Convention on the Rights of the Child
Distr.
GENERAL
CRC/C/15/Add.226
26 February 2004
Original: ENGLISH
COMMITTEE ON THE RIGHTS OF THE CHILD
Thirty-fifth session
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 44 OF THE
CONVENTION
Concluding observations: Germany
1. The Committee considered the second periodic report of Germany (CRC/C/83/Add.7)
at its 926th and 927th meetings (see CRC/C/SR.926 and 927), held on 16 January
2004, and adopted, at the 946th meeting (CRC/C/SR.946), held on 30 January 2004,
the following concluding observations.
A. Introduction
2. The Committee welcomes the submission of the State party’s second periodic
report, which followed the established guidelines. The Committee also takes
note of the submission of the written replies to its list of issues (CRC/C/Q/DEU/2).
The Committee appreciates the presence of a high-level delegation directly involved
with the implementation of the Convention which allowed for a better understanding
of the implementation of the rights of the child in the State party. B. Follow-up
measures undertaken and progress achieved by the State party
3. The Committee welcomes the adoption of:
(a) The law on Nationality and Citizenship adopted on 15 July 1999, which allows
for a better integration of foreign children;
(b) The amendment of the Law on Family Matters (Reform zum Kindschaftsrecht)
of 16 December 1997, which came into force on 1 July 1998 and which suppresses
discrimination between children born in or out of wedlock regarding custody
and visitation rights;
(c) The ratification in 2001 of the Hague Convention on Protection of Children
and Cooperation in Respect of Intercountry Adoption of 1993;
(d) The ratification in 2002 of ILO Convention No. 182 concerning the Prohibition
and Immediate Action for the Elimination of the Worst Forms of Child Labour.
C. Factors and difficulties impeding the implementation of the Convention
4. The Committee notes that the reunification of Germany and its implications
continue to have effects on the implementation of the Convention throughout
the State party.
D. Principal subjects of concern and recommendations
1. General measures of implementation
Previous recommendations of the Committee
5. The Committee notes with concern that the State party mentioned on several
occasions in its report that it would not implement various recommendations
of the Committee. It further regrets that some of the concerns expressed and
the recommendations made (CRC/C/15/Add.43) after its consideration of the State
party’s initial report (CRC/C/11/Add.5) have been insufficiently addressed,
particularly those contained in paragraphs 21-26 and 29-35, such as the establishment
of an independent monitoring mechanism. Those concerns and recommendations are
reiterated in the present document.
6. The Committee urges the State party to make every effort to address the previous
recommendations that have not yet been implemented and the concerns expressed
in the present concluding observations.
Reservations/declarations
7. The Committee acknowledges the information (CRC/C/83/Add.7, paras. 84 and
844 and written replies, pp. 46 and 47) that the reservations and declarations
the State party made upon ratification have become unnecessary, inter alia,
due to recent legislation. But the Committee remains concerned at the lack of
willingness of the majority of the Länder to accept the withdrawal of these
reservations and declarations.
8. In light of the 1993 Vienna Declaration and Programme of Action, and in line
with its previous recommendations (CRC/C/15/43, para. 22), the Committee recommends
that the State party expedite the process for the withdrawal of the reservations
and declarations it had made before the submission of its next periodic report
and increase, in particular, its efforts to convince the Länder of the
need to withdraw them.
Legislation
9. The Committee is aware of the numerous laws relevant to children’s
rights which have been adopted since the consideration of the initial report
but remains concerned that the Convention has not been incorporated into the
Basic Law, as foreseen at the time of the initial report.
10. In light of its previous recommendations (para. 21), the Committee recommends
that the State party:
(a) Reconsider the incorporation of the Convention into the Basic Law;
(b) Ensure, through an appropriate mechanism, that all national and Länder
laws fully conform with the Convention;
(c) Ensure that adequate provision is made for the effective implementation
of those recommendations, including through budgetary allocations.
Coordination
11. The Committee notes that the Ministry for Family Affairs, Senior Citizens,
Women and Youth is responsible for coordinating the implementation of the Convention,
and that coordinating mechanisms exist between the Länder such as the Association
of Supreme Land Youth Authorities and the Conference of Land Youth Ministers.
