Revised and updated
The parents of the four children who were taken away permanently by the ruling of the OLG Nürnberg are appealing the decision to the Federal Constitutional Court in Karlsruhe. There are a number of constitutional violations in the OLG rulings that must be heard by the honorable court. Here are some of them:
- The court in its ruling admits that there is no evidence of abuse in the children. On the day of the seizure by the state the doctor found that no signs of physical or any other kind of abuse; the courts could neither find any damage. According to the courts conviction the impending chastisement in the future, are chastisements that do not leave marks.
- In its reasoning the court takes the position that all spanking is abuse. The Jugendamt handbook says that all spanking is not abuse: corporal punishments that are connected to afflicting a little force or violence, that don’t hold any risk of injury, and obviously serve as an educative purpose, are clearly to be differentiated from abuse and are regularly not connected to a damage of a child’s welfare.1 This supports what Parliament made clear in 2000 that the intent of the law was not to criminalize parents who spank – much less that they would lose their child custody.
- The OLG (higher appeals court) had to recognize that the parents meet their children with love and affection and avoid all the education mistakes that the former constitutional judge, Udo di Fabio, brings into consideration: “Corporal violence at certain intensity [is] very obvious to those who want to see, the inhuman child abuse happens in at least as much in “nonviolent” behaviors. Whoever doesn’t speak to his disobedient child for three days might abuse his child in his soul in a far greater way than a considered reaction and moderately give him a “blow” which used to be common. Whoever leaves already little children alone in front of the television or computer, whoever does not confront outstanding misconduct in children or youth based on his own indifference and comfort, whoever demonstrates a lack of bonding, through their own misuse of nicotine and alcohol, or sets a devastating example through disorderly lifestyle, hurts his children enormously…”
- The constitutional court will have to answer important questions for all the parents, whether the custody can be taken from parents due to conviction of the court that there’s impending corporal punishment, that doesn’t leave marks, if the parents indisputably raise their children with love, affection and a good example. According to the reasoning of the OLG Nürnberg that does not matter, and all parents who by some educative reason might spank, could lose their child custody.
- As the press release of the OLG shows, it treated the parents mainly as members of the Twelve Tribes. The withdrawal of the custody is justified identically for both families. It is a matter of individual families and individual parents, which differ in many ways. They have the warranted right to be treated and judged as individuals, especially before court. The thing they have in common is that they belong to the Twelve Tribes. The OLG Nürnberg bases their justification of the withdrawal of custody on that. It even states clearly that, unless the parents would give up their religious responsibility they could not regain the custody over their children.
- When one of the social workers heard about the decision, she commented, “I thought the German government did away with sippenhaft (guilt by association) in 1945, but I see that it was re-instituted in this decision by the OLG.”2
- The affected parents see themselves as persecuted for their religious convictions and robbed of their children.
- The behavior of the press confirms this suspicion: The press release of the OLG Nürnberg is being spread without even attempting to give the parents a chance to make a statement. The parents are not represented as individuals and bearers of constitutional rights, but vilified as cult-parents through guilt of association.
- According to the international criminal law genocide is committed by the one who forcefully takes away children from a religious group, in order to completely or partially destroy the group. Does the collective removal of all the children of the community of the Twelve Tribes, from the infants up to almost adult youth, without concrete evidence of an endangerment of those children and youth, and their religious re-education in state custody not fulfill the fact of genocide?3The Constitutional Court will have to answer these questions.
If these question are not answered by the German constitutional court, how can ordinary citizens know when they violate the law? By the court’s reasoning every Catholic in Germany who believes what the Pope said about spanking should have their children taken away.
Guilt by association is a violation of a basic freedom according to the Basic Law.
- “Corporal punishments of children are forbidden in Germany according to § 1631 BGB. But not every physical penalty that is connected with minor use of force or violence and does not include any risk of injury and serves for the child obviously as educational purposes are to be clearly differentiated from physical child abuse.” Excerpt from: Manual child endangerment under §1666 of the Civil Code and general social service (ASD); Note 8, Section 5-3 Kindler, Lillig, Bluemel, Meysen, Werner (ed.)) ↩
- Sippenhaft is clan guilt. According to Wikipedia it refers to the principle of families sharing the responsibility for a crime committed by one of its members. Practiced by totalitarian regimes such as Communist Russia and North Korea and also by socialist regimes such as National Socialist (Nazi) Germany. ↩
- According to the Convention on the Prevention and Punishment of the Crime of Genocide, Article 2, genocide is to “d) Imposing measures intended to prevent births within the group;” and “e) forcibly transferring children of the group to another group,” thereby, with regards to the Twelve Tribes in Germany, accomplishing “c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;” not to mention the second part of “b) Causing serious bodily or mental harm to members of the group.” ↩