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Children and Religious Freedom: An Enquiry into Children’s Capability of Being Holders of Rights and the Nature of Religious Freedom in the Western World

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The paper aims to have both an analytical and a normative implication on the question of what freedom of religion means for children. The analytical one aims to show that the discourse about fundamental rights as a new and sometimes acclaimed as universal narrative often runs in counter to long lasting traditions and practices. Thus its realisation often requires the transformation of both the factual and the imaginary ‘reality’ as much as its development is a still ongoing and maybe open-ended project. This latter is exemplified in the differentiation of the meaning even of prototypical rights, such as the freedom of religion. The paper suggests that freedom of religion is a right of a person, not of a community or a religion itself. It thus presupposes freedom of choice and not merely freedom of worship. If this analytical suggestion is cogent, then a normative one arises. If we choose freedom of religion as a subjective right over freedom of a religion to impose itself on the subjects, then normatively, we need to accept that children, since they lack moral and cognitive skills to make an informed and free choice of religion, should not be indoctrinated and adhere to a specific religion before they are mature enough to do so. We need furthermore to accept that parents do not have the right to choose their children’s religion and decide about their religious education. Freedom of religion for adults can only be realised if children have already enjoyed it, in its special manifestation as freedom from religion.
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FAMILY LIFE AND HUMAN RIGHTS
Papers presented at the 11th World Conference of
the International Society of Family Law
EDITED BY PETER LØDRUP AND EVA MODVAR
GYLDENDAL
AKADEMISK
Oslo 2004
ISBN 82-05-31495-0
LINA PAPADOPOULOU
CHILDREN AND RELIGIOUS FREEDOM
An Enquiry into Children’s Capability of Being Holders of Rights and the Nature of Religious Free-
dom in the Western World
“Your children are not your children.
They are the sons and daughters of Life’s longing for itself.
They come through you but not from you,
And though they are with you yet they belong not to you.
You may give them your love but not your thought,
For they have their own thoughts.
You may house their bodies but not their souls,
For their souls dwell in the house of to-morrow,
which you cannot visit, not even in your dreams. …”
Kahlil Gibran, The Prophet
I. SOME PRELIMINARY EPISTEMOLOGICAL REMARKS
The first epistemological remark concerns the nature of the legal reasoning itself: as is obvious in
most legal papers and judicial decisions, the desired outcome determines over the arguments used. In
other words, the legal subject first chooses her result and then the argumentation that supports it. This
shows clearly that law is not a science but rather a rhetorical and dialogical intellectual discipline.
This does not mean that anything goes without any further qualification since the rules and techniques
of the discipline must still be followed. It does show, however, the inherently political character of the
legal questions, especially those of a constitutional character, which becomes more obvious when it
takes the form of a programmatic declaration. It also legitimises the use of political philosophy and
reveals the contested and socio-historically determined character of any assumption.
Based on this first remark, a second one unsurprisingly ensues: the following argument con-
cerning children and religion does not aim to present an international approach to the relevant issue.
Dr Triantafyllia (Lina) Papadopoulou, Marie Curie Research Fellow (HPMF-CT-2002-01849) at the Law
Department of the Aristotle University of Thessaloniki, Greece. Contact address:
lina_papadopoulou@yahoo.gr.
534 LINA PAPADOPOULOU
The paths explored here are necessarily familiar to western enlightened thought and do not apply to
all cultures. Freedom of Religion as a fundamental right, although protected in several international
human rights instruments, including the UN Convention of the Rights of the Child (CRC), which has
been ratified by all countries (except the USA and Somalia), is not conceived of in the same way
around the globe. Many countries expressed their reservations to the relevant article of the CRC,
stating that children cannot choose or change their religion. This assumption sounds to liberal western
ears like a negation of the right to religious freedom itself, as will be shown in more detail below. It
does reveal, however, that even nominally, religious freedom is not conceived to be the same around
the world.
The third remark -closely related to the first two– is that the afore-mentioned liberal approach is
fully aware of its own debatable character. It is not to assume that it is the ‘right’ approach as opposed
to others in different places and ages or in different cultures. It is not based on any supposedly ‘ra-
tional’ or ‘eternal’ truth. It only asserts that it is the product of specific socio-political, intellectual and
thus historical developments that have taken place primarily in Europe and consequently in the so-
called western world in the last three centuries. Within this historically defined context, certain fun-
damental intuitive ideas prevail over others, and allow us to form a discourse about rights and wrongs
in our societies. This unhidden historicism does not however bring us to the conclusion; even within
our own political community opposing ideas are born or sustained.1 Thus favouring an – even if non-
foundational – liberal approach within a liberal context on a highly controversial2 and taboo topic, is
already a political choice based on psychological, emotional and rational accounts.
Last but not least, it is recognised that coercion is an inevitable companion of the human being. It
may be coercion by nature or within a society. In the second case it may be coercion by the law or by
fellow (wo)men or both. After all we can only choose the kind and source of coercion, its content,
intensity and means, and not the very fact of its existence. In any case, everything political and legal
is some kind of coercion as much as its absence is. Yet in this unfree world we still have some
choices!
II. THE NOTION OF RIGHTS
The notion of rights itself, or the notion of rights we ascribe to, defines to some extent the subjects
legitimated to enjoy them. Some scholars see rights as justified because they allow for action that is
itself good or else a means to what is good.3 Others oppose that the validity of a right presupposes “a
1 See for example Jacob Joshua Ross’s, The Virtues of the Family, New York: The Free Press, 1994, p. 8, attack
against what he calls ‘individualist liberalism’ that places “a special, almost exclusive, emphasis upon the val-
ues of personal liberty and autonomy”.
2 Philip Veerman & Caroline Sand, ‘Religion and Children’s Rights’ in The International Journal of Children’s
Rights 7 (1999), pp. 385-393, at 385.
3 J. Plamenatz, Consent, Freedom and Political Obligation, OUP 1938, p. 83. From older writers, see J. Ben-
tham, ‘Anarchical Fallacies’, in Works, ed. By J. Bowring, Edinburgh 1843, vol. 3, p. 506; J.S. Mill, Utilitari-
anism, On Liberty, Representative Government, London, Dent 1910, p. 50.
CHILDREN AND RELIGIOUS FREEDOM 535
quite different type of moral evaluation from that used in describing an action as good or bad, right or
wrong”.4 In that sense the action that the right guarantees does not need to have any positive moral
value itself nor any utilitarian aim, such as increasing the ultimate or collective good that is being pur-
sued.5 Affirming, for example, the right of a person to choose, change, practise or refrain from relig-
ion does not imply that this is the right or good or useful behaviour. It merely reflects a fundamental
decision taken by a political society that individual autonomy is valued, and possibly implies a pro-
found intuition that good, right and useful can only be defined by the individual herself rather than by
third persons or (social, cultural, or political) communities. This latter, second-order assumption does
not preclude that a person choosing his religion freely or opting not to be religious, may be convinced
of the truth or goodness or happiness that his decision involves. It only presupposes that that same
individual and the community he lives in accept as fundamental - as axiomatic or based on public
reasoning, democratic decision or historical contingency – the principle of equal liberty, which allows
every man and woman to equally be the creator of the meaning of their own lives.6 Based on these
thoughts, one could say that fundamental rights are autonomous concepts or that they constitute an
end in themselves, as they counterbalance7 and sometimes prevail over other concerns and values.8
Speaking in a formalistic way there are different kind of rights. In addition to classical civil
rights, social or welfare rights have also been born. Whereas the first ones correspond to the image of
the individual as autonomous and self-contained and create a free space without state intervention, the
4 H.L.A. Hart, ‘Are there natural rights?’, in Philosophical Review 64 (1955), p. 190.
5 C.A. Wringe, Children’s Rights. A philosophical study, London, Boston and Henley: Routledge and Kegan
Paul, 1981, p. 30.
