Since the 16th century, municipal and other authorities have looked after orphaned children. This developed into the modern Swiss guardianship system, whose form is anchored in the 2013 Child and Adult Protection Act.
The Child and Adult Protection Act, or rather the earlier custodial system, refers to legal welfare for minors or adults who are unable to manage their own finances and have their rights protected. The measures taken in connection with child and adult protection have to be in the interests of the people affected, even if these measures are determined by others.
From a Family Matter to Control by the Authorities
Since antiquity, unmarried women, along with marginalised groups including orphaned children, people with disabilities, the sick and the infirm elderly, have all been placed under custodial authority or guardianship. Until the 16th century, guardianship was exclusively a matter for the family, whose primary concern was to obtain the assets of the relative in their custody. Developments in the late Middle Ages led to stronger legal regulation of the guardianship system and transferred the responsibility of determining and monitoring legal guardians to the municipal authorities. Two police directives of the Holy Roman Empire of the German Nation granted legal guardians more powers in 1548 and 1577, meaning they could act as a representative of the person under their care and use their assets for suitable purposes – subject to some restrictions.
From Cantonal Regulations to the Swiss Civil Code
In the 19th century, guardianship was regulated at the cantonal level in Switzerland. Intrusions by the authorities into families increased, based on moral imperatives. What was to be avoided was that the children of parents who largely lived in impoverished circumstances and were said to be conducting ‘bad lives’ were harmed by this environment. There was a widespread fear of ‘neglect and squalor’ (Verwahrlosung) among the middle classes. Consequently, children deemed at risk were either put up for adoption, hired out as labour, or placed in foster homes. Their parents could also be placed under guardianship and committed to institutions.
The Swiss Civil Code (SCC) of 1907 standardised the guardianship system, placing it within the framework of Swiss family law. However, municipalities continued to be responsible for implementation, which differed considerably by canton, public authority, and the personnel responsible. The Guardianship Act of 1907 was likewise characterised by a state paternalism which intrusively reached into families and engaged in disciplining based on prevailing societal norms. Children were hired out as forced labour or placed in institutions, based on the SCC, and women accused of ‘dissolute moral conduct’, including many mothers of illegitimate children, were forcibly admitted to psychiatric or other institutions. Other groups targeted by these kinds of ‘administrative measures’ included youths deemed difficult, alcoholics, and members of various marginal groups. Such measures could be implemented by the public authorities, and no legal appeal was possible. This administrative practice remained in place until at least the 1960s, though it was in conflict with the 1953 European Convention on Human Rights (in turn only ratified in Switzerland in 1974). In 1981, the Confederation therefore replaced these administrative measures with the option of involuntary commitment (to hospital or prison) for negligent parents and guardians. This granting those affected greater legal protection, and in particular, more possibilities for appeal.
Accurate figures are not available for the number of outplacements from families in the 20th century, but it is estimated that around 1930, four to five per cent of children under 14 were affected, or about 60,000 children. Administrative measures more generally are estimated to have affected 50,000 to 60,000 people in the 20thcentury. The peak was reached between 1930 and 1950, with the number of outplacements, and administrative measures, increasing after the SCC came into force.
Adoption has a lengthy history. Assuming the parenting of another, often a child, was already legally regulated under early Germanic law. In Switzerland, the oldest legal regulations come from the 19th century and were enacted at the cantonal level. At that time, adoptions primarily served as a means to transfer property or preserve names, and were driven by inheritance motivations. National provisions for adoption were included for the first time in the Swiss Civil Code of 1907, which also brought the notion of the protection of the child to the fore. In subsequent decades, national adoption law barely changed. It was only in the 1972 revision of the Civil Code that more liberal adoption regulations were included. In addition to the adoption of minors, adult adoption was now also possible. Adopting parents, in turn, no longer perforce had to be childless, and adoption by single parents was also permitted. An adopted child was legally placed on an equal footing with the children of the adopting parents. Prior to adoption, a foster relationship lasting at least two years had to have existed. Until the 1990s, carrying out adoptions remained in the hands of the cantons; no uniform adoption processes existed at the national level.
In adopting, a distinction had been drawn between national adoptions, which take place within Switzerland, and international, cross-border adoptions. As a rule, adoptions remained national into the 1960sc, but during the 1970s and 1980s, international adoptions steadily increased. By the 1990s, they accounted for half to two-thirds of all adoptions, but this proportion subsequently declined. The overall number of adoptions increased to over 2,000 annually by the late 1970s, but slowly declined after that, and were less than 500 by 2019.
