5.1 General context
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In a general sense, participation refers to "the voluntary participation by individuals in structuring social relationships and accomplishing shared tasks". In a stricter sense, it is the "participation by the public in shaping political structures and the democratic formation of political will". Since the end of the nineties, public participation has been seen as a "mechanism for unlocking centralised and bureaucratic political and administrative structures". In addition to the structures of representative democracy, there are many forms of participation that give the public a voice, such as participatory budgeting, civic initiatives and citizen councils. (German Association for Public and Private Welfare, 2011).
Since the Eighth Youth Report of the Federal Government, participation has been a widely recognised and guiding principle for the professional practice of child and youth welfare (Deutscher Bundestag 1990, p. 88ff.). The formulations of that time continue to find approval even today: “If the aim of life-oriented youth welfare is to help people to experience them-selves as subjects of their own lives, then participation is one of its constituent elements. [...] Participation is first and foremost a question of legal position; [...] participation is above all a question of co-determination” (Deutscher Bundestag 1990, p. 88).
UN Convention on the Rights of the Child
Germany is a signatory of the UN Convention on the Rights of the Child. It is committed to implementing these rights in national law. The United Nations defines children as all people under the age of 18. Section 12 (1) of the Convention describes young people's right of participation as follows: "States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child." The UN Convention on the Rights of the Child is considered a simple federal law.
National level (Bund)
The Basic Law for the Federal Republic of Germany (Grundgesetz, GG) grants all people – including young people – the right of petition and the right to freedom of expression (Sections 5 and 17). These rights form the basis for their participation in political dialogue. The Child and Youth Services Act (Kinder- und Jugendhilfegesetz) in Book 8 of the Social Code (Sozialgesetzbuch Achtes Buch, SGB VIII) is one of the main pieces of legislation that defines the participation of children and young people in Germany. This national law provides the framework for legislation in the federal states (Länder) in the field of child and youth welfare.
The following sections are particularly relevant:
1. Section 8 (on the involvement of children and young people in decisions that affect them), 2. Section 11 (on youth work and young people's participation in shaping youth work services), 3. Section 12 (on funding for youth organisations and the active involvement of young people in shaping the work of youth organisations), 4. Section 14 (on educational child and youth protection), 5. Section 17 (on counselling for partnership, separation and divorce issues and the involvement of children and young people), 6. Section 36 (on involvement in decisions relating to help with parenting and help with integrat-ing children and young people with psychological disorders) 7. Section 74 (on funding for independent child and youth services), and 8. Section 80 (on child and youth services planning).
Since its inception, Book 8 of the Social Code (SGB VIII) has been reformed several times; most recently, the so-called Child and Youth Strengthening Act (KJSG) came into force in June 2021. A key objective – in the spirit of the aforementioned Eighth Youth Report – was to strengthen the legal position and opportunities for participation of children and young people. On the one hand, a number of new regulations were introduced. Particularly worthy of note are a new, very extensive right to counselling (Section 10a, Book 8 of the Social Code (Sozi-algesetzbuch Achtes Buch, SGB VIII)) and the introduction of independent ombudsman’s offices (Section 9a, Book 8 of the Social Code (SGB VIII). It is also important that youth wel-fare offices should in future cooperate with, encourage and promote organisations of young people and their parents that are permanently self-organised and related to youth welfare (Section 4a, Book 8 of the Social Code (SGB VIII). This opens up the possibility for the rele-vant initiatives and organisations of young people to represent their interests and concerns directly.
On the other hand, the KJSG is a first important step towards inclusive child and youth wel-fare, i.e. child and youth welfare that provides services for all children and adolescents, and thus also for children and adolescents with disabilities. In the context of the law, the afore-mentioned opportunities for participation are to be designed in future in such a way as to ena-ble children and young people with different forms of disability to participate also. The law therefore stipulates that services – and thus participation – should be made possible in a form that is clear, comprehensible and tangible to them and that potential barriers must be removed (Section 8 (4) and Section 9 (4) Book 8 of the Social Code (SGB VIII).
The fact that participation in child and youth welfare is both mainstreamed as a legal standard and understood as a standard for practice can also be seen in other guidelines.The Guidelines for awarding grants and benefits to promote child and youth services under the Federal Child and Youth Plan (Richtlinien über die Gewährung von Zuschüssen und Leistungen zur Förderung der Kinder- und Jugendhilfe durch den Kinder- und Jugendplan des Bundes, KJP) include participation as one of the ten goals of child and youth services. The guidelines say:
Young people have a right of participation. At the same time, democracy and civil society depend on the participation of young people. A core requirement of child and youth services is that they create opportunities for young people to get involved, to actively shape their own lives, to influence the initiatives offered by child and youth services organisations and, where necessary, to express their dissatisfaction. For these requirements to be met, child and youth organisations must provide and develop participation-friendly structures and processes that invite young people to confidently and effectively represent the issues that matter to them. Creating opportunities for participation also means giving young people the encouragement and skills to get actively involved and represent their interests. Taking responsibility and developing the necessary self-confidence to do so are skills that young people have to learn and experience first-hand. It is thus a task of child and youth services to provide age-appropriate opportunities that support this goal and develop or expand these opportunities as necessary. (Federal Ministry for Family Affairs, Senior Citizens, Women and Youth [Bundesministerium für Familie, Senioren, Frauen und Jugend, BMFSFJ] 2016, page 811).
