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Thinking about parenting.
The youth welfare office today in the area of tension between the right to upbringing, child welfare and parental responsibility1
If questions of youth welfare are debated, it is usually about structures and especially the financing conditions of social work in the field of youth welfare as well as the investigation of their interconnection with other (state) fields of activity. In the case of the latter, the work of the police and public prosecutor's office as well as that of the family court are in focus.
From the point of view of the youth welfare industry, these discussions have to be held again and again. Almost every time, however, the industry is astonished to find that there is little public interest in its debates. Thus, youth welfare is no different from many other areas of society, which are in public attention only in exceptional cases and with topics that often seem irrelevant to them. This can be comforting, but it should not make the youth welfare service's claim to be publicly understandable disappear.
At the same time, there are increasing indications that the educational process has become more complex and is subject to ever faster change. Globalization and the associated changes in working life, changes in values and loss of values as well as changes in family structures are addressed. In the educational literature there are indications that parents are increasingly giving up restrictions and orientation towards their children and "pampering" them. It is analyzed that parents are becoming more insecure in their educational role and partly because of this insecurity, partly because of the hardship that it would cost to overcome this insecurity, they become less and less educational. Parents are increasingly becoming "buddies" and children are becoming "orphans", so to speak. It is obvious that politically the expectation is formulated that youth welfare must strengthen families, promote, strengthen, demand and protect young people in a time that is becoming increasingly confusing.
The child's right to education
Children need to be raised. Based on this assumption, the Basic Law in Article 6, Paragraph 2, formulates the distribution of competences for this social task and assigns it first to parents and other persons obliged to bring up children and only secondarily to the state. "Care and upbringing of children are the natural right of parents and their first and foremost duty. The state community watches over their activities." So the state perceives what is commonly referred to as the "guardianship". Whoever is supposed to keep watch must have an idea of what has to happen or not to happen in the area to be monitored. For education this means that a perception of that guardianship cannot be perceived without the watcher having the ability to distinguish when education is taking place and when it is not.
Here at the latest, the area of serious difficulties begins for the lawyer: He should make an judgmental decision on an area of reality himself - i.e. without being able to consult an expert. The desire to be able to do this has moved lawyers for a long time. It drives them like medicine is driven by the desire to make life more pain-free and longer and longer possible. The difficulty that lawyers have to overcome is not the finiteness of the human body, but that of their own world of thought. In the humanities it operates deductively from axioms and is therefore structurally blind to reality. Quite often, the tacit - sometimes explicit - claim is made to close the gap between the last deductively found deductions and reality by looking for the legal solution "from the nature of the matter". This is from Gustav Radbruchs2 Legal philosophy from 1932 quotes: "This claim can indeed cite certain reasons for itself. The legal ideal is an ideal precisely for the law and, furthermore, for the law of a specific time, a specific people, for specific sociological and historical conditions. The idea applies to a certain material, is related to this material - is in turn co-determined by the material it wants to master. How the artistic idea makes itself comfortable with the material, how it becomes another when it is in bronze, another If it is to be embodied in marble, it is inherent in every idea to be appropriate to the material.We call this relationship the substance-specificity of the idea by consciously accepting the double meaning of this designation - determined by the substance, because determined for the substance make your own ... One is now tempted to equate this material determination with the idea of a preformedness of the idea in the material, and in fact the psychologic exists ical opportunity to see the idea in and out of the material. Michelangelo may have seen the figure of David in that battered block of marble, which he redeemed from him. It means the same when a lawyer decides on the 'nature of the matter'. But such a vision of the idea in the substance it is destined to form is a stroke of luck for intuition, not a method of knowledge. For methodical cognition, it remains the case that ought sentences can only be deductively derived from other ought sentences, not inductively based on facts of being. "
I would like to mark a central point for the control of youth welfare action: In the system of law, education can only be discussed with reference to the natural and social sciences. In view of the ongoing almost comprehensive control of public administration through the structures and logic of law and in view of a more demanding and more sensitive debate about education and its results, this is an unpredictable situation - an unresolvable and difficult to accept predicament.
In terms of youth welfare law implementation, this means that constitutional law guarantees a right to education and the public administration constitutes institutions to achieve this purpose, but that the internal meaning and thus the achievement of goals within the system can hardly be negotiated.
Education - what for?
This becomes even clearer if the state does not ask when there is education, but what is to be educated - when it is asked about the state's competence to set educational goals. This becomes very concrete in youth welfare practice: Kindergartens serve, as communicated by Section 22 (2) SGB VIII, the upbringing, education and care of children. Children are well looked after if they are not harmed during the time they are in kindergarten. Educational goals can also be described for kindergartens.
