What is the KESB?
- The KESB is an authority that makes decisions and orders measures in the area of child and adult protection. The cantons have wide discretionary powers in terms of procedure, supervision, structure and organization. For example, in the canton of Aargau, the KESB is a judicial authority, whereas in the canton of Zurich it is an administrative authority.
- In organizational, personnel and financial terms, the cantonal child and adult protection authorities can hardly be directly compared with each other.
What principles does the KESB follow?
All actions of the KESB – as with all state bodies – must be based on a legal foundation. Conversely, this means that the KESB must not act without limits.
It is difficult to cover every constellation of what the KESB may or may not do. However, there are some important principles that the KESB must adhere to:
- Respect for human rights: The KESB may not take any measures that violate a person’s fundamental human rights, including the right to privacy, freedom and personal autonomy.
- Arbitrary action: The KESB may not make arbitrary decisions or intervene arbitrarily in a person’s life. All decisions must be based on relevant facts and appropriate legal principles, such as the principle of subsidiarity and the principle of proportionality.
- Abuse of its powers: The KESB may not abuse its powers in order to pursue personal goals or to harass individuals.
- Neglect of duties: The KESB has a duty to act in the best interests of the persons concerned. It must therefore not fail to take any measures that are necessary to ensure the welfare of the children or vulnerable adults. At the same time, however, it must find an appropriate solution that least restricts the autonomy of the persons concerned.
- Discrimination: The KESB may not make decisions or take measures based on discrimination due to gender, religion, ethnicity or other personal characteristics.
To make these terms more tangible, two fictional cases are presented below.
Example 1: Arthur is 83 years old and lives alone without relatives. He has various age-related complaints and is becoming increasingly confused due to the onset of dementia, which is why he is finding household tasks and financial matters increasingly difficult. However, Arthur does not want to go into a retirement or nursing home under any circumstances. Due to a fall and an emergency stay in hospital, the hospital’s social services become aware of the situation. The social services department writes to the KESB and requests that an adult protection measure be examined.
In such a case, the KESB will investigate the situation and find a suitable measure for Arthur. As Arthur has no relatives, a guardianship would be the obvious choice in his case. Arthur is still capable of acting and would only receive support in certain areas of personal and property care.
However, it would be an exaggeration to place Arthur under comprehensive guardianship. If Arthur’s situation deteriorates significantly, a new review and, if necessary, a more extensive guardianship will be necessary.
You can find an overview of the different types of guardianship here.
Example 2: The young parents Tamara and Paul are increasingly overwhelmed with the upbringing of their very rebellious 6-year-old daughter Anna. Anna has a very strong will and begins to lash out in tears as soon as this is not complied with. Nevertheless, the parents go to great lengths to provide Anna with a stable home, in particular by showing her affection, cooking healthy meals, looking after her and helping her with her homework. Nevertheless, they want to resolve the incidents within the family and are of the opinion that they do not want any help. Anna’s teacher becomes aware that Anna’s behavior is also causing problems at school and seeks to talk to her parents. They are clearly uncomfortable and embarrassed by the situation, which is why they refuse to talk to her. The teacher makes a risk report to the KESB as she suspects that Anna is being neglected.
In such a case, the KESB will sit down with Anna’s parents and look for a suitable measure. Anna doesn’t really need anything and her child’s welfare is only slightly at risk, if at all, as the parents are only at their educational limits. The KESB can, for example, instruct the parents to seek socio-educational family support without immediately withdrawing parental custody.
If the situation has not changed or has even worsened after a new evaluation, a guardianship could be ordered if necessary. Only if Anna’s child’s welfare is actually at risk due to neglect would a far-reaching and drastic measure such as out-of-home placement be appropriate.
How and by whom are the measures taken implemented?
Apart from a few exceptions, the measures ordered are not carried out by the KESB itself, but often by guardians. The latter are then also the people who regularly carry out assessments, set goals with the person concerned, maintain contact with the person’s environment and consult with the KESB, and submit applications to the KESB. Assistance persons must also adhere to the legal principles and are not free in their actions.
How can you defend yourself?
How you can proceed as the person concerned depends primarily on who made the respective decisions and measures or took the corresponding action.
Any action or omission by the guardian can be appealed to the competent KESB itself. However, if you as the person concerned do not agree with a decision or measure taken by the KESB, you have the right of appeal. The matter will then be reviewed by the competent (cantonal) court. Due to cantonal differences, it is advisable to obtain information from the cantonal authorities. In principle, however, every decision made by the KESB is accompanied by instructions on legal remedies, from which you can obtain the relevant information.