A Letter from the Child and Adult Protection Authority: What Matters Now

A Letter That Raises Questions

Few authorities carry as many preconceptions as the Swiss child and adult protection authority (KESB). Anyone receiving a letter from it – an invitation to a meeting, notice of a concern report or the announcement of an assessment – often reacts with worry. That worry is understandable, but in many cases greater than necessary. A letter from the KESB does not mean that anything has been decided. It means that the authority must examine a report – and that you have rights in these proceedings.

Why the KESB Gets in Touch

The KESB usually acts because a concern report has been filed. Such reports may come from private individuals, for instance neighbours or family members, or from professionals such as schools, doctors, hospitals or social services, some of whom are subject to statutory reporting duties. The authority is obliged to follow up on reports it receives. The fact that it investigates does not mean it believes the report – it only means it is fulfilling its statutory mandate.

In adult protection, the focus is typically on persons who, due to age, illness or impairment, may need support in managing their affairs. In child protection, the central question is whether a child's welfare is at risk and whether the parents can remedy the situation themselves.

How the Proceedings Work

The proceedings follow a clear pattern:

1. Receipt of the report. The KESB first examines summarily whether there is any reason for an assessment at all. Manifestly unfounded reports are not pursued.
2. Assessment. If there is reason to do so, the authority establishes the facts (Art. 446 Swiss Civil Code). It may obtain reports, involve specialists or commission an assessment service. Meetings with the persons concerned are common.
3. Hearing. The person concerned is as a rule heard in person (Art. 447 Swiss Civil Code); in child protection matters, the child is also heard in an appropriate manner, so far as its age allows (Art. 314a Swiss Civil Code).
4. Decision. The KESB decides whether a measure is necessary – and if so, which one. Very often an assessment ends without any official measure, for instance because the family has found solutions itself or voluntary support is sufficient.

The entire procedure is governed by the principles of subsidiarity and proportionality (Art. 389 Swiss Civil Code): an official measure is only considered where support from family, personal networks or private planning is insufficient, and it must be as mild as possible.

Your Participation Rights

As a person concerned or a party to the proceedings, you have in particular the following rights:

• The right to be heard. You may comment on the facts before a decision is taken.
• Access to the files. You are in principle entitled to inspect the case files (Art. 449b Swiss Civil Code); restrictions are permitted only under specific conditions and must be justified.
• Requests for evidence. You may submit your own documents and request further inquiries, such as reports from treating physicians.
• Representation. You may be represented or accompanied by a lawyer at any time. Where necessary, the KESB orders representation of its own motion (Art. 449a Swiss Civil Code); in child protection matters, the child may be given its own representative.

It is worth responding to letters from the KESB and attending appointments. Those who do not participate effectively forgo the opportunity to bring their own view of the situation into the proceedings – the decision is then taken on the basis of the remaining files.

Deputyship Is Not Incapacitation

The former guardianship regime for adults was abolished with the revision of Swiss adult protection law in 2013. It was replaced by tailored deputyships (Art. 393 et seq. Swiss Civil Code) that are geared to the actual need for support:

• The accompanying deputyship (Art. 393 Swiss Civil Code) provides supportive assistance and does not restrict legal capacity.
• The representative deputyship (Art. 394 et seq. Swiss Civil Code) covers representation in defined areas, such as managing income and assets; legal capacity may, but need not, be restricted.
• The co-decision deputyship (Art. 396 Swiss Civil Code) makes certain transactions subject to the deputy's consent.
• The comprehensive deputyship (Art. 398 Swiss Civil Code) remains the exception for cases of permanent incapacity of judgement.

A deputyship is established only for those areas in which support is actually needed. A person under an accompanying or representative deputyship generally retains the right to vote, everyday legal capacity and self-determination in all areas not covered by the measure. The comparison with the former «incapacitation» does not reflect the law as it stands today.

Deadlines and Appeals

Decisions of the KESB may be appealed to the competent cantonal court (Art. 450 Swiss Civil Code). The appeal period is as a rule 30 days from notification of the decision; for decisions on interim measures and in certain other situations, shorter periods of 10 days apply (Art. 450b Swiss Civil Code). Persons entitled to appeal include the parties to the proceedings, persons close to the person concerned and persons with a legally protected interest. Check the instructions on appellate remedies in the decision carefully – these deadlines cannot be extended.

When Involving a Lawyer Makes Sense

Not every KESB proceeding requires legal representation. Involving a lawyer is generally advisable where far-reaching measures are at stake – such as a deputyship restricting legal capacity, withdrawal of the right to determine a child's residence, or placement in an institution –, where the facts are disputed or where you feel you are not being heard in the proceedings. An early, factual statement can significantly influence the course of an assessment. You will find an overview of our work under KESB Proceedings and Family Law.

If you have received a letter from the KESB and would like to discuss how to proceed, you can reach us via our contact page. We will help you understand what the proceedings are about, which deadlines apply and which steps are advisable in your situation.