6 This qualification reminds of the two facts whose acceptance defines the ‘reasonable’ citizens, who are the
only ones that matter for affirming the political legitimacy of a regime according to John Rawls, Political Lib-
eralism, New York: Columbia University Press 1993, xviii. In Rawls’ definition reasonable are the citizens
who view “one another as free and equal participants, they are prepared to offer fair terms of social coopera-
tion and to act on those terms even when this runs contrary to their own narrower interests, provided that oth-
ers are similarly willing” (PL, xliv). Second, reasonable persons expect people living under free institutions to
disagree about fundamental matters of religion, morality, or philosophy. The difference between the Rawlsian
conception and the thesis maintained here is epistemological. Rawls delegitimises and consequently excludes
those whom he calls ‘unreasonable’ and in this way he solves the problem of taking them into account. He can
thus still aim at a social contract between all rather than some members of society. (Rawls, Political Liberal-
ism, pbk ed. 1996, 258). This paper disputes the assumption that these two presuppositions constitute a ‘politi-
cal’, in the meaning of non-comprehensive kind of liberalism. They on the contrary constitute an already
‘thick’ liberalism, which is ‘political’ exactly because it is historical and contested.
7 This runs counter to pure forms of consequentialism and utilitarianism that often justify restrictions on human
conduct based on considerations such as the common good or efficiency.
8 Compare Ronald Dworkin’s metaphor, in Taking Rights Seriously, London: Duckworth, 1977, p. 92, and the
same, ‘Rights as Trumps’, in Jeremy Waldron (ed.), Theories of Rights, 1984, at 53, that rights can act as
‘trumps’ to overrule decisions which could otherwise be justified by appeal to values such as efficiency.
536 LINA PAPADOPOULOU
second presuppose state action in order to be realised. Nowadays, however, it is becoming recognised
that even the first category of (civil) rights obliges the State in some cases to act. Moreover, it is often
asserted that the realisation of the most basic civil rights, i.e. the freedom of expression, is not possi-
ble when fundamental social rights, such as work and health care are not provided. This clearly shows
the interdependence of rights and their indivisibility from each other, reflected also in some modern
human rights instruments9, such as the CRC. One may argue that social rights are inherently more
paternalistic as they presuppose state intervention whereas civil rights may only allow such in special
cases. However, as will be demonstrated later, civil rights and specifically the freedom of religion we
are here concerned with, also give rise to issues concerning state intervention.
III. CHILDREN AND RIGHTS
It is a given that children’s rights are like fundamental subjective rights in general, historical entities
closely linked with the enlightenment project and modernity.10 The language of children’s rights came
however much later than rights pertaining to adults. The idea of children having rights has been the
cause of serious concern, mainly in the 20th century. International instruments reveal this fact such as
the Declaration adopted by the Fifth Assembly of the League of Nations in 1924 in Geneva, followed
by the UN Declaration of 1959, which in turn was replaced by the 1979 Convention on the Rights of
the Child.
A common dilemma in the rhetoric of rights is the question of whether children are persons with
fundamental rights equivalent to the ones enjoyed by adults and respected by law, or are to be re-
garded as persons under custody, and thus, without constitutional rights at all. Closely related to this
dilemma are questions concerning the parental role and the limits of state intervention, and/or their
abstention concerning the exercise of constitutional rights on behalf of children.
The answers one gives to questions on notions of the relation of rights to others, such as power,
duty or claim may provide opposing arguments related to this dilemma. For example if rights are to
be dependant on the power of exercising them, then children do not have rights at all. This is the
‘will-theory’, according to which especially young children do not have any rights, because they do
not have the necessary competence to make decisions. On the contrary, if they are to counterbalance
power exercised on subjects, then children should be holders of rights par excellence since the power
of adults over children is extensive “in respect of both their day-to-day existence and their long-term
interests”11 and thus the use of rights discourse may promote children’s well-being.12 We reach the
9 As opposed to earlier ones, that felt obliged to choose between civil or social rights. The most prominent ex-
ample are the two Covenants of Civil and Political Rights on the one hand and of Social, Economic and Cul-
tural Rights on the other, each of which was only lately ratified by states that originally ratified the other.
10 As Allan Levy, ‘Do Children Have Human Rights’, FamLaw 2002, pp. 204-209, at 205 informs us, the first
article entitled ‘the rights of children’ was published in 1852 whereas one of the earliest recognition of chil-
dren’s rights is to be found in the Massachusetts ‘Body of Liberties of 1641’.
11 Wringe, op. cit., 23.
CHILDREN AND RELIGIOUS FREEDOM 537
same conclusion following the ‘interest theory’, which asserts that since children have interests, it is
also appropriate that they have rights in order to protect those interests.
Before proceeding to scrutinise the arguments for and against these claims, we need to differenti-
ate the categories of children’s rights. Whereas several distinctions have been proposed13, the main
differentiation lies between protective rights or welfare or social rights on the one hand and self-
assertive or autonomy or civil and political rights on the other. Even those who do not see children as
autonomous human beings able to hold civil rights do recognise that they should nevertheless be
holders of social rights, such as the right to health care and education. Thus, not surprisingly welfare
rights remain – maybe justifiably - more important to children’s lives14, whereas disagreement centres
mainly on civil rights, which are rights of autonomy and self-presentation.
The earlier approach was that children do not have autonomy rights and that they should primar-
ily enjoy protection by the state and their parents. So for example, a familiar argument within the
context of the ‘correlativist’ utilitarian view, according to which rights are “a kind of secondary ficti-
tious entity resulting out of a duty”15 held that duties to non-rational creatures such as young children
or animals are examples of duties which do not confer rights.16 This approach is reflected in the rather
paternalistic Declaration of the Rights of the Child, which was first adopted by the League of Nations
in 1924 and amended under the aegis of the United Nations in 1959. This document made a choice in
favour of protection rather than autonomy for children.
