OLG Frankfurt / Main overturns legal requirements for media use
When can and should children have a smartphone? When does the use of a cell phone damage the child's development? Or can the compact mini computers even support small children? As the magazine “t3n” reports, the Higher Regional Court (OLG) Frankfurt am Main dealt with this question in a decision published on Monday (file number: 2 UF 41/18). The judges were of the opinion that having your own smartphone with internet access was not a “general risk to the wellbeing of children”. The judicial decision should cause some discussion.
Having your own smartphone with internet access does not pose a general risk to the well-being of children of nine years old. A family court may not set any conditions for media use without concrete evidence, just because the children have a smartphone available, the Higher Regional Court (OLG) Frankfurt am Main decided on Monday , July 9, 2018, published decision (Az .: 2 UF 41/18). The Frankfurt judges thus canceled the conditions imposed by the Bad Hersfeld District Court.
In this specific case, separated parents argued about the right of residence for their daughter, who is now nine years old.
At the family court hearing - at that time the child was still eight years old - it turned out that he already had his own smartphone and had free access to the Internet.
The district court granted the mother the right of residence, but disagreed with the child's media usage. It gave the mother "to find fixed rules, especially binding times and contents regarding the use of media available in the household (in particular TV, computer, game console, tablet) for the child", to implement them and to inform the court of this.
In addition, the child should not be provided with his own, freely accessible smartphone. The child could only be allowed to do so from the twelfth birthday. The family court assumed that having your own smartphone would result in general damage to the child by this birthday.
In its decision of June 15, 2018, the OLG now overturned these conditions. Only a court may intervene in the parental personal protection protected by the Basic Law "if the physical, mental or spiritual well-being of a child or his assets are endangered". However, it is not up to the state to "ensure the objectively best way of exercising custody ...".
Here, the requirements for media use and the use of smartphones "interfered with the child's parents' rights, which are protected under fundamental rights". Media and Internet consumption by children and adolescents pose dangers that parents should not ignore.
For example, content on YouTube that is harmful to young people could have just as harmful effects as the use of games with “disturbing, damaging content” that have not been released for the current age group. The same applies to the use of WhatsApp, in which children and adolescents as senders and receivers "could be affected by desired or unwanted messages".
However, just because the children can use the media, no general harm can be assumed, the OLG decided. In order to be able to justify conditions, there should rather be indications of the risk of damage in the specific individual case. However, this is not the case here.
In the past, the district court of Bad Hersfeld had made very critical comments on smartphone and internet use and had imposed on parents in family court proceedings that their children use WhatsApp. For example, on May 15, 2017, the court sentenced a single mother to obtain written consent for data transfer to WhatsApp from all smartphone contacts that her eleven-year-old son saved in his mobile device (file number: F 120/17 EASO, JurAgentur- Notification dated June 27, 2017).
Since WhatsApp continuously reads all contact data from the smartphone without permission, and thus in violation of data protection, warnings of the data subjects threatened, the court said. This would endanger the child's well-being. The district court also pointed out that the smartphone sometimes had to be put away. "There are no reasonable reasons to give a child a smartphone even during the intended bedtime."
In a ruling of July 22, 2016, the district court ordered parents to delete WhatsApp on their children's smartphones altogether in order to prevent adults from receiving sex messages sent via WhatsApp (Az .: F 361/16 EASO; JurAgentur announcement of September 19, 2016). sb, fle