Last resort of the constitutional state

Once again a family judge in Germany has removed parental custody from parents who homeschool their children instead of sending them to conventional school. While the judge used the state’s educational mandate as main argument, the parents concerned insisted on their natural and constitutional parental right. deutsche Version

Beginning of September 2012 Dirk W. and his wife Petra largely lost parental custody over their four children. The court acceeded to the request by the state school authorities to punish the parents in such a way because the children didn’t go to school.

The parents had explained in detail that their homeschooling didn’t harm anyone. What’s more, they regarded it as a benefit for their family. This fact was confirmed by the family’s children who had been questioned by the judge in their parents’ absence. Furthermore the parents stated extensively that by homeschooling their children they were exercising their parental right as natural justice. This was superior to the school law. The German state didn’t have the right to obstruct them at that by imposing sanctions.

In accordance with this the four children stated that they preferred being homeschooled to going to school, wanting to be homeschooled in the future as well. Furthermore the elder of them explained that they had friends in the vicinity.

Education by the state – highest object of legal protection

Nevertheless family judge Markus Malkmus installed the youth welfare office for Darmstadt-Dieburg, a town some twenty minutes south of Frankfurt, as caretaker of the children. Several fines against the parents hadn’t led them “to change their conduct” as they still continued to homeschool their children. The youth welfare office is now allowed to enforce schooling and may enter and search the family’s home by force at any time.

In his decision Malkmus charged the parents with “eluding the state’s access in connection with schooling” for years by changing their place of residence and even “moving abroad for some time”. The primacy of “state school education” being at the centre of his argumentation, the judge explained that the state had no other choice but to remove parental custody. This was so because “the mental and emotional welfare of the children” was “strongly jeopardized”, as the parents “refused and constricted state education which is of paramount importance for the development of the children in a pluralistic society”.

According to the court, staying away from school was preventing “the children to grow into community life”. It was necessary that “children are subjected to influences other than those in the parental home”. At this point the notorious argument of socialisation was introduced, acting on the assumption that homeschooled children lack “social competence”. In the opinion of judge Malkmus children could learn “tolerance, assertiveness and self-assertion” only by going to school. However, he didn’t explain as to how homeschooling was actually jeopardizing “the mental and emotional welfare of the children” of Dirk and Petra W. Nor did he state how high the number of contacts had to be so that the children’s welfare would be secured.

Pretenses instead of reasons relevant to the issue

In no way did the family judge elaborate on what exactly the state mandate for the education of the children was, where this had been laid down and why it was superior to the parental right to educate the children. He made it seem as if the “prevention of parallel societies” was the highest aim of the state. But aren’t “parallel societies” a logical consequence of the “pluralistic society” which Malkmus is pretending to favor? Instead of clarifying his contradiction he points to “the German school law” which obliges parents “to make their children comply to compulsory schooling”.

To cut a long story short: Not making children to go to school was “an abuse of parental custody”. This statement follows a line of argument that lists not taking care of your children going to school among misdemeanors like sexual abuse, physical assault or forcing your children to commit crimes. On the other hand, complying to school attendance, according to Malkmus, must be seen as a “gain for the state mandate of education and the interests of the public that stand behind it”.

What those “interests of the public” actually consist of, when or how they have been determined or debated and turned into policy, Malkmus refrained from saying. Instead, he accused the parents whom he identified as a “religious or world-view minority” of “massive unreasonableness”. Therefore it was proportionate to make the parents release their children by use of force. Only in this way could the children be effectively protected against “the abuse of parental custody”, and state education be asserted “in the well-understood interests of the child”.

The vague and airy allegations by the judge why school attendance must be asserted under all circumstances against natural, pre-state law, lack reasons relevant to the issue. Because of this the case will presumably absorb higher courts – the time for filing an appeal hasn’t run out yet.

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