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THE INTERNATIONAL JOURNAL OF CHILDRENS RIGHTS

International Journal of Childrens Rights 15 (2007) 117

www.brill.nl/chil

The Childs Right to Religious Freedom and Formation of Identity

Anat Scolnicov
Fellow and Lecturer in Law, Lucy Cavendish College, University of Cambridge

A childs identity is formed relative to, but separate from, his or her family. Identity has many facets, including those of gender, family membership, nationality, and moral outlook. Some aspects of identity are immutable, such as race, some are mutable, such as religious identity. Both mutable and immutable characteristics form identity, and the line between the two is not necessarily clear-cut. Race, of course, is predetermined and immutable, but the formation of an identity, in which belonging to a racial group bears or does not bear a significance, is not. Sex is biologically determined, but gender identity is formed through social learning. Furthermore, the line between mutable and immutable characteristics does not stay fixed. In the future, for instance, parents might be able to choose the genetic makeup of their child. The legitimacy of such a means of controlling a childs identity by the parents is very different from that of controlling education, religion, or national identity. Nevertheless, it can be seen as simply a more extreme case of control of identity. This paper will examine the way in which family bonds influence the childs religious identity. Specifically, it will analyse the legal regulation of parents rights over the childs religious identity, asking to what extent parents should be allowed to create the childs identity, to what extent the state should control it, and how the law should regulate this process. I will argue that the law has fostered the ability of parents to control the formation of their childrens religious identity. However, a discussion of the subjacent principles involved is still missing. I test this argument by examining legal regulation in two circumstances of a break in continuity: adoption, and entering school. I analyse how the law protects, in these circumstances, family control over the formation of religious identity. In the case of adoption, I compare the legal regulation of formation or preservation of religious identity with regulation regarding formation of race identity. In the case

Koninklijke Brill NV, Leiden, 2007

DOI:

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of entering school, I analyse the competing and complementing roles of parents and state in formation of religious identity. The childs religious identity is determined from, or even before, his or her birth. Ones original religious identity is a product of social and legal mechanisms, not of individual choice. This determination is recognized and given legal protection, in certain cases. International law, while recognising the childs religious freedom, gives special recognition to the parental bond regarding this right and its exercise, thus helping foster familial religious identity. The U.N. Convention on the Rights of the Child, Article 14, guarantees the childs right to freedom of religion.1 Article 14 was modelled on article 18 of the International Covenant on Civil and Political Rights guaranteeing religious freedom.2 An overarching provision of the UN Convention, Article 5, establishes that all Convention rights, and freedom of religion is no exception, differ from the rights accorded to adults, in that the parents, and sometimes members of the extended family or community,3 retain the right and duty to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by their children of their convention rights. Freedom of religion of the child is, however, subjected to a further qualification. Article 14 refers specifically to the obligation of the states to respect the rights and duties of parents to provide direction to the child. Parental rights are mentioned in regard to freedom of religion. They are not mentioned in articles regarding other rights of the child, such as rights of expression, assembly and privacy.4 Why this difference? If the reason is the relative immaturity of the child to make his or her own decisions and exercise autonomous choice, this reason applies to many other rights. However, regarding religion the parents are seen as having a right to shape their childs identity. In this, this right is different from other rights such as freedom of speech or freedom of assembly of the child.

Similarly, the African Charter on the Rights and Welfare of the Child , Doc. CAB/LEG/24.9/49 guarantees that: 1. Every child shall have the right to freedom of thought conscience and religion. 2. Parents, and where applicable, legal guardians shall have a duty to provide guidance and direction in the exercise of these rights having regard to the evolving capacities, and best interests of the child. 3. States Parties shall respect the duty of parents and where applicable, legal guardians to provide guidance and direction in the enjoyment of these rights subject to the national laws and policies. (see Article 9). 2) For a discussion of the controversy surrounding the drafting of this Article, see: Veerman and Sand [2000]. 3) When provided for by local custom. 4) Although Flekkoy and Kaufman (1997) p. 34 point out that the parents right is only to provide direction to the child, and not to determine the childs religion.

1)

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How this shaping of identity is manifested can be seen in the regulation of adoption and in the regulation of choice of education. 1. Adoption A newborn child obviously does not choose his or her religion. Generally, the childs religious identity bestowed upon him or her by his or her parents is unquestioned. As long as the parents agree on the childs religion, no question is asked as to whether the choice of religion is in the best interest of the child (so long it does not cause harm). However, in cases of parental disagreement over the childs religion, the legal system inquires whether the religious choice of either parent stands in conflict with their childs best interest.5 The law intrudes into a field usually reserved for family autonomy, simply because a decision must be reached. The question whether the childs religious identity must be a continuation of one or both of his or her parents identities is asked by the law only when there is an external breach in the continuity of family cohesion. Such is the case when parents disagree over the childs religion (usually following separation) or when the child is given to adoption. Protection of religious identity is rarely protection of the exercise of individual choice. What is protected is affiliation, determined usually not even by an active choice of parents, but by their own membership in a religious group. This is generally true, but is seen most clearly when the retention of original religious identity is stretched to its limitin the case of adoption. In adoption, the child no longer belongs to a particular religion as part and parcel of belonging to the birth family. The social perception that values retaining the childs religion in adoption protects neither choice nor continuing family connections, but a predetermined identity. When prospective adoptive parents are of a different religion than the birth religion of the child, the question arises acutely. Should children ever be adopted or fostered by parents of a different religion? Are those who oppose cross-religious adoptions protecting the childs interest to remain in his/her religion, or the interest of the community to which it belongs? With a child old enough to understand his or her religious affiliation, there is a consideration of the interest of the child not to add change of religion to the overwhelming change of the adoption itself. But there is also an argument against inter-religious adoption of infants akin to

