Education

The Chancellor receives many petitions from parents complaining that not enough kindergarten places are available for their children of creche age.

Under the Preschool Childcare Institutions Act, a rural municipality or city must give a kindergarten place to each child at least 1.5 years old whose residence is within the boundaries of that rural municipality or city and coincides with the residence of at least one of the parents. A rural municipality or city has complied with its duty if it gives a family a kindergarten place within a reasonable time. Merely placing a child in a queue for a kindergarten place is not sufficient.

The state should understand that even though the law requires a local authority to ensure a kindergarten place, all in all the shortage of kindergarten places is not just the problem of occasional families or merely local authorities. Under the Constitution, provision of education falls under state supervision. If a local authority is unable to comply with the law and regularly leaves parents in trouble, the state must intervene.

Problems still exist with organising school transport and education for children with special needs. Problems related to hobby education have also been the same throughout years: issues arise in connection with the funding of hobby education and local government benefits.

Preschool education

The Chancellor receives many petitions from parents complaining that not enough kindergarten places are available for their children of creche age.

Ensuring a kindergarten place

According to the law, a local authority must give a kindergarten place to each child at least 1.5 years old whose parent expresses a wish for this. If a local authority has failed to comply with this requirement, the Chancellor will explain to parents their right and how they can defend their rights in court, if necessary.

Many parents have had recourse to court with a complaint about having been deprived of a kindergarten place, and extensive case-law has developed based on these cases. According to the courts, a family must generally be given a kindergarten place within two months of submission of an application. The courts have ordered local authorities to provide kindergarten places, and local authorities have also complied with court decisions. The courts have also ordered local authorities to pay compensation for the costs incurred by the family because the local authority had failed to give them a kindergarten place within a reasonable time.

In her opinion to the Supreme Court, the Chancellor emphasised that, according to the Constitution, local authorities may not refuse to comply with the law. Through the population register, cities and rural municipalities can generally find out how many children of kindergarten and school age live in their territory and how many children will soon reach kindergarten age. A local authority can also give a family a kindergarten place in cooperation with a neighbouring municipality or a private kindergarten.

In view of this, the Chancellor concluded that the provision in a regulation of Rae rural municipality, which made obtaining a kindergarten place dependent on the availability of a vacancy in the relevant age group in the kindergarten, was unconstitutional. The Supreme Court agreed with the Chancellor and acknowledged that the provision in question was unconstitutional and invalid (judgment in case No 5-22-10).

In its decision, the Supreme Court noted that both the state and local authorities are responsible for access to preschool education. They both have a responsibility to find a systemic solution to the problem that will enable children to receive preschool education and help families reconcile their professional and family lives. In the opinion of the judicial panel, a situation cannot be allowed in which the availability of public services largely depends on the extent to which a city or rural municipality decides to fulfil the obligations imposed on it by law (judgment No 5-22-10, para. 58).

The Chancellor is convinced (reply to a question by a member of the Riigikogu) that the state as a whole is ultimately responsible for access to education, including preschool education. Under the Constitution, provision of education falls under state supervision. Consequently, the state must be active in case it is found that a service that is so important for children and families is not provided as prescribed by law. The fact that it is possible for parents to claim compensation from the local authority directly or through the court, or that in some places social benefits are paid if the local authority violates the law and fails to offer a kindergarten place, does not solve the problem and does not comply with the principle of the rule of law. Laws must be complied with.

Availability of a kindergarten place

Many parents have considered a kindergarten place offered to them as unsuitable, since in the family’s opinion, the kindergarten is located unreasonably far from home.

According to the Chancellor’s assessment, the law does not give a parent the right to get a kindergarten place in the specific kindergarten that the parent prefers or that is closest to their residence or place of work. It is important that the child has a reasonable opportunity to attend kindergarten, taking into account public transport timetables or the time required for a car trip and related costs (see Tallinn Court of Appeal judgment in case No 3-21-336).

When resolving a petition concerning this issue, the Chancellor concluded that the particular municipal council had not acted manifestly unreasonably when designating kindergarten service areas. What is important is that the kindergarten service should be available to a family.

