Stephanie Bernet

Das Kindeswohl im Spannungsfeld zwischen Elternrechten und staatlichem Bildungsauftrag

Bedeutung der Berücksichtigung der subjektiven Dimension des Kindeswohls im Rahmen schulischer Dispensationsgesuche


On several occasions, the Swiss Supreme Court had to decide cases of dispensations from swimming lessons or sexual education classes. It had to assess whether such dispensations infringed on the freedom of religion and conscience. All restrictions on fundamental rights must be proportionate. When weighing the different interests against each other, one of the aspects to be considered is the best interest of the child, which has both an objective and a subjective dimension. The former demands that the state primarily consider the well-being of children on a general level, whereas the latter focuses on the specific consequences of a decision for the individual child. This article analyses the development of the Supreme Court’s case law on that matter. It argues that the best interest of the child has to be an independent legal position in the weighing of interests, the subjective dimension being of particular importance.

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