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every civil right grows out of natural right

Hitherto we have spoken only (and that but in part) of the natural rights of man. We have now to consider the civil rights of man, and to show how the one originates from the other. Man did not enter into society to become worse than he was before, nor to have fewer rights than he had before, but to have those rights better secured. His natural rights are the foundations of all his civil rights. But in order to pursue this distinction with more precision, it will be necessary to mark the different qualities of natural and civil rights.

A few words will explain this. Natural rights are those which appertain to man in right of his existence. Of this kind are all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others. Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation, some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not, in all cases, sufficiently competent. Of this kind are those which relate to security and protection.

From this short review, it will be easy to distinguish between that class of natural rights which man retains after entering society and those he throws into the common stock as a member of society.

The natural rights which he retains, are all those in which the power to execute is as perfect in the individual as the right itself. Among this class, as is before mentioned, are all the intellectual rights, or rights of the mind: consequently, religion is one of those rights. The natural rights which is not retained, are all those in which, though the right is perfect in the individual, the power to execute them is defective. They answer not his purpose. A man, by natural right, has a right to judge in his own cause; and so far as the right of mind is concerned, he never surrenders it: But what availeth it to judge, if he has not power to redress? He therefore deposits this right in the common stock of society, and takes the arm of society, of which he is a part, in preference and in addition to his own. Society grants him nothing. Every man is a proprietor in society, and draws on the capital as a matter of right.

From these premises, two or three certain conclusions will follow.

First, That every civil right grows out of natural right; or, in other words, is a natural right exchanged.

Secondly, That civil power, properly considered as such, is made up of the aggregate of that class of the natural rights of man, which becomes defective in the individual in the point of power, and answers not his purpose; but when collected to a focus, becomes competent to the purpose of every one.

Thirdly, That the power produced from the aggregate of natural rights, imperfect in power in the individual, cannot be applied to invade the natural rights which are retained in the individual, and in which the power to execute is as perfect as the right itself.

The Rights of Man 1791 by Thomas Paine.

From these premises, two or three certain conclusions will follow.

First, That every civil right grows out of natural right; or, in other words, is a natural right exchanged.

The Rights of Man was a blockbuster in its time and sold an estimated 1.5 million copies in England alone (partly because Thomas Paine took no royalties). It also made him an enemy of the state and he was charged with seditious libel. Legend has it that it was the artist poet William Blake who warned Thomas Paine that it was time to flee England. William Blake was born above a shop in Soho, London, to a family of hosiers who were able to send their children to school but decided to educate William at home. This was clearly a natural choice that they were free to make in the second half of the 18th Century. They were free to choose what was right for each of their children. This freedom had always existed for as long as parents have looked after their young and the restrictions placed upon you were simply going to be one of status and therefore income. William Blake is now considered to be one of England’s greatest poets and artists. Blake saw each thing as unique - as irreducible to categorisation, but at the same time each thing contains the totality of everything in the world. So you have an interplay of uniqueness and connectivity – “ to see the world in a grain of sand and heaven in a wild flower”. He went on learning right to the end of his life and did some of his best work in later life. He perfectly illustrates the power of being autodidactic and the worth of his own self belief even when he was never going to be understood in his own time (but “I hate scarce smiles, I love laughing.” he wrote nonetheless). The Badman Review negates the life of William Blake.

Secondly, That civil power, properly considered as such, is made up of the aggregate of that class of the natural rights of man, which becomes defective in the individual in the point of power, and answers not his purpose; but when collected to a focus, becomes competent to the purpose of every one.

In 1944 the natural instinct the Blakes had to educate their children was enshrined into English law as a duty. In the same way that we, legally, also have a duty of care for our children. “every civil right grows out of natural right; or, in other words, is a natural right exchanged”

From Hansard 19 January 1944 - Rab Butler MP introduced the 1944 Education Act to parliament saying:

“Instead of elementary instruction in the "three R's," which should be so familiar to all hon. Members, or the provision, for which Wordsworth pleaded when he wrote of the State as:

"Binding herself by statute to secure

For all the children whom her soil maintains

The rudiments of letters, and inform

The mind with moral and religious truth."

we substitute a new Clause 34 which says:

“It shall be the duty of the parent of every child of compulsory school age to cause him to receive efficient full-time education suitable to his age, ability and aptitude, either by regular attendance at school or otherwise.” ”

With this new legal duty the Blakes would have found their freedom to make the same choices that they made for their children, in the first instance, intact. William Blake, who hated scarce smiles and loved laughing, would still have been educated otherwise.

