General information about the legal clerkship with a child
The legal clerkship with a child presents a particular challenge for prospective teachers or civil service trainees, as it concerns both professional training and the compatibility of family and career. The term refers to the preparatory service in the respective professional field, which is completed as a state-regulated practical training phase following the completion of university studies. The focus here is on the legal structuring of the framework conditions under which trainee lawyers with a child can organize and complete their training.
Legal framework of the legal clerkship in Germany
Statutory basis
The legal clerkship in Germany is regulated in the school sector by the respective State Civil Service Act and the training and examination regulations of the federal states. For the legal clerkship, the German Judiciary Act (DRiG) and supplementary state laws apply. Key legal foundations also arise from the Federal Civil Service Act (BBG), the Federal Parental Allowance and Parental Leave Act (BEEG), the Maternity Protection Act (MuSchG), the Federal Vacation Act (BUrlG), the General Equal Treatment Act, and the Social Code (SGB).
Regulations regarding family and caregiving obligations
Trainee lawyers generally have a right to equal treatment and equal opportunities. The right to reconcile family and training is secured by various laws and regulations. There is special protection for pregnant women, breastfeeding mothers, and parents with caregiving obligations.
Legal clerkship and parenthood
Maternity protection during legal clerkship
Trainee female lawyers are subject to the Maternity Protection Act. This means that from the time of notification of pregnancy, certain protective provisions come into effect. These include, among others, a ban on work six weeks before and eight weeks after childbirth (in cases of premature or multiple births, twelve weeks after childbirth), a prohibition on overtime, as well as working time restrictions and special conditions in the workplace. During the maternity protection periods, the training period is usually interrupted and continued at a later date. Compensation for disadvantages regarding examination performance and training obligations is provided.
Impacts on the extension of the legal clerkship
Periods of maternity protection are generally not counted towards the legal clerkship, so that no disadvantage arises. The training period is accordingly extended.
Parental leave during legal clerkship
Entitlement and application
Trainee lawyers can apply for parental leave in accordance with the BEEG. The entitlement exists regardless of whether there is an employment relationship as a civil servant on probation or a public-law training relationship. The application must be made in writing and within the statutory period (at least seven weeks before the start of parental leave). During parental leave, the training is suspended and is extended accordingly after the end of the leave.
Part-time work during parental leave
It is possible to combine parental leave with part-time employment if this is compatible with official duties and training is ensured. The responsible training authority decides on the part-time arrangements as part of a case-by-case examination, weighing official interests and training requirements.
Parental allowance and financial benefits
Parental allowance can be claimed during parental leave. The amount of parental allowance is based on the average earnings of the last twelve months before birth, usually according to the maintenance allowance paid or the basic trainee amount. The remuneration during legal clerkship is generally lower than the salary of a permanent civil servant, which affects the amount of parental allowance.
Special leave and release due to caregiving
In addition to parental leave, it is possible to apply for special leave for family reasons. The conditions are governed by civil service law and the respective state law. Short-term releases are possible, for example, in the event of a child’s illness (§ 45 SGB V) or for other reasons within the framework of family law.
Examination law particularities and compensation for disadvantages
Compensation for disadvantages for trainees with a child
Trainees with a child have the right to appropriate compensation for disadvantages. This means that particular burdens caused by pregnancy, maternity protection, parenthood, or caregiving obligations are taken into account when organizing training and examination performance. Relevant applications can be submitted to the examination authority. Possible forms of compensation include: extension of examination time, postponement of examination dates, breastfeeding breaks, or adjustments to training sections.
Examination times and childcare
Examination dates should, as far as possible, be adapted to the family situation. However, an entitlement to rescheduling only exists in exceptional cases, provided that an unreasonable burden exists without adaptation. Breastfeeding breaks as well as bringing an accompanying caregiver are provided for in many examination regulations.
Part-time training during the legal clerkship
Possibility and legal requirements
In most federal states there is the possibility to complete the legal clerkship on a part-time basis, especially when caring for minor children under 18 years of age. Applications must be submitted to the relevant authority. The duration of the part-time clerkship is extended in proportion to the reduction in working hours, with the overall workload reasonably distributed over the extended training period.
Effects on training and remuneration
Part-time status affects the training plan, the amount of training remuneration, as well as any allowances and pension entitlements. The details of payment are regulated in the respective training regulations and aid provisions of the states.
Equality and protection against discrimination
Legal protection against discrimination
Trainee lawyers with children are protected from discrimination based on parenthood through the General Equal Treatment Act. Discrimination in selection, employment, training, or examination is prohibited. In case of disadvantage, there are legal claims for correction and compensation.
Practical tips and counseling services
Common points of contact
For questions and applications related to the legal clerkship with a child, affected persons can contact the relevant personnel offices, gender equality officers, department heads, or official advisory services of the respective state. Many states offer special programs and networks to support compatibility of family and preparatory service.
Literature and legal sources
For more in-depth information, the following legal provisions are particularly relevant:
- Federal Parental Allowance and Parental Leave Act (BEEG)
- Maternity Protection Act (MuSchG)
- German Judiciary Act (DRiG) and corresponding state law provisions
- State Civil Service Law (BeamtStG, LBG)
- Training and examination regulations of the states
- General Equal Treatment Act (AGG)
- Federal Vacation Act (BUrlG)
- Social Code (SGB V, VI, IX, etc.)
Conclusion
The legal clerkship with a child is comprehensively regulated from a legal standpoint and, through maternity protection, parental leave, parental allowance, compensation for disadvantages, and part-time options, offers a wide variety of possibilities for better reconciling family and training. Nevertheless, individual regulations and deviations may exist depending on the federal state and training area. Early information and application to the competent authority is recommended in order to best adapt the preparatory service to family needs.
