1. Evolution of the right

Drafting disagreements on the right to education proved so complex and heated that it was decided not to include the right in the main body of the ECHR when the treaty was opened for signature in 1950.Footnote ¹⁶ Instead the right was placed in a protocol to the Convention, signed 15 months later in March 1952. Initial disagreement had focused on whether provisions relating to education should feature at all in a treaty designed to guarantee political democracy in Europe.Footnote ¹⁷ The right was seen as one of several ‘family’ rights and there were objections to the inclusion of any ‘family’ right in the Convention, such as the proposed rights to marry and to freedom from arbitrary interference in family life.

Besides this fundamental objection, some delegates were opposed to the right’s inclusion on practical grounds, arguing that the right would be hard to define and therefore not justiciable.Footnote ¹⁸ It was also argued that a right concerning freedom of religion and belief already existed in the draft treaty and it could be engaged if matters to do with freedom of thought, conscience and religion arose in an educational setting.Footnote ¹⁹ Ultimately, however, these arguments did not prevail. While the ECHR was not bound to model itself on the Universal Declaration of Human Rights (UDHR), many found persuasive the argument put forward for the inclusion in that instrument of a parental right to choose the kind of education to be given to their children. As Mr De La Vallee-Poussin (Belgium) noted:

The majority of the Committee came to agree and argued for the inclusion of the article (and the other family rights) on this basis.

Delegates from countries with totalitarian pasts were particularly vocal in advocating for a right for parental choice in education, noting its potential to prevent democracies from turning into dictatorships. For Mr Serrarens (Netherlands) it was necessary to support ‘family rights, which were so cruelly violated by the Nazis. They must be maintained because without them our Convention will not attain its aims.’Footnote ²² Mr Cingolani (Italy) likewise reminded ‘the Assembly of the gravest wrongs committed by Fascism in Italy … tearing of children from their families to make them supporters of the dictatorship’.Footnote ²³ In a emotive contribution, Mrs Weber, a delegate from the German Federal Republic, was adamant that the right was absolutely necessary to protect against totalitarianism:

The desire to include an article that would provide protection against any future attempt by a totalitarian regime to monopolise the education of children reflected broader and pre-existing concerns around the relationship between education, state authority and religious freedom. For some delegates the importance of securing a parental right was clearly influenced by philosophical and theological thinking supportive of the idea of parental authority in schooling.Footnote ²⁵ Such influences stem both from the Catholic Church’s principle of subsidiarity rooted in natural law and the concepts of sphere sovereignty and structural pluralism developed within Reformational philosophy.Footnote ²⁶ Both these theoretical perspectives strongly affirm the notion that education should not be subordinated to state control and, as such, support and align with an aim of securing parental educational rights in the ECHR.

Deliberations on the draft article were protracted and two years after discussions on the provision had first started Mr Pierre-Henri Teitgen, Rapporteur of the Committee in discussions before the Consultative Assembly, attempted to sum up the aim of the article in an effort to remind the Committee and the Council of Ministers of the fundamental and specific purpose of including this education article in a civil and political rights treaty:

The aim of the article was thus clearly to avoid a similar monopolisation in the future through guaranteeing parental choice in education; in other words, ensuring that parents would not be compelled to send their children to a state-designated institution but would have the freedom to send them, for example, to a private educational institution.

The right to education that was eventually agreed upon is clearly much narrower in scope than a typical right to education provision such as that found in the International Covenant on Economic, Social and Cultural Rights. Here, the Covenant’s education provisions, in addition to protecting parental choice and convictions, are also concerned with wider matters such as setting out the aims of education and the varying entitlement with respect to different levels of education. Likewise, P1-2 is far from a general right to freedom of religion or belief, which typically guarantees a right to change one’s religion or belief as well as a qualified right to manifest religion or belief in public or in private.Footnote ²⁸ P1-2 is an article conceived and formulated to meet a specific aim and to deliver a specific guarantee: to prevent state monopolisation of education and teaching, through guaranteeing freedom of choice in matters of education and teaching. The next section examines how far the ECtHR has retained this focus when adjudicating matters under P1-2 and the extent to which its approach is effective in treating compulsory teaching cases.

