Upbringing

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The term right of upbringing encompasses legal regulations that affect the upbringing and everyday care (in Austria: custody ) of minors .

In a narrower sense, the right of upbringing is first and foremost the right of parents to care for and bring up their children. In German law, this corresponds to an equal state educational mandate , which also includes a guardianship for compliance with parental obligations.

Federal Republic of Germany

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Upbringing right and upbringing obligation

The right of upbringing, but also the duty of parents to bring up their children, is laid down in Article 6, Paragraph 2 of the Basic Law in Germany : the care and upbringing of children is the natural right of parents and their primary duty. The state community watches over their activities.

Parents who evade this responsibility cannot invoke parental rights in the face of government intervention for the benefit of the child. In the case of blatant violations, such as neglect or corporal punishment, the parents' right to bring up children can be withdrawn and welfare institutions can be transferred. The guardianship of the state (Article 6, Paragraph 2, Sentence 2 of the Basic Law) is primarily based on the child's need for protection, who as a holder of fundamental rights has his or her own human dignity and the right to develop his or her personality.

The legislature provides certain state aid to overburdened parents: for example, youth welfare law of 1990 in SGB VIII (child and youth welfare (KJHG)) usually offers custodians (voluntary) benefits as a legal entitlement. These are the educational aids in accordance with Sections 27 to 41 of Book VIII of the Social Code.

The state educational mandate emerges from Article 7 (1) GG , which places the school system under the supervision of the state. The state educational mandate at school is not subordinate to parental rights, but is on a par with parental rights. Neither parental rights nor the state's educational mandate have absolute priority. Compulsory schooling serves the goal of enforcing this state educational mandate (BVerfG, Chamber Decision of April 29, 2003 - 1 BvR 436/03 - DVBl 2003, 999). The state's mandate, which is required by Article 7, Paragraph 1 of the Basic Law, is not limited to imparting knowledge, but also has to do with training the individual child to become a responsible member of society (BVerfG, judgment of December 6, 1972 - 1 BvR 230/70 et al. - BVerfGE 34, 165 <183>; decisions of December 21, 1977 - 1 BvL 1/75 et al. - BVerfGE 47, 46 <71 and 71> and of May 16, 1995 - 1 BvR 1087 / 91 - BVerfGE 93, 1 <21>).

In July 2000, the German Bundestag passed the law outlawing violence in upbringing . ( See also: Corporal punishment in today's family law .)

Violation of educational duties

In return, the right to education is linked to duties. Adolescents have a right to integrity and appropriate physical, mental and emotional development. Violations of the duty of care and upbringing towards the wards are an offense under German criminal law , which can be punished with a prison sentence of up to three years or a fine according to Section 171 of the Criminal Code . The special protection obligation applies up to the age of 16.

According to criminal law, serious offenses are defined as slipping into a criminal way of life (prostitution, etc.), physical abuse or neglect or serious interventions in their development such as instructing them to beg or preventing them from going to school regularly.

Minors enjoy extensive protection under civil law . According to § 828 BGB, your tortious liability is limited depending on your age. In the event of a breach of the duty of supervision , the minor is not liable for any unlawful damage caused by him, but under certain conditions the person responsible for supervision ( parents are liable for their children , § 832 BGB).

Cooperation between school and legal guardian

The sometimes conflict-prone cooperation between school and legal guardians is regulated in the school laws of the federal states. For example, the Bavarian School Act in Articles 74 to 77 with effect from January 1, 2017:

The common educational task that the school and the legal guardian have to fulfill requires cooperation based on mutual trust. In a school-specific concept for the educational partnership between the school and the legal guardian, the school develops the structure of the cooperation. (BayEUG, Art. 74)

Regarding the special duties of the legal guardians it says: The legal guardians are obliged to ensure the conscientious fulfillment of the school duties including the obligation according to Art. 56 Para. 4 Clause 4 and the requirements set by the school by the pupils and the To support the school's educational work. In particular, the legal guardians must ensure that underage school-age children regularly attend classes and attend the other mandatory school events. (BayEUG, Art. 76)

In conflict situations that cannot be resolved by mutual agreement, legal guardians do not have the right to make unauthorized decisions, such as refusing to take part in swimming lessons. They only have the option of filing an administrative complaint , which is a special form of the petition provided for in Article 17 of the Basic Law . This is to be addressed as a so-called informal remedy to the official's disciplinary superior or to the supervisory authority . In extreme cases, courts will clarify the validity of these regulations, which apply not only to the Federal Republic of Germany but also to Austria and Switzerland, but which are sometimes stubbornly contested by individual parents. For example, on January 10, 2017, the European Court of Human Rights in Strasbourg upheld the judgment passed by the Swiss Federal Supreme Court in 2012 on the legality of the sanctioning of parents for refusing to allow their children to take part in swimming lessons.

See also

literature

Upbringing law in Germany:

  • Georg Köpferl: Regarding the legal interest and prerequisites for the violation of the duty of care and upbringing (§ 171 StGB) , [2]
  • Heribert Ostendorf: The criminal liability of parents due to violation of the duty of care and upbringing - A crime preventive study , Nomos-Verlag, Baden-Baden 1999, ISBN 978-3-7890-6007-6 .

Individual evidence

  1. ↑ Georg Köpferl: Regarding legal value and factual requirements of the violation of the duty of care and education (§ 171 StGB) , [1]
  2. ↑ Heribert Ostendorf: The criminal liability of parents due to violation of the duty of care and upbringing - A crime preventive study. Nomos-Verlag, Baden-Baden 1999
  3. ↑ Protection of minors in the entire BGB juraLIB.de, mindmap, accessed on August 3, 2017
  4. ↑ Judgment "2C 666/2011 (March 7, 2012)" of the Federal Court on relevancy.bger.ch
  5. ↑ Faz.net: Muslim women must take swimming lessons , accessed on January 22, 2017