On 25 January 2024, the Federal Ministry of Justice presented a key issues paper for a reform of child law. The key issues refer to the reform agreed in the coalition agreement of the 20th legislative period, which aims at the ‘modernisation of parental responsibility law, contact rights, and adoption law’.
The Federal Association for Perpetrator Work in Domestic Violence (BAG TäHG) welcomes the explicit addressing of better protection against domestic violence – for both parents affected by violence and children (co-)affected – in the reform proposals. The consideration of domestic violence in parental responsibility and contact rights proceedings is currently not sufficiently regulated by law; in practice, protection against violence (especially for the affected parent) is often not adequately included or is subordinated to parental responsibility and contact arrangements. As criticised by the GREVIO report, this results in insufficient protection for parents and children affected by violence against domestic violence, or exposes them to further violence in particularly high-risk situations. This clearly contradicts the requirements of the Istanbul Convention, ratified by Germany.
It is therefore to be welcomed that, in future, joint parental responsibility should regularly be excluded in cases of violence against a child or against a parent (III. 8, Paragraph 2). The proposal that family courts can deny contact to avert a concrete danger to the parent affected by violence is also to be supported (III. 8, Paragraph 3). The comprehensive and systematic investigation of ‘any indications’ of domestic violence by family courts, as well as a risk analysis in contact proceedings, is fundamentally to be supported. However, no room for interpretation should be opened here; instead, ‘all’ indications of domestic violence should be investigated as a matter of principle, and standardised procedures should be developed for this. In practice, this requires that all involved actors are comprehensively trained to recognise and soundly assess the dynamics and facets of domestic violence.
Further key issues highlight the fundamental relevance of widespread knowledge dissemination regarding domestic violence, its underlying gender-specific power structures, and dynamics to all involved parties. The agreement of sole parental responsibility for one parent (III. 1, Paragraph 2), the enforceable agreement on contact rights with the involvement of the youth welfare office (III. 3), and the possibility of a court order for care under a shared care model (III. 7, Paragraph 1) can lead to the continuation and escalation of violence in cases of domestic violence. As separation situations represent a particularly dangerous situation for individuals affected by violence, this must be absolutely considered within the framework of the reform. For example, under III. 3, separate counselling by trained youth welfare office personnel should be possible without it being interpreted to the detriment of one parent. In cases of domestic violence, a shared care model must not be ordered.
The potential of perpetrator work as victim protection, enshrined in the Istanbul Convention, remains unaddressed in the present key issues paper. Yet, perpetrator work can be used in parental responsibility and contact rights proceedings to hold perpetrators accountable and to link further contact arrangements to participation in a perpetrator programme. This strengthens the well-being of both the child and the affected parent in both the short and long term, without categorically excluding the right to contact. For this reason, BAG TäHG calls for perpetrator work according to standards to be recognised as a long-term protective measure and to be considered in the reform plans. There is a need for civil law anchoring of standardised perpetrator work in parental responsibility and contact rights.
We welcome the BMJ’s initiative regarding the planned legal changes and the intended improvements, and look forward to an adapted draft bill that more comprehensively considers the requirements of the Istanbul Convention.
