Judgment of the Federal Court of Justice: masks in schools are not a case for family judges

Status: 10/27/2021 8:47 p.m.

Two judges at family courts wanted to suspend the mask requirement in schools in the spring – the decisions were conceded. The BGH now made it clear: Only the administrative courts decide on this question.

By Christoph Kehlbach, ARD legal editor

The Federal Court of Justice (BGH) in Karlsruhe has ruled several family courts, which did not deal with the content of the suggestions of worried parents of school-age children. These parents wanted to use family law to suspend the mask requirement in their children’s schools. “The judicial control of this action by the authorities – also with regard to infection control measures in the respective schools – is the sole responsibility of the administrative courts,” says a statement from the BGH.

The BGH decision makes it clear to the highest court that two family courts exceeded their competence in the spring when they themselves wanted to order a lifting of the mask requirement. Both of these proceedings were not directly affected by today’s decision from Karlsruhe. However, they had ensured that numerous other family courts were asked by parents to “rule into” the competence of the administrative courts as well.

Resolutions caused a stir in the spring

There were only two decisions by the courts of first instance, but they caused a great stir in the public: In the spring, a family judge in Weimar and a family judge in Weilheim let many opponents of the Corona measures cheer for a short time, while the legal experts unanimously reacted with a shake of the head.

The family judges had, with reference to “concern for the child’s welfare”, want to suspend the mask requirement at that time in schools in their judicial district. This attempt was overturned in the higher authorities, so the decisions did not stand. However, they motivated many parents to turn to family courts for their part.

Regulation from family law “misappropriated”

The core of the said decisions was that the two family judges, with reference to a provision from family law, wanted to give the school authorities to suspend the mask requirement for pupils. They justified this with a norm from family law. The fourth paragraph of § 1666 BGB states that if the child’s well-being is at risk, “the court can also take measures with effect against a third party”.

The purpose of the regulation is to be able to get children at risk out of immediate danger in the family environment. The youth welfare office should be able to intervene, for example if there is a suspicion that you are the victim of sexual or other violence. The resolutions from Weimar and Weilheim referred to this norm when they wanted to overturn the mask requirement in schools. Among other things with a reference to the fact that the masks would cause “sail ears”.

Legal experts reacted stunned

In Germany, however, only the administrative courts decide whether state measures are illegal or not. They check whether the state is going too far legally, for example with corona measures such as the mask requirement. That is the legal way. Such decisions by the administrative courts were the order of the day, especially in connection with corona measures.

In circles of the “lateral thinking” movement, parents were expressly encouraged to turn to the family courts. In some cases, appropriate forms have been provided for the “suggestions”. The aim was evidently to override the corona measures “via gang”. With little success: the two decisions of the family judges in Weimar and Weilheim remained isolated cases. Precisely because the family courts do not have jurisdiction. The BGH has now underlined this again: The family court procedure that was at issue in Karlsruhe “was (…) to be discontinued”.


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