However, considering that the implementation of the Convention cuts across many
ministries, the Committee remains concerned that the absence of a central mechanism
to coordinate the implementation of the Convention in the State party at the
national and Land and local levels makes it difficult to achieve a comprehensive
and coherent child rights policy.
12. The Committee recommends that the State party establish an adequate permanent
national mechanism to coordinate the implementation of the Convention at the
federal level, between the federal and the Länder levels and between the
Länder.
National Plan of Action
13. The Committee notes with satisfaction that a National Plan of Action is
currently being drafted in accordance with the outcome document “A World
Fit for Children” of the 2002 General Assembly special session on children,
but remains concerned that this National Plan of Action may not cover all areas
of the Convention.
14. The Committee recommends that the State party expedite the adoption of the
National Plan of Action, which should cover all areas of the Convention, be
comprehensive and multidisciplinary, and provide for a coordination and monitoring
mechanism. The Committee further recommends that the adoption and implementation
of this Plan of Action be done through an open, consultative and participatory
process.
Independent monitoring structures
15. The Committee notes the existence of various human rights institutions which
also cover children’s rights, as well as Children’s Commissioners
at the Länder level, the Children’s Commission of the German Bundestag
and an independent commission in charge of regularly reporting on the situation
of children and youth (Kinder- und Jugendbericht). However, the Committee is
concerned that there is no central independent mechanism for a comprehensive
monitoring of the Convention which is empowered to receive and address individual
complaints of children at the Länder and federal levels.
16. The Committee encourages the State party to consider the establishment of
an independent national human rights institution, in accordance with the Principles
relating to the status of national institutions for the promotion and protection
of human rights (the Paris Principles, General Assembly resolution 48/134, annex),
taking into account the Committee’s general comment No. 2 (2002) on the
role of national human rights institutions in the protection and promotion of
the rights of the child, to monitor and evaluate progress in the implementation
of the Convention at the national and local levels. In addition, the Committee
recommends that the institution be allocated adequate human, technical and financial
resources and that its mandate include the power to receive, investigate and
address effectively complaints of violations of child rights in a child sensitive
manner.
Data collection
17. The Committee notes with appreciation the wealth of statistical data provided
in the annexes to the State party’s report but remains concerned at the
insufficient data in some areas covered by the Convention.
18. The Committee recommends that the State party develop a system of data collection
and indicators consistent with the Convention and disaggregated by gender, age
and urban and rural area. This system should cover all children up to the age
of 18 years with specific emphasis on those who are particularly vulnerable,
such as foreign children. It further encourages the State party to use these
indicators and data in formulating policies and programmes for the effective
implementation of the Convention.
Training and dissemination
19. The Committee notes the various activities undertaken by the State party
to disseminate the provisions and principles of the Convention but remains particularly
concerned that, according to recent studies, most children and adults, notably
those belonging to vulnerable groups, are not aware of the rights contained
in the Convention. The Committee is, therefore, concerned that the State party
is not undertaking adequate dissemination, awareness-raising and training activities
concerning the Convention in a systematic and targeted manner.
20. In line with its previous recommendations (paras. 26, 27 and 36) and article
42 of the Convention, the Committee recommends that the State party:
(a) Substantially expand dissemination of information on the Convention and
its implementation among children and parents, civil society and all sectors
and levels of government, including initiatives to reach vulnerable groups such
as asylum seekers, refugees and ethnic minorities;
(b) Develop systematic and ongoing training programmes on human rights, including
children’s rights, for all professional groups working for and with children
(e.g. judges, lawyers, law enforcement officials, civil servants, local government
officials, personnel working in institutions, teachers and health personnel).
International cooperation
21. The Committee notes the approval of the Programme of Action 2015 for Poverty
Reduction and the many other activities in the area of international cooperation
and assistance, but remains concerned that the State party devotes only about
0.27 per cent of its gross national income to the official development assistance,
and that the foreseen increase to 0.33 per cent in 2006 is very slow.
