1. Following the promulgation on 21 February 1992 of the law ratifying the Convention on the Rights of the Child of 20 November 1989 for the Federal Republic of Germany (Federal Law Gazette (BGB1) See annex I. List of abbreviations., Part II, p. 121), the Federal Government deposited the instrument of ratification with the Secretary-General of the United Nations on 6 March 1992. The Convention thereupon entered into force for the Federal Republic of Germany on 5 April 1992 (see official notification of 10 July 1992 - Federal Law Gazette, Part II, p. 990).
2. Prior to the introduction of the draft of a law to ratify the Convention in the German Bundestag, the Federal Government had, in keeping with its standard practice and as required in order to avert potential breaches of obligations under international law mandated by an international treaty, examined whether it was necessary to amend national law prior to ratification of the Convention. The Federal Government came to the conclusion that amendment of national legal provisions was not required solely on the basis of the intended ratification of the Convention.
3. It detailed its justifications for this conclusion in the Memorandum to the Convention addressing the individual articles of the Convention. The Federal Government also underscored its view that German law was in conformity with the Convention by submitting an internationally valid declaration at the time it deposited the instrument of ratification. This declaration stated, inter alia:
4. In the same declaration the Federal Government stated that it attaches great importance to the Convention. It has always stressed that the Convention provides impetus for domestic reforms in the areas of legislation and other measures. This is all the more true in light of the fact that article 3, paragraph 2, of the Convention imposes on the States parties the general obligation to ensure the child such protection and care as are necessary for his or her well-being and, to this end, to "take all appropriate legislative and administrative measures".
5. In so far as such measures planned for the current legislative period of the German Bundestag (1991 to 1994) have been undertaken or implemented, these are presented in Part Two of this report. Since legislation and other measures - especially in the area of the law of parent and child -contemplated or initiated in response to the Convention on the Rights of the Child have for the most part not yet been brought to conclusion, information pertaining to these will be furnished in the next report to be submitted in accordance with article 44, paragraph 1 (b), of the Convention. Within this framework, information will also be furnished concerning progress made since ratification of the Convention, implementation priorities, and specific individual objectives, taking special account of the areas of non-discrimination (art. 2 of the Convention), well-being of the child (art. 3), right to life, survival and development (art. 6) and respect for the views of the child (art. 12).
6. In keeping with more recent practice, the information to be furnished to the United Nations in the reports of the States parties within the framework of a general part pursuant to the "Consolidated guidelines for the initial part of the reports of States parties" will be compiled in a core report; this core report will be submitted separately.
7. In fulfilment of article 42 of the Convention, the Federal Government has undertaken to make the United Nations Convention on the Rights of the Child known to adults by issuing a brochure that contains the text of the Convention and accompanying explanatory material and is available to all interested citizens and institutions free of charge. In addition, a brochure adapted to a child's level of comprehension has been prepared both at the federal level and at the level of various Länder (federal states), the first of which was North Rhine-Westphalia. The present report, which has been compiled with the assistance of the Länder and organizations active in the area of policy on children, will likewise be made available to the public at large in the form of a brochure.
A. Terms and age limits
9. In the sphere of German criminal law, minors under the age of 14 are considered children; persons between 14 and 18 years of age are termed juveniles (sect. 176, subsect. 1, of the Criminal Code (StGB); sect. 1, subsect. 2, of the Youth Courts Act (JGG)).
10. The unborn child enjoys protection in the Federal Republic of Germany pursuant to a number of different legal provisions. To be sure, a person does not, as a matter of principle, have legal capacity until his or her birth (sect. 1 of the Civil Code). Pursuant to section 1923, subsection 2, of the Civil Code, however, a child who has not yet been born must be considered to be a potential heir if he or she is born alive and had already been conceived at the time of the death of the person to whose estate he or she is to succeed; within the framework of section 823, subsection 1, of the Civil Code he or she is protected prior to birth against injury inflicted by tortious acts. Pursuant to section 844, subsection 2, of the Civil Code he or she has the right to claim damages in the event that the person obligated to provide his or her maintenance is killed and can furthermore be the beneficiary of contracts for the benefit of third parties or with protective effect for the benefit of third parties. A curator may be appointed for the child even prior to birth to exercise his or her future rights (sect. 1912 of the Civil Code). The Federal Constitutional Court has already emphasized a number of times -most recently in its decision of 28 May 1993 - that the Basic Law (GG), the Constitution of the Federal Republic of Germany, obligates the State to protect human life, including unborn life, that this duty to protect has its foundation in article 1, paragraph (1), of the Basic Law, and that the subject and extent of this duty is specified in greater detail in article 2, paragraph (2), of the Basic Law. In the Federal Republic of Germany, the necessity of "appropriate legal protection before ... birth" (para. 9 of the Preamble to the Convention) is thus acknowledged.
12. The relationship of the "rights of the child" as defined in the Convention to the rights of parents mentioned in its article 5, by the way, also corresponds to the relationship between the rights of the child and the rights of parents under German national law. In article 5 it is simply taken for granted that children and juveniles are subject to restrictions in the exercise of their rights, restrictions arising from the right of care and custody enjoyed by their parents or other persons legally responsible for them. The rights of persons having parental custody, however, are not comprehensively defined therein. Although the latter circumstance is obviously linked to the fact that a convention on the rights of the child is not the suitable framework for defining and guaranteeing the rights of parents, the Federal Government, for purposes of clarification, submitted a declaration to this effect at the time the instrument of ratification was deposited.
13. In conclusion, the rights and obligations of children and juveniles by age group are summarized in the following, whereby - in conformity with the Convention - it must be noted that the exercise of rights in this context is generally subject to the consent of the parents or other persons having parental powers.