It has only been in the last thirty years that the idea of children having the same rights as adults
has gained ground. The ‘child-liberation’ movement involved both child protests and relevant litera-
ture. In 1975 John Holt17 demanded voting rights for children, arguing that a lack of representation
necessarily leads to exploitation, whereas Richard Farson asserted that ‘the acceptance of the child’s
right to self-determination is fundamental to all the rights to which children are entitled”.18 Although
such views have never been legally endorsed in their extreme, their influence can be traced back to
the 1989 United Nations Convention on the Rights of the Child (CRC). The Convention tries to com-
bine both protection and empowerment and includes both civil and social rights, thus echoing the per-
ception that children are not merely dependent human beings but in many cases are competent deci-
12 Margaret Coady, ‘Reflections on Children’s Rights’, in Kathleen Funder (ed.) Citizen Child: Australian Law
and Children’s Rights, Melbourne: Australian Institute of Family Studies 1996, pp. 11-32 (11).
13 See for example Levy, op. cit., 205, who refers to the following categorisations. The first one involves four
groups: welfare, protective social justice and autonomy rights. The second also contains four categories:
rights against the world, protection from inadequate care, rights to an adult legal status and rights versus par-
ents. A third grouping depends on the child’s status as a person, a child, a juvenile and a future adult.
14 Coady, op. cit., 15.
15 H.L.A. Hart, ‘Bentham’, in Proceedings of the British Academy, vol. 48, 1962, 312 as cited in Wringe, op.
cit., p. 25.
16 See Wringe, op. cit., p. 25.
17 John Holt, Escape from Childhood: The Needs and Rights of Children, Harmondsworth: Penguin, 1975.
18 Richard Farson, Birthrights, London: Collier Macmillan 1974, p. 11.
538 LINA PAPADOPOULOU
sion-makers as well.19 The qualification ‘many cases’ indicates a consideration that children - even
being competent - are not as competent as adults are.
IV. CAPACITIES AND RIGHTS
The distinction between children and adults is – needless to say – based on the undeveloped cognitive
and emotional capacity of children, and on their financial and emotional dependence.
Human beings are born without the necessary capacity to survive without the care of another.
They initially lack both the physical and mental ability to do so. They are thus completely dependent
on their carers, who are most often their parents. Based on empirical biological and psychological ob-
servations the most important feature of childhood is the developing capabilities of the child, which
explains why the construction of this early period of a human being’s life in the modern western
world is based on the principle of development. Children are primarily entitled – both in moral and
legal terms – to opportunities to develop their capabilities, to learn and acquire all the necessary quali-
fications to become self-sufficient adults.
The principle of development entails that childhood may be divided into different stages of de-
velopment. The moral and cognitive immaturity of children would not pose a problem to the issue of
autonomy rights if a different question did not worry us: the question of whether only fully competent
and autonomous beings can be said to have rights. If this question is to be answered in the affirmative,
then it is difficult to award rights to children, or we would need at least to reconsider their range and
nature.
V. THE TWO EXTREMES AND THE THIRD WAY OF DEALING
WITH CHILDREN’S RIGHTS
It is obvious that considerations regarding children’s capabilities to judge and decide are still taken
into account and conceptions of them being totally equal to adults still do not prevail today. Under
these premises we are caught in the dilemma of whether to recognise children as holders of autonomy
rights or whether to deny them such rights at all. Let us closely examine the implications each deci-
sion involves.
The qualification of rights we are talking about as ‘human’ indicates their close relationship to
human nature per se. Excluding children from their enjoyment would thus result in both a moral and
semantic exclusion of children from the human condition. This result is intuitively not acceptable.
Besides this moral objection, further practically orientated arguments against excluding children from
the rights discourse arise. As indicated above, children are exposed to power, all the more so due to
their especial vulnerability. If rights are supposed to protect against the unauthorised and arbitrary
exercise of power, then rights discourse is a way to prevent it. Moreover, childhood is a lot to do with
the civil education of children: should children be deprived of any rights, they may consequently be
19 Coady, op. cit., p. 13.
CHILDREN AND RELIGIOUS FREEDOM 539
also deprived of their ability to exercise and make use of their rights as adults. Thus, children must
learn their rights (and duties) since this is the only way to make the best out of them in later life.
On the other hand, recognising the civil rights of children responds to all these concerns whilst
bearing others, regarding children’s reduced cognitive and moral skills. A rather old-fashioned, how-
ever still powerful argument, is that children belong to their parents. They are their possession and
consequently parents have the right to decide about their children’s fate, as well as their friends, edu-
cation and faith.
A more refined and thoughtful argument against the complete equality of rights between adults
and children refers to the exercise of a self-assertive right. What can a child make out of her right of
association if she does not yet hold the intuitive capacity to judge the qualities of the people she wants
to associate with? If she chooses on her own, she might harm herself, especially at an early age, due
to her lack of information or judgement. If she is wise enough to listen to her parents, then the deci-
sion will not be hers but theirs. In the second case the child is again actually deprived of her rights,
since somebody else makes the decision. In other words, children exercising their autonomy rights
may be practically in the same position as those lacking any rights at all. Thus ‘abandoning children
to their rights’20, pretending that they are always competent to autonomously exercise their rights and
deny any further protection, might be rather hypocritical.
A common principle often invoked regarding decisions that children are not considered mature
enough to take on their own, is ‘the best interests of the child’ principle. This indicates that somebody
else other than the child concerned is in a better position to judge the child’s interests than the child
herself. Although obviously paternalistic21, this criterion can hardly be substituted by a different one22
in cases where the child is considered incompetent to make the decision.
Denying both such described positions, the stance adopted here is rather that children possess the
same rights as adults, while being justifiably denied complete exercise of some of these rights until
acquiring the necessary capacities to exercise them in a free and informed way. This is why, despite
growing recognition of children’s civil rights, many writers agree that there is a minimum age when
certain rights can be awarded to children.23 It would be more right to say that rights be ‘exercised by
children’. The age when a child is able to hold or exercise her right depends largely on the right in
question and possibly on the child involved. This indicates that a child’s degree of
20 Bruce Hafen, ‘Exploring test cases in child advocacy’, 100 Harvard Law Review (1986), p. 445.
21 We should not forget that already the fact that ‘we’, the adults talking about children’s rights, is itself inher-
ently paternalistic.
22 See for example John Eekelaar, “The importance of thinking that children have rights” International Journal
of Law and the Family, vol. 6, no. 1, April 1992, pp 221-235, at 229, who suggests a ‘substituted judgement
test’. This test results to a judgement that the child would have made had he been in full possession of all the
relevant information and intellectually mature enough to make a decision. One can hardly see what difference
such a test would make, since the child’s will is still substituted by another person’s judgement, even if the
latter is supposed to follow the child’s preferences.
23 Coady, op. cit., p. 15.
540 LINA PAPADOPOULOU
competence normally increases with age and moreover it will vary from one field of activity to an-
other.24 For example, it may be appropriate to consult a child about which parent she would like to
stay with after a divorce but not to let her vote in general elections. On the contrary it may be highly
advisable with respect to education and issues of autonomy to arrange schools institutionally so that
children's voting plays a significant role.
Until then, both the State (primarily) and third agents, including parents, secondarily, are obliged
to provide the necessary conditions allowing children to maximise their chances to become autono-
mous adults able to fully enjoy their rights. The latter depends on the child’s growing capacities to act
as a free agent and thus on her age and development. In this context the question arises as to which
person or group should then exercise the right on their behalf, given that children hold rights but are
not capable of exercising them. Here the answers vary depending on which rights we are discussing
and the interests that are at stake. At this point we should turn to the subject at hand: the issue of the
freedom of religion.
