Child removals represent a massive encroachment on the rights of parents and are always a delicate matter. Parents often feel helpless when the youth welfare agency takes children away. However, there are legal steps and ways to defend yourself against such measures.
In Austria, removal of a child by the youth welfare authority (youth welfare office) is only justified if there is an acute risk to the child's welfare, which can be caused by neglect or abuse, for example. Furthermore, an immediate measure is only justified in the event of imminent danger and as a last resort. In principle, this is a good thing, as the measure is based on the best interests of the child. The definition of the best interests of the child is set out in Section 138 ABGB. However, this flexible term is all too often interpreted in different ways, leading to misinterpretations.
After acceptance, which can take place with the support of the executive, the children are placed in crisis centers, shared flats or with foster parents depending on their age and situation. In order not to lose contact, a certain amount of cooperation with the youth welfare office is advisable at first.
Legally, it is then possible to have the acceptance reviewed by the guardianship court. This step is particularly important, as recent cases show that acceptances have also been made wrongly. The application must be submitted within a four-week period. The youth welfare agency itself must have the measure approved by the guardianship court within eight days, otherwise it must be reversed.
These proceedings often extend over a longer period of time, so communication with the youth welfare agency should be maintained.
In the event of unjustified acceptance, the child and youth welfare agency is liable, but official liability is excluded, as the Supreme Court(1Ob211/20s) has ruled that the youth welfare agency does not act in a sovereign capacity in the case of care and upbringing measures and is therefore liable in accordance with the principles of tort law.
In summary, child abduction in Austria may only be carried out in serious cases and is subject to close scrutiny by the guardianship court. In this situation, parents should be aware that they can take legal action to verify the legality of the measure.
