Concept and legal foundations of childcare facilities
Childcare facilities are institutions where children are cared for, supported, and educated either for part of the day or all day. In Germany, the central legal basis is the law governing child and youth welfare, particularly Book Eight of the Social Code (SGB VIII) – Child and Youth Welfare. Legally, childcare facilities mainly include kindergartens, nurseries, after-school care centers, and mixed-age institutions.
Definition and differentiation
According to § 22 para. 1 sentence 1 SGB VIII, childcare facilities are institutions where children regularly spend part of the day or the whole day. Care is provided by educational staff in groups and is oriented towards educational, upbringing, and supervisory tasks. The distinction is made from childminding (§ 22 para. 1 sentence 2 SGB VIII), where care does not take place in an institution but in suitable premises, usually by a childminder.
Types and forms of childcare facilities
Childcare facilities are differentiated by the type of service, age group, and sponsoring authority.
Types of services
- Kindergarten: Care and support for children aged three until starting school.
- Nursery: Care of children under three years.
- After-school care center: Support and care for school children outside school hours.
- Family groups / mixed-age groups: Groups with children of various age categories.
Sponsorship
In principle, childcare facilities can be operated under municipal, non-profit (welfare associations, churches), private-commercial, or parent-initiative sponsorship. The legal form of the sponsor is decisive for questions of funding, supervision, and participation.
Legal framework for operation and operating license
Responsibility of the sponsor
The sponsor is legally responsible for the operation and compliance with all applicable regulations. These include, in addition to the provisions of SGB VIII, especially the respective state laws and implementation regulations.
Operating license under § 45 SGB VIII
To operate a childcare facility, an operating license from the authority responsible under state law is generally required according to § 45 SGB VIII. The operating license depends on various prerequisites, including:
- Suitable premises and equipment
- Appropriate staff-to-child ratio (qualified staff–child ratio)
- Submission and review of an educational concept
- Proof of personal and professional suitability of the care staff
- Guarantee of child welfare and protection concepts pursuant to §§ 8a, 8b SGB VIII
The operating license must be obtained before regular operations begin. Changes to relevant conditions (e.g. number of groups, premises, management) must be reported to the licensing authority.
Supervision and inspection
Childcare facilities are subject to ongoing state supervision to ensure compliance with legal requirements and child welfare. This supervision is carried out by the youth welfare offices of the states or state youth welfare offices and includes both event-driven and regular inspections.
Statutory duties and support mandate
Educational, upbringing, and care mandate
SGB VIII (§ 22 para. 2) obliges childcare facilities to educate, support, and care for the children entrusted to them. Key areas are:
- Supporting social, emotional, physical, and intellectual development
- Support and counselling for legal guardians
- Inclusion and equal opportunities
The design and implementation of the educational program is based on the educational plans of the federal states and on child welfare.
Parental involvement
Parents have a right to participate in the childcare facility. This is ensured by parent advisory boards or similar bodies that have the right to be consulted and to participate in key matters pertaining to the operation of the facility.
Funding and parental contributions
Public funding
Funding is generally provided by a combination of public funds (municipal, state, federal), provider funds, and parental contributions. The legal basis for this is laid down in SGB VIII (§§ 24 ff., 26ff.), the state laws, as well as municipal statutes.
Parental contributions
The amount of parental contributions is determined by state law requirements and municipal statutes. They can be differentiated by income, number of children, and care hours. In certain cases, there is an entitlement to have costs covered or reduced by the youth welfare office (§ 90 SGB VIII).
Entitlement to support in childcare facilities
Since August 1, 2013, under § 24 SGB VIII, there has been a legal entitlement to support in a childcare facility for children from their first birthday until they start school. For school-age children, there can also be an entitlement to support, e.g., in an after-school care center.
Child protection and protective mandate
Childcare facilities are obliged to fulfill the protective mandate in cases of child welfare endangerment (§ 8a SGB VIII). Internal procedural rules must be established, risks recognized, and reported to the responsible authority. Educational staff must regularly receive training in child protection topics.
Other legal provisions
Data protection
Childcare facilities process personal data of children and parents. The provisions of the General Data Protection Regulation (GDPR) as well as the Federal Data Protection Act (BDSG) and state-specific supplements must be observed.
Accident insurance and liability
Children in childcare facilities are legally insured against accidents during their stay as well as on their way to and from the facility (§ 2 para. 1 no. 8a SGB VII). For cases of damage, liability law under the BGB applies, and in some cases, special provisions apply, for example for caregivers in public-law institutions.
State regulations
The federal states specify nationally uniform requirements through their own childcare laws, implementation acts, and regulations. These mainly govern staff-to-child ratios, requirements for qualified staff, space programs, and quality development.
Quality assurance and monitoring
Professional standards
To ensure and further develop educational work, quality standards are set through state framework agreements, educational plans, and internal evaluations.
Internal and external evaluation
In addition to state inspection, facilities are required to conduct internal quality assurance, for instance through program development, team training, and parent surveys. External evaluations take place in the form of inspections and audits.
References and further regulations
- SGB VIII – Child and Youth Welfare
- State childcare laws
- Educational and orientation plans of the federal states
- Data protection regulations (GDPR, BDSG)
- Regulations on operating licenses and supervision
Conclusion
Childcare facilities in Germany are subject to a complex legal framework that imposes numerous requirements on sponsors, staff, and organization. The aim of the legal framework is to ensure a high level of quality, child protection, equal opportunities, and participation for all children at both federal and state levels. The continuous development of legal bases takes account of changes in society and the needs of families.
Frequently asked questions
Who is legally entitled to a place in a childcare facility?
According to § 24 paragraph 1 of Book Eight of the Social Code (SGB VIII), children from the completion of their first year until they start school have a legal right to support in a day care facility or in child day care. The entitlement applies to both German and foreign children who are legally residing or have a residence permit in Germany. The municipality, as the local provider of public child and youth welfare, is obliged to provide the necessary place either in a childcare facility (nursery, kindergarten) or, if needed, in child day care (childminder). Before the first birthday, such a legal entitlement exists only under certain conditions, for example, if both parents are employed, in training, or seeking work (cf. § 24 para. 2 SGB VIII). The exercise of the entitlement is independent of parental employment, i.e., non-working parents can also claim this right.
What legal requirements apply to the operating license of a childcare facility?
Operating a childcare facility requires a prior operating license in accordance with § 45 SGB VIII. This is granted by the competent state youth authority (usually the state youth welfare office) after examination of all necessary prerequisites. Required documentation includes, among others, an educational concept, proof of suitable premises in accordance with the applicable state regulations, proof of the personal and professional suitability of the sponsor and staff, as well as an adequate child protection concept. In addition, fire protection, hygiene, and, if necessary, building regulations must be observed. The operating license is subject to conditions and may be revoked if these conditions are violated or if child welfare is compromised.
What statutory minimum standards apply regarding staffing levels?
The statutory minimum staffing of childcare facilities is specified in the respective state laws or implementation regulations. It is based on § 22a SGB VIII, which requires that childcare facilities have a sufficient number of qualified staff, whose qualifications ensure care, support, and education appropriate to child welfare. The actual staff-to-child ratio varies by federal state, age group of the children cared for, as well as the type and size of the facility, but in practice often ranges from 1:3 for children under three and 1:7 to 1:12 for children aged three and above. Breaches of minimum staffing can result in the revocation of the operating license.
What is the legal situation regarding cost coverage and fees in childcare facilities?
The funding of childcare facilities is based on a principle of mixed financing by public funds (federal, state, local) and by parental contributions. According to the respective state childcare laws, the municipality decides on the level of parental contributions, taking into account social gradations. For low-income families, § 90 para. 3 SGB VIII provides the possibility of applying to the youth welfare office for partial or full assumption of parental contributions (fee exemption). Beyond this social component, some federal states provide periods of fee exemption (e.g. the last year before starting school). The regulation of fee levels is at the discretion of individual municipalities, which, however, are bound by principles of equality and fairness.
What supervisory duties apply to sponsors and staff of a childcare facility?
Sponsors and educational professionals are subject to extensive supervisory obligations arising from SGB VIII as well as from the German Civil Code (BGB, § 832). They are obliged to protect the children entrusted to them from dangers to their physical and mental development, which includes regular attendance checks, compliance with accident prevention regulations, protection from violence, sexual abuse or discrimination, and age-appropriate care. Breaches of supervisory duty can result in civil and criminal liability in the event of damage.
What legal options are available if a child care place is denied?
If a requested child care place is denied, parents can, under the guarantee of legal recourse set out in Article 19 para. 4 of the Basic Law (GG), file an objection against the rejection notice issued by the municipality. If this is unsuccessful, they may seek legal remedy through the administrative court. In urgent cases, for example, if employment is imminent and care is needed, an application for interim legal protection (§ 123 VwGO) can be filed to provisionally secure a daycare place. The court review is limited to compliance with the legal requirements and bases for entitlement under SGB VIII. If successful, the municipality must provide a suitable place and, according to the latest supreme court rulings, is also liable for damages in cases of culpable failure to fulfill the entitlement (cf. BGH, judgment of 20.10.2016 – III ZR 278/15).