2. Foundational standards

In the very first P1-2 case to come before it – the 1968 Belgian Linguistics Case – the ECtHR directed itself to consider the drafting discussions and the aim of the provision when considering the scope of the negative right found in the first sentence of P1-2: ‘No person shall be denied the right to education’.Footnote ²⁹ It concluded that the right in the first sentence places an obligation on the state to guarantee a right of access to educational institutions existing at a given time within its territory.Footnote ³⁰ This interpretation and the subsequent norm of choice in schooling reflects the drafters’ central aim of preventing state monopolisation in the education of children through ensuring parents would not be compelled to send their children to an educational institution chosen by the state. The Court recognised that the right of educational choice may require regulation by the state and the nature of this regulation may vary ‘according to the needs and resources of the Community and of individuals’.Footnote ³¹ However, it explicitly noted that any such regulation must never injure the substance of the right to education nor conflict with other Convention rights.

Given that mandatory attendance at a particular type of school has not arisen as an issue in Council of Europe states, cases concerning compulsion in education have instead come to focus on mandatory curriculum matters within schools. Naturally, this has led to significant consideration of the parental right of respect for religious or philosophical convictions found in the second sentence of P1-2. The formative judgment came in the 1976 case of Kjeldsen, Busk Madsen and Pedersen v Denmark. Footnote ³² In response to an increased rate of unwanted pregnancy and abortion, Denmark passed legislation that mandated state schools to integrate sex education into the compulsory components of the curriculum. Several Christian parents objected to the nature of this integrated teaching and requested that their children be exempted.Footnote ³³ Their request was denied, and they complained that their right to have their children’s education be ‘in conformity with their own religious and philosophical convictions’ under P1-2 had been violated.

The ECtHR found no violation, reasoning that the information and knowledge being conveyed in the teaching was OCP in manner and hence an exemption was not required to protect the parental right found in the second sentence of P1-2.Footnote ³⁴ To this standard of OCP, the Court added an overarching norm of a prohibition on indoctrination:

In reaching its decision that the compulsory sex education was OCP and thus not aimed at indoctrination, the Court examined the purpose and nature of the relevant legislation. It noted that the Danish state’s aim was to provide children with information:

The Court concluded that responding to these considerations through the introduction of compulsory sex teaching did ‘not entail overstepping the bounds of what a democratic State may regard as the public interest’.Footnote ³⁷ In particular, it noted that the state was ‘in no way’ attempting to indoctrinate pupils through ‘advocating a specific kind of behaviour’.Footnote ³⁸

The ECtHR did not elaborate further on its understanding of OCP in reaching the decision that the teaching did not violate P1-2. However, its approach to matters of compulsory teaching and respecting parental convictions is clearly set out: if information or knowledge is conveyed in an OCP manner, then schools can make this material compulsory and no opt-out is permitted.Footnote ³⁹ Conversely, if information or knowledge is not conveyed in an OCP manner, then schools cannot make this material compulsory unless parents are able to withdraw their children from such teaching. The resulting state obligation is thus to ensure opt-out provision in situations where the teaching is considered not to be OCP in order to protect parental convictions.Footnote ⁴⁰ The Court noted that this is precisely what happened in Danish schools where opt-outs were offered with respect to doctrinal religious education, given that this teaching ‘of necessity disseminates tenets and not mere knowledge’.Footnote ⁴¹

In discussing the relationship between the two rights found in P1-2, the Court describes the parental right as ‘an adjunct’ to the ‘fundamental right’ found in sentence one, that is, the right of access to educational institutions existing at a given time.Footnote ⁴² The approach adheres to the drafters’ rationale for including the article in the Convention: to protect against the state monopolisation in the teaching and education of children. The basic right (sentence one) allows for choice in selecting a school, while the parental right (sentence two) further ensures that children are protected from teaching that does not respect parental convictions, no matter which school a child is attending, and even if the school is one that has been chosen by their parents. This latter right thus provides an additional protection against unwanted influences, especially important in situations where only state schools exist, where the state mandates a particular curriculum across all schools in its jurisdiction or where the majority of schools in a state are religious schools, leaving no realistic practical alternative available to parents.

