By Daniel Monk, Professor of Law, Birkbeck, University of London
On 10th January 2019, the European Court of Human Rights unanimously held that there had been no violation of Article 8 in a case concerning the withdrawal of aspects of the authority of parents and the removal of children from their home for a period of three weeks. The case did not explicitly address Germany’s policy of compulsory schooling, but, rather the legality of the measures taken to enforce the policy. Nevertheless, the arguments raised highlight why home-schooling (or Elective Home Education) is an issue that goes to the heart of current debates about shifting understandings of parental responsibilities and the underlying potential tensions between the civil/political and the social/welfare functions of education.
The applicants, Petra and Dirk Wunderlich, refused, on principle, to have their children educated outside the family. In doing so they acted in contravention of the long standing policy of compulsory schooling (distinct from compulsory education) explicitly enshrined in Article 1666 (3)4 of the German Civil Code. In 2005, in response to the applicants refusal to register their daughter in a school, regulatory fines and criminal proceedings were conducted. While they did not change their behaviour, the applicants paid the fines. They subsequently lived abroad with their children between 2008 and 2011. On returning to Germany they continued to refuse to countenance school attendance for any of their, by now, four children and the dispute recommenced.
The State (Hesse) Education Authority (staatliches Schulamt), concluded that the children were growing up in a ‘parallel world’ which did not enable them to have a part in German communal life. They were supported by the Youth Office (Jegendamt) in considering that the applicants’ persistent refusal ‘endangered’ the best interests of the children, thereby justifying intervention by the authorities in accordance with domestic law. Darmstadt Family Court initiated court proceedings and the applicants stated that the authorities would have to remove their children from the family home and take them away entirely if they children were ever to go to a school. In September 2012 the Family Court withdrew the applicants’ right to determine their children’s place of residence, their right to take decisions on school matters and transferred these rights to the Youth Office. The court held that independent of the question of whether it could be ensured that the children were acquiring sufficient knowledge, their non-attendance at school prevented them from being part of the community and learning social skills such as tolerance, assertiveness and the ability to assert their own convictions against majority held views and that to acquire those skills they needed to be exposed to influences outside of the parental home. The applicants appealed and subsequently refused to cooperate or permit learning assessments of the children’s knowledge. The father made it clear that he believed that he alone had the authority to decide whether his children would attend school or not and stated that he considered children to be the ‘property’ of their parents.
The applicants appeal was rejected in April 2013 by the Frankfurt am Main Court of Appeal. Balancing the various interests, the court found that the children’s best interests were in danger and found that they were living in a ‘symbiotic’ family system where the parents main concern was creating a strong attachment between them and the children to the exclusion of others; as well as being denied a form of education that was well recognised and fundamentally important for growing up in society. Facts highlighted included the perceived lack of age-appropriate education as the children were taught together and that none of the children were members of any sport or music clubs or organisations. Moreover the parents’ persistent refusals were criticised for teaching the children that they did not need to comply with the rules of community life if they found them disagreeable. The Federal Constitutional Court refused to accept the applicants’ attempt to appeal the decision on constitutional grounds.
In August 2013 the children were removed from the parental home and placed in a children’s home. The removal was against the wishes of the children; they had to be carried out of the house individually with the assistance of the police. Three weeks later, after assessments of the children had taken place and the parents had agreed to the children attending school, the children were returned to the parental home. After a year of attending of school attendance, in June 2014 the applicants withdrew their children from school and the Education Authority once again commenced proceedings.
In August 2014 in parallel proceedings the Frankfurt am Main Court of Appeal transferred the right to determine the children’s place of residence back to the parents. The basis for this decision was not the assessment or temporary schooling of the children but because the situation had changed since the original decision: initial concerns about physical abuse were proved to be unfounded and the assessment had established that the children were not being kept away from school against their will and that their knowledge level was ‘not alarming’. Consequently, while permanent removal of the children was accepted as being the only way to ensure school attendance, the Court of Appeal held that it was no longer proportionate as it would have a greater impact on the children than being educated at home by their parents. At the same time it emphasised that their decision should not be seen as granting permission to home school.
