, to get fair justice in Germany.

 

But what is the function of the Beistandschaft, at all?

To say it very shortly, the Beistandschaft undermines systematically the effectivness of ANY legal procedure for ONE of both parents (the Non-German) in combination with an other hidden measure, the so called Verfahrenspflegschaft .

It allows the Jugendamt to place the chosen parent (the German one) under its legal protection (trusteeship), in  order to access to the “financial” part of his parental rights towards his minor (Vermögenssorge) – which is placed himself under the “financial” care (wardschip) of the Jugendamt (more precisely of the “Bundesland”) -, this all to entitle the Jugendamt to assert these financial parental (part)rights, acting as the German State against the other parent (the Non-German).

With other words, custodian and visiting parents are already chosen administratively – unilaterally and arbitrarily – before any Court procedure has initiated.

The function of the Court will be then reduced to a materialization of the fait accompli and a legalization of the political decision (the one made by the Jugendamt that implemented a Beistandschaft), through the effect of legal procedures.

The “German” parent must cooperate – even as an unwilling instrument – against his former partner (the Non-German), in order to exclude him from any contact to the minor child. A non cooperation could imply for him, to set his own parental rights at risk (to loose his own child to the Jugendamt).

 

Let me conclude in a metaforic way:

The German family justice is to be considered a “double decker justice”

On the first floor there is the Jugendamt, that guides and decides alone the destination to reach, the way to take (a short or a long way accordingly to the patrimony available by the non-German) and how much will be the fare to pay.

On the second floor there is the judge. At any station (at any hearing) a new passenger get on board and is directed straight to the second floor: sollicitors, ‘Verfahrenspfleger’, ‘Umgangspfleger’, expert in German ‘Kindeswohl’ matters (Gutachter).

Once boarded, all these people won’t leave the bus before the final destination is reached, with other words, before the political decision made by the Jugendamt through the Beistandschaft will have been implemented in irreversible facts.

Any attempt to stop this bus (with legal means) is unefficient and lengthens the judicial trip.

Non-German lawyers, politicians, parents, the European Parliament, the Commission or even the ECHR, never see the first floor. This is the very problem.

A draft of all effects of the Beistandschaft is published in french as a 007 document – see: 007-european-parliament-committee-on-petition-beistandschaft-of-the-jugendamt.

However, I will publish an extended feuillet universitaire in english on this topic.

Olivier Karrer
CEED – Paris

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