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Questionable constitutional change

Thirty years after the United Nations (UN) passed the Convention on the Rights of the Child, the German federal government wants to include children's rights in the German Basic Law. This could do more harm than good, according to Kiel legal expert Professor Florian Becker.

Girl at play ground
© iStock/Christian Schwier

Do children need their own rights in the Basic Law? Constitutional lawyers doubt this.

Children's rights in the Basic Law? Who could be against that? And in fact there is relative unity among the parliamentary factions, with the exception of the FDP and AfD. Children's rights, according to the UN Convention on the Rights of the Child, belong in the constitution. The demand even found its way into the coalition contract between the CDU/CSU and SPD. A concrete legislative proposal is expected to be complete by the end of the year.

The "Convention on the Rights of the Child" has been in force in Germany since 1992. Ever since, the federal government has agreed to ensure certain rights to support, protection of and  participation for children, as well as "general principles," such as the right to life and primacy of child welfare. Article 4 contains a requirement to take any legislative measures suitable "for bringing about the rights recognized in this convention." Critics say that Germany has not sufficiently complied. Children are not explicitly named as bearing specific rights. This is where the desire for a constitutional change comes from.

Bloated Basic Law

Are children just legal objects in Germany? "No," says Florian Becker, professor of public law at Kiel University. "In every one of the 19 articles of basic rights, children are legal subjects, just like everyone else." This means that there is no gap in protection for children in the constitution, because basic rights apply to all persons, whether young or old. The convention, as an agreement under international law, does not specify how its regulations are to be implemented in national law. "Including the rights of the convention in their entirety would overtax the constitution as a framework and break up the system – and the science has a consensus here," Becker is convinced. Therefore, only selective amendments would be practical. For example, if children were to have a fundamental right to enforce claims against their parents, such as for care and upbringing, this would be new to the constitution. This is because basic rights have previously only applied relative to the state, not to other people, which is why they are seen as defensive rights to prevent overreach by public authorities. The constitution therefore emphasizes the "natural right" of parents to care for and raise the child. Fundamental children's rights would place the private, social relationship between parent and child in the legal realm, "which creates distance," says Becker. "They drag constitutional law into a family relationship, which changes its fundamental concept."

What else would constitutional reform mean for other groups of people? Older people, for example, could now demand their own rights in the Basic Law. The consequences for society would be hard to predict.

Children's rights could potentially displace other basic rights

Florian Becker's greatest concern is what special rights for children could imply for the application of previous basic rights to children, especially over the long term. Today everyone may agree that the application of existing basic rights should not change even after an amendment. "But no one knows how this would be interpreted by a constitutional court ten years from now," says Becker. This could have a particularly touchy effect on the right to life, for example. The life of the unborn child is currently protected to the same degree as the born, says the federal constitutional court. "Some people want to change that," observes Becker. A special right of children to life and health could then lead to embryos and foetuses being legally differentiated from born children, which could affect previously well-established constitutional rulings on abortion.

Simple laws would be more helpful

The mildest consequence of including special rights for children in the constitution would simply be irrelevance, according to Professor Becker: no concrete claims for children could be derived from including in the constitution, for example, that the state is obligated to support the development of children. Symbolically, on the other hand, it could make sense. For example, it could jolt the state into doing something, but this would not create a single daycare position or build a playground. "The things that really help children happen at the level of simple laws and finances," says Becker. If it doesn't have any negative effects on previous fundamental rights, then including basic rights for children would not do any harm, but it would also not do any good. "The danger is the dynamic that such a change could develop over ten or fifteen years."

Author: Denis Schimmelpfennig

Debate in the Bundestag

A Bund/Länder group is currently advising on the design of a change to the Basic Law intended to anchor children's rights in the constitution. The parliamentary factions Die Linke and Bündnis90/Die Grünen have already submitted suggestions for legislation. The draft from Die Grünen appears harmless to Professor Florian Becker: "It would not do anything, but would not be harmful." The party wants to change four paragraphs in Article 6 (changes in bold):

  • (1) Children, marriage and the family shall enjoy the special protection of the state.
  • (2) The care and upbringing of children, with respect for their personality and growing independence, is the natural right of parents and a duty primarily incumbent upon them.  The state shall watch over them in the performance of this duty.
  • (4a) Every child has the right to support in its development. In all matters relating to the child, it shall participate as appropriate for its age and maturity; the will and first and foremost the welfare of the child shall be considered as authoritative.
  • (5) Children born outside of marriage shall be provided by legislation with the same opportunities for physical and mental development and for their position in society as are enjoyed by those born within marriage.

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