In our regular series, a group of experts from Liberty and the Public Law Project answer your questions

Q My client disagrees on religious grounds with certain activities in which his child is participating at her primary school.

To what extent is a school within the public educational system required to accommodate parental religious convictions under article 2 of protocol 1 of the European Convention on Human Rights?

A The right of parents to have their children educated in conformity with their religious beliefs is provided under article 2 of protocol 1 of the convention.

The second sentence of article 2 states that: '...

in the exercise of any functions which it assumes in relation to education and to teaching, the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical aims'.

This right is an adjunct of that in the first sentence of the article that no person is to be denied the right to education.

Most importantly, the UK has entered a reservation in respect of this aspect of the broader right.

This reservation, which has been incorporated into domestic law by section 15(1)(a) of the Human Rights Act 1998, limits the extent of the UK's obligations, although it has not yet been challenged in Strasbourg.

There are two key inter-related issues to consider in respect of article 2 of protocol 1.

First is the meaning of 'respect'.

The obligation imposed on the state is to respect parental convictions.

The European Court of Human Rights has held that this requirement of respect obliges a state to do more than 'acknowledge' or 'take into account' parental convictions and has accepted that it implies some positive obligation on the part of the state (paragraph 37 of Campbell and Cosans v UK (1982) 4 EHRR 293; paragraph 27 of Valsamis v Greece (1997) 24 EHRR 294).

This obligation is not substantial, as is illustrated, for example, by the court's decision in Valsamis.

It is possible to discern certain specific indications of the court's stance on this issue.

For example, it is clear that the duty of respect does not put state authorities under an absolute obligation to comply with parental convictions, and that it is sufficient for them to respect such convictions within existing systems of education.

Most importantly, it appears that special arrangements undertaken to meet parental objections to the curriculum may be sufficient to satisfy the obligation of respect, for example, by allowing them to be exempted from religious education (Valsamis, paragraphs 36-37).

In addition, beyond accommodation within the school itself, the court has indicated that the existence of alternatives for the education of children is an important factor to be considered.

In Kjeldsen, Busk Madsen and Pedersen v Denmark [1979] 1 EHRR 711, for example, the court emphasised the importance of the fact that the Danish state preserved the options for parents of having children attend private schools or of educating them at home (see paragraph 54).

This approach was recently reinforced in the court's admissibility decision in Alonso and Merino v Spain (app.

no.

51188/99, 25 May 2000).

Finally, the court has also indicated that regard will be had to the existence on the part of the parents of the ability to guide their children in line with their convictions in the exercise of their natural parental functions as educators (for example, see Kjeldsen, paragraph 54; Valsamis, paragraph 31; Alonso, paragraph I).

Secondly, consideration must also be given to the underlying objective of the provisions of the second sentence of article 2.

Specifically, a distinction must be drawn between instruction and indoctrination, stemming from the fact that article 2 has as a primary aim the prevention of instruction of state ideology in schools.

(Kjeldsen, paragraph 53; Alonso, paragraph I.)

The court has accepted that a state retains the right in principle to set a curriculum, and is not obliged in so doing to guarantee to establish or run schools in accordance with particular religious convictions (Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, paragraph 3; Kjeldsen, paragraph 53; Alonso, paragraph I).

Consequently, to the extent that information included in a national curriculum is taught in an objective and critical manner and does not advance an aim of indoctrination, a state will satisfy this criterion.

How would these principles be applied in practice? One of the issues raised by your client concerned the singing of Christmas carols.

Although under article 2 of protocol 1 a state can include teaching of a religious nature in its national curriculum, the court has also recognised the importance of a school complying with a parental request that children be exempted from religious instruction and/or worship not in accordance with their own convictions.

Accordingly, it would seem that your client would be entitled to request that his child not participate in carol singing, as it constitutes a form of religious instruction.

However, where the instruction involves an activity that is required by the national curriculum - and that can be said to be generally objectively viewed as not having religious overtones - it would be difficult to claim a legal entitlement to have special exemptions or arrangements made by a school in the public educational system.

It is likely that a parent's best option for reaching a satisfactory resolution could well be through discussions with the school, although the school would not be obliged to respond in a particular manner.

For example, your client objected to his child wearing shorts and a T-shirt for physical education classes, and suggested that permitting more modest clothing such as jogging bottoms and sweatshirts to be worn could address his concerns.

In response, the school stated that it was prepared to allow such clothing to be worn.

This answer has only considered the position under article 2 of protocol 1 of the convention.

It is important to keep in mind that there are other articles under the convention that could be applicable in this context.

The articles with particular relevance would be article 8 (right to private and family life), article 9 (freedom of thought, conscience and religion), article 10 (freedom of expression) and article 14 (prohibition of discrimination).

Allegations of violations of these articles have been advanced in several cases concerning the second sentence of article 2, but without much success.

It is instructive to note that in its judgment in Kjeldsen, the court emphasised that the second sentence of article 2 must be considered alongside not only the first sentence of the article, but also in light of the provi-sions of articles 8, 9 and 10 of the convention (see also, Valsamis, paragraph 25).

The court found that such considerations led to the position as discussed; that it is within the competence of a contracting state to establish a curriculum and, as part of the curriculum, to educate children in knowledge of a directly or indirectly religious nature, as long as it does not cross the line into indoctrination (see Kjeldsen, paragraphs 52-53).

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