Yes, this Convention came into force on 1 January 2011 in Germany.

1.1 Which law applies to questions of custody and legal representation of a minor? What criteria are used to determine the applicable law?

The applicable law is primarily determined by the Hague Convention on the Protection of Children of 19 October 1996, subject to the primacy of international treaties.
Under Art. 15 of the Hague Convention on the Protection of Children, the law in the place of the competent court applies insofar as the matter relates to legal safeguards and under Art. 16(1), 17 the right of the law of the state of habitual residence applies as regards the attribution, exercise or forfeiture of parental responsibility by operation of law. A renvoi (referral) is excluded.
Where the Hague Convention does not specify the applicable law, under German Conflict of Laws Regulations, Art. 21 of the Introductory Act to the German Civil Code (EGBGB) is decisive [http://www.gesetze-im-internet.de/englisch_bgbeg/englisch_bgbeg.html#p0114]. This Act refers to the law of the State of the habitual residence of the child.
The primacy of the German-Iranian Settlement Agreement of 17 February 1929 must be noted (Imperial Law Gazette 1930 II 1002, 1006; 1931 II 9; Federal Law Gazette 1955 II 829), which applies however only if all parties concerned (mother, child, mother’s husband) are exclusively Iranian nationals.

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

International jurisdiction is governed by the Brussels II Regulation (EC 2201/2003) if the child has its habitual residence in a Member State (Art. 61). Pursuant to the regulation, the court of the Member State where the child is habitually resident has jurisdiction at the time the court is seized (Art. 8).
Should the Brussels Regulation be ineffective, international jurisdiction is governed by the Hague Convention on the Protection of Children of 19 October 1996, specifying that the court of the habitual residence of the child has jurisdiction (Art. 5). Section 99 of the Act on Court Procedure in Family Matters and Non-litigious Matters (FamFG) [ http://www.gesetze-im-internet.de/englisch_famfg/englisch_famfg.html#p0505]  is applicable on a subsidiary basis only. The Act establishes the international jurisdiction of the German courts if the child is German or if he or she is habitually resident in Germany.

In Germany, the family court division of the District Court (Amtsgericht) of the place of habitual residence of the child is generally competent (Section 152 FamFG)[http://www.gesetze-im-internet.de/englisch_famfg/englisch_famfg.html#p0789].

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

From a German perspective, no distinction is made in international private law between custody and right of representation, therefore the above applies.

The age of full legal capacity under German law is 18.

Up until the age of 18, a basic distinction is made between two stages. From birth to the age of seven, the child lacks legal capacity and cannot enter into legal transactions.

From seven to 18, the child has limited legal capacity (Sections 106 et seq. of the German Civil Code – BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0315]. During this phase, minors may effectively enter into legal transactions, provided that certain conditions are met. This is the case for example where the consent of the legal representative has been obtained, where the legal transaction causes only a legal benefit (e.g. a gift) to the person with limited legal capacity, (i.e. there is no economic consideration), or where legal capacity is legally neutral for minors (e.g. acting as representative).

2.1 Is it possible for the legal capacity of a minor to be extended in some cases (e.g. right to get married, right to make last will)?

Yes.

2.1.1 Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?

Minors may, with the consent of their legal representative and the family court, operate a trade or business independently, in which case they have unlimited capacity to enter into such transactions as the business operations entail (Section 112 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0330].

Minors may also, with the consent of their legal representative, enter service or employment, in which case they have unlimited capacity to enter into such transactions as this legal relationship entails (Section 113 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0333].

The marriage of a minor (see below under 2.1.2.) does not lead to his or her legal capacity; the principle “marriage entails emancipation” is alien to German law.

2.1.2 List the transactions that the minor may enter into alone (e.g. the right to make a last will) with reference whether approval of some other person or authority is necessary for such transactions.

Minors may make a will once they reach the age of 16 without the consent of their legal representative or the court (Section 2229 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p7432]. The will must be drawn up by a notary (Section 2233 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p7444] to ensure that the minor is given legal advice and explanations.