(i) Begins the capacity to be a subject of legal rights and duties;
(ii) Begins the capacity to be a party to legal proceedings;
(iii) Begins the curatorship or guardianship of the Youth Welfare Office under certain conditions in the case of children born out of wedlock;
(b) At the age of three a child may be allowed to take part in musical performances and similar events and in the rehearsals connected therewith for up to two hours per day;
(c) At the age of five a change in the family name requires the consent of the child, whereby prior to the child's fourteenth birthday such consent is given by his or her legal representative;
(d) At the age of six:
(i) Children are required to attend school (the cut-off date is always the first day of June). The obligation to attend full-time schools continues for 9 or, respectively, 10 years (education acts or, respectively, compulsory education acts of the Länder);
(ii) A child may be allowed to take part in theatre performances for up to four hours per day and in musical performances or similar events for up to three hours per day;
(iii) A child may be allowed to attend public film showings, provided the film is released for this age group;
(e) At the age of seven:
(i) A child has limited capacity to enter into legal transactions;
(ii) A child has limited (legal) responsibility for tortious acts;
(iii) A child has limited capacity to sue and be sued;
(iv) A child has certain rights of participation under family law; these, however, are exercised by his or her legal representative;
(f) At the age of 10 a child must be heard prior to a change in religious denomination; the same applies to the withdrawal of the child from religious instruction in the event that the parents themselves are in disagreement;
(g) At the age of 12:
(i) A child can no longer be forced to take religious instruction in another denomination against his or her will;
(ii) A child may be allowed to attend public film showings, provided the film is released for this age group;
(h) At the age of 13 a child may work in agricultural operations for up to three hours per day; he or she may assist at sporting events and deliver newspapers for up to two hours per day;
(i) At the age of 14:
(i) Begins the "juvenile" phase within the meaning of numerous laws; only under family law does the term "child" continue to apply;
(ii) Begins limited criminal responsibility;
(iii) A juvenile has the right to freely choose his or her religious denomination (exception: in the Land Bavaria, a juvenile may not withdraw from religious instruction in school until he or she attains the age of 18);
(iv) A child has certain rights of participation under family law (objection of a ward to the appointment of a guardian, for instance) that are exercised by the child personally and not by his or her legal representative. Other rights of participation (consent to adoption, consent to the acknowledgment of paternity by his or her father, consent to a change in name, for instance) can only be exercised by the child personally; consent of his or her legal representative hereto, however, is required;
(j) At the age of 15:
(i) Ends the period of compulsory schooling in most of the Länder (education acts or, respectively, compulsory education acts of the Länder);
(ii) Employment of a juvenile is generally permitted from the standpoint of statutory protection of labour; there are still exceptions, however;
(k) At the age of 16:
(i) A juvenile can, upon application, be granted permission to marry;
(ii) A juvenile may frequent eating and drinking establishments as well as public dances until 12.00 midnight unaccompanied by a person having parental powers;
(iii) Alcoholic beverages except for spirits may be sold to a juvenile;
(iv) A juvenile may be allowed to attend public film showings, provided the film is released for this age group;
(v) A juvenile is obligated to possess an identity card;
(vi) A juvenile is competent to execute a will before a notary;
(vii) A juvenile is competent to swear an oath before a court.
17. In the Federal Republic of Germany, the subsidiarity of State action to ensure the well-being of the child that is expressed especially in article 3, paragraph 2, arises out of the constitutional guarantee of the rights of parents (art. 6, para. (2), sentence 1, of the Basic Law). It not only follows herefrom that State measures of protection and care designed to serve the best interests of the child must take due consideration of the rights and duties of his or her parents, as article 3, paragraph 2, of the Convention stipulates. What is more, it is expressly acknowledged under national law that the care and upbringing of children is a natural right of parents and a duty primarily incumbent on them, whereby the community is responsible for ensuring that they perform this duty. This national guarantee of protection fulfils the intent and purpose of article 3, paragraph 2, of the Convention. In the Federal Republic of Germany, statutory guarantees for the care to be ensured pursuant to article 3, paragraph 2, of the Convention are embodied in section 1 of the Child and Youth Services Act (KJHG) and in provisions governing monetary benefits accruing to children (child benefit, child-raising benefit and advance maintenance payments). These fulfil the demand of article 3, paragraph 2, of the Convention for measures necessary to ensure the well-being of children and to create positive living conditions for them. Programmatic initiatives for an across-the-board policy on children build on these existing instruments, as the Child Commissioner for the Land North Rhine-Westphalia has pointed out. These endeavours will be pursued both in the area of legislation and in the area of social welfare in accordance with current needs and available financial resources.
18. The national legal system of the Federal Republic of Germany, which is bound by the rule of law as defined in the Basic Law, also satisfies the demands of article 3, paragraph 3. The national standards of the Federal Republic of Germany established to ensure the care and protection of the child must be actually enforced by the institutions, services and facilities responsible in this area; the same also holds true in respect of the number and suitability of their staff and the existence of "competent" supervision.
21. Pursuant to article 12, paragraph 2, of the Convention, the question of whether the child is to be heard directly or through a representative in judicial or administrative proceedings affecting the child is to be decided according to the provisions of national law. The law of the Federal Republic of Germany - in section 50b of the Non-Contentious Legal Proceedings Act (FGG), for instance - provides for the child to be personally heard. If the child is a party or a participant in judicial or administrative proceedings, he or she may express his or her views through a legal representative (see, for example, sect. 51 of the Code of Civil Procedure (ZPO)). Pursuant to section 8, subsection 1, of Book Eight of the Social Code (SGB) - Child and Youth Services (Federal Law Gazette 1990, Part I, p. 1163) as contained in the notification of 3 May 1993 (Federal Law Gazette, Part I, p. 637), children and juveniles are to be involved - in accordance with their maturity - in all decisions of the statutory youth services concerning them. They are to be suitably informed of their rights in administrative proceedings and in proceedings before the guardianship court.
A. Name and nationality (art. 7)
23. The additional right of the chid provided for in article 7, paragraph 1, namely the right "from birth" to a name, is ensured in the Federal Republic of Germany as a general rule by the fact that the first names and family name of the child must be stated at the time his or her birth is registered (sect. 21, No. 4, of the Civil Status Act). If the person registering the birth is unable to state the first names of the child, these must be registered within a period of one month (sect. 22 of the Civil Status Act). Pursuant to section 21 of the Civil Status Act, the guardianship court shall intervene if the parents of a child born in wedlock who do not use a common family name fail to state a family name for the child within a period of one month. If necessary - in the case of foundlings and children whose civil status cannot be determined - the first names and family name of the child shall be stipulated by authorities ex officio (sects. 25 and 26 of the Civil Status Act). The family name of the child otherwise follows from the provisions of the Civil Code (sects. 1616 to 1618, 1720, 1737, 1740f, 1757 and 1765).