In 1944 we really were at war and if you compare Clause 34 of the 1944 Education Act (which enshrines, in law, freedoms) with the draconian erosion of civil liberties being proposed by the Badman Review it seems irrational to the point of being disturbing. Humans, as a species, are bound together by our actions: so what other people do, only illustrates what we are all capable of. So the horrors of World War II are, I think, a shared burden, in the same way that the horrors of the slave trade and Rwanda are. People, who are in all other respects decent, can do awful things. We, the British, did not win World War II, the Russians did. None the less, Britain with people from all over the world made huge sacrifices and many brave men and women lost their lives. In the very same year, 1944, the free world landed on the beaches of Normandy at the cost of 10,000 casualties; 20,000 slave workers died making the V2 rocket that was also used (in 1944) to bomb Paris, Antwerp and London. Three million Germans went to concentration camps or prison for their opposition to the Nazis. We are told that these sacrifices should never be forgotten and in the aftermath of the war it was British lawyers who were instrumental in drawing up the European Convention on Human Rights. So it can only be wrong for the English government to be signing away this important freedom in such a treacherous manner. Hitler had banned home education in 1938 and we chose to protect it, by law, at time when we were fighting for our lives. As my Swedish correspondent noted – Hitler himself is quoted saying: - "My greatest resource is people's ability to forget."

The symbolism should not be lost on Parliament here: - ancient British freedoms secured at great cost or a redundant Nazi ban working its way through the back door?

The sentimentalist is he who would enjoy without incurring the immense debtorship for a thing done.

Ulysses - James Joyce

Society v Government

I have been wondering why the UK government and the Swedish government appear to be sharing information and are working to the same time table* before changing their respective legislation on Elective Home Education (*June and October 09 deadlines). The FOI Literature Review for the Badman Review notes that Sweden has Scandinavia's strictest official regulation of home education in Europe with an annual license to EHE (elective home education) and Britain has the most liberal. Sweden is now tightening its legislation and England is following suit by adopting Sweden’s annual license and is providing a further opportunity to ban a family from exercising EHE with the words “anything else” embedded in the sentence “anything else which may affect their ability to provide a suitable and efficient education”. If you look at the use of **language that is being used in both of England and Sweden’s proposals it would appear as though England and Sweden are both in process of bringing their legislation on home education in line with that of Germany's current legislation which bans home education – this is further suggested by the 2006 European Court of Human Rights ruling that upheld Germany’s ban. A ban brought into being during the Third Reich by Bernhard Rust in 1938 apparently. (**Daniel Monk, Senior Lecturer in Law, at The School of Law, Birkbeck, University of London has anticipated many of these tensions in his paper Problematising Home Education.)

The Swedish government, unlike the English government, is quite clear that they are going to all but ban home schooling and the reasons given on the Rohus website (Rohus is The Swedish Association for Home Education) are:

"…that the education in school should be comprehensive and objective and thereby designed so that all pupils can participate, regardless of what religious or philosophical reasons the pupil or his or her care-takers may have." Thus, the proposed law argues: "…there is no need for the law to offer the possibility of home-schooling because of religious or philosophical reasons in the family. All together, this means that this proposed change cannot be said to contradict Sweden's international obligations [i.e. Human Rights Conventions]."