Once they have reached the age of 16, minors may, with the consent of the family court, marry a person who is already of full legal age (Section 1303 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p4746]. This exception does not apply to same-sex partnerships, where both partners are required to be of full legal age.

In principle, both parents have custody, provided that they are married to each other (Section 1626(1) BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5700].

Where the parents are not married to each other, joint custody is established if they make a declaration that they wish to share custody (Section 1626a BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5704]. Alternatively, joint parental custody may be transferred by the court upon application by a parent. This application will be granted if joint parental custody is not inconsistent with the best interests of the child.

Where joint custody is not established, the mother has sole custody (Section 1626(3) BGB).

Where the parents live apart on a permanent basis despite having joint custody, the parent with whom the child customarily resides has the authority to decide alone in matters of everyday life; for matters the arrangement of which is of substantial significance for the child their mutual agreement is necessary (Section 1687 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5874]. Alternatively, if the parents live apart, each parent may apply for the parental custody to be transferred to him or her alone. This application will be granted only under certain conditions (Section 1671 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5821].

The family court may make rulings on custody at any time, particularly if the well-being or property of the child is at risk.

Where the parents had joint custody and one of them is hit by general incapacity, the other parent will in principle then have sole custody.

Where only one of the parents had custody and this parent is hit by general incapacity, the court will, in principle, transfer custody to the other parent, as long as this transfer is in the best interests of the child (Section 1680(2) BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5848]. If the transfer of custody to the remaining parent is not in the best interests of the child, the court shall appoint a guardian.

Where both parents die or lose custody, the court shall appoint a guardian.

3.1 What is the scope of the right of custody?

e.g. care for the property of the child, care for the person of the child

Custody is defined broadly and includes both care of the property and of the person of the child. Care for the person of the child includes the duty and the right to care for, bring up and supervise the child and to specify his or her abode (Section 1631(1) BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5741]. It also includes the right to require surrender of the child from any person who is unlawfully withholding him or her from the parents or from one parent, and the right to determine contact for the child, even with effect for and against third parties (Section 1632 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5754].

A testator or donor may stipulate in making the bequest or donation that the parents are not to manage the property bequeathed or donated to the child (Section 1638 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5762]. In this case, care for the property of the child does not extend to this property.

Parental custody also does not extend to matters regarding the child for which a curator has been appointed (Section 1630(1) BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5737].

The family court may make rulings on custody at any time, particularly if the well-being or property of the child is at risk.

Regarding restrictions with regard to the entitlement of parents to represent their child in legal matters, see below under 4.2.

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

3.2.1 On who’s proposal and when the decision on appointment of custody is made?

3.2.2 Is the competent authority free in its choice of a new custodian?

3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

Where only one parent was entitled to custody and where this entitlement ceases to apply, custody will in principle be transferred to the other parent by the court, where this is in the best interests of the child (Section 1680(2), BGB).
Where custody cannot be transferred to the surviving parent, the court shall officially appoint a guardian.

Where both parents die or cease to have custody, the court shall appoint a guardian. As a general rule, the person appointed as guardian shall preferably be the person nominated by the parent who dies later. Where no such person has been nominated, the court shall take account of the criteria set out in law (Sections 1779 et seq. BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p6093] to select a suitable guardian. In principle, only one guardian should be appointed, unless a married couple is jointly appointed as guardian.

In principle, a guardian has care of the property and of the person of the child and must represent him or her accordingly. A guardian is subject to specific legal approval (e.g. Sections 1821, 1822 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p6244], may not enter into certain transactions (e.g. highly personal legal transactions or donations under Section 1804 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p6191] and is excluded from power of agency in certain areas (e.g. Sections 1795 [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p6160], 181 BGB [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0526]).
In general a supervisory guardian is appointed whose duty is to ensure that the guardian dutifully fulfils his or her guardianship mandate.

3.3 How and by whom will the right of cutody be determined if the parents are arguing about it? Is there a difference between married and unmarried couples?

Disputes over parental custody – whether between married or unmarried parents – are decided upon by the family court division of the District Court (Amtsgericht).