The foundational norms set down in the Kjeldsen case have been reiterated many times by the Court when considering P1-2 cases.Footnote ⁴³ This body of jurisprudence clearly establishes that the article is limited in its focus. There is no right for parents to have their children educated according to their religious and philosophical convictions nor any obligation on the state to establish or subsidise any specific type or level of education. The Court’s approach certainly does not indicate that the article has any role in prescribing the nature of a curriculum. Nothing in the drafting discussions would support such a position.

Indeed, the Court has repeatedly noted that the setting and planning of the curriculum falls in principle within the competence of states.Footnote ⁴⁴ The only Convention-related restraint on choice of curriculum content derives from Article 17 of the ECHR.Footnote ⁴⁵ This article, frequently referred to during the drafting discussions, acts as a protection against concerns that states would use schools to transmit non-democratic ideologies. There is, therefore, no obligation placed on the state to teach a particular type of curriculum – for example, a curriculum that is OCP – nor is there any obstacle to the state mandating, for example, confessional religious teaching in its schools. Indeed, at the time of the drafting and ratification of P1-2, confessional religious education in state schools was the reality in the vast majority of states parties and remains so today in several countries. Fundamentally, the aim of the article is to guarantee choice in education; it is not concerned with telling states what to teach. The parental right is protected not by prescribing what should be taught but by ensuring there an opt-out is provided if what is being taught is not OCP. The Court, therefore, is only interested in the content of a curriculum in so far as its needs to establish whether that content is OCP and thus whether an opt-out should be provided by the state.

The case of Folgerø v Norway clearly illustrates this approach.Footnote ⁴⁶ Here, the Court was asked to examine the adequacy of a scheme of partial exemptions from a compulsory subject in Christianity, religion and philosophy taught in Norwegian schools. The examination required the Court to look in depth at the legislative framework and its intentions to establish whether the information and knowledge to be conveyed would meet the OCP standard.

Given the complexity of the nature of the partial opt-out scheme, the Court was obliged to examine the curriculum in detail to reach a conclusion on this point.Footnote ⁴⁷ In the course of its examination, the Court noted that there were both quantitative and qualitative differences in the teaching of Christianity compared to other religions and philosophies.Footnote ⁴⁸ It questioned how this unevenness would assist schools in attaining the legislation’s stated educational aim of promoting ‘understanding, respect and the ability to maintain a dialogue between people with different perceptions of beliefs and convictions’.Footnote ⁴⁹ However, the Court’s principal concern was whether this imbalance

In other words, the Court was of the view that the imbalance it had identified in terms of content and mode of delivery was capable of leading to teaching that may not be considered OCP.Footnote ⁵¹ However, if, thanks to the partial exemption scheme, pupils could be opted out of any such teaching then this imbalance would be unproblematic. The Court proceeded to examine the effectiveness of this scheme. It concluded that the scheme was ineffective in protecting the parental right and thus found a violation of P1-2:

While the Folgerø judgment followed the established P1-2 norms, it would certainly have been helpful if the Court had more fully and explicitly explained its approach and rationale for examining the underpinning legislation in such depth, namely, to ascertain whether an opt-out provision was required and whether the partial opt-out scheme was effective. Indeed, all P1-2 judgments dealing with the right to respect for parental convictions are vulnerable to the criticism that the Court fails to give an explicit explanation of the relevant norms, specifically that states can teach material that is not OCP but if they do so then opt-out provisions must exist.Footnote ⁵³

3. A preoccupation with the OCP norm: resulting tensions

The Court’s norm-setting in P1-2 cases supports the article’s foundational aim of preventing state monopolisation in teaching through providing a right of school choice and offering a mechanism to protect convictions within schools. However, its heavy reliance on establishing whether what is taught is OCP – and therefore not incompatible with parental convictions – has created two areas of tension and dissatisfaction that have come to be amplified in recent cases concerning compulsory curricula.