24. On 1 April 1994 a new law on family names entered into force. Pursuant to this new law, children born in wedlock receive their parents' married name (sect. 1616, subsect. 1, of the Civil Code). If the parents do not use a married name they may designate either the father's surname or the mother's surname as the child's surname (sect. 1616, subsect. 2, of the Civil Code). If the parents fail to designate a surname for the child within one month of his or her birth, the guardianship court assigns the right to designate the surname to one of the parents. The guardianship court may set a time-limit for the exercise of this right of designation. If the right of designation is not exercised by expiry of the time-limit, the child receives the name of that parent to whom the right of designation was assigned (sect. 1616, subsect. 3, of the Civil Code). Children born out of wedlock receive the family name used by the mother at the time of the child's birth (sect. 1617, subsect. 1, of the Civil Code).
25. Article 7, paragraph 1, of the Convention furthermore gives the child the right to acquire a nationality. In respect of this provision, the Federal Republic of Germany - like the other States parties to the Convention - can only adopt regulations governing the acquisition of its own nationality. German nationality is acquired by a child at birth if at least one parent possesses German citizenship at the time the child is born. If at the time a child is born out of wedlock only the father is a German national, assertion of a claim for acquisition of German nationality requires a determination of paternity effective under German law; the proceedings for determination of paternity must be instituted before the child attains the age of 23. A child of non-German parents who is born in the Federal Republic of Germany has no nationality unless he or she acquires a foreign nationality at birth pursuant to foreign statutory provisions. The same applies if such a child is born on board a ship or an aircraft that is entitled to fly the federal flag or, respectively, to bear the nationality mark of the Federal Republic of Germany. To ensure implementation of the child's entitlement to acquisition of a nationality in such cases as well, article 2 of the Act on the Reduction of Statelessness of 29 June 1977 (Federal Law Gazette, Part I, p. 1101) stipulates that the child is to be naturalized upon request. However, this only applies under the condition that the child has legally had his or her permanent place of residence in the Federal Republic of Germany for the preceding five years and that he or she files the application of naturalization prior to attaining the age of 21. In addition, the entitlement to naturalization is excluded if the applicant has been sentenced by a court to a term of imprisonment or juvenile sentence of five years or more. These restrictions are provided for in the Convention on the Reduction of Statelessness of 30 August 1961, which was ratified by the Federal Republic of Germany (Federal Law Gazette 1977, Part II, p. 597), and are therefore "in accordance" with article 7, paragraph 2, of the present Convention.
26. Finally, article 7, paragraph 1, gives the child the right "to know and be cared for by his or her parents" - in so far as this is possible. If the child grows up with his or her parents and thus within his or her family, as is desirable (see paras. 5 and 6 of the Preamble to the Convention), implementation of this right of the child is ensured as a matter of course and there is no need for any special statutory or administrative measures under national law. Care of the child within the family is constitutionally safeguarded by the guarantee of the rights of parents (art. 6, para. (2), sentence 1, of the Basic Law). Implementation of the child's right to be cared for by his or her own parents can be thwarted by actual circumstances (because one or both parents have died, for example). It can also be impossible for legal reasons, for instance if the child in his or her best interests cannot be allowed to remain in his or her family environment (art. 20, para. 1, of the Convention) and if the child requires "alternative care" (art. 20, para. 2). In such cases, the provisions of national law in the Federal Republic of Germany - in conformity with the Convention (art. 20, para. 3) - afford the child the options of foster placement, adoption or placement in a suitable institution for the care of children. In such cases the child's right to be cared for by his or her own parents stipulated in article 7, paragraph 1, of the Convention is forfeited ipso jure. Pursuant to section 61 of the Civil Status Act, by the way, once a child has attained the age of 16 he or she can personally inspect the civil status registers and thus obtain knowledge of the identity of his or her parents.
27. In conformity with article 7, paragraph 2, of the Convention, the legal system of the Federal Republic of Germany largely guarantees the rights stipulated in article 7, paragraph 1 - irrespective of the fact that article 7 merely lays down obligations of the States parties to ensure conformity of their national laws with the Convention. Only loophole-free acquisition of German nationality is not unconditionally guaranteed under national law, since the German law of nationality is not based on the jus sol principle, or under relevant international instruments within the meaning of article 7, paragraph 2.
31. Numerous programmes for children and young people are produced by the mass media in the Federal Republic of Germany, and numerous books and magazines suitable for children and young people are available. The child has "access" to this material here in accordance with the spirit of article 17. A right of the child to television reception or to the information contained in printed matter, by contrast, follows from article 13, paragraph 1, of the Convention, whereby it can concurrently be inferred from article 5 that children can and may only exercise this right to the extent that their parents, in performance of their child-rearing responsibilities, permit them to do so. The demand for development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being (art. 17 (e)) is accorded due consideration in the Federal Republic of Germany, especially through the prohibition under criminal law of certain representations of violence (sect. 131 of the Criminal Court) and pornographic materials (sect. 184 of the Criminal Court), through the Act on the Dissemination of Publications Harmful to Young Persons, through inspection of films and videos, and through area-specific prohibitive provisions and provisions for the protection of young persons contained in the Inter-state Agreement on the Restructuring of Broadcasting. Section 14 of Book Eight of the Social Code - Child and Youth Services - obligates the statutory youth services to offer young people and persons having parental powers the opportunity to participate in programmes of educational measures for the protection of children and young persons.
33. In the Federal Republic of Germany, the problem was resolved under national law in the following manner by the Act on the Religious Education of Children (RelKErzG) of 15 July 1921 (Reich Law Gazette (RGBl), p. 939): Upon attaining the age of 12, a child can no longer be forced against his or her will to take religious instruction in a denomination different from his or her previous denomination; upon attaining the age of 14, the child may personally decide which religious or ideological creed he or she wishes to embrace. Under German law, by the way, freedom of faith and of conscience is safeguarded as a basic right by article 4 of the Basic Law. This complies with the requirements of article 14 of the Convention. The Act on the Religious Education of Children will therefore continue to be applicable without restriction in the future as well.