VI. THE RIGHT TO FREEDOM OF RELIGION
Both the distinction between civil and social rights – although imperfect – and the realisation that
children’s capabilities change through time and also depend on the specific matter to be decided,
oblige us to speak specifically, avoiding generalisations. Since we have chosen to focus on the ques-
tion of children and religious freedom, we have to examine the content of this specific fundamental
right and examine what capabilities are required for its exercise and whether children hold them.
As already mentioned above, freedom of religion involves the decision to join a religion, to
change faith, to abstain from religion and of course to practice it. It is important to notice however
that as opposed to freedom of worship, religious freedom refers to the intimate sphere of the individ-
ual and the formation of their conscience. The perception that religious freedom only involves the
exercise of an already acquired religious faith, reflected in some, mainly Islamic, reservations on the
religious freedom articles of international human rights instruments, is totally denied here as it is
contrary to the autonomy of the individual. If the religion has not been chosen freely and with the ex-
tended ability to understand and judge, then its ‘free exercise’ is only the exercise of an imposed doc-
trine. Allowing for free practise of an oppressively imposed religion cannot be seen as the exercise of
a right but rather as the maintenance of oppression. Based on these thoughts, any reservations not al-
lowing for anybody to choose or change their religion is a denial of the very right of religious free-
dom.
If these considerations are persuasive in our liberal societies, then the capacity of somebody to
make a conscientious decision about whether she wants to join a religion or not is vital to the very
issue of religious freedom itself. Based on the observations above it is argued that children, until the
age of 15 at least, cannot take any such decision. They are thus not capable of exercising their right to
religious freedom, since the latter involves capabilities, which children do not hold.
24 Coady, op. cit., p. 18.
CHILDREN AND RELIGIOUS FREEDOM 541
The question that arises here is whether this also means that children do not have the right to re-
ligious freedom at all. In this case their parents or the state could exercise this right. If children do not
have the right to choose their religion because they are not capable of doing it due to their reduced
cognitive capabilities, should the parents have the right to choose their children’s religion? This is
actually the current practice. What is amazing is that both opposing views concerning children’s
rights, both the view that children have the same rights as adults and the view that they have no civil
rights at all, lead to the same end result. Even if you recognise the right of a child to choose their re-
ligion, since they do not have the relevant ability at least up to the age of 15, then it will actually be
their parents who choose for them.
According to the view asserted here, children do have the right to freedom of religion, and thus
neither the state nor their parents can legitimately choose on their behalf. Then the right to freedom of
religion for children acquires a different meaning: it necessitates a suitable environment for children
to develop their capacities in such a way as to be able to freely exercise their religious rights later in
life with respect to choosing to adopt a religious doctrine or not.
It is obvious that in this case the right to religious freedom is less a subjective right, to be exer-
cised by the child itself, and much more an objective value that has to be preserved by the State, and
which obliges all third agents, including parents, to respect it. This stance methodologically corre-
sponds to the theory of the objective content of fundamental rights, which will therefore be explored
below, in further details.
VII. THE THEORY OF THE ‘OBJECTIVE CONTENT OF THE
FUNDAMENTAL RIGHTS’
Fundamental rights in their original appearance as civil rights are conceived principally as ‘subjec-
tive’ rights, as defence tools that empower the citizen to keep the state away from her private sphere
of affairs. In this primary dimension, which prevailed in the 19th century, rights aimed to prevent state
intervention in the freedom and property of the individual.25 They thus constructed a private domain
from which the state was excluded and provided the citizen with autonomy26 and freedom to make
their own choices.27
This negative content of fundamental rights, although remaining the “reference point” of any
widening of their meaning28, has however been supplemented by a differentiated function: funda-
mental rights create some obligations of the state to protect them and they form postulates of state
action. They thus acquire a new dimension and prove to be multifunctional.29 As the Federal German
25 See Bodo Pieroth / Bernhard Schlink, Grundrechte, Staatsrecht II, 8th ed., Heidelberg 1992, nr. 58.
26 Compare John Stuart Mill, On Liberty, Himmelfarb (ed.), Harmondsworth: Penguin 1974. Mill defended
freedom being persuaded himself that individuals were in the best position to know their own interests. Mill
however admitted that children do not hold this right to free action since they were not in a position to know
their best interests.
27 Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 20th ed., Heidelberg
1995, nr. 287.
28 Ralf Dreier, ‘Subjetiv-rechtliche und objektiv-rechtliche Grundrechtsgehalte’, Jura 1994, pp. 505ff., at 505.
29 This was pointed at already in the early 20th century by Rudolf Smend, ‘Verfassung und Verfassungsrecht’
(1928), in Staatsrechtliche Abhandlungen, 3rd ed., Berlin 1994, pp. 119ff., at 260ff. For Switzerland, see Peter
542 LINA PAPADOPOULOU
Constitutional Court recognised, fundamental rights are not only “defensive rights against the state”
but they also construct an “objective order of values”. The Court also stated that the Constitution did
not aim at being a value-neutral legal order and that the value system enshrined in the protected rights
affects legislature, administration and the Courts.30
Such a normative value order counterbalances the ‘defensive’ function of rights, which leads to
the suspicion of individualisation and egotistic abuse of the rights provided. It is thus being argued
that recognition of both the ‘defensive’ and ‘value-normative’ functions of fundamental rights guar-
antees equilibrium between centrifugal, anti-integrationist powers on one side and centripetal, inte-
grationist31 societal powers on the other.32
The theory of objective content of fundamental rights derives its legitimacy and cogency from
the fact that mere defensive rights do not grant their subject with the ability to exercise them. In other
words, although based on liberal concerns, the merely negative perception of rights undermines itself
as it does not empower the person to real liberty, since one finds oneself confined by all kind of ne-
cessities and/or social prejudices and inequalities. The state has thus the postulate to guarantee those
conditions that allow the individual to exercise their rights, even if they finally choose not to.
The objections to this approach are based on the danger of deconstructing the liberal state in fa-
vour of a ‘value-based tyranny’.33 It may also be seen as undermining the plurality of particular inter-
ests available in multicultural 21st century western societies. Furthermore this approach may lead to
an enhancement of the role of the judiciary, based on constitutional adjudication at the expense of
legislature, thereby undermining the generally positive value of law altogether.34 It may, in other
words, contribute to the transformation from a ‘state of law’ to a ‘state of judges’. Whereas the latter
is common to almost all western countries and can only be checked through the evolution of counter-
balancing institutions that empower deliberative democracy, the former, the value-centred system of
governance, is a profound decision that a political society meets conscientiously or not. The question
is whether to favour a procedural liberalism or a more comprehensive one. And since concepts are
rarely pure, the question is rather to what extent we choose our liberalism to be comprehensive or
procedural.35 Allowing ‘freedom for the enemies of freedom’ is a procedurally liberal decision and
Saladin, Grundrechtsreform in rechtsvergleichender Sicht, in Festschrift für H.R. Klecatsky, Vol. II, 1980, pp.
