1Children and young people have the right to the special protection of their integrity and to the encouragement of their development.
2They may personally exercise their rights to the extent that their power of judgement allows.
Art. 11 FC - Protection of children and young persons
#Overview
Art. 11 FC protects children and young persons on two levels. First, they are entitled to special protection of their integrity. This includes physical, psychological and sexual violence. Second, their development must be promoted. This includes education, health care and age-appropriate care.
What does the provision regulate? Art. 11 para. 1 FC obliges the state to actively protect children. According to Tschentscher, BSK BV, Art. 11 N. 14, this results in a fundamental right to non-violent upbringing. The Federal Supreme Court applies Art. 11 FC in cases of family reunification (BGE 144 II 1), divorce proceedings (BGE 142 III 481) and religious conflicts (BGE 135 I 79). The provision has independent normative content and is more than a reinforcement of existing rights (Tschentscher, BSK BV, Art. 11 N. 1).
Who is affected? Children and young persons up to 18 years of age. But parents, authorities and schools must also respect these rights. The Federal Supreme Court heard children aged 11-12 years in proceedings (BGE 133 III 146).
What are the legal consequences? Art. 11 para. 2 FC regulates the exercise of rights: children can exercise their fundamental rights themselves according to their capacity for judgment. In BGE 135 I 79 the Federal Supreme Court decided that parents have authority over religious education until the age of 16 (Art. 303 CC). However, children with capacity for judgment can independently assert their freedom of religion.
Example: A 14-year-old Muslim girl does not wish to participate in co-educational swimming lessons for religious reasons. The Federal Supreme Court rejected a dispensation, as the compulsory requirement with accompanying measures did not constitute an inadmissible interference with freedom of religion (BGE 135 I 79). The school's integration mandate outweighed the family's religious concerns.
Art. 11 FC — Protection of Children and Young Persons
#Doctrine
#1. Legislative History
N. 1 Art. 11 FC was not provided for in the Federal Council's draft of 1996 (BBl 1997 I 138 f.). The provision originates from a minority motion submitted by the Constitutional Committee of the National Council, which in turn was based on a proposal by the Swiss Working Group of Youth Associations (SAJV). In the National Council, Zbinden Hans (SP/AG) argued in favour of a separate Article 11a on the rights of children and young persons: children and young persons, being minors, could not found a civil rights movement; the National Council should act on their behalf. Maury Pasquier Liliane (SP/GE) supported this motion, identifying equality of opportunity, state violence prevention, and an explicit prohibition of degrading treatment as its principal objectives. Schlüer Ulrich (SVP/ZH), Keller Rudolf (Demokraten/BL), and Leuba Jean-François (Liberale/VD) opposed the motion: a right to «harmonious development» would not be justiciable — «One can say, without venturing prophecies, from the very outset that the Federal Supreme Court would declare this article non-justiciable» (Federal Councillor Koller Arnold, AB 1998 NR Separatdruck). Weigelt Peter (FDP/SG) pointed to the protective provisions already provided for in Articles 33 and 81 of the draft.
N. 2 In the Council of States, rapporteur Inderkum Hansheiri (C/UR) proposed that the protection of children should not be established as a separate fundamental rights article, but rather inserted as paragraph 3 in Article 9 (personal liberty). Federal Councillor Koller Arnold rejected a standalone article, arguing that «fundamental rights apply in principle to all persons and not only to a particular category, namely children and young persons» (AB 1998 SR Separatdruck). The conciliation conference ultimately arrived at the compromise of a new, standalone Article 9a, which subsequently became Art. 11 FC.
