Guardianship of Minors
by Anne Röthel
1. History; terminology
The term guardianship refers to a legal status under which a person (guardian) has been attributed powers over an individual (ward) who is not in a position to protect his or her personal and financial affairs without imperilling his or her own interests. A guardian takes care of a ward’s interests and enables him to participate in legal and commercial relations. Providing guardianship for persons in need constitutes an essential task of modern welfare states.
The concept of guardianship was already common in Roman law, which distinguished between guardianship of minors (tutela impuberum), guardianship of women (tutela mulierum) and tutelage (cura) for the mentally ill and for incapacitated dissipaters. At a later stage, Roman law also recognized guardians who were not themselves family members but had only been appointed by the paterfamilias (tutor testamentarius).
Anglo-Saxon legal systems had early on put guardianship under state control, establishing the so-called wardship jurisdiction. Traditionally, this institution referred only to the management of the ward’s property and was legally separate from the protection of the person (custody). This differentiation was only abolished by the British Guardianship of Infants Act 1925. The traditional Germanic institute of guardianship on the other hand was not subject to state control but depended upon the authority of a family patriarch (munt) whose arrangements were only overseen by the clan. However, in late medieval times, a concept of private appointments under state supervision and control was also set up in continental legal systems.
The concept of guardianship, which nowadays has a rough equivalent in every European legal system, has fundamentally changed over the course of time. The most evident alteration in this regard is probably the dissociation of guardianship of adults from guardianship of minors: most legal systems have established particular legislation for the protection of adults which in all instances attaches more importance to the autonomy of an adult who is unable to take care of himself.
Guardianship of minors defines the position of a non-parent towards a minor whose parents are either deceased or unable to look after their child. English and Welsh law accordingly distinguish between guardianship and special guardianship: guardianship was established by the Children Act 1989 for children whose parents are deceased, while special guardianship orders were introduced by the Adoption and Children Act 2002 to take into account the interests of minors who do not wish to effect the complete legal break with their birth family generally entailed by adoption. The effect of a special guardianship order is that while the order remains in force, a special guardian appointed by the order has full parental responsibility for the child to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).
The different concepts of guardianship of minors need to be distinguished from situational care (curatela) (see eg Pflegschaft, §§ 1909 ff of the German Bürgerliches Gesetzbuch (BGB); or French curatelle, Arts 508 ff of the Code civil).
2. Tendencies of legal development
Guardianship of minors concerns fundamental issues of personality and private autonomy as well as relations between the individual, the family and the state. Therefore, it is not surprising to note that the institution of guardianship of minors has been modified over time. Two major tendencies may be identified as part of this development: (i) a shift from self-interested control to altruistic assistance; and (ii) a transfer of responsibility from the (larger) family towards the state. Organization and control of guardianship of minors are nowadays largely dealt with by public authorities as an essential part of the public welfare system. As a consequence, family councils and private guardians have become less important. In Germany, the former institute of the Familienrat (§§ 1875-1881 BGB old version) was abolished in 1979 whereas the French conseil de famille (Arts 407 ff Code civil) has changed from a form of private guardianship to an organ of consultation for decisions to be made with regard to people at the end of their lives.
Even if some continental legal systems still adhere to the concept of private guardianship, as a matter of practical reality guardianship of minors is in most cases now exercised and organized by local authorities such as youth welfare offices.
3. Uniform law
There is so far no uniform substantive law pertaining to guardianship of minors. However, regulations in respect of general private international law and procedure may of course be applied.
According to the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (CPC), the authorities of the contracting state in which the child habitually resides have jurisdiction to take measures directed at the protection of the child’s person or property (Art 5(1) CPC) and are supposed to apply the lex fori (Art 15(1) CPC), as long as the protection of the person or the property of the child does not require an exception to be made (Art 15(2) CPC).
To date, no uniform conflict rules exist on a European level, but Brussels IIbis (Council Reg 2201/2203 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Reg 1347/2000—in force since 1 March 2005) contains a priority-ranking regulation of jurisdiction and of recognition and enforcement of decisions pertaining to guardianship of minors. Unlike the preceding regulation, it also covers all of the questions considering ‘parental responsibility’ (Art 1 (2)(b)), irrespective of any relation to matrimonial matters. In this context ‘parental responsibility’ is to be understood in a broad sense and does not only refer to the exercise of custody by the parents themselves, but also by third parties acting by way of guardianship (comp Art 1 (2)(c) and Art 2 Nos 7–10).
