Elternwille (Germany)

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The legally binding declaration of intent by the custodians of underage children and adolescents is referred to as the will of parents , especially in matters of their education and training . But the question of the scope of the will of parents and other custodians also arises in other areas, especially in connection with the health of minors.

The following needs to be clarified in connection with the will of parents:

  • the formation of will between father and mother of a son or daughter
  • the rights of the minor child or young person vis-à-vis their parents and, above all,
  • the rights of parents vis-à-vis the state, especially in its roles as the institution responsible for school administration and as guardian of compulsory education .

Legal basis

In the Basic Law , Article 6, Paragraph 2, Clause 1 regulates the legal relationship between parents, their underage daughters and sons and the state:

“Care and upbringing of children are the natural right of parents and their first and foremost duty. The state community watches over their activities. "

As part of the triangular relationship between minor child - parent - state, Section 1626 of the German Civil Code stipulates :

(1) The parents have the duty and the right to look after the minor child (parental custody). Parental custody includes custody of the child ( personal custody ) and the child's property ( property custody ).
(2) In care and upbringing, the parents take into account the growing ability and need of the child to act independently and responsibly. You discuss questions of parental custody with the child, insofar as this is appropriate according to the child's level of development, and strive for mutual agreement.

The right to legally assert a parent's will against the state (but also against the son or daughter) expires according to § 2 BGB on his or her 18th birthday, because he or she becomes of legal age on that day .

Article 3, paragraph 1 of the UN Convention on the Rights of the Child provides:

"In all measures that affect children, regardless of whether they are taken by public or private social welfare institutions, courts, administrative authorities or legislative bodies, the best interests of the child are a priority that must be considered."

In particular, the Federal Constitutional Court grants the biological parents of a child a leap of faith by assuming that the parents are generally more concerned with the child's wellbeing than any other person or institution.

Education

With regard to questions of education, Article 26, Paragraph 2, Clause 2 of the Universal Declaration of Human Rights of the United Nations , decided on December 10, 1948:

"Parents have a primary right to choose the type of education to be given to their children."

Article 7, Paragraph 1 of the Basic Law (“The entire school system is under the supervision of the state.”) Grants the state an independent educational mandate by giving constitutional status to the provision that all schools must be subject to state school supervision.

Conflicts between parents and the school administration

Individually appropriate training time

When transitioning from daycare to elementary school , two aspects must be taken into account: firstly, the reference date regulation; it determines the age from which children should normally start school and is specified by the respective federal state nationwide. Second, the child's ability to attend school ; In the event of deviations from the cut-off date regulation, parents can assert that they let their child start school early or that they do not want to send them to school yet.

In most countries, in the event of a dispute, parents consult with representatives of the donating daycare center, the receiving (responsible) school and the school doctor appointed by the responsible health department , which time of the start of school is the most sensible for the individual child. Since everyday school life can be long and exhausting, it must be ensured that the children who have started school can cope with this demand with strength. The ability to concentrate, the understanding of symbols, the ability to carry out work assignments and an age-appropriate language development are among other factors that provide information about a child's cognitive maturity. In addition, emotional stability, i.e. dealing with one's own feelings and those of others, the curious desire to learn and the ability to deal with other children is necessary in order to be able to cope with the social demands of the school. If the question of enrollment or deferment of a child cannot be resolved amicably, the school management has the last word.

Provisions for school-age children are only permitted nationwide in exceptional cases, for example for medical reasons; but requests for early school enrollment are increasingly being granted. Recently, school administrations in some countries have been more generous than before when it comes to restoring five-year-olds.

Choice of school suitable for the child

The extent to which parents can choose which school their daughter or son should attend varies widely from country to country. The Federal Constitutional Court has in a 2009 judgment announced a Sprengel duty expressly declared constitutional.

In primary schools, the principle should predominantly apply: "Short legs, short distances", i. This means that children should, if possible, attend the school closest to their home and that there should be a school that is relatively close to home. Problems in this context are:

  • the thinning of the school supply in rural areas for demographic reasons
  • the rejection of " non- confessional " people in places where there are denominational schools, with the result that they have to travel relatively long to school.

