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2021. March 17.

Decision 9/2021 (III. 17.) AB

Decision number: II/1437/2019.
Subject of the case:

Posterior norm control aimed at establishing the lack of conformity with the Fundamental Law and annulling the Act LXX of 2019 on the amendment of certain Acts related to public education and repealing Act CCXXXII of 2013 on the Provision of National Public Education Textbooks (public education, provision of textbooks)

The Constitutional Court declared to be in conflict with the Fundamental Law and, with effect from June 30, 2021, annulled a provision of the National Public Education Act that excluded exemptions from attending kindergarten for children between the ages of four and five. The Constitutional Court’s proceedings were based on a motion of a quarter of the Members of Parliament, in which the petitioners requested that the Act amending certain laws related to public education be declared to be in conflict with the Fundamental Law and annulled with retroactive effect, and requested the Constitutional Court to declare that the Parliament has failed to comply with an earlier decision of the Constitutional Court establishing a conflict with the Fundamental Law manifested in an omission in connection with the Act on National Public Education In its present decision, the Constitutional Court explained regarding the annulment that although in the vast majority of cases kindergarten education serves the best interests of children also between the ages of 4 and 5, there may be individual life situations at this age that justify upbringing in the family environment. However, the exemption may be granted only by taking due account to the child’s state of health, family circumstances, abilities, his or her special situation, i.e. the best interests of the child. In addition to annulling the provision, the Constitutional Court also found that the State had caused a conflict with the Fundamental Law by the failure to fulfil its obligation to protect institutions in the form of the law-maker not creating guarantees for making possible that, on the basis of the kindergarten’s proposal, or in any other suitable manner, starting the child’s schooling could be postponed by one school year on the basis of a school aptitude test of a child who is obviously not ready for school, even if the parent fails to submit the appropriate application. In the context of the rules for starting school, the Constitutional Court did not see any sufficient guarantee for preventing the school starting of immature children whose parents had failed to submit an application for a year’s postponement or had not submitted it properly. The issue of school aptitude is an individual question, and in some cases it requires professional judgement, rather than an age-related ability that comes automatically, and children have a constitutional right to begin their studies at school when they are mature enough to do so. The age when a child becomes ready for starting school varies from individual to individual due to the different pace of development of children; there is a system of objective conditions established by law, and for the verification of school aptitude the co-existence of mental and social skills, in addition to physical standards, are required. Referring to its previous rulings, the Constitutional Court confirmed that establishing school aptitude, as a professional matter, is primarily a parental right. However, the reasoning of the decision also calls for “reconnecting” into the system kindergarten professionals who are familiar with the individual circumstances and development of the child. According to this, the kindergarten should be able to make a signal to the Education Office in cases where the parent fails to submit the relevant application for any reason. The Constitutional Court also laid down as a constitutional requirement, both in connection with the exemption from attending kindergarten and the individual work schedule, that the parent’s statement and the documentation attached by the parent as an annex to the application shall not be disregarded during the assessment of the application. A decision contrary to the parent’s request for the child to be exempted from attending kindergarten until the age of five or to study according to an individual schedule shall only be made in the best interests of the child, after providing counter-evidence. In its decision, the Constitutional Court called on the law-maker to guarantee, by 30 June 2021, by setting the legal environment, that the decision on the exemption from kindergarten and approving individual work schedule is made before the beginning of the school year or pre-school year even if the parent turns to court.