In another case, the Chancellor explained that a travel time between 10 and 15 minutes cannot be considered excessively tiring or burdensome for a child. However, since the child cannot go to the kindergarten on foot, the parent has the right to assume that the local authority will arrange a transport opportunity for the family, if necessary. It should be borne in mind that a kindergarten day, which also includes going to the kindergarten and time spent on the trip home, should not be excessively long and tiring for a child.

The amount of kindergarten fees and seasonal closure of a kindergarten

The Chancellor was also asked about kindergarten fees. Parents were concerned about the increase in place fees as well as the differential treatment of families, and the summer place fee.

The Chancellor found that, as long as the municipal council does not exceed the statutory decision-making limits when increasing the kindergarten fee, the Chancellor cannot interfere in determining the fee. The city council may decide how to divide the maintenance burden of kindergartens between the city budget and families, i.e. service recipients.

It is certain that the kindergarten fee may not exceed 20 per cent of the minimum wage established by the Government of the Republic. However, the law allows the municipal council to differentiate the kindergarten fee, taking into account a child’s age, the management costs of the childcare institution, or other circumstances. The Chancellor considered the grounds for differentiation established by a regulation of Pärnu City Council (existence of a swimming pool, location of a childcare institution in the city) to be reasonable and permissible.

The Chancellor further explained that families who cannot afford to pay the fee can apply for assistance from the city or social benefit from the state to pay it, or ask to be exempted from the place fee, if the municipality has laid down such a possibility.

Analysing the procedure for paying kindergarten fees in Saku rural municipality, the Chancellor came to the conclusion that the municipal council may also decide that families pay the same amount of fee every month. That way, the fee is not higher in winter months, nor is it lower in summer. Although this solution may seem unfair to parents, it fits within the frame of the law.

One parent asked why the kindergarten was closed after the Christmas holidays, i.e. from 27 to 31 December. The Chancellor explained that, although a child is entitled to attend kindergarten throughout the school year, the kindergarten may still be seasonally closed if the rural municipality or city government so decides on the basis of a proposal from the board of trustees. This decision was not arbitrary and it was announced early on so that parents could reckon with the temporary closure of the kindergarten. The municipality offered childcare as a replacement service for families during that period.

A petitioner enquired whether a provision in Keila City Council regulation, according to which the rate of the kindergarten fee is lower if both parents are registered as residents of Keila city, and higher if only one parent is registered as a resident of Keila, was compatible with the principle of equal treatment. The Chancellor concluded that a local government has a constitutional right to give preference to residents of its community when granting voluntary benefits and support. However, in no case (including when only one parent is the city resident) may the kindergarten fee exceed the upper limit set for the place fee.

A petitioner also asked about the difference in the kindergarten fee established by Saue Rural Municipal Council. According to the procedure set by the council, the kindergarten fee for children over three years of age is two times lower than the fee for younger children. The Chancellor maintained her earlier opinion and explained that introducing a more favourable fee for children over three years of age can be considered a voluntary benefit or support offered by the municipality. Such a benefit does lead to differential treatment, but a reasonable and relevant justification exists for this: to motivate parents of children between the ages of three and seven to put their children in kindergarten in order to support the child’s development.

Cooperation of a kindergarten with parents

Complaints from several parents revealed that some kindergartens continued to enforce restrictions imposed due to the Covid-19 epidemic and did not allow parents into kindergarten premises if parents wanted to take a closer look at life in kindergarten groups.

The Chancellor explained to the parents that the kindergarten cannot impose such a blanket ban. Parents have the legal right to see the conditions in which the child spends a large part of their day, since the child’s well-being is primarily the responsibility of the parent. Nor can state supervision replace observations by parents. How parents can get the best overview of the conditions in kindergarten should be decided by the kindergarten together with the parents.

The laws do not regulate how the process of getting used to the kindergarten should take place. The presence of a parent can give the child a greater sense of security and help the child adapt to kindergarten life faster. A parent may wish to evaluate how a particular kindergarten and group suit the child and how the parent can help the child adapt. If parents and kindergarten staff do not reach an agreement on arrangements for adapting a child to the kindergarten, it is worth seeking advice from a child psychologist or educational scientists.

