House education / HomeSchooling |Lawyerpress News
Beatriz Ortega Gutiérrez*, Family Lawyer. AMAFI member.
Beatriz Ortega Gutierrez
On June 3rd and on the occasion of the debates organized on the first Thursday of each month by the Madrid Association of Family and Child Lawyers of Madrid (www.somosamafi.es), we had the opportunity to attend an interesting and dynamic debate in the form of a colloquium on homeschooling, led by two great colleagues and Family Law professionals: our partner Gerardo Rodríguez Acosta, President of the Confederation for the Best Interest of Children (CEMIN), who addressed its regulation mainly in the Community of Madrid and our special guest collaborator, Adolfo Alonso Carvajal, president of the International Institute of Family Law, who addressed it at a European level.
Homeschooling (home education or family education) is a worldwide phenomenon that involves the practice of carrying out educational teaching at home and that, unlike school absenteeism, does not mean educational abandonment, but the rejection of the conventional or state education system.
In Spain, however, it is not a phenomenon as well known or widespread as in the rest of Europe since we lack specific regulations and the families that practice it are in a legal situation in which its practice means facing to possible risks, such as the opening of truancy protocols by schools, complaints to Social Services or even the possibility of an accusation by the Prosecutor for a crime of family abandonment.
In light of this, the first question that arises is: can the practice of homeschooling have any kind of consequences for parents? Well, in principle and despite the above and provided there is an agreement between the parents, it is most likely that this situation will not have any type of criminal or civil consequence. For this it is important that minors follow a specific study criteria with educational guidelines, with control of evaluations, exams, communications with the school, etc., preferably collected and detailed in a report prepared by the parents themselves.
However, and although home schooling may not entail consequences in this sense, in the event that a disagreement arises in the exercise of parental authority between the parents, it will, in all probability, be resolved in favor of the parent. the child's attendance at school.
Although there are no official statistics in our country on home education, it is estimated that around 3,000 families opt for this type of education, which is an ideological choice of alternative pedagogical content and has nothing to do with situations such as the one caused by the closure of educational centers as a containment measure during the health crisis caused by COVID, which forced students to stay at home and carry out distance and online education and although it was precisely the pandemic itself that Interest in this form of alternative education has increased.
Regarding the Spanish regulatory framework, the Organic Law of Education establishes compulsory basic education from 6 to 16 years of age, so that early childhood education (from 0 to 6 years) is a voluntary stage, parents have the right to freedom not to send their children to school at this stage. However, from the age of 6 and although the Spanish Constitution recognizes in its art. 27 freedom of education and guarantees the right of fathers and mothers so that their children receive training that is in accordance with their own convictions, the Constitutional Court in Judgment 133/2010, of December 2, established that "the invoked faculty of parents to choose for their children an education outside the compulsory schooling system for pedagogical reasons is not included, not even prima facie, in any of the constitutional freedoms that the claim invokes and that art. 27 CE recognizes”.
That is why, in the short term, it is not expected that there will be any advances in the regulation of this education system in our country, as it is regulated and established in the education system of the majority of our European neighbours, despite the fact that the new Organic Law on support measures for disabilities, Law 8/2021, of June 2, which reforms civil and procedural legislation to support people with disabilities in the exercise of their legal capacity , according to the opinion of Adolfo Alonso Carvajal, generates a different system of action for the public powers, mainly the judiciary, in relation to people with disabilities, which allows him to make "a tailor-made suit" based on their needs. , among which would be the establishment of home education as a possible support measure for these people within the general regime of guardianship. We must not rule out the possibility that this situation could open the door to legal homeschooling and that children and adolescents in a situation of maladjustment or bullying could be protected through this system, in which their dignity or psychological stability could be compromised. or emotional of these minors, approaching a system like the Dutch one, which is a limited system where homeschooling is admitted, but only in certain situations with sufficiently justified cause.
Other intermediate or mixed and more flexible systems, such as the Italian or Polish ones, consist of enrolling minors in a school, their attendance not being compulsory as long as the parents have duly justified it before the educational authorities. In countries like Hungary or Austria, however, students are tested periodically, 2 to 4 times a year, while in Finland, the least interventionist of all, parents are free to create their own study plans within minimum standards of the education system of that country.
At a European level, the most relevant sentence is that of the TDEH of January 10, 2019, in the case of a German citizen against Germany, “Wunderlich vs Germany”, where the TDEH confirmed the resolution of the German State that had withdrawn the temporary custody of that father and forced him to send his son to school because his best interests were at stake by not allowing him to socialize, keeping him in a symbiotic family system and denying him an education that met well-recognized and fundamentally important standards for growing up in society.
And it is that this sentence, in addition to being representative in the treatment at a European level, addresses one of the biggest drawbacks of home education and that is the lack of socialization of minors, whose exclusion from the official system can create serious problems for them problems in their integral development, both academically, socially and in relation to their peers.
That is why it is important and advisable that in these cases these socialization deficiencies during the study be replaced with activities, from cultural to sports, that promote the relationship of these minors with both children and adults, and allow them to socialize.
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Since homeschooling is still largely unknown in Spain, among other things due to its lack of regulation, the challenge would be its establishment in our educational system, trying to combine autonomy of private will in the family and less state interventionism with control court or a regulation that guarantees, above all, the interest and protection of minors.
*BEATRIZ ORTEGA GUTIERREZ has a law degree from the San Pablo CEU University of Madrid and a practicing lawyer from the Madrid Bar Association since 2003.
She has more than 18 years of professional experience, initially as a tax advisor and general lawyer, practicing in these early years in the areas of Contentious-Administrative Law and Civil Law.
Since 2012, he has been exclusively dedicated to Family Law, intervening in numerous procedures in this area of Law:
. – Matrimonial and Minor Processes: Separations, Divorces, Modifications of Measures, Guardianship and Custody Procedure over minor children or food.
. – Procedures for Forced Execution of the measures adopted in annulment, separation or divorce proceedings.
. – Settlements of the Gainables
. – Inheritances, Successions and Donations.
. – Procedures on the capacity of people: Disabilities.
. – Parentage and paternity procedure.
He is a member of the Spanish Association of Family Lawyers (AEAFA), the Madrid Association of Family and Child Lawyers (AMAFI) and the Family and Law Platform.
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