Frequently Asked Questions
What legal options exist for applying for part-time legal clerkship with a child?
Parents who care for one or more children during their legal clerkship may, under certain conditions, apply for part-time employment. The legal basis for this is found in the relevant legal training and examination regulations of the federal state, often supplemented by general administrative regulations or special civil service rules. The usual prerequisite is that there is a legitimate interest, such as caring for and raising a child under twelve years of age or a disabled child (§ 48a BeamtStG, § 64 BBG). The application must be submitted in writing with substantiating documentation (birth certificate, if applicable, medical certificate). As a rule, the weekly training hours can be reduced by up to 50%, with a minimum training period to be observed. Part-time legal clerkship leads to an extension of the training period, generally by the length of the leave taken. The final decision is made by the training authority, taking into account the child’s welfare and official interests. There is no automatic right to part-time work, but it is usually at the authority’s discretion. Legal remedies such as objections or legal action are possible in case of rejection.
How are maternity protection, parental leave, and parental allowance regulated during the legal clerkship?
The legal provisions regarding maternity protection, parental leave, and parental allowance generally also apply to legal trainees, as they are in a public-law training relationship that conveys civil servant-like rights. Maternity protection under the Maternity Protection Act (MuSchG) provides for protective periods before and after the birth of the child (usually 6 weeks before and 8 weeks after birth) during which there is an employment ban and trainees are entitled to continued payment of their maintenance allowance. For parental leave, §§ 3 and 6 of the Federal Parental Allowance and Parental Leave Act (BEEG) and the respective state regulations apply: trainees can apply for up to three years parental leave, with the application to be submitted in writing and on time. During parental leave, the training relationship is generally suspended, and there is no entitlement to maintenance allowance. Parental allowance is calculated according to general legal rules, with maintenance allowance counted as income. The training period is extended by the actual duration of parental leave taken.
Is there a legal entitlement to leave in the event of a child’s illness during the legal clerkship?
For legal trainees, depending on the federal state, there is an entitlement to leave to care for a sick child, which is generally based on § 45 SGB V (child sickness benefit). Since trainees are often civil servants on probation or in a public-law training relationship, either the civil service regulations for special leave or corresponding analogous provisions apply. As a rule, each parent is entitled to up to ten working days of leave per child per year (up to 20 days for single parents), but not more than 25 days per parent per year in total. The leave must be certified by a medical certificate, and the training authority must be informed without delay. Frequently, continued payment of the maintenance allowance occurs during this time, provided the state regulations provide for this. For details, the respective administrative regulations and the competent State Judicial Examination Office are decisive.
To what extent are periods of childcare credited towards the waiting period for the second state law examination?
Raising one’s own child up to the age of three may, according to the relevant provisions on waiting period reduction (waiting period rules of the respective legal training regulations), be credited towards the waiting period for repeat examinations (improvement attempts) or the period between exams. These periods are often defined, depending on state law, as eligible times so that postponement or shortening of the waiting period is possible in cases of non-admission or to protect an improvement attempt. Evidence of the actual childcare period by means of a birth certificate and verification of independent care must be provided. The crediting takes place upon application, with the examination authority deciding on the grant. Early advice is advisable, as the regulations vary between federal states.
Is there a right to special protection periods, rest breaks, or flexible training schedules during a legal clerkship with a child?
The Maternity Protection Act guarantees pregnant trainees and new mothers special protection periods and entitlements to breaks, e.g., 6 weeks before and 8 or 12 weeks after childbirth, as well as additional breaks and the right to exempt themselves from certain tasks (§§ 3-8 MuSchG). Breastfeeding during working hours and leave for official appointments are permitted. For fathers or caring parents, the Working Hours Act does not explicitly provide for flexible training hours, but part-time or flexible scheduling can be requested within the scope of official possibilities—particularly when there is a justified interest, such as childcare. The approving body examines this, considering the child’s welfare and organizational possibilities. The form and scope of breaks and flexibility are always subject to the respective state law and training regulations.
What compensations or special provisions exist for trainees with a child in relation to exams?
Parents who are demonstrably burdened by childcare during the legal preparatory service may, under certain conditions, be entitled to compensation for disadvantages according to § 9 JAG or comparable state law provisions. This includes, for example, additional time for written exams, the possibility of being assigned a separate room for breastfeeding or childcare, postponement of examination dates, or individual examination arrangements. A prerequisite is a timely and sufficiently substantiated application, with medical or care-relevant evidence attached. The decision is at the discretion of the examination authority; entitlement exists only if proper evidence is provided and the compensation is suitable and necessary so as not to provide an undue advantage. Rejections can be challenged within the time limits for legal remedies.
What legal regulations exist for maintenance allowance during pregnancy, maternity protection or parental leave?
The granting of maintenance allowance during maternity protection and pregnancy is regulated by law in the respective legal training regulations and supplementary provisions (e.g., § 5 JAG NRW, MuSchG). During maternity protection periods, trainees generally continue to receive the monthly maintenance allowance in full; a so-called prohibition of discrimination applies. However, during approved parental leave, the entitlement to maintenance allowance usually lapses, as the training relationship is suspended. In individual cases, the respective state authority may adopt supplementary provisions, such as payments in particular emergencies. Additionally, it should be noted that parental allowance may be counted towards income and the employment relationship automatically continues after parental leave without the need for a new application. Written application and evidence are essential.