Machine translated from German.
The Senate for Family Matters at the Karlsruhe Higher Regional Court has passed a resolution (AZ 20 WF 70/21) which shows that the allegation of perversion of justice against the Weimar family judge Christian Dettmar has been made without a legal basis. The Karlsruhe Higher Regional Court has announced that the family court is obliged to initiate preliminary investigations according to Section 1666 of the German Civil Code (BGB) in the event of a suggestion. It cannot simply shift the examination of whether there is a child welfare risk to the administrative court.
The decision of the OLG Karlsruhe was issued based on a complaint by a mother who saw the physical, mental and spiritual well-being of her children at risk in a Pforzheim school due to the internal organization of corona measures.
The family court in Pforzheim referred the proceedings to the administrative court: The mother wanted school protection orders to be repealed and the legal ordinances on which the orders were based were to be reviewed. The administrative court is responsible for this.
The mother had argued that the subject of the proceedings was a personal welfare matter for which the family court had sole jurisdiction.
The judge at the OLG Karlsruhe – Senate for Family Matters – followed the mother’s legal opinion and overturned the decision of the Pforzheim Family Court: the Family Court is the court responsible for assessing a possible risk to the child’s welfare, and the task assigned to it by law cannot simply be transferred to the administrative court transfer.
The decision shows that the legal opinion of the Weimar judge Christian Dettmar is legally correct. He had passed the decision, which became known as a sensational judgment, that two schools in Weimar were forbidden with immediate effect to require pupils to wear all kinds of mouth and nose covers (especially qualified masks such as FFP2 masks) and to adhere to the AHA minimum distances and / or to take part in SARS-CoV-2 rapid tests. At the same time, according to Judge Dettmar, face-to-face teaching should be maintained.
Judge Dettmar’s decision was issued – for the first time in the world – after evaluating expert reports. The biologist Prof. Dr. Ulrike Kämmerer had prepared an expertise on the lack of informative value of the PCR tests. The hygienist Prof. Dr. Ines Kappstein had evaluated the current study situation on the masks and found their lack of use for virus defense while at the same time the masks are harmful to their wearers, among other things due to germs. The psychologist Prof. Dr. Christoph Kuhbandner had examined the psychological impairment of the children as a result of the measures. In his decision, the judge followed the findings of the experts and affirmed a risk to the child’s welfare if the measures were continued ( full text judgment including expert opinion ).
Because of the – legally correct – assumption of his jurisdiction, Judge Dettmar was accused by the public prosecutor Erfurt and in the media of perverting the law. Due to the perverse law allegation, a house search was carried out in the office, in the car and in the private quarters of the judge, his cell phone and laptop were confiscated and mirrored. The action of the public prosecutor against Judge Dettmar is now at the latest with the decision from Karlsruhe removed from the ground. His defense attorney, Dr. Gerhard Strate had previously publicly stated that he could not see any legal basis for criminal proceedings against the judge.
Investigations are currently underway against a Weilheim family judge who affirmed her jurisdiction in a similar case and decided against the mask requirement for two pupils due to child welfare endangerment – with the public prosecutor’s office in Munich – investigations are currently underway for perversion of justice due to decision despite lack of jurisdiction. The Karlsruhe resolution is equally relevant for this procedure.
The network of critical judges and public prosecutors has published an extensive analysis of family law issues in connection with Section 1666 of the German Civil Code .
§ 1666 BGB reads “ If the physical, mental or emotional well-being of the child is endangered by the abuse of parental responsibility, by neglect of the child, by failure of the parents through no fault of their own or by the behavior of a third party, the guardianship court has, if the parents refuse or are unable to avert the danger, to take the measures necessary to avert the danger. The court can also take measures with effect against a third party . ”
The standard also applies to the implementation of the UN Children’s Convention, which has been in force without reservation since July 15, 2010. It stipulates, among other things: “Article 3 [guarantee of the best interests of the child] (1) In all measures affecting children, regardless of whether they are taken by public or private institutions of social welfare, courts, administrative authorities or legislative bodies, the best interests of the child are taken an aspect that must be given priority.
