The Marginal Test — Statecraft

What the Supreme Court actually said, what the press made of it, and who has not moved for eight years

On 20 May 2026 Kim Einder published an article on news site NU.nl about “the fate of 2,500 home-schooled children” in the wake of the Hoge Raad, the Dutch Supreme Court, judgment of 21 April 2026.¹ The article reports that the Supreme Court has held that an exemption under article 5(b) of the Leerplichtwet 1969, the Compulsory Education Act, is now possible only “if there is no public school in the neighbourhood”, and then quotes Corien van Starkenburg, a director at Ingrado, the professional association of compulsory-education officers: “For primary schools that is 6 kilometres, for secondary schools 20 kilometres.” Under the heading “Seat of the legislator” the vice-chair Josien van Putten of the Dutch Association for Home Education voices the complaint. The Supreme Court cannot write laws, only interpret existing ones, but “now appears to have taken the seat of the legislator”.

The integral text of the judgment (ECLI:NL:HR:2026:658) shows that none of these elements is correct.² The Supreme Court nowhere names a distance in kilometres. The judgment uses exclusively the open norm “reasonable distance from the home”, taken verbatim from article 5(b) and article 8(1) of the Compulsory Education Act. The cassation court has formulated no legislative interventions, but, as the Supreme Court itself sets out explicitly in legal ground 4.3, a clarification and sharpening of earlier case law in light of European Court of Human Rights case law on article 2 of the First Protocol to the ECHR, in particular the Folgerø line of cases. That is not the work of a legislator. That is cassation work in its most classical form.

The question that the press attribution evades is a different one, and it sits much deeper in time. Why did this judgment land in a field where executive practice had for years no longer corresponded to the statutory norm? Who missed the signals, or left them lying, or could not cash them in? The answer lies not with the Supreme Court and not with the professional association now most in the news. It lies with a legislator who for eight years has ignored emphatic signals from the execution chain.

The actual tightening

What the Supreme Court did do in April 2026 sits at the level of the substantive test, not at the level of an operational distance norm. The earlier Supreme Court judgment of 12 December 2017 (ECLI:NL:HR:2017:3111) is expressly recalibrated on the point of objections to public education. Objections that bear only on the neutral character of public education no longer suffice. An exemption can be granted for public education only where it is concretely established that the education offered at all public schools within reasonable distance fails the standard of conveying knowledge and information in an objective, critical and pluralistic manner. In addition, the test by the leerplichtambtenaar, the compulsory-education officer, must be a full review, not a marginal one, with the case law to date as the starting point. And the State is required to act actively to enforce the Compulsory Education Act, if necessary along the criminal route, in order to safeguard the right to education protected by article 2 of the First Protocol.

That is a substantial tightening at three levels at once. But it concerns the substantive criterion, not the distance. The cassation court has carefully left the term “reasonable distance” open at precisely the point where the factual execution space lies.

The court of appeal observation of October 2024

In the obiter dicta of the appellate judgment of 22 October 2024 (ECLI:NL:GHAMS:2024:2924), passed over by the Supreme Court in full without grounds for rejection, the appellate court observes that the number of exemptions on the basis of weighty objections has “increased hand over fist in recent years”.³ According to figures from the Netherlands Youth Institute: from 800 in 2017 to 2,475 in the school year 2023/2024. The court of appeal then formulates a remarkable finding. The instruction used by compulsory-education officers in their test appears to entail a more marginal review than follows from the case law. A 2023 survey of officers shows that in a quarter of cases the officer has no sight of the religious or pedagogical direction that the parents invoke, and that in the majority of cases parents are only sometimes, or even never, called in to be heard.

The appellate court is flagging a symptom here. What sits beneath it is a much older paradigm shift that the legislator has never anchored.

The paradigm shift since 2017

In its position paper of 3 April 2025 Ingrado documents that the chain partners — including compulsory-education officers and the Child Protection Board — have since 2017 worked with the Methodische Aanpak Schoolverzuim (MAS), the Methodical Approach to Truancy.⁴ Its focus is on deploying youth assistance for truancy with underlying problems. Compulsory-education officers work increasingly preventively, by entering into dialogue with juveniles absent for less than 16 hours in 4 weeks. As a result the number of police-style reports for truancy has dropped dramatically over the past decade. The association describes a paradigm shift from a focus on absence to a focus on attendance, and from the behaviour of juveniles and parents to a more systemic approach.