In most countries, primary school ends after grade 4. After that, children either attend a secondary school in the two- or three-tier system of lower secondary level or a comprehensive school , provided there is one near their place of residence (which does not necessarily have to be the case).

Parents are not allowed to register their daughter or son in a privately owned school. Home schooling is only approved as an exception in Germany.

A fierce point of contention is the question of whether teachers or parents should make a decisive decision on which type of school a schoolchild should attend after completing primary school.

In 2009, Hans Wocken demanded: "Anyone who wants to increase educational and opportunity equity in transition decisions must, if possible, keep their parents out of this decision-making process." However, recent studies have shown that parents are granted the right to decide on the choice of secondary school , which do not exacerbate social inequality in the education system.

Incidentally, the question arises whether the statements made by the Federal Constitutional Court in 1972 on the role of the parents' will from the fifth year of school attendance of their child are now outdated: "The Basic Law initially left the decision on the further educational path of the child to the parents as the natural guardian for the Leave the upbringing of the child. In any case, this takes into account the principle that the child's life is shaped not only according to his or her educational ability, which is already largely influenced by environmental factors, but also that the interests and social ideas of the family are of great importance. This primary decision-making authority of the parents is based on the consideration that the interests of the child are best represented by the parents. In doing so, the possibility is even accepted that the child may suffer disadvantages through a decision of the parents, which could perhaps be avoided within the framework of a selection of the gifted according to objective standards. This right of the parents to determine also includes the power to freely choose the educational path to be pursued by their child in school. "

Inclusion requirement

In 1997 the Federal Constitutional Court ruled that the forced attendance of a special school by a physically disabled girl and her exclusion from joint schooling with non-disabled children did not violate Article 3, Paragraph 3, Clause 2 of the Basic Law ("Nobody may be disadvantaged because of their disability.") represent; because: "The referral of a disabled pupil to a special school does not in itself constitute a prohibited disadvantage".

In 2009, the Federal Republic of Germany joined the United Nations Convention on the Rights of Persons with Disabilities . This requires in Art. 24:

The States parties recognize the right of people with disabilities to education. In order to realize this right without discrimination and on the basis of equal opportunities, the contracting states guarantee an integrative education system at all levels and lifelong learning with the aim of
a) to fully develop human possibilities and the awareness of human dignity and self-esteem and to strengthen respect for human rights, fundamental freedoms and human diversity;
b) To allow people with disabilities to fully develop their personality, their talents and their creativity as well as their mental and physical abilities;
c) Enabling people with disabilities to really participate in a free society.

Human rights activists argue that every child has a right to inclusion. This right is a human right to which all people with disabilities are entitled by nature and whose realization the state must guarantee. Even parents do not have the right to withhold human rights from their children. The German Institute for Human Rights concludes from this: "When exercising parental responsibility, parents have to observe the guiding principle of inclusion and, if necessary, explain why they do not take advantage of inclusive educational offers."

Hans Wocken interprets the legal situation to the effect that, since the UN Convention came into force, compulsory schooling can no longer be compulsory, so that in principle parents no longer have to get involved if the responsible school administration wanted to send their child to a special school against their will. However, according to Wocken, there is also no duty on the part of the school authorities to dissolve all special schools, unlike what the inclusion commission appointed by the Lower Saxony Ministry of Social Affairs saw, which in 2016 demanded succinctly: “All pupils attend the general school and are taught by teachers informs. ”, a view that the Lower Saxony state government did not follow.

However, in Lower Saxony, the grand coalition formed in 2017 confirmed the decision to completely abolish special schools with a focus on learning (formerly called "schools for people with learning disabilities ") by 2028. There is no longer an option for parents of the children and adolescents concerned to enroll their son or daughter in a special needs school of this type. Since 2018, primary school students in Lower Saxony can no longer be referred to a special school with a focus on learning.

In general, however, parents of children with a disability are given a choice. School-age children with a disability can attend either a regular school or a special school. In Lower Saxony, too, there is still the possibility of attending a special needs school at schools with a focus other than learning.