It is more difficult with upbringing. Whoever wants to and should educate has to know what the children to be educated can and should know more at the end of the process of upbringing than at the beginning. Anyone who feels obliged to bring up their children by contract or law must have criteria for the point in time when they have fulfilled their mandate.
But establishing educational goals, or even defining them in a generally binding manner, does not really succeed in a pluralistic community. Not so long ago, in a commission of inquiry on the subject of juvenile delinquency in Hamburg, I experienced that my offer of conversation, an actually generally acceptable educational goal should be an orientation of life to the ideas of justice and solidarity, was exposed as a laboriously secularized variant of old Christian ideals . Those who disagreed with my suggestion instead offered the acquisition of critical skills and dialogue skills as the only educational goal appropriate to a pluralist society. I strongly disagreed.
On closer inspection, however, I found that that critic was not so wrong. Quite spontaneously, I had offered the educational goal that was important to me. I believe this has to be the case. Education will only succeed if those who are to be educated feel that the educators consider the things that they declare to be important to be important themselves. The art remains there - and I follow my opponent - to convey that I I am the one who thinks this is right, which cannot rule out that others feel differently. That is why it is difficult to find a generally binding educational goal for a plural society as a whole: what I consider to be fair is equal to others; where solidarity seems necessary to me, others can see an opportunity to win and I can rightly consider the ideals of my counterpart to be hollow and irrelevant. The Basic Law may name minimum requirements - more on this later - but it is not enough to describe a sustainable and generally binding educational goal.
Under these conditions one could be tempted to demand the renunciation of education for the public youth welfare service.
Constitutional requirements for education
From a constitutional perspective, I would like to think about education from two points of view: On the one hand, I will talk about education as a prerequisite for the use of freedoms, and on the other hand, I will talk about the importance of personal dignity in the field of social work.
1. Education as a prerequisite for civil liberties
A liberal state makes offers to citizens with their rights of freedom, the acceptance of which does not regulate, but is expected. Paul Kirchhoff3 formulated in the Handbook of Constitutional Law: "The decision as to whether and how the person entitled to liberty accepts the freedom offered to him must not be made by the state for the sake of freedom will make its citizens aware that democracy can only succeed through their participation in the elections; it will campaign for its citizens to make use of their right to marriage and family and thus secure the future of the state in a youth capable of freedom and democracy; In school and training, it will develop people's ability to work, through asset formation and housing construction programs, it will give the application of property and housing guarantees on a broad scale a real basis, support the willingness of the working population to make an effort and the owners to take care of the goods the legal system of a professional and to preserve freedom of ownership and to be able to finance the state for tax purposes. The civilized state will take libertarian precautions to ensure that people strive for the scientific discovery of the truth, the artistic perception of the aesthetic and the religious question of what cannot be found. "
The freedom offers formulated in the freedom rights presuppose that the citizens are willing and able to accept these offers. The state, which, as another great Catholic remarked, lives on conditions that it cannot create itself, is however entitled and obliged to promote the exercise of freedom. This is essentially done by seeking to guarantee an upbringing in conformity with freedom as a state precaution for accepting his freedom offers. In the system of publicly responsible schools, the state itself trains with its own educational mandate to understand the constitution and the fundamental decisions that support it. Parents 'obligation to raise their children, which has constitutional status as a third-party right, also serves to secure the citizens' freedom of freedom. This duty of parents is supplemented by the state mandate to provide youth welfare services and by the duty to supervise citizens in their upbringing. The fulfillment of this mandate must be guaranteed in a manner that promotes freedom and is based on personal dignity.
2. Personal dignity
The law of youth welfare has been part of the social security code for 10 years now. It is not without reason that the inclusion of this area of law in the SGB has long been disputed. The central difference between the rights from the various social insurance schemes and from the entitlement bases under pension law to youth and social welfare law is that in the first-mentioned area, the benefits are granted according to legally specified, objectively ascertainable criteria, while in the latter area, the starting point of the help is that which is perceived in principle as changeable is the current situation of the beneficiary. The offer of help is therefore determined by an individual need.
The individualization principle, as it is z. B. is laid down in § 3 Paragraph 1 BSHG, does not in itself ensure that those in need of help will be given help in a constitutionally compliant manner. In order to be able to comply with the requirement to respect human dignity, it is constitutively necessary to add the right to wish of the aid recipient. Even then, if the social welfare provider realizes the material content of the individualization principle, that is, if his help does justice to the person of the person seeking help, the recipient of help remains the object of state action. This only changes when he is given the opportunity to bring his ideas about the shaping of his life to bear in areas in which he is dependent on public or publicly jointly responsible help.