22. In light of its previous recommendations (para. 25), the Committee encourages
the State party to implement the United Nations target of allocating 0.7 per
cent of gross domestic product to overseas development assistance as soon as
possible and emphasize its concern about basic social services to attain the
objectives of the Copenhagen 20/20 Initiative.
2. General principles
Right to non-discrimination
23. While acknowledging the prohibition of discrimination in the Basic Law (art.
3), the Committee is concerned at the de facto discrimination against foreign
children and at incidents of racial hatred and xenophobia that have a negative
effect on the development of children. The Committee is also concerned that
some of the Land disparities in practices and services provided and in the enjoyment
of rights by children may amount to discrimination.
24. In accordance with article 2 of the Convention, the Committee recommends
that the State party carefully and regularly evaluate existing disparities in
the enjoyment by children of their rights and undertake on the basis of that
evaluation the necessary steps to prevent and combat discriminatory disparities.
It also recommends that the State party strengthen its administrative and judicial
measures to prevent and eliminate de facto discrimination against foreign children
or children belonging to minorities.
25. The Committee requests that specific information be included, in the next
periodic report, on the measures and programmes relevant to the Convention undertaken
by the State party to follow up on the Declaration and Programme of Action adopted
in 2001 by the World Conference against Racism, Racial Discrimination, Xenophobia
and Related Intolerance, taking into account the Committee’s general comment
No. 1 (2001) on article 29 (1) (aims of education).
Best interests of the child
26. The Committee takes note of the various initiatives which have been developed
in order to take into consideration the principle of the best interests of the
child (art. 3), but remains concerned that this general principle is not fully
applied and duly integrated in the implementation of the policies and programmes
of the State party nor in administrative and judicial decisions.
27. The Committee recommends that the State party take all appropriate measures
to ensure that the general principle of the best interests of the child is appropriately
integrated in all legislation and budgets, as well as in judicial and administrative
decisions and in projects, programmes and services which have an impact on children.
Respect for the views of the child
28. The Committee notes the progress achieved in the implementation of article
12 of the Convention with various legal provisions recognizing the right of
the child to express his/her views, but remains concerned that the general principle
as laid down in that article is not fully applied and duly integrated in practice
into the implementation of the policies and programmes throughout the State
party.
29. The Committee recommends that further efforts be made to ensure the implementation
of the principle of respect for the views of the child. In this connection,
particular emphasis should be placed on the right of every child to participate
in the family, at school, within other institutions and bodies, and in society
at large, with special attention to vulnerable groups. This general principle
should also be reflected in all policies and programmes relating to children.
Awareness-raising among the public at large as well as education and training
of professionals on the implementation of this principle should be reinforced.
3. Civil rights and freedoms
Freedom of religion
30. The Committee notes the decision of the Constitutional Court of 24 September
2003 (2 BvR 1436/02, Case Ludin) but is concerned at laws currently under discussion
in some of the Länder aiming at banning schoolteachers from wearing headscarves
in public schools, as this does not contribute to the child’s understanding
of the right to freedom of religion and to the development of an attitude of
tolerance as promoted in the aims of education under article 29 of the Convention.
31. The Committee recommends that the State party take educational and other
measures aimed at children, parents and others to develop a culture of understanding
and tolerance, particularly in the area of freedom of religion, conscience and
thought by, inter alia, avoiding measures which single out a particular religious
group.
Access to information
32. While welcoming the State party’s efforts to protect children from
harmful printed and electronic communications media (e.g. the Youth Protection
Act and the interstate agreement on the protection of minors in the media, 2003),
the Committee remains concerned that the legal situation might be complicated
due to a multiplication of legal instruments and that the sharing of responsibilities
between the federal and Land levels is not clear.
33. The Committee recommends that the State party:
(a) Ensure the full implementation of the newly adopted regulations on the protection
of children against harmful information and find ways to make the legal situation
in this regard more transparent;
(b) Consider further means, including through the provision of advice to parents,
of protecting children from information that may be harmful to them.
