Michael Segal looks at a legal case where the parents' religious beliefs demanded that their children have home schooling
When can parents educate their children at home?
The case of Konrad and Others v Germany  ELR 435, a European Court of Human Rights case, considered this question. The parents belonged to a Christian community and objected to their children's attendance at school which, by State law, was compulsory.
They said that, by teaching their children at home they were obeying a divine order, that their children's attendance at school would lead to conflicts with their (the parents') beliefs and endanger their children's religious education.
The parents taught their children at home in accordance with the syllabus of the 'Philadelphia School', an institution not recognised by the State. They were supervised by staff trained by the 'Philadelphia School', and by occasional gatherings of parents, children and staff members.
The parents applied for their children to be exempted from compulsory school attendance, and for permission to educate them at home. The State rejected their application and they appealed to the European Court of Human Rights.
The parents relied upon Article 2 of Protocol 1 of the European Convention on Human Rights, and on Articles 8, 9 and 14.
Article 2 of Protocol 1 says: ‘No person shall be denied the right to education. … the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions’.
The European Court held that the second sentence of Article 2 must be read with the first sentence. The first sentence contains the right to education at school, onto which is grafted the right of parents to respect for their religious convictions. So, respect is due only to parents’ convictions that do not conflict with the child's right to education.
So the parents may not, on the basis of their convictions, refuse a child's right to education at school.
No disproportionate restriction
The European Court noted that the parents were free to educate their children after school and at weekends, so their right to education was not disproportionately restricted. There was no breach of Article 2.
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.
1. Everyone has the right to freedom of thought, conscience and religion: this right includes freedom to change religion or belief and freedom to manifest religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest religion or belief is subject only to limitations prescribed by law that 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 European Court held that any interference with the parents' rights under Article 8 or Article 9 were justified as being provided by law and necessary in a democratic society in view of the public interest in ensuring children's education.
Article 14 says that the convention rights: ‘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 parents said they were being discriminated against in relation to others with different religious convictions that did not conflict with compulsory attendance, and because their children had to attend a school that had no religious education.
The European Court held, in the light of its decision under Articles 2, 8 and 9, that there was no discrimination under Article 14.
The European Convention on Human Rights is, by virtue of the Human Rights Act 1998, part of English law, and an English court would follow this decision.
Michael Segal is a district judge in the family division of the High Court
Send legal problems to The Editor, Education Law Update, 33-41 Dallington Street, London EC1V 0BB. We regret we can not enter into individual correspondence. While it is hoped the answers given here are helpful, they should not be relied on without seeking proper advice as to their application to your own circumstances.
Reader comments and questions about specific cases or individuals will not be published