Förvaltningsrätten (Administrative Court), Gothenburg
Decision taken 2011-12-12; Case no 7728-11
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 stadsdelsnämnden on June 20, 2011
Subject matter: application of the Swedish school law (2010:800)
Decision by förvaltningsrätten: the appeal is dismissed
Stadsdelsnämnden has decided that Chana, Rochel, Shterna and Rivka shall not be allowed to fulfill the compulsory school attendance in a different way. The decision is motivated by the argument that the reasons given for not attending school the normal way do not constitute extraordinary circumstances in the sense of the school law.
Chana, Rochel, Shterna and Rivka, represented by their parents Alexander and Leah, appeal against the decision taken by stadsdelsnämnden. They demand that the children should be allowed to fulfill the compulsory school attendance in a different way. They demand that the court should examine if the decision taken by stadsdelsnämnden is precise enough in order to constitute an administrative decision and thereby constitute a nullity. They further demand an oral procedure to be held by förvaltningsrätten (the administrative court) and bring forward the following circumstances. The family came to Sweden in 1991. They started a private school 1997 which was closed 2007 due to a too low number of pupils. Since 1997 the children have been taught school subjects at home with the aid of a Jewish on-line education; this was accepted by stadsdelsnämnden until and including the spring semester 2011. Leah is a teacher. Alexander also has an education in pedagogy. Special circumstances exist which constitute extraordinary circumstances in the sense of the school law. The family practice orthodox Judaism. In order for security to be granted to the children they require separate education since they are distinctively different from other children and are easily identified. They further need to be in a Jewish school environment since they eat and drink special food and they wear special clothes, they would thus not feel comfortable among other children. The children also need friends with whom they have background and faith in common. The family applies and emphasizes Jewish law and rules. The education received by the children today is special; the children are taught traditional school subjects but also Jewish traditions. Through the on-line education the children gets acquainted with other children. They also take part in camps. All the children have been very successful. The school education given to the children today is thus different but as good as any other education. It would impose huge problems on the local municipal school to serve the children kosher food and to help them perform prayers up to 30 times per day, which is required by their religion. It would further be difficult for the children to have days off during traditional Jewish festivals. The school would further not be able to guarantee the security of the children, since anti-Semitism is a problem in Sweden and Gothenburg. The family stays in contact with the police authority and with the Jewish security organization, but they do not report all incidents. If the grown-ups don't feel secure, how could the security of the children be guaranteed. The children will be forced to move abroad if they cannot be educated at home. The Swedish school authority has inspected the teaching at home. The parents welcome further inspections of their teaching methods. The requirements on extraordinary circumstances cannot be so high that they are impossible to reach. The actions of Swedish authorities are not in line with the European Convention. - The appellant refers to the following evidence in writing: description of the actual education given to the children; statement from the school-politician Guy Lindermann; statement from the psychiatrist (specialized in children) Caroline Lindsay; documents describing traditional Jewish lifestyle; a general description illustrating the family environment, their social situation and the Jewish lifestyle; reports to the police made in October and November 1999, May 2003 and October 2005.
Stadsdelsnämnden opposes admission of the appeal. The case is a law issue. The school law has been changed in the sense that the possibility of allowing home education for religious or philosophical reasons has been restricted. From the legal preparatory work it is clear that home education for religious reasons no longer is admitted. The public school must be organized in a way that all children, regardless of religion or philosophy, can attend school. The committee is aware of the special needs related to the children's religious faith. The committee is also aware of the existence of anti-Semitism in Sweden. Stadsdelsnämnden has the obligation to fulfill the special requirements that arise due to the religious faith of the children. The committee will provide the necessary special food and will provide opportunity for performing prayers during school hours. It is also possible to permit time off in connection with Jewish festivals. In RÅ 1990 ref. 60 the importance of social interplay was highlighted. Satisfactory academic performance is therefore not a sufficient condition for accepting home education as a valid alternative to the normal school education. It is further difficult to check whether the pupils reach the academic demands. The main issue is that extraordinary circumstances must exist in order for home education to be allowed.
Opinion of the court
According to förvaltningslagen (the administrative law) 20 § first part, a decision taken by an authority shall state the reasons for the decision, if the case concerns exercise of public authority in relation to an individual. The second part of the same paragraph states that if no reasons are disclosed, then the authority shall on demand inform the individual of these reasons afterwards.
According to the school law, chapter 1, 10 §, all education and all other activities concerning children shall set out from the benefit of the children. According to the school law, chapter 7, 2 §, first part, it is compulsory for children who are resident in Sweden to attend school.
The school law, chapter 24, 23 §, states that a child can be allowed to fulfill the compulsory school attendance in a way different from what is said in the law. This should be allowed if
1. The different education is a full worthy alternative to the public school education. 2. The demands on insight in the special education can be met 3. Extraordinary circumstances exist
According to the school law, chapter 24, 24 §, permission in agreement with 23 § can be given for one year at a time. During this year the special education shall be evaluated. The permission shall be revoked if it can be assumed that the said circumstances no longer exist. A decision to revoke the permission comes into force immediately, unless otherwise stated.