4. Family environment and alternative care
Parental responsibilities
34. The Committee notes with appreciation the adoption of the third law to amend
the federal law on child benefits (entered into force on 1 January 2001) which
improves the possibility for both parents to take parental leave and the amendment
of the law on parental custody which provides for shared parental custody (Sorgerecht)
even when they are divorced, separated, or not married, but remains concerned
that the judicial system is not yet prepared to fully implement this latter
legislation.
35. The Committee recommends that the State party take all necessary measures
for a full implementation of the new legislation relating to the law on parental
custody, notably through adequate training for magistrates.
Intercountry adoption
36. The Committee welcomes the ratification in 2001 by the State party of the
Hague Convention on Protection of Children and Cooperation in Respect of Intercountry
Adoption of 1993, and notes the measures taken for its implementation, but remains
concerned at possible irregularities in these cases of adoption, as mentioned
in the State party’s report (para. 476).
37. The Committee recommends that the State party continue to take all necessary
measures to deal with possible irregularities in cases of intercountry adoptions,
inter alia, by fully implementing the Hague Convention on Protection of Children
and Cooperation in Respect of Intercountry Adoption and by promoting ratification
of the Convention by States of origin of children adopted by Germans that have
not yet acceded to that Convention.
Illicit transfer and non-return of children abroad
38. The Committee notes with satisfaction that Germany is a party to the Hague
Convention on the Civil Aspects of International Child Abduction of 1980, but
remains concerned that the abduction of children by either of their parents
is a growing problem.
39. The Committee recommends that the State party fully and effectively apply
the Hague Convention of 1980 to all children abducted into Germany (including
those abducted from non-State parties to the aforesaid Convention) and encourage
States which are not yet parties to this Convention to ratify or accede to it
and, if necessary, conclude bilateral agreements to deal adequately with international
child abduction. It further recommends that maximum assistance be provided through
diplomatic and consular channels, in order to solve cases of illicit transfer
of children abroad.
Violence, abuse, neglect and maltreatment
40. The Committee welcomes the introduction in 2000 of the law to prohibit violence
in the upbringing of children, which prohibits corporal punishment within the
family, and of various other legal instruments to fight against domestic violence
(e.g. 2002 Act for Further Improving Children’s Rights) but remains concerned
that there is a lack of comprehensive data and information on the impact of
the new legislation. The Committee is further concerned that various forms of
violence continue to exist in the State party, in particular, sexual abuse and
the growing problem of violence at school.
41. In light of article 19 of the Convention, the Committee recommends that
the State party:
(a) Undertake a comprehensive study on violence, more particularly on sexual
abuse and violence at school, in order to assess the extent, scope and nature
of these practices;
(b) Strengthen awareness-raising campaigns with the involvement of children
in order to prevent and combat child abuse;
(c) Evaluate the work of existing structures and provide training for professionals
involved in such cases.
5. Basic health and welfare
42. The Committee expresses its concerns at the widespread abuse of drugs, alcohol
and tobacco among children; at the high incidence of infants born with the foetal
alcohol syndrome; and that the number of children either of whose parents is
a drug addict is estimated at 3 million.
43. The Committee recommends that the State party take all necessary measures
to combat the abuse of drugs and alcohol among children and parents by, inter
alia, undertaking intensive education campaigns and setting up adequate rehabilitation
services.
Adolescent health
44. The Committee is concerned that children with psychiatric illness are treated
in the adult’s ward in psychiatric institutions and that ethical issues
pertaining to psychiatry are not sufficiently taken into consideration. The
Committee is further deeply concerned at the very high incidence of suicide
among children and adolescents.
45. The Committee recommends that the State party take all necessary measures
to ensure that children are separated from adults in psychiatric institutions
and to take into consideration more fully international standards regarding
the ethics of psychiatry. In addition, the Committee recommends that the State
party strengthen adolescent health services, in particular counselling services
and suicide prevention programmes.
Harmful traditional practices
46. The Committee notes that the prohibition on the practice of female genital
mutilation is covered under criminal law, but expresses its concern at reports
that female genital mutilation is practised in the State party on girls from
sub-Saharan countries.
