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.
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; www.uek-administrative-versorgungen.ch