Monday 12 July 2010

A right to school

As I am sure we all know, the Swedish parliament recently approved a law which would ban home education in all but 'extraordinary' circumstances. It will be absolutely forbidden for purely philosophical or religious reasons. There are few home educators in Sweden, but an attempt if being made to fight for the supposed right of parents to home educate there. This is the Dominic Johansson case and an application has been made to the European Court of Human Rights. Those making this application know very well that it will fail, but they are carrying on in the hope of attracting attention to their own cause; the wider one of 'parental rights', not just in Sweden but across the world. The claims made will fail because the European Court is bound by precedent: that is to say they must follow decisions already made by the court in the past which clarified the law.

In Germany some years ago a case was fought all the way to the Federal Constitutional Court, which upheld Germany's ban on home education. In 2003 this case was taken to the European Court of Human Rights. The parent who brought the case argued that Germany's ban on home education contravened the Charter of Fundamental Rights of the European Union. This provides that a state shall respect parents' rights to ensure that their child's education will be in conformity with their own religious and philosophical beliefs. In September 2006, the court gave
its ruling.

The European Court gave as its opinion that the plaintiff in the case was not the parent but the children. The court went on to say that children were unable to foresee the consequences of their parents' decision to home educate, due to their young age. They further stated that schools were part of society and that the rights of parents did not extend so far as for them to be able to deprive children of their place in society (Brussels Journal 2006). It was clear that there was nothing to stop Britain or any other country in Europe from banning home education entirely.
The crucial point here is the final decision was that children not only have a right to an education, they also have a right to go to school. There seem to be pretty strong legal grounds for this argument. Daniel Monk, senior lecturer in law at Birkbeck, has written a number of papers about this. The thesis is that school is such an integral part of society that it would be wrong to deprive a child of the experience. This is completely separate from any right to an education; it is the same point ruled by the European Court. Since this is an experience of life common to everybody in countries like Britain, Germany and Sweden, it would be wrong to prevent a child from taking part in school. In later life, the child would find herself at a loss when all those around her had a common framework for their memories of childhood. It would be turning a person into some sort of oddity, something of which the child herself could not hope to be aware
until she reached adulthood.

I am sure that everybody reading this has been shaped by their childhood and that school formed a very strong part of that childhood. It could hardly be otherwise; everybody on this site spent every day at school for over a decade! If I lacked that common framework which we all share, a childhood moulded and defined by school, then I might well feel myself to be something on an outsider in later life. This is what people like Daniel Monk argue and the European Court of
Human Rights agree with him. School is a fundamental right for children.

One can quite see why this point of view drives home educators mad! It hints that their decision to keep their children at home is an essentially selfish one, disregarding the future psychological welfare of their children. This is not at all how home educating parents want to think of themselves. Nevertheless, there does seem to be something in this idea. For most of us the first place where we encounter unfairness and cruelty is school. It also provides our earliest experiences of the abuse of power, boredom and various other things which we shall come across again and again in our lives. Perhaps it can be seen as a training ground for handling these things in later life. Interesting that Ofsted expressed this view recently when they suggested that it was good for every school to have at least one useless teacher; it will give children a valuable lesson in incompetent people in authority. this will stand them in good stead in later life. John Holt mentions in Why Children fail that a mother spoke to him once and told him that he was wrong to make his lessons so interesting. Her argument was that in adult life children would be
bored much of the time and the sooner they get used to it the better.

I have already discussed the possible motives of those helping the Johanssons to take their case to the European Court. I am sure that the three representatives named on the application know about the court's decision in 2006 and that this will not be overturned. I can only assume that they are going to the court purely for propaganda purposes. Personally, I am not sure how wise this is, because an unfavourable decision will simply draw the attention of other European countries to the fact that they can ban home education tomorrow if the wish and nobody will be able to do anything about it. I am not sure if this is a good idea.

12 comments:

  1. "The crucial point here is the final decision was that children not only have a right to an education, they also have a right to go to school."

    There are actually a number of 'crucial points'. One is that education is an exclusive competence under the Lisbon treaty, so states can legislate as they wish regarding home education. It doesn't follow that 'nobody will be able to do anything about it' because a state will only be able to ban home education if their parliament agrees to it, and equally, a ban could be overturned.

    Second, ECHR Article 2 of Protocol 1 states:
    “No person shall be denied the right to education. In the exercise of any functions which
    it assumes in relation to education and to teaching, the State shall respect the right of
    parents to ensure such education and teaching is in conformity with their own religious
    and philosophical convictions.”

    In a state where home education was not permitted, how the state would be expected to respect the right of parents to ensure such education and teaching took place is not clear.

    Third, if the ECHR gives a child the right to go to school, the child must have a corollary right to be educated at home, if that is a legal option. If the child is compelled to exercise his or her right to attend school, it ceases to be a right. Indeed, if home education is illegal, then one could argue that the child’s right to attend school has already ceased to be a right, and has become a duty.

