Mask requirement and corona tests in schools: the dispute escalates

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The dispute over the ruling by two local courts on the Corona ordinances in schools continues.

Both in Weimar and in Weilsheim in Bavaria, family judges had decided that teachers and schools should not oblige a child to wear mouth and nose protection, to maintain a minimum distance or to be tested for the corona virus.

First of all, a family judge in Weimar issued this order in an urgent procedure last week.

From the point of view of lawyers, however, this is not tenable because the family court is not responsible for corona hygiene measures: "A family court may not repeal measures that are based on the Infection Protection Act," said Augsburg constitutional lawyer Josef Franz Lindner in an interview with WELT Procedure in Weimar.

There, a mother of two children, aged eight and 14, applied to the Weimar District Court.

The responsible judge then decided that it was forbidden to prescribe hygiene measures to the children of the relevant elementary school and regular school.

This harms the physical and mental development of the children without resulting in any noteworthy benefit, he argued in his judgment.

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The judge relied on three expert reports and finally weighed between the child's interests and the measures.

According to a spokeswoman, there are other proceedings on the same subject at the Weimar District Court.

In the meantime, the public prosecutor's office in Erfurt has also received several criminal charges against the judge, who is accused of perverting the law.

Which court is competent?

From the point of view of constitutional lawyer Lindner, the legal route via the family court is inadmissible.

The magistrate was not empowered to rule on this case, he said.

Anyone who wants to undermine corona protective measures such as mask or test obligation must turn to the administrative court.

This alone could then also decide on a possible endangerment of the child's welfare, the family court could only deal with family law proceedings.

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The “Network of Critical Judges and Public Prosecutors”, an association of lawyers who came together on the occasion of the Corona crisis, sees it differently.

The Weimar case is a child protection procedure according to the German Civil Code.

This offers family courts the opportunity to take measures against third parties.

And then when the child's well-being is endangered by them - this also includes teachers, school administrators or authorities, argued the lawyers.

It will show that there are no legal remedies against this decision, said spokesman Oliver Nölken.

Because the Ministry of Education wants to take action against the order.

The ministry said that the complaint was being submitted to the Jena Higher Regional Court.

This should then also decide which court is now responsible for these issues.

Meanwhile, on Tuesday, a family court in Weilheim, Upper Bavaria, exempted a child from wearing a mask at school.

The parents had complained against it.

The family judge ruled that the child's well-being was endangered by the mouth and nose protection, and also that the child at the secondary school should not be isolated in class because of the judgment.

The verdict is at WELT.

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In the personal hearing, the protocol of which WELT is also available, the child had stated that they suffered from headaches and nausea if they had to wear the mask for a longer period of time.

He went black several times.

From October until shortly before Easter it was released from mouth and nose protection by a certificate stating that the school management had not recognized a new letter.

The health consequences of the mask are "massive, unacceptable physical impairment of the child", it says in the justification.

The court is convinced that these are not due to other causes, in particular not, as might be assumed, to the fact that the child's parents talked the child into the complaint.

It was not without reason that the child had presented a certificate.

The judge found the order of the Bavarian Infection Protection Ordinance of a mask requirement to be unconstitutional.

The purpose of mouth and nose protection has not been proven, and the obligation is disproportionate in comparison to the harm to children associated with it.

The decision only applies to this individual case, said a spokeswoman for the court.

In principle, however, the court decision does not overturn the relevant ordinance.

Child protection groups and parents' associations consider tests to be justifiable

The German Child Protection Association did not want to comment specifically on the judgments.

Basically, one welcomes the efforts of the federal states to keep schools open as long as possible, which is what children of primary school age in particular are dependent on, a spokeswoman told WELT.

"We therefore consider testing obligations for teachers and students to be justifiable."

The State Parents' Association of Thuringia is critical of the judgment in Weimar.

"If the alternative is that we do not send the children to school, then we consider such measures to be better," said spokeswoman Claudia Koch.

However, the association feels that political communication is problematic.

The parents were taken by surprise by the new mask requirement.

Many parents also find it difficult to understand why, for example, the children can no longer travel to excursions and school trips, but “lateral thinkers” as a group in buses lead to demonstrations.

According to the latest decision by the cabinet, face-to-face classes with only two corona tests per week will soon be permitted in schools across Germany.

However, this does not mean that operation will start again completely; interchangeable models are still provided.

If the seven-day incidence in a district or an independent city is over 200 on three consecutive days, face-to-face teaching should then be completely prohibited.