First, for some, there is a frustration that the focus on the question of the OCP nature of the curriculum – to determine whether parental rights should be protected through an opt-out – ignores the rights and interests of children. To remedy this perceived deficiency, there can be a tendency, conscious or not, to interpret the norm of OCP in a wider manner, as an obligation on states to ensure a curriculum that is OCP. The attractiveness of an obligatory OCP curriculum is reinforced by suggestions that opt-outs are, in practice, an ineffective means by which to protect parental convictions and, further, can lead to the exclusion and stigmatisation of children in the school environment.Footnote ⁵⁴

In the UK the desire for a wider interpretation and application of the OCP norm has received support from several domestic court judgments which have erroneously interpreted the P1-2 obligation in this way.Footnote ⁵⁵ In R (Fox) v Secretary of State for Education, the judge, Warby J, drew on ECtHR jurisprudence to examine whether, inter alia, the omission of non-religious worldviews from a religious studies curriculum would breach P1-2 standards.Footnote ⁵⁶ He concluded that it would: ‘the complete exclusion of any study of non-religious beliefs for the whole of Key Stage 4 …. would not in my judgment be compatible with [P1-2].’Footnote ⁵⁷

In reaching this decision, the judge correctly noted that ‘in carrying out its educational functions the state owes parents a positive duty to respect their religious and philosophical convictions’.Footnote ⁵⁸ However, he erred in concluding that this respect should be manifested through according ‘equal respect to different religious convictions and to non-religious beliefs’ on a ‘qualitative basis’ within the curriculum.Footnote ⁵⁹ This conclusion misrepresents the Folgerø judgment. Here the Strasbourg Court was interested in examining the Norwegian curriculum from a quantitative and qualitative perspective in order to decide whether the resulting teaching would necessitate opt-out provision, and critically, whether the Norwegian scheme of partial exemption was capable of operating in a manner that ensured such provision.Footnote ⁶⁰ The Court was thus adhering to its long-standing position of preventing state monopolisation in teaching through ensuring parental choice, in this case through providing an option to withdraw a child from any teaching considered not to be OCP.

The Fox judgment has had an inevitable and unhelpful impact on the understanding and application of P1-2 and the role of international human rights law in protecting freedom of religion or belief in schools.Footnote ⁶¹ The approach was closely followed in a 2022 judgment of the Northern Ireland High Court in a case concerning the teaching of religious education and collective worship in primary schools.Footnote ⁶² Here the judge noted that the judgment of Warby J in Fox ‘provides a useful analysis of this issue’Footnote ⁶³ and adopted the argument that a failure to deliver the teaching and worship in an OCP manner – which could not be saved by the exemption provision whose existence was ‘a manifestation of the lack of pluralism in question’ – caused a breach of P1-2.Footnote ⁶⁴

The notion that P1-2 demands states to teach an OCP curriculum has also permeated aspects of government policy. When consulting on its revised religious education curriculum in 2019, the Welsh Government believed it was obliged to develop and deliver an OCP curriculum, presumably following the reasoning set out in the Fox case a number of years earlier: ‘The courts have established that RE must be taught in an objective, critical and pluralistic manner; in particular, the state is not permitted to pursue an aim of indoctrination (“the Pluralistic Requirement”).’Footnote ⁶⁵ In the event, Wales did introduce a new mandatory curriculum entitled Religion, Values and Ethics (RVE) according to these criteria. However, and significantly, it is important to recognise that it was not required to do so because of its obligations arising from P1-2; a decision of that nature is a question of policy choice rather than a requirement of human rights law.