(2) States Parties undertake to ensure that the child receives the protection and care necessary for his or her well-being, taking into account the rights and obligations of his or her parents, guardian or other person legally responsible for the child; to this end, they shall take all appropriate legislative and administrative measures. “
The defensive function of § 1666 BGB is not only directed against legal guardians who do not exercise their custody properly, but also against third parties who behave in a way that harms children. These can be individuals but also institutions such as kindergartens.
The judges state: “The legal protection of children is designed in a special way compared to the general, adult-related civil legal protection system due to the need for care and development of children and the priority transfer of comprehensive responsibility for the child to his parents … In the The justification for the law is recorded (BT-Drucks 16/6815, 10): “Since” the best interests of the child are the guideline for the state’s mandate in accordance with Art be a decisive starting point for the intervention of state protective measures. The occurrence of a protection gap would not be compatible with the protection of the child’s fundamental rights as an independent personality.
According to the conception of § 1666 BGB, the only decisive factor is that it is a measure that is necessary to avert the risk while observing the principle of proportionality. Based on the case law, it can also be established that such measures with regard to third parties sometimes have far-reaching consequences for them, whereby the family court measures can also intervene in existing rental and employment relationships (see AG Berlin-Tiergarten, Streit 1992, 89, 90 f: Bei Suspicion of sexual abuse by house residents does not remove the children [so youth welfare office], but “go-order” against alleged perpetrators; similar AG Berlin-Wedding WuM 1992, 470 f: violent caretaker is to be suspended from work and kept away from the residential complex; OLG Cologne KindPrax 1999, 95 f: Ban on entering the city of Kerpen,
The family court’s duty to review based on a suggestion in accordance with Section 1666 of the German Civil Code (BGB) is not only aimed at organizations under private law such as private schools, tennis clubs, etc., the judge’s guardianship for the children also requires government action to be checked for possible harm to the child’s welfare.
The judges write: “For such a teleological reduction of § 1666 BGB to non-state addressees of the measures, it could speak that the sense and purpose of the regulation is the completion of the state guard office and that the state itself does not first take the detour of the state guard office is obliged not to endanger children, but that any state agency must ensure that they do not harm children in any case, due to the legal obligations. Such a view would, however, violate the principle of separation of powers; In this context, it is an essential part of our constitutional order that the three powers control each other. If one would always take the legality of the actions of a government agency for granted,
The family law procedure according to § 1666 BGB is characterized in several respects by child and child protection-related features, including the principle of acceleration. In addition, the procedures before the administrative courts are dependent on the application or action, while the legislature deliberately waived such a requirement in the regulation of Section 1666 of the German Civil Code (BGB). The latter arises from the function of the state security office, the exercise of which cannot depend on the initiative of private individuals or authorities (Staudinger / Coester (2020) BGB § 1666, Rn. 261). “
The conclusion of the judges’ network: “If one deals in detail with the legal conception of the family court procedure according to § 1666 BGB, §§ 24, 157 FamFG, then it is understandable on what basis the two decisions from Weimar and Weilheim were made. Apparently, on the basis of the findings available at the time of the enactment, the judges responsible were convinced that the likelihood and temporal proximity of the occurrence of damage were so great that they felt not only justified but even obliged to issue an interim order in this regard. They were also authorized to do this in the exercise of the state guard duties.
However, the manner of the controversial reception of the two decisions and the expert statements contained therein is worrying, which can ultimately only be explained by the very dynamic and highly uncertain situation of the corona pandemic. A prudent legal examination and discussion of the decisions from Weimar and Weilheim, especially with regard to the legal process and the jurisdiction of the family courts – as far as can be seen – has not yet taken place. The above article would like to contribute to this. It also seems natural to first read the expert reports on which the decisions are based and only then to discuss the matter.
It is to be hoped that, despite these difficulties, the courts will be able to deal with the individual issues with which they are dealt with the appropriate composure, impartiality, calmness and intensity.
Regardless, any serious decision made in judicial independence deserves respect. To designate such well-founded decisions as those of the Weimar Family Court as an “outbreak of legal act” has no basis from a family law point of view. “
On May 1, 2021, white roses were laid in front of court buildings throughout Germany, but especially in Weimar, where Judge Dettmar worked.
Source: 2020 News
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Author: 2020 News
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