47. The Committee recommends that the State party:
(a) Undertake a study on the extent and nature of female genital mutilation
practised in the State party or abroad on girls who live in Germany;
(b) Organize an information and awareness-raising campaign, taking into account
the results of the study, to prevent this practise;
(c) Involve in this work non-governmental organizations that are active in this
field;
(d) Give priority to the elimination of female genital mutilation in its programme
of international cooperation by, inter alia, extending financial and technical
assistance to countries of origin where female genital mutilation is practised
that have active programmes designed to eliminate this practice.
Childcare services and facilities
48. The Committee shares the concerns of the State party regarding the lack
of sufficient childcare facilities, especially in the western part of the country
(see CRC/C/83/Add.7, paragraphs 584, 585 and 630) and of national standards
for these facilities.
49. In line with articles 18 (3) and 25 of the Convention and in light of the
recommendations of the Committee on Economic, Social and Cultural Rights (E/C.12/1/Add.68,
para. 44), the Committee recommends that the State party take measures to establish
more childcare services to meet the needs of working parents, and to set up
national standards to ensure quality childcare is available to all children.
Right to an adequate standard of living
50. The Committee notes the change in policy from financial transfers to an
emphasis on building appropriate infrastructure for poor families. It also welcomes
the first national report on poverty (2001) and notes the increase in child
allowances over the past years as well as the income tax reform which provides
for measures to help families with children, but remains concerned at the prevalence
of poverty, mainly affecting large families, single-parent families, families
of foreign origin and disproportionally families from the eastern part of the
State party, as indicated in the eleventh Youth Report.
51. The Committee, in line with its previous recommendations (para. 31) recommends
that the State party:
(a) Take all necessary measures to the “maximum extent of … available
resources” to accelerate the elimination of child poverty, notably to
eliminate the disparities between the eastern and western parts of the country;
(b) Continue to provide material assistance and support to economically disadvantaged
families, notably single-parent families and families of foreign origin, to
guarantee the right of children to an adequate standard of living;
(c) Evaluate appropriately the changes in social policies.
6. Education, leisure and cultural activities
52. The Committee notes that decentralized education may lead to some disparities
in the implementation of articles 28 and 29 of the Convention. In addition,
the Committee is concerned at the lack of adequate services for the education
of children with learning difficulties.
53. The Committee recommends that the State party:
(a) Take all necessary measures, especially through the Federal Government Länder
Commission for Educational Planning and the Promotion of Research (BLK) and
with the participation of civil society, to ensure that articles 28 and 29 of
the Convention are fully implemented throughout the Länder;
(b) With reference to paragraphs 23 and 24 above, and taking into consideration
the Committee’s general comment No. 1 (2001) on article 29 (1) of the
Convention (aims of education), further develop human rights education;
(c) Further develop services for children with learning difficulties;
(d) Introduce in all schools programmes for civic education.
7. Special protection measures
Refugee children
54. In addition to its concerns related to the declaration made by the State
party on article 22 of the Convention, the Committee remains concerned that:
(a) Refugee children between 16 and 18 years of age do not benefit from the
rights contained in the Youth Welfare Act;
(b) Roma children and other children belonging to ethnic minorities may be forcibly
expelled to countries their families have been fleeing;
(c) Recruitment of children as soldiers is not accepted as a child-specific
persecution in the asylum procedure;
(d) The national requirements and procedures for family reunification for refugee
families, as defined under the Convention relating to the Status of Refugees
of 1951, are complex and too long;
(e) Some children of asylum-seekers in the Land Berlin were denied the right
to a birth certificate because of incomplete documentation provided by the parents.
55. In light of article 7, 22 and other relevant provisions of the Convention,
the Committee recommends that the State party take all necessary measures:
(a) To fully apply the provisions of the Youth Welfare Act to all refugee children
below the age of 18 years;
(b) To review its legislation and policies regarding Roma children and other
children belonging to ethnic minorities seeking asylum in the State party;
(c) To consider the recruitment of children as soldiers as a child specific
persecution to be accepted in asylum procedure;
(d) To ease refugee family reunification requirements and procedures, in particular
for those covered by the refugee Convention of 1951;
(e) To ensure that birth certificates are issued for all children of refugees
and asylum seekers born in the territory of the State party.
