Walking on a tightrope: some reflections on the ECtHR’s role in assessing the best interests of the child in parental disputes over the child’s religious upbringing

By Simona Florescu

In T.C. v Italy, the ECtHR was once again called upon to decide on sensitive questions involving divergent parental views over the child’s upbringing. In this particular case, the main question was whether the Italian courts’ judgments ordering the applicant to refrain from actively involving his daughter in religious activities constituted discrimination under Article 14 taken together with Articles 8 and 9 of the Convention.

The judgment is striking for the succinct manner in which the case is dismissed, as opposed to a substantially more elaborated concurring opinion of Judge Sabato and a joint dissenting opinion of Judges Paczolay and Felici. While the facts and the reasoning of the Court are fairly straightforward, the underlying tensions and debates underpinning the right to freedom of religion, especially when separated parents disagree about their child’s religious upbringing are far from settled. Some may consider that the Court’s reluctance to engage directly with the applicant’s right to freedom of religion is understandable in light of the subsidiarity principle. In this blog post, I would like to reflect on whether the ECtHR could have better reconciled its subsidiary role with a children’s rights-based approach. My analysis is not focused on the dissent or the concurring opinion; it is rather meant to shed a different light on this topic from the perspective of the rights of the child.

Facts of the case

T.C. is the father of a girl (E.) aged 7 at the start of the domestic proceedings. He separated from the child’s mother when she was 2 years old and by the time she turned three he started attending meetings of Jehovah’s Witnesses at the F. Kingdom Hall. He later became a member of this religion, married another member, and had a child with her.

His first daughter E. was baptized in the Roman Catholic church and her mother was also a member of the same religion, albeit not a ‘practicing Catholic’ in the words of the applicant. The daughter did not receive Catholic education but did attend a private Roman Catholic kindergarten as well as birthday parties, ballet, and Carnival parties.

The litigation at the domestic level appears to have started when the mother found out that the applicant was taking their child to Kingdom Hall and distributing religious magazines in the street. He was also objecting to the daughter’s ballet classes. The Italian courts were thus called to resolve the parents’ custody and visitation dispute.

The outcome of the domestic proceedings was impacted substantially by the girl’s declarations and the findings of a court-appointed expert. E., aged seven and a half years old at the time of the hearing, declared that she was not comfortable with going to the Kingdom Hall, but that she would have liked to play more with her father. During the hearing, she clearly indicated that she was very much aware of her mother’s negative comments toward the applicant’s religion. The expert report underlined that it would have been best for both parents to refrain from involving E. in religious activities but that the social context indicated that this was not entirely possible. This applied in particular to the Roman Catholic faith as the girl had been baptized in this faith and all her friends belonged to this religion. At the same time, the expert report assessed that it was detrimental for E. to be forced to actively participate in specific religious activities especially since the applicant had asked her to conceal some of these activities from the mother. For the expert, it was not in the child’s best interests to be involved in a religion other than Roman Catholicism. In their judgments, the Italian courts essentially endorsed the view of the experts. The courts considered that the principle of continuity indicated that it would not be in the interests of the child to practice a religion different than Roman Catholicism. All in all, the proceedings lasted over four years. It should perhaps also be added that throughout the litigation the applicant agreed that E. continues ballet lessons and that she could in the future take the sacraments in the Roman Catholic Church.

Summary of the judgment

The applicant’s complaint before the Court was that the Italian courts’ decisions ordering him to refrain from actively involving his daughter in his religion were contrary to Articles 8 (right to family life), and 9 (freedom of religion), taken alone and in conjunction with Article 14. The ECtHR chose to analyse the case solely under Article 14 in conjunction with Article 8, read in the light of Article 9 of the Convention. As the Court clearly stated, the issue was a parenting dispute over a child’s education and did not concern the applicant’s right to manifest his religion. The Court agreed with the domestic authorities that the best interests of the child were to maintain and promote a peaceful environment and that the sole purpose of the national measure was to preserve the child’s freedom of choice. The Court ultimately found that there had not been a difference in treatment between the applicant and the mother of the child.

In his concurring opinion, Judge Sabato criticized the majority for not assessing the case under Article 9 (freedom of religion). Judge Sabato focused on the child’s right to freedom of religion; he endorsed the majority’s finding primarily because the child had expressed a preference not to be involved in the father’s religion. Judge Sabato also would have welcomed a stronger emphasis by the majority of the continuity principle in the child’s upbringing.

The dissenting judges argued that there had been a difference in treatment between the applicant and his partner on account of the former’s religious beliefs and that there was not a reasonable proportionality relationship between the means employed and the aim sought to be achieved. The dissenting opinion further reasoned that the domestic authorities could have employed less stringent measures than an outright ban on the applicant taking his daughter to Kingdom Hall. For them, the analysis of the majority did not reflect an adequate understanding of the child’s best interests.

Commentary

Even a cursory reading of the judgment, reveals that the child’s best interests was a key element for the majority, the concurring, and the dissenting judges. The majority accepted that the Italian courts’ decision fulfilled the child’s best interests; the concurring judge emphasized the child’s preferences (arguably as an element of her best interests) and the dissent disputed that the domestic decision gave effect to the little girl’s best interests. Interestingly, despite the importance of the best interests of the child, no reference to the corresponding provision of the Convention on the Rights of the Child (the “CRC”) is made in the judgment. This is even more conspicuous as the Court does include Article 14 of the CRC (the child’s freedom of religion) as ‘relevant international law’ (although no particular importance appears to be placed on Article 14 in the judgment).