Role of the school in the choice of occupation

In questions of the further development of their daughter or son after leaving school, the BGB recommends that parents cooperate, in particular with teachers, in the interests of the child's best interests:

In matters of education and the profession, the parents pay particular attention to the suitability and inclination of the child. If in doubt, the advice of a teacher or other suitable person should be sought. ( § 1631a BGB)

It must be taken into account that Article 12.1 sentence 1 of the Basic Law does not read: “All Germans of full age have the right to freely choose their profession, workplace and training center.” The freedom to choose a profession is rather a civil right that also applies to minors and that the German state as a guarantor of the fundamental rights of its citizens must protect. Consequentially, parents are not allowed to ignore career plans of their young children that deviate from their plans if they comply with Section 1626 (2) BGB, especially since young people from their 18th birthday onwards would no longer have to take their parents' plans into account and should break off an education that was forced on them .

Not every decision against the child's will or the child's talent justifies state intervention because of a risk to the child's welfare within the meaning of Section 1666 Paragraphs 2 and 3 of the German Civil Code. However, even if the two parents agree, a court can replace the parents 'decision if the parents' educational decision can no longer serve the interests of the child. Arbitrariness or bad will are not required for this.

Principle of school peace

The Federal Administrative Court defines school peace as a state of freedom from conflict and conflict management, which enables proper teaching so that the state educational mandate can be realized.

For a low-conflict relationship between the parents of a school and the school administration responsible for them, it is important that the latter does not take into account essential interests of the parents in decisions. This is especially true if a school is to be closed. The lack of all-day offers for pupils in certain schools is also a source of conflict . In such cases, a school authority interested in a school peace would have to be interested in finding a sustainable solution through ongoing discussions with parents' representatives , provided that it is the decisive decision-making body.

However, it is also possible that the state government in question, as the decisive authority for school policy, is the trigger of the unrest by thinning out or canceling the offer at an existing school type or by not offering parents a type of school they want. Changes in the cut-off date for enrollment in primary school and in the standard length of stay at schools ( G 8 vs. G 9 ) also cause displeasure among many parents.

All of the cases mentioned have in common that politicians bear (joint) responsibility for the criticized conditions, so that the parents' wishes can also be enforced by pointing out an upcoming local or state election .

Healthcare

According to Article 2, Paragraph 2 of the Basic Law, the state is obliged to guarantee the right to life and physical integrity of the people who are in its sphere of influence. This also applies to potential victims of other vaccine fatigue . In principle, medical interventions by doctors and other health care personnel constitute the criminal offense of bodily harm according to Sections 223 to 231 of the Criminal Code if no legally binding declaration of consent (in the case of minors: the legal guardian) was given prior to this intervention. The question arises, however, in which cases helpers are allowed to perform medically necessary interventions even without such a declaration.

Vaccinations

There have been no compulsory vaccinations in the Federal Republic of Germany since 1975 . Up until this point, parents were required to have their underage children vaccinated against smallpox . So today parents have the right not to have their children vaccinated.

However, since " herd immunity " is only given in diseases such as measles when at least 95 percent of the population has been vaccinated against measles, and since not vaccinating against measles can lead to serious damage, in extreme cases even death There are voices calling for a vaccination against measles in Germany based on the example of countries like France. This is the only way to protect the minority of people for whom there is a contraindication to measles vaccination.

With the entry into force of the Act on the Modernization of Epidemiological Monitoring of Communicable Diseases on July 25, 2017, the text of Section 34 Paragraph 10a of the Infection Protection Act (IfSG) was worded as follows:

"When the child is first admitted to a day-care center, the legal guardians must provide the child with written evidence that medical advice has been given promptly before admission with regard to complete, age-appropriate vaccination protection for the child according to the recommendations of the Standing Vaccination Commission. If proof is not provided, the management of the day-care center notifies the health department in whose district the facility is located and provides the health department with personal information. The health department can invite the legal guardians to a consultation. [...] "

Anyone who, as a legal guardian, does not provide evidence or does not provide evidence in good time, commits an administrative offense and can be fined.

