The ECHR and English law on parental decisions over education for their child.
Article 2 of Protocol No. 1 European Convention on Human Rights
Right to education
“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.”
Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights
Statement by Special Rapporteur on the right to education
Commission on Human Rights, Geneva, 22 March – 30 April 1999
Item 10: Economic, social and cultural rights
8 April 1999
“The objective of getting all school-aged children to school and keeping them there till they attain the minimum defined in compulsory education is routinely used in the sector of education, but this objective does not necessarily conform to human rights requirements. In a country where all school-aged children are in school, free of charge, for the full duration of compulsory education, the right to education may be denied or violated. The core human rights standards for education include respect of freedom. The respect of parents’ freedom to educate their children according to their vision of what education should be has been part of international human rights standards since their very emergence.”
Parents/carers have a statutory duty for ensuring that the child receives a ‘suitable education’ as stipulated in s7 Education Act 1996 by regular attendance at school or ‘otherwise’. There is no specification as to the form that ‘otherwise’ should take, ‘elective home education’ is not part of this legislation.
· Parental duty is a key part of the fourfold foundation of education law in England. Lord Adonis provided analysis and explanation of the value of the fourfold foundation via case law in 2007. The strengths were discussed in 2006 by Lord Bingham (Ali v Lord Grey School  UKHL 14) “This fourfold foundation has endured over a long period because it has, I think, certain inherent strengths. First, it recognises that the party with the keenest personal interest in securing the best available education for a child ordinarily is, or ought to be, the parent of the child.”
Article 8 of the European Convention on Human Rights
Right to respect for private and family life
“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 wellbeing 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.”
Guide on Article 8 of the European Convention on Human Rights
(Also Human Rights Act 1998 Article 8)
UK Supreme Court Named Person judgement 2016
The UK Supreme Court Named Person judgement 2016 upheld the threshold for coercive state intervention, that of concern of significant harm. It gives us clear guidance on the fundamental need for democracy to protect the autonomy of the family from the state.
“The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.”
The justices also quoted the late US Supreme Court justice James Clark McReynolds, who held in Pierce v Society of Sisters:
“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
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