All of which look suspiciously like the reasons given by the European Court of Human Rights in upholding Germany's ban on EHE. *My emphasis

"In a landmark legal case commenced in 2003 at the European Court of Human Rights a home-schooling parent couple argued on behalf of their children that Germany's compulsory school attendance endangered their children's religious upbringing, promoted teaching inconsistent with their Christian faith – especially the German State's mandates relating to sex education in the schools – and contravened the declaration in the Charter of Fundamental Rights of the European Union that "the State shall respect the right of parents to ensure education and teaching is in conformity with their own religious and philosophical convictions". In September 2006 the European Court of Human Rights upheld the German ban on home-schooling, stating "parents may not refuse... [compulsory schooling] on the basis of their convictions", and adding that the right to education "calls for regulation by the State". The European Court took the position that the plaintiffs were the children, not their parents, and declared "children are unable to foresee the consequences of their parents' decision for home education because of their young age.... Schools represent society, and it is in the children's interest to become part of that society. The parents' right to educate does not go as far as to deprive their children of that experience. The court stressed that the decisive point was not whether or not home education was equally effective as primary school education, but that compulsory school attendance require children from all backgrounds in society to gather together*." The European Court endorsed a "carefully reasoned" decision of the German court concerning "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." (see Konrad v. Germany)

A little too coincidentally this also mirrors the quote from a submission made by the Church of England to the Badman Review even though the C of E concluded their submission by stating there was no need for a change to current legislation (a conclusion that was ignored by the review).

“that children and young people not in formal education are missing the benefits and challenges of learning in community with their peers. Children who do not go to school may not experience the social and cultural diversity encountered there; they will not learn how to deal with the rough and tumble of everyday life; they may never meet people with different faith and value systems. All such encounters, even the difficult or painful ones are enriching. We are concerned not only with the five Every Child Matters outcomes, but also with the spiritual well-being of all children and young people. Spiritual well-being arises not only from being cared for in a loving family and/or faith community, but also in encounters with people of different opinions and backgrounds; in learning to listen to a variety of opinions; to encounter diversity and the riches and life-enhancement it can bring. Spiritual well-being depends on living and taking a full part in community life. Children and young people in schools learn about and from the five major religions. This may be a difficult part of the curriculum for home educators to provide, yet it is vital for the Government’s community cohesion agenda that all children learn in a balanced way about the variety of religious values and practices, and to be encouraged to question their own beliefs and practices.”

This is somewhat ingenuous of the C of E given their schools admission policies and the fact that all British school children must, by law, attend a daily act of Christian worship or sit alone in a classroom. Importantly, though, it provides the government with the appearance of evidence that makes roughly the same points made by the German courts i.e. - "The parents' right to educate does not go as far as to deprive their children of that experience. The court stressed that the decisive point was not whether or not home education was equally effective as primary school education, but that compulsory school attendance require children from all backgrounds in society to gather together." As does the AS Neill quote mischievously used in the Badman Review "the function of a child is to live his own life — not the life that his anxious parents think he should live, not a life according to the purpose of an educator who thinks he knows best." - i.e. "The European Court took the position that the plaintiffs were the children, not their parents..".

"The government doesn't care about the evidence. If they did there would never have been a review in the first place and its recommendations would not have been accepted by the government. The real problem is that the government publicly claims that they implement evidence-based policy, but time and time again they have shown that they actually manufacture policy-based evidence."

(home ed parent.)

From our own personal experience the Swedish Government, the German Governments and C of E statements are all wrong and are either ignorant or wilfully ignorant. In fact because we are immersed in the world around us: EHE as we experience it, is absolutely society centred education (Alan Thomas is very good on this in the EO video). Schools do not represent society any more than the police service, hospitals or prisons do, but are just one aspect of society. Not only is the reasoning of ECHR flawed it is not applicable to the British context. Firstly the circumstances of that case were particular to one family with a singular and atypical view of the world and should not be presumed to apply more widely. Secondly the historical and present day context of our education system is vastly different to that of Sweden (where, for example, private and single sex education is not so deeply embedded). In urban Britain, at secondary level, children do not mix with children of other backgrounds – their parents can choose to send them to schools which segregate them by sex, or religion, class or ability and anyone who has ever met a parent of a 10 year old in London (2 years before secondary transfer!) will have witnessed the effort the middle classes go to ensure their children go to a school with other middle class and or Christian and or high achieving children (as Harriet Harman’s and Diane Abbot’s famous defections to the private sector, and Tony Blair’s choice of a religious school exemplify). Indeed our experience is that in secondary school children do not even mix with children in a different academic stream from themselves. So the idea “that compulsory school attendance require children from all backgrounds in society to gather together” is a nonsense in this country. By contrast our home educated child has friends that whose educational backgrounds range from Eton and Pimlico Academy, she has friends in the ‘gifted and talented” sets at their schools and friends labeled with special educational needs.

