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Kjeldsen, Busk Madsen and Pedersen v. Denmark

Keywords, Forum, Remainder of Citation, Context, On what breach of law was the case brought?, Process, Result of case ,What has this case done to further the right to education?

Name of Case

Kjeldsen, Busk Madsen and Pedersen v. Denmark

Keywords

European Court of Human Rights, European Convention on Human Rights, Denmark, acceptability, parents' wishes, sex education, freedom of education, religious and moral views.

Forum

European Court of Human Rights 

Remainder of Citation

1 E.H.R.R. 737 (Application no. 5095/71; 5920/72; 5926/72), 7 December 1976

 Context

The State had introduced compulsory sex education in State primary schools as part of the curriculum. This change in the curriculum was introduced by a Bill passed by the Parliament. There were guidelines and safeguards against a) showing pornography, b) teachers giving sex education to pupils when they were alone, c) giving information on methods of sexual intercourse and d) using vulgar language while imparting sex education. The applicants, who were parents of state primary school going children, were not satisfied that the guidelines and safeguards protected their children sufficiently. They gave several petitions to have their children exempted from sex education in concerned State schools. However, these requests were not met and all of them withdrew their children from the said schools.

On what breach of law was the case brought?

Article 76 of the Danish Constitution: 'All children of school age shall be entitled to free instruction in primary schools'.

Article 2 of Protocol No. 1 to the European Convention on Human Rights: “No person shall be denied the right to education. 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.”

Process

The applicants argued that the Danish Government had violated Article 2 of Protocol No. 1 to the European Convention on Human Rights by refusing to exempt the applicants’ children from compulsory sex education lessons in school.

The State argued that Article 2 only relates to religious instruction and not to all forms of instruction such as sex education.

Result of case

The Court held that any teaching should respect parents’ religious and moral convictions. It found that the State "must take care that information or knowledge included in this 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"; i.e. Article 2 would be violated only if while imparting sex education, the teachers advocated sex at a particular age or particular type of sexual behaviour.

However, the sex education lessons, which the legislation had intended to be imparted to pupils, did not amount to indoctrination or advocacy of a specific kind of sexual behavior. Moreover, the parents still had the freedom to educate their children at home to instill their own religious convictions and beliefs and therefore, imparting sex education in itself was not a violation of Article 2.  

What has this case done to further the right to education?

The religious and moral beliefs of the parents in this case were not altogether opposed to school education. The situation is more complex where religious beliefs etc. are opposed to full-time formal school education: for example, where children are enrolled in religious schools and given religious instruction which is very different from the curriculum in a regular school. Different courts in different countries may hold differing views, i.e. such a practice should be exempted as a cultural right or it could be seen as a violation of a child’s human right to primary education. A court’s view in such a situation would depend on the constitution and other legislation together with the cultural and political opinion of such education in that country or region.