841ff., at 855. See also Peter Häberle, ‘Grundrechtsgeltung und Grundrechtsinterpretation im Verfassung-
sstaat’, Juristenzeitung 1989, pp. 913ff., at 913.
30 See the decision of the Federal German Constitutional Court (Bundeverfassungsgericht) BverfG 7, 198, pp.
204ff. of 1958.
31 On the question ‘integration through constitution’ see Otto Depenheuer, ‘Integration durch Verfassung’ Die
Öffentliche Verfassung 1995, pp. 854ff.
32 Michael Dolderer, Objektive Grundrechtsgehalte, Berlin 2000, p. 21.
33 Carl Schmitt, ‘Tyrannei der Werte’, in Festschrift für Forsthoff, 1967, pp. 37ff.
34 Ernst Forsthoff, ‘Die Umbildung des Verfassungsgesetzes’, in Festschrift für Carl Schmitt, 1959, pp. 35ff., at
39, 41.
35 Unfortunately here is not the right place to discuss concepts such as John Ralws’s Political Liberalism, which
purports to be neutral towards more different comprehensive doctrines. We are nevertheless convinced that
through the qualification of ‘reasonableness’ that Rawls employs, neutrality is irreversibly lost; see Marilyn
CHILDREN AND RELIGIOUS FREEDOM 543
much more open-ended than setting the frame so that only substantially liberal decisions may be taken
or that even non-liberal decisions must be taken in a liberal, that is autonomous way. The question is
not exhausted in one case but pervades the whole constitutional setting. The dilemma is that which is
implied in the last of the above-examined epistemological remarks: that of what we prefer the coer-
cion to be. The stance taken here reveals a favouring of a more comprehensive liberal setting which
does not only allow substantially liberal decisions but requires that even non-liberal decisions must be
taken in a liberal, that is, in an autonomous and informed way.
VIII. THE RECIPIENTS OF CHILDREN’S RIGHTS AND PARENTAL
RIGHTS
According to the classical theory of fundamental rights, the first and principal recipient of fundamen-
tal rights is the State. The state organs are the ones expected to abstain from the private space con-
strued by individual rights and those obliged to form an environment for civil rights to be exercised,
or organise welfare provisions for social rights to be realised. However it is now being recognised that
individuals are also protected by fundamental rights regarding other people, who are able to exercise
power over them. This effect may be considered to flow from the fact that Courts as state organs are
also bound by rights by which they have to decide, even in private cases that come before them. It
also derives from the theory analysed earlier, of the objective content of fundamental rights, that pri-
vate persons are also obliged to respect and not disturb the factual situation that the state pursues in
order to facilitate the exercise of certain rights. As a consequence fundamental rights develop hori-
zontally across private relations, as well as vertically, in relationships between the individual and the
state.
In the case of children in particular, apart from the state, or even before the state, the recipients of
children’s rights are primarily their parents. Parents have the duty – which is the other side of chil-
dren’s rights – either to abstain from coercion in their children’s private sphere or to provide them
with the necessary conditions by which their children may come to exercise their rights.
It is often asserted in different contexts that children’s rights pose a threat to parents’ rights. This
assumption goes back to the original argument against children’s rights, that is that children belong to
their parents and thus parents have the right to decide about their children’s lives. Children’s libera-
tion is often equated with enhancing the role of the state at the expense of parents’ authority.36 One of
the major concerns that such an approach to children’s religious freedom invokes refers to the substi-
tution of the parental authority through state, mainly judicial intervention. Such an intervention was
Friedman, ‘John Rawls and the political coercion of unreasonable people’, in Davion & Wolf (eds.) The Idea
of a Political Liberalism. Essays on Rawls, Lanham et al.: Rowman & Littlefield, pp. 16-33.
36 Christopher Lasch, ‘Hillary Clinton, child saver’ Harper’s Magazine, October 1992, as cited in Coady, op.
cit., 20.
544 LINA PAPADOPOULOU
considered unthinkable in the 19th century, which was rather the century of the father than of the child
or the mother.37
The question then arises concerning the nature of parental rights. Supporters of the family under-
line that the family is the best influence in a child’s life38 whereas others remind us of the degree of
exploitation, violence and oppression that the private domain of the family may involve. It must be
recognised39 however that the disclosure of the private allows for inequalities and injustices, for op-
pression and abuses, and thus if we remain committed to the protection of the individual from any
kind of arbitrary power, the family cannot be excluded from the realm of human rights.
The thesis of this paper – even contrary to existing human rights provisions like Art. 2 of First
Additional Protocol of the ECHR – is that parents have no rights over the religious freedom of their
children. Parental rights must be seen as fiduciary rather than as rights of freedom. In other words, it
is the right to look after the rights of the child, and in that way is more like a duty than a right. It nec-
essarily gives the parent the power to make certain decisions but these must be directed to providing
the child with the conditions that favour their evolving capacities and all the necessary education to
allow them to make use of their right to religious freedom later. They must thus refrain from any at-
tempt to indoctrinate their children or make them members of a specific religious community, before
they can conscientiously decide to do so for themselves.
IX. SOCIETAL INTEGRATION AND RELIGIOUS FREEDOM
As noted above, the conception of fundamental rights as objective values forming the constitutional
setting of a political community contributes towards social integration, as it counterbalances the ef-
fects of purely defensive, self-centred rights. In our modern multicultural societies and given the in-
tensification of immigration, this point acquires a significant validity whilst at the same time changing
in content. Accepting that freedom of religion for children entails freedom from any specific religion,
thus favouring personal autonomy against traditional values and imposed comprehensive doctrines,
may prima facie seem to threaten to undermine society through enhancing a person’s free choice. In a
multicultural society however, the triangle of state–child–parents is complemented by the entity of the
‘community’, usually personified through the parents but at the same time exercising coercion
37 Levy, op. cit., p. 205, reports of a case of 1883, in which one judge said that the court had no right to interfere
with ‘the sacred right’ of a father over his children. The Court argued that to ignore this right would be “to set
aside the whole course and order of nature”.
38 Goldstein / Anna Freud / Solnit, Beyond the Best Interests of the Child, New York: The Free Press 1979, sug-
gest that “the child’s need for safety within the confines of the family must be met by law through its recog-
nition of family privacy as the barrier to state intrusion upon parental autonomy in child rearing. These rights
– parental autonomy, a child’s right to autonomous parents, and privacy – are essential ingredients of ‘family
integrity’” (as cited in Coady, op. cit., p. 22).
39 Susan Moller Okin, Justice, Gender and the Family, New York: Basic Books, 1989, emphasises the lack of
philosophical concern for justice in the private domain and underlines that the relegation of women and chil-
dren to the private / domestic domain has both caused and concealed many injustices and abuses.