It follows from the right to wish that the realization of the wish may not be refused from the outset on the grounds that the need has currently been adequately met. The decisive factor is whether the request is appropriate and does not cause disproportionate additional costs.
The more intensely the necessary help is to have an impact on his life, the more important the right to wish becomes: the aim of the help must be within the limits of what is permitted so that the recipient of help can live according to his plan. How the helper evaluates this plan, for example whether it agrees with his own, has to be of secondary importance. This question only becomes important if it has to be clarified whether the potential helper is the right one for this aid recipient: Just as it is inadmissible to impose a plan on the aid recipient, so it is nonsensical to oblige aid providers to ensure that it is achieved to strive for a goal that appears nonsensical to him / her. The principles of carrier plurality and subsidiarity serve to balance the right to wish and the autonomy of the agency under the conditions of overall public responsibility. The carrier plurality ensures the diversity of the offer, the idea of subsidiarity arranges state and free action in society as something different from one another. Public or publicly jointly responsible aid only becomes constitutional if it is designed from the point of view of the aid recipient and if his expressly or tacitly communicated design wishes are taken into account.
The prerequisite for the fact that the right of wish can actually be exercised is that there is actually a choice between different things. Otherwise the right to wish would run empty. Nobody can force the law to make a nonsensical choice between like. And: The choice between the same cannot meet the requirements that follow from the principle of human dignity. Anyone who is obliged to vote must have the chance of making a choice. Creating this is the task of the person who has overall responsibility for the offer.
In order for the right of choice to get an object, different offers of distinguishable carriers are required. Ensuring this is the central component of the overall responsibility that the public agency has for social work.
Certainly there are also other motives for considering the necessary interaction of free and public agencies to be useful and correct. In this interaction, it is best to develop the existing social network further and to use the available financial means in an economically sensible way.
Consequences for the work of the youth welfare office
With the KJHG, which was presented to us as the Education Act, the work of the youth welfare office is to be described from the perspective of how it provides education. According to what has been said above, publicly responsible upbringing outside of school can only be a subordinate state task. First of all, those must educate who can convincingly make the ideals of their own life plausible as the goal of their upbringing: parents, families and, last but not least, the groups in society.
This can only succeed if government action is based on a realistic image of parenthood and family. Susanne Gaschke4 put it this way: "Freedom can sometimes be found in unexpected places. For a long time, the bourgeois nuclear family was ... a refuge of oppression. Every family-political event began with a ritual bow to the pluralism of life forms in the age of individualization ... What exactly." these ways of life for the future of our society still have to be determined. But perhaps it is not completely absurd to see the increasing number of single parents as a problem rather than a gain.the financially disadvantaged, stressed by work and family work, but still loving parents of small children [feel]? As an idiot? As philistines who have chosen a reactionary way of life? ... Families are the opposite of our thoroughly economized reality: With their constraints, with their immediate responsibility for their neighbors, they become a new space, because they cannot be subjected to every external demand for flexibility. "
So much for the slightly abbreviated quote. From this point of view, freedom is made possible by those who are the first to be called to education beyond economic exploitation. These are to be encouraged by the state to educate them to be able to be free.
Anyone who looks at the public offer of family support according to Sections 16 ff. SGB VIII with this idea in mind, finds that it is not sufficient in almost all places in the republic. The range of services offered by parent schools and counseling for parents is still under development, and the general use of these services is far from normal. How difficult it is to find public understanding for this completely normal range of youth welfare services for completely normal parents can be seen from the fact that almost all expansion programs for family support are justified by the fact that these offers have a preventive effect. That is a very daring claim. Neither can it be clarified what exactly is avoided by them, nor how the avoidant effect is to be measured. In fact, the prevention claim formulates above all the insecurity - or also the tactical cleverness - of the youth welfare service itself, if it wants to enforce what it has to do according to the law.
The state, which wants to promote education for freedom, has to orient itself in the design of its offers - this is immanent to the idea of freedom and also laid down in SGB VIII - on the wishes of those affected. Choosing this perspective consistently is always very difficult for those who are publicly responsible for upbringing. A specific suggestion on this: Wouldn't it be wise to involve the children in the daycare themselves and politically effectively in the design of the offer by asking the youth welfare office in the even years to ask the girls to paint a picture of what they are doing in kindergarten like, and all boys, to paint over what they don't like. In the odd years one can proceed the other way round. The pictures could be exhibited; The addressees of the largely publicly financed range of services could thus state whether what is assumed to be the result of support in day-care offers for children is actually experienced by them. In this way, children could also become part of a culture of political participation.