N. 3 Paragraph 2 was particularly contentious. Rapporteur Frick Bruno (C/SZ) described Art. 9a as «the most politically sensitive provision» and warned: «In no circumstances should paragraph 2 be a wedge driven by the Constitution between parents and children» (AB 1998 SR Separatdruck, conciliation conference). Federal Councillor Koller Arnold justified the inclusion of paragraph 2 on pragmatic grounds: he stated that the provision was intended «to enshrine no new rights whatsoever in the Constitution», but rather referred «to the very well-balanced positive law in civil law, public law, and criminal law» (Koller Arnold, AB 1998 SR Separatdruck, conciliation conference). Leumann Helen (R/LU) expressly endorsed the second sentence, because it corresponded to the Civil Code and youth organisations had advocated for it. Rhinow René (R/BL) considered the second sentence «tenable» and proposed the heading «Children and Young Persons».
#2. Systematic Classification
N. 4 Art. 11 FC is situated in the third section of the second chapter of the FC under the heading «Fundamental Rights». The provision constitutes a special fundamental right for the group of children and young persons, supplementing the universal fundamental rights (in particular → Art. 10 para. 2 FC, personal liberty) with a group-specific protective entitlement. The Federal Supreme Court characterises Art. 11 para. 1 FC as a provision of dual character: the component «protection of integrity» is a directly applicable fundamental right; the component «fostering of development» is largely programmatic in nature (BGE 126 II 377 E. 5d).
N. 5 Within the FC, Art. 11 is embedded in a network of complementary protective provisions: → Art. 19 FC (right to free basic education) gives concrete expression to the right to fostering in the field of education; → Art. 41 para. 1 let. f and g FC (social goals) set out state objectives in favour of children and young persons without creating subjective entitlements; → Art. 67 FC obliges the Confederation and the cantons to take account of the special needs for fostering and protection in the discharge of their duties; → Art. 119 para. 2 let. d FC anchors at the constitutional level the prohibition of surrogate motherhood. At the statutory level, the Civil Code (Art. 296 ff.; Art. 307 ff. CC, protection of the child), the Criminal Code (Art. 187 ff. CC, offences against sexual integrity), and the Juvenile Criminal Law Act give concrete expression to the constitutional protective duties.
N. 6 In its relationship to international law, Art. 11 FC constitutes the constitutional anchoring of the guarantees enshrined in the Convention of 20 November 1989 on the Rights of the Child (CRC; SR 0.107). According to Federal Supreme Court case law, the objectives of both norms are identical, which is why the CRC case law must be drawn upon to give concrete expression to Art. 11 para. 1 FC (BGE 126 II 377 E. 5d). At the level of the ECHR, Art. 11 FC supplements the protection of family life under Art. 8 ECHR without creating independent entitlements under immigration law.
#3. Normative Content
3.1 Personal Scope of Protection
N. 7 The bearers of this fundamental right are children and young persons. No constitutional definition of age exists; the terminology corresponds to the civil law concept of minors (Art. 14 CC: majority upon reaching the age of 18). The distinction between «children» and «young persons» has no normative relevance for fundamental rights protection; it merely underscores that protection continues beyond early childhood. Both legally incapable (incompetent) infants and capable young persons are bearers of fundamental rights — this was uncontested in the parliamentary proceedings (Inderkum, AB 1998 SR Separatdruck). Nationality is irrelevant; Art. 11 FC protects all children and young persons present in Switzerland. → Art. 36 FC (restriction of fundamental rights) applies without reservation to the protective content of para. 1.
3.2 Paragraph 1: Right to Protection of Integrity and Fostering of Development
N. 8 The right to «special protection of integrity» encompasses physical and mental integrity. The Federal Supreme Court notes that this component would «in itself, from a purely constitutional perspective, not be necessary», since Art. 10 para. 2 FC in any case guarantees all persons the right to personal liberty; the adjective «special» is not to be understood restrictively, but rather serves to emphasise that children and young persons as a social group are entitled to qualitatively enhanced protection (BGE 126 II 377 E. 5d, with reference to the remarks of Inderkum, AB 1998 SR Separatdruck). The protective duty dimension obliges the state to protect children from violence, ill-treatment, and degrading treatment by private individuals (in particular in the family environment).