“Some writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher.

Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one; for when we suffer, or are exposed to the same miseries by a government, which we might expect in a country without government, our calamities are heightened by reflecting that we furnish the means by which we suffer...”

From Common Sense by Thomas Paine, who died 200 years ago this year, and who argued that people are born with a set of natural rights and that any society that violates those rights is flawed and should be changed..

Now, it is quite clear that today's Germans have absolutely nothing to do with their country's Nazi past and as one German commentator recently remarked: the Germans were probably the most pacific country in Europe. Yet their government has gone to some considerable length to get a square peg into a round hole and ensure their ban on EHE remains law. This is very problematic for the rest of us and should be challenged because the logic they have used would be persuasive if you are ignorant of, and thus fearful, and so hostile to EHE and its place in society. It would be even more problematic if Germany believed its own logic and was pushing for a Europe wide ban. Interestingly, Annette Schavan who is Germany's current Education Minister was Minister of Culture, Youth and Sports of the German federal state of Baden-Württembergfrom 1995 -2005. During this time, she oversaw school education in Baden-Württemberg, the same German state that had successfully defended Germany's ban on home education at the ECHR – see Konrad v Germany.

One of our problems is that the British government are wrongly associating equality with a some sort of good that can be distributed. Neither equality nor education are goods that can be divvied up. They are instead dynamic, the function of processes and relationships. Related to their confusion about equality and distribution is their conflation of equality with standardisation. If equality or education were things you could distribute then giving out the same thing repeatedly might make some sense, but since neither are static in this way, the standardisation agenda is not only misconceived, it is counterproductive. Giving everyone the same experience is not giving them an equal experience because people are different in such complex and irreducible ways. A real concern for equality would recognise that very different approaches, experiences and outcomes can have equal worth within a society.

I have also posted Rohus's response to this question and the full text of the Konrad v Germany decision which I believe could be the source of everything.

We do not live in a democracy and even if the Badman Review does not become law because of the General Election all political parties continue with the same rotten system once they are in power - lots of Tories hate Cameron and are already planning his fate post victory if he has one. You would think that a suitable project for Westminster would be a Prime Minister elected by the people, with an independent cabinet, whose powers are checked by an elected first and second house (the Lords and Bishops can run for election like everybody else). (The Queen can stay head of state because she was Electively Home Educated and so everybody knows at least one home educated person.)

Rohus response

When I asked Rohus why this is happening this is their reply: -

Amazing issues. A historian (forgot his name) said that "no events in history are by chance" implying that all are planned. All i know for sure (about the fact that these anti-home-educational moves happen simultaneously in veery different parts of the world), is that our minister of education participated in the Bilderberg meeting in may 2009. He was an "unofficial" attendee, as it is said on the Swedish government site, that he was off duty on that week. The Finnish official who partook mentioned his attendance there, though. Other than that, I have not seen any connections. The measures governments take to "end" home education as we know it, are immense but so illogical and based on no evidence or scientific studies - on the contrary, as you know. I also know this: Every case where a family appeals a negative decision on their home education and is turned down, it is because of the religious aspects. It is interpreted by the courts as something that would exclude certain parts of the national curriculum. Because of this, and the fact that home education can stand on its own merits both socially and academically, nobody "needs" that added aspect of religious reasons; so we recommend against using that as an argument. Also, only 30% of the home educators in the USA give religious reasons for their choice. In Europe, that figure is probably less than 10%. Regarding the government measures resembling Hitler's law from the 30's: Hitler himself is quoted saying: -"My greatest resource is people's ability to forget." We do all we can to remind them, and the people. And work politically to influence and give our reviews on legislation. If that does not work, we will have to use other methods. It is becoming more common, that families simply move to other countries...

I have never heard of Bilderberg but the Times has: where you will notice the names of Ed Balls and Peter Mandelson (Business and Skills). Remember the Department for Education and Skills? Peter Mandelson has been negotiating for the UK with the German Government since the collapse of General Motors Europe (GM own Opel (Germany), Vauxhall (England) and Saab (Sweden)). Germany is the main player and will bankroll at least Opel’s survival.

