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Govt may deny homeschool families custody to teach tolerance: ECHR

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The government has the right to remove children who are homeschooled from their parents’ custody if authorities believe their parents will not teach children “tolerance,” the European Court of Human Rights (ECHR) ruled last week.

The Wunderlich family had claimed German authorities violated their innate human rights by denying them custody and forcibly enrolling their children in public schools to further their “social integration.” But the ECHR disagreed.

Nearly three dozen police and social workers stormed the family’s home in August 2013 when the parents, Dick and Petra Wunderlich, refused to stop homeschooling their four children. Homeschooling faces tight legal constriction in Germany, which permits the practice only for children who suffer severe illnesses, the children of diplomats, and child actors.

The European Court of Human Rights (ECHR) described the ruling of the court that set the motion in process – the Darmstadt Family Court’s decision of September 6, 2012 – which held that the Wunderlich family “risked damaging the children’s best interests in the long term,” because not attending a government-run school prevented them from “learning social skills such as tolerance.”

“The court found that the children needed to be exposed to influences other than those of their parental home to acquire those skills,” the ECHR added.

Officials claimed they had feared the Wunderlich children had no contact with anyone outside the family and that their father might kill them because he once referred to them as his “property” – rather than that of the State. Armed with those allegations and a desire to enforce its social values, the state leapt into action.

“The children had to be carried out of the house individually with the help of police officers after they had refused to comply with the court bailiff’s requests to come out voluntarily,” the ECHR notes.

Assessments later determined that the children faced no physical danger, did not have poor educational attainment, and had contacts outside the family. Yet the government ruled the family relationship “symbiotic.”

Officials returned the children to their home three weeks later – after the parents promised to send them to public school.

To assure the Wunderlichs did not flee the country, the court denied the parents full custody, specifically the right to determine where their children lived. Should they move to a nation that allows homeschooling, like neighboring France, the court promised criminal prosecution.

The family said the ruling violated their right to raise their children according to their own beliefs and appealed all the way to the ECHR – which ruled against them on Thursday, January 10.

It is small consolation that the ECHR ruled “the fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents.” (Emphasis added.)

If public authorities reasonably believe children run the risk of abuse, they have the right to intervene – even if that belief proves false. However, the ECHR went further than that. In the court’s mind, “the enforcement of compulsory school attendance, to prevent social isolation of the applicants’ children and ensure their integration into society, was a relevant reason for justifying the partial withdrawal of parental authority.”

The state’s concern that Christian parents may raise “intolerant” children whose values isolate them from most of their peers justifies their forcible removal from parental custody, the court seems to indicate.

Furthermore, the ECHR ruled that “the State should take measures to rehabilitate the child and parent, where possible.” To this end, the court notes that “the children were returned to their parents after … the applicants had agreed to send their children to [government-run] school.”

State officials are right to return children to their parents … once those parents agree with the government’s aims.

This ruling conflicts with inalienable human rights recognized by Christian and secular authorities.

Parental rights in education are “fundamental”

The Christian tradition holds parental rights to outweigh those of political authorities. “As those first responsible for the education of their children, parents have the right to choose a school for them which corresponds to their own convictions. This right is fundamental,” according to the Catechism of the Catholic Church. “Public authorities have the duty of guaranteeing this parental right and of ensuring the concrete conditions for its exercise.”

Reflecting this Christian influence, Article 2 of the European Convention on Human Rights states that “the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” Article 8 bars officials from interfering in family life – except as deemed “necessary in a democratic society … for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Christians should affirm the right of parents to raise their children according to their own religious beliefs, even if the ECHR will not. The state should not use its monopoly on power to overrule Christian religious principles.

Moreover, empirical evidence weighs against the ECHR’s decision.

Homeschool children are more tolerant than their peers: Studies

In a 2014 study, Albert Cheng compared the level of political tolerance of homeschooled students with those who attended public schools. He asked college students if they would allow the government to bug the phones, ban the books, or prohibit from living in their neighborhoods members of disfavored political groups. After performing multivariate analysis, Cheng found, “Those [college students] with more exposure to homeschooling relative to public schooling tend to be more politically tolerant.”

Late last year, the OIDEL’s “Freedom of Education Index 2018” tested this proposition by comparing its FEI ratings against the OECD’s measure of social cohesion. The NGO found “a positive tendency” for homeschooling to increase tolerance, “but with a low correlation.” The report concluded, “We cannot affirm that freedom of education has a negative effect on social cohesion.”

Mike Donnelly, an attorney with the Home School Legal Defense Association (HSLDA), said the data prove that “allowing parents more choices in educating their children is an overall positive.”

“Protecting the right of parents to homeschool is a necessary ingredient in a democratic, free country,” he said. “Conversely, a country that does not promote freedom of education is intolerant and not truly pluralistic.”

German authorities physically removed crying, clinging children from their parents in order to prevent them from being manhandled. They prevented their parents from regarding them as “property” by temporarily making the children wards of the state. And they preemptively crushed potential “intolerance” by denying a family the right to raise its children according to its own educational and religious beliefs.

If the German government wants to prevent schooling from forcibly denying children opportunity, it might begin with its own schools. The OECD found in 2000 that Germany’s two-track educational system furthered social inequality by denying educational opportunities to some children.

And the problem persists, both due to families’ socioeconomic background and the strain placed on finite resources by population growth largely driven by immigration.

By forcing all children into government-run schools, the government may be doing more harm than that alleged against the Wunderlich parents.

(Photo credit: Alliance Defending Freedom.)

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Rev. Ben Johnson Rev. Ben Johnson is Senior Editor at the Acton Institute.

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