Private placement agencies often played an important role in the adoption process. Permits for international adoptions were originally issued by the Federal Alien’s Police (Fremdenpolizei), and then by the Federal Office for Foreigner Issues (Bundesamt für Ausländerfragen), its name after 1980. Legal problems and uncertainties were common in international adoptions, and into the 1990s, effective control mechanisms between the adoptee’s country of origin and Switzerland were lacking. As a result, between 1973 and 1997, numerous children from Sri Lanka, for example, were brought to Switzerland illegally and adopted by Swiss couples. As early as the 1980s, individuals had approached the Federal Office for Foreigner Issues, now part of the State Secretariat for Migration, and pointed out various abuses in international adoption processes. The international framework for intercountry adoptions did improve continually during the 1990s, both through the Swiss signing and implementing the 1989 UN Convention on the Rights of the Child in 1997, and by its 2001 implementation of the 1993 International Hague Convention on Adoption.
The most significant Swiss organization active in adoption and foster care issues is PACH, the Organization of Foster and Adopted Children, founded in 2016. It emerged from a merger between the Swiss Adoption Agency and Pflegekinder-Aktion Schweiz; PACH follows the principles outlined in the UN Convention on the Rights of the Child.
Foster care was not clearly defined as a term in Switzerland until the 21st century. In the 19th and 20th centuries, it included children who did not live with their parents or with their adoptive parents. Nevertheless, there are many links between foster care and adoption, not least because many children first placed in foster care are later adopted by their foster parents. "Open caring" (offener Fürsorge) was often used during the 20th century to refer to the foster care system, and many private associations have been involved in providing such care up to the 21st century. Reliable statistics on foster care have only been collected in Switzerland in recent years, and indicate that in the period from 2015 to 2017, 18,000 to 19,000 children were outplaced in Switzerland. Of them, 4,700 to 5,800 lived in foster families.
In the 19th century, various associations and institutions in Switzerland had been responsible for the permanent placement of foster children. In 1897, for example, 43 associations in 14 cantons supervised a total of 2,609 foster children. The associations engaged in providing education for the poor recorded those children who were to be outplaced and kept lists of potential foster parents. In placing children, they cooperated with communal and cantonal authorities, while also acting as oversight bodies that checked into the living conditions in both the family of origin and the foster family. The main goal of outplacement was to raise and educate children from poverty-stricken families to become independent and gainfully employed citizens. Nevertheless, foster families and care homes which housed foster children often abused those children, seemingly systematically. Foster children were stigmatized at times, or in general terms, as "neglected children”.
The 1907 Swiss Civil Code did not contain any regulations on foster care, leaving this up to the cantons. The first cantonal ordinances in this area were promulgated in the 1920s and 1930s. Increasing public critique after the Second World War was meted out to particular aspects of the foster child system, most notably the treatment of Verdingkinder. These ‘contract children’ or ‘indentured child laborers’ were foster children who often came from rural, impoverished backgrounds. They were taken from their parents or parent and sent to live with other families, often poorer farmers who exploited these Verdingkinder as cheap labor. Official oversight here was chronically inadequate. Associations engaged in providing education to the poor were a counterweight, an answer to the Verdingkinder model as well as to the conditions found in care homes for children, both of which were criticized.1948 saw the founding of the Foster Children Action in Zürich (later nationalized); it advocated placing foster children in "worthy" homes.
Little changed in foster child outplacement until the 1950s. As social welfare measures increasingly provided support to families starting in the 1930s, and as poverty reduced more generally as a side-effect of economic boom times by the 1960s, the number of outplacements declined. There was discussion of introducing nationwide regulation of the foster care system when the adoption law was under discussion in the early 1970s, but when the revised Swiss Civil Code came into force in 1978, it contained few regulations that applied to foster children. These were instead summarized in the 1977 Ordinance on the Admission of Foster Children, which would become the first nationally uniform regulation of the foster child system. Revisions to this Ordinance were made in 1998, 2002, and 2013, with the 2002 revision primarily related to innovations in international adoptions.