Kindergartens have asked the Chancellor for recommendations on how to interact with a parent who behaves aggressively. The kindergarten must ensure a safe working environment for its staff. Internal rules may regulate how to organise communication between a parent and the childcare institution. It is possible to use several communication channels, but none of them can be completely excluded for security reasons. A kindergarten teacher should receive mental support to cope with conflicts or other difficult situations, for example, from a psychologist.

The Chancellor was also asked about outdoor activities of kindergarten children, specifically how many times a day children should go outside in kindergarten. According to the regulation laying down the health protection requirements for a kindergarten, a child must go outdoors once or twice a day, depending on the weather; and, in good weather, as many activities as possible must be organised outdoors. The Chancellor explained that the statutory ratio of kindergarten staff to children must be guaranteed both indoors and outdoors, i.e. during the entire working time of the group.

The issue of the midday nap of children was raised. Based on her earlier opinion, the Chancellor explained to both the parent and the kindergarten concerned that a child over the age of four should be able to choose between sleep and quiet activities. On the other hand, the daily schedule of childcare (including the time of a midday nap) is determined by agreement between the childcare facility and the parent. Whether a child needs any daytime sleep is primarily for the parent to assess. If childcare staff notice that a child needs a midday nap and wishes to sleep during resting time, but the parent believes that the child does not need such a long sleep period as prescribed by the daily schedule, the parent should discuss the child’s need for sleep with the childcare staff and the best solution for the child should be found together.

A child with special needs in a kindergarten

Under the law, all children from the age of one-and-a-half to seven years must receive a kindergarten place if their parents so wish. No distinction is made with regard to children with poorer health or those needing additional support at a kindergarten. Although legislation and sectoral development plans have deemed it important that a child’s special need is noticed at an early stage and the child is quickly offered effective assistance, the actual situation is often different. It still happens that a parent must battle to obtain a support service or a place in an adaptation or special group for their child.

The Chancellor was approached by a parent to whom the rural municipality refused to reimburse expenses incurred in connection with the child’s speech therapy. The pre-school counselling team had identified that the child needed the help of a speech therapist, but this was not provided in kindergarten. The Chancellor explained that a child is entitled to receive free speech therapy in kindergarten. Timely treatment increases the likelihood that the child’s need for assistance will decrease when going to school. A municipality cannot refuse to provide support to a child due to the fact that there is no speech therapist in the kindergarten. If a local authority places performance of its task on a parent, the local authority must at least reimburse the expenses incurred by the parent.

In another similar case as well, the Chancellor had to explain to the local authority that, although the child receives speech therapy on a small scale within the frame of a rehabilitation service, has a support person in the kindergarten and the kindergarten staff support the child, this does not give the kindergarten the right not to arrange assistance by a speech therapist and a special education teacher for the child. The kindergarten must follow the recommendation of the external advisory team (Rajaleidja).

The Chancellor was also approached by a parent whose child with diabetes could not attend kindergarten because no sufficient support was provided there. The Chancellor’s advisers contacted the local authority, and subsequently the city, in cooperation with the kindergarten, found a solution to the problem: a support person was appointed for the child, the procedure for substituting the support person was agreed, and the kindergarten prepared itself to support the child diagnosed with diabetes.

The Chancellor also had to investigate a case where kindergarten teachers restricted the interaction and play together of children with special needs, as parents of children with special needs feared that interaction between children with different levels of development might have a negative impact on some children.

The Chancellor emphasised that the kindergarten management and teachers must proceed in their work from the best interests of the child. If a decision concerns several children, this principle requires that the interests of each child should be ascertained before a decision is taken and a solution must be found that best meets the interests of all children.

According to an expert who assessed the situation, studies suggest that if meetings between children with different levels of development are well organised then no negative consequences have been observed in the interaction among children. On the contrary, interaction between kindergarten groups with different levels of development can be beneficial for all children. Teachers need to think through such joint activities taking into account the specific needs of children, and to guide and support children. The expert also noted that a disparaging attitude is often caused by parents’ own fears and ignorance. Kindergarten teachers can dispel those fears.

