Introduction

The communication, E.P. and L.B. v. Belgium, submitted to the UN Committee on the Rights of the Child ('CRC Committee') tackles the obligations of States Parties in relation to the rights of children in educational settings where questions of assessment of academic performance and access to tertiary education are raised.

Outline of the Substantive Issues

On 25 March 2021, E.P. (a Belgian Romanian dual national) and her son L.B. (a Belgian national born in 2003), represented by counsel, submitted a communication to the CRC Committee. The communication alleged the violation of L.B.’s rights under CRC articles 2 on non-discrimination, 3 (1) on the best interests of the child, 19 on protection from all kinds of violence, 28 (1) (c) and (e) on the right to education in relation to accessibility of higher education and regular attendance, and 29 on the aims of education. At the time of the application, L.B. had been attending his fifth year in secondary education at Lycée Molière as a ‘non-enrolled’ student (élève libre) due to the restrictions with which he completed his fourth year at this previous institution of secondary education, Centre Notre-Dame-des-Champs. The restrictions pertained to being excluded from the general stream of Belgian secondary education in which he was previously enrolled. The status as a non-enrolled student allowed L.B. to continue studying but impeded him from obtaining certificates and diplomas, thereby preventing him from accessing further education.

The communication’s subject matter related to whether a restriction placed on L.B. after the completion of his fourth year at Centre Notre-Dame-des-Champs, requiring him to change streams in secondary education to the exclusion of the general and transitional technical streams that give access to tertiary education or repeating his fourth year. This restriction had the consequence of preventing L.B. to access tertiary education which was alleged by the applicants to have constituted a violation of his rights under the above mentioned articles of the CRC.

The applicants noted a number of compounding factors leading to the deteriorating academic performance issues, which were at the root of the restrictions placed on L.B. at the completion of the fourth-year of secondary education. These included alleged stigmatising behaviour and bullying from teachers and fellow pupils experienced by L.B, due to having had to repeat a year of study as well as to the discrimination and racist name-calling that ensued linked to his Romanian ethnic origins. It was alleged that a final compounding factor was the school closures due to the COVID-19 pandemic starting in March 2020, leading to a loss of interest in school as L.B. was no longer able to receive additional extracurricular support for school as he was no longer able to meet his tutor.

As L.B.’s academic performance was suffering and alleged issues of stigmatisation and bullying were not resolved directly within the institution L.B. was attending, L.B.’s mother requested mediation services from the Wallonia-Brussels Federation, which oversees the French language secondary education. E.B. noted in written communication to the mediator that the bullying incidents targeting L.B. continued (some recorded by mobile phones) and led to the suspension of a number of students for several days by the school. Within several months (by June 2020), improvements were noted by the mediator as well as E.P. in relation to measures put in place by the school as well as to L.B.’s academic performance at school and the mediation was ended. In the meanwhile, schools were closed in March 2020 due to the outbreak of the COVID-19 pandemic.

In April 2020, a Ministry of Education Circular (no. 7560) entitled “Coronavirus Covid-19 : Sanction des études 2019-2020 Questions spécifiques à l’enseignement qualifiant et en alternance” (Coronavirus COVID-19: Educational Sanctions 2019-2020 Questions specific to qualifying and alternating education). This Circular provisionally suspended existing regulations and tasked the class councils at schools (ad hoc bodies chaired by the school director or deputy and including all of a student’s teachers) with deciding whether students passed or failed the school year. In addition, the Circular instituted some further standards. For instance, according to the Circular, repeating a year became an exceptional measure and postponements became possible but again exceptional. The Circular entailed that such decisions be taken in ‘dialogue’ with the parents and the students. L.B.’s school informed the parents of students attending the school that the standards contained in the Circular would be applied.

In May 2020, the end of year examinations were cancelled across Belgium due to the COVID-19 pandemic and the class council of the Centre d’Enseignement Secondaire Libre Notre-Dame des Champs decided on the passing/failing status of each student using information available to it. The class council considered that L.B. failed various subjects that accounted for “20 hours of classes, or nearly two thirds of L.B.’s programme”. (para 2.16 of the Decision) This resulted in L.B. being issued an “attestation d’orientation B (AOB)”, “a restricted orientation certificate” stating that he would be admitted to the fifth year. However, L.B was excluded from general and transitional technical streams and could only enroll in the technical stream. The only way in which L.B. would be able to continue in the general stream was to retake the fourth-year examinations. The applicants argued that doing so may lead L.B. to drop out of school, without substantiating their reasons for this argument.

The communication to the CRC Committee alleged that L.B. had been discriminated against due to his parents’ migrant background and his ethnic origins and the disadvantages he experienced given that students from more affluent backgrounds had better conditions during the COVID-19 school closures. The communication alleged also that L.B.’s best interests had not been taken into account by the former institution he was attending in ensuring his plans for higher education in social sciences or humanities. Finally, the complaint alleged that L.B.’s right to education on the basis of equal opportunities had been violated.

Procedural Issues

L.B.’s mother E.P. appealed the decision to the Appeals Board but this appeal was dismissed. The dismissal of the Appeals Board was taken to the Appeals Council of the Wallonia-Brussels Federation and rejected. The applicants, represented by counsel, challenged the restrictions placed on L.B. at the completion of his fourth-year before the Belgian Council of State, which is the highest administrative authority in the country, asking for a reversal of the decision as well as an urgent request for provisional suspensive measures but their request was rejected in October 2020.

When submitting the communication to the CRC Committee, the applicants and their counsel asked that the CRC Committee recommend interim measures that would allow L.B. to return to the general education stream at his former school (Centre Notre-Dame-des-Champs), effectively nullifying the restriction that had been placed previously, which required him to change streams. This request for interim measures was rejected by the Working Group on communications, acting on behalf of the CRC Committee, on 7 April 2021, meaning that the Committee did not consider the circumstances around the complaint as having the possibility of instigating irreparable harm to L.B.

Findings

The CRC Committee declared the communication inadmissible under CRC OP3 Article 7(f) for being manifestly ill-founded and lacking substantiation.

The CRC Committee noted the broader principle that relevant national authorities in States Parties have the prerogative to assess factual situations and interpret and enforce domestic law accordingly. As such, the assessment of national authorities would have valid barring situations where this was “clearly arbitrary or amounts to a denial of justice” (para. 4.3 of the Decision).

In this case, given that L.B. had problems with regards to academic performance (failed subjects) before the beginning of the COVID-19 pandemic as well as any bullying allegedly suffered as well as after, L.B.’s unfavourable academic assessment by the class council was not considered by the CRC Committee to be arbitrary or amounting to a denial of justice.

Commentary

Despite having been found inadmissible by the CRC Committee, the communication raises the important issue of the role of the CRC Committee and its review under the communications procedure, particularly in relation to State obligations under the CRC and how States Parties ought to discharge them, as well as the standards of review applicable to acts and decisions of States Parties.

A first observation that may be drawn from the CRC Committee’s decision on the communication concerns its role under CRC OP3. The CRC Committee has noted in its inadmissibility decision that its role is not “to take the place of the national authorities and assess the facts and evidence, but rather to ensure that their assessment was not arbitrary or tantamount to a denial of justice and that the best interests of the child were a primary consideration in that assessment”. (para 4.3 of the Decision) This wording points to an overall conceptualisation of the relationship between the CRC Committee and States Parties as one based on subsidiarity and the espousal of a principle of review as the core function of the Committee under OPIC.

The CRC Committee underscores its deference to national authorities and their policy choices in discharging their obligations under the CRC. It is, therefore, up to the States Parties (and not the Committee or other external institutions) to decide how best to achieve their public policy aims while remaining within the framework of the CRC. Accordingly, the CRC Committee implicitly concludes that it is at the discretion of Belgium (or any other State Party) to devise its own national assessment procedures for standards of academic performance and to attach consequences to failure to meet these standards (such as having to switch tracks or being unable to pursue tertiary education), which may amount to limiting access to certain components of a right protected under the CRC. Similar arguments may be found in the jurisprudence of the European Court of Human Rights (ECtHR), which refers to the “margin of appreciation” of States Parties to the European Convention in enforcing the rights contained in the Convention, particularly in assessing whether limitations of certain rights amount to violations.

The decision of the CRC Committee in E.P. and L.B. v. Belgium raises the interlinked issue about the standards of review applicable to the decisions of States Parties regarding a given right under the CRC, particularly. The CRC Committee takes the view that limitations on the enjoyment of a right remain within the discretion of a State Party and are therefore not subject to the review of the CRC Committee as long as the process whereby said limitations are put in place respects three standards: (1) that it is not arbitrary, (2) that it does not amount to a denial of justice, and (3) that it uses the best interests of the child as a primary consideration. (para 4.3 of the Decision) The CRC Committee, in its above mentioned review role, therefore also implicitly establishes standards of lawful limitations to children’s rights. When applicants want to avail themselves of the review role of the CRC Committee regarding national decisions, they ought to substantiate arbitrariness or a denial of justice. In addition, a concrete substantiation of how the measure/decision has not taken into account the best interests of the child as a primary consideration should be made. Although the CRC Committee does not expressly mention how its appraisal of national decisions of Belgium has been carried out, from its assessment of the academic situation of L.B. pre-pandemic and prior to alleged bullying, and during the pandemic and after the alleged instances of bullying (in both cases failing a number of subjects) suggests that the Committee is undertaking a “reasonableness” test against which to measure Belgian authorities’ decision with respect to the requirements imposed with respect to L.B.’s continuation of secondary education.

The COVID-19 pandemic is not seen as a significantly important contributor to L.B.’s academic weak performance based on the fact that his pre-pandemic academic performance had also demonstrated his failing of a number of courses.

The decision in E.P. and L.B. v. Belgium has allowed the CRC Committee to put forward the essence of its doctrinal approach by deferring to the discretion of States Parties in the implementation and enforcement of children’s rights and crafting its role as one of review. On the other hand, the CRC Committee has missed an opportunity to define the contours of the proverbial ‘margin of appreciation’ given to States Parties in discharging their obligations under the CRC in relation to the content of specific rights in question. Unfortunately, there is also no discussion about whether the leeway given to State authorities may be more constrained or greater depending on the nature and content of the right in question or certain components of rights.

The right to education as set out under Art. 28.1 CRC entails an obligation to be realised progressively. Under Art. 4, the CRC notes that “[w]ith regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources”. While Art. 28.1(a) establishes a State obligation to “[m]ake primary education compulsory and available to all”, obligations regarding secondary and tertiary education are much less absolute. Accordingly, secondary education may take different forms (general and vocational) and States Parties have an obligation to make it “available and accessible to every child” including through free education or financial assistance if needed (Art. 28.1(b)). As for tertiary education, the State Party obligation is limited to making it “accessible to all on the basis of capacity”. Hence, there is much greater leeway accorded to States in the Convention itself with respect to the accessibility of tertiary education.

It is unclear whether a State Party’s prerogative maybe greater when it approaches certain rights that are subject to progressive realisation, such as the right to education. It is also unclear whether States Parties can have even more flexibility in relation to secondary education and tertiary education for which there are less stringent obligations incumbent upon States Parties compared to primary education in the CRC itself.

The inadmissibility decision of the CRC Committee in E.P. and L.B. v. Belgium has also meant that some of the substantive allegations in the communication in relation to discrimination and to State obligations with respect to the impact of the COVID-19 pandemic remain unaddressed.

The right to education is a right to be achieved “on the basis of equal opportunity” (Art. 28 CRC). The Committee could have, even within its inadmissibility decision and without dealing with the particular merits of the communication in question, addressed the nature of the State obligations and whether they are heightened with respect to equal opportunity and best interests of the child when adverse impacts of the COVID-19 pandemic are compounded by marginalisation due to socioeconomic factors or discrimination based on identity.

Overall, E.P. and L.B. v. Belgium is an important case in the jurisprudence of the CRC Committee as it has allowed the Committee to articulate further on its role in the enforcement of children’s rights under the CRC and the framework within which it considers that role. The CRC Committee seems to be preferring a more prudent stance in this particular inadmissibility decision by not venturing beyond procedural points, which results in leaving a number of more substantive questions in relation to the allegations around discrimination and the impacts of the COVID-19 pandemic unanswered.