The granting of the statutory rights of access is a violation of law, according to the care and education requirement dar. So the boycott of a guardian is over a non-parental care in § 171 StGB (penal code) also determined and is punishable:
§ 171 breach of care or education required
Who his care or education required grossly against a person under sixteen years of hurt and thus brings the wards in the danger to his physical or mental development to be significantly damaged, [..] is punishable by imprisonment up to three years or a fine.
objective of this legal norm, that child injurious behaviors of persons who are committed to the custody may also be punished. These costs may fall as well as behavior which, for example, failure to Include assistance.
The § 235 StGB (Criminal Code) goes further:
§ 235 Child Stealing
(1) A prison sentence is punishable up to five years or a fine, who first
a person under eighteen years of age by force, threat of appreciable harm or by fraud or
second a child to be without their relatives, parents, a parent, guardian or caregiver withdraws or withholds.
third a child to be without their relatives, parents, a parent, guardian or caregiver withdraws or withholds.
Of this also covers detected beyond where his guardian, the non-parental care specifically the rights of access.
following Supreme Court decisions of the Federal Court to be known:
1.BGH, Judgement of 23.6.1993 - 3 StR 89/93
2.BGH, Judgement of 11.02.1999 - 4 StR 594/98
3.BGH, Judgement from 09.02.2006 - 5 StR 564/05
In the "grandparent case" would be as such to render assistance and child abduction the official misconduct of the official guardian by - despite knowledge of the behavior problems in child and adolescent psychiatry, and despite knowledge of a burning desire see the child's grandparents to do - has done nothing to protect the child from further to protect physical and psychological threats and comply with its express desire to see his grandparents.
Because - must be considered as it has, the official guardian nothing about it that the child is in child and adolescent psychiatry in terms of its psychological needs regular contact with his grandparents.
According to experts it is very well understood that the permanent withdrawal of treatment in this case led to a very serious psychological distress in this child and the occurring aggression and other behavioral problems could thus be attributed to the fact. These assumptions of the experts based in particular on the fact that in the period when the grandchild has lived with his grandparents, that is, from his first to the age of six no extreme aggression outbreaks have occurred, which have a shipment of child psychiatry can be necessary.
Does the guardian's transactions improperly and damage occur as a result, this triggers compensation obligations. Liability claims are directed against the Authority (Youth Board).
For breaches of the minor are used as bases for claims, both public liability claims under § 839 BGB in conjunction with Article 34 GG and state liability claims according to § 1 para 1 StHG and claims under the terms of the guardian's liability provisions of § 1833 BGB considered.
Dispatched by the breach of duty claims of third parties, a pure
public liability claim may be considered. In cases of gross negligence or willful misconduct, the Authority may rely on individual employees or individual employee.
The legal advisor shall be liable for intentionally and negligently caused damage in their care if this is a breach of duty (§ 1833 BGB in conjunction with § 1908i para 1 BGB).
Come by failing in a ward of the guardian is liable to damage the guardian:
damage can also be caused by omission more necessary actions. Damage caused by neglect can lead to liability if the supervisor would have to act to protect their care.
An approval of the guardianship court is no exemption from liability for damages. The supervisor is also responsible for the legality of his actions. See on BGH, decision, 18.9.2003.
decision of the AG Essen regarding the compensation requirement as a mother umgangsboykottierenden published
(FamRZ 2008, 717):
No. 380 AmtsG Eating - BGB § § 823 I, 1684, 253
(Case v. 5.6 2007 - 18 C 216/04)
first For the compensation obligation of the custodial parent for failure to grant the handling.
second Handling frustration due regularly no pain and suffering claim.
(Summary from the editor)
The class and the defendant are divorced spouses. From the marriage are the children K., born 1993, and I, born 1995, was formed. The children live with the mother, the defendant, who is solely responsible for them.
By order of the FAMG E. v. 12.20.2002 between the parties to regulate its handling was hit with the kids. ...
accordance with the resolution of the class had a deal with the children of 7 be held until 09/05/2004. . . . The class was looking forward to being with the kids this weekend, as I for the first time in many years, had her birthday with her father and to celebrate.
had this reason the class organized a weekend getaway, where he wanted to celebrate with his children's birthday I.. Here was the IG. - Common ground - incurred for renting a holiday home, an amount in the amount of 180 €.
On 07/05/2004 the class appeared to 14 clock at the residence of the defendant and rang there to pick the children up for this weekend. Here, the class was not opened. On Saturday and Sunday class also tried in vain to to reach the defendant at her apartment to take the children to handle the weekend. Here, the transfer of the children in the class ultimately failed because the defendant, together with the kids wanted to celebrate the birthday of I., which was done.
In these proceedings the class requested by the defendant for damages in the amount of 180 € in vain because of the costs incurred for renting a holiday home on the weekend 7th until 05.09.2004 for dealing with the children.
Furthermore, the class requested by the defendant for damages for non-pecuniary damage because of frustration of dealing with the children at the birthday party of the daughter I on 09/05/2004 in the amount of 3,000 €. ... The defendant claims:
The child I have the birthday weekend v. 7 want to spend up to 09/05/2004 at home with the defendant. When the class had made it clear, that on the seventh weekend with the children there until 05/09/2004, they have - the defendant - again with the daughter I talked to them change their minds. But I cried and I want to celebrate her birthday, despite all persuasion with her mother and sister. ...
from the grounds of:
The action is only partly justified.