The regulation lacks an autonomous definition of what it means to become an adult, or at least a regulation concerning conflicts between the majority age regulations of the law in the state of habitual residence as opposed to the national law: it is predominantly considered that following Art 2 CPC, the uniform majority age is to be 18 years. However, according to a minority opinion the majority age should depend on the law of personal status.
The Brussels II Regulation (Reg 1347/2000), Brussels IIbis and CPC enforce the principle of habitual residence: in each case the applicable law is the one of the state of the habitual residence of the child at the time of application. Within its substantive scope, the regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility has priority over the convention concerning the powers of authorities and the law applicable in respect of the protection of infants (Art 60(a) Brussels IIbis). It also precedes the CPC when the place of habitual residence is a Member State (Art 61 lit a Brussels IIbis). The CPC remains relevant in fields not regulated by Brussels IIbis as to the determination of the applicable law.
4. Future developments
There are currently no noticeable attempts to harmonize the substantive law relating to guardianship of minors in Europe. It seems legitimate to suggest that this reserved attitude towards harmonization is related to the constitutional dimensions of guardianship as a legal institution: it expresses national ideas of what to expect from public control and the welfare system. The latter may also be assumed to be the reason why the law of guardianship has only been of marginal interest and importance in comparative law. In the long run this might change as a result of the works of the Commission on European Family Law (CEFL) (see for more information: <www2. law.uu.nl/priv/cefl>). However, the Principles of European Family Law Regarding Parental Responsibilities, published in 2008, only refer to the exercise of parental care by the parents themselves. Taking account of recent developments in the field of guardianship of adults, the legal framework seems to be moving towards attaching greater importance to the wishes of the minor and towards creating a system of authoritative control that simultaneously shows greater respect for the interests of the parents.
As concerns conflict rules, the increasing influence of EU primary law must be taken into account. The European Court of Justice (ECJ) rulings in Garcia Avello (ECJ Case C-148/02  ECR I-11613) and Standesamt Niebüll (ECJ Case C-96/04  ECR I-3561) indicate that an obligation of recognition may be deduced from the fundamental freedoms (general principles). It already seems to be generally acknowledged that the principle of habitual residence will gain increasing importance over the principle of nationality. This general trend is obviously proving influential in the uniform law considering guardianship of minors. National laws should adapt to this development not only for the purpose of embracing the relevance of public law for guardianship issues, but also for the purpose of better meeting the practical needs of modern society.
Dieter Schwab and Dieter Henrich (eds), Entwicklungen des europäischen Kindschaftsrechts (2nd edn, 1996); Kurt Siehr, ‘Die Rechtslage der Minderjährigen im internationalen Recht und die Entwicklung in diesem Bereich’  Zeitschrift für das gesamte Familienrecht 1047; Paul Lagarde, ‘La nouvelle convention de La Haye sur la protection des mineurs’ (1997) 86 Rev crit dr int priv 217; Peter Landau, ‘Die Vormundschaft als Prinzip des deutschen Privatrechts und der Staatstheorie im 19. Jahrhundert’ in Festschrift Kroeschell (1997) 577; Sarah Abramowicz, ‘English Child Custody Law 1660–1839: The Origins of Judicial Intervention in Parental Custody’ (1999) 99 Columbia LR 1344; Katharina Boele-Woelki (ed), Perspectives for the Unification and Harmonisation of Family Law in Europe (2003); Maud Zitelmann, Katja Schweppe and Gisela Zenz, Vormundschaft und Kindeswohl (2004); Masha Antokolskaia, Harmonisation of Family Law in Europe: A Historical Perspective (2006); Johan Meeusen, Marta Pertegás, Gert Straetmans and Frederik Swennen (eds), International Family Law for the European Union (2007); Katharina Boele-Woelki and others, Principles of European Family Law Regarding Parental Responsibilities (2008).