They are becoming increasingly common: young children who cannot cope with the daycare centre environment. This manifests itself in aggression and injuries towards themselves and other children and even towards the teachers. These are often just phases that are over after a few weeks with the help of the educational staff, but sometimes they are not.

In such cases, childcare at the daycare centre often becomes a major challenge for everyone involved. The child concerned gives the impression that he or she has special needs that cannot be met during regular daycare. This can then also be to the detriment of the other children in the daycare centre. In order to defuse this conflict, legal expertise and, above all, sensitivity are required.

Is it appropriate to reduce the legal entitlement to a daycare place?
In principle, the entitlement to a daycare centre place cannot be restricted without further ado. Even if a child has special needs, this can only be considered in individual cases. Firstly, a special need for support in accordance with §§ 27, 35a SGB VIII or §§ 99 ff. SGB IX must be determined. Measures can then be taken, for example by providing the child with a carer. In these cases, the Brandenburg Daycare Centre Act stipulates that the child may only be admitted to the centre if the appropriate support and care can be guaranteed there.

According to the legislator, a child with special needs that can hardly be managed in normal daycare centre operations but does not yet exceed the threshold for special needs, for example according to Sections 27 ff. of Book VIII of the Social Code, should be cared for in regular operations. The Child and Youth Strengthening Act of 10 June 2021 also states that as many children as possible should be cared for inclusively. Despite this clarity in child and youth welfare law, however, there is no enforceable right to support if special education is required. The local youth welfare organisations lack the legal and financial framework to create and permanently maintain places for inclusive care that covers all needs.

Can the childcare contract be cancelled?
Based on the legislative model, termination of the childcare relationship is not necessarily intended. Something else may result from the obligations and cancellation rights in the care contract. It is therefore generally recommended that such difficult situations are also contractually regulated. For example, explicit duties of co-operation on the part of the parents or a short-term suspension of the childcare relationship can be stipulated. Although such a break of a few days may contradict the unconditional legal entitlement to a childcare place, it is a milder measure than the final cancellation of the contract if it means that the childcare relationship can continue in the long term. However, the care of a child in a daycare centre reaches its limits when, despite various efforts, there has been no improvement and the child's welfare is at risk. Can the provider then ultimately terminate the childcare contract? Yes, but only under very strict conditions.

This is because the legal entitlement continues to apply without restriction even if the childcare contract has been cancelled. This means that the child cannot forfeit their entitlement under any circumstances. This is an aspect that often speaks against the cancellation of the childcare contract, especially for local authority daycare providers. Case law has also tended to rule in favour of the children and parents and therefore in favour of continuing the childcare relationship. As a result, the hurdles for a provider to terminate the childcare contract are very high. It must first exhaust all possible alternatives. For example, it must be examined whether childcare at the centre can be resumed under different conditions, for example with a staggered childcare period per week. If a daycare centre provider operates several daycare centres, it can also offer a different place in the hope that the problem will not just shift locally.

Termination as a last resort
If termination is nevertheless unavoidable, special formal requirements must be observed, whereby it always depends on the individual contractual provisions. In the case of extraordinary termination without notice, the law also stipulates that a warning must be issued beforehand. Exceptions are only permitted in very rare cases. The warning is subject to a time limit and should be issued in writing. Ordinary termination is also only permissible - if at all - with a sufficiently long notice period (OLG Brandenburg, judgement of 26.03.2021, 4 U 26/21). According to the case law of the Higher Regional Court of Brandenburg, four weeks is too short in any case.

Conclusion: Terminating the childcare relationship is very difficult and should only be a last resort. Children with special needs must also be given the opportunity to be supported and encouraged in a social environment so that they can develop together with other children and learn from each other.