General education

Compliance with the duty to attend school

The Chancellor of Justice was asked whether a Ukrainian child residing in Estonia can be exempted from the duty to attend school in Estonia if the child studies at a Ukrainian school online. The Chancellor explained that, according to Estonian law, a child residing in Estonia and subject to the duty to attend school must attend an Estonian school. This also applies to children who moved to Estonia from Ukraine due to the war. The Chancellor added that, understandably, the duty to attend school does not extend to those who have come to Estonia for a short period. However, if a child lives in Estonia, they must also attend school here.

Compliance with the duty to attend school also arose in connection with a petition in which the parent expressed a wish to homeschool their child permanently residing in Estonia, as no school had been found for the children that would organise homeschooling in English. The Chancellor was asked whether children could study at home under the study programme of a school in the United States.

The Chancellor explained that the Constitution and laws support the view that a child subject to the duty to attend school who is permanently residing in Estonia must study at a school located in Estonia. The state must ensure that all children subject to the duty to attend school living in Estonia can attend school and acquire education of such quality and content that is in accordance with the Constitution and laws of Estonia.

Exclusion from school

The Chancellor received a letter from a pupil asking whether a pupil who had created an Instagram account could be expelled from school because another pupil considered a comment published about them on the account as bullying.

The Chancellor explained that if pupils encounter problems at school, an attempt should be made first of all to find solutions within the school. Social media is mostly not a suitable tool for this. An anonymous account opener must consider the consequences of posting offensive information on social media. Under the Law of Obligations Act (LOA), defamation – including by passing undue value judgments, the unjustified use of a person's name or image – is a violation of privacy or another personality right (§ 1046(1)). Defamation or insult may result in an obligation to compensate for harm caused (§ 1043 LOA).

The school must ensure the safety of all pupils, as prescribed by the internal school rules (§ 44 Basic Schools and Upper Secondary Schools Act (BSUSSA)), and the head of the school is responsible for this. The school’s internal rules must state how situations that threaten safety are prevented and cases of bullying resolved. An incident of bullying or violence at school must be reported to the school as soon as possible as well as to the parents of the children involved in the incident.

The head of school is responsible for provision of necessary support to pupils at school. The school may implement support measures and sanctions laid down by the school’s internal rules to ensure that pupils behave in accordance with the internal rules and respect others. Internal rules should prevent the emergence of situations jeopardising safety at school (§ 58(1) BSUSSA). Before taking support measures or imposing sanctions, the pupil’s explanations are heard and the reasons for the choice of the particular support measure or sanction are explained to the pupil. In that case, the pupil and their parent must be given an opportunity to express their opinion regarding the pupil’s behaviour and imposition of the sanction (§ 58(2) BSUSSA).

Exclusion from school is regulated by § 28 of the Basic Schools and Upper Secondary Schools Act. Under that provision, a pupil is excluded from school if, by their behaviour, the pupil jeopardises the security of others at school or repeatedly violates the internal rules, except a pupil subject to the duty to attend school (§ 28(1) clause 4). The law allows the internal rules of upper secondary schools to stipulate additional grounds for exclusion from upper secondary school (§ 28(2)). These additional conditions may also be stricter than those laid down by law.

Exclusion from school is an extreme measure that a school may not apply arbitrarily. It would be reasonable first of all to try and resolve cases of bullying at the school itself. This can best be done in cooperation between pupils, the school and parents, based on dialogue and mutual respect. A school psychologist can help with hearing the parties. Practical advice on what to do in case of bullying can be found on the websites of the Chancellor of Justice and the Foundation Kiusamisvaba Kool.

Restrictions on leaving the school building

A disgruntled parent wrote to the Chancellor that a school security guard had not allowed their child out of the school building on the basis of a notice of absence written by the parent but required confirmation from the class teacher for the pupil to be able to leave.

The Chancellor explained to the parent that the school must ensure the safety of the child and may therefore restrict a basic school pupil from leaving the school building. The school’s internal rules stated that the parent would submit a notice of absence to the class teacher, who would write permission to leave the school, which the child would give to the security guard.

The head of the school explained that the security guard is not part of the school staff and does not have access to information published in the e-school application, so that when allowing children out of the building the guard will rely on permission given by the class teacher. At the same time, the head of the school conceded that the situation described in the petition could have been resolved better, so the child should not have felt uneasy.