CHILDREN AND RELIGIOUS FREEDOM 545
upon them. In this complex social setting, depriving children of their right to freedom of religion,
which is, as shown above, the common outcome of both recognising them as complete competent
agents and of denying them the right altogether, is actually equated with allowing every single relig-
ious community to impose its comprehensive doctrine upon its inherited members. By saying ‘inher-
ited’ we imply the fact that, although adults may have albeit restricted opportunity to break away from
the community to which they belong, children are totally deprived of that possibility due to their so-
cial dependence and mental capabilities – at least up to a certain age.
With several different communities operating in the same society, freedom of religion often takes
the character of a collective right. Whereas worshipping is in many religions a collective procedure
and thus may be regarded as a collective right, freedom of religion, as referring to the innermost of a
person’s conscience, the formation of the conscience itself cannot be considered collective at all. That
religious or quasi-religious communities may exercise normative power upon their members, as a
manifestation of the right to freedom of religion, consequently subjects the community itself to this
right, compromises personal autonomy and, moreover, jeopardises societal integration. Apart from
imposing a specific religion on children without any kind of consent, which is a common feature of
all religions, other practises, often violating other rights apart from that of religious freedom, are ex-
ercised upon children, mainly within minority religious communities. The question of which stance a
liberal community should adopt towards such practices as for example circumcision, which are con-
sidered to be a manifestation of religious freedom, is closely related with the whole issue discussed
here and the answer obviously depends also on the content one assigns to children’s religious free-
dom.
X. CHILDREN’S RIGHT OF RELIGIOUS FREEDOM AND ITS
MANIFESTATIONS
Based on all the above insights, we conclude that children hold the right of religious freedom but can-
not exercise it until at least an age (of approx. 15-16 years) when they are mature enough to take an
informed and free decision. Parents are to be seen rather as fiduciaries of that right. This is even more
so, given that children’s religious freedom is the prerequisite for adults’ religious freedom as well. In
other words, there can be no religious freedom, if religion is imposed upon people, while they are not
capable of freely choosing for themselves.
The concept of the child as subject of the right to freedom of religion is reflected in Article 14 of
the UN Convention of the Rights of the Child.40 This stance is different from the one enshrined in the
40 Article 14 of CRC reads as follows: “1. State Parties shall respect the right of the child to freedom of thought,
conscience and religion. 2. State Parties shall respect the rights and duties of the parents and, when applica-
ble, legal guardians and 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, morals,
or the fundamental rights and freedom of others”.
546 LINA PAPADOPOULOU
International Covenant on Civil and Political Rights (Article 18 IV) and the Declaration on the Elimi-
nation of All Forms of Intolerance and of Discrimination Based on Religion or Belief41, which guar-
antee parental ‘rights’ to ensure the religious and moral education of their children in accordance with
their own convictions.42
The stance, according to which the child herself is holder of the right to freedom of religion, runs
counter to the practice of most countries. As stated in the beginning however our focus is upon west-
ern liberal societies43 and our analysis goes beyond the law as exemplified in national or international
human rights instruments and enjoys the luxury of a de lege ferenda critique of them. In the follow-
ing section we shall examine some selected issues closely related to children and religious freedom
and evaluate them from the point of view adopted here.
A. Refusal of medical treatment
Cases of refusal of medical treatment exercised by parents on behalf of their children often reach the
Courts. It is argued that in this case we have a conflict of fundamental rights, the religious freedom of
the parents on the one hand and the right to life of the child on the other.44 It is suggested here that
this stance is not valid. The religious freedom of parents does not include their ability to harm their
children by taking advantage of the latter’s physical and social dependence on them.
The freedom of religion of the parents extends as far as the concerns of those decisions in and of
41 Amongst others Article 5 of the Declaration guarantees the right of the parents or legal guardians “to organize
the life within the family in accordance with their religion or belief and bearing in mind the moral education
in which they believe the child should be brought up” as well as every child’s right “to have access to educa-
tion in the matter of religion or belief in accordance with the wishes of his parents or, as the case may be, le-
gal guardians and shall not be compelled to receive teaching on religion or belief against the wishes of his
parents or legal guardians, the best interests of the child being the guiding principle”.
42 Veerman & Sand, op. cit., p. 386.
43 That’s why reservations of Islamic countries to the right to religious freedom in the CRC are for the present
paper irrelevant, although they prove the particularity of the project as well as the differences in the notion of
religious freedom itself. Bagladesh noted in its observation to the Working Group in 1986 that the article
“appears to run counter to the traditions of the major religious systems in the world and in particular to Is-
lam”. It appears to infringe upon the sanctioned practice of child rearing in the religion of his parents”. Ma-
rocco submitted a similar communication to the Working Group in 1987 stating that the “rule adopted in Mo-
roccan legislation is that the child shall follow the religion of his father. In this case the child does not have to
choose his religion, as the religion of the State is Islam”. Algeria also stated that “Article 14 shall be inter-
preted by the Algerian government in compliance with the basic foundations of the Algerian legal system,
particularly with the Constitution, which stipulates that Islam is the state religion”. (Statements as cited in
Veerman & Sand, op. cit., pp. 386-7).
44 So Bernard Beking, ‘Striking a Balance between Parental Religious Freedom and the Rights and Best Interest
of Children. Should Parents be allowed to refuse medical treatment for their Children based on their own re-
ligious Convictions? A Modern South African Legal Perspective’, Paper presented in the 11th World Confer-
ence of the International Society of Family Law, Copenhagen-Oslo 2-7/8/2002.
CHILDREN AND RELIGIOUS FREEDOM 547
themselves. That is why the law recognises the decision of an adult not to go under medical treatment
due to religious beliefs. It does not extend however to their harming others, even if they are dependent
on them. Accepting that the religious freedom of anybody extends more than their own personal
sphere of conduct would be equal to legitimising oppression, in affirming the faith of some who
could, based on their faith, determine or rule the life of others.
What is vital when the case concerns somebody’s child? It is the fact that the child is dependent
upon his parents. Does this physical and social dependency change the rules? Does it allow the par-
ents to legitimately exercise the power of life or death over their children? A positive answer to this
question would mean that children are the possession of their parents, who can use them as they wish.
What is the difference between a parent allowing his child’s death due to his own religious beliefs,
and another selling his child in a slave-market due to his and his family’s poverty? Our most funda-
mental intuitions oppose both practises.
But even if we accepted that parents’ religious freedom includes their children, we must still ad-
mit that they cannot exercise their right anymore when exercising it would involve harm to others. Let
us remember the Millian harm principle, according to which rights of action may not be exercised
when causing harm to others.
In such cases when medical treatment is requested, both the child’s right to physical integrity,
health and life as well as her best interests oblige its provision, independently of the parents refusal.
Their will may well be substituted by a Court decision backed up by medical advice. This is prefer-
able to the parents’ post-mortem conviction of manslaughter.45
A more difficult question arises when the refusal of medical treatment comes from the child her-
self due to religious reasons. It is without doubt a decision that is a product of chronic indoctrination
and the child’s participation in a religious community. In other words, such a decision taken by a
child is unthinkable if the religious neutrality for children asserted in this paper were followed. Ac-
cording to the view developed here, as noted above, the freedom of somebody to exercise a religion
that she has not chosen, given the lack of the mental capacity to do so, equals a continuation of the
original oppression. Accordingly, in cases where the child denied herself medical treatment vital for
her life, this decision should not be taken into account. This opinion denies in other words the right of
a child to commit suicide and is obviously paternalistic, while it allows for the law and state interven-
tion. It is obviously one of the hardest cases in which we have to choose between types and methods
of coercion. Allowing for a child to terminate her life based on religious beliefs she adopted at an
immature age, means accepting the coercion exercised by the parents and the religious community.
