Seized by several associations, the Council of State kept the deadline of May 31 for authorization requests but suspended the application of the decrees on the appeal period.
The countdown has begun and the summary appeal to the Council of State will not have changed anything: families wishing to educate their child with their family at the start of the school year have until May 31 to send their request for authorization to the Academic Director. of their department. Seized in summary proceedings by several associations for the defense of family education, the Council of State ruled in an order of May 16 that the elements they raised were not sufficient to create serious doubt about the legality of most contested provisions.
The period set by decree for an application for authorization to be admissible – three months, from 1er March until May 31 – is, according to the judge, “consistent with the timetable for the registration of children” in educational establishments. According to him, it infringes neither “the best interests of the child”, nor freedom of education, nor respect for private and family life.
Exceptions to the rule
To justify his decision, the judge points out that the decree provides for the possibility of filing an application outside this period when it is motivated by the child’s state of health, his disability or his geographical distance from any public school. – provided that these reasons appeared after the three-month period. To the applicants wishing to extend this derogation to children with intensive sporting or artistic activities, the judge replied, repeating the argument of the administration, that these situations were, in his view, foreseeable. The same goes for the fourth reason that can be invoked in support of an application for authorization, “the existence of a situation specific to the child motivating the educational project”, for which the regulatory power has not provided no derogation from the period from 1er March to May 31. Here too the judge considers that the parents must anticipate this situation and cannot make a request on the basis of this reason during the year, outside the three months.
The baccalaureate diploma
In its order, the Council of State also considers most of the other illegality claims brought by the associations to be unfounded. Among them was the requirement for parents, fixed in the decree, to present a copy of the baccalaureate in support of a request for family education motivated by “the existence of a situation specific to the child”. (and only for this reason). Contrary to what the applicants asserted during the hearing, the judge considers that this diploma “is such as to make it possible to ensure that the person in charge of the child is actually able to allow him to acquire this common base”. The judge also rejects the argument that this diploma would create inequality between children educated up to now in the family and who will be able to continue to benefit from this situation for the next two years without their parents having to present the baccalaureate diploma under transitional provisions provided for by the legislator, and children who would be homeschooled for the first time at the start of the 2022 school year, for whom this would not be possible. This difference, resulting from transitional provisions provided for by the legislator, would not infringe the principle of equality.
Appeal period too short
A single provision provided for in one of the implementing decrees is suspended by the judge in his order: the maximum period of eight days, fixed in the decree, to lodge an appeal with a commission chaired by the rector of the academy in the event of refusal of the authorization request. For the judge, the applicants are justified in requesting the suspension of this article. This deadline is too short. Indeed, in the event of refusal of a request for authorization, the parents can only seize the administrative judge if they have first seized this commission.
But these eight days are insufficient to give them the real opportunity to do so, for example if the notification of refusal of authorization is sent to them in the middle of summer when they are on vacation, thereby limiting their possibility of introducing appeal to the administrative judge. In doing so, this delay infringes their right of appeal. That’s why the judge suspended him.
The principles reaffirmed
In its ordinance, the Council of State takes the opportunity to recall some of the principles which govern the new rules. First of all, as indicated by the new law, compulsory education is given in establishments and can, by way of derogation, be provided in the family, provided that authorization has been given. Four reasons can be invoked in support of a request for authorisation: the child’s state of health or disability; the practice of intensive sports or artistic activities; the homelessness of the family in France or the geographical distance from any public school; the existence of a situation specific to the child motivating the educational project. Finally, the judge recalls that the authorization is granted as of right, for the years 2022-2023 and 2023-2024 for children regularly educated in the family during the year 2021-2022 and for whom the results of the control carried out by the academy were deemed satisfactory.