Statement on the draft law to improve the protection of persons affected by violence in family court proceedings

With the Istanbul Convention (IC) and the coalition agreement, the German Federal Government has committed itself to taking all necessary measures at all levels of government to combat violence against women, to offer protection and support to those affected, and to prevent violence. Draft law to improve the protection of persons affected by violence in family court proceedings, to strengthen legal assistance and to adapt other procedural provisions The BMJ intends to fulfil these obligations. FHK welcomes the fact that the draft finally pays attention to the phenomenon of domestic violence at an important point, namely the procedural law in the family court.

The principles introduced with the 2009 reform of family procedural law, which aimed at reaching an agreement, joint consultation, and mediation, have since been criticized from the perspective of violence protection. The unconditional enforcement of access rights and the under-resourced legal guardian as a "child's advocate" were also considered particularly problematic.

Contents of the draft law

The draft law proposes the following essential instruments for protection against domestic violence:

• the introduction of a right of appeal against a contact exclusion in expedited proceedings,
• the identification and consideration of domestic violence and the protection needs of those affected and their children,
• an electoral jurisdiction to protect a secret address,
• separate hearings and the exception to the otherwise required agreement and mediation maxim,
• the strengthening of the legal counsel involved and
• better networking of the authorities involved in violence protection and child protection

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Potential for improvement

The proposed measures are generally welcome, but do not yet fully address the reality and needs of domestic violence. From the perspective of FHK, key areas for improvement include:

• credentials for Possibility of appeal against contact ordersCurrently, it only provides for appeals against a ban on contact, but not against ordered contact that poses a risk to the physical or mental health of the custodial parent or the child itself. These cases regularly arise in cases of domestic violence. The custodial mothers affected by violence—usually mothers—are obligated to facilitate contact and have no option to suspend contact without penalty. This contradicts Article 31 of the Istanbul Convention.
• The possibility of a Electoral jurisdiction requires that a completed or ongoing procedure under the Violence Protection Act exists. However, only about 10% of the women in the women's shelter, who are particularly dependent on protection from disclosure of their whereabouts, submit an application under Section 1 of the Violence Protection Act, and about 3% under Section 2 of the Violence Protection Act.[1]This excludes a large proportion of those affected and gaps in protection remain.
• The court has an explicit duty to identify indications of domestic violence. This requires the involvement of the support system and the increased training and further education of the forces involved work should be carried out – and consideration should be given to compulsory further training.
• A Legal representative has special powers, which should now also be judicially orderable and enforceable, and insight into extremely private – fundamental rights-relevant – life circumstances, not only of the child. The welcome strengthening of the legal guardian should be accompanied by the possibility of reviewing their qualifications and actions and, if necessary, sanctioning them. This must also include the possibility for the child involved to refuse legal guardianship.
• The police and (if children are involved) the youth welfare office should also be informed about a violence protection procedure. It is important to define the scope of the information more clearly and to embed the measures in a sufficiently trained and equipped system.

Despite the stated need for improvement, the draft represents an important step in the right direction. The already expected draft law on the material Child law should be coordinated and synchronized with these proposals.

[1] FHK Women's Shelter Statistics, 2022: https://www.frauenhauskoordinierung.de/publikationen/frauenhaus-statistik