In implementing the new RVE curriculum the Welsh Government chose to remove the statutory right to withdraw children. At the same time, it similarly chose to remove the right of exemption for the new Relationships and Sexuality Education (RSE) subject, a decision that was challenged in R (Isherwood & Others) v Welsh Ministers. Footnote ⁶⁶ In her decision, Mrs Justice Steyn was convinced of the government’s intentions to deliver the new RSE subject in an OCP manner and hence dismissed the appeal. For present purposes what is noteworthy in the judgment is the continued misinterpretation of the nature of the obligation arising from the second sentence of P1-2. The judge notes and follows Warby J in Fox in erroneously holding that there is a requirement on states to deliver a pluralistic curriculum, rather than recognising that the norm of OCP is the standard by which to assess whether opt-out provision should exist.Footnote ⁶⁷

This direction of jurisprudential travel appears to have been checked by a return to an accurate reading of P1-2 and the proper role of the OCP norm in the recent 2024 decision of the Northern Ireland Court of Appeal, an appeal from the judgment in the JR87 case.Footnote ⁶⁸ The Court upheld the trial judge’s finding that the curriculum was not conveyed in an OCP manner.Footnote ⁶⁹ However, it correctly held that no breach of P1-2 could be established because of the existence of the unqualified statutory right of the parents to have their child excused from attendance at religious education or collective worship.

The Court found that the trial judge’s finding that the state ‘must accord equal respect to different religious convictions and to non-religious beliefs. That is the limit which must not be exceeded’ was wrong in principle.Footnote ⁷⁰ Rather, the limit that must not be exceeded was indoctrination. In other words, if the norm of the OPC standard was not met and there was no remedy offered (namely, a right of exemption), then ‘a finding of indoctrination and breach of [P1-2] will follow’.Footnote ⁷¹

In essence, the Court of Appeal’s judgment returns the interpretation of P1-2 to its appropriate focus and one which supports the drafters’ original aim of preventing state monopolisation in the education of children.Footnote ⁷² At the same time, however, the judgment is a reminder of how the current interpretative approach to protecting against state monopolisation leads to a limited approach in matters relating to compulsory curriculum content – the decision hinges on whether the content is considered OCP and whether there is a need for an opt-out to protect parental rights. There is no space in these judicial debates around compulsory curricula to consider explicitly children’s rights and interests, nor the type of information and teaching that should be conveyed to children.

While this first area of tension in the current interpretation of P1-2 originates in concerns that parents’ rights are overly emphasised to the detriment of children’s rights and interests, tension in the second area comes from a sense that parental convictions are at times too easily set aside by courts who claim to know better than parents when material is incompatible with a parental conviction.

In deciding P1-2 cases, the ECtHR’s task is to determine whether there has been an interference with the parental right to respect for their convictions in their children’s education. If there has been, then clearly an opt-out must be provided. The Court’s assumption is that if the teaching is found to be OPC then it cannot conflict with any convictions. The task ultimately means that the Court must decide whether the parents are correct in arguing that the material or activity under scrutiny is incompatible with their convictions. In other words, the Court has the decisive say as to what constitutes a conflict with the parents’ convictions, not the parents; it decides whether there has been an interference.

Case law shows that the Court has been ready to dismiss outright parental claims of an interference and to substitute its own view instead. In a case concerning the compulsory display of a crucifix in state classrooms, the Grand Chamber ignored the parent’s claim of possible indoctrination, stating instead ‘there is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils’.Footnote ⁷³ In Valasmis v Greece, where parents objected to the forced participation of their daughter in a military parade, the Court concluded, that contrary to the parents’ claim, it could ‘discern nothing, either in the purpose of the parade or in the arrangements for it, which could offend the applicants’ pacifist convictions’.Footnote ⁷⁴

More recently, in the case of Petrovy v Russia, the Court held that there was both a subjective element and objective element to assessing whether an interference existed, and held that the applicants’ subjective perception was not in itself sufficient to establish a breach of P1-2.Footnote ⁷⁵ It was rather the Court’s objective viewpoint that was decisive and, in this case, it decided that there was ‘no evidence, beyond the applicants’ claims, that the third applicant’s experience of the ceremony was marked by any indoctrination or coercion’:Footnote ⁷⁶

