«Family is not a private matter»
Ms Inderbitzin, the Ombudsman's Office for Children's Rights Switzerland offers children and young people free legal advice by telephone. How do children get in touch with you?
Most of them are in highly stressful family situations with a long history. It is often a case of divorce or extra-familial placements as part of child protection proceedings. Children take a position in such conflicts, they have their own opinions and interests that they want to have protected. They are dependent on the professionals involved not making decisions over their heads, but granting them basic children's rights - such as the right to information, to express their opinions and, where necessary, to legal representation. The reality is often different.
Namely?
Adults speak for the child. Children then have no say in the question of who they should live with after the divorce or what visiting arrangements should be made. It also happens with out-of-home placements that children are not involved in decisions that they have to live with. For example, when it comes to deciding which home would be suitable. In such cases, the legal system has failed to act.
In what way?
The procedural rights to which the child is entitled were not respected. In divorce proceedings, for example, only ten per cent of children are heard in court. Or a placement order has been issued, but no legal representative has been appointed to represent the child's wishes in the proceedings. As a children's ombudsman's office, we ensure that such omissions are rectified.
We would rather make sure that it doesn't happen in the first place. To do this, children need to be made aware of us earlier. Currently, one in three calls comes from children or young people; many are referred to us by the Pro Juventute 147 counselling team. In just under half of the cases, a parent contacts us; the remaining calls are made by professionals or people close to the child.
Do you also advise adults?
No. You may make initial contact with us on behalf of the child, but our aim is to talk to the child themselves. Children can describe their situation quite well. Our youngest client was a five-year-old boy.
A five-year-old in a counselling interview?
In more or less intact families, it's hard to imagine that something like this is possible, that a child could even utter a single word. But children who come to us are confronted with completely different pressures and are therefore often very mature for their age.
How does a counselling session work?
Firstly, we try to understand the situation: What is the issue, who is involved, what is bothering the child? Some counselling sessions are completed in one phone call, while we accompany other children for months. Not every call has a serious background. Sometimes a teenager comes forward with a guilty conscience and wants to know what could happen if they are found guilty of shoplifting.
We always proceed in the same way: after analysing the situation, we show the child what they can do in their situation and discuss this with them. The child then decides whether the ombudsman's office should become active.
And what does that mean?
That we mediate with the relevant professionals and make our recommendations there. As an ombudsman's office, we do not conduct proceedings - we only ensure that the child has access to the legal system. In other words, that the professionals who are responsible for safeguarding their rights in the respective situation - in the case of divorce proceedings, this is the judge - adequately fulfil this task. As I said, this is not always the case, even when it comes to drastic interventions in a child's life.
Participation can counteract the powerlessness of the child.
Can you give an example?
There was a teenager who came forward after an odyssey through various homes. She had been placed in another home, her mother was mentally ill and could no longer care for her as a single parent. But no one had ever listened to the teenager or worked with her to find a solution. The situation escalated and ended with her ending up in a closed home because she was suicidal.
What expectations did the girl have of you?
Her primary wish was to be close to her mother again. However, as an ombudsman's office, we do not fulfil wishes - we help children to assert their rights. In this case, we managed to get the child and adult protection authority (Kesb ) to reopen the proceedings, this time under conditions that should have been in place from the outset.
Namely?
The young person was given legal representation who stood up for her. The out-of-home placement was not called into question. However, a foster family was found near the mother. This meant that the daughter was able to see her regularly again.
The young person was able to accept the fact that it was not possible to return home once she had been involved in the new solution. It's not good when children can't have a say in decisions that they have to live with afterwards. It comes back like a boomerang.
Why does it happen anyway?
Firstly, there are factors such as a lack of staff and time at the authorities. Secondly, the conviction that adults know best what is good for the child is firmly anchored in people's minds. This is usually based on the desire to protect the child. They want to keep them out of conflicts. But children realise early on when something is wrong. This is where adults have a responsibility to inform them in an age-appropriate way instead of leaving them alone with their fears.
We always focus on the child's self-efficacy.
A separation, for example, usually has a longer history. Parents often believe that children are unaware of this. They leave them in the dark until conflicts escalate and then don't want to force them to take a stand - for fear that this could put additional strain on the children.