N. 9 According to consistent Federal Supreme Court case law, the right to «fostering of development» has no directly enforceable content. It constitutes an objective guideline that directs the legislature to have regard to the interests of children and young persons when enacting legislation, and obliges authorities applying the law, when exercising discretion or filling gaps in the law, to take account of their special protective needs (BGE 126 II 377 E. 5d). This programmatic character distinguishes the second component of Art. 11 para. 1 from the social goals in Art. 41 FC insofar as Art. 11 also binds those applying the law, not only the legislature.
N. 10 In immigration law, Art. 11 para. 1 FC does not confer an independent right to the grant or renewal of a residence permit; the provision is too indeterminate to establish justiciable entitlements to permits beyond the specific protective provisions of the CRC (BGE 126 II 377 E. 5e; BGE 144 II 1 E. 2). It must, however, be taken into account when exercising discretion and balancing interests in the context of Art. 8 para. 2 ECHR (BGE 135 I 153 E. 2.2.2).
3.3 Paragraph 2: Exercise of Rights in Accordance with Capacity of Judgement
N. 11 Art. 11 para. 2 FC provides that children and young persons shall exercise their rights in accordance with their capacity of judgement. The provision codifies at constitutional level the principle, already recognised in civil law (Art. 19 para. 2 CC) and public law, that capable minors may themselves exercise strictly personal rights — including fundamental rights. In adopting this rule, the constituent authority did not create any new rights, but rather referred to the «very well-balanced positive law in civil law, public law, and criminal law» (Federal Councillor Koller Arnold, AB 1998 SR Separatdruck, conciliation conference).
N. 12 Capacity of judgement within the meaning of para. 2 is determined in accordance with Art. 16 CC: a person has capacity of judgement who possesses the faculty to act rationally, i.e. to grasp the meaning, purpose, and effects of a particular act (intellectual element) and to act in accordance with that insight (volitional element). Capacity of judgement is relative; it must be assessed concretely with reference to the specific legal act and its significance (BGE 134 II 235 E. 4.3.2).
N. 13 Paragraph 2 is of particular practical importance in the field of medical decision-making. In BGE 134 II 235 (disciplinary fine against an osteopath; 13-year-old patient) the Federal Supreme Court held that the will of the minor patient must be respected insofar as the patient has capacity of judgement; a practitioner who relies solely on the consent of the mother present and disregards the clearly expressed resistance of a young person with capacity of judgement acts in breach of duty. Capacity of judgement must be assessed by reference to the nature and significance of the specific intervention; the Federal Supreme Court rejects fixed age limits (E. 4.3.2). The tendency, increasingly also derived from the Biomedicine Convention (Art. 6) and Art. 12 CRC, to give greater weight to the will of minors confirms this interpretation.
N. 14 In the field of freedom of religion, the Federal Supreme Court clarified in BGE 135 I 79 E. 1.2: before reaching the age of 16, children with capacity of judgement may indeed invoke freedom of belief and conscience on their own behalf; however, the exercise of this right is in principle a matter for the parents, who, pursuant to Art. 303 para. 1 CC, determine the child's religious upbringing. Upon reaching the age of 16, the child decides on its own religious affiliation (Art. 303 para. 3 CC). Art. 11 para. 2 FC does not alter this allocation of competences as configured by civil law, but rather presupposes it at the constitutional level.
#4. Legal Consequences
N. 15 As a fundamental right, Art. 11 para. 1 FC produces a threefold effect: (1) Defence right: State interferences with the integrity and development of children and young persons require a legal basis, a public interest, and proportionality (→ Art. 36 FC). (2) Protective duty: The state is obliged to protect children and young persons from private encroachments (third-party effect). (3) Interpretive guideline: Authorities applying the law are required, when exercising discretion or filling gaps in the law, to give special weight to the best interests of the child.
N. 16 In immigration law, Art. 11 FC produces qualified reflex effects. In the case of so-called reverse family reunification — a foreign parent with custody of a Swiss child — the best interests of the child under Art. 11 FC may be decisive in the balancing of interests under Art. 8 para. 2 ECHR. In BGE 135 I 153 E. 2.2.2 the Federal Supreme Court held: where there is nothing against the foreign parent with custody that would render that parent undesirable, it is in principle unreasonable to expect the Swiss child to follow that parent abroad. Art. 11 FC requires in this context a favourable balancing of interests without in itself creating an independent entitlement to a permit.
