CASE OF KJELDSEN, BUSK MADSEN AND PEDERSEN v. DENMARK – European Court of Human Rights “Religious Instruction” – (Application no. 5095/71; 5920/72; 5926/72) – 17th December 1976.
In this case at the European Court of Human Rights, the court makes clear that the rights of all parents and their children under Article II of Protocol 1 (the right to education) is not confined to having their children exempted from classes offering “religious instruction of a denominational character”. The State is obliged under the European Convention to respect parents’ convictions throughout the entire State education programme.
The State are ‘providing for’ the education of minorities in Denominational schools and claiming that they are fulfilling their human rights obligations by permitting parents to opt out their children from religious instruction classes.
In Kjeldsen, Busk, Madsen and Pedersen V Denmark in 1976 the European Court made it clear that the right to respect under Article II of Protocol 1 involved more than just opting out of religious instruction classes.
How do Denominational schools more than acknowledge or take into account the philosophical convictions of secular parents and their children throughout the entire State Curriculum? The answer to that question is that Church and State simply ignore the human rights of secular parents and their children and operate on the basis that they are not obliged to deliver the curriculum in an objective, critical and pluralistic manner.
Despite the above case at the European Court, the Education Act 1998 does not oblige schools to deliver the curriculum in an objective, critical and pluralistic manner and it does not even oblige schools to write down and inform parents where they are integrating religion into the State curriculum. This clearly breaches the human rights of all minorities who have no choice but to attend denominational schools as the State is ‘providing for’ their education in these schools.
“51. The Government pleaded in the alternative that the second sentence of Article 2 (P1-2), assuming that it governed even the State schools where attendance is not obligatory, implies solely the right for parents to have their children exempted from classes offering “religious instruction of a denominational character”.
The Court does not share this view. Article 2 (P1-2), which applies to each of the State’s functions in relation to education and to teaching, does not permit a distinction to be drawn between religious instruction and other subjects. It enjoins the State to respect parents’ convictions, be they religious or philosophical, throughout the entire State education programme.
52. As is shown by its very structure, Article 2 (P1-2) constitutes a whole that is dominated by its first sentence. By binding themselves not to “deny the right to education”, the Contracting States guarantee to anyone within their jurisdiction “a right of access to educational institutions existing at a given time” and “the possibility of drawing”, by “official recognition of the studies which he has completed”, “profit from the education received” (judgment of 23 July 1968 on the merits of the “Belgian Linguistic” case, Series A no. 6, pp. 30-32, paras. 3-5).
The right set out in the second sentence of Article 2 (P1-2) is an adjunct of this fundamental right to education (paragraph 50 above). It is in the discharge of a natural duty towards their children – parents being primarily responsible for the “education and teaching” of their children – that parents may require the State to respect their religious and philosophical convictions. Their right thus corresponds to a responsibility closely linked to the enjoyment and the exercise of the right to education.
On the other hand, “the provisions of the Convention and Protocol must be read as a whole” (above-mentioned judgment of 23 July 1968, ibid., p. 30, para. 1). Accordingly, the two sentences of Article 2 (P1-2) must be read not only in the light of each other but also, in particular, of Articles 8, 9 and 10 (art. 8, art. 9, art. 10) of the Convention which proclaim the right of everyone, including parents and children, “to respect for his private and family life”, to “freedom of thought, conscience and religion”, and to “freedom … to receive and impart information and ideas”.
53. It follows in the first place from the preceding paragraph that the setting and planning of the curriculum fall in principle within the competence of the Contracting States. This mainly involves questions of expediency on which it is not for the Court to rule and whose solution may legitimately vary according to the country and the era. In particular, the second sentence of Article 2 of the Protocol (P1-2) does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum, for otherwise all institutionalised teaching would run the risk of proving impracticable. In fact, it seems very difficult for many subjects taught at school not to have, to a greater or lesser extent, some philosophical complexion or implications. The same is true of religious affinities if one remembers the existence of religions forming a very broad dogmatic and moral entity which has or may have answers to every question of a philosophical, cosmological or moral nature.
The second sentence of Article 2 (P1-2) implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the 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. That is the limit that must not be exceeded.
Such an interpretation is consistent at one and the same time with the first sentence of Article 2 of the Protocol (P1-2), with Articles 8 to 10 (art. 8, art. 9, art. 10) of the Convention and with the general spirit of the Convention itself, an instrument designed to maintain and promote the ideals and values of a democratic society.”