Konrad v Germany

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35504/03

by Fritz KONRAD and Others

against Germany

The European Court of Human Rights (Fifth Section), sitting on 11 September 2006 as a Chamber composed of:

Mr P. Lorenzen, President,

Mrs S. Botoucharova,

Mr K. Jungwiert,

Mr V. Butkevych,

Mrs M. Tsatsa-Nikolovska,

Mr R. Maruste,

Mr M. Villiger, judges,

and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 4 November 2003,

Having deliberated, decides as follows:

THE FACTS

The four applicants are Mr Fritz Konrad, a Swiss and German national born in 1951, Mrs Marianna Konrad, a Swiss national born in 1956, and their children Rebekka, a Swiss and German national born in 1992, and Josua, a Swiss and German national born in 1993. They live in Herbolzheim (Germany) and were represented before the Court by Mr W. Roth and Mr R. Reichert, two lawyers practising in Bonn.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants belong to a Christian community which is strongly attached to the Bible and reject the attendance of private or State schools for religious reasons. The applicant parents find that school education does not suit their beliefs because of sex education, the appearance of mythical creatures such as witches and dwarfs in fairytales during school lessons and the increasing physical and psychological violence among pupils at school.

They educate their children at home in accordance with the syllabus and materials of the “Philadelphia School”, an institution based in Siegen which is not recognised as a private school by the State. The institution specialises in assisting devout Christian parents in educating their children at home. The school's syllabus contains both books and materials which are used by State or private schools and materials specially prepared to support the education of religious beliefs. Teaching by parents is supervised by staff trained by the Philadelphia School. The teaching is supplemented by occasional gatherings of parents, children and staff members.

The applicant parents applied for their children to be exempted from compulsory primary school attendance and for permission to educate them at home. The third and fourth applicants reached the age for compulsory school attendance in 1999 and 2000 respectively. At present, they do not attend a private or State school.

On 28 August 2000 the Offenburg Education Office (Staatliches Schulamt Offenburg) rejected the application pursuant to section 72(1), in conjunction with section 76(2), of the Baden-Württemberg School Act (Schulgesetz Baden-Württemberg). The Freiburg Regional Education Office (Oberschulamt Freiburg) dismissed an objection by the applicants on 30 October 2000.

On 11 July 2001 the Freiburg Administrative Court dismissed a request by the applicants for exemption from compulsory primary-school attendance. The court noted that the Basic Law granted the parents both freedom of religion and the right to educate their children with regard to religious and philosophical convictions, which also included the negative aspect of keeping their children away from convictions which would be harmful in their opinion. That freedom, however, was restricted by the State's obligation to provide education and tuition. Hence compulsory schooling was not a matter for the parents' discretion. The applicant parents' wish to let their children grow up in a “protected area” at home without outside interference could not take priority over compulsory school attendance. Even if the children could be sufficiently educated at home, the State's obligation to provide education under the Basic Law would not be met if the children had no contact with other children. Attending a primary school, with children from all backgrounds, would enable the children both to gain their first experiences of society and to acquire social skills. Neither would be possible if the parents were authorised to educate the children at home, in particular because the applicant parents had openly stated that they wished to avoid their children having regular contact with other children. The court noted that the State's obligation to educate would also further the children's interests and served the protection of their personal rights. Because of their young age, the applicant children were unable to foresee the consequences of their parents' decision to opt for home education. Therefore, they could hardly be expected to take an autonomous decision for themselves. Moreover, the applicant parents' right to educate their children would not be undermined by compulsory school attendance as the parents could educate their children before and after school, as well as at weekends. They were also free to send their children to a denominational school, which would possibly be more sensitive as to sex education than a State school, although the court questioned whether sex education would be of any relevance in a primary school's syllabus.