3.4 May the right of custody be transferred to another person by means of a power of attorney?

No

German law does not provide for transfer of custody by power of attorney. Custody is not only a right, but a strictly personal duty of the parents that they cannot evade (Section 1626(1), BGB). However, in certain cases, the parents may transfer custody in relation to care for the person of the child. This transfer is revocable.

Parental custody includes the legal power of representation. Therefore, in the case of joint custody, parents also in principle have joint powers of representation. Where custody is held by only one parent, the parent has sole rights to represent the child.

Irrespective of the joint power of representation, each parent is authorised to solely receive declarations given in respect of minors (Section 1629(1) sentence 2, sub-clause 2 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5727] and may represent the child alone in the case of imminent danger (Section 1629(1) sentence 4 BGB).

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?

4.1.1 On who’s proposal and when the decision on appointment of a legal representative is made?

4.1.2 Is the competent authority free in its choice of a new legal representative

4.1.3 Can the right of legal representation belong to several persons? Is it possible to have different representatives for different areas?

Power of agency is in principle included in custody. The comments under 3.2 therefore apply accordingly.

4.2 Are there any restrictions / extensions for the legal representative(s)?

Yes, Germand law provides for a range of exceptions.

4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?

The legal representatives (parents) may not enter into any highly personal legal transaction (such as marriage or registered civil partnership, drafting a will or concluding a contract of inheritance) on behalf of a minor. They also may not in principle make any donations as representatives (Section 1641 BGB).

4.2.2 Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible for both parents to have custody but for only one to have the right of representation in transactions with some property of a minor?

Parental custody includes the legal power of representation. Therefore, in the case of joint custody, parents also in principle have joint powers of representation. Where custody is held by only one parent, the parent has sole rights to represent the child (Section 1629(1) BGB).

Irrespective of the joint power of representation, each parent is authorised to solely receive declarations given in respect of minors and may represent the child alone in the case of imminent danger.

Where the parents live apart on a permanent basis despite having joint custody, the parent with whom the child customarily resides has the authority to decide alone in matters of everyday life and may therefore represent the child alone for daily needs; for matters where the arrangement is of substantial significance for the child, their mutual agreement is necessary (Section 1687 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5874]: they must represent the child together.

The family court may make rulings on custody at any time and with effects on the power of agency, particularly if the well-being or property of the child is at risk.

4.2.3 Is it required that all legal representatives conclude transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?

4.2.3.1 Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).
4.2.3.2 Name the legal transactions (e.g. waiver of succession) into which the legal representatives may enter on behalf of the minor only jointly (e.g. both parents).
4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married?

In principle, both parents must act together for all legal transactions insofar as they both have power of agency. However, it is possible for just one parent to act, if the other has authorised him or her to represent the child alone. This authorisation may in general be oral or implied.

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction to be approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?

For specific legal transactions the parents require family court approval.

Family court approval is issued only on application. The family court division of the District Court (Amtsgericht) of the place of habitual residence of the child is competent (Section 152 FamFG) [http://www.gesetze-im-internet.de/englisch_famfg/englisch_famfg.html#p0789]..

4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.

Family court approval is required in matters relating to care of the property of the child, in particular (see Section 1643 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5779]:

• the disposition of a plot of land or of a right in a plot of land (excluding mortgages, land charges and annuity land charges);
• the disposition of a claim that is directed to the transfer of the ownership of a plot of land or to the creation or transfer of a right in a plot of land or to the release of a plot of land from such a right;
• the disposition of a registered ship or ship under construction or of a claim that is directed to the transfer of the ownership of a registered ship or ship under construction;
• the assumption of a duty to make one of the dispositions as set out above;
• a contract which is directed at the non-gratuitous acquisition of a plot of land, a registered ship or ship under construction or a right in a plot of land;
• a legal transaction whereby the child is obliged to make a disposition of his property as a whole or of an inheritance that has accrued to him or of his future share of the inheritance on intestacy or of his future compulsory portion, and a disposition of the share of the child in an inheritance;
• a contract which is directed to the non-gratuitous acquisition or the disposal of a trade or business and for a shareholders’ or partnership agreement that is entered into to operate a trade or business;
• a lease or usufructuary lease or another contract which obliges the child to make periodical payments, if the contractual relationship is to continue for more than one year after the child reaches the age of majority;
• taking out a loan against the credit of the child;
• issuing a bearer bond or the assumption of an obligation under a bill of exchange or another instrument that may be transferred by endorsement;
• the assumption of the liability of a third party, in particular for the assumption of a guarantee;
• the granting of a full commercial power of attorney;
• the disclaiming of an inheritance or a legacy and to waive a compulsory portion; Where the devolution on the child occurs only as the result of the disclaimer of a parent who represents the child alone or jointly with the other parent, the approval is necessary only if the parent was entitled together with the child.