Wrongly?
The child is faced with an unalterable fact anyway. This triggers strong feelings of powerlessness. Participation can counteract this powerlessness. But participation is not a one-off exercise.
But what?
A process in which adults ensure that the child is informed promptly about the next steps, that they know what is happening and that they have a voice in important decisions. If a child experiences the ability to influence their own destiny despite difficult circumstances, this promotes their resilience, their psychological resistance.
Having a say does not always lead to wishes being realised. But if I can make the child understand why their wish could not be granted and show them what would have to happen for this to be possible, they can deal with the situation differently. We always focus on the child's self-efficacy.
What does that mean?
We encourage children to become active themselves. If a child calls us because it fears that it will be ignored in the divorce proceedings, we suggest that it write a letter to the judge responsible, asking to be heard. At the same time, we also contact the judge - with the child's consent - and make our recommendation that the child should be given the right to be heard. If this works, we withdraw and remain with the child so that they can contact us again at any time. However, informing a child about their rights also means showing them what can happen if they exercise these rights.
In what way?
Recently, a young person got in touch who said she wanted to move into a care home. However, she was unsure because she didn't know who she could turn to and what she could expect. She told us about her situation in an unstable family home.
We confirmed the young person's assessment that the situation at home could jeopardise her development in the long term. We advised her to contact Kesb and explained to her what the consequences of such a conversation could be. It is important to be transparent so that the child can prepare for further steps and assess whether they want to take them.
When children have a say, they feel less powerless.
How did the young person decide?
We looked up the necessary telephone numbers for her, but at the same time offered to make the initial contact. She picked up the phone herself. Many children need time to think before taking such a step. Sometimes this takes months, and when new questions arise, we are there. The contact person remains the same, and what they know remains confidential. We do nothing without the child's consent. Unless the situation requires it because we see an acute, high risk. Then we would have the emergency right to call the police. So far, we have not had to make use of this right.
Switzerland signed the UN Convention on the Rights of the Child in 1997. But are children's rights also enshrined in Swiss law?
In some cases they are, for example when it comes to children's participation rights in divorce proceedings or child protection measures. But in many laws that affect other areas, children are not even mentioned or their rights are not explicitly mentioned.
The four basic principles of children's rights:
The 54 articles of the UN Convention on the Rights of the Child are based on four fundamental principles. These are enshrined in the following articles:
The right to equal treatment.
No child shall be discriminated against on the basis of sex, origin, language, religion or colour. (Art. 2 UN CRC)
The right to respect for the best interests of the child.
When decisions are made that affect the child, the child's welfare takes priority. This applies both in the family and in state action. (Art. 3 UN CRC)
The right to life and development.
Children should be supported in their development and have access to healthcare and education. They must be protected from abuse and exploitation. (Art. 6 UN CRC)
The right to be heard and to participate.
The child should be able to express their opinion on all issues or procedures concerning them. Their opinion should be taken into account when decisions are made. This also includes being informed in an age-appropriate manner. (Art. 12 UN CRC)
Source: www.kinderschutz.ch/kinderrechte/uno-kinderrechtskonvention
Does this mean that children's rights are binding at all?
Yes, because international law is fundamentally superior to federal law. But children's rights have never been systematically integrated into Swiss law in many areas. You can see this in school law, for example. We are often confronted with school issues.
What is it all about?
Often about bullying. For example, we were approached by an eleven-year-old who had become violent towards a classmate and had therefore been excluded from school. The school management told the mother that her daughter was no longer acceptable as a result of the incident. There were many questions and fears - whether the girl would definitely be expelled from school, have to change classes or even go to a school hostel. Our conversation with her brought light into the darkness. It turned out that she had been bullied for months and tormented until she only knew how to defend herself with violence.
Did the school management know about this?
No. The girl had never been given the opportunity to comment on the incident. We described the situation to the school management and advised those responsible to give the pupil her right to be heard and to tackle the bullying problem. The school reacted accordingly. Professional support was sought and the girl was allowed to stay in class after a discussion with the headteacher. We often receive reports from children who are being bullied and experience that the school does too little to stop it.