Child and Adult Protection in the 21st Century
Towards the end of the 20th century, it became increasingly clear that the paternalistic guardianship law enshrined in the SCC was no longer in line with contemporary ideas in, or about, society. Moreover, complex cases involving the kidnaping of children, exploitation, or other forms of abuse often overwhelmed local authorities; they often lacked the necessary professional training to address such cases. As a consequence, a revision process was initiated in 1993 to keep those affected by protective measures from being discriminated against, to improve their right to self-determination, and to guarantee proportionality in welfare measures. The Child and Adult Protection Act that came into force in 2013 introduced fundamental changes. A person not in a position to exercise their rights themselves should, whenever possible, have the right to determine who should act on their behalf. The powers of doctors to commit individuals to homes or institutions for their own, or society’s, welfare saw their power to do so limited. Regular inspections of the accommodations in closed institutions were now required. In order to ensure proportionality and better serve the needs of those affected, the act introduced an enlarged form of guardianship (Beistandschaft) which, depending on the individual case, could now also include financial and legal aspects.
Stipulating specific protective measures in each individual case made child and adult protection more complex and posed new challenges for lay authorities. The act therefore introduced around 150 standardised and professionalised child and adult protection authorities (KESBs). In rural regions, lay authorities were thus replaced by professional bodies. The changes had less dramatic effects in urban centres where child protection authorities had been professionalised for quite some time. With these changes, child abuse and neglect cases, determining visiting rights in divorce cases, and the involuntary institutional confinement for those with dementia (as well as Beistandschaft), have only been handled by qualified personnel.
Although the installation of the new child and adult protection authority was uncontested in Parliament, the reform soon sparked public controversy. The immediate occasion was a murder case in 2015 in which a mother killed both of her children; the children had been placed in foster care by the KESB authorities but had been allowed to return to her temporarily for the holidays. This in turn led to a popular initiative in 2016 calling for sharply limiting the powers of the KESB authorities in favour of relatives and of those affected by KESB acts. Some municipalities also criticize the KESBs because while they have to finance them, the municipalities are no longer involved in decisions and have no access to case files.
A national research program to study the issue of involuntary confinement measures and foster care placement has been in place since 2015, and the Federal Council has also appointed an independent commission of experts to look into the issues. A number of political debates about recognizing and compensating the subjects of forced welfare measures are also underway in Switzerland.
Literatur / Bibliographie / Bibliografia / References: Germann Urs (2014), Die administrative Anstaltsversorgung in der Schweiz im 20. Jahrhundert: Bericht zum aktuellen Stand der Forschung, Bern; Meier Philippe, Lukic Suzana (2011), Introduction au nouveau droit de la protection de l'adulte, 2011; Heider, Mirjam (2011), Die Geschichte der Vormundschaft seit der Aufklärung, Baden-Baden; Abraham Andrea et al. (2020), Forschungs- und Quellenstand zu Fürsorge und Zwang im Adoptions- und Pflegekinderwesen, Berner Fachhochschule Soziale Arbeit, Bern; Bitter Sabine, Bangeter Annika, Ramsauer Nadja (Januar 2020), Adoptionen von Kindern aus Sri Lanka in der Schweiz 1973-1997. Zur Praxis der privaten Vermittlungsstellen und der Behörden. Historische Analyse betreffend das Postulat Ruiz 17.4181 im Auftrag des Bundesamts für Justiz, o. O. Online: Bericht der Zürcher Hochschule für angewandte Wissenschaften (ZHAW), Januar 2020 (PDF, 3 MB, 14.12.2020), Stand: 05.03.2021; Ceschi Ilaria (1996), Adoption ausländischer Kinder in der Schweiz: Aufnahme, Vermittlung und Pflegeverhältnis, Zürich; Guggisberg Ernst (2016), Pflegekinder. Die Deutschschweizer Armenerziehungsvereine 1848-1965, Baden; HLS: Adoption, Pflegekinder; Riethmüller Claudia (2015), Das Leid von Pflegekindern und Verdingkindern verringern, in: netz 1, https://pa-ch.ch/wp-content/uploads/2017/03/Geschichte-Riethmueller.pdf, Stand: 26.02.2021; Seiterle Nicolette (2018), Schlussbericht Bestandesaufnahme Pflegekinder und Heimkinder Schweiz 2015-2017, hrsg. durch PACH Pflege- und Adoptivkinder Schweiz, Zürich. Online: https://pa-ch.ch/wp-content/uploads/2018/10/Seiterle-2018_Bestandesaufnahme-2015-2017_d.pdf, Stand: 26.02.2021; Zatti Kathrin Barbara (2005), Das Pflegekinderwesen in der Schweiz. Analyse, Qualitätsentwicklung und Professionalisierung. Expertenbericht im Auftrag des Bundesamtes für Justiz, o. O. Online: https://www.newsd.admin.ch/newsd/message/attachments/3541.pdf, Stand: 24.02.2021; HLS / DHS / DSS: Vormundschaft; www.uek-administrative-versorgungen.ch.