On 18 June 2002 the Baden-Württemberg Administrative Court of Appeal dismissed an appeal by the applicants. It found that, even though the applicant parents' right to educate their children included religious education, they were not entitled under the Basic Law to provide the exclusive education of their children. The State's constitutional obligation to provide children with an education was on an equal footing with the parents' right. The court stressed that the decisive point was not whether home education was equally as effective as primary school education, but that compulsory school attendance required children from all backgrounds in society to gather together. Parents could not obtain an exemption from compulsory school attendance for their children if they disagreed with the content of particular parts of the syllabus, even if their disagreement was religiously motivated. The applicant parents could not be permitted to keep their children away from school and the influences of other children. Schools represented society, and it was in the children's interests to become part of that society. The parents' right to provide education did not go so far as to deprive their children of that experience. Parents could require the State to take positive measures in order to prevent their children from ill-treatment by other children. The applicant parents had not, however, argued that the school authorities in Baden-Württemberg would fail to do so. Neither had the parents sufficiently argued that the applicant children would be exposed to religious influence which was opposed to their own views. The school's obligation of religious neutrality would prevent the applicant children from any indoctrination against their will. In so far as the applicants complained that the school's syllabus was too scientific and denied any divine influence on the creation and the history of the world, the court found that freedom of religion did not entail the freedom not to deal with any possible conflicts between science and religion. The “mythical figures” such as dwarfs or witches which the applicants considered to represent occultism were characters in fairytales and children's books which were well known to all children. At school, they would be introduced to children as fictional characters. Hence the State did not promote superstition through its schools.

On 7 January 2003 the Federal Administrative Court dismissed an application by the applicants for leave to appeal on points of law.

On 29 April 2003 the Federal Constitutional Court refused to consider a constitutional complaint by the applicants because it had already dealt with the decisive constitutional issues in its settled case-law. It pointed out that the administrative courts' decisions had neither violated the applicant parents' right to educate their children nor the applicants' freedom of religion. The balance of interests between the applicants' rights on the one hand and the State's obligation to provide for school education on the other did not require exemption from compulsory school attendance. The Federal Constitutional Court stressed that the State's obligation to provide education did not only concern the acquisition of knowledge, but also the education of responsible citizens to participate in a democratic and pluralistic society. To hold that home education under the State's supervision was not equally effective for pursuing these aims was at least not erroneous. The acquisition of social skills in dealing with other persons who had different views and in holding an opinion which differed from the views of the majority was only possible through regular contact with society. Everyday experience with other children based on regular school attendance was a more effective means of achieving that aim. The Federal Constitutional Court found that the interferences with the applicants' fundamental rights were also proportionate given the general interest of society in avoiding the emergence of parallel societies based on separate philosophical convictions. Moreover, society also had an interest in the integration of minorities. Such integration required not only that minorities with separate religious or philosophical views should not be excluded, but also that they should not exclude themselves. Therefore, the exercise and practising of tolerance in primary schools was an important goal. Lastly, the Federal Constitutional Court considered that the interference was reasonable as the parents still had the possibility of educating their children themselves outside school hours, and the school system was obliged to be considerate towards dissenting religious beliefs.

B. Relevant domestic law

1. The Basic Law

The relevant provisions of the Basic Law are the following:

Article 6

“1. Marriage and the family shall enjoy the special protection of the State.

2. The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall supervise them in the performance of this duty.

...”

Article 7

“1. The entire school system shall be under the supervision of the State.

2. Parents and guardians shall have the right to decide whether children should receive religious instruction.

3. Religious instruction shall form part of the regular curriculum in State schools, with the exception of non-denominational schools. Without prejudice to the State's right of supervision, religious instruction shall be given in accordance with the tenets of the religious community concerned. Teachers may not be obliged against their will to give religious instruction.

4. The right to establish private schools shall be guaranteed. Private schools that serve as alternatives to State schools shall require the approval of the State and shall be subject to the laws of the Länder. Such approval shall be given where private schools are not inferior to State schools in terms of their educational aims, their facilities, or the professional training of their teaching staff, and where segregation of pupils according to the means of their parents will not be encouraged thereby. Approval shall be withheld if the economic and legal position of the teaching staff is not adequately assured.

...”

2. Constitution of the Land of Baden-Württemberg

Article 14 § 1 of the Constitution of the Land of Baden-Württemberg provides:

“School attendance is compulsory.”

