Statement of the Commissioner for Fundamental Rights on the new procedures related to school readiness and petitions for the postponement of starting school, and the implementation thereof
Based on complaints lodged by parents, the Commissioner for Fundamental Rights reviewed the procedure regarding the handling of requests to postpone starting school comprehensively, as well as the questions related to the practical implementation thereof, from both a fundamental rights and a children’s rights perspective. In his report, Ombudsman Dr. Ákos Kozma found numerous improprieties regarding the method of the implementation of the new procedure and the direct and indirect effects thereof, the uncertainties in the legal regulation, as well as the conduct of the Educational Authority and the expert committees involved, and he formulated recommendations for the competent ministry.
The Commissioner for Fundamental Rights received nearly forty complaints from parents about the modification of the procedural rules regarding the postponement of starting school, in connection with school readiness. In these petitions, the parents explained the individual situation of their children and they emphasised that school readiness does not depend on a specific date but on the children’s biological, mental and social maturity. After unifying the individual cases in one single procedure, the Ombudsman launched a comprehensive inquiry into the procedural rules of the new provisions governing the establishment of school readiness.
The Commissioner for Fundamental Rights emphasised that the definition of the date of starting school and the status of school readiness is a complex professional, fundamental rights-related and moral question, in which the rights, interests and perspectives of different parties should be harmonised with the relevant constitutional obligations. The requirement of compulsory education is not a state goal for its own sake: underlying are the protection of the best interests of children and ensuring their participation in education. According to the justification of the implementation of the new rules of procedure, it serves children’s rights to start their school studies as soon as possible, following the appropriate nursery school preparation. Pursuant to the relevant laws, the parents may request the postponement of starting school by a maximum of one year in justified cases; such applications may be submitted to the Educational Authority, which is the state organ authorised to assess such requests.
The Commissioner for Fundamental Rights pointed out that the legislator had promulgated the laws that define the detailed rules of exemption from compulsory education too late, only in November and December 2019, and the laws took effect on 1 January 2020. Also, it was not properly assessed whether the criteria necessary for the implementation of the rules exist in the case of each stakeholder affected. The inflexibility of the regulation is also a major problem, as even after the deadline for submitting requests for postponement, such a fact or circumstance may present itself in a child’s condition that may require the postponement of the start of his or her participation in compulsory education, in line with the best interests of the child.
Making a decision on school readiness is not exclusively the parent’s right in the Hungarian fundamental rights-related practice, but the expression of their opinion is part of their responsibilities. According to the new regulations, a parent is entitled to initiate that their child be exempted from compulsory education, however, it is a question to what extent and in what circumstances a parent may use this right to submit such a request. Based on the analysis of the rates and statistics of the previous years, the inquiry exposed that the number of the parents who had now initiated the postponement of starting school was only the third of the figure for the previous years. After having compared the data, the Commissioner for Fundamental Rights assumed that there could have been a great number of less assertive parents who did not or could not ask for the exemption, while their requests might have been legitimate.
The Commissioner for Fundamental Rights inquired into the exemption-related practice of the Educational Authority, which is the central body appointed to handle this procedure. In his report, he concluded that in terms of staff, the Authority had the basic conditions for exercising this new competence, regarding the organisation as a whole. In relation to sharing the expert opinions on the examinations conducted by the appointed experts with the parents, the Ombudsman welcomes the intention of the Educational Authority, according to which they are planning to create the technical conditions for the parents to receive a copy of the expert opinion, without having to make a specific request. However, the Commissioner for Fundamental Rights also called attention to the fact that the method and form of sharing the expert opinion with the clients is a guarantee element of official procedures, which cannot automatically be transferred to the expert committees.
As regards the process conducted by the appointed expert in the official procedure, the Commissioner for Fundamental Rights established that essentially, the appointments had been performed by the expert committees by the required deadlines. However, in the case of several committees, the necessary conditions were not available, this is why a relocated staff was working there, putting in significant overtime. There was a substantial difference between the workload in the counties under review, which was partly due to whether or not the expert committees had acted upon the parents’ petitions before the relevant rules of procedure were changed. In the case of the overburdened expert committees, the performance of those tasks that are different from the expert activities was usually protracted, was pushed to the background or rescheduled, so indirectly, this had a profound effect on the other types of their work activities.
According to the information received from the Authority, the requests could be submitted as a completed form, electronically via the Client Gate, or in a printed version by post. However, in the opinion of the Commissioner for Fundamental Rights, it cannot be disregarded that this restriction on submissions is not only contrary to the statutory regulations but it also raises fundamental rights-related concerns. In disadvantaged settlements with less resources, in the case of parents who live in poorer social conditions and have weaker assertive skills, the availability of technical facilities is limited, so it may happen that these parents cannot initiate that their children remain in nursery school.
The report also drew attention to further procedural issues. For instance, the Authority resolved the erroneous appointments that occurred in a lower number by “transferring authorisations”, which is incompatible with the legal guarantees. In addition to this, the use of the individual concepts in the rules of procedure is not in harmony with the concepts used by the laws governing administrative authority procedures and experts, which leads to uncertain legal practices, so this also raises concerns.
The Commissioner for Fundamental Rights requested the Minister of Human Capacities to review the regulation regarding the procedure conducted by the expert committees and to ensure that the exemption request in the case of any changes that prevent the beginning of participation in compulsory education can be submitted beyond the required deadline. He also asked the Minister to comprehensively examine the findings concerning first-graders for the school year 2020/2021 and provide information on the experience. The Commissioner for Fundamental Rights also requested that the conditions necessary for performing all the tasks of the expert committees be guaranteed. As regards the parents who are affected by the school start, appropriate information should be provided on their rights, options, the procedure and its elements by making easy-to-understand, accessible, traditional and online information materials available. Finally, the Ombudsman proposed to the President of the Educational Authority that he ensure that the expert opinions are shared with the parents during the official procedure, in line with the statutory requirements.