The Compulsory Education Act has not moved with it. It contains no preventive tasks for compulsory-education officers. The focus on offering support instead of enforcement is not in the law. “Because the Compulsory Education Act has not changed along with it,” the paper says, “ever greater differences arise between the approaches to truancy across compulsory-education organisations”. What the appellate court flagged in 2024 as a marginal review is therefore no sudden derailment but the state of affairs in a chain that has spent eight years asking for legislative anchoring of a paradigm that had long been in practice.

A statutory norm from 1969 that does not move with an executive practice from 2017, a professional association that annually presses for revision, and a political system that does not move: that is no derailment, that is a chain that quietly grows apart.

The Public Prosecution Service decision of 7 April 2025: unilateral and a surprise

On 7 April 2025 the Openbaar Ministerie, the Public Prosecution Service (OM), announced that it would no longer accept article 5b cases requiring a substantive weighing of directional objections, on the grounds that the test framework with which the compulsory-education officers assess these exemptions is insufficiently clear and that divergent rulings of the courts of appeal do not form a unified line.⁵ The Ingrado position paper of 3 April — drafted four days earlier on the basis of a meeting on 24 March 2025 between the Public Prosecution Service, Ingrado, the Child Protection Board and the Ministry of Justice and Security — states verbatim that the decision came “as a surprise” to Ingrado. The association considers the “immediate halt” not to be in the interest of the right to education, and fears a stronger rise in exemption numbers precisely because the compulsory-education officer can no longer invoke downstream consequences.

That is an important correction of the frame in which the marginal review appears sectorally formed. The Public Prosecution Service decided unilaterally. The paper even notes that “the news of the position of the Public Prosecution Service has already led to complaints, requests for apology and damages claims filed with compulsory-education services” and that “on social media calls appeared to no longer share statements or lists of schools”. The Public Prosecution Service decision moved executive practice further from the statutory norm in a single week than eight years of paradigm shift had done.

The guidance of 23 May 2025 as damage control

Into that field arrives, on 23 May 2025, the Ingrado Handreiking formele vereisten artikel 5 onder b Leerplichtwet, the “Guidance on formal requirements of article 5(b) of the Compulsory Education Act”.⁶ The guidance was produced after many conversations with the Public Prosecution Service and is intended to “limit that rise as far as possible and provide more clarity about the cases in which the Public Prosecution Service would still consider prosecution”. It restricts the test by the compulsory-education officer explicitly to the formal requirements of articles 5, 6 and 8 of the Act. The substantive test of the weight and concreteness of the objections raised is, for practice, released, because the Public Prosecution Service can no longer support that test through criminal enforcement in any case.

That is not a sectoral formalisation of the marginal review, that is damage control in a field where criminal enforcement has fallen away and where both Ingrado and the Public Prosecution Service acknowledge that the Compulsory Education Act offers “no anchor points” for a substantive test framework. The Secondary Education Partnership Amsterdam-Diemen reports on its website that Compulsory Education Services Amsterdam will work according to this guidance: “A substantive test is no longer carried out, because the Public Prosecution Service (OM) no longer prosecutes such cases.”⁷

The distinction between “sectoral norm” and “damage control” is crucial for the institutional reading. In the first case there is an association that knowingly formulates a norm against the case law. In the second case there is an association that, within a vacuum created by others, tries to give its members some grip. Ingrado is, on the evidence of its own position paper, the second party. It even argues for the abolition of article 5(b) and for a statutory regulation of home education with supervision. That is a position legally substantially more far-reaching than what the Dutch Association for Home Education or the Netherlands Youth Institute advocate. The association is therefore not the executive organisation that hollowed out the norm; it is the professional association explicitly pressing for legislative intervention that would anchor the paradigm shift in law.

The administrative fragmentation between Justice and Education

One institutional detail from the position paper deserves separate attention. The meeting at which the Public Prosecution Service announced on 24 March 2025 its intention to stop handling article 5b cases took place between the Public Prosecution Service, Ingrado, the Child Protection Board and the Ministry of Justice and Security. The Ministry of Education, Culture and Science (OCW) was not at the table.