3. The Baden-Württemberg School Act

The relevant provisions of the Baden-Württemberg School Act are the following:

Section 72: Compulsory school attendance; pupils' obligations

“(1) Compulsory school attendance shall apply to all children and juveniles who are permanently resident ... in the Land of Baden-Württemberg.

...

(4) Pupils are required to attend a German school. The school supervisory authority shall decide on any exemption.

...”

Section 76: Compliance with compulsory school attendance

“(1) All children and juveniles are obliged to attend schools within the meaning of section 72(2)(2) of this Act, unless provision is otherwise made for their education and tuition. Alternative tuition instead of primary-school attendance may only be granted in exceptional circumstances by the school supervisory authority.

...”

COMPLAINTS

The applicants complained under Articles 8 and 9 of the Convention and Article 2 of Protocol No. 1 of the refusal to allow the applicant parents to educate their children at home in conformity with their own religious beliefs, and of the subsequent decisions by the German courts confirming that refusal. Moreover, they invoked all three provisions in conjunction with Article 14.

THE LAW

1. The applicant parents alleged that the refusal of permission to educate their children at home violated their right to ensure an education for their children in conformity with their own religious convictions as guaranteed by Article 2 of Protocol No. 1, which provides:

“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 in conformity with their own religious and philosophical convictions.”

The applicant parents submitted that it was their duty to educate their children in accordance with the Bible and Christian values. They inferred from numerous quotations from the Bible that their children's education was an obligation on them which could not easily be transferred to third persons. They submitted that, by teaching their children at home, they were obeying a divine order. Their children's attendance of a primary school would inevitably lead to grave conflicts with their personal beliefs as far as syllabus and teaching methods were concerned. Compulsory school attendance would therefore severely endanger their children's religious education, especially regarding sex education and concentration training (as provided in some schools), which in their view amounted to esoteric exercises. The State's obligation of religious neutrality would render it impossible to educate their children in a State school in accordance with the applicant parents' beliefs. As the applicants belonged to a religious minority, there were no private schools which suited their convictions. Moreover, the applicants pointed out that home education was permitted in the United States, Canada, Switzerland, Austria and Norway. Countries such as Denmark, Finland and Ireland provided for home education in their constitution.

The Court observes that the applicant parents' complaints mainly relate to the second sentence of Article 2 of Protocol No. 1. This provision recognises the role of the State in education as well as the right of parents, who are entitled to respect for their religious and philosophical convictions in the delivery of education and teaching to their children. It aims at safeguarding pluralism in education, which is essential for the preservation of the “democratic society” as conceived by the Convention (see B.N. and S.N. v. Sweden, no. 17678/91, Commission decision of 30 June 1993). In view of the power of the modern State, it is above all through State teaching that this aim must be realised (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976, Series A no. 23, pp. 24-25, § 50).

Furthermore, the second sentence of Article 2 must be read together with the first, which enshrines the right of everyone to education. It is on to this fundamental right that is grafted the right of parents to respect for their religious and philosophical convictions (see B.N. and S.N. v. Sweden, cited above). Therefore, respect is only due to convictions on the part of the parents which do not conflict with the child's right to education, the whole of Article 2 of Protocol No. 1 being dominated by its first sentence (see Campbell and Cosans v. the United Kingdom, judgment of 25 February 1982, Series A no. 48, p. 16, § 36). This means that parents may not refuse a child's right to education on the basis of their convictions (see B.N. and S.N. v. Sweden, cited above, and Leuffen v. Germany, no. 19844/92, Commission decision of 9 July 1992).

The Court notes that, in the present case, the applicant parents also filed their complaints on behalf of the applicant children. Therefore, it cannot be formally said that the applicant parents are seeking to impose their religious convictions against their children's will. Nevertheless, the Court agrees with the finding of the Freiburg Administrative Court that the applicant children were unable to foresee the consequences of their parents' decision to opt for home education because of their young age. As it would be very difficult for the applicant children to take an autonomous decision for themselves at that age, the Court considers that the above principles apply to the present case.