Sexual exploitation and trafficking
56. The Committee welcomes the adoption of the Plan of Action of the Federal
Government for the Protection of Children and Young People from Sexual Violence
and Exploitation (January 2003), but remains concerned at the various ages retained
in the Criminal Code depending on the offence committed by an adult against
a child.
57. In light of article 34 and other related articles of the Convention, the
Committee recommends that the State party:
(a) Extend the protection against sexual exploitation and trafficking provided
for in all relevant legislation to all boys and girls below the age of 18 years;
(b) Pursue its efforts to combat sexual exploitation of and trafficking in children
by effectively implementing its Plan of Action, in accordance with the 1996
Declaration and Agenda for Action and the 2001 Global Commitment adopted at
the World Congresses against Commercial Sexual Exploitation of Children.
Street children
58. While noting the efforts undertaken in this regard, the Committee expresses
its concerns at the increasing number of street children in the State party,
as well as the high percentage of foreign children among them.
59. The Committee recommends that the State party:
(a) Pursue its efforts to prevent and reduce this phenomenon by addressing its
root causes with a special emphasis on the protection of foreign children;
(b) Ensure that street children are provided with adequate food, clothing, housing,
health care and educational opportunities, including vocational and life skills
training, in order to support their full development;
(c) Ensure that these children are provided with recovery and reintegration
services for physical, sexual and substance abuse; and services for reconciliation
with their families.
Administration of juvenile justice
60. In addition to the reservations to article 40 (2) (b) (ii) and (v), the
Committee is concerned at the increasing number of children placed in detention,
disproportionally affecting children of foreign origin, and that children in
detention or custody are placed with persons up to the age of 25 years.
61. The Committee recommends that the State party:
(a) Take all appropriate measures to implement a juvenile justice system in
conformity with the Convention, in particular articles 37, 40 and 39, and with
other United Nations standards in this field, such as the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules),
the United Nations Guidelines for the Prevention of Juvenile Delinquency (the
Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles
Deprived of their Liberty, and the Vienna Guidelines for Action on Children
in the Criminal Justice System;
(b) Ensure that deprivation of liberty is only used as a measure of last resort,
for the shortest possible time, that guarantees of due process are fully respected
and that persons under 18 are not detained with adults;
(c) Develop alternatives to juvenile justice processing as referred to in the
above mentioned international standards.
8. Optional Protocols to the Convention
62. The Committee acknowledges the State party’s support for the “Straight
18” position with regard to the Optional Protocol to the Convention on
the involvement of children in armed conflict and the declaration it made on
article 38 of the Convention. In this respect, the Committee notes that the
process of ratification has been initiated in the State party and encourages
it to ratify and implement the Optional Protocols to the Convention on the sale
of children, child prostitution and child pornography, and on the involvement
of children in armed conflict.
9. Dissemination of documents
63. In light of article 44, paragraph 6, of the Convention, the Committee recommends
that the second periodic report and written replies submitted by the State party
be made widely available to the public at large and that the publication of
the report be considered, along with the relevant summary records and concluding
observations adopted by the Committee. Such a document should be widely distributed
in order to generate debate and awareness of the Convention, its implementation
and monitoring within the Government, the Parliament and the general public,
including concerned non governmental organizations. The Committee recommends
that the State party request international cooperation in this regard.
10. Periodicity of submission of reports
64. Finally, in light of the recommendations on reporting periodicity adopted
by the Committee and described in the reports on its twenty-ninth session (CRC/C/114)
and thirty second session (CRC/C/124), the Committee underlines the importance
of a reporting practice that is in full compliance with the provisions of article
44 of the Convention. An important aspect of States parties’ responsibilities
to children under the Convention is ensuring that the Committee on the Rights
of the Child has regular opportunities to examine the progress made in the implementation
of the Convention. The Committee recommends that the State party submit its
next periodic report on 4 April 2009. This report should combine the third and
fourth periodic reports. Such a report should not exceed 120 pages (see CRC/C/118).
The Committee expects the State party to report thereafter every five years,
as foreseen by the Convention.