Briefing note: parliamentary debate of 25th February 2019 the right of parental opt-out

On 25th February, parliament will debate giving parents an opt-out for Relationships and Sex Education in schools. Christian Concern is planning a gathering outside parliament at 4pm, so make sure to sign up to our email list to receive more details (christianconcern.com/signup). In our briefing note, we explain why parents' religious freedom needs to be protected by having an opt-out.
 

Issue:

1. The legality of limiting parental opt-outs from Sex Education at the discretion of head teachers.
2. The legality of making compulsory Relationships Education and RSE with only a limited right of opt-out.

Introduction

The draft regulations for Relationships Education (primary) and Relationships and Sex Education (secondary) make compulsory Relationships Education in both primary and secondary school and provide an opt-out for Sex Education in secondary schools which may be overridden by a head teacher in undefined ‘exceptional’ circumstances.

The legal and existential implications involved are serious and far reaching. When parliament becomes the principal arbiter of which morals, values, and sexually oriented content our children will be exposed to, it becomes the sole authority of social direction, eliminating the vital role pluralism plays in a democratic society. The question of why a parent would not want their child exposed to this material is not about child neglect or abuse. Rather it is a matter of conscience, belief, preference, and ideology. If parliament asserts a right to determine which beliefs a parent can or cannot instil in his or her own children, it infringes upon a fundamental liberty upon which the social order is established.

By usurping a parents’ role as the custodians and guardians for their children’s development, parliament threatens religious liberty and the freedoms of conscience, belief, and even speech. In effect, it creates for itself a monopoly on socially acceptable norms and excludes from the public sphere any dialogue on issues they label as ‘fundamentalist’ or contrary to British values. By over-regulating the family and limiting the role of parents in their children’s upbringing, the draft regulations undermine the very foundation of our society and further impair a family culture which has been in rapid decline over the last half century.
 

Legal Status of Parental Rights and Opt-Outs

Numerous international documents binding on the United Kingdom confirm that parents are and ought to be the primary and principal educators of their children. By that fact alone, parents have the greatest rights and the greatest responsibility in the education of their children. Schools – both primary and secondary – should assist them in this task; but they must seek the cooperation of parents and should not in any case artificially displace the rights of children and the rights of parents by imposing on the children an education contrary to the one they receive from their parents.

The international treaty and case-law with regards to parental rights in education is both voluminous and clear. The right of parents to guide the education of their children is fundamental and protected. Second, with regard to moral education, states cannot undermine the manner in which parents seek to bring up their children.

Article 26(3) of the Universal Declaration of Human Rights states that “[p]arents have a prior right to choose the kind of education that shall be given to their children”.[1] The United Nations Convention on the Rights of the Child, in Article 5, clearly states that among the most important rights of the child, besides the right to life, are precisely the right to parental love and the right to education.[2] The Convention also explicitly notes, in Article 18, that the rights of parents are not juxtaposed to the rights of children. Moreover, the parents, being the ones who love their children most, are those most called upon to decide on the education of their children.[3]

Equally pertinent is Article 18(4) of the International Covenant on Civil and Political Rights (ICCPR) which states that “[t]he States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.”[4]

Furthermore, the Convention against Discrimination in Education holds in Article 5(1)(b) that it is essential that States “respect the liberty of parents and, where applicable, of legal guardians, firstly to choose for their children institutions other than those maintained by the public authorities but conforming to such minimum educational standards as may be laid down or approved by the competent authorities and, secondly, to ensure in a manner consistent with the procedures followed in the State for the application of its legislation, the religious and moral education of the children in conformity with their own convictions....”[5]

Finally, a clause in the European Convention of Human Rights, Protocol 1, Article 2, mirrors this same idea and has been transposed into our domestic law vis-à-vis the Human Rights Act 1998: “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.”[6]
 

Case-Law on Parental Rights and Opt-Outs

The Court defines ‘convictions’ not as being synonymous with the words ‘opinions’ and ‘ideas’ but denotes views that attain a certain level of cogency, seriousness, cohesion and importance.[7] The term ‘philosophical convictions’ is interpreted by the European Convention of Human Rights as a whole and extends to include pedagogical beliefs; those being the parents’ beliefs as to the best way of educating their children.[8] Undoubtedly, therefore, parents must be at the centre of the decision-making process when it comes to curricula which deeply effect the value system of their child. The school systems should therefore work on harmonizing institutional education with parental upbringing rather than creating a system whereby they can exclude parents from critical decisions about the education their child is receiving.

