Religious upbringing of children
RELEVANT LEGAL FRAMEWORK Domestic law and practice The Italian Constitution 20. The relevant provisions of the Italian Constitution read as follows: Article 3 “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. ...” Article 19 “Anyone is entitled to freely profess their religious belief in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided they are not offensive to public morality.” Article 30 “It is the duty and right of parents to support, raise and educate their children, even if born out of wedlock. ...” The Italian Civil Code 21. The Italian Civil Code (CC), in its relevant parts, reads as follows: Article 316 “Both parents have parental responsibility that is exercised by mutual agreement, taking into account the abilities, natural inclinations and aspirations of the child. ... ... In the event of conflict on matters of particular importance each of the parents can turn to the judge without any formality, indicating the measures he considers most appropriate. The judge, having heard the parents and arranged to hear the minor ... suggests the decisions that he considers most useful in the interests of the child and the family unit ...” Article 337- bis “In the event of separation ... and in proceedings concerning children born out of wedlock, the provisions of this chapter apply.” Article 337- ter “The minor child has the right to maintain a balanced and continuous relationship with both parents, to receive care, education, instruction and moral assistance from both ... To carry out the purpose indicated in the first paragraph, in the proceedings referred to in Article 337 bis, the judge adopts the provisions relating to the children with exclusive reference to their moral and material interest. ... He adopts any other provision relating to the offspring ... Parental responsibility is exercised by both parents. The decisions of greatest interest to the children regarding education, upbringing, health and the choice of the child’s habitual place of residence are made by mutual agreement, taking into account the abilities, natural inclination and aspirations of the children. In case of disagreement the decision is left to the judge. Within the limits of decisions on matters of ordinary administration, the judge may decide that the parents exercise parental responsibility separately ...” Decisions made in accordance with Articles 330, 333 and 337 of the Civil Code are rendered in non-contentious proceedings ( volontaria giurisdizione ). They are not final and can therefore be revoked at any time. Either party concerned may lodge an application ( reclamo ) with the Court of Appeal for a review of the decision. RELEVANT INTERNATIONAL INSTRUMENTS United Nations 22. The relevant provision of the United Nations Convention on the Rights of the Child, signed in New York on 20 November 1989, reads as follows: Article 14 “1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.” 23. The relevant parts of the interim report of the Special Rapporteur on freedom of religion or belief on the elimination of all forms of religious intolerance, presented at the 70 th Session of the General Assembly (UN Doc. A/70/286, 5 August 2015), read as follows: “... 22. Given the child’s dependency on an enabling family environment, albeit with recognition of the variety of family forms, parents have the primary responsibility for supporting the child in the exercise of his or her human rights. According to article 5 of the Convention on the Rights of the Child, they should provide “appropriate guidance and direction” to the child in that regard. That specific responsibility entrusted to the parents also constitutes a parental right that the State must respect and protect. Article 14, paragraph 2, of the Convention further specifies that general understanding by enshrining due respect for the rights and duties of the parents “to provide direction to the child in the exercise of his or her right” to freedom of religion or belief. ... 31. ... [T]here can be no doubt that the erosion of parental rights by undue State interference is a serious problem and a source of grave violations of freedom of religion or belief. That problem requires systematic attention. ... ... 36. Freedom of religion ... does not presuppose a right of the child to grow up in a religiously “neutral” family environment, let alone a right possibly enforced by the State against parents. The principle of “neutrality” can meaningfully be invoked only against States in order to remind them of their obligation to exercise fairness, impartiality and inclusivity and in this specific sense “neutrality”, when dealing with diversity of religion or belief. By contrast, parents cannot be obliged by the State to remain religiously “neutral” when raising their children. ... 64. In cases in which the two parents follow different religions or beliefs, such a difference cannot in itself serve as an argument for treating parents differently ... Discrimination against parents on the grounds of their religion or belief may simultaneously amount to a serious violation of the rights of t he child in their care. ... ... 