KESR-ABC

If visiting rights cannot be realised after a separation, the KESB or a court can order accompanied visits. This is the case, for example, if parents have been violent in the past or if the trust between the two parties is so shattered that contact with the children is prevented. The measure should be adapted to the respective needs of the child and the situation. The specialists accompany the parents, for example, when they hand over the children to each other. They give them advice on how they can resolve misunderstandings or conflicts themselves. Or they support the absent parent and the children in gradually establishing contact. Be it just going for a walk together or playing football.

Counsellors must draw up a report at least every two years in which they highlight the strengths and weaknesses of the person concerned (Art. 411 ZGB). The report should be formulated objectively and with sensitivity. And if the deputy also has to deal with the finances of the person concerned, they must give an account of their income and assets. They should also state the reason for the measure, the mandate and objectives of the deputyship as well as the type and frequency of contact. The deputy should also make a prognosis and request an adjustment or review of the measures.
On the basis of this report, the KESB checks whether the deputy is doing their job properly and examines whether the measure can be amended or even cancelled. If those affected do not agree with the report, they can contest it.

Living conditions are in the child's best interests if a child or teenager can develop in a physically, mentally, emotionally, socially, spiritually or even culturally healthy way. This includes conditions such as giving them enough to eat, providing them with a roof over their heads, but also protecting them from physical and emotional violence, caring for them lovingly and offering them binding relationships. If the child's welfare is at risk, anyone can draw the attention of the KESB to this precarious situation.

A person is capable of judgement if he or she acts 'reasonably' in everyday life. According to the ZGB, this is any person who is not incapable of acting rationally because of his or her young age, mental disability, psychic disorder, intoxication or similar condition.
A person's capacity of judgement may be permanently or only temporarily absent. The law does not define the age at which children are capable of judgement. It always depends on the specific circumstances. Children and adolescents are considered capable of judgement when they are able to assess a situation for themselves, draw reasonable conclusions and act accordingly.

A person with capacity to act has both rights and obligations (Art. 12 ZGB). For example, they can conclude an employment or rental contract. This presupposes that they are capable of judgement and of legal age. The capacity to act can be restricted. For example, spouses can only terminate the joint family home with the consent of the other. Or adults who are affected by KESB measures can only enter into certain legal transactions with the consent of the deputy. Those affected by general deputyship, on the other hand, are not authorised to act.

With care-related hospitalisation, people can be admitted to a clinic or home against their will. This constitutes an encroachment on their rights and freedom. The measure may therefore only be ordered if a doctor determines that the person concerned is a danger to themselves and cannot be cared for or treated in any other way. This measure must be proportionate, comply with the legal requirements and have been ordered in a correct procedure. Otherwise, those affected can appeal.

The institution also regularly reviews whether the measure is still appropriate. The KESB also does this. In addition, the person concerned or a close relative can submit a request for discharge at any time. Affected persons must be released immediately if the conditions for placement are no longer met.

If the person concerned does not agree with the decision to release them, they can lodge an appeal. A court will then review the decision. The appeal does not have to contain a statement of reasons and the court must generally reach a decision within five days.

The child representative or child advocate represents children and young people before the court and the KESB (Art. 314 a ZGB, Art. 290 ZPO). They accompany them through the proceedings, inform them and ensure that their wishes are taken into account when decisions are made and their situation is assessed. Child representation is ordered in particular when children and young people are not listened to enough. This can be the case in the event of separation or divorce, for example, if children are drawn into the conflict.

Children and young people who are capable of judgement can request child representation themselves.

In the clarification phase, the authority checks whether the person concerned is in need of protection and whether a child and adult protection measure needs to be ordered. To do this, it obtains all the information it needs to make a decision. For example, from the family, the school or the doctor. In any case, it listens to the person concerned. The KESB also clarifies the current situation in detail when it comes to changing or cancelling an existing measure. This can take several weeks. If the authority identifies an urgent need for action, it can order a precautionary or even a super-provisional measure.

An abstract risk may exist before a concrete situation arises. This is the case, for example, if a relative represents a relative as a private deputy and they are also members of a community of heirs. If there is a conflict of interest, the KESB can withdraw the powers of the private deputy in this matter (Art. 403 para. 2 ZGB). This principle also applies analogously to child protection law (Art. 306 Para. 3 ZGB). If parents living apart cannot agree on the medical care of their child and this is urgently needed, the KESB can provide the minor with a deputy or a child advocate. Alternatively, if a member of the authority is related to the person concerned, there is also a conflict of interest and they must step aside.

After the investigation and the hearing, the KESB or the court makes a decision. It sends the written decision, also known as an order, judgment or decision, to the person concerned by registered mail.
This contains a detailed statement of reasons and information on how, where and within what period the person concerned can lodge an appeal against the decision (information on legal remedies). If no appeal is lodged, the decision becomes legally binding and can be enforced.
If the person concerned contests the decision, this appeal procedure may take some time. Therefore, the authority can implement the decision provisionally until the final decision of the court is available (withdrawal of suspensive effect).
In urgent cases, the authority can also decide on a superprovisional measure without first hearing the parties involved in the proceedings. There is no legal remedy against this measure for the time being.

With a deputyship, a person concerned is assigned a specialist who supports them in certain areas of life. The KESB clarifies in advance which tasks a deputy has. This is referred to as "tailoring". Possible areas of responsibility are, for example, housing, finances, health or dealing with the authorities. The authority must also specify whether the advisor merely advises, accompanies or represents the person concerned in their concerns.

There are different types of assistance:

In an accompanying deputyship (Art 393 ZGB, «Begleitbeistandschaft»), the deputy advises and supports the person concerned at a low level. Their apacity to act remains unaffected; they remain responsible for all matters and tasks themselves. The assistance guardianship cannot be ordered against the will of the person concerned.

