No legal basis for mask obligation for children aged 6 to 10 in schools

No legal basis for mask obligation for children aged 6 to 10 in schools
Photo by Kelly Sikkema on Unsplash

The face mask obligation for children aged 6 to 10 in schools since 6 December has no legal basis in Belgium, according to a ruling by the Council of State on Tuesday.

After the decision to expand the obligation to children from 6 years old was made by the Consultative Committee in early December, several parents went to the Council of State to have that decision annulled.

“The Council of State has ruled that there is no obligation to wear a face mask for school children aged six to nine. This means that what was discussed at the Consultative Committee was not transposed into law,” lawyer Joost Bosquet told VRT.

Bosquet assisted the parents of three children in their case to have Government’s decision suspended, but the Council of State now stated that this is not possible, because there is no formal decision in the first place.

The obligation to wear a mask from the age of six was only communicated in a newsletter, not by Ministerial or Royal Decree, the Council of State ruled.

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For the different education umbrella organisations, the ruling did not come as a big surprise, as both Catholic Education Flanders and the Community Education had already pointed out to Education Minister Ben Weyts (N-VA) that a legal basis for the rule was lacking.

In principle, each school could also include the compulsory use of masks in its school regulations individually, but Bosquet would not recommend that approach.

“What one could consider, however, is to make it a recommendation and to ask the parents to cooperate with the measure in question,” he added.

“The schools are now left out in the cold. They have often referred to the obligation imposed on them by the government to enforce this mask obligation,” Bosquet said. “Now it turns out that this obligation has no legal basis.”

Minister Weyts communicated that lawyers are studying the ruling. In practice, there is still some time to work out a solution: primary schools have an extra week of holidays this week, and the obligation only lasted until the Christmas holidays.

However, should the obligation be extended after the holidays, a legal basis will have to be created. Otherwise, face masks for pupils young than 10 will have to remain a recommendation rather than an obligation.

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