Karlsruhe ruling upholds sensational Weimar verdict: no legal basis for the accusation that justice was perverted
Working English translation (DeepL plus corrections and emphasis by Howard Steen) of German article: https://2020news.de/beschluss-aus-karlsruhe-stuetzt-sensationsurteil-aus-weimar-rechtsbeugungsvorwurf-gegen-richter-ohne-grundlage/
The Senate for Family Matters at the Higher Regional Court of Karlsruhe has issued a decision (AZ 20 WF 70/21), which shows that the accusation of legal defiance against the Weimar family court judge Christian Dettmar was made without legal basis. The Higher Regional Court (OLG) of Karlsruhe stated that the family court is obliged to initiate preliminary investigations in accordance with its discretion when a suggestion is made pursuant to § 1666 of the Civil Code. It cannot simply shift the examination of whether there is a risk to the welfare of the child to the administrative court.
The decision of the Higher Regional Court of Karlsruhe was issued on the basis of the complaint of a mother who felt that the physical, mental and spiritual well-being of her children was endangered at a school in Pforzheim because of the school's internal order of Corona measures.
The family court in Pforzheim had referred the proceedings to the administrative court: The mother sought the annulment of school protection orders and the review of the legal ordinances on which the orders were based. The Administrative Court was responsible for this.
The mother had argued that the subject matter of the proceedings was a matter of personal welfare for which the family court alone was competent.
The judge at the Karlsruhe Higher Regional Court - Senate for Family Matters - followed the mother's legal opinion and overturned the decision of the Pforzheim Family Court: the Family Court was the court responsible for assessing a possible risk to the welfare of the child, it could not simply transfer the task assigned to it by law to the Administrative Court.
The decision shows that the legal opinion of the Weimar judge Christian Dettmar is legally correct. He had made the decision, which became known as a sensational ruling, that two Weimar schools were forbidden with immediate effect to require pupils to wear mouth-nose coverings of all kinds (especially qualified masks such as FFP2 masks), to comply with AHA minimum distances and/or to take part in SARS-CoV-2 rapid tests. At the same time, Judge Dettmar said, classroom instruction must be maintained.
Judge Dettmar's decision was made - for the first time worldwide - after evaluating expert opinions. The biologist Prof. Dr. Ulrike Kämmerer had prepared an expert opinion on the lack of significance of the PCR tests. The hygienist Prof. Dr. Ines Kappstein had evaluated the current studies on the masks and found them to be of no use in warding off viruses, while at the same time the masks were harmful to their wearers due to contamination, among other things. The psychologist Prof. Dr. Christoph Kuhbandner had examined the psychological impairment of the children by the measures. In his decision, the judge followed the findings of the experts and affirmed a risk to the welfare of the children if the measures were continued (full German text of the decision including expert opinion).
Because of the - legally correct - assumption of his jurisdiction, Judge Dettmar had been accused of perverting the course of justice by the Erfurt public prosecutor and in the media. On the basis of the accusation of perverting the course of justice, a house search was carried out in the judge's office, car and private premises, and his mobile phone and laptop were confiscated and mirrored. The prosecutor's action against Judge Dettmar has now, at the latest with the decision from Karlsruhe, been put to rest. His defence lawyer, Dr. Gerhard Strate, had already publicly stated that he could not see any legal basis for criminal proceedings against the judge.
A family court judge in Weilheim, who had affirmed her jurisdiction in a similar case and ruled against the obligation of two pupils to wear masks because of a risk to the welfare of the child, is also currently being investigated by the public prosecutor's office IV in Munich for obstruction of justice because of a decision despite lack of jurisdiction. The Karlsruhe decision is equally relevant for these proceedings.
The Network of Critical Judges and Public Prosecutors has published an extensive analysis on the family law issues in connection with § 1666 BGB.
§ Section 1666 BGB reads "If the physical, mental or psychological well-being of the child is endangered by abusive exercise of parental care, by neglect of the child, by failure of the parents through no fault of their own or by the conduct of a third party, the guardianship court shall, if the parents are unwilling or unable to avert the danger, take the measures necessary to avert the danger. The court may also take measures with effect against a third party."
The standard also applies to the implementation of the UN Convention on the Rights of the Child, which has been unconditionally in force since 15 July 2010. It stipulates, among other things: "Article 3 [Guarantee of the best interests of the child] (1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
(2) States Parties undertake to provide the child with such protection and care as is necessary for his or her well-being, taking into account the rights and responsibilities of his or her parents, guardians or other persons legally responsible for the child, and to this end 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 rights properly, but also against third parties who behave in a manner that violates the best interests of the child. These can be individuals but also institutions such as kindergartens.
