Saturday, January 06, 2007

Part 6 - More Fairy Tales

The plaintiffs’ argument that they cannot act against their consciences by, notwithstanding their open attitude towards school in general, forcing their plaintiffs [sic – clearly the children are meant here] to attend school against their will cannot be admitted.

According to paragraph 60, section 4 of the Bremen School Statute the plaintiffs are responsible for causing the fulfilment of their children’s obligation to attend school in their capacities as agents for bringing up their children. This ruling mainly affects the general external relationship between the state and its citizens, but also indirectly the special internal relationship between children and their parents, in that it provides an adequate construal of the terms care and education as contained in Article 6, section 2, page 1 of the Basic Law. In this respect that ‘natural’ approach applies which, as a special aspect of this section, concerns the scope and limitations of parents’ responsibilities (cf. Dreher, Basic Law Vol. 1 1996, Art. 6, marginal note No. 95). There can be no collision between parental rights and children’s rights where a child is incapable of being aware of these on account of its lack of rational/intellectual maturity. In such a case no conflict with the parental right to educate can arise. On the other hand, if the educational aim of engendering a self-determining and selfresponsible personality is (partially) fulfilled, the aspect of parental responsibility contained in Art. 6, section 2, page 1 of the Basic Law is no longer applicable (Dreher, see above). The parental right to educate serves to promote the welfare of the child and is accompanied by obligations; thus it must, on account of its purpose and character, be surrendered when the child has reached an age at which it has gained sufficient maturity to judge its own life situation and be legally responsible for itself. As a right which is oriented to the child and the development of its personality it represents a part of its nature that it should become increasingly superfluous and immaterial according to the child’s growing maturity (cf. Decisions of the FCC 59, 360).

In view of this it is irrelevant as to whether the constitutionality of paragraph 60, section 4 of the (common law) Bremen School Statute is questionable insofar as it assigns the responsibility for fulfilling children’s obligation to attend school to the agents responsible for their education, i.e. also in respect of adult children as the case may be. Certainly in the case of the plaintiffs’ children aged seven and nine respectively the parental authority assigned by Art. 6, section 2, page 1 of the Basic Law includes the right to determine unilaterally for them. The very word ‘education’ (original: ‘Erziehung’, includes wider sense of upbringing) – when viewed without ideological ballast – constitutes ‘determination from without’ simply according to its basic meaning. The formal conflict between parental rights (and duties) and children’s rights is resolved by the constitution unilaterally in favour of the rights of the parents. If the will of the parents is in accordance with the child’s welfare it enjoys the basic support of the legal framework governing parental rights. To the same extent, the will of the children carries no weight (cf. commentary to the Bonn Basic Law, see above, marginal note 141) (Presumably the Bonn Commentary to the Basic Law is intended.) Thus it behoves the plaintiffs, who have on their own account an open attitude to school as an institution, but favour homeschooling for their children, to do justice to their responsibilities and for the sake of their children’s welfare (see above) to ensure their attendance at school. This does not entail an extraordinary hardship which could be at variance with the fulfilment of the obligation to attend school. This will be addressed further later (see 2.).

It is also basically to be expected of the plaintiffs that they should react appropriately to the educative necessity resulting from the children’s lacking ability to judge the situation and should insist on their attending school. This does not necessarily involve compulsion. The parental right to educate, which with its attendant obligations should serve exclusively to promote the welfare of the child (see above), does not give the parents freedom of choice in the sense of unfettered self-determination (cf. Decisions of the FCC 59, 360), but rather aims to encourage family discussion of matters of parental concern on a level suited to the child’s stage of development with a view to achieving a consensus (cf. also para. 1626, section 2, German Civil Code). The idea that this should not be possible in the case of the plaintiffs’ seven and nine year old children appears unrealistic. Insofar as the children have not been (subconsciously as the case may be) influenced to boycott the school in order to oblige the parents, it may be demanded of the latter to issue an energetic appeal. Also, in order to persuade them to attend school it should suffice to point out to the children what the parents may expect in terms of the coercion which has already been threatened (fines, substitutional coercible detention (‘Erzatzzwangshaft’) and other measures up to and including the withdrawal of their custodial rights. Furthermore, pupils who do not fulfil the obligation to attend school can, according to paragraph 64 of the Bremen School Statute, be forced to attend school. ‘Obliging’ parents who exercise indulgence towards their children can, objectively, certainly cause harm to them if they, for instance, fail to supervise the child’s school attendance sufficiently or fail to send it to school over a long period of time on account of a condition which they themselves have diagnosed (cf. commentary to the Bonn Basic Law, see above, marginal note No. 192) (Presumably the Bonn Commentary to the Basic Law is intended.) Finally, children of the age of the plaintiffs’ sons generally require (parental) authority which shows them where their limits are in order to acquire self-discipline. At that age they expect their parents to give them clear guidance and to intercede when conflicts arise. At the same time this means that the educational rights and duties of the parents specifically serve to protect the immature child from the disadvantageous results of a discharge of duties which has practically been put at its disposal.

As they admitted during the hearing, in exercising their rights to bring up their children in other areas of life the plaintiffs unquestioningly, as it were, insist on asserting their own wills against those of the children where this appears to be in their interests and do not thereby get caught up in an irresolvable moral conflict. Why this should be impossible in, of all things, an area of such importance for the children’s development as school remains obscure and suggests that the plaintiffs’ behaviour is influenced not only by the children’s welfare but perhaps also by the thought of presenting and promoting the possibility for individualised educational educational paths (homeschooling), which they consider to be the better form of education anyway, in a manner inviting much public attention. Be that as it may. (Possibly correct interpretation of mysterious sentence: Das mag aber letztlich auf sich beruhen.)

Thus it may be stated with certainty that the plaintiffs’ children are basically subject to the obligation to attend school (paras. 52 ff, Bremen School Statute) and that in order to fulfil this obligation they must attend a state or state recognised school in the State of Bremen (para. 55, section 1, Bremen School Statute). The obligation to attend school covers amongst other things regular attendance in classes (para. 55, section 7, page 1, Bremen School Statute) which the plaintiffs must ensure as a matter of principle on the basis of their commission to bring up their children.

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