Ministry of Education and Human Resources Development accepts NHRC recommendation to rectify discriminatory practices
The National Human Rights Commission (NHRC) was served notification on 14 August 2003 that the Ministry of Education and Human Resources Development had positively accepted the NHRC May 2003 recommendation to rectify discriminatory practices, based in the Enforcement Decree of the Elementary and Secondary Education Act (hereafter, “enforcement decree”), that discriminate against parents not formally vested with the right to “parental authority.”
The original case came about when Ms. Kim—who had raised her child after her divorce—was disallowed from transferring her child to another elementary school on the grounds that even though she was rearing the child, official "parental authority" lay with the child’s father. She filed a NHRC complaint against the Ministry of Education and Human Resources Development (hereafter, “Education Ministry”) charging that article 21(3) of the ministry-drafted enforcement decree “did not clearly identify who the ‘guardian’ is, thereby allowing a person who is, in reality, acting as the parent and raising the child, to be subject to disadvantage.”
The NHRC had found that wording in the enforcement decree precluded persons raising the child in reality from granting permission for school transfer or otherwise acting as (parental) guardian in the official capacity; however, such preclusions violate the elementary-school child’s right to pursuit of happiness (Constitution, article 10) and violate the right of equality (Constitution, article 11) of the person who is raising the child. Thus, the NHRC had concluded that the refusal of school transfer, based on the enforcement decree wording, constituted an act of discrimination and issued a recommendation to the Education Ministry to reform practices so as to recognize persons acting in the parental capacity.
The 14 August 2003 Education Ministry notification to the NHRC included the following points.
Regarding transferring schools for the child, who had been physically abused by his father, the Education Ministry wrote that: (1) it was possible for the child to transfer schools in the absence of a change in permanent address by his father, (2) the child’s right to an education and protection of the child’s human rights were the foremost concern, (3) the ministry will undertake urgent measures, such as transferring schools, when such cases come up to protect children being abused, and (4) keeping in mind the Special Act on Punishing Crimes of Domestic Violence, the ministry would facilitate the transfer of the elementary school student highlighted in the NHRC complaint.