That Article 8 was engaged and that there had been an interference with the applicants’ rights was not in dispute. However, the Court emphasised that this only concerned the legality of the temporary enforcement of the removal of parental authority. The prohibition of home-schooling in Germany, was described as the ‘underlying issue’, but the applicants challenge to that policy had been held inadmissible on the basis of previous judgments (see Leuffen v Germany, no. 19844/92,1992; Konrad v Germany, no. 35504/03, 2006). However the applicants argued that it was false assumptions about homeschooling and a blanket attempt to force the policy of compulsory schooling that informed the authorities’ action and that the interests of the children had been harmed rather than protected by, in particular, the removal of them from their home.
The Court held that the authorities’ actions were carried out with the aim of protecting the best interests of the children and consequently satisfied the legitimate aim of protecting ‘health or moral’ and ‘rights and freedoms of others’. In turning to the question of whether the actions were ‘necessary in a democratic society’ and ‘relevant and sufficient’, the Court held that a wide margin of appreciation was to be accorded, in recognition of the appropriateness of taking into account ‘such factors as traditions relating to the role of the family and to State intervention in family affairs’. Reliance was again placed here on the earlier cases where ‘avoiding the emergence of parallel societies’ and ‘the importance of pluralism for democracy’ had been held to be legitimate aims which fell within States margin of appreciation in the context of developing education systems. Consequently, the Court held that both the individualised concern about ‘social isolation’ and a broader concern about ‘integration into society’ were both relevant and sufficient reasons.
In addressing the fact that the children were subsequently found to have ‘sufficient knowledge, social skills, and a loving relationship with their parents’, the Court placed weight on the fact that the authorities did not know this at the time of the removal of the children and that their actions were based on ‘reasonable assumptions’, in particular bearing in mind the applicants’ refusal to cooperate and the proprietorial views of the father. The Court reiterated that authorities ‘cannot be held liable every time genuine and reasonably-held concerns about the safety of children […] are proved retrospectively to have been misguided’ (citing R.K and A.K. v UK, no. 38000/05, 2008).
Finally, in finding that the authorities’ actions were proportionate, the Court emphasised the prior conduct of the applicants, the earlier ineffective recourse to fines, and the fact that the children were returned after the assessments of the children, that their removal did not last any longer than necessary.
Enforcement of policies and judgments in cases relating to parental responsibility, whether relating to home-schooling or contact with non-resident parents or ‘illberal’ parenting has long been recognised as problematic when the methods involve the removal of children from their parents and criminal sanctions, potentially involving the imprisonment of parents. The Court understandably emphasised that the threshold for legitimising such actions is high. But in this context, where the formal education provided to the children was found to be adequate in terms of ‘knowledge’, it is particularly complex and the judgment leaves unanswered whether draconian measures can ever be justified in these circumstances without additional concerns about the emotional dimension of the relationship between parents and children.
Underlying the tensions here are questions about the meaning and breadth of the right to education: the extent to which it extends to or overlaps with often crudely understood concerns about ‘socialisation’ and whether and the extent to which it can encompass broader political concerns, for example about inculcating values premised on equality and tolerance (D Monk, ‘Problematising home education: challenging “parental rights” and “socialisation”’ (2004) 24(4) Legal Studies 568-598).
In the context of the latter point, a key question raised by the issue of home-schooling, left unanswered in the judgment of the Court and the domestic authorities, is the implicit and problematic equating of ‘pluralism’ with ‘integration’. The concept of ‘muscular liberalism’ is pertinent here (Jan Dobbernack 2018 ‘The missing politics of muscular liberalism’, Identities 25(4): 377-396). First coined by the British Prime Minister David Cameron in a speech in 2011, it represented a governmental willingness to use ‘tough measures’ against primarily, but not exclusively, Muslim minority groups to enforce ‘British values’ both inside and outside of schools. These initiatives form part of a far broader shift in the meaning of ‘parental responsibility’ as it increasingly functions as an injunction on parents beyond questions of basic care. In this context, the margin of appreciation accorded States by the Court on matters of education may increasingly be tested in future cases concerning not only Germany’s distinctively rigid approach to home-schooling but a variety of other contexts, such as out of school clubs and associations, as well as the methods of registration and assessment of home education in countries where it is permitted.