The best interests of the child is a notoriously ambiguous concept and at the same time a fundamental principle in children’s rights. The CRC Committee (UNCRC) has published an authoritative interpretation of the best interests of the child in its General Comment no 14.

The following lines shall briefly address the UNCRC interpretation of the best interests of the child in so far as relevant for the case of T.C. v Italy. The references to the best interests as a rule of procedure are particularly interesting. The UNCRC emphasizes that the courts’ reasoning is essential in safeguarding this principle. It calls on courts to state expressly “all the factual circumstances regarding the child, what elements have been found relevant in the best-interests assessment, the content of the elements in the individual case, and how they have been weighed to determine the child’s best interests. If the decision differs from the views of the child, the reason for that should be clearly stated.” It is within the context of the best interests of the child as a procedural rule that the determination of the child’s best interests requires decision-makers to hear children. Children’s rights scholars agree that Articles 12 (the right to be heard) and 3 (best interests principle) of the CRC should be used together to advance the rights of children.( For example: U. Kilkelly, The Best Interests of the Child: A gateway to Children’s Rights?, in E. Sutherland and L. Barnes Macfarlane (Eds.), Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-being, pp. 51-66, Cambridge: Cambridge University Press, available here).

Further, the importance attached in the case at hand to the applicant’s daughter statements both at the domestic level and before the ECtHR calls for some brief comments on the role of the child’s voice in the context of the CRC. First and foremost, in General Comment No 12, the UNCRC has made clear that Article 12 of the CRC should be interpreted as requiring all children to be heard (regardless of their age), the courts having some discretion in terms of the weight to attach to their voices. It should also be noted that the UNCRC has argued that the views and feelings of young children (under the age of 8 as per General Comment No 7) are frequently overlooked and rejected as inappropriate on the grounds of their age. To sum up, the UNCRC has interpreted Article 12 of the Convention as requiring that all children (including very young ones) are always heard (unless the child refuses to be heard), and that a child’s maturity only plays a role in determining the weight to be attached to a child’s declaration. This would mean that the age of the applicant’s daughter (seven years and a half at the time of the hearing) should not have pre-determined her capacity to make mature statements.

Should the Court have interpreted the European Convention in light of the principles sketched out above? In my view, this particular case would have given the Court the perfect opportunity to do so. First and foremost, for some time now the ECtHR has adopted a procedural approach to several rights under the Convention. The paragraphs above show specifically the procedural dimension of the child’s right to be heard and of the best interests of the child. Did the Italian courts meet the standards above? Did their assessment reflect “all factual circumstances regarding the child”? In my modest opinion, these are aspects that the ECtHR could have analysed more closely before dismissing the applicant’s case. After all, the way in which the Italian courts assessed the child’s best interests was part of the ‘decision-making process’ whose fairness is also a key concern for the Strasbourg Court. The ECtHR could have played a significant role in encouraging domestic courts to develop their reasoning, and the vague notion of the best interests of the child is a perfect example of where the ECtHR could stir such development. On the facts of the case, as presented in the judgment, it is still doubtful whether the domestic courts’ intention was to uphold the choice of the girl or whether her ‘voice’ was used to support the outcome of the case. Arguably, if domestic courts (supervised by the ECtHR as the case may be) carefully unpacked the elements of the best interests of the child, their judgments would align with the rights-based approach called for by the UNCRC. Such an approach would also be beneficial in limiting biases and value judgments which often enter into the ‘best interests’ analysis and which quite possibly played an important role in the case of T.C. v Italy.

Last but not least, on the specific topic of a child’s freedom of religion in the context of parental separation I would like to emphasize that a much higher threshold of intervention has been set in other contexts. For example, it has been considered that introducing new religious practices in the child’s life is not harmful in itself and that the courts should be wary in prohibiting parents from teaching their beliefs to the child (Langlaude, S. (2014). Parental disputes, religious upbringing and welfare in English law and the ECHR. Religion & Human Rights, 9(1), 1-30, available here). As an example, English courts have restricted a child’s exposure to parental beliefs or practices in some limited circumstances, such as if the physical integrity of the child is threatened; if contact with the other parent is damaged; or in cases where the religion would impact on a child’s educational choices, her future choices of religion, or the child’s relationship with a parent religious community (see Sylvie Langlaude, 2014). It does not appear that any of these factors were met in the present case. Also, it is not clear whether the girl expressed a clear wish not to go to the Kingdom Hall or a mere preference, and how this preference was balanced against other elements of the case file. After all, the father did agree that the girl continued her schooling and activities at the Catholic school, including that she could in the future take the sacraments in the Roman Catholic Church. These factors were not balanced in the Italian courts’ judgments, nor were they taken into account by the ECtHR when scrutinising the decision-making process.

It should also be pointed out that – as it transpires from the concurring opinion of Judge Sabato – the Court intends to dismiss future applications of this type as manifestly ill-founded (it is unclear whether the inadmissibility decision will be pronounced by a Single Judge and thus not reasoned or published or by a Committee of Three Judges who issue a summary reasoning). Again, this begs the question of whether the Court is prepared to sacrifice quality and principled reasoning for the sake of efficiency.

Conclusion

To conclude, the case of T.C. v Italy in my view is far from settled case law and this is also made abundantly clear by the separate opinions. This case could have been a perfect opportunity to reconcile the Court’s procedural approach with a children’s rights-based analysis. Instead, it may become one of the last cases of this kind where a judgment is published.