76. The rights of children and parental rights in the area of freedom of religion or belief ... should generally be interpreted as being positively interrelated. ... While State interventions may sometimes be necessary, ... unjustified State interference with parental rights in the area of freedom of religion or belief will in many cases simultaneously amount to violations of the rights of the child. ...” COMPLAINTS 24. The applicant complains of a violation of his right to respect for his family life and his freedom of religion, alleging a disproportionate and unnecessary difference in treatment between him and his previous partner, based on his religious beliefs. Finally, he complains that the overall length of the proceedings adversely affected his relationship with his daughter. he claimed a violation of Articles 8 and 9 of the Convention, alone and in conjunction with Article 14 and Article 5 of Protocol No. 7 to the Convention. THE LAW ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION in ConjuNction with article 8 of the coNvention read in the light of article 9 25. The applicant complained that the domestic courts’ decisions ordering him to refrain from actively involving his daughter in his religion had disproportionately interfered with his right to family life and his freedom of religion. He further claimed that such treatment had been based on his adherence to the Jehovah’s Witnesses religion and, as such, it had amounted to a differential treatment in respect of the enjoyment of his Convention rights. In this regard, he claimed a violation of Articles 8 and 9 of the Convention, alone and in conjunction with Article 14. He further submitted that the domestic courts’ decisions had violated the equality of rights between him and S.G. in their relations with their child, as protected by Article 5 of Protocol No. 7 to the Convention. 26. Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 27. Article 9 reads as follows: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 28. Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 29. Article 5 of Protocol No. 7 to the Convention reads as follows: “Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.” 30. The Court, having regard to the particular circumstances of the case and being master of the characterisation to be given in law to the facts of the case ( Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 124, 20 March 2018), considers that the applicant’s complaints fall to be examined under Article 14 in conjunction with Article 8 of the Convention which must however, be interpreted and applied in the light of Article 9 of the Convention (see Abdi Ibrahim v. Norway [GC], no. 15379/16, §§ 141-142, 10 December 2021 and, mutatis mutandis, Vojnity v. Hungary, no. 29617/07, 12 February 2013). The Court considers that for a parent to bring his or her child up in line with one’s own religious or philosophical convictions may be regarded as a way to “manifest his religion or belief, in teaching, practice and observance”. It is clear that when the child lives with his or her parent, the latter may exercise Article 9 rights in everyday life through the manner of enjoyment of his or her Article 8 rights ( Abdi Ibrahim, cited above, § 140). Admissibility 31. The Court notes that that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ arguments The parties’ arguments The parties’ arguments (a) The Government 32. The Government stated at the outset that the Court was not a court of fourth instance, whereas the applicant had asked the Court to re-examine the facts of the case and to find a violation of domestic law, which task did not lie within the Court’s competence. 33. The Government further contended that the applicant’s rights vis-à-vis the enjoyment of his family life had not been restricted in any way. He had in fact never been prevented from sharing his religious thoughts with E., as confirmed by the Florence Court of Appeal decision (see paragraph 17 above). 34. In any case, the Government argued that the balancing exercise conducted by the domestic courts between the applicant’s rights under Articles 8 and 9 of the Convention and the child’s best interests had been perfectly consistent with the Court’s case-law. They submitted that adherence to the habits, activities and practices of one religious denomination was incompatible with adherence to the activities and practices of another denomination. This was why, in the event of disagreement between the parents as to the religious education to be given to their child, the domestic courts were empowered and required to act to protect the best interests of the child and to ensure the equal dignity of both parents. 35. In the present case, the domestic courts had completely refrained from grounding their decisions on an abstract reasoning linked to the applicant’s religion. On the contrary, they had mainly motivated the domestic courts’ decision with reference to the applicant’s behaviour in concealing E.’s involvement in the Jehovah’s Witnesses’ activities from S.G. (b) The applicant 36. The applicant argued that the domestic courts’ decisions ordering him to refrain from actively involving his daughter E. in his religion, had disproportionately interfered with his right to private and family life. In this regard he claimed that there had been no evidence at all of a risk of actual harm to E. in his religious practices. 37. The applicant further claimed that the interference had been unforeseeable by reason of its vagueness. He alleged that he was unable to distinguish between the actions which were allowed and those which were prohibited. 38. Finally, he contended that all the decisions taken by the domestic courts had been tainted by a discriminatory bias against his religion. This had created in E.’s mind the discriminatory impression that, as compared with the Roman Catholic Church, his religion was dangerous and should be avoided. 