N. 17 In civil law, the best interests of the child are considered the «supreme maxim of child law in a comprehensive sense» (BGE 141 III 328 E. 5.4, with reference to BGE 132 III 359 E. 4.2.2; BGE 129 III 250 E. 3.4.2); by virtue of Art. 11 FC, those best interests enjoy constitutional status. In the context of surrogate motherhood, the Federal Supreme Court held in BGE 141 III 328 E. 5.4 that the best interests of the child — although enjoying constitutional status — do not abstractly require recognition of a parent-child relationship established abroad through surrogate motherhood where the best interests of the child have never in fact been concretely assessed.
N. 18 In school law, Art. 11 para. 1 FC reinforces the right to free basic education under Art. 19 FC. A permanent exclusion from school regularly violates Art. 11 para. 1 FC and may only be ordered as a measure of last resort (BGE 129 I 12 E. 4). The state's duty to give effect to children's right to education is also reflected in the obligation to bear the costs of school transport, insofar as the right to free basic education is affected (BGE 133 I 156).
#5. Points of Contention
5.1 Fundamental Right or Programmatic Provision?
N. 19 The qualification of Art. 11 para. 1 FC is contested. In its leading decision BGE 126 II 377 E. 5c–d, the Federal Supreme Court adopted a differentiated solution: the component «protection of integrity» has the character of a fundamental right and may be directly invoked; the component «fostering of development» is predominantly programmatic and binds primarily the legislature.
N. 20 In legal scholarship, Koller Heinrich (AJP 1999, p. 664) considered Art. 11 FC as a whole to be «legally questionable», because the provision was «barely justiciable and probably to be understood merely as a clarification of personal liberty». Rhinow René, by contrast, sees in Art. 11 FC primarily a «promise of the welfare state» (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1872). Kley Andreas takes a contrasting evaluative position: Art. 11 FC does not merely repeat personal liberty but anchors a comprehensive freedom of action «insofar as this serves above all the personal development of children and young persons», and is capable of filling potential gaps in fundamental rights protection (ZBJV 1999, p. 316). Häfelin/Haller/Keller/Thurnherr (Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 353a) raise the question of justiciability without providing a definitive answer. Federal Supreme Court practice ultimately confirms the differentiated solution.
5.2 Normative Quality of Paragraph 2
N. 21 Federal Councillor Koller Arnold opposed para. 2 during the parliamentary proceedings: «With this second sentence we are in fact relativising the uncontested doctrine that minors and persons lacking capacity of judgement are also bearers of the right to personal liberty» (AB 1998 SR Separatdruck). Cavadini Jean (L/NE) questioned the normative quality of the second sentence. Rhinow René, in contrast, regarded it as a constitutionally tenable rule that follows the Civil Code. The Federal Supreme Court has interpreted the second sentence as a descriptive codification of existing law that creates no new legal positions but refers to the differentiated civil law and public law (BGE 135 I 79 E. 1.2; BGE 134 II 235 E. 4.1). This interpretation corresponds to the purpose declared during the deliberations (Federal Councillor Koller Arnold, AB 1998 SR Separatdruck).
5.3 Relationship to the CRC and Direct Applicability
N. 22 In legal scholarship, it is disputed whether and to what extent individual provisions of the CRC are self-executing and can be directly invoked before Swiss courts. The Federal Supreme Court held in BGE 126 II 377 E. 5e that no judicially enforceable entitlements in respect of permits under immigration law can be derived from the CRC. However, CRC case law must be drawn upon to give concrete expression to the open-textured provision of Art. 11 para. 1 FC. Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 729) emphasise that the CRC is decisive as an aid to interpreting Art. 11 FC without establishing an independent actionable right to fostering.
