How are toddlers supervised in the day care center?
Implementing the duty of supervision in everyday educational life without errors
Is 5-year-old Luzie allowed to carve with a sharp knife while making a potato stamp in daycare? Who is liable if they injure themselves in the process? How many children can play unsupervised in the outdoor area if the area is not completely visible from the group room? From what age are children allowed to go to the gym, sometimes without supervision? Can our intern go shopping alone with four children? When does my duty of supervision end if the parents are still standing in the hallway when I pick it up and chatting?
All questions have the same answer: "It depends". Which criteria are decisive for the "proper", correct management of supervision? The law itself does not help, even if it is clear that the duty of supervision as part of personal care (§ 1631 BGB) is transferred to the kindergarten teachers during the time of care and is therefore a long-term favorite in the daycare center.
Above all, children get to know themselves and their abilities through self-determined play and action. By trying things out, they discover risks, but they also adapt to future requirements. The funding mandate in Section 22 of Book VIII of the Social Code clearly states the goal of being a self-reliant and socially capable personality. In addition, the support should be based on age and level of development, other skills as well as the living situation and interests of the individual child. Letting learning with a properly understood freedom harbors the dangers that the child could be injured or others could be harmed. It is the job of the educators to provide protection.
The German laws do not give rigid rules for each individual supervisory situation. That would be neither pedagogically nor legally feasible or appropriate. However, over the course of time, judges have introduced and further developed standards in their judgments that are considered to be binding in supervision. One basic principle can be derived from the court decisions and legal treatises: The educators should act as "sensible parents do according to reasonable requirements in the concrete situation" (BGH judgment of 19.01.1993, NJW 1993, 1003 = VersR 1993 , 485) to avoid damage. The weighing of the individual case is in the foreground.
Specifically, the criteria of supervision are to be scrutinized for all parties involved and appropriate measures to be taken to adapt supervision.
Back to our potato-carving Luzie, for example: It depends on how skillfully she can handle a knife at her age. Does she have enough prudence not to injure herself or others with the sharp tool?
Has the educator known Luzie and her skills for a long time or is she new to the group? Does the supervisor trust himself to take care of himself? Could the stamps be made from other materials? How big is the group for this campaign? Which children are in which constitution? How many sharp knives are given out? Is the environment prepared? a quiet room without hectic disturbances from others? Handling the sharp instrument requires increased supervision.
The judges mainly examine in their judgments whether the criteria of supervision have been observed. From the multitude of judgments in this area (e.g. Kanuklau: OLG Hamburg, VersR 1988, 1243 = FamRZ 1988, 1046; tree trunk case: LG Bad Kreuznach, Az: 1024 Js6294 / 10Ns, judgment of May 31, 2012; stone throwing children: OLG Frankfurt am Main, Az 1U76 / 13 ruling of January 13, 2014) - constant over the last few decades - it can be seen that liability for breach of duty of supervision by observing the three B.: B.to teach B.e watch, "B.punish «(consistent punishment of rule violations) can be excluded.
The kindergarten teacher has to prepare the child for the situation. To name the desired behavior specifically and in a child-friendly manner, so that the rules can be understood and memorized.
With Luzie's group, knives would be practiced "dry" first: the knife is sharp. One can easily cut oneself with it. Plus, it has a dangerous tip. That's why the knives always stay on the table. We're not going around the room with it. A knife can be gripped with one hand, etc.
Before the educator teaches the children, she must of course have a comprehensive picture of the individual dangers, know the circumstances, the children and their peculiarities well in order to be able to assess the risk. You must adequately yourself beforehand to inform.
§ 832 BGB
(1) Anyone who is legally obliged to supervise a person who is in need of supervision because of their minority or mental or physical condition is obliged to compensate for the damage that this person unlawfully inflicts on a third party. The obligation to pay compensation does not arise if he fulfills his duty of supervision or if the damage would have arisen even with proper supervision.
(2) The same responsibility rests with the person who takes over the supervision by contract.
The practice of the desired behavior and the observance of the rules must be observed so that the supervising educator makes sure that the instruction has been fruitful and that the children are able to implement it accordingly.
Luzie could first cut a cucumber individually under supervision with a knife and show that she understood the rules of use and mastered the handling.
c) "Punish" = act consistently
If the instructions of the educator regarding the issued rules are not heeded, it is essential to act consistently and thus to show the sustainability of the rules.
