As stated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth." The 1989 UN Convention on the Rights of the Child likewise obliges states to care for children and to create the conditions necessary for their harmonious development. That same document places on parents the primary responsibility not only for ensuring the conditions the child needs to develop, but also for the child's safety.
In Germany, for example, the law requires parents to care for their children until they reach the age of majority. In particular, parents must provide for their children financially, protect them, and, where necessary, represent their interests in court. Parents are not permitted to insult their children or use force against them; doing so carries the risk of criminal liability. German law prohibits leaving children under 16 unsupervised. Parents who violate this rule can be fined, even if they were away for only 10 to 15 minutes.
For many of our compatriots, this approach to raising children is unfamiliar — most of us grew up largely "on the street." There were, of course, kindergartens, schools, and various clubs. But there was certainly no minute-by-minute supervision. Yet, as the saying goes, you don't go to another country's monastery with your own rulebook — if you live in Germany, you need to follow its laws.
Our client — let's call her Zoya — has three children, two of whom are already adults with their own homes. Zoya herself lives with her eight-year-old son. In addition, she looks after her elderly mother, who lives right there in Berlin, in the same building entrance as her daughter. One of Zoya's daughters also lives nearby, in the neighboring entrance. It should be noted that Zoya's mother has a heart condition, diabetes, and several other chronic conditions commonly referred to as "age-related." She has to take medication constantly, but, given her age and frail health, she tends to forget to do so. Zoya therefore keeps a constant eye on whether her mother takes the medication she needs.
One day Zoya was visiting her daughter in the neighboring entrance, together with her eight-year-old son. Mother and daughter were drinking tea in the kitchen, while the boy watched television in the other room and... fell asleep. Suddenly the phone rang. Zoya's daughter picked up and heard her grandmother's very weak voice. Her grandmother said she felt terrible, could not breathe, and was... dying. Both women were terrified, and Zoya sent her daughter to her mother's apartment while she herself tried to wake her son. But the boy would not wake up. A few minutes later, her daughter called back and, in a very frightened voice, said their grandmother was in a very bad state and that she did not know which medication to give her — there were so many. Zoya tried once more to wake her son, again without success. At that point, she decided to leave her son in the apartment and lock the door. She quickly checked the windows, locked the door, and ran to her mother's apartment. The old woman was in very bad shape. Zoya gave her an injection, administered medication, and put her to bed — in other words, she gave her mother the necessary help. All of this took about 20 to 25 minutes. Zoya then decided to call her daughter's apartment, where her sleeping son had stayed. Truth be told, she was certain the boy was asleep and that the phone would not wake him — and if he had woken up, she would calm him down and come get him. Zoya dialed her daughter's home number, and... someone answered. But it was not her son's voice that answered — it was the voice of an adult man. He identified himself as a police officer. Leaving her daughter with her mother, Zoya ran to her daughter's apartment, terrified that she herself might now suffer a heart attack.
What exactly had happened during those 20 minutes the woman had left her eight-year-old alone? Nothing much, as it turned out — hearing the door click shut, he finally woke up, got up, and went through the apartment. Finding no one there, he got scared and could think of nothing better to do than open the window and start calling for help. We probably need not dwell on why he did exactly this — he simply did. He shouted so loudly that he attracted the attention of passers-by, who called the police. The police arrived fairly quickly, established that the child was alone in the apartment and did not know where the adults were, and entered the apartment. At that moment, the phone rang — it was the call from the child's mother.
Once she got there, Zoya could not calm down for a long time, unable to understand how — and above all why — the police had ended up in her daughter's apartment, whose door she had personally locked. Eventually everyone calmed down, the police left, and Zoya and her son went home.
Everyone calmed down, but that was not the end of the story. Criminal proceedings were opened against Zoya, and she was charged under § 171 of the German Criminal Code (Strafgesetzbuch) — breach of the duty of care and upbringing. It should be noted that this provision of the German Criminal Code is worded quite strictly: "Whoever grossly violates their duty of care or upbringing toward a person under sixteen years of age, thereby creating the risk that the person's physical or psychological development will be harmed, or that the person will be led into a criminal lifestyle or into prostitution, shall be liable to imprisonment for up to three years or to a fine." In other words, Zoya was accused of having breached her duty of care toward her child by leaving him alone in someone else's apartment, which, with a vivid enough imagination, could have led to very serious consequences. She was called in by the police for questioning, and she went, gave her statement, apologized, expressed remorse — in short, made clear that she acknowledged her guilt and deeply, deeply regretted it. Still, the uncertainty weighed heavily on her — she was terrified that her child might be taken from her and placed in a home, and that she herself might be imprisoned, especially since she still had her elderly, ailing mother to care for. And so Zoya came to see a lawyer.
Important: Custody and Contact Rights
Criminal proceedings were opened against Zoya, and she was charged under § 171 of the German Criminal Code (StGB) — breach of the duty of care and upbringing.
As is customary in criminal proceedings, after speaking with the client the lawyer applied to the prosecutor's office for access to the case file. The file was provided quickly. On reviewing the documents, the lawyer found that the prosecutor's office intended to close the case against our client under § 153a of the German Code of Criminal Procedure, on grounds of minor significance. Under this outcome, she would be found guilty and would have to pay a 400-euro fine to a charitable organization. Neither the client nor her lawyer was satisfied with this outcome. The lawyer proposed sending the prosecutor's office an objection demanding that the case be closed on the grounds that the mother's actions did not constitute a criminal offense at all. The client agreed.
The lawyer drafted and sent the prosecutor's office an objection stating that, at the moment in question, the client had been deeply distressed about her mother's condition, since her mother was asking for her help at that very moment. Failing to provide that help could have led to very serious consequences. The lawyer relied on § 35 of the German Criminal Code, which provides that a person who commits an unlawful act in order to avert an imminent danger to life, limb, or freedom threatening themselves, a relative, or another person close to them acts without guilt. If the person misjudged the circumstances that would have excluded their guilt while committing the act, they are only punishable if they could have avoided that mistake. In this situation, the woman's act — technically unlawful in the eyes of the law — was committed solely because she was obliged to avert the immediate danger to her mother's life and health. She had accordingly acted without guilt.
The prosecutor's office accepted the lawyer's arguments, and the case against Zoya was closed under § 170 of the German Code of Criminal Procedure — absence of a criminal offense.
Every person, fairly often in life, finds themselves in situations where they must choose the lesser of two evils. But such a choice does not always go unpunished. Only a lawyer well versed in criminal law can help you avoid such a punishment.
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