5.4 Art. 11 FC in Immigration Law
N. 23 Case law has consistently held that Art. 11 FC does not confer an independent right to a residence permit (BGE 126 II 377 E. 5e; BGE 144 II 1 E. 2). Nevertheless, in BGE 135 I 153 E. 2.2.2 — in the context of reverse family reunification — the Federal Supreme Court recognised Art. 11 FC as an element of the balancing of interests under Art. 8 para. 2 ECHR, thereby acquiring practical relevance. Legal scholarship (Achermann/Caroni, Einfluss der völkerrechtlichen Praxis auf das schweizerische Migrationsrecht, in: Ausländerrecht, 2nd ed. 2009, para. 6.35) has critically assessed this restrictive practice — in particular the former expectation that Swiss children could reasonably be required to leave the country. BGE 143 I 21 E. 4 confirms that the interests of the child must be given increasing weight in immigration decisions, without establishing an absolute priority.
#6. Practical Notes
N. 24 Invocation as a defence right: Art. 11 para. 1 FC may be invoked in conjunction with Art. 10 para. 2 FC as a defence right against state interferences with the physical or psychological integrity of children and young persons. A person invoking Art. 11 para. 1 FC must demonstrate that the interference with the integrity of a child or young person does not satisfy the requirements of Art. 36 FC (legal basis, public interest, proportionality).
N. 25 Exercise of official discretion: Authorities exercising discretion or filling gaps in the law are obliged to take account of the special protective needs of children and young persons. This applies in particular in immigration proceedings, in school law matters, and in social law. In this respect, Art. 11 FC operates as an interpretive directive and a guide to the exercise of discretion.
N. 26 Capacity of judgement of minors: When assessing capacity of judgement under Art. 11 para. 2 FC in conjunction with Art. 16 CC, a concrete, individual approach must always be taken. Fixed age limits are constitutionally impermissible. In practice — in particular in medical and school law proceedings — three questions must be answered: (1) Does the minor understand the nature and significance of the relevant legal act? (2) Can the minor assess the consequences? (3) Can the minor act accordingly? In this context, proof of capacity of judgement in the adolescent age group (approximately 12–15 years) depends on the specific factual circumstances (BGE 134 II 235 E. 4.3.3). In treatment decisions, the will of a minor with capacity of judgement must be respected as taking priority over parental consent.
N. 27 Surrogate motherhood and parent-child relationships: When recognising foreign parent-child relationships in the context of surrogate motherhood, the best interests of the child under Art. 11 FC cannot be relied upon abstractly to justify recognition. The decisive question is whether the best interests of the child were actually assessed in the foreign proceedings (BGE 141 III 328 E. 6.6–6.7). Authorities should channel surrogate motherhood constellations into adoption proceedings, which provide the relevant protective guarantees.
N. 28 Relationship to the CRC: In all proceedings involving children, Art. 3 para. 1 CRC (primacy of the best interests of the child) must be applied. The CRC gives concrete expression to the protective mandate of Art. 11 FC without conferring an independent right of action in respect of permit entitlements (BGE 126 II 377 E. 5d–e). Art. 12 CRC (right of the child to be heard) is an expression of the fundamental idea enshrined in Art. 11 para. 2 FC, namely that the voice of a child with capacity of judgement is heard in legal proceedings.
#Case Law
The case law on Art. 11 FC has developed since its entry into force in 1999 in various areas, with the Federal Supreme Court clarifying the scope of child protection and legal capacity.
#I. Fundamental Meaning and Scope of Application
BGE 126 II 377 (18 April 1999)
First fundamental determination of the scope of Art. 11 FC in foreign nationals law.
The Federal Supreme Court considered for the first time the significance of the new Art. 11 para. 1 FC for foreign nationals permits.
«Art. 11 para. 1 FC grants children and young people the right to special protection of their integrity and to the promotion of their development. However, this provision does not establish a direct right to the granting of a residence permit.»
BGE 144 II 1 (29 November 2017)
Art. 11 FC does not confer an independent right in foreign nationals law.
Confirmation of the restrictive interpretation regarding foreign nationals permits.