Whoever walks around with a knife or waves it around has to give it up. Or: Anyone who violates our knife rules cannot be present at the potato carving.
After all, you need a comprehensible one documentation of the three B's mentioned. Otherwise, in the worst-case scenario, there is no evidence in front of the court and the statements on the proper supervision of a pedagogically meaningful task could not be adequately proven, but rather rejected by the other side as a mere protective claim. Due to the so-called exoneration proof according to § 832 Abs. 1 S. 2 BGB, the educator has to prove herself that she has not been guilty of anything during the supervision.
Let your documentation obligation flow into everyday life so that it is not an additional burden but an important means of proving your professional behavior. If you take the minutes of a group meeting anyway, you can immediately record the steps of the three B's and the planning of the next action goals. Document the facts, but also your pedagogical considerations and motivations.
The aim of carving potatoes is to learn and strengthen the careful and safe handling of knives. By expanding her fine motor skills, Luzie should gain self-confidence in order to counter her fearfulness. First she cut cucumbers under supervision. Then we practiced light cuts with raw potatoes until the knife point was used for the actual carving. Strengthened by her new fine motor skills, Luzie appears more self-confident when dealing with other children, because she is proud of mastering the knife, which was previously perceived as dangerous, and of the results of stamping on textiles. In the next few weeks we will give her the opportunity to develop her newly discovered ability and enthusiasm for it through further carving campaigns, including on a wooden stick.
If there is a breach of duty of supervision (or if proper supervision cannot be proven), the educator is obliged to compensate for the damage that the child has caused to another in accordance with Section 832 of the German Civil Code (BGB). This also applies to property damage.
Children on the daycare site throw stones at cars parked nearby. Extensive damage is caused to the vehicles by scratches and dents.
The educator would also be responsible for injuries to the child to be supervised based on her employment contract or in accordance with Section 823 of the German Civil Code (BGB). Initially, the provider of the day-care center is liable from the care contract. Anyone who delegates the duty of supervision must conscientiously and carefully select the obligated persons so that they can fulfill this task. The provider, in turn, may possibly have recourse to the educator. According to the case law of the labor court, the employee of the daycare center is exempt from recourse in the event of the slightest negligence and is liable for medium and gross negligence and always in the event of intent. Since, for example, surgery costs can also be claimed by the health insurances as damage in the event of a breach of duty of supervision (child suffers a complicated broken arm when falling off the slide), every educator should check whether they cover their individual risk with professional liability insurance, regardless of the liability of the carrier.
To prove the "correct" supervision, the following formula should be saved and followed:
- Inform (know the situation and the child)
- B.TEACHING (making rules, explaining)
- B.OBSERVE (check)
- "B.ESTRAFEN "(intervene, act consistently)
- Documentation (of all steps mentioned above, including the objectives for action)
The widespread fear of criminal consequences ("I have one foot in jail at work!") Does not reflect the reality of the criminal judgments. Rather, the mere violation of the duty of supervision is not punishable.
The educator irresponsibly violates her duty of supervision by letting four non-swimmers splash around in waist-high water alone in the pool while she goes into the building and only comes back after ten minutes because she has been stopped by a mother. She is lucky, no child drowns. This gross breach of duty of supervision is not punishable. However, it could have consequences under labor law (warning, dismissal).
- Orientate yourself on what sensible parents must take in the specific situation in terms of necessary and reasonable measures to prevent harm to third parties by their children and to prevent harm to themselves.
- The required supervision is based on the age, nature and character of the person in need of supervision and on the predictability of the harmful behavior.
- Instruct those in need of supervision about the dangers that arise when handling things or people or in the course of daily life.
- Check that the instructions are understood and implemented by those in need of supervision.
- Be consistent in enforcing the do's and don'ts.
- Document your measures to exercise the supervisory obligation.
- Provide transparent and comprehensible organizational processes so that it is clear who exactly has to exercise the supervisory obligation, when and where.
- Only delegate supervision to persons who are suitable.
- Make sure you have adequate insurance for your activities and find out what is insured by whom and how. If necessary, take out professional liability insurance.
- Refresh your knowledge on the subject of supervision and liability after about 3 years in advanced training events.
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