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February 24, 2015

Homeschoolers Look to Human Rights Court for Relief

Swedish Family Works with HSLDA to Appeal Case to the European Court of Human Rights

Mike Donnelly
Staff Attorney Michael Donnelly is director of international affairs for HSLDA. He and his wife homeschool.

Now that the Swedish Supreme Administrative Court has turned down their appeal to homeschool, the Petersen family plans to appeal to the European Court of Human Rights (ECHR).

The Petersens appealed to the Swedish high court in December after local authorities and lower courts denied their request to homeschool their 8-year-old daughter. Under Swedish law families may homeschool, but a 2010 change in the law says that homeschooling should only happen in “extraordinary circumstances.”

Homeschool leaders and advocates say that homeschooling has become virtually banned in the Nordic country. Families who persist in homeschooling their children without permission have faced harsh penalties and most have fled to neighboring Finland, where homeschooling is viewed more favorably. (See previous stories on HSLDA’s international webpages.)

Legal Help

Ellinor and Daniel Petersen will appeal with the help of the Home School Legal Defense Association and the Alliance Defending Freedom. Lawyers for both organizations agree that the court has been extremely unfriendly to homeschoolers.

“The ECHR has been quite hostile to homeschooling and also parental rights generally in education,” explained Mike Donnelly, HSLDA director of global outreach. “Despite an unqualified command that the rights of parents must be respected, the ECHR’s jurisprudence has confused the right to education recognized in the European Convention on Human Rights with the notion that democracy and pluralism can only be protected by state teaching. This emboldens states like Germany and Sweden who treat homeschooling families harshly,” he said.

“In the court’s published cases on home education, Germany in 1992, 2006 and Sweden in 1993, the court has refused to find these countries in violation of the convention. They were wrong then and are wrong now. We hope the court will reconsider its misguided judgments with the Petersen case and others we plan to file in 2015,” he concluded.

In Konrad the ECHR said that the German Supreme Court was not wrong to decide that homeschooling can be banned based on the belief that German children can only learn tolerance in state-controlled schools. In Konrad the German court said that the state shares equal rights with parents regarding the education of children and could not tolerate the risk that homeschooling might promote the development of parallel societies. The court also insisted home education could be an abuse of parental rights.

Pressing for Change

Ellinor Petersen, a member of the Christian Democrat Party (currently in opposition), hopes to win in court but is also seeking legislative change.

“Together with several other members, I have motioned to take away the requirement of ‘extraordinary circumstances’ for homeschooling,” Petersen said. “This wording has led to virtually no permissions granted for homeschooling, even when the circumstances were exceptional. It is not right that the state has a prior right to decide what education is given to the children; it is on the parents. We also argue that homeschooling is a fully adequate alternative to school. Homeschooling is a global, growing movement, and it is time for a change in the Swedish approach,” she said.

Sweden isn’t the only country facing a challenge in Europe’s human rights court. HSLDA and German attorneys are working to appeal other decisions to the European Court of Human Rights, Donnelly said. He added that he is hopeful that the growing recognition of home education as legitimate around the world may win the day, but that homeschoolers will have an uphill battle at the court in light of its previous decisions.

“The court’s rulings have been undeniably statist—which is at odds with the nature of the treaty, which is to protect the rights of individuals against state infringements,” stated Donnelly. “Somehow the court has twisted the text that respects parental rights in education to mean that the state has a right to override parental decisions in education. This is tragic and misses the core promise of what human rights are all about—people have rights, states don’t,” he said.

Dire Need

Roger Kiska, senior counsel for the Alliance Defending Freedom Global said that the need for the court to revisit its educational jurisprudence was dire.

“The court has missed many opportunities to uphold the rights of children and parents as families to be free from excessive state interference,” noted Kiska. “We plan to work with HSLDA and these families to appeal to the core foundations of the treaty—that families and individuals should be protected from state interference. The court has emboldened states to kick parents aside as the state has sought more and more control. This must stop,” he said.

Although the court has over decades persistently upheld state intervention into families—consistently ruling against parents who wish to homeschool or to opt their children out of public school programs that violate their sincerely held religious or philosophical convictions—the Petersens hope that may change.

“Our children’s education is important to us,” Daniel Petersen explained. “We want them to pursue their interests and passions while building a multicultural foundation of knowledge and values so they can become successful and contributing members in an increasingly interconnected global community. For us, school simply can’t provide the education we want for our children; choosing another path is a natural choice.

Petersen said it is parents who should direct their children’s education.

“This is our right as parents, and we’re disappointed that the Swedish courts have failed to uphold the fundamental intent and purpose of the European Convention by denying us this right. Complete control of education by the state is a shadow of darker times in Europe and has no place in a free and democratic society; moreover, considering the international growth and effectiveness of home education, there is no reasonable excuse for prohibiting such alternate approaches. We are hopeful that the court will seriously reconsider its position and grant us the relief that we and so many families desperately need in our fight to do what is best for our children,” he said.

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