The right to education as enshrined in Article 2 of Protocol No. 1 by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals (see Belgian linguistic case, judgment of 23 July 1968, Series A no. 6, p. 32, § 5). Therefore, Article 2 of Protocol No. 1 implies the possibility for the State to establish compulsory schooling, be it in State schools or through private tuition of a satisfactory standard (see Family H. v. the United Kingdom, no. 10233/83, Commission decision of 6 March 1984, Decisions and Reports 37, p. 105, at p. 108; B.N. and S.N. v. Sweden, cited above; and Leuffen, cited above). The Court observes in this connection that there appears to be no consensus among the Contracting States with regard to compulsory attendance of primary schools. While some countries permit home education, other States provide for compulsory attendance of State or private schools.

In the present case, the Court notes that the German authorities and courts have carefully reasoned their decisions and mainly stressed the fact that not only the acquisition of knowledge but also integration into and first experiences of society are important goals in primary-school education. The German courts found that those objectives could not be met to the same extent by home education, even if it allowed children to acquire the same standard of knowledge as provided by primary-school education. The Court considers that this presumption is not erroneous and falls within the Contracting States' margin of appreciation in setting up and interpreting rules for their education systems. The Federal Constitutional Court stressed the general interest of society in avoiding 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 (see, mutatis mutandis, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 89, ECHR 2003-II).

Moreover, the German courts pointed to the fact that the applicant parents were free to educate their children after school and at weekends. Therefore, the parents' right to education in conformity with their religious convictions is not restricted in a disproportionate manner. Compulsory primary-school attendance does not deprive the applicant parents of their right to “exercise with regard to their children natural parental functions as educators, or to guide their children on a path in line with the parents' own religious or philosophical convictions” (see, mutatis mutandis, Kjeldsen, Busk Madsen and Pedersen, cited above, pp. 27-28, § 54, and Efstratiou v. Greece, judgment of 27 November 1996, Reports of Judgments and Decisions 1996-VI, p. 2359, § 32).

It follows that this complaint must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicants also complained that the refusal to allow the applicant parents to educate their children in accordance with their religious beliefs amounted to a violation of their respect to private life under Article 8, which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Moreover, the applicants complained of a violation of their freedom of thought, conscience and religion, as guaranteed by Article 9 of the Convention, which provides:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The Court finds that any interference with the applicants' rights under either of these provisions would, for the reasons stated above, be justified under Article 8 § 2 and Article 9 § 2 respectively as being provided for by law and necessary in a democratic society in view of the public interest in ensuring the children's education.

Therefore, this part of the application is likewise manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicants further complained of a violation of Article 14, read in conjunction with Articles 8 and 9 of the Convention and Article 2 of Protocol No. 1. Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The applicants submitted that they were being discriminated against in relation to others who held different religious convictions which did not conflict with compulsory school attendance (Article 14 read in conjunction with Article 9 of the Convention and Article 2 of Protocol No. 1). They also submitted that they were being discriminated against because the applicant children were forced to attend a State school which did not provide religious education. Having regard to its conclusions concerning Article 9 of the Convention and Article 2 of Protocol No. 1, the Court finds that no separate issue arises in conjunction with Article 14.

Moreover, the applicants submitted that they were being discriminated against in relation to families whose children had been exempted from compulsory school attendance on the grounds that the parents worked abroad or were not settled because their professional life required them to move around the country (Article 14 read in conjunction with Article 8 of the Convention).

The Court reiterates that, for the purposes of Article 14, a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment (see Camp and Bourimi v. the Netherlands, no. 28369/95, § 37, ECHR 2000-X).

The Court notes that there exists a difference of treatment between the applicant children and other children who have obtained an exemption from compulsory school attendance “in exceptional circumstances” as provided for by section 76(1) of the Baden-Württemberg School Act or equivalent provisions in other Länder. However, the applicants submitted that such “exceptional circumstances” had been recognised by the school supervisory authorities only in cases in which children were physically unfit to attend school or in which the parents had to move around the country for professional reasons. Such exemptions were granted by the school supervisory authorities because the limited feasibility of school attendance would have caused undue hardship for those children. Those exemptions were hence granted for merely practical reasons, whereas the applicants sought to obtain an exemption for religious purposes. Therefore, the Court finds that the above distinction justifies a difference of treatment.

It follows that this complaint must also be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer LORENZEN

Registrar President