In this way it could be realized that the family is not something amorphous, with certain interests homogeneous. It is not uncommon for children and parents to want different things. I suspect that the description of the need for extra-family care for children would be put into perspective considerably. It might help to describe kindergartens and crèches not as day care, but as places where children are brought up and supported. Children probably want this too, and above all they want flexibility: I suspect that on some days they want to be with their peers for a long time, on other days not at all. Hardly anything could be planned with an actual orientation towards these wishes, certainly no regular employment of the associated adults. These wishes for children will not be the only yardstick for public action in the field of child day care; However, it is certainly necessary to take note of them as one's own interest.
The state, which wants to promote the capacity for freedom, will make the capacity for self-organization of its citizens an important point of its interest. He should attach special importance to groups of the same age in the youth welfare group, which is publicly responsible. In its opinion on the 8th Youth Report5 formulated: "The eighth youth report emphasizes the growing importance of the peer group as a living space, as a field of experimentation and as an aid in coping with life for young people. In the opinion of the Federal Government, youth work in peer groups fulfills these constructive functions above all when they are themselves in a cultural continuity understands across the generations if it works towards participation and integration in society and if it also prepares group members for adult life.While opportunities and spaces to be with peers are widespread in our society, there is an increasing need for There are also opportunities for discussion, including discussions between the generations, between the elderly and the younger generation. This is where important youth policy tasks arise, youth work and extracurricular youth education, which are traditionally geared towards specific age groups d, should increasingly provide cross-age and cross-generational offers of conversation, education and engagement. "
The youth associations and their associations were able to defend this assessment in the legislative process for the KJHG at a time when it was widely assumed that the - numerical - importance of these original youth work organizations was declining. The regulation learns its inner justification, however, less from the numerical importance of youth association work than from the special tasks and organizational forms of these youth welfare agencies. In this sense, the regulation privileges not only a certain selection of independent youth welfare organizations that existed at the time of legislation, but all those who follow the principle of permanent self-organization and the joint design and joint responsibility of the work by the young addressees, but without others from the work to exclude. With this, the legislature recognizes the special importance of the joint design of social and political structures by young people and gives young people the opportunity to have a say in youth welfare. The special public interest in the work of the youth associations is determined by the fact that they are able to articulate the wishes, ideas and opinions of young people.
Among other things, this has led to the entitlement of the youth associations to nominate members with voting rights for election to the youth welfare committees. Anyone who attacks this institution under the heading of loosening responsibilities shows that he has little understood about a constitutionally compliant organization of publicly responsible education.
The main challenge in the field of educational support seems to be the trend towards pathologizing difficult children. Learning difficulties are increasingly understood as an indication of mental handicap, although offers to promote family upbringing would often be much better suited to avoiding or breaking up stigmatization and isolation. At the same time, and only seemingly unconnected, the demand for the reintroduction of closed educational homes is being made public. The common structure of both phenomena is the desire for a quick-acting remedy in education that makes actual educational action superfluous. Measures according to §§ 27 ff. SGB VIII are not "help instead of education", but "help for education".
The greatest difficulty in organizing a youth welfare office that is obliged to exercise freedom is undoubtedly the repressive tasks that the youth welfare office has to perform partly alone and partly in cooperation with other government agencies. The main thing here is to accept the fact that public action does not regularly have to bring about the best possible upbringing, but often has to accept that those initially called to upbringing do not do their duty well - often through no fault of their own. There are very high demands on the employees, for example in the foster child care or also in the child and youth emergency service, not to be allowed to make many important decisions and at the same time not to give up.
So the state has to help with education, but it cannot be given full responsibility for education. It cannot be in the interests of the state to completely outsource parent-child parenting. Because with all efforts he cannot do what education means right. He must not set binding and seemingly objective goals for the life of his citizens, on which they have to orient their lives, and he must not make state youth for himself, as German history has shown. It can and should help to enable education, it can and should create spaces for self-organization for young people. He must, however, thankfully decline the offer made by those actually called for education to take on their education for them.
Prof. Dr. Christian Bernzen
1 Lecture on the occasion of the 75th anniversary of the Regensburg Youth Welfare Office on March 23, 2001 in the historic Reichssaal of the Old Town Hall.
2 Radbruch, Gustav: Rechtsphilosophie, 5th edition, 1956, p. 98 ff.
3 Kirchhoff, Paul (Ed. Isensee / Kirchhoff): Handbuch des Staatsrechts, Volume 9, § 221, Rd. No. 59 ff.
4 Gaschke, Susanne: "Embracing normality" in: vorwärts 10/99, p. 30.
5 Opinion on the 8th Youth Report, BT-Drs. 11/6576, p. X.
from: Bavarian State Youth Welfare Office Bulletin 3/2001
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