Forty-two years ago, the European Court of Human Rights in the Kjeldsen decision, affirmed to parents the right under Protocol 1, Article 2 of the Convention to opt their children out of classes which were objectionably indoctrinating.[9] While these opt-outs were denied to the applicants in the Kjeldsen case, the guarantee nonetheless became a seminal part of the Strasbourg Court’s case law.

Later, in the Folgerø case of 2007, the Grand Chamber upheld the right of opt-outs for parents who wished not to have their children attend religious education classes.[10] The progeny of Folgerø has continued to promote the freedom of parents to remove their children from classes they feel undermine their parental rights.[11] From Kjeldsen to Folgerø, the Court has continued to hold that the right to opt-outs holds equally to all subjects and not just religious education. While opt-outs should always be made available for themes as controversial as sexual education, the State also has a duty to provide options for parents in how they want their children to be educated about moral issues. After all, the safeguarding of the possibility of pluralism in education is essential for the preservation of a democratic society.

The Court has made this clear:

Article 2 of Protocol No. 1 does not permit a distinction to be drawn between religious instruction and other subjects. It enjoins the State to respect parents' convictions, be they religious or philosophical, throughout the entire State education programme. That duty is broad in its extent as it applies not only to the content of education and the manner of its provision but also to the performance of all the “functions” assumed by the State. The verb “respect” means more than “acknowledge” or “take into account”. In addition to a primarily negative undertaking, it implies some positive obligation on the part of the State.[12]

The distinction between teaching and education is important, particularly with regard to RSE policy. The Court differentiates between education and teaching thus: “The education of children is the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young, whereas teaching or instruction refers in particular to the transmission of knowledge and to intellectual development.”[13] In neither case is indoctrination allowed. But importantly, simply because an issue falls outside of the spectrum of the mandated teaching curriculum, if it remains part of the larger educational goal of upbringing the children to hold a certain worldview, then parental input and consent remains a positive obligation to which schools are held.

The European Court of Human Rights has repeatedly held that “it is in the discharge of a natural duty towards their children – parents being primarily responsible for the “education and teaching” of their children – that parents may require the State to respect their religious and philosophical convictions. Their right thus corresponds to a responsibility closely linked to the enjoyment and the exercise of the right to education.”[14] The Court has also held that “a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.”[15] Parliament, together with the Department of Education, being the organiser of the educational curriculum, must therefore not abuse its dominant position to force onto parents and their children views and positions which parents find harmful to the development of their children.

Again, as the Court has laid out: “the second sentence of Article 2 (P1-2) implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.”[16]
 

Protecting the Spiritual and Moral Integrity of our Children

Beyond the issue of opt-outs, Christian Concern is gravely concerned about several related aspects of the draft regulation, with the common denominator being a parent’s right to protect their child from a form of education which they feel may cause them moral harm or hamper their spiritual and moral development. The Department of Education has averred that individual schools will be able to determine exactly which materials they will use to teach Relationships Education and RSE so long as they meet the minimum standard set by statutory regulation. They have also left it to individual head teachers to determine whether and under what circumstances a request for opt-out may be granted from Sex Education.

Increasingly, as borne out in the work of Christian Concern, we see more and more schools actively and aggressively promoting alternative sexual lifestyles and exposing children to materials which many parents find both age inappropriate and offensive. The European Court has acknowledged this holding that “abuses can occur as to the manner in which the provisions in force are applied by a given school or teacher and the competent authorities have a duty to take the utmost care to see to it that parents' religious and philosophical convictions are not disregarded at this level by carelessness, lack of judgment or misplaced proselytism.”[17]

However good the intentions of a school administration to achieve their goal of inclusivity or sexual awareness, these same schools have done great violence to the Convention rights of parents who hold differing convictions. Importantly, a school may not, on the grounds that it does provide opt-outs, fail in its obligation to teach children in a manner which is objective and critical.[18]

Interrelatedly, creating a scenario where head teachers may veto an opt-out request under ‘exceptional’ circumstances, where parliament has failed to define the meaning of ‘exceptional’, can easily lead to an abuse of the head teacher’s dominant position. It leaves parents at the ideological whim of a given head teacher. The Human Rights Act 1998 requires that any limitation of a fundamental freedom, including parental rights, be prescribed by law. One element of this is ensuring that such restrictions are clearly defined, foreseeable, accessible and precise.[19] The Court has been very clear that an undefined, and therefore unfettered, discretion to limit fundamental rights is incompatible with the Convention. In the Court’s words, a “law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise.”[20]
 

Conclusion

Given the clarity of the law on parental rights, the lack of precision and foreseeability in the draft regulation, and the increasingly ideological nature of discourse relating to relationships and sexual education, parliament must give due weight to parental rights and provide an automatic right of opt-out from any or all portions of Relationships Education or RSE.