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The very idea of the European Convention on Human Rights is to bring the laws of contracting states into line with fundamental human rights principles. Where the Convention is not explicit, the Court should never rule restrictively so as to reduce the scope of a general right. In the case of homeschooling, the Convention sets forth the general principle that “the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” It must not, therefore, allow a contracting state to eliminate a means of achieving this desired by parents—unless the state can show that the means in question is ineffective.
The demarcation of authority between parents and the State regarding education of children has become an increasingly complex issue over the past three decades. During the same period the number of parents around the world choosing educational alternatives such as homeschooling has grown exponentially, causing significant legislative and jurisprudential shifts in the United States as well as other Western nations. If the State is responsible for education or has a significant interest therein, then it must have broad authority by which to prescribe the method, mechanism, and acceptable outcomes of education; it must also be able to review and enforce these desired outcomes. If parents, on the other hand, are responsible, then it is the State’s duty to defer to parents absent a compelling reason to interfere. A survey of the philosophical foundations from ancient to modern times demonstrates the tension between the State and parents in the realm of education; however, modern human rights norms contained in post-1945 international human rights documents provide explicit grounds on which the State must defer to parental choice in education.