That is institutionally telling. The enforcement discussion runs via Justice and Security, the legislative discussion belongs to OCW, and the two tracks evidently do not run in sync. The parliamentary letter of state secretary Becking (OCW) of 18 December 2025, announcing “a wider exploration into the Compulsory Education Act and criminal law” with a report by the summer of 2026, appears eight months after the Public Prosecution Service decision.⁸ Eight months during which executive practice, the criminal route and the statutory norm have grown apart, and during which no ministerial enforcement directive has been published that operationalises the full review from the case law into an executive instruction. The administrative fragmentation between the criminal track (Justice and Security) and the education-legislation track (OCW) has itself become subject matter of the case.

Two layers of a norm shift

Against this backdrop it becomes visible what is precisely happening in this case, and it matters to hold two layers apart.

On the first layer there is norm migration between legal domains. The Supreme Court formulates an open norm in April 2026, “reasonable distance”. Van Starkenburg fills that open norm in the NU.nl interview with the threshold distances from municipal student-transport regulations: six kilometres for primary schools on the basis of article 4(7) of the Primary Education Act, twenty kilometres for secondary education in municipal regulations under article 8.29 of the Secondary Education Act 2020. A statutory norm from the funding domain of student transport is thereby transferred to a test framework in a different legal domain, that of the exemption ground in the Compulsory Education Act, without the legislator or the court having authorised that transition. For this type of norm migration between legal domains without justification of the transition Arjan Widlak uses the term rechtsbesmetting, legal contamination.⁹

On the second layer there is a journalistic shortening in which the Ingrado interpretation is attributed to the Supreme Court itself. That is not legal contamination, that is attribution error in reporting. But it makes the first layer invisible, and with it the real question of where the norm comes from. No one acts wrongly in this chain. Van Starkenburg interprets within her professional knowledge domain. Einder writes an education report on the basis of interviews. Van Putten reacts to what her constituency experiences as a threat. The Supreme Court has issued a judgment that is legally meticulous. And yet the interplay produces a phenomenon formulated by no actor and attributed by public perception to the institution that did precisely not formulate it.

The crisis that is real

What the press suggests, namely that 2,500 granted exemptions will be acutely reversed by this judgment, is factually incorrect. Article 8(2) of the Compulsory Education Act provides that a notification is invalid if the juvenile attended a school of that direction in the preceding year, and the Supreme Court has expressly considered in legal ground 4.1 that a change of conviction does not mean that an appeal to the exemption can still be made. The judgment therefore does not work retroactively on granted exemptions.

The problem sits elsewhere, and the timing makes it acute. Renewal decisions on exemptions must be taken each year by the compulsory-education officer before 1 July. Between the judgment of 21 April 2026 and the renewal decisions of 1 July 2026 sits roughly ten weeks. In that time the officer must test anew under the tightened doctrine, while her national guidance since May 2025 has released the substantive test, the Public Prosecution Service has stepped out of criminal enforcement, and the Ministry of Education has not published a revised directive. That is an acute problem. Not from retroactive effect of the judgment, but from the timing of the renewal process in combination with a chain state in which no link is now prepared for the tightened doctrine.

The real story

Anyone looking for the actual party responsible for this situation finds them neither at the Supreme Court nor at the professional association now most in the news. The cassation court has provided a clarification and tightening in light of ECHR case law. Ingrado has since 2017 worked with its chain partners on an executive paradigm that the legislator has never anchored, and in April 2025 expressly argued for legislative change. The problem lies with the links that could have organised a legislative movement and did not.

A legislator that has not substantially updated article 5(b) of the Compulsory Education Act in its current form since 1969, despite decades of social and legal movement on this exemption ground, and despite eight years of chain signals since the introduction of the Methodical Approach to Truancy. A Ministry of Education that has left the executive instruction to the chain and only in December 2025 announced a wider exploration. A Ministry of Justice and Security that in March 2025 sat without OCW at the table and that has allowed the administrative fragmentation between the enforcement and legislative tracks to persist. A Public Prosecution Service that in April 2025 unilaterally decided to halt criminal enforcement, not in order to hollow out the law but because eight years of legislative inertia had made a workable criminal framework impossible. And, made visible in the obiter dicta of the court of appeal, an executive practice in which in a quarter of cases the compulsory-education officer has no sight of the direction of the objection she should be testing.