Clearly, some cases present facts that can be lend themselves to a relatively straightforward assessment as to whether there has been an interference based on the OCP criteria, for example, where children of one faith are exposed to the confessional teaching of another religion in religious education classes. In such situations, the Court can with relative ease conclude that the teaching is not OCP and thus interferes with the parental right unless an opt-out is provided.Footnote ⁷⁷ However, where matters may be less factual, for example, a school visit to a place of worship that is not related to the child’s religion or belief, then the question arises as to the appropriateness of a Court, rather than the parent concerned, making the determination as to whether the matter conflicts with parental convictions.Footnote ⁷⁸

The willingness of the Court to decide when a conflict exists sits rather uneasily with its stated position that it is not the Court’s task to determine what principles and beliefs are to be considered central to any given religion nor to enter into any other sort of interpretation of religious questions.Footnote ⁷⁹ It further sits in marked contrast to the approach it adopts when examining a claimed interference with the qualified right to manifest one’s religion or belief found in Article 9 (the general right to freedom of religion or belief article of the ECHR). While the Court will begin its determination in these Article 9 manifestation cases by examining the question of whether there has been an interference with an act of manifestation, it does so primarily to establish that the claim engages Article 9 and, having satisfied itself that it does, it is thus enabled to proceed to a justification test which leads to a final decision as to whether a violation has occurred.Footnote ⁸⁰ As Sandberg notes:

The justification test that ensues is carried out according to the criteria set out in Article 9(2), namely the action must be prescribed by law, have as its aim one of the listed legitimate aims – public safety, protection of public order, health or morals, protection of the rights and freedoms of others – and be necessary in a democratic society.

It is argued here that a similar approach that places the emphasis on a justification test, rather than on the need to establish whether an interference existed based on the OCP standard, would have several considerable benefits in P1-2 cases. It would reduce the focus on determining the OCP nature of the mandatory teaching or activity and thus remove the Court from the role of adjudicator in matters that may be non-factual; it would better recognise the subjective nature of aspects of religious and philosophical convictions that may not be apparent to a secular court; and it would facilitate a greater opportunity for a debate on the place of the parental right within a wider rights context.

4. A revised approach

As noted above, P1-2 is considered a lex specialis when questions to do with compulsory activities and freedom of religion or belief in schools come to be examined. However, the ECtHR has been forced to consider these issues under Article 8 (right to a private and family life) and Article 9 (right to freedom of religion or belief) of the ECHR in situations where the state party has not ratified P1-2. In determining these cases, the Court has naturally adopted the justification-centred approach associated with these articles in place of the usual OCP assessment found in P1-2. The resulting decisions illustrate the benefits of doing so in terms of both avoiding the need to decide whether there has been a conflict with parental beliefs and in prompting the state to provide an explanation for its decision to make a school activity compulsory.

In the 2017 case of Osmanoglu and Kocabas v Switzerland, the applicants challenged the refusal by the authorities to exempt their daughters from compulsory mixed swimming lessons on account of their religious beliefs.Footnote ⁸² Switzerland has not ratified P1-2 and so the applicants relied on Article 9. In contrast to a case brought under P1-2, the Court did not have to wrestle with the OCP norm to determine whether there had been an interference with parental convictions. The Court readily accepted that there had been an interference with the right to manifest a religion or belief, in essence establishing that the right to freedom of religion was engaged. It then focussed its attention on a justification test to examine whether the interference was necessary in a democratic society; in other words, whether the measures taken at the national level were justified in principle and proportionate.Footnote ⁸³

In making its determination, the Court accepted that the Swiss Government’s reasons for imposing mandatory swimming lessons were linked to legitimate grounds for interference under Article 9(2), namely for the protection of public order and the protection of the rights and freedoms of others. In reaching a conclusion of no violation of Article 9, the Court was strongly persuaded by the Government’s argument that compulsory swimming lessons both benefited society through facilitating social cohesion and the integration of religious minorities in Swiss society, and benefited pupils by protecting them against social exclusion within the school and guaranteeing them equal opportunities in the education and training.Footnote ⁸⁴ It concluded that the ‘children’s interest in an all-round education, facilitating their successful social integration according to local customs and mores, takes precedence over the parents’ wish to have their daughters exempted from mixed swimming lessons’.Footnote ⁸⁵

The process of adjudication provided by the structure of Article 9 contrasts favourably with the approach taken under P1-2. The willingness to accept that the domestic measure interfered with the parental right to freedom of religion led to a justification test where the national authorities were required to defend the interference based on permitted grounds of limitation. The Court’s task was to review these arguments, weighing them against the rights of the parents, rather than examining whether the activity was OCP, as would have been demanded under P1-2.