Section 1 (6) of the Federal Building Code (Baugesetzbuch, BauGB) says that urban planning processes must pay special attention to the social and cultural needs of young people. It also requires urban planning departments to inform the public about all plans at the earliest possible stage. Section 3 sets out the public's right to information and the right to freedom of expression regarding the plans presented. The Code does not define who constitutes "the public" but does specifically include children and young people as belonging to this group.
Other laws on the participation of young people are covered in part in:
- Section 60 of the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG), saying that companies that employ young people under 18 years of age or apprentices under 25 years of age must elect youth and apprentice representatives.
- Section 1626 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), saying that parents must involve children and young people in issues of parental custody and consider their wishes and interests.
Federal state level (Länder)
The laws on the participation of children and young people vary widely across the federal states. Some state constitutions now include basic rights for children and young people as standard. If necessary, these can be used as the basis for rights of participation. Frame curricula and syllabuses or the school acts in the states (Schulgesetze) include as standard the requirement of schools to ensure pupils get actively involved in shaping their school environment.
The state-level implementing laws on Book 8 of the Social Code (Sozialgesetzbuch Achtes Buch, SGB VIII) also standardise some participation rights that go above and beyond the requirements of the Child and Youth Services Act (Kinder- und Jugendhilfegesetz).
- Section 12 of the Act on Child and Youth Services for Baden-Württemberg (Kinder- und Jugendhilfegesetz für Baden-Württemberg, LKJHG) requires child and youth services to help young people realise their right of self-determination and right to participate in all decisions that affect them. Child and youth services must enable children and young people to participate in all plans and decisions that affect them.
- In Berlin, the Act for the Implementation of the Child and Youth Services Act (Gesetz zur Ausführung des Kinder- und Jugendhilfegesetzes, AG KJHG) attaches great importance to the participation of children and young people. Section 5 says: Children and young people must be able to participate in line with their level of development in all decisions and initiatives of the child and youth authorities that directly affect them. The child and youth authorities must inform children and young people of such steps appropriately and as comprehensively as possible. The authorities must talk to children and young people in person. The Act also requires the authorities to give children and young people opportunities to influence the work of child and youth services organisations. Each district authority must develop and provide the organisational framework for suitable forms of participation in youth services planning and other planning matters that affect children and young people. The student district council (Bezirksschülerausschuss) must be involved in the participation.
- Section 17a of the 1st Act for the Implementation of the Social Code, Book VIII – Child and Youth Services for Brandenburg (Erstes Gesetz zur Ausführung des Achten Buchs Sozialgesetzbuch – Kinder- und Jugendhilfe, [AGKJHG] für Brandenburg) says: Children and young people must be given appropriate opportunities, in line with their level of development, to participate in important decisions and measures that affect them. Organisations providing child and youth services must ensure young people have opportunities to participate through representatives.
- Section 9 of the Hamburg Act for the Implementation of Social Code, Book VIII – Child and Youth Services (Hamburgisches Gesetz zur Ausführung des Achten Buchs Sozialgesetzbuch – Kinder- und Jugendhilfe, AG SGB VIII) says: Young people and other individuals affected by specific policy decisions must be given suitable opportunities to participate in discussions of the youth service committees (Jugendhilfeausschüsse).
- The State Constitution of Hesse (Landesverfassung Hessen, HV) added children's rights in 2018. It explicitly includes rights of participation. Section 4 says: The will of the child must be taken into consideration accordingly in all matters that affect the child in line with its age and maturity and in accordance with the applicable rules of procedure. Section 2 of the Hessian Child and Youth Services Act (Hessisches Kinder- und Jugendhilfegesetzbuch, HKJGB) says: Young people and their families must be given suitable opportunities to participate in youth services planning and other local and supra-regional planning matters.
- Section 6 of the 3rd Act for the Implementation of the Child and Youth Services Act – North Rhine-Westphalia act on child and youth welfare (Ausführungsgesetz zum Kinder- und Jugendhilfegesetz – Kinder- und Jugendfördergesetz NRW, 3. AG-KJHG – KJFöG NRW) includes rules on the participation of children and young people that go beyond the core activities of child and youth services, saying: Children and young people must be given appropriate opportunities to participate in all planning matters, policy decisions and measures that affect them, especially in areas relating to their living environment, traffic planning, the age-appropriate installation and maintenance of recreational areas, and the design of public buildings.
- Section 4 of the Act for the Implementation of the Child and Youth Services Act (Gesetz zur Ausführung des Kinder- und Jugendhilfegesetzes, JuFöG) in Schleswig-Holstein says: Children and young people must be able to participate, in line with their level of development, in all policy decisions and measures by the public bodies responsible for youth work and youth welfare services that directly affect them. The public bodies must inform children and young people of such steps appropriately and as comprehensively as possible. The bodies must talk to children and young people in person.
Some federal states (Länder) include child and youth participation at a local level in their municipal codes, district regulations, or district administration acts. Not all are legal requirements: some are recommendations or advisory guidelines and are found either in the municipal codes or, in some cases, in the acts on child and youth services. Below is an overview of the different local rules:
Required for young people/recommended for children
Advised/required (municipality of Bremerhaven)
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