Definition and legal classification of official guardianship
Die Official guardianship is a term from German family law and describes a form of statutory guardianship in which the youth welfare office takes over guardianship for a minor child by operation of law or by court order. Official guardianship must be distinguished from private guardianship, in which a private individual, such as a relative, is appointed as guardian. The purpose of official guardianship is to ensure the child’s welfare, especially in situations where the parents are partially or entirely unable or not permitted to exercise parental care.
Legal basis of official guardianship
Statutory basis
The essential legal bases for official guardianship are found in the German Civil Code (BGB), especially in §§ 1909 et seq. BGB and in Book Eight of the Social Code (SGB VIII), primarily § 55 SGB VIII. The arrangement and design of official guardianship are furthermore supplemented by various provisions of family procedure law and, where applicable, by child and youth welfare law.
Jurisdiction and appointment
The appointment of an official guardian or custodian usually takes place by order of the family court. The youth welfare office is appointed as guardian (‘Amtsvormund’ or ‘Amtspfleger’). Guardianship begins with the effectiveness of the court order or, if so provided by law, by operation of law when certain circumstances arise, for example, upon notification of the birth of a child whose parents or mother are minors or cannot be reached.
Occasions and areas of application for official guardianship
Minor unmarried mother (§ 1626c BGB)
A classic case is the birth of a child by a minor mother. According to § 1626c BGB, the minor mother is not entitled to exercise parental custody, so the family court appoints a guardian for the child. In many cases, the youth welfare office assumes this task within the framework of official guardianship.
Minor unmarried parents / determination of paternity (§ 1626d, § 1684 BGB)
Official guardianship may also become necessary if the parents, especially the father, are minors or cannot be reached, or if parental custody lapses, for example, due to death.
Official guardianship in case of child endangerment
If there are significant indications of danger to the physical, mental, or emotional well-being of a child (§ 1666 BGB), the family court may partially or fully withdraw parental custody and assign the youth welfare office guardianship over certain spheres (e.g., the right to determine residence, health care).
Maintenance guardianship (§ 1712 BGB)
The youth welfare office is granted by law the authority to represent the child in asserting maintenance claims as soon as there is an application by the single mother or father or if the requirements under § 1712 BGB are met. In these cases, this is also a partial official guardianship (Beistandschaft).
Duties and powers of the official guardian
Scope of guardianship
The scope of guardianship must be determined by the court in the order of appointment. It is based on which parts of parental custody are to be removed or separately transferred, such as the right to determine residence, property management, or health care.
Representation and administration
Within its area of responsibility, the youth welfare office exercises all rights and obligations of a guardian. It represents the child in and out of court, carries out necessary administrative actions, and makes decisions in the best interests of the child.
Supplementary guardianship
In certain situations, official guardianship may also be structured as a supplementary guardianship. This is regularly the case if parental custody rests or is withdrawn for specific matters, but not entirely.
Termination of official guardianship
Official guardianship ends by operation of law or by court order. Important reasons for termination are:
- Reaching the age of majority
- Cessation of the grounds for guardianship (for example, restoration of parental custody)
- Adoption of the child
- Change to private guardianship or custody
Upon termination of official guardianship, the youth welfare office is obliged to account to the child or the new legal guardian for the measures taken and the administration of the child’s property (§ 1698 BGB).
Distinction from custodianship and other forms of guardianship
Difference from custodianship
While custodianship comprises the complete assumption of parental custody, guardianship is generally limited to partial areas. Official guardianship is usually established only for specific areas of responsibility or in cases of temporarily limited necessity.
Assistance
Assistance (§§ 1712 et seq. BGB) is a special form of legal representation by the youth welfare office, primarily for the enforcement of maintenance claims. Unlike guardianship, assistance is initiated at the request of the parent and is free of charge.