While the above approach provides for a more comprehensive consideration of the issues involved in matters of compulsory teaching, the Court’s assessment in this case raises two concerns. First, acceptance that the public interest of socialisation and integration could be linked to the ground of public order in the quest to find a legitimate aim is questionable. Moreover, collective state aims of this nature do not align with the specific underlying aim of P1-2, namely the prevention of state monopolisation. The right was born out of a desire to ensure states could never replicate the control totalitarian states had exerted over children’s education. To allow a state to assert ill-defined public interest aims such as social integration to justify compulsory activities risks allowing a state to control children and young people’s education to an extent that could negate parental rights in every instance.

Secondly, while the Court did accept that the rights of others – in this instance the rights of children – was a legitimate ground for interference, its subsequent analysis of any such rights was weak and poorly developed. Rather than identifying specific rights and standards, it adopts a more paternalistic approach in referring to children’s interests and what it considers to be important for them, for example, ‘a child’s interest in attending those lessons lies not merely in learning to swim and taking physical exercise, but above all in participating in that activity with all the other pupils’.Footnote ⁸⁶

A second case against Switzerland later that same year provided a more robust justification procedure that went some way in remedying both these weaknesses. The complaint in AR and LR v Switzerland concerned a refusal to accept a request for exemption from compulsory sex education for a primary school child.Footnote ⁸⁷ Again, owing to the fact that Switzerland has not ratified P1-2, the Court examined the issues under another article, this time Article 8, where the Court noted that the education of a child, in so far as it constituted one of the fundamental aspects of a parent’s identity, could be part of the parent’s private life.Footnote ⁸⁸ The Court found that the rejection of the exemption request constituted an interference with the parent’s exercise of her rights protected by Article 8 and thus proceeded to examine whether the interference was necessary in a democratic society.

The Court considered that the protection of health, a permitted ground for interference under Article 8(2), provided a valid reason for the interference considering the aims of the intended sex education which included the prevention of sexual violence and exploitation which posed a threat to the mental and physical health of children. It further referred to children’s rights when considering whether the interference could be said to meet a pressing social need. Here it made several references to specific rights in the UN Convention on the Rights of the Children (UNCRC). First, it noted that while Article 5 of the UNCRC recognised the role of parents in providing guidance and direction to their children, this was not an end in itself but must always serve the well-being of the child.Footnote ⁸⁹ It then noted that Article 29(d) provides that education must aim at ‘preparing the child to assume the responsibilities of life in a free society’ and, further, that Article 19 requires states to take ‘all measures’ including ‘educational’ measures to ‘protect the child from all forms of physical or mental violence, injury or abuse … including sexual abuse’. The Court concluded that the school sex education in question pursed these aims in a proportionate manner and declared the case inadmissible.

The Court’s attention to a ground of interference unrelated to public interest, along with its detailed consideration of specific children’s rights in evaluating the domestic authorities’ reasoning, illustrates a preferable approach to examining compulsory curriculum issues. If an approach of this nature were to be explicitly adopted when examining cases falling under P1-2 – instead of remaining focused on the OCP norm – the benefits would be three-fold. First, by more readily recognising an interference with parental convictions, the Court removes itself from the need for an assessment of the compatibility of the teaching with those convictions in all but the most egregious of cases. Secondly, in refusing to accept a public interest aim as a sole legitimate ground and instead identifying an aim related to children’s interests (for example health, as in the AR case above), it removes the risk of the state using its interests to negate individual rights too readily and in so doing more closely aligns the outcome with the original aim of the article: the prevention of state monopolisation. Finally, in injecting children’s rights at two points in the review – as a legitimate ground for interference as well as in the proportionality assessment – the Court allows for a wider consideration of rights and interests than those examined under the current OCP standard.