36. The prohibition stipulated in article 37 (a), sentence 1, of the United Nations Convention on the Rights of the Child, namely that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment, corresponds to the guarantee laid down as a basic human right in article 7 of the International Covenant on Civil and Political Rights. It likewise corresponds to the guarantees laid down in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 and in the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 26 November 1987. Article 37 (a), sentence 2, of the present Convention repeats the prohibition of imposition of capital punishment for offences committed by persons under 18 years of age; this corresponds to the guarantee laid down in article 6, paragraph 5, of the Covenant. In its guarantees, the present Convention goes beyond the Covenant in so far as in article 37 (a), sentence 2, provision is also made for prohibiting the imposition of life imprisonment without the possibility of earlier release for offences committed by persons under 18 years of age. The Federal Republic of Germany fulfils these obligations through its system for execution of sentences and execution of sentences passed by youth courts, which is structured according to the rule of law, as well as through the provisions of section 18, subsection 1, of the Youth Courts Act, which limits prison sentences for juvenile offenders to a maximum of 10 years. The Basic Law abolished capital punishment. In addition, Germany has ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights as well as Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty.
A. Parental guidance (art. 5)
39. The obligations of the States parties stipulated in article 18, paragraph 2, namely to "ensure the development of institutions, facilities and services for the care of children", are fulfilled in the Federal Republic of Germany through Book Eight of the Social Code - Child and Youth Services. This law forms the basis in the Federal Republic of Germany for the existence of youth welfare offices and numerous institutions, facilities and services concerned with the affairs of children and young persons which are maintained both by voluntary organizations and by the State. The law on child and youth services provides for a broad spectrum of general furtherance measures and benefits as well as individual forms of socio-educational assistance.
41. The cases separately stipulated in article 9, paragraph 1, sentence 2 of the Convention in which the principle embodied in article 9, paragraph 1, sentence 1, is to be applied are encompassed under German law by sections 1671 and 1672 of the Civil Code. According to section 1671, at the time the parents are granted a divorce the family court shall decide which parent is entitled to parental custody of the common child. Following the declaration of the nullity of section 1671, subsection 4, sentence 1, of the Civil Code by the Federal Constitutional Court (Federal Law Gazette 1982, Part I, p. 1596), custody can, under certain circumstances, also be awarded to both parents, whereby the court should in any case make the decision that best serves the interests of the child (sect. 1671, subsect. 2, of the Civil Code). If the parents are living separately and not just temporarily, without being divorced, the court may, upon the application of one of the spouses, likewise determine that only one spouse is entitled to parental custody of the child (sect. 1672 in conjunction with sect. 1671 of the Civil Code). The court rules ex officio if the well-being of the child would otherwise be endangered and if the parents are not willing or are not in a position to avert such danger. In both cases, the decision means that the parent entitled to sole parental custody of the common child also has the right to determine the minor's place of residence (sect. 1631, subsect. 1, of the Civil Code).
42. The right to be heard which is stipulated in detail in article 9, paragraph 2, of the present Convention is already guaranteed in the same manner in article 6, paragraph 1, of the European Convention for the Protection of Human Rights and Fundamental Freedoms; under German law, it is guaranteed as a right equivalent to a basic right by article 103, paragraph 1, of the Basic Law. As regards proceedings concerning the care and custody of a child, moreover, this right is spelled out by the Non-Contentious Legal Proceedings Act in a manner fulfilling the requirements of the Convention: In such proceedings the court must give the parents the opportunity to be heard and, as a rule, in person; in the cases provided for in sections 1666 and 1666a of the Civil Code, moreover, the parents must always be heard in person in order to clarify with them how the danger to the well-being of the child can be averted (sect. 50a, subsect. 1, of the Non-Contentious Legal Proceedings Act). Children who have not yet attained the age of 14 are to be heard in person "if the affections, ties or wishes of the child are of significance for the decision or if it appears advisable, in the interests of determining the facts of the case, for the court to obtain a first-hand impression of the child"; a child who has attained the age of 14 and is not legally incapacitated must always be heard in such proceedings (sect. 50b, subsect. 1 and 2, of the Non-Contentious Legal Proceedings Act).
43. The obligation imposed on the States parties by article 9, paragraph 3, of the Convention, namely to respect the right of the child to maintain personal relations and direct contact with both parents on a regular basis, is fulfilled under German law by sections 1634 and 1711 of the Civil Code. In the case of children born in wedlock, section 1634 of the Civil Code stipulates that the parent who is not entitled to care and custody (for instance because he or she has been denied care and custody pursuant to sects. 1666 and 1666a, 1671 or 1672 of the Civil Code) shall retain "the authority to have personal access to the child", whereby the family court can define in greater detail the scope of this authority and exercise thereof, including exercise vis á vis third parties.
44. In conformity with the Convention, German national law provides for the possibility of an injunction to prevent access in an exceptional case if it can be positively established in that individual case that such access is contrary to the child's best interests. In the case of children born out of wedlock, the person entitled to the care and custody of the child - the mother, as a general rule - can determine the extent to which the child is to have contact with his or her father (sect. 1711, subsect. 1, sentence 1, of the Civil Code). If personal access to the father serves the well-being of the child, the guardianship court can rule that the father is entitled to the authority to have personal access to the child (sect. 1711, subsect. 2, sentence 1, of the Civil Code). Irrespective of any review of the law of parent and child initiated by the Federal Government, the provisions of national law governing the position of children born out of wedlock under family and inheritance law will remain unaffected by the provisions of the Convention. The Federal Government submitted a clarifying declaration in respect of this issue at the time the instrument of ratification was deposited.
45. The legal situation in Germany ensures that cases of the kind addressed in article 9, paragraph 4, of the Convention cannot arise. Pursuant to article 104, paragraph (4), of the Basic Law, a relative or someone enjoying the confidence of the detainee shall be notified of any judicial ruling imposing or ordering the continuation of detention. Section 114b, subsection 1, of the Code of Criminal Procedure (StPO) accordingly stipulates that a relative or someone enjoying the confidence of the person arrested shall be notified without delay of the arrest and of any further decision concerning the continuation of detention and, namely, by order of the competent judge. Furthermore, the individual arrested shall personally be given the opportunity to notify a relative or a person enjoying his or her confidence, provided this does not jeopardize the aim of the investigation (sect. 114b, subsect. 2, of the Code of Criminal Procedure). These provisions ensure that the information prescribed in article 9, paragraph 4, of the Convention is furnished, in so far as implementation of this provision of the Convention ever proves to be of practical consequence in the Federal Republic of Germany. Should there ever prove to be a need in an isolated case for provision of information of the kind addressed in paragraph 4, it can be assumed that the German authorities concerned would furnish such information without being formally obligated to do so by national statutory provisions.