Medical treatment, prescription of medication

In a first step, a doctor must clarify whether a minor patient is capable of giving consent. This must be clarified on a case-by-case basis. As a rule, it can be assumed that young people are capable of giving their consent. You may have the right to veto planned measures, even if both parents agree. In the case of routine measures and minor interventions, the consent of minors capable of giving consent is sufficient. If treatment measures that are not entirely safe are provided, the consent of the legal guardian is also required for young people. If both parents have custody, both custodians must agree to the treatment for moderate and severe interventions.

Web links

Individual evidence

  1. ↑ UN Convention on the Rights of the Child: Art. 3, Paragraph 1
  2. ^ Matthias Jestaedt: Child welfare and parental primacy . Lecture at the Evangelical Academy Bad Boll . 1st - 3rd April 2005. p. 2
  3. ^ United Nations General Assembly resolution 217 A (III). Universal Declaration of Human Rights
  4. ↑ Uta Reimann-Höhn: Who decides on school enrollment? Parents, kindergarten and school work together to determine whether they are fit for school . kizz. The parents' magazine for kindergarten time . 2015
  5. ↑ Christian Wolf: School Minister makes later school enrollment easier . wdr.de. 19th October 2017
  6. ↑ BVerfG, 1 BvQ 37/09 of August 26, 2009, paragraph no. (1-15)
  7. ↑ z. B. Bremen Economic Development Agency: Elementary school in Bremen
  8. ↑ z. B. Bavarian Teachers' Association: Elementary School Closures - Short Legs, Long Ways ( Memento of the original from March 5, 2017 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. . BLLV (magazine of the Bavarian Teachers' Association). Edition 1/2014. February 18, 2014 @1@ 2Template: Webachiv / IABot / www.bllv.de
  9. ↑ Initiative “Short Legs - Short Ways”: Confessional Primary Schools 2018 - ready for a museum . 4th January 2018
  10. ↑ Hans Wocken: Parents' right to vote !? About the servitude and finiteness of the parents' will . Mittendrin.de. 2009, p. 7
  11. ↑ Armin Himmelrath: Transfer to high school: The parents' will is not unjust . Mirror online. 22nd September 2015
  12. ↑ BVerfGE 34, 165, 184
  13. ↑ BVerfGE 96, 288
  14. ↑ UN Disability Rights Convention. Education . Praetor Media UG
  15. ↑ Valentin Aichele: Human rights commissioner criticizes the development of inclusion in Germany as "clearly contrary to the Convention" . news4teachers.de. March 9, 2016
  16. ^ German Institute for Human Rights: Statement by the monitoring agency. Cornerstones for realizing an inclusive education system (primary level and secondary levels I and II). Recommendations to the federal states, the Standing Conference (KMK) and the federal government . March 31, 2011, p. 14
  17. ↑ Hans Wocken: Errors running around freely. A warning against pseudo-inclusive infatuations . Education server Mecklenburg-Western Pomerania. 2013, p. 5
  18. ↑ Inclusion Commission: Goals and measures for the implementation of the UN Disability Rights Convention in Lower Saxony . Lower Saxony Ministry for Social Affairs, Health and Equality (ed.). September 2016, p. 16 (point II.4.2.15) online
  19. ^ Eva Julia Lohse: Child welfare - right to education - parental and state educational decisions . Iurratio . December 8, 2015
  20. ↑ BVerwG judgment of November 30, 2011 - 6 C 20.10
  21. ↑ Gunars Reichenbachs: Parents rehearse the rebellion on the school day . nwzonline.de, August 26, 2017
  22. ↑ A pros and cons of mandatory vaccination . Deutsches Ärzteblatt . July 8, 2013
  23. ↑ Jakob Simmank: "Natural immunity also means that some children die" . zeit.de . April 14, 2017
  24. ↑ Lower Saxony State Health Office (NLGA): Legally required vaccination advice before initial admissions to a community center for children . 2017
  25. ↑ Philip Schelling / Tonja Gaibler: Obligation to provide information and the ability to consent: Rules for difficult constellations . Deutsches Ärzteblatt . March 9, 2012