Kammarrätten (administrative court of appeal), Gothenburg
Announced in Gothenburg
Case no 76-12
Identification code 226258
1. Chana, born 1998
Represented by Alexander (father) and Leah (mother)
Solicitor Richard Backenroth
Stadsdelsnämnden Majorna-Linné (the local municipal committee)
Solicitor: lawyer Linda Widenström (employed by the city of Gothenburg)
Appeal against the decision taken by förvaltningsrätten (the administrative court) of Gothenburg on December 12, 2011 in the case 7728-1
Saken (Subject matter)
Permission to fulfill the compulsory school attendance in home environment in accordance with the school law (2010:800)
Decision taken by kammarrätten (the administrative court of appeal)
The decision under appeal is set aside and the appeal is approved of. Kammarrätten decides that Chana, Rochel, Shterna and Rivka shall be allowed to fulfill the compulsory school attendance by being educated at home during the school year 2011/2012.
Chana, Rochel, Shterna and Rivka demand that kammarrätten gives permission for them to be educated at home.
Stadsdelsnämnden is of the opinion that the appeal should be dismissed.
The parties put forward the following facts.
Chana, Rochel, Shterna and Rivka
The education they receive at home and in the context of Shluchim On-line School is a full worthy alternative to public education, and the demands on insight in the teaching methods have been met. Being orthodox Jews, they belong to a small group having a life-style characterized by very strict rules concerning inter alia prayers, behaviour, clothing and food. Only two more families in Sweden practice Orthodox Judaism. The other two families do not live in Gothenburg. They live under so special circumstances that the only teaching alternative is home education. They need to be given the means for performing the necessary prayers, which are to be led by an orthodox rabbi. This is not possible in a public school, since the only orthodox rabbi in Gothenburg is their father. They can under no circumstances take part in physical education in the form it is practiced in public schools. Their clothing is extremely different from the cloths normally worn by Swedish pupils and their hair must be handled in a special way. These circumstances make it difficult for them to function in a public school and distinguish them from others in a very apparent way. Hereby they are stigmatized and the risk for bullying is evident. They can only eat kosher food cooked in a kosher kitchen. The only kosher kitchen in Gothenburg is in their home. Stadsdelsnämnen has insufficient understanding of the conditions coupled to Orthodox Judaism and it cannot be imposed upon the parents to inform stadsdelsnämnden of these conditions. Stadsdelsnämnden has not taken measures concerning and appropriate place for prayer, kosher food, and security. The authority has not given any tangible proposal as to how these problems can be solved. The reason is that it is not practically possible to meet the demands. The children cannot attend public school without compromising their religious faith, and this would mean a violation of the freedom of religion. This fact constitutes per se an extraordinary circumstance.
In addition, the security aspect needs to be considered. The family is constantly being attacked. For this reason the children rarely leave home without the company of a grown up person. Incidents have occurred frequently, but due to the high number of attacks and no response from the police, the family has reported only a few of them. Following the global political development many people and political associations, in Sweden as well as abroad, have let Jews personify their disapproval of the acting and politics of the Israelian state. The current atmosphere in society means that the parent's apprehension must be taken very seriously. Due to their appearance and clothing it is very evident that the children are orthodox Jews, and therefore they risk being attacked in a public school.
The purpose of introducing a demand for extraordinary circumstances as a necessity for permitting home education is to emphasize the right of all children to receive education and to prevent insufficient home education. This purpose is however reached in this case by the education the children get at home and on-line. If the family cannot continue to live in accordance with their faith they will have to leave Sweden.
The family has, as representatives for Central Organization for Jewish Education, an important role to play in Sweden, and they want to continue living in Sweden.
"As support for the claims the appellant refers to: Förvaltningsrätten i Malmös dom i mål nr 14341-10 (the decision taken by the administrative court of Malmö in the case 14341-10); information about Shluchim Online School; and a plurality of written communications from persons belonging to the Jewish community.
It is the opinion of stadsdelsnämnden that the requirements concerning extraordinary circumstances for permitting home education are not fulfilled. It is the responsibility of stadsdelsnämnden to provide the necessary conditions for assuring security and the possibility for the children to perform prayers and to eat properly. Stadsdelsnämnden will assume this responsibility. The public school system has the assignment to, in accordance with the preparatory work of the school law, organize public education in a way that all pupils can take part. Stadsdelsnämnden is aware of the fact that only a few people in Sweden practice Orthodox Judaism and that it is necessary to get information from the family on the special needs in order to make it possible for the children to attend school. Stadsdelsnämnden has taken the initiative to a discussion with the family concerning these needs, but without success since the family has not considered that the necessary conditions for such a discussion exist.
Kammarrätten has held oral proceedings.
Reasons for the decision taken by kammarrätten
It is compulsory for the children to take part in school education in accordance with the school law, chapter 7, 2 §. The base is that compulsory school attendance shall be fulfilled in a public or private school. Conditions to be met for departing from this base is according to the school law, chapter 24, 23 §, that the compulsory education can be arranged in a different way and that extraordinary circumstances exist. A permission in accordance with 23 § can be given for up to one year at a time.
The children's request to receive education in their home was rejected by stadsdelsnämnden for the school year 2011/2012. The question in this case is whether this reject was justified or if conditions exist which give cause for according the request.
In the preparatory work (prop. 2009/10:165 pp. 523-524) relating to the new provisions demanding extraordinary circumstances which came into force on June 1, 2011, the following is stated. The currently applicable school statutes clearly state that school education shall be comprehensive and based on facts and thereby organized in a way to allow all pupils to attend, regardless of what religious or philosophical faith the pupil or his/her caretakers have. Taking this background into consideration, it is the opinion of the government that there today is no need for a provision in the school law which permits home education for religious or philosophical reasons.
Kammarrätten is of the following opinion
The fundamental idea in the school law is that the right of all children to receive school education shall be guaranteed. This right is also the base for the demand of extraordinary circumstances to permit education in a different way than public school.
It is evident that the education the children have received in their home and on-line has been a full worthy alternative to public school and that the demand for insight and inspection has been met. The basic right of receiving education has thus been fulfilled.
The children are part of a small group of people, whose lifestyle is characterized by very strict religious rules in many aspects. These rules put high demands on structuring everyday life in a certain fashion, inter alia relative to praying and eating. It is likely that stadsdelsnämnden will have difficulties in organizing the school attendance for the children in respect of their special needs. Stadsdelsnämnden has declared that the needs can be met, but no concrete plan has been presented of how this would be practically arranged.
The strict rules coupled to Orthodox Judaism further leads to a very different appearance of these children, i. a. with special clothing. It is inevitable that these children run the risk of being exposed to insulting behaviour from others in a school environment where grown-ups are not always present. The fairness of letting them be exposed to fear and risks in this context can be questioned, especially as no concrete plan of actions has been presented.
In addition to what is said above consideration should according to kammarrätten be given to the fact that at the time when the new provisions of extraordinary circumstances were introduced the children had been permitted by stadsdelsnämnden to receive home education for many years and during a substantial part of the childhood. In view of this it is the opinion of kammarrätten that all circumstances taken together can be considered to constitute extraordinary circumstances, justifying a permission to receive school education at home for the school year 2011/2012.
The appeal is therefore approved of.