47. The new law on aliens regulates family reunification of aliens on a statutory and nationally uniform basis for the very first time. According to the procedure stipulated therein, the parent living in Germany must personally possess a residence permit, be able to support the arriving family members from his or her personal earnings, personal assets or other personal resources, and have access to living space sufficient to accommodate his or her family. The right of residence of an alien who enters the country to join a family member or who is born within the territory of the Federal Republic of Germany following such family reunification is initially contingent on the right of residence of the alien already living here. Under certain conditions, the family member who subsequently enters the country or is subsequently born here may receive a personal right of residence (sects. 17, 20 and 21 of the Aliens Act). In respect of minors, section 16 of the Aliens Act provides for a "right to return".
48. In addition, section 85 of the Aliens Act contains the first regulations governing an entitlement to naturalization. If a minor has attended a school within the federal territory for six years, and if he or she has attended a general education school for at least four of those years, he or she will, under certain circumstances, later acquire an entitlement to naturalization.
49. The requirements of article 10, paragraph 1, sentence 2, of the Convention, pursuant to which the States parties must ensure that submission of an application for the purpose of family reunification does not in itself entail any adverse consequences for the applicant, are fulfilled by German national law. Aside from the fact that such an application can ultimately prove to be unsuccessful, no adverse consequences of any kind are entailed in the submission of the application as such under national law.
50. The principle laid down in article 10, paragraph 2, of the Convention, namely that children whose parents reside in different States shall have the right to maintain personal relations and direct contacts with both parents, can - in contrast to family reunification (para. 1) - be upheld if children and (or) parents regularly visit one another in the respective other country as tourists. In these cases as well, it can be assumed for national law that decisions concerning the issue of residence permits for such visits will be governed by national law in compliance with the aforementioned article 12 of the International Covenant on Civil and Political Rights. At the time the report on the second reading of the draft convention was adopted by the Working Group on 23 February 1989, the Federal Republic of Germany requested that the following declaration in this regard be included in the minutes, and it confirmed this declaration when the instrument of ratification was deposited:
54. In compliance with article 21 (a), adoption of a child is only approved by the competent authorities - who determine in accordance with legal procedure whether the adoption is permissible - after especially those persons concerned under national law have also given their consent to the adoption "on the basis of such counselling as may be necessary". These requirements are specifically met by section 1752 of the Civil Code, pursuant to which the adoption is to be granted by the guardianship court upon application of the person seeking to adopt the child. The guardianship court must first determine whether the preconditions for adoption exist. This also includes determining whether the requisite declarations of consent to the adoption have been given; in addition to the child (sect. 1746 of the Civil Code), the parents of the child and the spouse of the person seeking to adopt the child must also give their consent (sect. 1747 to 1749 of the Civil Code). The declaration of consent must be drawn up in the form of a notarial deed (sect. 1750, subsect. 1, sentence 2, of the Civil Code). It is thus ensured that the persons giving their consent are informed of the legal implications of their declaration, as is stipulated in section 17, subsection 1, of the Act on the Authentication of Documents (BeurkG) of 28 August 1969 (Federal Law Gazette, Part I, p. 1513). The Federal Republic of Germany emphatically advocates the establishment of reliable legal standards for inter-country adoption in order to prevent abuse.
55. The requirement laid down in article 21 (c) of the Convention, namely that inter-country adoption be subject to safeguards equivalent to those existing in the case of national adoption, is fulfilled under the national law of the Federal Republic of Germany: the procedure particularly conducive to the protection of the child to be adopted, which provides for examination of the preconditions for adoption by the guardianship court ex officio, is uniformly applicable to inter-country adoption in the Federal Republic of Germany as well (see especially art. 23 of the Introductory Act for the Youth Courts Act including its sentence 2 in conjunction with section 1746, subsection 1, sentence 4, of the Civil Code and the report of the Legal Affairs Committee of the German Bundestag in Bundestag printed paper 10/5632, p. 44). In the interest of combating traffic in children and similar forms of abuse, article 21 (d) stipulates that States parties shall ensure that placement does not result in improper financial gain for the parties involved. This requirement is met under national law especially by the prohibition of traffic in children laid down in section 14a of the Act on Placement for Adoption as contained in the notification of 27 November 1989 (Federal Law Gazette, Part I, p. 2016).
56. To protect the children involved in inter-country adoption, the Federal Republic of Germany furthermore advocates the conclusion of appropriate international agreements in order to establish reliable legal standards for such adoptions and to prevent abuse. The Federal Government participated in the preparation of the convention with this objective: on 29 May 1993, the Seventeenth Meeting of the Hague Conference on Private International Law presented the Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption.
58. Two international conventions ratified by the Federal Republic of Germany especially serve to promote the international cooperation addressed in article 11, paragraph 2, of the Convention to combat abduction of children abroad. These are the Hague Convention on Civil Aspects of International Child Abduction of 25 October 1980 and the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children of 20 May 1980. The Hague Convention entered into force on 1 December 1990 and the European Convention on 1 February 1991. An implementing law - article 1 of the law of 5 April 1990 (Federal Law Gazette, Part I, p. 701) - was enacted for both conventions.
59. The measures stipulated in article 19 of the Convention to protect children from violence, abuse or neglect while they are in the care of parents or any other persons having custody are ensured under the national law of the Federal Republic of Germany through a multitude of legal provisions.
60. The objectives stated in paragraph 1 of article 19 are especially served by the numerous and varied forms of assistance provided within the framework of Book Eight of the Social Code - Child and Youth Services. In addition, protective measures are above all undertaken in the Federal Republic of Germany on the basis of the Act for the Protection of Young Persons in Public and the Act on the Dissemination of Publications Harmful to Young Persons. Children and juveniles furthermore enjoy special protection under criminal law from the dangers threatening them in the family. Particularly worthy of mention in this context are the following pertinent provisions of the Criminal Code: section 223b (Abuse of Charges), section 170d (Violation of the Duty of Care and Custody), section 174 (Sexual Abuse of Charges), section 176 (Sexual Abuse of Children), section 177 (Rape), section 178 (Sexual Coercion), section 179 (Sexual Abuse of Persons Unable to Resist) and section 180b, subsection 2, No. 2 (Traffic in Human Beings with Persons under the Age of 21). Under civil law, section 1631, subsection 2, of the Civil Code stipulates that parents and other persons having the right of care and custody of children are prohibited from utilizing degrading disciplinary measures. According to a draft bill which is currently the subject of parliamentary debate, this provision is to be worded more precisely in order to make a clearer distinction between permissible and prohibited measures - and especially to establish the impermissibility of physical and emotional abuse.
61. The protective measures mentioned in article 19, paragraph 2, of the Convention, which are to serve to ensure the protection from violence, abuse and neglect stipulated in paragraph 1, are provided for under national law above all by Book Eight of the Social Code - Child and Youth Services. Book Eight contains a multitude of general beneficial services and individual socio-educational grants; the purpose of these is to furnish guidance and support for parents and other persons having parental powers in the exercise of their child-rearing responsibilities, as well as to protect children and juveniles from threats to their well-being. Mobile forms of socio-educational assistance (socio-educational family help, for instance) are a key area of activity. Socio-educational family help is designed to provide intensive care and accompaniment to help families fulfil their educational tasks, cope with everyday problems, solve conflicts and crises, and use the services of authorities and institutions, and thus generally helps them to help themselves (sect. 31 of Book Eight of the Social Code). In cases involving acute conflicts, children and juveniles may also receive counsel without the knowledge of the person who has the right of care and custody (sect. 8, subsect. 3, of Book Eight of the Social Code), and the Youth Welfare Office is obliged to provide shelter and protection for a child or juvenile if the situation so requires (sect. 42, subsects. 2 and 3, of Book Eight of the Social Code). If restriction or revocation of the right of care and custody is necessary, the matter is to be brought before the guardianship court, which is charged with taking the necessary measures pursuant to section 1666 of the Civil Code.
62. To the extent article 39 of the Convention, in support of the foregoing, calls for appropriate measures to promote physical and psychological recovery and social reintegration, such demand is met under national law especially by section 5 of Book One of the Social Code if in a specific instance the facts of the case fulfil the requirements for application of the law of social compensation stipulated therein (especially the Crime Victims Compensation Act (OEG) and the Federal Communicable Diseases Act could conceivably apply) and if injury to health has consequently resulted. Reference should also be made in this context to the forms of socio-educational assistance stipulated in Book Eight of the Social Code - Child and Youth Services.
A. Survival and development (art. 6, para. 2)
"... a right to such assistance as is necessary
1. to avert, eliminate or ameliorate or to prevent aggravation of his or her disability, or to mitigate the consequences of such disability,
2. ensure him or her a place in society commensurate with his or her inclinations and capabilities, especially in working life."
66. Article 23 of the Convention, which in keeping with its specific area of application guarantees the corresponding rights of children, does not prohibit States from similarly extending these rights to adults as well. Incidentally, pursuant to section 1 of the Social Code - General Part, the social rights laid down in the Social Code are intended to contribute to "creating equal preconditions for the free development of the individual's personality, especially for young people". Under national law, the right to assistance for the disabled is a judicially enforceable social right; its substance and the preconditions for its application are defined by special statutory provisions. These provisions ensure that the Federal Republic of Germany fulfils its obligations under article 23 of the present Convention in every respect. In the Federal Republic of Germany, measures for assisting the disabled are accorded particular public attention. This is also evident from the fact that since 1982, the Federal Government has presented a report on the situation of the disabled and developments in the area of rehabilitation to the German Bundestag once in the course of each legislative period.
68. The social human right to which children are entitled pursuant to art. 26 of the Convention, namely the right to have access to social insurance, has already been laid down in article 9 of the International Covenant on Economic, Social and Cultural Rights and is thus recognized by the Federal Republic of Germany as a State party to the Covenant. Under German national law, this right is laid down within the framework of the Social Code as a social right to which every person is entitled (sect. 4 of the Social Code - General Part). Paragraph 1 of the Convention confirms that the right "to benefit from social security, including social insurance" applies to children as well. Whether and to what extent the States parties grant benefits from social insurance or other "social security benefits" is not spelled out in paragraph 1 and is thus left to the discretion of the States parties. In the Federal Republic of Germany, children are covered under the social security system, and especially under the system of social insurance, in a wide variety of ways, even if - due in particular to lack of an employment relationship - they do not enjoy insurance protection in their own right. In such cases, as a rule, they are entitled to benefits deriving from their parents' or parent's insurance. Under the statutory pension insurance scheme, for instance, a child is entitled to an orphan's benefit in the event of the death of his or her parents or parent. Under the statutory accident insurance scheme, children are covered regardless of whether an employment relationship exists or not and, namely, in respect of those accidents which occur while the children are attending kindergartens and general education schools. In so far as children are not themselves members of a statutory health insurance scheme - due in particular to lack of an employment relationship of their own - they enjoy insurance protection of their own as family members of a member; this entitlement to benefits does not derive from the entitlement of the person who is actually a member but instead exists in its own right. Further social benefits which can also accrue to children are provided within the framework of social assistance pursuant to the Federal Social Assistance Act (BSHG).
69. Article 18, paragraph 3, of the Convention stipulates that children of working parents shall have the right to benefit from child care services and establishments for which they are eligible (to the extent these are available). This corresponds to the situation under German national law. On the whole, the supply of places for children between the ages of three and six is largely sufficient in the majority of the German Länder; the opening hours of the establishments, however, do not always meet the needs of working parents. In some parts of the country, demand outstrips supply. Particularly in the "old" Länder, there is an insufficient supply of places for children under the age of three as well as for children over the age of six after school hours.
70. Children of working parents now already have the right to benefit from the establishments for which they are eligible - to the extent these are available. The persons or groups financing and operating these establishments decide on their own responsibility which priorities shall govern admission of children when there are not enough places to go around. In general, the fact that the parents work is accepted as a criterion for admission, whereby single parents are given priority. The availability of a sufficient number of day car establishments for children, however, is one of the preconditions for enhancing the compatibility of working life and child-rearing responsibilities. Initiatives by firms to create additional places are applauded in this context.
71. According to section 24 of Book Eight of the Social Code - Child and Youth Services - the Länder and the competent regional and local authorities are responsible for ensuring that the supply of day care establishments for children is increased to meet demand. In the case of kindergartens, the following applies as well: as of 1 January 1996, a place in a kindergarten must be made available to every child from the time he or she turns three until the time he or she enters school. The institution of a legal entitlement to a place in a kindergarten as well as the demand-oriented increase in the number of day care places for children under the age of three and over the age of six are linked not only with the obligation to make day care places available for the children of working parents; they are also intended to supplement and support the institution of the family and further the education, development and care of children.
