Supervisor (education)

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In the field of upbringing, a supervisor is someone who has the duty to supervise a minor .

Creation of a duty of supervision

Under German civil law , minors are generally in need of supervision. Who is obliged to supervise a minor arises from legal regulations or from contractual agreements. In particular, the duty of supervision on the part of parents or those who are responsible for custody of a minor is legally justified . The relevant norm for this is § 1626 BGB, according to which parents have the duty and the right to care for their minor child by virtue of their parental responsibility. This duty of supervision only ends when the child comes of age . Whether they live with their parents before or afterwards is legally irrelevant.

An obligation to supervise can be contractually established through a corresponding agreement with the parents if they register their child for a kindergarten or an offer of child and youth work . Such a contract on the assumption of the supervisory obligation can be concluded both expressly and tacitly (implied) through conclusive behavior. The transfer of the supervisory obligation does not have to be a central part of the contract, but can be agreed as a mere secondary obligation.

Content of the duty of supervision

The supervisor must pursue different goals:

  • Avoidance of third-party harm: Minors should not harm others.
  • Avoidance of self-harm: Minors should not harm themselves.
  • Avoidance of harm by third parties: Minors should not be harmed by third parties.

The German legislature does not regulate what exactly the person subject to supervision has to do in individual cases. Detailed legal regulations would not even be possible because the concrete situations are far too different. Instead, the legislature restricts itself to different regulations on the consequences of a breach of duty of supervision . The relevant norm from German civil law is § 832 BGB. Without this regulation, there would be a liability gap if minors cause damage to third parties. Because as long as the minor is not capable of tort because he has not reached the age of seven or has not been able to see the illegality of his actions, he should be protected from liability risks . However, this protection should not always be at the expense of the injured party. In addition, the injured party should not in every case bear the risk that a minor may be capable of tort but still cannot make good the damage because his or her assets are insufficient. That is why civil law provides for special claims for damages that are directed against those subject to supervision. These claims are not linked to a directly damaging act on the part of the parents, but to a culpable violation of the duty of supervision.

Section 823 (1) BGB reads:

“Anyone who is legally obliged to supervise a person who needs supervision because of being a minor or because of their mental or physical condition is obliged to compensate for the damage that this person unlawfully inflicts on a third party. The obligation to pay compensation does not apply if he fulfills his duty of supervision or if the damage would have arisen even with proper supervision. "

With a view to this standard, supervisors must take all precautions that are necessary and reasonable for them to prevent third parties from being harmed by the minor. On the one hand, a strict safety standard must be applied in favor of children, but on the other hand, a complete level of safety cannot be achieved. Even at the age of seven, children have a certain degree of independence and do not have to be monitored “at every turn”. According to the established case law of the Federal Court of Justice , children's play also includes discovering and “conquering” new territory. They cannot be forbidden to do so in general, even if it involves danger for the child or for others. Depending on the age and character of the child and the dangerousness of a specific activity, it may be sufficient for the supervisor to only get a rough overview of the activities of the person in need of supervision. In traffic or when playing dangerous games (for example when using a pocket knife), however, stricter requirements apply.

literature

Individual evidence

  1. ↑ Federal Agency for Civic Education: Obligation to supervise | bpb. Retrieved March 18, 2020 .
  2. ↑ § 1631 BGB - content and limits of personal care - laws. Retrieved March 18, 2020 .
  3. ↑ Federal Court of Justice: Az. VI ZR 199/08. March 24, 2009, accessed March 10, 2020 .
  4. ↑ Munich Higher Regional Court: Az. 21 U 2981/18. July 29, 2019, accessed March 10, 2020 .