    Although Daniel Monk has indeed written on this, he is dealing with uncharted territory. International human rights legislation is in its infancy and a number of these issues have yet to be hammered out. There’s plenty of scope yet for unintended adverse outcomes to arise and to lead to changes in the law.

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  2. "Third, if the ECHR gives a child the right to go to school, the child must have a corollary right to be educated at home, if that is a legal option."

    Of course this is true, which I why, I suppose, that Sweden has decided to remove this 'right'.

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  3. "It doesn't follow that 'nobody will be able to do anything about it' because a state will only be able to ban home education if their parliament agrees to it, and equally, a ban could be overturned."

    This was what the case in 2006 was all about. The hope was that the German ban could be shown to be unlawful. The fact that this decision was made in 2006 is likely to be binding in the future. The application then is so similar to the one about the Johanssons, that I wonder if the same people helped draft it.

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  4. "This was what the case in 2006 was all about. The hope was that the German ban could be shown to be unlawful. The fact that this decision was made in 2006 is likely to be binding in the future. The application then is so similar to the one about the Johanssons, that I wonder if the same people helped draft it. "

    Well, yes it was. But didn't the court rule that because there was a school available that reflected the parent's religious beliefs, the parent's religious views were being respected? I don't think this is likely to be the true of every religious/philosophical group. Whether the German ruling is binding in future or not remains to be seen. Human rights legislation is an artefact, not something non-negotiable like the climate or terrain.

    As I said, it's early days for human rights legislation; if cases like this keep cropping up, there's every possibility different decisions could be made.

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  5. Well that is an interesting point, suzyg. I wonder if a German home educator claimed to be a Wiccan he could then home educate on the grounds that there wasn't a local Wiccan school? The ruling in the German Federal Court in 2003 and the European Court in 2006 seem to have put a stop to legal challenges of this sort. I will be interested to see what happend with the Johansson case, although it will probably take years before we hear a judgment.

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  6. This is a significant problem when social policy is determined within a constructionist framework. Social policy is always at risk of being determined by who shouts loudest, but there is an even greater risk of this happening if government is not sufficiently aware of how to assess of evidence for or against certain policies.

    Few situations show highlight this more clearly than when a secular humanist politician is faced with a minority fundamentalist religious group. S/he can't say the religious views are rubbish,even if s/he thinks they are, because that is denigrating the legitimate beliefs of another person, but few politicians would know how to unpack the beliefs in question well enough to decide whether the child's rights were being violated by being home-educated.

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  7. There was no decision by the European Court in 2006. It just refused to take the case on.

    A German Wiccan could try to found a school based on Wiccan principles (for instance,there are a few attempts underway to found humanist schools in Germany) but he would not be able to home educate his children based on his beliefs, just as (in all German states except for North-Rhine Westphalia) parents from overseas living temporarily in Germany generally cannot get permission to home educate their children if there is no international school in their language nearby or as parents of a blind child cannot home educate their children if there is no school for the blind nearby (children with special needs have to attend special schools - this is known as Sonderschulpflicht.)

    I am aware of your comments about Domenic Johannsson, but there is no reason given, even by Social Services in their application to the courts or in the judicial hearings in this case, that indicates that there is any other cause behind his removal other than the issue of home education, or that he was endangered as a result of his parents' beliefs. Could it maybe be that this is a case of over-enthusiastic social workers, just like with Melissa Busekros in Germany in 2007? Also, do you think that an organisation like the HSLDA, who won't touch suspicious cases with a 10-foot bargepole would take this case on if there were any indications that your suspicions were founded?

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  8. By the way, contrary to my appearance in this picture, I am not a Wiccan.

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  9. Well the court did give a ruling on this. The European Court gave as its opinion that the plaintiff in the case was not the parent but the children. The court went on to say that children were unable to foresee the consequences of their parents' decision to home educate, due to their young age. They further stated that schools were part of society and that the rights of parents did not extend so far as for them to be able to deprive children of their place in society (Brussels Journal 2006).

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  10. Are you sure that you are not muddling this case up with another one? The Konrads, who brought the case were not Wiccans but Christians. The court also ruled as follows:

    Not only the acquisition of knowledge, but also the integration into and first experience with society are important goals in primary school education. The German courts found that those objectives cannot be equally met by home education even if it allowed children to acquire the same standard of knowledge as provided for by primary school education. The [European] Court [of Human Rights] considers this presumption as not being erroneous [...] The [German] Federal Constitutional Court stressed the general interest of society to avoid the emergence of parallel societies based on separate philosophical convictions and the importance of integrating minorities into society. The Court regards this as being in accordance with its own case-law on the importance of pluralism for democracy.”

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  11. I'm not muddling anything. I know the Konrads were Christian. I merely picked up on the example of wiccans you used in this posting.

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  12. Actually, the German Bundesverfassungsgericht's (Federal Const. Court) mention of parallel societies was in its justification of its refusal to take a case on as well, and so this is not binding on lower courts (but it is quoted in all the judgements of lower courts that I have read).

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