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Children’s Right to Health and COVID-19: A Debate Abroad Creates New Opportunities for Finnish Lawyers

Kirchner, Stefan

Artikkelit 8.10.2020, Asiantuntija-artikkeli

Tiivistelmä

The COVID-19 pandemic is creating multiple challenges, ranging from the provision of health care services to the economy to human rights. Among the issues is the question of schooling. As schools have reopened across Europe after the summer, the number of COVID-19 cases has exploded in many places. Despite these risks, students are required to attend school, although measures employed in other areas, such as physical distancing or the wearing of masks, are not required in elementary schools. At the time of writing, in mid-September 2020, this has already led to more than 1,000 schools across Germany reporting infections of teachers or pupils with COVID-19, including cases in which it is assumed that the transmission of the virus has occurred in the school setting due to a lack of protective measures.

In some countries in Europe, notably in Germany, this has led to a renewed interest in homeschooling. Unlike, for example in Finland, where clear legal rules govern education outside the traditional school setting, homeschooling is illegal in Germany. While the details differ from state to state, parents’ failure to ensure that their children attend school in person is at least a misdemeanor, in some states even a crime. The situation is leading to significant demands for education law reform. Due to the federal system and the competences of the states, with sixteen states and election cycles of five years (four years in the smallest state, Bremen), any political debate of the issue has long been practically impossible. Until now, the duty to attend school in person has only been challenged in the top courts on the basis of the freedom of religion – and always unsuccessfully.

This debate is not the result of a controversial court decision or political plans but based on the fears of parents. These fears are not limited to health concerns but also include worries about the right of children to access education. In general, the education system in Germany is significantly less equal than in Finland. In recent years, this inequality has only been increasing. Quarantine orders or school closures due to COVID-19 outbreak are likely to increase this trend.

Finland’s reputation for it excellent education system, including the possibility of education outside of school settings, and the existence of a regulatory framework to this effect, as well as the structural similarities between the Finnish and the German legal systems, open the possibility that the Nordic approach to education could provide an impetus to the ongoing legal discussions elsewhere, including in Germany. By raising this issue, this text aims at starting a debate on the possibility of one legal system transplanting regulatory notions into another system. In the cases of Finland and Germany, this notion might at first seem unusual, because the German legal system has traditionally exported ideas to other countries. In order to enable Finnish lawyers to contribute to this debate, this text provides background information on the current debate. (Edilex-toimitus)

Keywords: COVID-19, Germany, human rights, rights of children, school, homeschooling

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