Graduating from basic school

The Chancellor was approached by a person in the final year (pre-graduation) at basic school with a concern that due to distance learning it was difficult for pupils to reach at least the 50 per cent threshold required to pass the final exam.

However, the Chancellor of Justice cannot assess education policy decisions. The Chancellor explained that it is also possible to graduate from basic school if a pupil receives less than 50 per cent of the highest possible number of points in one or two final exams. In that case, the pupil can take a re-examination as a school exam. Even if one or two marks in the school examination are unsatisfactory, the pupil can still graduate from basic school and get a school leaving certificate – if the pupil themselves, their parent and the teachers’ council agree.

Help for final-year pupils at basic school in preparing for exams is also available from universities that offer free e-courses for this purpose.

Determination of the place of study

The Chancellor was also approached with an accusation that the school had constantly violated a pupil’s rights. Among other things, the parent and the school did not reach consensus on determining the child’s place of study.

The Chancellor found that organisation of studies outside the school could be carried out on the basis of an individual curriculum. The individual curriculum had to be approved by decree of the head of the school. The head of the school also had to approve an amendment to the individual curriculum that terminated studies outside the school. According to the law, parent(s) must be involved in preparing an individual curriculum, but if no agreement is reached, the head of the school may still approve the curriculum. The parent may challenge the approved curriculum.

The Chancellor recommended that, in the future, the school should proceed from the legal bases laid down by law and the conditions for implementation of those bases when organising studies outside the school for a pupil. The Chancellor also recommended that the school should by decree approve an individual curriculum and changes to the place of study provided therein.

The parent also asked for the position of the teachers’ council of the school on whether and how their child’s instruction for an additional year could be organised in the form of homeschooling. The Chancellor noted that the school had not responded to that request, although it should have done so. The Chancellor recommended that, in the future, the school should respond to parents’ requests as required by law.

Organisation of the route to school

The Chancellor was asked to assess whether a rural municipality government had acted lawfully in organising school transport for a 12-year-old child. The Chancellor concluded that the rural municipality government had failed to follow the principle of good administration (§ 14 Constitution) when organising the child’s school route because it had failed to assess whether the school route was sufficiently safe for the child (§ 16, § 28(1) Constitution) and how this affected the child’s ability and will to learn (§ 37(1) Constitution). The municipality had failed to ascertain the child’s best interests (§ 21 Child Protection Act) or all the relevant circumstances (§ 6 Administrative Procedure Act).

The local authority must organise a pupil’s transport to and back from the school assigned to the pupil based on their place of residence. In this respect, it should be taken into account that the length of walking distance for a child should not be more than three kilometres. The purpose of these requirements is to give an opportunity for the child to receive basic education at the school in their place of residence. When considering transport options, the local authority must also assess how the way to school affects a child’s ability and will to learn. The route to school must not endanger the child’s life and health, nor should it be too tiring. Once at school, the child must be able to learn.

If circumstances change and the transport arrangements no longer meet the needs and best interests of the child, the local authority must reassess the situation.

Depositing smart devices at school

A parent asked the Chancellor if a school may take and deposit a child’s phone without notifying the child’s parent.

The Chancellor explained to the petitioner that the law allows a smart device to be taken and kept in deposit if a pupil violates the school’s internal rules by using it. The legal basis for depositing the device is laid down by the Basic Schools and Upper Secondary Schools Act. Section 58(3) of the Act sets out sanctions which the school may impose on a pupil who violates the school’s internal rules. Under clause 6 of this provision, the school may take and deposit objects (including smart devices) which a pupil uses in a manner incompatible with the school’s internal rules. Smart devices and other objects are stored and returned in accordance with the school’s internal rules (§ 58(5) of the Act).

The Chancellor has explained that the right granted to schools to temporarily take and deposit a smart device or other object complies with the Constitution. The internal rules of the school in question did not include the requirement to notify the parent that the child’s telephone had been taken and deposited.