In the legal preparatory work of the new school law (prop. 2009/10:165 pp 523- ) the following is said concerning the possible allowance to fulfill the compulsory school attendance in a different way. The government proposes that the necessary conditions should be restricted by demanding the existence of extraordinary circumstances in order for a permission to be given. A decision to revoke such permission should come into force immediately, unless otherwise decided. The reasons for the proposal are: The provisions concerning fulfilling the compulsory school attendance in a different way have not been changed since the law was created. These provisions are often coupled to the practice of so called "home education" and in the preparatory work of these provisions (prop. 1985/86:10 pp 50-51, pp125-126) it is said that home education in certain cases, mainly in the lower school forms, can be accepted if there is a special circumstance. As examples of such circumstances are mentioned that the child lives in a sparsely populated area or is in need of special healthcare. According to established practice in this field these provisions are often used when parents for different reasons, such as religion or philosophy, wish to teach their children at home. The currently applicable school statutes clearly states 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.
According to regeringsformen, (form of government) chapter 2, a law or other regulation cannot be imposed contrary to Sweden's obligations relative the European convention concerning protection of human rights and basic civil rights (Europakonventionen). According to Article 2, first sentence in the first additional protocol to the European convention an individual has the right to receive education. According to Article 2, second sentence the state shall within its activities concerned with education and teaching respect the right of parents to assure their children education and teaching which is in agreement with the parent's religious and philosophical faith. Article 2 in the first additional protocol guarantees a right to found and operate private schools. This right is however not unconditional; the government may put demands on the content and quality of the education and on the teachers qualifications. It is further in line with practice that the state is not obliged to respect a parental conviction if it is in conflict with the child's right to receive education. (Danelius, Mänskliga rättigheter I europeisk praxis, 3:e uppl. s. 486ff och där anförda rättsfall, samt Europeiska kommissionen för mänskliga rättigheters beslut nr 17678/91 B.N. och S.N. mot Sverige). In view of this the government is of the opinion that the proposed change in the school law cannot be considered to be in conflict with Sweden's international obligations. There is however also in the future a certain need for making it possible to during a limited period allow fulfillment of the compulsory school attendance in a different way. As is mentioned in the preparatory work it can for example apply to the case where a pupil has moved to Sweden from a neighbour country but chooses to finish the ongoing semester in the school of that country, or the case where a pupil takes part in the making of a film or similar activity. The provisions can also be applied when a pupil makes a long journey. From the wording of the provisions it is clear that they should be applied very restrictively. Every child's right to equally valuable education is one of the foundations in the Swedish educational system and any different teaching for a limited period of time must provide a full worthy alternative to the public school. The decision concerning whether extraordinary circumstances exist shall originate from the interest of the pupil.
Order of förvaltningsrätten (the administrative court)
Alexander and Leah claim that the decision taken by stadsdelsnämnden shall be considered a nullity since no reasons for the decision are given. Förvaltningsrätten finds that stadsdelsnämnden in the decision describes the content of the applicable provisions as well as parts of the preparatory work and thereafter states that the reasons put forward by the parents cannot be considered to constitute extraordinary circumstances in the sense of the law. Förvaltningsrätten further has held oral proceedings where the appellant has had the opportunity to get a later explication of the reasons for the decision. Accordingly, it is the opinion of förvaltningsrätten that said decision is not so defective that it should be nullified. This case is therefore to be tried.
The school law has recently been changed. The new law was accepted on August 1, 2010 and is applicable on education of children and some other activities from July 1, 2011. The conditions for giving permission to fulfill the compulsory school attendance in a different way have been restricted in the way that it is now required that extraordinary circumstances exist. In addition it is still required that the different teaching must be a full worthy alternative to public teaching and that the demands on insight in the special education can be met. In order to permit home education all three conditions disclosed in the school law chapter 24, 23 § must be fulfilled. The introduction of the requirement of extraordinary circumstances means that the provisions should be applied very restrictively.
At the oral proceedings it became clear that Alexander and Leah have given education to their children at home since 2007, and that stadsdelsnämnden has approved of this until and including the spring semester 2011, i.e. until the new school law came into force.
The question then is whether the reasons put forward by the parents can be considered as constituting extraordinary circumstances in the sense of the school law. Alexander and Leah claim that the children practice orthodox Judaism. From applicable school statutes it is clear that the public education shall be comprehensive and based on facts, and public schools must be organized in a way that all children can attend school, regardless of what religion or philosophy the children or their caretakers practice. In view of this it seems to be the opinion of the legislator that there is no longer need for any provisions making it possible to permit home education for religious or philosophical reasons (prop. 2009/10:165 page 523). The fact that the children practice orthodox Judaism can therefore not be considered to constitute extraordinary circumstance in the sense of the law. Concerning the claimed security reasons the administrative court finds that no tangible individual threats against the children seem to exist. Every school has further an obligation to actively militate against bullying in accordance with a written plan for how to prevent bullying. Also in view of this, the claimed security reasons cannot be considered to constitute extraordinary circumstances that justify permitting home education.
Alexander and Leah also claim that the introduction of said restriction in the school law, chapter 24, 23 § violates the European convention. According to regeringsformen (form of government) chapter 2, 23 §, a law or other regulation cannot be imposed contrary to Sweden's obligations relative the European convention. In the earlier mentioned preparatory work (prop. 2009/10:165 pp. 523-524) this question has been analyzed and the conclusion is that the law change cannot be considered to violate Sweden's international obligations. Förvaltningsrätten (the administrative court) has no reason to be of another opinion.
Therefore the appeal is dismissed.
Rådman (court judge) Eva Bertelsen
Nämndemännen (lay assessors) Birgit Ekholm, Stig Andersson and Barbro Sandelin have also taken part in the decision.
Föredragande (rapporteur) of the case has been law clerk Emilie Lundin.