Adopting an explicit justification approach for P1-2 cases along the lines of the Swiss cases above is not a substantial shift for the Court. The parental right found in the second sentence P1-2 has always been conceived as a limited one. The drafters of the right were extremely clear on this: ‘it is obvious that the right, of which we are speaking here, is a right which, in every country of the world, should be regulated to a certain extent by the State’.Footnote ⁹⁰ At the same time they were clear as to the necessity of reviewing any such state-imposed restrictions to avoid the constant fear of ‘educational totalitarianism’.Footnote ⁹¹ The space for this domestic regulation as well as for the Strasbourg Court’s role in reviewing of any such regulation has emerged from the Court’s recognition that states enjoy a margin of appreciation, subject to the supervisory jurisdiction of the ECtHR, in their efforts

However, in contrast to qualified rights such as the right to manifest a religion or belief, the process for reviewing a limitation and the associated permitted grounds of limitation are not set out in the article itself. Moreover, the Court has demonstrated a willingness to give states a wide margin of appreciation when reviewing measures that restrict the rightFootnote ⁹³ and, further, has regularly accepted justifications based on a perceived benefit to society. For example, in Konrad v Germany, the Court accepted the arguments of the domestic authorities that stressed ‘the general interest of society in avoiding the emergence of parallel societies based on separate philosophical convictions and the importance of integrating minorities into society’.Footnote ⁹⁴ Similarly, in the Valamis case concerning compulsory participation in a military parade, the Court notes that such ‘commemorations of national events serve … the public interest’.Footnote ⁹⁵ The willingness to accept an interference on the nebulous basis of ‘public interest’ or ‘general interest of society’ is concerning. Fundamentally, it does not align with drafters’ purpose for including the right in the Convention. The Committee saw it as a family right whose purpose was to protect against undue state intrusion in the education of children. To allow an argument based on societal interests to negate the right runs directly contrary to this original aim. On this basis, for example, a totalitarian-minded regime could all too easily argue that its education curricula and policies were justified in the interest of society and thereby compel attendance at certain teaching and activities.

The need for an alternative legitimate ground of interference to guide a margin of appreciation examination is thus required. The two Swiss cases demonstrate the appropriateness of using the rights of children as such a ground. This view finds support in the drafters’ original discussions, where some delegates argued that the rights and interests of children should lie at the heart of protection offered by P1-2. Mr Pernot (France) expressed the view that the provision of a parental right in the article should be seen as ‘less of a question of a right than the freedom of action to fulfil the obligations and the duty’ which a parent assumes.Footnote ⁹⁶ The idea that parents had responsibilities and not rights with regard to a child was echoed by Mr De La Vallee-Poussin (Belgium), who encouraged his fellow committee members to ‘speak of the duty and not the right of parents’,Footnote ⁹⁷ while Mr Philip (France) spoke of the ‘sacred right of a child to be brought up in accordance with methods of free enquiry’.Footnote ⁹⁸

Recent Strasbourg jurisprudence increasingly demonstrates that the Court is willing to refer to the rights and best interests of the child in considering cases concerning children and to ground its arguments in relevant international human rights law.Footnote ⁹⁹ In the recent 2023 case of Macate v Lithuania, the Court stressed that ‘where children are involved, their best interests must be taken into account’.Footnote ¹⁰⁰ In determining whether the aim of the interference put forward by the state in this case was legitimate, it clearly recognised that

The case concerned the temporary suspension of a children’s fairytale book depicting same-sex relationships and its subsequent labelling as harmful to children under the age of 14, an action argued to be in violation of Article 10, the right to freedom of expression. In identifying the legal framework appropriate to the case, the Court not only referred to the principles of Article 10 but additionally specifically referenced the right of the child to receive information under the ICCPR as well as the UNCRC, where Article 17 holds that state parties: