Saturday, January 06, 2007

Part 7 - The Rest of the Decision

2. The plaintiffs have no claim to have their children released from the general obligation to attend school.

According to para. 57, section 2 of the Bremen School Statute the possibility of being released from the obligation to attend a state or state recognised school exists only in cases of ‘special exception’. Decisions in this respect are to be made by the schools supervisory authority (‘Schulaufsicht’) at its due discretion (‘possible exemption’). The limits of this discretion are set by the content of the judicially unrestrictedly verifiable undetermined legal term ‘special case of exception’. If such a case is given, then there is generally no scope for discretion; the degree of discretionary freedom reduces to zero. In maintaining that the school authorities have not exercised the discretion granted to them plaintiffs have failed to appreciate this. This is borne out by the authority’s statement that it has never released a primary age pupil from the obligation to attend school. The present case requires, however, no exercise of discretion, because it does not represent an exception and certainly not a ‘special’ exception. The defendant has rightly pointed out that there is a wide range of school options amongst the state schools in Bremen, even for children with school phobia and especially in the primary sector. At any rate the simple participation in ‘homeschooling’ or in a correspondence course with an unrecognised private school does not represent a particular exception in the sense of an important hardship justifying a (complete) release from the general obligation to attend school. Notwithstanding the fact that, following an Anglo-American trend which can be observed in some neighbouring countries as well, alternative educational possibilities are finding increasing favour amongst parents, the fact remains that these alternative schools in combination with home teaching do not lead to school-leaving qualifications which are recognised in Germany, so that entrance to most vocational training schemes or institutes of higher education will be blocked or at least made excessively more difficult for the (school) graduates. In addition there is no guarantee that the educational aims promulgated by the state will be attained, nor is a later transfer to a regular school easily possible, as the example of the sons of the plaintiffs with the time-limited cooperation agreement displays impressively, the aim of which is to synchronise the home learning with school learning aims, expressly in order to enable the children a smooth transfer to a regular state school. This is in itself sufficient reason for the desire of the plaintiffs to teach their children at home to be given a lower priority than the welfare of the children (cf. section 1.; also Niehus/Rux as above, marginal note No. 320); it does not represent an especially exceptional case.

Detriments to their children’s health which the plaintiffs allege to have established as being a consequence of their children’s periodic attendance at school also do not, in their case, provide grounds for homeschooling. Such psycho-somatic incursions on pupils’ health can also be caused in other pupils, often and mainly by fears of school or examinations, without this constituting grounds for a claim to be completely freed from the obligation to attend school. The school [as institution] must take account of difficulties such as these in some other way within the framework of its widely diversified primary school programme. Only health problems of considerable gravity which cannot be solved in the long-term and of which school attendance is the cause can constitute special circumstances which justify the exceptional exemption from the obligation to attend school. This is certainly not the case in the present instance. It may remain open to question as to whether the plaintiffs’ statement that their children experience feelings of unease and display symptoms of psycho-somatic disturbance when attending primary school is credible or whether the possibility is not to be discounted that the physical reactions to school attendance displayed in the past recur as the result of a self-fulfilling prophecy, because there is some reason to believe that the children’s potential disturbance syndromes are implemented as a means to the end of achieving the parental desire for homeschooling (thus the expertise of the Bremen Health Office – Social- Paediatric Department – dated 09.06.2006 resulting from the school authority’s request for a medical examination of the children).

The motion to hear evidence placed during the hearing which involved calling for an expert opinion as to whether from a medical (including psychological or psychiatrical) point of view reasons exist as to why the children should not attend school, whether there are alternatives and to what extent obliging the children to attend school would prejudice their welfare in view of their refusal to attend a state school does not contain a statement (of facts) which is open to verification. This results from the use of the word ‘whether’, which the plaintiffs’ representative continued to use despite the court having pointed this out. The motion, being based merely on suppositions and in no way on concrete indications (such as medical reports or certificates), places no obligation on the court to instigate further processes for obtaining or hearing evidence (BVerwG, B. v. 31.01.2002, 7 B 92/01; JURIS; OVG Bremen, B. v. 29.06.2005, 2 A 257/04.A).

Apart from this, a medical expertise at the present point in time would not be able to establish any indications of illness relating to school attendance as the children have not attended school (disregarding very few exceptions) for more than one year. An examination would presuppose that the children attend school, which the plaintiffs refuse for reasons which they themselves have to answer for.

The decision to award costs is based on para. 154, section 1 of the Administrative Costing Regulations.

The regulation of the provisional enforceability is based on para. 167 of the Administrative Costing Regulations in connection with para. 708 No. 11 of the Civil Processes Regulations.

Instructions on the rights of appeal

[There follow two statements concerning rights of appeal. One concerns the possibility of appeal against this judgement to the next highest court (the right to appeal is granted as the case has a basic significance which extends beyond the boundaries of this individual situation). The other statement concerns the possibility of appeal against the determination of the ‘Streitwert’, i.e. the nominal amount of money involved in the case.]

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