NHRC issues recommendation to Education and Human Resources Development Minister to reform practices that interpret guardianship as restricted to only those having parental authority (05-12-2003)
The National Human Rights Commission (NHRC) found that the practice of restricting the term "guardian" to only the parent vested with parental authority when applying the Enforcement Decree of the Elementary and Secondary Education Act (article 21: clause 3) is discriminatory behavior that violates (1) the right to the pursuit of happiness (Constitution, article 10) as well as (2) the right to equality before the law (Constitution, article 11) of an elementary school student reared by a person other than the parent with parental authority. As such, the NHRC issued a recommendation to the Education and Human Resources Development Minister to reform internal practices that violate these rights. The case came about when Ms. Kim brought a complaint against the Education and Human Resources Development Minister in August 2002 when the elementary school her son had been attending refused to grant a request for school transfer on the grounds that even though she was rearing the child, she lacked official "parental authority."
As the mother of elementary school student Yoo, complainant Kim had reached an agreement with Yoo"s father at the time of their divorce in 1999 such that Yoo"s father would have the right to parental authority and the complainant would have the right to rear the child (have custody of the child). Because of personal issues, complainant Kim granted Yoo"s father temporary custody rights from 2000 to 2002. However, in December of 2001, when the young Yoo sought out his mother expressing his hope that he could live with his mother, Kim began discussions with Yoo"s father over the custody issue. In February 2002, Yoo"s father forcefully abducted the young Yoo, who had gone back to his mother"s house, and physically injured the complainant. In the same month, the Incheon Regional Court issued a restraining order to Yoo"s father prohibiting him from entering a 100 m radius around the complainant"s place of residence.
Shocked by these events, the young Yoo began receiving treatment at a neuropsychiatry center. In the same month, the complainant went to Yoo"s elementary school explaining Yoo"s family troubles and requested that Yoo be transferred to another school. However, the principal rejected her request citing that the complainant was not the person vested with official parental authority but merely a divorced woman. The Busan Regional Court, then adjudicating the change of parental authority and custody issue, issued a preliminary decision that "temporarily, the right to parental authority and custody shall be granted to the mother, Ms. Kim" and recommended that the district office of education allow Yoo to transfer schools without an official change of residence.
The Enforcement Decree of the Elementary and Secondary Education Act (article 21: 3) stipulates that: "Where the principal of an elementary school deems that it is necessary to change the educational environment for a student due to the student"s misfit [difficulties adjusting to] in his school life or for family reasons, he may request the student"s transfer to the head of the district office of education with the consent of either of the student"s guardians." This clause was created so that students requiring a change of educational environment--owing to family reasons or being bullied at school--would be ensured, without regard as to whether the student has changed official residence, the right to an education.
The NHRC investigation found that cases--in which the principal refused to recommend transfer of schools despite the request (consent) of a guardian because the school only recognized persons vested with parental authority as guardians and such persons did not consent--occurred often. Furthermore, among the cases in which the parents were divorced, there was even a case in which the father, who was vested with parental authority, was beating the child, but when the mother, who had custody of the child, requested that the child be transferred to another school the principal refused to allow the child to transfer.
In citing article 21:3 of the enforcement decree, the NHRC is not so much focusing on the rights of those with parental authority or guardians, but rather on a child"s right to an education. Thus, persons who have custody and are actually rearing the child, even though not vested with official parental authority, should be considered a guardian even in cases where the student requires a change of environment [transferring to a school not in his/her official residential district] because parents are divorced or there is domestic violence.
Relating to the argument that strife may result between persons with parental authority and persons with custody, the NHRC has taken the position that "Even if there is the possibility that contention may arise, the school principal must, in order to ensure that the elementary school student can exercise his right to an education in a better environment, decide first, whether the child needs to be transferred."