73. The Convention goes on to state that securing the living conditions required for the development of the child is primarily the duty of the parents or other persons responsible for the child (art. 27, para. 2), a duty which is to be fulfilled within their abilities and financial capabilities; this position is upheld under national law by article 6, paragraph (2), of the Basic Law. Reference is made in this context to the obligation of parents to provide maintenance for their children, which is governed by sections 1601 seq. of the Civil Code and - for children born out of wedlock -by sections 1615 seq. of the Civil Code.
74. To the extent that the parents or other persons responsible for the maintenance of children are completely unable or only partially able to fulfil the obligations arising out of article 27, paragraph 2, the Convention obligates the States parties in article 27, paragraph 3, to take appropriate measures within their means to assist those responsible for the maintenance of children in the fulfilment of their obligations and to provide material assistance and support programmes in order to ensure an adequate livelihood. In respect of the Federal Republic of Germany, reference is made in this context above all to the entitlement to State welfare assistance which is laid down in the Federal Social Assistance Act; assistance is provided under this regime when the needs of the child cannot otherwise be met. According to the Federal Social Assistance Act, the purpose of State welfare assistance is to make it possible for anyone - regardless of his or her residence status - who is unable to help himself or herself, and who does not receive the necessary assistance from anyone else, to lead a life in a manner consistent with human dignity. Assistance is furthermore provided under the Act on Benefits for Persons Applying for Asylum.
A. Education, including vocational training and guidance (art. 28)
(a) Subparagraph (a): compulsory schooling begins for all children at the age of six. Schooling is free of charge;
(b) Subparagraph (b): the general education secondary schools -Hauptschule, General secondary school - lower level - providing full-time compulsory education (grades 5 or 7 through 9 or 10). Realschule General secondary school - lower level - giving access to the upper level of secondary education (grades 5 or 7 through 10). and Gymnasium General secondary school - lower and upper level - providing general university qualification (grades 5 or 7 through 12 or 13. - build on the foundation laid by the primary schools (Grundschulen) common to all children. In many Länder, comprehensive schools (Gesamtschulen) combining these three types of secondary schools exist as well. Beginning in grade 10, pupils attending general education or vocational secondary schools are entitled to public financial assistance in the form of a grant if for compelling reasons they must attend a school away from home;
(c) Subparagraph (c); the certificate of qualification entitling recipients to study at a university or equivalent institution is conferred upon completion of 12 or 13 progressive years of schooling, at the end of the upper level of the Gymnasium (or, if applicable, the comprehensive school), or upon completion of coursework at upper-level vocational education schools also providing general university qualification. This certificate of qualification may either be general (allgemeine Hochschulreife), entitling recipients to study the subject of their choice at a university or equivalent institution, or restricted (fachgebundene Hochschulreife), entitling recipients to commence higher education studies only in certain subjects. Evening Gymnasien for people who are already in employment, placement tests, Kollegs, General-education institutions preparing adults for higher education. and special examinations for admission of particularly gifted persons in employment to higher education afford further opportunities for acquiring general university entrance qualification. A certificate of Fachhochschulreife, which entitles the recipient to pursue courses of study at a Fachhochschule Special type of higher education institution offering highly practice-related courses of a scientific nature. or corresponding courses of study at a comprehensive university (Gesamthochschule), can generally be acquired upon completion of 12 progressive years of schooling or upon completion of coursework and practical vocational training at a two-year specialized technical secondary school (Fachoberschule). This qualification can also be acquired in other ways (through an examination for particularly gifted persons in employment, for instance);
(d) Subparagraph (d): in the Federal Republic of Germany, the requirements of subparagraph (d) are satisfied by the information and guidance services instituted by both the education administrations (the Land Ministries of Education and Cultural Affairs and the Land Ministries of Science) and the employment administration (the Federal Institute for Employment (BfA));
(e) Subparagraph (e): violations of the existing compulsory education requirement for children are rare. Special assistance and encouragement for weaker pupils is furnished in schools within the framework of numerous special assistance measures.
76. Article 28, paragraph 2, of the Convention stipulates that school discipline must be administered in a manner consistent with the child's human dignity, a requirement which is observed under national law as follows: in the event that a pupil violates a duty incumbent on him or her within the pupil-school relationship, educational measures have priority over disciplinary measures. If educational measures (discussion with the pupil, warning, imposition of additional tasks or homework, requirement that missed classwork be made up, etc.) prove insufficient, then various forms of disciplinary measures can be contemplated; written reprimand, transfer to a parallel class, temporary suspension from classroom instruction or expulsion from school. The structure and implementation of these measures may differ in the individual Länder of the Federal Republic of Germany. Corporal punishment is expressly forbidden.
77. The Federal Republic of Germany attaches great importance to the demand for international cooperation in matters relating to education which is voiced in article 28, paragraph 3, of the Convention. As a member of global, supraregional and regional organizations (UNESCO, OECD, the European Union and the Council of Europe, for example), Germany actively participates in all measures undertaken within the framework of these organizations to encourage such cooperation and to promote both the exchange and transfer of and the equality of access to scientific and technical knowledge.
79. Article 29, paragraph 1 (c) of the Convention, which states that the education of the child should be directed, among other things, to development of respect for "his or her own cultural identity, language and values" and respect for "the country from which he or she may originate", cannot be interpreted to mean that children from families of guest workers living in the Federal Republic of Germany or children of other foreign origin have a right to receive instruction in their native language in the country in which they reside. Rather, resolution of this issue so crucial to the future structure of the nation remains reserved to the States parties, who are to decide the matter within the framework of and in accordance with their respective integration policies. For the same reasons, the Convention did not call for extension of the compulsory schooling requirements to encompass applicants for asylum who have not been recognized as such. The Government of the Federal Republic of Germany clarified this point within the framework of a declaration at the time the instrument of ratification was deposited.
80. The right to establish private schools, which is addressed in article 29, paragraph 2, of the Convention in conformity with article 13, paragraph 4, of the International Covenant on Economic, Social and Cultural Rights, is guaranteed under German national law by the corresponding basic right laid down in article 7, paragraph (4), of the Basic Law.