- Anwältinnen, Anwälte und psychosoziale Fachpersonen gründeten 2006 den Verein Kinderanwaltschaft Schweiz. Dieser setzt sich bis heute für die Bildung von Personen ein, die juristisch mit Kindern zu tun haben, unter anderem in kindgerechter Kommunikation.
- Was als Anlaufstelle für Fachpersonen gedacht war, verselbständigte sich zum Sorgentelefon – Kinder in schwierigen Lebenssituationen riefen immer häufiger bei der Kinderanwaltschaft an, um sich über ihre Rechte zu erkundigen.
- 2021 nimmt die Ombudsstelle Kinderrechte Schweiz als juristische Beratungsstelle für Kinder ihre Arbeit auf.
- Irène Inderbitzin ist die Geschäftsführerin und Katja Cavalleri Hug leitet die Bereiche Beratung und Expertise. Das Team besteht aus sieben Mitarbeiterinnen und Mitarbeitern.
- Die Kinderombudsstelle vermittelt überall, wo Kinder mit dem Rechtssystem in Berührung kommen, und deckt sämtliche Rechtsbereiche ab – vom Schulrecht über das Familien- und Ausländerrecht bis hin zum Jugendstrafrecht.
How do you mediate then?
Always the same: We inform the school authorities about the situation if the child agrees and make the responsible persons aware that children have the right to protection, safety and healthy development, for the realisation of which the school is responsible in this case. Bullying jeopardises healthy development. Again, the recommendation is to do something about the dynamics of bullying. However, school issues are not just about bullying.
But what?
Sometimes children seek our help because they are denied their right to education. For example, there was a secondary school pupil who had been committed to a closed psychiatric ward by the authorities without any attention being paid to his school situation. The teenager wanted to take part in lessons again, but fell on deaf ears. We campaigned for an outpatient solution so that he could attend secondary school again. It is particularly common for children with disabilities to be disadvantaged. Like a boy recently who was only allowed to go to school three days a week.
Why?
Because, according to the school - a public primary school - the financial resources for a full school load were lacking. We often see that inclusion, as intended by the primary school, is not implemented and children have to stay at home for days at a time because there are not enough resources for their schooling. In these cases, several children's rights are violated at once.
We act in a solution-orientated manner. This benefits the authorities.
Do you have any room for manoeuvre?
Absolutely. We contact the school authorities, explain the legal situation and urgently recommend that those responsible provide the necessary human resources.
You keep talking about recommendations - they don't necessarily have to be implemented.
That is true. However, as an ombudsman's office, we have the option of considering escalation and contacting a supervisory authority. We have only had to do this once so far. Our recommendations are almost always effective. Even with authorities such as the courts or the Kesb - although they are not obliged to provide us with information.
What does that mean?
That the people in charge can refuse to talk to us. We are currently a foundation under private law, but the creation of an institution under public law is underway. This milestone is important because an ombudsman's office under public law has a right to information from the authorities.
Children have rights - we help you to use them
Do you wonder what your rights are? Do you have the feeling that nobody listens to you or takes your needs seriously? Or are you experiencing violence and don't know what you can do? We can help you!
We will answer your questions and discuss how we can support you. The conversation is free and confidential. Just give us a call!
Ombudsman's Office for Children's Rights Switzerland, Theaterstrasse 29, 8400 Winterthur, Tel. 052 260 15 55
Telephone hours: Monday to Friday from 8.00 a.m. to 5.30 p.m.
www.kinderombudsstelle.ch, info@ombud.ch
However, members of the authorities are usually willing to continue discussions with us. They realise that the child has confided in us and has authorised us to mediate. We also act in a solution-orientated manner, which benefits the authorities: nobody is interested in cases that drag on for a long time.
How can we as private individuals stand up for children and their rights?
By encouraging them to get involved and letting them experience the ability to help shape things. Even when it might be unpleasant for us as parents, for example in the event of a divorce. My advice is to insist on hearing the child, even if the judge thinks this is unnecessary if the parents agree on the most important issues.
And fundamentally, by being attentive. That we don't look the other way when a child is in a difficult situation, but offer ourselves as a person of trust and draw the child's attention to help. Family is not a private matter - not when it comes to the well-being of a child.