The class of the defendant can pay a sum in the amount of 180 € in damages because of the costs spent in vain in the amount of 180 € for the rental of a house Weekend 7th 09/05/2004 foiled because of the demand to deal with the children on the basis of § 823 I BGB in conjunction with the rights under § 1684 BGB. The rights of a parent under § 1684 I BGB is an "absolute right" within the meaning of § 823 I BGB, so that the violation or obstruction to claims for compensation. This follows the Court of the newer literature mainly expressed in the comment view.
The defendant has violated this absolute right of § 823 I BGB fact that the handling of the class with their children on weekends 7th has not approved until 05/09/2004 and prevents, even though the class after that date valid order of the program due to a right state with the children this weekend. .. .
Although there was an understandable interest of the defendant from acting as an mother are celebrating the birthday with her sister and I together can, so they tried to Email v. 30.4.2004, with the class so as to bring about an agreement that the 7th week could spend up to 05/09/2004 with the children. However, since a corresponding agreement with the class in this way was not concluded what was clearly in view of the reply of the class v. 05.02.2004, the defendant was bound to respect the decision at the Local v. 20.12.2002 and the togetherness of the class with the kids on the weekend 7th to allow up to 09/05/2004.
Something else was found in this case not even the fact that the defendant probably would meet the wishes of the child I spend the birthday with her mother and sister to, and thus may correspond to the welfare of children. In the present case had been clarified by the decision of the fact FAMG v. 12.20.2002 rights and duties of parents to deal with the children by a family court decision. Upon effectiveness of this family court decision, all parties bound by the specification of the mandatory law, which basically has the power to exclude the granting of dealing committed parents, the perception of the so concretized duty law by refusing the other parent, in his view, may also considerable reasons why the child against the family court system. Because neither parent had the power to replace the ordering effect of the family court system by its own assessment of the child's welfare and making it ineffective. Rather, the defendant would have been required to allow for their views because the child required deviation from the existing family court system by going to court and finding a different scheme.
Since the defendant failed to do this, it has culpably violated the rights of the 1 (first as an absolute right meaning of the 5 823 I Civil Code and is therefore the class liable for damages for any harm caused.
contrast, the action must be dismissed in so far as the class requested by the defendant for damages for non-pecuniary damage because of frustration of dealing with the children at the birthday party of his daughter I on 05/09/2004 in the amount of 3,000 €.
prerequisite for the replacement of immaterial damage pursuant to § 253 BGB is a violation of one of the designated in § 253 II BGB legal interests. Such legal protection of § 253 II BGB is present but not with respect to the frustration of dealing with the children at the birthday party I affected the daughter of the class.
Although in principle an adverse health effect could have occurred by the loss incident to the class, since each is sufficient to elicit or boost a normal bodily functions of the different adverse condition. Such an adverse health effect has been explained by the class but not substantiated, since the class has not specifically explained, in any form should be entered for him by the frustration of dealing on children's birthday adverse health effects. In particular, sufficient for the adoption of health problems not from a sense of mere disappointment or the appearance of anger or outrage, as well as disappointment or anger over a disturbance or demolition a wedding is no claim for pain and suffering can justify (see Palandt / Heinrichs, BGB, 5253 para. 12, notes).
Although a claim for compensation of immaterial damages in the form of payment for pain and suffering without exception, are in violation of a C 253 II BGB the legal interests when a breach of personal rights given. Because a claim for compensation for moral damages is to std. Consistent holdings of the Supreme Court even in a serious deterioration of personal rights. It should only
4823 BGB in conjunction with Article 1 I and 2 I GG - excluding the 5253 Civil Code II - claim basis.
is true, according to of the court by the defendant for the class resulted in frustration of dealing with the children on the child's birthday the daughter of the general right of the L class were affected.
The Court considers that such prejudice is not so serious that it justifies the assertion of a claim for compensation of immaterial damages in the form of compensation for pain.
In this context, consider that the defendant for a class frustration of dealing with the children at the birthday party of the first daughter not aware of causes for the purpose has to take the class in their personal rights or respect him in any way his personality reduce the same, but only out of conflicting interests of the parents, because the defendant wanted the birthday party together with the two children, and design and also on Mother of 05/09/2004 would not be separated from their children.
can not be the non-targeted intervention in the general right of the class considered so serious Given these circumstances, that it will justify the assertion of a claim for damages for non-pecuniary damage in the form of compensation for pain.
A claim for damages because of frustrating the exercise of rights is a general civil case in an adversary proceeding before the trial court (§ § 23, 71i GVG) to carry out. "
Falk Bernau - Judge of the District Court of Hildesheim (FamRZ) 2 / 2007 4 / 2007)
damages for handling frustration
OLG Karlsruhe Judgement, v. 21.12.2001 - 5:00 UF 78/01
first The family courts are to decide on claims for damages because of the frustration of dealing contacts subject matter jurisdiction.
second The rights of a parent under § 1684 I BGB is an "absolute right" within the meaning of § 823 I BGB, the injury can cause damage claims (in this case cancellation charges for a holiday and travel costs).
third The supervising parent may use the contact is not passive disposition the child's left, but has the affirmative obligation to give the child the right of access.
. . .
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