Homeschooling and Article 8 ECHR: Wunderlich

The background

Homeschooling is illegal in Germany. In Wunderlich v Germany [2019] ECHR 12, the applicants, Petra and Dirk Wunderlich, who have four children, rejected the state school system and compulsory school attendance and wished to homeschool their children. In 2005, their eldest daughter reached school age and they refused to register her in a school and, though they were fined several times for failing to comply with the rules on compulsory school attendance, they did not relent and send her to school. Between 2008 and 2011 the family lived abroad; but when they returned to live permanently in Germany they did not register their children with any school [6-9].

As a result, the State Education Authority told the family court that Mr and Mrs Wunderlich were deliberately and persistently refusing to send their children to school and, in the end, the children were removed from the family home and placed in a children’s home for three weeks between August and September 2013 [19]. They then attended school between 2013 and 2014, but in June 2014 Mr and Mrs Wunderlich again withdrew them from school [22]. Two months later, in parallel proceedings, the Frankfurt am Main Court of Appeal transferred the right to determine the children’s place of residence back to Mr and Mrs Wunderlich. In doing so, however, the Court of Appeal emphasised that its decision should not be understood as permission for Mr and Mrs Wunderlich to homeschool their children., observing that the Education Authority had already lodged a criminal complaint against them for failing to comply with the rules on compulsory school attendance, which carried a maximum sentence of six months’ imprisonment [23].

The arguments

The applicants argued that the authorities had violated their their rights under Article 8 ECHR (respect for family life) – including the right to determine the children’s place of residence – by transferring parts of their parental rights to the youth office and by forcibly removing the children and placing them in a children’s home for three weeks [32].

The Government accepted that the events at issue had been interferences with the right to respect for the applicants’ family life; however, they had been in accordance with the law and had pursued the legitimate aim of protecting the health, rights and freedoms of the children and necessary in a democratic society. The best interests of the children had been at risk and it was that fact that had required the partial withdrawal of parental authority: the children had not attended a state school for years and their homeschooling had had to be regarded as inadequate. In addition, the children had had no regular contact with society and hardly any opportunity to meet children of their own age or to acquire social skills. They had grown up isolated within their own family enclave, to the exclusion of others. The courts had considered less-severe measures but had correctly concluded that, given the applicants’ intransigence, which could not even be changed by criminal sanctions, no other measures were available – and as soon as the learning assessment had been undertaken and the applicants had agreed to send their children to a public school, the children had been returned to their parents [40].

The judgment

The Court had held on previous occasions that the German prohibition on homeschooling was compatible with Article 8 and Article 2 of Protocol No. 1 and that the respective part of the application had already been declared inadmissible [42]. The parties had agreed that the events complained of had constituted interferences with the applicants’ Article and 8 rights. Nor was it in dispute that those interferences were based on Articles 1666, 1666a of the Civil Code [43].

The Court was satisfied that the authorities had acted in pursuit of the legitimate aims of protecting “health or morals” and “rights and freedoms of others” [45]. The authorities enjoyed a wide margin of appreciation when assessing the necessity of taking a child into care; and the best interests of the child were of crucial importance [47]. Further, the enforcement of compulsory school attendance to prevent social isolation and ensure integration into society was a relevant reason for justifying the partial withdrawal of parental authority and the domestic authorities’ assumption that the children were endangered by not being sent to school and being kept in a “symbiotic” family system had been a reasonable one [51]. Moreover:

“The authorities – both medical and social – have a duty to protect children and cannot be held liable every time genuine and reasonably-held concerns about the safety of children vis-à-vis members of their families are proved, retrospectively, to have been misguided … The Court would also add that the unavailability of this information was based on the applicants’ resistance to have the learning assessment conducted prior to the removal of the children” [52].

The Court concluded that the reasons adduced by the domestic courts were sufficient to satisfy Article 8 §(2) and that the procedural requirements implicit in Article 8 had been complied with [53]. Nor had the been disproportionate: the removal of the children had not lasted any longer than necessary in the children’s best interests and had not been implemented in a way which was particularly harsh or exceptional [54]. There had been “relevant and sufficient” reasons for the withdrawal of some parts of the parents’ authority and the temporary removal of the children from their family home and the domestic authorities had struck a proportionate balance between the best interests of the children and those of the applicants, within the margin of appreciation granted to the domestic authorities [57].

There had been no violation of Article 8 [58].

Comment

None of the above, one might reasonably conclude, has anything to do with “religion” – nor does the word appear in the judgment. Christian Today, on the other hand, reports the case as German Christian family loses appeal over homeschooling, while Deutsche Welle reported that Dirk Wunderlich and his wife “taught their children with the assistance of a Christian distance-learning school, and had offered to have the relevant authorities check up on them at any time” and that “he believed the family circle to be the best environment for children”. It is also thought that the Wunderlichs may seek to appeal to the Grand Chamber.

Which raises the question, if the Wunderlichs had a philosophical, moral or religious objection to compulsory education by the state, why was Article 9 ECHR not argued? Whether or not an Article 9 claim would have made any difference to the result is, admittedly, doubtful; but it would surely have been possible to mount a tenable – if by no means conclusive – argument  that belief in the freedom to educate one’s children at home was sufficiently cogent, cohesive, serious and important as to merit respect in a democratic society.

Cite this article as: Frank Cranmer, "Homeschooling and Article 8 ECHR: Wunderlich" in Law & Religion UK, 17 January 2019, https://lawandreligionuk.com/2019/01/17/homeschooling-and-article-8-echr-wunderlich/

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