Child protection is an area of family law where the child's interests take precedence over all other considerations, including parental rights. The Swiss Civil Code (SCC) grants the Child and Adult Protection Authority (CAPA) extensive powers to intervene when a child's welfare is threatened and the parents cannot or will not remedy the situation. PBM Avocats represents parents in proceedings before the CAPA, advises them on their rights and obligations, and intervenes before cantonal appellate authorities when protection decisions are challenged.
The Role of the CAPA and the Principles Guiding It
The Child and Adult Protection Authority (CAPA) is an interdisciplinary authority established by the revision of family protection law that came into force in 2013. In child protection matters, it acts in application of arts. 307 to 317 SCC. Its action rests on two fundamental principles: the subsidiarity principle (an authority measure is only justified if family resources are insufficient and less restrictive measures cannot protect the child) and the proportionality principle (the ordered measure must be adapted to the gravity of the threat and as unobtrusive as possible).
The CAPA may act on its own initiative or upon referral by a parent, the child if capable of discernment, social services, the school, paediatricians or the Public Prosecutor's Office. In Geneva, the CAPA corresponds to the Tribunal for the Protection of Adults and Children (TPAE), a judicial body composed of legal professionals and social workers. In the canton of Vaud, the Justices of the Peace exercise this competence, also with an interdisciplinary composition.
Protection Measures: from Curatorship to Placement
The range of protection measures extends from the lightest to the most intrusive. The basic measure is a warning addressed to the parents (art. 307 para. 1 SCC), a simple reminder of their obligations. When more structured support is needed, the CAPA may establish an educational curatorship (art. 308 SCC), appointing a curator tasked with assisting parents in the exercise of parental authority or representing the child in specific matters (medical, educational, judicial). The curatorship is the most frequent measure in practice.
When parents are unable to ensure the child's daily care themselves, the CAPA may withdraw the right to determine the child's place of residence and order placement of the child outside the family home, either in a foster family or an institution (art. 310 SCC). Placement is a serious measure, subject to strict conditions and periodic review. Parents retain parental authority in principle and have the right to maintain personal relations with the child, unless there is a reasoned decision to the contrary.
Withdrawal of Parental Authority
Withdrawal of parental authority is the most extreme measure in child protection law. Art. 311 SCC provides for withdrawal where the parents are persistently unable to properly exercise parental authority for reasons relating to their person (illness, addiction, serious intellectual impairment, long-term imprisonment). Art. 312 SCC provides for automatic withdrawal in two specific cases: where the parents have consented to adoption and where maintaining their parental authority does not serve the child's interests, or where the relationship between parents and child is so tenuous that it has no practical meaning.
Where parental authority is withdrawn, a guardian is appointed to represent the child in all civil law matters and to oversee their upbringing. The CAPA maintains supervision and periodically reviews the measures. Withdrawal is not necessarily permanent: if the circumstances that justified it disappear, restitution of parental authority may be requested. PBM Avocats accompanies parents who wish to challenge a withdrawal or obtain restitution of their parental authority.
Rights of Parents and the Child in the Proceedings
Proceedings before the CAPA are non-contentious administrative proceedings, but they are subject to important procedural guarantees derived from constitutional law (art. 29 Cst.) and the European Convention on Human Rights (art. 8 ECHR). Parents have the right to be heard before any decision, to access the file, to be represented by a lawyer and to appeal against decisions rendered. A child capable of discernment has the same rights; the CAPA may appoint a representative curator to defend the child's interests in the proceedings (art. 299 CPC).
The Convention on the Rights of the Child (CRC), directly applicable in Switzerland, requires the CAPA to take into account the child's best interests in all its decisions (art. 3 CRC) and to give the child the opportunity to express their views on matters that concern them (art. 12 CRC). PBM Avocats ensures these rights are respected in every case, notably by verifying that parents have been properly heard, that evidence has been properly taken and that the ordered measure is proportionate.
Frequently Asked Questions about Child Protection
What is the CAPA and what are its powers?
The Child and Adult Protection Authority (CAPA) is the competent interdisciplinary administrative authority for ordering protection measures when the welfare of a child or adult is threatened and family or personal resources are insufficient to remedy the situation. Its powers include establishing a curatorship (arts. 307-308 SCC), withdrawing the right to determine the child's place of residence (art. 310 SCC), withdrawing parental authority (arts. 311-312 SCC) and placing the child outside the family home in a foster family or institution. The CAPA is organised differently depending on the canton: in Geneva, it is the Tribunal for the Protection of Adults and Children (TPAE); in the canton of Vaud, it is the Justices of the Peace.
In what circumstances can the CAPA withdraw parental authority?
Withdrawal of parental authority is an extreme measure, reserved for situations where the parents are persistently unable to exercise their parental responsibilities and where other less restrictive measures cannot protect the child (arts. 311-312 SCC). Legal grounds include persistent incapacity for personal reasons (serious mental illness, severe addiction), proven maltreatment or abandonment of the child. Art. 312 SCC also provides for automatic withdrawal where the parents have consented to the child's adoption or where the parent-child relationship is practically non-existent. Withdrawal may be total or partial and must be proportionate. The CAPA may order urgent provisional measures if the situation immediately requires it.
What is an educational curatorship and how is it established?
An educational curatorship (art. 308 SCC) is the most common protection measure in child protection matters. It consists of appointing a curator — often a social worker or qualified professional — tasked with supporting and monitoring the exercise of parental authority in specific areas (educational support, financial management of the child's assets, representation in proceedings). It is ordered when parents need support or supervision to ensure the child's wellbeing, without the need for placement. The CAPA may establish it on its own initiative or upon application by a parent, the child themselves if capable of discernment, or the school or social services. Parents retain parental authority.
How can a child placement decision be challenged?
A placement decision may be challenged by the parents holding parental authority, and by the child themselves if capable of discernment. Appeal remedies depend on the cantonal organisation: in Geneva, an appeal may be lodged before the Supervisory Chamber of the Court of Justice within thirty days; in the canton of Vaud, before the Chamber for Curatorships of the Cantonal Court. The procedure before the CAPA is governed by administrative procedure rules. Parties have the right to be heard before any decision and to access the file. Where measures have been taken urgently, a substantive decision must follow as soon as possible. PBM Avocats represents parents in these proceedings and ensures procedural guarantees are respected.
What rights does the Convention on the Rights of the Child guarantee in Switzerland?
The United Nations Convention on the Rights of the Child (CRC), ratified by Switzerland in 1997 and directly applicable in domestic law, guarantees in particular the child's right not to be separated from their parents unless necessary in their best interests (art. 9 CRC), the right to maintain personal relationships with both parents (art. 9 para. 3 CRC), the right to be heard in proceedings that concern them (art. 12 CRC), and the right to protection against all forms of violence, abuse or neglect (art. 19 CRC). These rights complement and reinforce the provisions of the Swiss Civil Code. The UN Committee on the Rights of the Child monitors the application of the convention in Switzerland and has made several recommendations to the Swiss authorities.