In addition, provisions relating to care for the person of the child may require approval by the family court (e.g. accommodation for the child that is associated with deprivation of liberty, Section 1631b BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5747].

4.2.4.3 In case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law is denied?

Family court approval may be issued prior to the conclusion of the legal transaction. However, it is generally obtained after the fact. In principle, it must only be obtained in advance in the case of unilateral legal transactions. A legal transaction entered into without the required approval is provisionally ineffective and wholly ineffective after approval is refused. The contracting party may ask the parents or guardian whether family court approval has been issued, in which case, approval must be issued within a period of four weeks after receipt of the request; where this is not the case, approval is deemed to have been refused (Section1829 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p6279]..

4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)?

In specific cases, parents are excluded from the power of representation. The father or mother may not represent the child in the following cases (Section 1629(2) sentence 1 [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5727], in conjunction with Section 1795 BGB [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p6160]):

• in a legal transaction between his spouse, his civil partner or one of his lineal relatives on the one hand and the child on the other hand, unless the legal transaction consists solely in the performance of an obligation;
• in a legal transaction the subject of which is the transfer or encumbrance of a claim of the child against the parent secured by pledge, mortgage, ship mortgage or suretyship or the cancellation or reduction of this security or which creates an obligation of the child to effect such a transfer, encumbrance, cancellation or reduction;

• in a legal dispute between the persons designated in no. 1 and in a legal dispute on a matter of the kind designated in no. 2; and

• unless otherwise permitted, in a legal transaction in the name of the child with himself or herself in his or her own name or as an agent of a third party, unless the legal transaction consists solely in the performance of an obligation (Section 181 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0526].

In these cases, the parents must notify the need for curatorship to the family court, which will appoint a supplementary curator (Section 1909 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p6539]. The supplementary curator safeguards the interests of the child and represents him or her accordingly.

The appointment of a supplementary curator does not replace family court approval in cases where approval is required (see above under 4.2.4.2.).

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons who have the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

A testator or donor may stipulate in making the bequest or donation that the parents are not to manage the property bequeathed or donated (Section 1638 BGB) [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5762]. In this case, care for the property of the child and therefore power of representation does not extend to this property.

4.4 May the right of representation be transferred to another person by means of a power of attorney?

4.4.1 Is the consent of all legal representatives to the transfer mandatory?

4.4.2 Are there any restrictions to this type of power of attorney (e.g. the right of representation may not be transferred in its entirety or is cannot be transferred in regard to certain transactions)?

4.4.3 What are the formal requirements for this type of power of attorney?

The legal representative may authorise other persons (e.g. they can issue power of attorney to a solicitor). Where both parents jointly represent the child, both must authorise the third party. General power of attorney is also permissible in principle, provided that it is revocable.
There are in principle no specific formalities, but power of attorney must meet specific formal requirements depending on the legal transaction to be concluded.
The same restrictions apply to the authorised representative as to the legal representatives.

5.1 Does the law provide some kind of document, that gives evidence of the right of custody and/or representation?

There is no such document for the legal representatives (parents).
The legally appointed guardian obtains a certificate of appointment appropriate to prove his or her powers, provides but no substantive effects or assurance of good faith.

5.2 Is there any other kind of document, that proves the right of custody and/or representation?

The birth certificate can provide evidence of who the child’s parents are. The birth certificate does not however, confer custody or power of representation and therefore is not used in practice.