39. In this regard, the applicant maintained that the domestic courts had only investigated his beliefs and practices, and not those of S.G., with the consequence that only he, and not S.G., had been ordered to refrain from actively involving E. in religious activities. The applicant challenged the domestic courts’ decisions endorsing P.C.’s conclusions as being discriminatory inasmuch as they had affirmed that E. should be encouraged to take part in Catholic activities in order to ensure her “healthy social growth” and to prevent her being “different from her peers”. He further challenged the domestic courts’ decisions affirming that it would be “prejudicial to E.’s interests to be involved in a religion that differs from Catholicism”. The Court’s assessment 40. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter. 41. The Court notes at the outset that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention, even if the relationship between the parents has broken down (see Ilya Lyapin v. Russia, no. 70879/11, § 44, 30 June 2020). In the present case, the applicant’s relationship with his daughter was limited by the decisions of the domestic authorities. Therefore, the latter constituted an interference with the applicant’s right to respect for family life under Article 8 of the Convention. 42. The Court pointed out that the 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 ( Deschomets v. France (dec.), no. 31956/02, 16 May 2006). It also emphasised the priority aim of taking account of 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 ( F.L. v. France (dec.), no. 61162/00, 3 November 2005). 43. For the purposes of Article 14, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and its background (see, among many authorities, Molla Sali v. Greece [GC], no. 20452/14, §§ 135-136, 19 December 2018, Vojnity v. Hungary, cited above, and Palau-Martinez v. France, no. 64927/01, § 39, ECHR 2003 ‑ XII). 44. The Court must therefore first examine whether the applicant can claim to have received different treatment. It observes that in the present case the domestic courts, in their decisions ordering the applicant to refrain from involving his daughter in his religious practices, had regard above all to the child’s interests. The child’s interests 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. 45. At the same time, the Court notes that both P.C.’s report and the domestic courts’ decisions referred to the fact that involving E. in the applicant’s religious practices would destabilise her in that she would be induced to abandon her Roman Catholic religious habits. Moreover, P.C. and the domestic authorities also mentioned the applicant’s behaviour and the means he was using to involve E. in his religious practices, in particular his concealment from S.G. of E.’s involvement in the Jehovah’s Witnesses’ activities (see paragraph 14 above). 46. Even assuming that the applicant and S.G. could be considered to be in comparable situations, the Court observes that the contested measure had little influence on the applicant’s religious practices and was in any event 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. 47. The Court further notes that no measure had been adopted to prevent the applicant from using the educational principles he has opted for in relation to E. Nor does it appear from the decisions contested by the applicant that he was prevented from taking part in the activities of the Jehovah’s Witnesses in a personal capacity. Rather, in the Court’s view, the national authorities attempted to reconcile the rights of each party, which was demonstrated by the attenuated nature of the contested measure. 48. The fact that the domestic courts ordered the applicant to refrain from actively involving his daughter in his religious activities did not severely circumscribe his relationship with her. In particular, he suffered no restrictions on his custody and visiting rights. The reasons given by the domestic courts show that they 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. In that context, the Court notes that E. attended Jehovah’s Witnesses religious services from 2009 to 2015 (from the age of 3 until the age of 8, when the decision of the Livorno District Court ordered the applicant to refrain from actively involving her), and at the same time participated in religious discussions and prayers at the applicant’s home. Following P.C.’s report, the domestic courts concluded that the applicant’s attempts to involve E. in his religious activities more intensely would been harmful for her. 49. In this respect the Court observes that the present case does indeed differ from Palau-Martinez v. France (cited above), 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 (see also, a contrario, Cosac v. Romania (dec.), no. 28129/05, 23 September 2014; Deschomets v. France (dec.), cited above; and F.L. v. France (dec.), cited above) and from Vojnity v. Hungary, cited above, where the Court found that there had been no reasonable relationship of proportionality between a total ban on the applicant’s access rights on the basis of his religious convictions and the aim pursued, namely the protection of the best interests of the child. 50. In the present case, the sole purpose of the contested measure was to preserve the child’s freedom of choice by taking into account her father’s educational views. Also, since circumstances may change over time and given that domestic decisions are not final and can therefore be revoked at any time, the applicant may reapply to the Livorno District Court for a review of the decision issued on 20 January 2015. 