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Entrance to the Weimar District Court: case-by-case decision made headlines
Photo: Martin Schutt / picture alliance / dpa
The repeated attempts by corona deniers and other critics of school corona measures to override the obligation to wear masks, tests and distance requirements in the classroom via family law have failed: Family courts cannot fundamentally override any corona measures in schools.
The Federal Court of Justice (BGH) decided on Wednesday.
Family judges can therefore in principle not issue orders to school authorities - even if they argue with the enforcement of the child's best interests.
Judicial control in this area is the sole responsibility of the administrative courts, according to the decision of the BGH.
(File number XII ARZ 35/21)
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The question had become explosive in the spring when a Weimar family judge had exempted two school children from the mask requirement at the request of their parents in an urgent procedure.
There had been a similar case in Weilheim in Upper Bavaria.
Both decisions had made headlines nationwide and were soon cashed back by higher authorities.
Several charges of perversion of the law had been brought against the judge.
Nationwide campaign, ultimately unsuccessful
In the "lateral thinker" scene, the initial decisions had met with a great deal of approval.
There was then a campaign call to take family courts to other places in order to circumvent corona measures in schools.
District courts in large cities had reported dozens of applications, often with the same wording, which consistently referred to Section 1666 of the Civil Code.
This states that family courts can take measures "which are necessary to avert the danger" if the child's well-being is endangered.
These measures can also be directed against third parties.
The Federal Court of Justice has now made it clear that this does not entail any powers of a family court that relate to the enforcement of the child's best interests against school authorities.
"In the context of the school special legal relationship, the responsible authorities are in turn bound by the fundamental rights protecting the child's welfare," declared the BGH.
The control of whether the actions of the authorities are correct is carried out exclusively by administrative courts.
The fundamental decision on Wednesday was triggered by the case of a 15-year-old from North Rhine-Westphalia.
Her parents - presumably based on the Weimar model - demanded at the family court in Wesel that their daughter be exempted from the test, mask and distance requirement in her school.
With the BGH decision it is clear: The family court was the wrong contact for the family.
him / dpa
