September 28, 2020

back to school 2020, The Province


The most atypical school year, marked by the restrictions of the covid-19, which, however, do not transmit security to many parents who will not take their children to school, absenteeism punishable by a fine and imprisonment, but which may be “just cause” in these circumstances.

The legislation is clear on this. In Spain education is not compulsory until the age of 6, so that those parents who choose not to take their children under 6 years of age to school will not have to face any legal problem, because early childhood education is voluntary in our country, although the vast majority of children are already enrolled since 3 years old.

Instead the law does establish the compulsory nature of education between the ages of 6 and 16 by virtue of the parental authority declared in article 154 of the Civil Code, which shields education as an inexcusable human right; therefore, failure to comply with this legal duty carries responsibilities.

The Organic Law of Education only contemplates three exceptions to schooling: illness of the student, itinerant life or residence abroad of the minor. Any other reason sets off the alarms.

What happens if I don’t take the child to school?

In this case, immediately the school activates the truancy protocol and informs the local social services, who initiate an investigation to verify if the child does not go because of the parents’ neglect or because he does not want to (more common cases), after which they issue a report to the educational center. When there is no way to reconcile the matter, the Ministry comes into action.

From now on, the situation usually leads to an administrative procedure, which ends in a fine or an actionable warning before a court of first instance.

Only in manifestly serious and repeated cases, marked in a context of distress, could the total or partial withdrawal of parental authority, which is regulated by Article 170 of the Civil Code, or even criminal reproach, which is the other Track against truancy already directed by the Juvenile Prosecutor’s Office.

He Penal Code states in Article 226 that “whoever fails to comply with the legal duties of assistance inherent to parental authority, guardianship, custody or foster care (…) will be punished with a prison sentence of three to six months or a fine of six to 12 months “for a crime of family abandonment.

How is the law applied in the context of a pandemic?

“I don’t think these scenarios will be reached, but Parents must be warned that they cannot do what they want with the education of their children and make the decisions they want without a solid justification“, explains to Efe Lola López, from the Family Lawyers Association, who believes that it is best to reach a consensus between the centers and the parents.

Because the current circumstances can be interpreted as a force majeure situation and, “If parents see risk and lack of safety for their children, the weight of the law cannot be equal that when they do not go by whim or an unjustified will. “Especially, if it is a group of parents who all row in the same direction protected by a generalized risk.

Carlota Zapata, a lawyer for Legálitas, tells Efe that all this legal machinery is not intended for a pandemic and believe that not taking your child to school due to the health risk fits a just cause. “You cannot equate the school absenteeism from before with that which may occur after the pandemic,” she adds, especially on the criminal issue, which is already “very exceptional.”

Home schooling

Now, there is a modality that runs through the field of legal loophole, which is home schooling, a regulated figure in many countries but not in Spain, under which many parents could rely to justify the absence of their children from school.

Because, beyond the worrying upward trend in pandemic in Spain, the school community assists with uncertainty the start of new course, despite the restrictions imposed by the autonomous communities, which are viewed by many parents with suspicion and mistrust, and who find an alternative in home schooling.

Zapata believes that this may be a “temporary alternative” for these parents, but recommends that they “cover their backs.”

The best thing, he says, for those who choose to school at home would be to do so by asking the school for permission, to indicate a follow-up, to have a dossier of the minor’s activity ready and to report to the Ministry of Education to record that this child he is being educated at home, that is, everything is documented and I will not lead to legal problems.

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