6.1 What are the requirements for the formal validity of such a consent/permission/authorisation?

Parental custody includes the right to determine the (habitual) residence of the minor. Consequently, it is the responsibility of the holder of parental custody to give permission to travel abroad. If a parent does not have parental custody and only holds visiting rights (with a time limit), this parent is only authorised to determine the place of residence during the period of the visit (e.g. holidays abroad).

The agreement is not subject to any formalities, although it is recommended to record the agreement in writing, particularly as proof abroad and for the journey in certain countries (see also the website of the Ministry of Foreign Affairs (http://www.auswaertiges-amt.de/DE/Laenderinformationen/SicherheitshinweiseA-Z-Laenderauswahlseite_node.html), clicking on “Reise- und Sicherheitshinweise” for the country concerned).

Part 1: Protection measures for adults in loss of capacity

In the case of legal incapacity of an adult, the German legal system provides that the person concerned is represented by a curator or a legal representative. The curator (Betreuer) is appointed by the guardianship court (Section 1896 of the German Civil Code). The guardianship court is a division of the district court (Amtsgericht).

However, legal incapacity is not a prerequisite for the opening of a curatorship regime. It is sufficient if the person can no longer take care of his or her affairs wholly or partially due to a physical, mental or psychological disability (Section 1896 (1) of the German Civil Code).

The opening of legal curatorship proceedings for adults depends on a decision of the guardianship court. The guardianship court initiates protection proceedings at the request of the person concerned or ex officio (Section 1896 of the German Civil Code). In contrast, according to Section 1896 (2) of the German Civil Code, the curatorship system is in principle regarded as subsidiary to the system of representation by a legal representative. Consequently, before ruling on the pronouncement of curatorship, the guardianship court checks whether a lasting power of attorney has been registered in the central register of lasting powers of attorney and advance decisions on medical treatment (Zentrales Vorsorgeregister). If this is the case, and if there is no indication that the legal representative would not exercise the lasting power of attorney or would not be able to exercise it, the guardianship court does not pronounce curatorship in favour of the person concerned. If the guardianship court recognises that, despite the existence of the lasting power of attorney, curatorship is necessary because the representative him/herself is too old or too ill, for example, to exercise the lasting power of attorney, the guardianship court will order curatorship.

If the adult has legal capacity, but cannot manage his or her affairs fully or partially on his or her own, the curator or legal representative may represent him or her. On the other hand, acts undertaken by the person himself or herself remain valid. If the person lacks legal capacity, he or she is represented by his or her curator or legal representative (substitute decision-making). Acts undertaken by the person himself or herself are legally invalid with the exception of acts under Section 105a of the German Civil Code.

Insofar as this is necessary to prevent a significant danger to the person or assets of the person subject to curatorship, the guardianship court orders that for a declaration of wishes which relates to the area of competence of the curator the protected person requires the curator’s authorisation (subject to authorisation, Einwilligungsvorbehalt, Section 1903 of the German Civil Code).

Part 2: The possibilities of anticipating a future loss of capacity

German law provides for preventive measures to ensure that the wishes of the person who subsequently loses capacity are respected. Thus, solutions may be anticipated for the following situations:

A. Lasting powers of attorney (Vorsorgevollmachten) offer the possibility of appointing a trusted person as a legal representative  in the event that a person loses his or her capacity to act as a result of accident, illness or old age. The legal representative can then represent the person concerned by taking decisions on his or her behalf, in principle without the involvement of the guardianship court. Lasting powers of attorney can be issued with immediate effect, so that the representative can begin exercising his or her faculties immediately, even if the person represented retains his or her capacity to act and can set the conditions under which the lasting power of attorney will become effective

B. A power of attorney proposing a trusted person as a curator in advance in the event of subsequent incapacity (Betreuungsverfügung) is permissible under German law (Section 1901c of the German Civil Code). 

C. Advance decisions on medical treatment (Patientenverfügungen) make it possible to provide instructions in the event that a person is no longer able to express his/her wish to accept or refuse medical treatment, for example as a result of an accident or illness. German law expressly provides for the possibility of issuing such an advance decisions on medical treatment (Section 1901a of the German Civil Code).