«Art. 11 FC does not confer a right to the granting or extension of a residence permit. The provision contains a general objective but does not establish direct subjective rights.»
#II. Child Welfare in Penal Execution
BGE 146 IV 267 (17 August 2020)
Penal execution of a single mother and child welfare.
Art. 11 FC does not preclude lawful penal execution, even if this results in separation of mother and child.
«Neither the provisions of the FC nor those of the CRC and other human rights conventions prevent the execution of lawful imprisonment. The separation of the mother from her child is an inevitable, directly lawful consequence of the execution of imprisonment.»
#III. Legal Capacity and Exercise of Rights (Art. 11 para. 2 FC)
BGE 135 I 79 (24 October 2008)
Freedom of religion of minor pupils in swimming lessons.
Clarification of the legal capacity of children in the independent exercise of rights.
«Before completing the age of 16, a child with legal capacity (Art. 11 para. 2 FC) may invoke their freedom of belief and conscience, but until then the parents have authority over their religious education (Art. 303 para. 1 CC).»
VB.2021.00611 of the Administrative Court of Zurich (11 November 2021)
Legal capacity of a 12-year-old pupil regarding the right to basic school education.
Art. 11 para. 2 FC enables children with legal capacity to independently exercise highly personal rights.
«The right to basic school education according to Art. 19 FC is of a highly personal nature and can be enforced procedurally by a child pursuant to Art. 11 para. 2 FC even without legal representation, if the child can act reasonably with regard to the nature of the proceedings and the objections raised therein.»
#IV. School Law and Right to Education
BGE 129 I 12 (7 November 2002)
Disciplinary school exclusion and fundamental right to education.
Art. 11 FC strengthens the right to basic school education as a children's right.
«The right to basic school education is strengthened by Art. 11 para. 1 FC, which grants children and young people special protection of their integrity and promotion of their development. A long-term school exclusion can only be ordered as a last resort.»
BGE 144 II 233 (15 June 2018)
"LOVE LIFE" campaign and youth protection.
Art. 11 FC establishes state protective duties towards young people in public campaigns.
«Art. 11 para. 1 FC obliges state authorities to consider the special protective needs of children and young people in public information campaigns.»
#V. Civil Law and Family Relations
BGE 142 III 481 (11 March 2016)
Child's relocation abroad and child welfare.
Art. 11 FC reinforces the importance of child welfare in civil proceedings.
«When examining the suitable place of residence for the child, the child's welfare is decisive. Art. 11 FC emphasizes the particular need for protection of children in decisions about their living situation.»
BGE 141 III 328 (14 September 2015)
Surrogacy and children's interests.
The child's welfare according to Art. 11 FC must be considered in the recognition of foreign child relationships.
«The interests of the child pursuant to Art. 11 FC must also be observed in the recognition of child relationships established abroad, without thereby legitimizing circumventions of Swiss law.»
#VI. Legal Capacity in Medical Matters
BGE 134 II 235 (2 April 2008)
Treatment consent of a 13-year-old patient.
Legal capacity of minors in medical interventions according to Art. 11 para. 2 FC.
«The will of the minor patient must be respected insofar as they have legal capacity. Art. 11 para. 2 FC confirms that children exercise their rights within the scope of their legal capacity.»
#VII. Foreign Nationals Law and Family Unity
BGE 143 I 21 (17 November 2016)
Family reunification and children's interests.
Art. 11 FC must be considered in the balancing of interests in foreign nationals law, without establishing independent claims.
«In post-marital hardship cases, the interests of the common children are paramount. Art. 11 FC must be included in the balancing of interests, without deriving a direct claim to a residence permit therefrom.»
BGE 135 I 153 (27 March 2009)
Reverse family reunification with Swiss children.
The child's welfare according to Art. 11 FC strengthens the position of children living in Switzerland in foreign nationals decisions.
«The welfare of Swiss children must be given special weight according to Art. 11 FC when deciding on the residence of their foreign parents. This may exceptionally lead to a claim for a residence permit.»