That is the chain that produced the problem. The Supreme Court has added nothing to it, beyond reaffirming and tightening the jurisprudential norm at the substantive level, and beyond letting stand in its reasoning the appellate observation about the marginal review and the rise in exemptions, without rejection. The cassation court has, in other words, done nothing the chain had not known for years.

What a learning state would do

Four things are decisive here, in order of constructive effect.

The legislator should move, and before the summer recess of 2026. Article 5(b) of the Compulsory Education Act in its current form is nearly six decades old, and the surrounding Act has not moved with the executive practice that since 2017 has been oriented to prevention and support. The question whether home education should be recognised, regulated and brought under supervision within the Dutch legal order is a political question that belongs in parliament, not in the cassation reasoning of the Supreme Court. It is telling that Ingrado, the Netherlands Youth Institute and the Dutch Association for Home Education — from different interest positions — advocate comparable legislative reform in which home education is regulated by statute with supervision. That convergence is rare and inviting. The Secretary of State for Education promised in her parliamentary letter of 18 December 2025 a report by the summer of 2026. That report should no longer only be an exploration but a draft bill.

The Ministry of Education should in the meantime publish an enforcement directive that operationalises the full review from the case law. Which questions does a compulsory-education officer put to parents? How does she weigh the concreteness and weight of the objections raised? Which supporting information can she request from schools? With a view to the renewal decisions due before 1 July 2026, this directive is not only desirable, it is urgent.

Ingrado should, pending that, revise its guidance of May 2025 on the point of the substantive test. The damage-control version was understandable in the field after the Public Prosecution Service decision, but it has been legally overtaken by the judgment of 21 April 2026. An amended guidance that mirrors the full review from the case law and helps its members take defensible renewal decisions in the ten weeks until 1 July 2026 is in the interest of the compulsory-education officer and of the child.

And the Public Prosecution Service should reweigh whether its withdrawal from the enforcement chain remains tenable in light of the tightened case law and the positive obligation of the Dutch State under article 2 of the First Protocol. The rule-of-law reasoning of April 2025 was understandable but not exhaustive, for it displaces the problem rather than resolving it. An enforcement policy agreed uniformly between OCW, Justice and Security, the Association of Netherlands Municipalities, Ingrado and the Child Protection Board can remove the legal inequality without the Public Prosecution Service withdrawing from the enforcement chain.

Conclusion

The judgment of 21 April 2026 is, in legal terms, a careful clarification of existing law. The tightening it contains touches the substantive criterion for the public-education test and the test burden of the compulsory-education officer. The press outcry points partly in the wrong direction (the judgment does not work retroactively on granted exemptions, and the kilometres do not come from the mouth of the Supreme Court) and partly in the right one (the time window between 21 April and 1 July 2026 is acute for compulsory-education officers who must take renewal decisions under a tightened doctrine without a ministerial directive).

The real question this case raises, namely who is responsible for the discrepancy between a statutory norm from 1969 and an executive practice oriented since 2017 to prevention and support, lies neither with the Supreme Court nor with Ingrado. It lies with a legislator that for eight years has ignored chain signals, with a Ministry of Education that needed eight months to announce an exploration, and with an administrative fragmentation between Justice and Education in which enforcement and legislation have come apart.

For anyone who sees compulsory education as a concrete instantiation of a parental right that should serve a fundamental child right — the first sentence of article 2 of the First Protocol, which according to the Grand Chamber of the ECtHR in Folgerø leads over the second — the silence of the legislator is the real scandal. Not the judgment that tries to correct it in April 2026, and not the professional association that has been pointing to that silence since April 2025.

Colofon

“The Marginal Test” is a Statecraft analysis of the Dutch Supreme Court judgment of 21 April 2026, ECLI:NL:HR:2026:658.

Statement of interest. The author chairs the Supervisory Board of the Kafkabrigade Foundation. This contribution is written in a personal capacity and reflects the substantive position of Statecraft.

Responses and counter-arguments via Statecraft.nl.