82. Paragraph 2 of article 31 of the Convention obligates the States parties to promote the right of the child guaranteed under paragraph 1 to participate in cultural and artistic life. Public measures in Germany that particularly deserve mention in this context include those governing school holidays, which are of significance to children who attend schools, as well as those pertaining to the undertaking and subsidizing of class trips. Extracurricular measures furthering the education of young people and recreational activities for children and young persons are provided for especially in section 11 of Book Eight of the Social Code. In the Federal Republic of Germany, the right of the child to enjoy rest and leisure and to engage in play and recreational activities appropriate to the age of the child is furthermore promoted to public measures or publicly subsidized measures implemented by voluntary youth service organizations (youth associations, youth welfare associations); the actual exercise of this right by the child, however, largely falls within the sphere of responsibility of his or her parents. The Federal Government, by the way, is convinced that exposure to and active involvement in the arts and cultural activities should begin at the earliest possible age so that children can acquire a wide variety of cultural experiences while they are still quite young. Within the framework of its competence, the Federal Government therefore endeavours to ensure that as many children as possible have an opportunity to participate in cultural life and thus fully develop their intellectual, physical and artistic capabilities.
A. Children in situations of emergency
1. Refugee children (art. 22)
84. Assistance to safeguard the rights of a refugee child who has entered the country unaccompanied or is otherwise alone can, for instance, take the form of action by the youth welfare authorities or the guardianship court to place the child in a family or institution or to undertake other measures which are called for in order to prevent harm from befalling the child. To this end section 1,666 of the Civil Code provides for the appointment of a legal guardian; an international competence for such a measure follows from article 9 of the Hague Convention concerning the powers of authorities and the law applicable in respect of the protection of miners.
85. The obligations of the State parties arising out of article 22, paragraph 1, do not include facilitating entry or making entry possible for children who wish to enter a country unaccompanied for the purpose of seeking refugee status there, since article 22, paragraph 1, leaves national provisions governing the entry of aliens and the conditions of their stay unaffected and hence especially does not constitute an obstacle to the validity of a visa requirement for children. The Federal Republic of Germany made a clarifying statement to this effect in a declaration it submitted at the time the instrument of ratification was deposited.
86. The willingness that the Federal Republic of Germany has demonstrated in the past to engage in international cooperation to resolve issues pertinent to refugees will continue to exist in the future as well.
87. Article 38 of the Convention confirms guarantees which are intended to protect the child in the event of armed conflicts. In doing so, this provision expressly points out to the States parties their duty to observe their binding obligations under international humanitarian law. On this basis, paragraph 2 stipulates that children under the age of 15 may not take a direct part in hostilities. The Federal Government, like a number of other Governments, emphatically pointed out through its delegation in the final consultations of the Geneva Working Group that this age limit is inappropriately low. The Federal Government therefore will not make any use of this age limit. It drew attention to this point of view in a declaration which it submitted at the time the instrument of ratification was deposited.
88. In contrast to the age limit of 15 likewise established by article 38, paragraph 3, of the Convention for recruitment of persons into the armed forces, the national law of the Federal Republic of Germany affords young people more extensive protection. A person may not be recruited into the armed forces before he has at least attained the age of 17 (see sect. 7, subsect. 1, No. 1; sect. 11, subsect. 1, No.1; and sect. 18, subsect. 1, No. 1 of the Military Career Regulation (SLV) as amended on 4 July 1988). Federal Law Gazette, Part I, p. 996. Men who have reached the age of 18 may be required to serve in the military (art. 12a, para. (1), of the Basic Law).
89. The obligation of the States parties following from article 39 of the Convention, namely to take measures serving to promote therapy and rehabilitation for children who have, for instance, been victims of any act of violence in the Federal Republic of Germany and have thereby suffered injury to their emotional or physical health, is fulfilled under national law especially by section 5 of the Social Code - General Part (here specifically in conjunction with the Crime Victims Compensation Act). Reference must also be made in this context to the forms of socio-economic assistance provided for in Book Eight of the Social Code - Child and Youth Services.
1. The administration of juvenile justice (art. 40)
91. Paragraph 2 (a) therefore stresses for juveniles the principle of nulla poena sine lege, which is already guaranteed as a basic human right by article 15, paragraph 1, sentence 1, of the International Covenant on Civil and Political Rights, by article 7, paragraph 1, of the European Convention for the Protection of Human Rights and Fundamental Freedoms and, under German national law, by article 103, paragraph (2), of the Basic Law.
92. Paragraph 2 (b) then proceeds to list the specific rights of the juvenile, which largely correspond to the specific rights that are already guaranteed for any person accused of a crime, irrespective of his or her age, under the International Covenant on Civil and Political Rights as well as under the European Convention for the Protection of Human Rights and Fundamental Freedoms and are hence already binding on the Federal Republic of Germany.
93. The same applies to the presumption of innocence in favour of the juvenile mentioned in paragraph 2 (b) (i), which corresponds to the provisions of article 14, paragraph 2, of the International Covenant on Civil and Political Rights and of article 6, paragraph 2, of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
94. The right of the juveniles stipulated in paragraph 2 (b) (ii), namely to be informed of the charges against him or her - either directly or through his or her parents or legal guardians - and to have legal or other assistance, is already guaranteed by the provisions of article 14, paragraph 3 (a) and (b), of the International Covenant on Civil and Political Rights (see also art. 6, para. 3 (a) and (c), of the European Convention for the Protection of Human Rights and Fundamental Freedoms). This guarantee does not necessarily imply an obligation to assign legal or other appropriate assistance to a juvenile in a youth court proceeding in each and every case without exception; pursuant to the International Covenant on Civil and Political Rights, legal assistance must be asigned to the accused "in any cases where the interests of justice so require". The Federal Government therefore pointed out, within the framework of a declaration which it submitted at the time the instrument of ratification was deposited, that article 40, paragraph 2 (b), should be applied in such a way that, in the case of minor infringements of the penal law, there shall not in each and every case exist an entitlement to have legal or other assistance in the preparation and presentation of the defence. In cases of the latter kind, it is sufficient as a matter of principle under the provisions of national law (sect. 50, subsect.1, and sects. 67 and 69 of the Youth Courts Act) if the parents or other persons with parental powers are able to participate in the main proceedings.
95. The recognition in paragaph 2 (b) (iii) of the right of the juvenile to a hearing by a competent and independent court merely serves to underscore the corresponding rights already arising - under national law as well - out of article 14, paragraph 1, of the International Covenant on Civil and Political Rights and article