The judges state: "In comparison to the general civil law legal protection system relating to adults, the legal protection of children is structured in a special way due to the need for care and development of children and the primary transfer of comprehensive responsibility for the child to its parents... The explanatory memorandum to the law states (BT-Drucks 16/6815, 10): "Since 'the best interests of the child are the guiding principle for the mandate of the state pursuant to Art. 6 (2) GG" (BVerfGE 24,119,144), the endangerment of the child must be the decisive connecting factor for the intervention of state protective measures. The occurrence of a gap in protection would not be compatible with the protection of the child's fundamental rights as an independent personality." This objective danger to the child includes the previous alternatives "endangerment through failure of the parents" and "endangerment through a third party" (cf. MüKoBGB/Lugani BGB § 1666 marginal no. 105).
According to the conception of § 1666 BGB, the only decisive factor is that it is a measure that is necessary to avert the danger in compliance with the principle of proportionality. In this context, it is also to be noted on the basis of case law that such measures with regard to third parties sometimes have far-reaching consequences for them, whereby family court measures can also intervene in existing tenancy and employment relationships (cf. AG Berlin-Tiergarten, Streit 1992, 89, 90 f: in the case of suspected sexual abuse by house residents not removal of the children [so youth welfare office], but "go-order" against alleged perpetrator; similarly AG Berlin-Wedding WuM 1992, 470 f: violent caretaker is to be suspended from duty and kept away from residential complex; OLG Cologne KindPrax 1999, 95 f: ban on entering the urban area of Kerpen, OLG Zweibrücken order of 05. 11.1993 - 3 W 165/93, NJW 1994, 1741: prohibition to live in the neighbourhood)."
The family court's duty to examine on the basis of a suggestion pursuant to § 1666 of the Civil Code is not only directed at organisations under private law such as public schools, tennis clubs, etc., however; the judge's office of guardianship of the children also requires the examination of state action for possible endangerment of the child's welfare.
The judges write: "Such a teleological reduction of § 1666 BGB to non-governmental addressees of the measures could be supported by the fact that the sense and purpose of the provision is the fulfilment of the state's duty of guardianship and that the state itself is not obliged to avoid endangering children only via the diversions of the state's duty of guardianship, but that any state agency must ensure that its actions do not harm children anyway due to its obligation under the law. However, such a view would violate the principle of separation of powers; within this framework, it is an essential part of our constitutional order that the three powers control each other. If the legality of the actions of a state agency were always taken for granted, there would be no need for the principle of separation of powers.
The family law proceedings according to § 1666 BGB are characterised in several respects by special features related to children and child protection, including the principle of acceleration. In addition, the proceedings before the administrative courts are designed to be dependent on a petition or complaint, whereas the legislature has deliberately dispensed with such a requirement in the regulation of § 1666 BGB. The latter results from the function of the state's guardianship, the exercise of which cannot depend on the initiative of private persons or authorities (Staudinger/Coester (2020) BGB § 1666, marginal no. 261)."
The conclusion of the network of judges: "If one deals in detail with the legal conception of the family court proceedings according to § 1666 BGB, §§ 24, 157 FamFG, it is understandable on which basis the two decisions from Weimar and Weilheim were issued. Apparently, the competent judges were convinced, based on the findings available at the time of the ruling, that the probability and temporal proximity of the occurrence of damage was so great that they felt not only entitled but even obliged to issue a temporary injunction in this regard. They were also authorised to do so in the exercise of the state's duty of guardianship. As surprising and unusual as the two decisions may be in their outcome and as little such a constellation has been considered in case law and literature so far - there is no error in the area of the assumption of legal recourse, the jurisdiction as a family court and the family law methodology.
However, the way in which the two decisions and the expert findings contained therein have been received in a controversial manner, which can ultimately only be explained by the very dynamic situation of the Corona pandemic, which is characterised by great uncertainty, gives cause for concern. As far as can be seen, there has been no judicious legal examination and discussion of the decisions from Weimar and Weilheim, particularly with regard to the legal process and the jurisdiction of the family courts. This essay would like to make a contribution to this. It also seems natural to first read the expert opinions on which the decisions are based and only then to discuss them on the merits.
It is to be hoped that, despite these difficulties, the courts will be able to deal with the individual facts before them with the appropriate composure, impartiality, calmness but also intensity.
Irrespective of this, every serious decision made in judicial independence deserves respect. To describe such well-founded decisions as those of the Weimar Family Court as a "break-out legal act" lacks any basis from a family law perspective."
On 1 May 2021, white roses were laid down in front of court buildings all over Germany, but especially in Weimar, where Judge Dettmar worked.