Jacob Huibers is an interim manager with more than twenty years of experience in the Dutch public sector. He has worked as cluster manager, cluster director and quartermaster at municipalities ranging from fifty thousand to over two hundred thousand inhabitants, and at inter-municipal collaborative bodies across the social and physical domains. Statecraft is his platform for strategic reflection on public-sector execution, pillar IV of House of Viridian.

Footnotes

¹ K. Einder, “Naar gewone school of naar België: onzekerheid over lot 2.500 thuisonderwijskinderen” (“To a regular school or to Belgium: uncertainty over the fate of 2,500 home-schooled children”), NU.nl, 20 May 2026. https://www.nu.nl/binnenland/6396403/naar-gewone-school-of-naar-belgie-onzekerheid-over-lot-2500-thuisonderwijskinderen.html

² Dutch Supreme Court 21 April 2026, ECLI:NL:HR:2026:658 https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:HR:2026:658 and related ECLI:NL:HR:2026:659 https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:HR:2026:659 (an article 81 RO summary disposal). Opinion of the Advocate General ECLI:NL:PHR:2025:1163 and :1164. Citations include NJB 2026/921 and Sdu Nieuws Personen- en familierecht 2026/239.

³ Amsterdam Court of Appeal 22 October 2024, ECLI:NL:GHAMS:2024:2924 and :2925. The obiter dicta on the marginal review and the survey of compulsory-education officers are included in the appellate court’s reasoning, which the Supreme Court passes over in its judgment in full as evidence.

⁴ Ingrado, “Position Paper: Herziening wetgeving schoolverzuim en vrijstellingen” (“Revision of legislation on truancy and exemptions”), Rotterdam, 3 April 2025. https://ingrado-backend-production.ams3.digitaloceanspaces.com/uploads/postion-paper-herziening-wetgeving-schoolverzuim-en-vrijstellingen-1-4046d.pdf. The paper documents the paradigm shift since 2017 (Methodical Approach to Truancy), the meeting of 24 March 2025 between the Public Prosecution Service, Ingrado, the Child Protection Board and the Ministry of Justice and Security, the characterisation that the Public Prosecution Service decision came “as a surprise” to Ingrado, and the Ingrado argument for abolition of article 5(b) and statutory regulation of home education with supervision.

⁵ Public Prosecution Service, “Vervolging leerplichtzaken (artikel 5b)” (“Prosecution of compulsory-education cases (article 5b)”), news item of 7 April 2025. https://www.om.nl/actueel/nieuws/2025/04/07/vervolging-leerplichtzaken-artikel-5b

⁶ Ingrado, “Handreiking formele vereisten artikel 5 onder b Leerplichtwet” (“Guidance on the formal requirements of article 5(b) of the Compulsory Education Act”), version of 23 May 2025. https://ingrado-backend-production.ams3.digitaloceanspaces.com/uploads/handreiking-formele-vereisten-artikel-5-onder-b-lpw-versie-23-mei-a0f90.pdf. Ingrado explanatory note: https://www.ingrado.nl/kennisbank/items/ingrado-handreiking-afweging-vrijstelling-5onderb-voor-leerplicht-en-om.

⁷ Secondary Education Partnership Amsterdam-Diemen, “Handreiking formele vereisten vrijstelling schoolplicht” (“Guidance on the formal requirements of school-attendance exemption”), news publication 2025. https://www.swvadam.nl/actueel/handreiking-formele-vereisten-vrijstelling-schoolplicht. The quoted formulation describes the working method of Compulsory Education Services Amsterdam as described on the website of the secondary-education partnership.

⁸ Parliamentary letter of State Secretary Becking (OCW), 18 December 2025, reference 2025D53257, “Strafrechtelijke handhaving van de Leerplichtwet” (“Criminal enforcement of the Compulsory Education Act”). https://www.rijksoverheid.nl/documenten/kamerstukken/2025/12/18/strafrechtelijke-handhaving-van-de-leerplichtwet. The lower house of parliament is to be informed by the summer of 2026 on the state of play of the wider exploration into the Compulsory Education Act and criminal law.

⁹ The term rechtsbesmetting, “legal contamination”, is used by Arjan Widlak.