51. In view of the foregoing, the fact that the domestic courts ordered the applicant to refrain from actively involving the daughter in his religious practice cannot be seen as constituting a difference in treatment between him and the mother of the child based on religion. 52. The Court finds that there has accordingly been no violation of Article 14 of the Convention taken in conjunction with Article 8. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 53. The applicant complained under Article 6 of the Convention that he had been denied a fair trial in that the domestic courts had failed to decide on his appeal as a matter of urgency. He recalled that the proceedings had lasted a total of 4 years, 8 months and 6 days, and that such a period of time had had irremediable consequences on his relationship with his daughter. 54. The Court, being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], cited above, § 124), considers that the applicant’s complaints fall to be examined under the procedural limb of Article 8, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 55. The Government argued that the proceedings in issue had been complex and required specific technical investigation. At all events, they concluded that the overall length of time had not violated the applicant’s procedural rights under Article 8 of the Convention and had been perfectly in line with the Court’s case-law. 56. The Government further pointed out that the applicant had not suffered any restrictions in his custody rights vis-à-vis E., as the decision imposed by the domestic courts had solely concerned the child’s active involvement in the activities and religious services of the Jehovah’s Witnesses Community. 57. The Court recalls that although Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8 (see W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, § 64, and Cincimino v. Italy, no. 68884/13, § 64, 28 April 2016). In this connection, the Court may have regard to the length of the local authority’s decision-making process and any related judicial proceedings (see W. v. the United Kingdom, cited above, § 65). Effective respect for family life requires that future relations between a parent and child be determined solely in the light of all the relevant considerations, and not by the mere passage of time (see Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000 I; D’Alconzo v. Italy, no. 64297/12, § 64, 23 February 2017; and Barnea and Caldararu v. Italy, no. 37931/15, § 86, 22 June 2017). Otherwise, there will be a failure to respect their family life, and the interference resulting from the decision cannot be regarded as “necessary” within the meaning of Article 8. 58. In this connection, the Court has further clarified that in cases concerning a parent’s relationship with his or her child, there is a duty to act swiftly and exercise exceptional diligence, in view of the risk that the passage of time may result in a de facto determination of the matter (see, mutatis mutandis, Kautzor v. Germany, no. 23338/09, § 81, 22 March 2012 and, in the context of contact rights, Endrizzi v. Italy, no. 71660/14, § 48, 23 March 2017, and Improta v. Italy, no. 66396/14, § 45, 4 May 2017). 59. Turning to the circumstances of the present case, the Court notes that the proceedings concerning E.’s custody began in September 2013. E. was heard without delay in February 2014. On 11 March 2014 the District Court invited the social services to assess the influence which the religious activities of both parties were having on E. from the psychological and behavioural points of view. Due to the latter’s inertia, the domestic courts promptly appointed an expert on 22 July 2014 (see paragraph 13 above). The latter submitted her technical expert report on 30 December 2014, and the Livorno District Court took its decision on 20 January 2015. Having regard to the sensitivity of the issues at stake and to the proactive approach of the Livorno District Court in dealing with the proceedings, the Court does not consider the length of the first instance proceedings to have been excessive. 60. Concerning the alleged length of the appeal proceedings, the Court notes that the Florence Court of Appeal took seven months to deal with the case, whereas the Court of Cassation took 24 months. 61. In this regard the Court notes, as the Government pointed out, that during this time the applicant sustained no restrictions on his custody and visiting rights. Moreover, he has not at all demonstrated how the length of the proceedings before the Florence Court of Appeal and the Court of Cassation could have had irremediable consequences on his relationship with his daughter. 62. In those circumstances, the Court finds that the applicant’s complaint is manifestly ill-founded and should therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
The Court held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 8 (right to respect for private and family life), read in the light of Article 9 (freedom of religion) of the Convention. It found that there had been no difference in treatment between the applicant and the mother based on religion in the decisions leading to that court order. The Court noted, in particular, that the decisions had solely aimed at resolving the conflict, focussing above all on the child’s interest in growing up in an open and peaceful environment, while reconciling as far as possible the rights and convictions of both parents.