9 December 2022 – Online conversation
Introduction
It is a truism to say that the title issue is extremely complicated and multifaceted. In today’s speech, I would like to draw attention to only one aspect of it, resulting from the Constitution of the Republic of Poland of 2 April 1997.
Constitutional regulations relating directly to children are relatively modest.
From the point of view of the relationship between parental responsibility and children’s rights, Article 48(1) of the Constitution concerning the right of parents to bring up their children and the right of children to be brought up by their parents is of key importance. In the second sentence of this provision, the constitution-maker decided that „This upbringing should take into account the degree of maturity of the child, as well as the freedom of his conscience and religion and his convictions”.
How to understand this provision from the point of view of the webinar title?
Parents‘ right to upbringing
It follows from the Polish Constitution that the ‘right of parents to bring up their children in accordance with their convictions’ is defined in the Constitution of the Republic of Poland in Article 48(1) as ‘the right to bring up their children in accordance with their own convictions’, and in Article 53(3) as ‘the right to provide their children with moral and religious education and education in accordance with their convictions’. Are we dealing with two rights, then, since the upbringing of children and the law concerning it are mentioned in two articles of the Constitution and in different ways?
A detailed analysis carried out on the basis of the principles of legislative technique, which I omit due to the subject matter, allows for the conclusion that the constitutional right to education is a subjective right, the special aspect of which is moral and religious education and teaching, which are the implementation of freedom of conscience and religion.
The right to upbringing in question should be understood as „instilling and strengthening in children a specific worldview, beliefs of the system of values, moral, moral and ethical principles”. Education understood in this way also includes the parents’ concern for the proper spiritual and physical development of the child.
It is important to distinguish between education in its internal and external aspects. The internal aspect of education includes various activities of parents undertaken in the family, consistent with their beliefs, aimed at shaping the child in terms of spiritual, aesthetic, intellectual, moral, worldview, etc. The internal aspect therefore includes all relationships between parents and children, but also grandparents and grandchildren and between siblings.
In the upbringing of children in accordance with the beliefs of their parents, various institutions of public life play a special – but always secondary – role. Among them, kindergarten and school should be mentioned in the first place, without forgetting the important role of religious associations and other institutions. Their involvement in the upbringing of their children should take place within the scope of the right of parents and with respect for the principle of subsidiarity, „strengthening the rights of citizens and their communities”. In this sense, it is necessary to point out the external aspect of education.
Although some authors draw attention to the separateness, due to the anchoring of the constitutional regulation in the field of the right to education in Articles 70-72 of the Constitution of the Republic of Poland, in my opinion, the right guaranteed to parents to choose schools other than public schools and the possibility of establishing non-public schools is closely related to the right to education. In connection with the freedom to choose schools, no unfair burdens can be imposed on parents, directly or indirectly. It is a sign of respect for the right of parents to bring up their children in accordance with their convictions when public authorities refrain from forcing their children to attend school activities which do not correspond to the parents’ convictions. Actions incompatible with the idea of respecting the rights of parents and their children include a situation when the family and parents are imposed a single model of education, completely excluding religious formation or imposing a specific model of sex education.
I am of the opinion that both aspects should be treated integrally. The aim of integrally understood education – including the internal and external aspect – is to form a young person and prepare him for an independent life in society. Any dichotomy that is difficult to avoid in a pluralistic civil society must not violate the natural right of parents and their children.
The child’s right to upbringing (to be raised)
Since parents have a natural right to bring up their children, children have the right to be brought up, which should be provided by their parents in the first place. Practically no one questions this right at present, although it is interpreted in different ways and its limits are defined in different ways. Problems and discrepancies also arise in connection with the need to take into account the child’s degree of maturity, as well as his freedom of conscience and religion. The analysed constitutional provisions show that parents in the upbringing of their children should take into account their degree of maturity, including the ability to understand the values and principles being transmitted. The maturity of the child, referred to in Article 48(2), is an appraisal concept, it consists of many factors that parents should take into account when exercising their right to upbringing. This is an area of potential conflicts about which the legislator is silent. They may concern m.in matters of worldview and religion, including those related to the presence of the cross at home or in public places.
Summing up this part of the argument, it should be stated that the right of parents to bring up their children appears in the Constitution of the Republic of Poland in two senses: the independent personal right of parents and their children and the lex specialis of freedom of conscience and religion.
„Versus” in practice
Article 12(1) of the School Education Act states that „Public nursery schools, primary schools and lower secondary schools shall organize religious instruction at the request of parents, public upper secondary schools at the request of either parents or pupils themselves; After reaching the age of majority, the pupils decide whether to receive religious instruction.” Therefore, in accordance with Article 48(1) of the Constitution, the legislator distinguished the methods of making decisions on participation in religious classes. Depending on the age of the child, the participation in religion and ethics classes is decided by the parents themselves, parents with children or, after the age of 18, by the children themselves.
Pursuant to the School Education Act of 7 September 1991, the Minister of National Education issued a Regulation of 14 April 1992 on the conditions and manner of organising religious education in public nursery schools and schools. It specifies, in accordance with the title, the conditions and manner of organizing religious education in public nursery schools and schools, including the rights of pupils and their parents (§ 1).
Therefore, the entities entitled to religious education in public nursery schools and schools are pupils and parents at whose request education is organized.
Summary
The legislator will not solve the tension, let alone the conflict between parents and children in such a delicate matter as education in matters of worldview and philosophy. However, it can create the basis for proper relationships in the family, and in the event of a conflict, create mechanisms for its resolution.
However, this does not mean an automatic limitation of children’s rights in favor of parents on the basis of the applicable provisions, in accordance with the principle „big can do more”.