In a representative deputyship (Art 394/395 ZGB, «Vertretungsbeistandschaft»), the deputy can conclude individual contracts or assume individual tasks on behalf of the person concerned. However, if they oppose the activities of the deputy to their own detriment, their capacity to act may be restricted.

In a participatory deputyship (Art 396 ZGB, «Mitwirkungsbeistandschaft»), the person concerned or the deputy may only make certain decisions with the consent of the other person. This means, for example, that they can only sign tenancy agreements jointly.
Different types of deputyship can be established and combined for different areas of responsibility (Art 397 ZGB). In this way, a measure is created that is adapted to the need for protection and the needs and abilities of the person concerned. This is referred to as a tailored deputyship.

If these measures are not sufficient to protect a person concerned, a general deputyship (Art 398 ZGB, «Umfassende Beistandschaft») can be ordered. This is necessary if someone needs help in all areas of life. The authority must carefully consider the situation, and the deputy is then responsible for all the affairs of the person concerned, even acting against his or her will if necessary. Affected persons can no longer conduct these affairs themselves because they are deprived of their so-called capacity to act. They still retain their most personal rights, which include the freedom to choose your domicile and the right to marry. However, this measure is rarely necessary.

If the person concerned only needs minor support, there are also alternatives to a deputyship. For example, the support services provided by Pro Senectute and Pro Infirmis.

Any person involved in the proceedings may inspect the files at the competent child and adult protection authority. This right is available to the children concerned, their parents, the legal representative assigned to the case as well as persons affected by a child and adult protection measure.

The right to inspect files is regulated by federal law for child and adult protection proceedings (Art. 449b ZGB). Affected parties must submit an application so that they can inspect the files on site, take notes or - at their own expense - make photocopies. Photographs may also be taken with a smartphone. However, stapled or bound bundles of files may not be opened.

If close relatives or third parties can prove that they have a legally protected interest in a decision made by the authorities, they may also be granted the right of inspection in exceptional cases. However, the mere submission of a risk report is not sufficient justification for this.

When an deputy takes on a mandate and has to manage the assets of the person concerned, they first draw up an initial inventory. This provides an overview of income and assets. In future, the adviser can then manage the accounts of the person concerned or carry out other transactions on their behalf. To do this, they must also obtain the relevant bank statements, securities deposits or promissory notes, for example. Finally, the inventory must be approved by the KESB (Art. 416 para. 2 ZGB).

If the person concerned also has to go to an institution, the deputy must clear out the home and make an inventory of valuable items such as coins or furniture. This normally only happens with the consent of the person concerned. However, if they can no longer give their consent themselves, access to the home is only permitted with the authorisation of the KESB (Art. 391 para. 1 ZGB).

Child protection is particularly concerned with the protection of the child's assets. If one parent dies, the other party must submit an inventory of the child's assets to the KESB. Without the authorisation of the authority, they may not, for example, simply use it to finance ongoing maintenance.

If a person can no longer care for themselves as a result of an accident or serious illness and becomes incapable of judgement, they are dependent on outside help. With an advance care directive, they can decide in advance who should represent them in the event of their own incapacity to make judgements. They can appoint someone to represent them in their personal and property care, while another person takes over legal matters.

Personal care includes the protection of the physical and mental well-being of the person concerned. The area of property care, on the other hand, concerns responsibility for assets. This includes covering living expenses and paying bills. Legal affairs, on the other hand, describes representation vis-à-vis authorities and offices. The advance care directive must be confirmed by the KESB as the person becomes incapable of judgement in order to be legally binding.

If the KESB or the deputy behaves unlawfully and someone is harmed as a result, the person concerned is entitled to compensation. However, it is not the member of the authority or the counsellor who is liable, but the state. The claim for compensation is subject to a time limit: It expires three years after the day on which the person concerned becomes aware of the damage or ten years after the damaging act (Art. 60 ZGB).

The KESB orders measures for children or adults if the situation cannot be dealt with in any other way. Child protection measures are taken if the child's welfare is at risk. Adult protection measures, on the other hand, are taken if the person concerned is in need of protection and assistance. For those affected, these measures always mean an encroachment on their rights and duties. They must therefore be proportionate, comply with the law and have been ordered in a correct procedure. The most commonly ordered measure is deputyship. Placements can occur in both child and adult protection. While children are deprived of parental rights of residence, adults are placed in involuntary placement.

Persons, adults, children or adolescents who are affected by a measure taken by the child and adult protection authority (KESB) can be supported by a person of trust before this authority. This person can either encourage them or speak on their behalf by accompanying them to a meeting with the authority or by helping them with written submissions. In the latter case, the person concerned must always sign the petition themselves. The KESB may reject a trusted person if they appear unsuitable. In the case of children, a hearing takes place without the parents or a person of trust being present. An exception to this is the child representative (child advocate) appointed by the KESB, who may accompany the hearing.

A person in care-related hospitalisation has a right to a person of trust who accompanies them during their stay and is granted special rights (Art. 432 ZGB).

If parents share parental responsibility (Art. 296 ff ZGB, «Gemeinsame elterliche Sorge»), they must continue to decide important matters together. This includes, for example, the right to decide where the children should spend most of their time and where they should be cared for (Art. 301a para. 1 ZGB). If one parent wishes to move within Switzerland, they only need the consent of the other if this would restrict parental responsibility and contact with the children. This is the case, for example, with shared custody, also known as alternating custody, but also with visiting rights. If the parent with custody wishes to move abroad, they must have the consent of the other parent. In the event of a dispute, the authorities must decide on this. In the event of an unauthorised and unagreed move abroad, the mother or father may even be liable to prosecution.