Allowing for the state to intervene and oblige doctors to provide medical care entails coercion of the -
even if imperfect- will of the child herself. Considerations of both the meaning and content of chil-
dren’s rights, as developed above, and the best interests of the child in terms of favouring health and
life, make us vote in favour of the second type of coercion.
45 See Case The Queen v RJ and DA Moorhead, TO 11974 High Court of New Zealand, Auckland registry 2002
– as yet officially unreported.
548 LINA PAPADOPOULOU
B. Religious upbringing after parents’ divorce
Respecting family privacy, the State does not intervene with the religious upbringing of a child. It is
mainly in the case of a separation or divorce when Courts are requested to solve disputes that involve
the legal custody of the children and their religious upbringing.46 A common argument in these cases
is that of the parents’ religion faith. Adherents of minority religions often face difficulties to keep or
acquire custody of the children as they usually face the disbelief of the Courts. This is due to the fact
that although discrimination based on religious grounds is prohibited, taking into account potential
effects due to the religious behaviour of the parents is considered legitimate.47 In the litigants’, the
Court’s, law’s48 and literature’s language such cases are considered to be concerned with ‘the best
interest of the child’. What is usually included in this term is the principle of continuity and the avoid-
ance of that parent who is involved with religious practices that may be ‘harmful’ for the child, a
qualification more often attributed to minority sects.
What should be the stance of somebody adopting the main thesis of this paper towards such
types of dispute? First of all, we need to observe that such disputes are not about children’s rights or
interests. The question rose whether the child’s rights should be subsumed within the ‘best interest’
test, as opposed to the reverse.49 We think that when the question concerns a child’s (spiritual) cus-
tody by one of the parents due to the different religious upbringing that each of them fosters for the
child, then it is never about the child’s right to religious freedom, which is only preserved by a relig-
ion-neutral upbringing. As for the best interests of the child, they are often considered in terms of the
influence on his upbringing of the majority religion out of the two.50 This interpretation of the ‘best
46 See S.E.Mumford, ‘The Judicial Resolution of Disputes involving Children and Religion’, in International
and Comparative Law Quarterly 47 (1998), pp. 117- 148.
47 Irene Fahrenhorst, ‘Sorgerecht und Religion. Anmerkung zum EGMR-Urteil im Fall Ingrid Hoffmann gegen
Österreich’, in Europåische Grundrechtezeitschrift 1996, pp. 633-638, at 634.
48 See for example the German law “Gesetz über die religiöse Kindererziehung” of 1921, providing that:
“Maßgebend … ist das Wohl des Kindes, das nicht in Gewissensnot und seelische Erschütterung gebracht
werden darf”.
49 See for example Justice’s Strassbourg-Cohen opinion in Israeli case 1. Anonymous (minor), 2. Anonymous
(minor), 3. Anonymous (minor) v. Anonymous, C.A. 2633/93, 49(1)P.D.221 (as cited in Veerman & Sand,
op. cit., p. 387f.), where a mother lost spiritual custody of her children being in her physical custody. The Su-
preme Court’s decision emphasises that the child’s right not to be converted overrules the parent’s right to
raise her children according to their own faith.
50 This is the direction chosen by President Shamgar of the Supreme Court of Israel in the same case mentioned
above. Whereas he underlines the novelty of the concept of children’s rights and asserts that they should be
seen as autonomous beings whose constitutional values must be protected against both the State and their
parents, he actually chooses between religions, mainly based on the fact that the one is the majority and state
religion (Judaism) and thus is in the best interest of the child to belong to. That is, although there is a refer-
ence to ‘rights’, the main decision is taken based on a necessarily paternalistic idea of ‘interest’. If there are
any opposed rights here these are the parents’ ‘rights’ to destine their child’s faith, or even the state’s interests
to strengthen the state religion.
CHILDREN AND RELIGIOUS FREEDOM 549
interests’ reflects the justice’s bias in favour of state religion51, and thus is trapped in a vicious circle
of non-neutral-towards-religions thinking52, that the freedom of religion would actually require.
If the whole dispute and worries really came back to the best interest of the child, then the state’s,
or specifically the Court’s intervention should take place even before the divorce, in the case of both
parents belonging to the same, considered (potentially) harmful, religion or sect. Even if a parent’s
adherence may be considered harmful, it is mostly the health53 and life of the child and sometimes his
social exclusion54 due to the minority character of the sect that are argued to be at stake. The dispute
is not about the child’s right of religious freedom, which is being violated in any case by his imposed
adherence to a specific religion, whichever it is.
The dispute is only about the egotistical interests and wishes of the parents, who want to abuse
their power over their child and shape his religious conscience according to their own preferences55,
or the political interests of the state in promoting its own state religion - a very specific and compre-
hensive ideology and lifestyle.
We have already argued above however that such an abuse of power, although endorsed by Arti-
cle 2 of the First Protocol of the ECHR, should not be conceived of as a right as it infringes the
child’s right to a freely and autonomously chosen religion. Based on these premises a Court devoted
to children’s rights as asserted here would not take the parent’s religion into account, but, other con-
siderations being equal, would consider the parent’s readiness to respect the child’s autonomy through
avoiding any religious (as well as political) indoctrination. Taking the child away from a parent based
on the latter’s religious (or political) beliefs infringes his or her right to religious freedom, whereas by
51 Analysing cases of parental dispute over religious education Mumford, op. cit., 125, notes that judges tend to
describe most favourably parties whose faith they themselves shared or “was at least within the range of ‘tra-
ditional’ faiths familiar to the judges”.
52 That is at least the declared stance of the English Courts since 1931, when in case In re J.M. Carroll (an in-
fant), (K.B. 317, at 336), the Court of Appeal stated that it was “perfectly impartial in matters of religion, for
the reason that it has as a Court no evidence, no knowledge, no views as to the respective merits of the relig-
ious views of various denominations”.
53 Mostly in the case of Jehovah’s Witnesses, who refuse blood transactions for both themselves and their chil-
dren.
54 See for example the decision of the European Human Rights Court in Case Hoffmann v. Austria of
23.06.1993, Series A, Nr. 255-C, p. 45ff., Nr 15 where stated that: “It has also been established that if the
children are educated according to the religious teaching of the Jehovah’s Witnesses, they will become social
outcasts”. Also OLG Frankfurt/Main, FamRZ 1994, 920f. (921), that the principles of upbringing of the Je-
hovah’s Witnesses “langfristig zur Ghettoisierung der Kinder führen”.