Practical significance
Official guardianship is an important instrument of state child protection and primarily serves the welfare of minors in legally challenging and socially critical situations. The assumption of guardianship by the youth welfare office ensures that necessary decisions and acts of representation, for example in matters of health care or financial affairs, can be made independently and in the child’s best interests.
Further reading and resources
For an in-depth review of official guardianship, commentaries on the BGB and practice-oriented works of child and youth welfare law offer further information. In addition, the website of the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, as well as the information portals of the state youth offices, provide up-to-date notes and materials on official guardianship.
Note: These statements reflect the legal situation as of June 2024. Changes in family law or administrative practice may affect the scope of application for official guardianship.
Frequently asked questions
Who is responsible for carrying out official guardianship?
In Germany, official guardianship is generally carried out by the locally responsible youth welfare office, depending on the circumstances of the individual case. Responsibility is essentially derived from § 86 SGB VIII (Social Code Book Eight – Child and Youth Welfare). The competent youth welfare office is the one in the area where the child or adolescent has their habitual residence. Within the youth welfare office, specially appointed professionals, known as official guardians, take on the task of performing certain aspects of parental responsibility for the child. They act in a fiduciary capacity and are subject to professional supervision and the instructions of the head of the youth welfare office. In legal matters, the official guardian acts as the legal representative of the ward.
How does official guardianship differ from custodianship?
The main difference between official guardianship and custodianship lies in the scope of the powers transferred. In custodianship – usually exercised by an individual or the youth welfare office as official custodian – the entirety of parental affairs for the child is assumed, while official guardianship fundamentally only covers specific areas of parental authority. This may include the right to determine residence or legal custody in matters of property. The exact structure of official guardianship is determined by the court in its decision, which defines the scope of guardianship (§ 1909 BGB and § 1630 para. 3 BGB).
What are the obligations of an official guardian within the framework of official guardianship?
An official guardian is obliged to represent the interests of the child or adolescent with care and conscientiousness in the specific area assigned by the court. This includes, in particular: exercising all rights and obligations for the benefit of the ward, obtaining court approvals for significant decisions, providing regular information to the family court and, where applicable, the youth welfare office, and participating in hearings in family court proceedings. The official guardian is also required to keep records of all actions taken and to account upon request.
How long does official guardianship last and how does it end?
The duration of official guardianship is generally limited to the period during which the prerequisites for its appointment exist. It regularly ends with the cessation of these prerequisites, for example, when parental custody can again be fully exercised by the parents, or when the ward reaches the age of majority (§ 1882 BGB). In addition, the family court can terminate official guardianship if it is no longer necessary or if new legal guardians are appointed. The formal conclusion is always decided by the family court through an appropriate order.
What rights do parents have during ongoing official guardianship?
The rights of biological parents during an active official guardianship depend on the scope of parental responsibility withdrawn by the court and transferred to the official guardian. Essentially, parents retain all powers regarding those parts of parental custody not removed from them by the court guardianship decision. In the areas covered by the official guardian, they are excluded from exercising their rights and are represented by the official guardian. However, they have the right to be heard in court proceedings and may submit applications to modify or terminate the guardianship. They also have the right to ask for judicial review of the official guardian’s conduct.
What monitoring and supervisory options exist with regard to the official guardian?
The work of the official guardian is subject to both supervision by the youth welfare office and oversight by the family court. The family court particularly reviews proper guardianship during appointment and as part of the annual accounting procedure. It may require the official guardian to provide information and present documents and may remove them in the event of breaches of duty (§ 1837 BGB). Third parties, especially the ward and their relatives, may refer possible misconduct to the court and request a review.
What reporting obligations are there to the family court during official guardianship?
The official guardian is required to inform the family court of all essential matters affecting the welfare of the child under official guardianship. This includes, in particular, changes in the personal environment, decisions with far-reaching consequences (such as a change of residence), major financial transactions, and the regular accounting of asset management. Notification is also required if serious problems arise in cooperating with the ward or their parents, or if the guardian comes to the conclusion that the conditions for guardianship are no longer present.
