Information Note on the Court’s case-law 262
Judgment 19.5.2022 [Section I]
Revocable and reviewable order prohibiting a Jehovah’s Witness from actively involving his young child, brought up in Catholicism, in his religious practice: no violation
Facts – In the context of child custody proceedings, a disagreement arose between the applicant, a Jehovah’s Witness, and his daughter’s mother, a Roman Catholic, for actively involving his daughter in his religious practice after their separation and the means he had been using in doing so. In particular, he had been concealing this from the mother and asking his daughter to also do so. The child had been baptised in the Roman Catholic Church and had been brought up since her birth in a Catholic family and social environment. She also participated in religious discussions and prayers at the applicant’s home and attended Jehovah’s Witnesses religious services from the age of 3 until the age of 8, when the domestic courts ordered the applicant to refrain from actively involving her in his religious practice. It remained open to him to communicate his beliefs to her.
Law – Article 14 taken in conjunction with Article 8, read in the light of Article 9: The domestic decisions had limited the applicant’s relationship with his daughter, constituting thus an interference with his right to respect for family life. However, practical arrangements for exercising parental authority over children defined by the domestic courts could not, as such, infringe an applicant’s freedom to manifest his or her religion. Further, the priority aim was to take into account the best interests of children, which involved reconciling the educational choices of each parent and attempting to strike a satisfactory balance between the parents’ individual conceptions, precluding any value judgments and, where necessary, laying down minimum rules on personal religious practices.
The first question thus to be examined was whether the applicant could claim to have received different treatment from the mother of the child based on religion. The Court found that he could not for the following reasons.
In their decisions the domestic courts had had regard above all to the child’s interests. These lay primarily in the need to maintain and promote her development in an open and peaceful environment, reconciling as far as possible the rights and convictions of each of her parents. At the same time, both the expert’s report and the domestic courts’ decisions had referred to the fact that involving the child in the applicant’s religious practices would have destabilised her in that she would be induced to abandon her Roman Catholic religious habits. They had also mentioned the applicant’s behaviour and the means he had been using to involve his daughter in his religious practices.
Even assuming that the parents could be considered to have been in comparable situations, the contested measure had had little influence on the applicant’s religious practices and had in any event been aimed solely at resolving the conflict arising from the opposition between the two parents’ educational concepts, with a view to safeguarding the child’s best interests. Further, no measure had been adopted to prevent the applicant from using the educational principles he had opted for in relation to his daughter. Nor had he been prevented from taking part in the activities of the Jehovah’s Witnesses in a personal capacity. Rather, as demonstrated by the attenuated nature of the contested measure, the national authorities had attempted to reconcile the rights of each party.
The Court also observed that the said order had not severely circumscribed his relationship with his daughter. In particular, he had suffered no restrictions on his custody and visiting rights. The reasons given by the domestic courts showed that they had focused solely on the child’s interests, having decided to protect her from the purported stress exerted by the applicant’s intensive efforts to involve her in his religious activities. Following the expert’s report, the domestic courts had concluded that these efforts would have been harmful for her. Thus, unlike the case of Palau-Martinez v. France in which a violation of Article 8 in conjunction with Article 14 was found on account of the fact that residence rights had been determined on the basis of the applicants’ religious beliefs, in the present case, the sole purpose of the contested measure had been to preserve the child’s freedom of choice by taking into account her father’s educational views. Lastly, given that circumstances might change over time and the domestic decisions were not final and could therefore be revoked at any time, the applicant could reapply to the first instance court for a review of its decision on the matter.
Conclusion: no violation (five votes to two)
(See also Palau-Martinez v. France, 64927/01, 16 December 2003, Legal Summary ; Abdi Ibrahim v. Norway [GC], 15379/16, 10 December 2021, Legal Summary)