55 See the revealing statement of the Judge Mifsud Bonnici of the European Court of Human Rights in Case
Hoffmann v. Austria of 23.06.1993, Series A, Nr. 255-C, p. 45ff. who – distancing himself from the majority
votum – stated that what is exclusively important is whether the litigant (a mother who was denied custody
mainly due to her adherence to the Jehovah’s Witnesses) had the right to change the child’s religion against
the original agreement with her ex-husband to bring up the child as a Catholic.
550 LINA PAPADOPOULOU
the same token the upbringing of a child according to a single religious doctrine, always one of the
parent(s), infringes the child’s same right. The endangering of the child’s health is abstract at the time
of the decision about custody; it only becomes real in a case of need in which case what was said
above should prevail - that is that the doctor can act without parental consent and even without a
Court’s decision, if any delay would be vital for the child’s life or would cause irreparable health
damage.
C. Religious courses at schools
Were the religious freedom of children to be respected, the state should provide non-dogmatic relig-
ious education open to multiple doctrines and theistic approaches. One argument in favour of relig-
ious education for children is that the contrary would violate the parents’ religious convictions.56 Here
it is argued that a religion-neutral educational program would not violate the parents’ religious free-
dom exactly because the latter does not extend to their children’s lives. Their right stops where their
child’s right starts. In terms of education this would mean that no religion should be taught up to a
certain age (maybe 10-11). Afterwards education should give children the opportunity to all, or at
least the main religions, probably with an added emphasis on those that exist in the specific state.
Only such an education provided by the state and not violated by parents can provide the child with
the necessary conditions to exercise her freedom of religion.57
Religious schools pose a significant problem within this context as they infringe the child’s
right to religious freedom. This is due to the fact that in those schools it is not only the course of
religion that is directed to the specific religion but the whole educational program as well as the
curriculum of the school and the viewpoint of each particular course.
56 See Wolterstorff in Robert Audi and Nicholas Wolterstorff, Religion in the Public Square (Lanham, Md:
Rowman & Littlefield, 1997, p. 116, where he accuses the liberal who assumes that “an educational program
which makes no reference to religion is not in violation of any parent’s religious convictions. He assumes, in
other words, that though religious people may not be in the habit of dividing their life into a religious compo-
nent and a non-religious component, aand though some might not be happy doing so, nonetheless, their doing
so would not be in violation of anybody’s religion. But he’s wrong about this.” (emphasis in the original). As
stated in the beginning, the theses in this paper are not based on an original assumption of a distinction be-
tween political and comprehensive liberalism, against which Wolterstorff argues. We do recognise the right
of religious people to bring their religious reasoning into political decisions and their whole lives. What we
argue against is that this right extends to their children’s lives, as if they belonged to the parents. We argue
that since children cannot have any freely chosen comprehensive doctrines due to their cognitive and moral
immaturity, they should then have no comprehensive doctrine at all but learn about more available compre-
hensive doctrines, so that they are in a position to choose between them freely and autonomously, when their
abilities allow for it.
57 Malfrid Grude Flekkøy, the first Children’s Ombudsman in Norway, noted that teaching faith, that is the duty
to teach in schools mainly the Protestant-Lutheran Norwegian State religion, might limit the freedom of
choice (as cited in Veerman & Sand, op. cit., p. 387).
CHILDREN AND RELIGIOUS FREEDOM 551
XI. CONCLUSION
The theses and stances explored and adopted here go beyond the practice and some of the legal
provisions in the field of children’s religious freedom. Traditions followed over centuries pose
factual difficulties to any attempt to apply them in the short term. The paper aimed however to
have both an analytical and a normative implication. The analytical aimed to show that the dis-
course about fundamental rights as a new and sometimes acclaimed as universal narrative often
runs in counter to long lasting traditions and practices. Thus its realisation often requires the trans-
formation of both the factual and the imaginary ‘reality’ as much as its development is a still on-
going and maybe open-ended project. This latter is exemplified in the differentiation of the mean-
ing even of prototypical rights, such as the freedom of religion. The paper suggests that freedom of
religion is a right of a person, not of a community or a religion itself. It thus presupposes freedom
of choice and not merely freedom of worship.
If this analytical suggestion is cogent, then a normative one arises. If we choose freedom of re-
ligion as a subjective right over freedom of a religion to impose itself on the subjects, then norma-
tively, we need to accept that children, since they lack the moral and cognitive skills to make an in-
formed and free choice of religion, should not be indoctrinated and adhere to a specific religion before
they are mature enough to do so. We need furthermore to accept that parents do not have the right to
choose their children’s religion and decide about their religious education. Freedom of religion for
adults can only be realised if children have already enjoyed it, in its special manifestation as freedom
from religion.
Article
Full-text available
W artykule dokonano syntezy i oceny wskazywanych w doktrynie prawniczej oraz stosowanych w orzecznictwie różnych państw kryteriów sądowego rozstrzygania sporów rodziców w przedmiocie religijnego wychowania ich dzieci. Kolizja praw i wolności rodziców (prawo do wychowania dziecka zgodnie z własnymi przekonaniami, prawo do prywatności i życia rodzinnego, wolność wyznania), niejednolitość rozumienia dobra dziecka oraz wiążąca sąd zasada bezstronności (neutralności) religijnej władz publicznych czynią tytułową kategorię spraw szczególnie trudną do rozstrzygania. Ich złożoność sprawia, że przepisy prawa w ograniczonym stopniu mogą ukierunkowywać i determinować praktykę orzeczniczą, nie znosząc potrzeby kontekstualnego podejścia do konkretnego przypadku przez sąd działający w granicach niemałej dyskrecjonalności. Autor stoi na stanowisku, że sądy, rozstrzygając spory rodzicielskie, powinny za każdym razem starać się ograniczyć prawo matki czy ojca do wychowania dziecka zgodnie z własnymi przekonaniami w stopniu najmniejszym z możliwych, a zarazem w sposób wciąż adekwatny do dobra dziecka rozumianego w kategoriach jego ochrony przed szkodą fizyczną i psychologiczną, ale zasadniczo już nie w kategoriach przyszłej pomyślności.
Chapter
This chapter analyses some of the problems that arise in the exercise of the right to religious freedom by minors. To carry out the study, cases have been selected from the European Court of Human Rights that deal with the education of minors in accordance with the religious beliefs of their parents, respect for the cultural and religious tradition of minors in the adoption of protective measures that entail a restriction of parental authority, conflicts between parents themselves regarding the religious orientation of their children, and parental refusal of compulsory vaccination of children. Emphasis is placed on the importance of respecting the child’s autonomy, maturity and best interests without undermining parental rights or making subjective value judgments about their beliefs.
Article
El autor discute que los niños, con el pretexto de que están protegidos, son humillados y degradados por la sociedad; y que no se les permite ser juez de lo más conveniente para ellos.
Reflections on Children's Rights Citizen Child: Australian Law and Children's Rights, Melbourne: Australian Institute of Family Studies
  • Margaret Coady
Margaret Coady, 'Reflections on Children's Rights', in Kathleen Funder (ed.) Citizen Child: Australian Law and Children's Rights, Melbourne: Australian Institute of Family Studies 1996, pp. 11-32 (11).