Quality of school meals

Some parents have expressed dissatisfaction with the quality of school meals. Provision of meals for pupils at school is organised by the local government as owner of the school in accordance with the health protection requirements established on the basis of the Public Health Act (§ 7(2) clause 8 of the Education Act of the Republic of Estonia). Compliance with the requirements for handling food is checked by the Agriculture and Food Board (§ 47(1) Food Act), while the Health Board, in turn, monitors compliance with the health protection requirements at school (§ 15(1) Public Health Act).

The Chancellor has said that a parent can report their concerns to both the school and the caterer. If the problem is not resolved, parents can discuss the issue with the school board of trustees. The board of trustees may make proposals to the owner of the school to resolve issues related to the school (§ 73(1¹) clause 17 Basic Schools and Upper Secondary Schools Act).

Hobby education

Sports and children’s safety

Prompted by an increasing number of cases in recent years in which a trainer has allegedly ill-treated a pupil during training, the Chancellor’s advisers thoroughly studied the requirements imposed on work as a trainer. Potential problems were analysed with trainers, athletes, federations and experts in sports ethics. During the discussions, it was found that safe sport for children is supported if the parent, child and trainer have a uniform and clear understanding among themselves of the aims of engaging in sport. It would be best if the child, parent and trainer discussed together all the rules applicable at a training session, including rules aimed at maintaining order. Agreements help prevent misunderstandings, conflicts and ill-treatment of the child.

The parent should also closely monitor how the child feels. The training load and expectations for athletic performance, as well as school absenteeism due to competitions and concerns about coping at school, can affect a child’s mental health. The parent must support the child and, together with the school and the trainer, help to find the necessary balance between sports, studies and family life.

The parent also makes sure that the child develops healthy eating, sleep and hygiene habits. The parent should also educate themselves about how to recognise a child’s possible ill-treatment and whom to contact with such a suspicion. At the same time, offering guidance during training and competitions should be left to the trainer.

These and many other recommendations were aggregated in the safe sporting guide “Turvaline sport” (Safe sports), about which an information leaflet for children was also prepared.

Discussions with sport experts showed a lack of clear and binding rules in sport as to what kind of behaviour should be considered abuse. It is important to agree on what will be done in the event of a violation of rules and agreements. The Constitution requires that proceedings should always be fair, which also presumes respect for the dignity of all parties.

Supporting hobby education

Parents asked the Chancellor about support for hobby education. For example, the Chancellor had to assess the provisions of the procedure for supporting hobby education in Jõgeva rural municipality. Under this procedure, only young people aged 7–19 who live and study in Jõgeva rural municipality are eligible for support.

In the Chancellor’s opinion, the regulation is not unconstitutional, as the provisions of the regulation can be interpreted constitutionally and support can be paid both to those who study at the schools in Jõgeva rural municipality as well as those who study, for example, at a school in a neighbouring municipality. The Chancellor finds it understandable that the municipality wants to encourage young people to attend the municipality’s own schools. At the same time, several objective reasons may exist why a young person still chooses a school in another local authority (e.g. young people with special needs, young people acquiring a vocation).

In her position, the Chancellor emphasised that acquiring hobby education and engaging in hobby activities are not only an opportunity for a child or young person to spend their free time, but also affect their studies (formal education) and subsequent life. For this reason, it is extremely important that the municipality should guarantee children and young people opportunities to acquire hobby education and participate in hobby activities.

People also asked about the financing of hobby education and hobby activities for children from Rapla rural municipality in the hobby schools of a neighbouring municipality. According to the municipality’s regulation on payment of support, Rapla rural municipality pays a place fee for children attending hobby schools in the neighbouring municipalities. The municipality itself explained the regulation in the same way. The Chancellor noted that, from the point of view of parents, nothing is changed by the fact that part of the money comes from the state budget and part from the municipality’s own budget.

The Chancellor was asked why Saue rural municipality does not support acquisition of hobby education by children of kindergarten age in a hobby school in another local authority, although some local authorities do so. It was explained to the parent that local authorities have different possibilities for supporting children’s hobby education and hobby activities. Local authorities are also fairly free to decide on the conditions under which they will pay support. Therefore, Saue rural municipality cannot be required to support children of kindergarten age in acquiring hobby education in another municipality.