5) An Austrian law prohibiting a parent, without consent of the other parent, from bringing up the children in a faith different from that held by the parents at the time of the marriage, or from the religion in which the children had been brought up, was examined by the European Court of Human Rights in Hoffman v. Austria (1993) 17 EHRR 293. The Court decided the law impermissibly subjected each of the parents to a different treatment on the basis on his or her religion, violating Article 14 in conjunction with Article 8 of the ECHR.

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that raised against inter-racial adoption. Generally, such arguments are voiced against adopting from a minority or disadvantaged racial or religious group. The argument could be seen as protecting an individual rightprotecting the child from being denied his or her heritage, but could also be seen as protecting a group interest of self-preservation. Such an interest of the group might stand in direct conflict with the interest of the child in a speedy adoption. International legal regulation, found in the Convention (Article 20(3) ), mandates that, in placement of children, whether for adoption or foster care, due regard is to be given to the childs ethnic, religious, cultural and linguistic background. Article 8 specifically mentions a right of the child to preserve his or her identity. Article 3 demands that the best interests of the child be the primary consideration in all actions concerning children. However, there is no clear indication as to how these provisions are to be translated into practice regarding adoption. Specifically, who can decide on the exercise of the childs right to identity: the parents, the adoption agency, the courts? and where is the childs right to identity to be placed among other considerations? The UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief in Article 5(4) states that in the case of a child who is not under the care either of his parents or of legal guardians, due account shall be taken of their expressed wishes or of any other proof of their wishes in the matter of religion or belief, the best interests of the child being the guiding principle. There are no clearer international norms, but it is instructive to see how this was interpreted in the domestic law of the Unite Kingdom and of other states. Different approaches to matching of identity between adopter and adopted appear in the practice of states regarding different aspects of identity. However, as will be seen, religion was often treated differently from other aspects of the childs identity. The legitimacy of maintaining the religious affiliation of the child in adoption placement, at least as an important consideration, was almost unquestioned. An approach which mandates matching child to adopting parents as far as their religion is concerned, is taken by the Israeli law. The Adoption Law, 1981 states (in Article 5) that there is no adoption but by a parent of the same religion as the child. The provision refers to matching only in regard to religion, and reflects the perceived importance, in this state, of religious identity to individual identity and of familial religious cohesion. In Israel, this is particularly poignant, reflecting historical memories of Jewish life in the Diaspora, where children of the Jewish minority were converted into the majority religion. However, this limitation can be bypassed, as the Legal Capacity and Guardianship Law, 1962 (in Article 13A (c)) allows for the conversion of the child to the religion of the adoptive parents, subject to court approval. The unique perception of religion among other characteristics of identity in the kinship bond is exemplified also in US law, which shows the difference in legal

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treatment between race and religion, a difference which social perception underlies. Race was the crux of American identity politics throughout the 1970s1990s, and specifically at the centre of adoption policy controversy, in a way that religion was not, leading both to the implementation of race-matching policies and, as a counter-move, their prohibition. A peak in transracial adoptions in 1971 resulted in their condemnation by the Association of Black Social Workers in 1972, followed by almost an end to transracial adoptions.6 This prompted the legislation of the Multiethnic Placement Act 1994.7 It prohibits delaying or denying placement for adoption or foster care on the basis of race, color or national origin of parent or child by Federally funded agencies. However, it has been claimed that this is often circumvented by the permissible cultural competence considerations, which are in fact used for racial matching.8 There is no similar Federal prohibition on matching religious background in adoption. Clearly, the lawmakers believed religious matching is an acceptable policy while race matching is not. However, state law varies. For example, Connecticut law mandates that adoption will not be disapproved solely because of difference between child an adopting parent in race, color or religion.9 A position that embraces religious background as one of a number of important considerations for placement in taken by UK law. Until the Children Act 1975 consent to adoption could be given subject to a condition concerning the religion in which the child would be brought up. Even when a mother had reconsidered, after the placement of her child, and asked for the child to be returned to her so she could place the child with an agency of her religion, the Court of Appeal held that the court must give effect to the religious religious choice of the parent.10 This reflected a common law rule that parents (originally the father or the mother of an illegitimate child) have a natural right to determine the religion of their children (Hamilton, 1995). Following the 1972 report of the Houghton Committee, the Children Act 1975 abolished this possibility. The subsequent Adoption Act 1976 provided ( in s. 7) that an agency shall, in placing a child, have regard, so far as is practicable, to any wishes of the childs parents or guardians as to the religious upbringing of the child. Today, the Adoption and Children Act 2002 requires the adoption agency duly to consider the childs religious persuasion, racial origin and cultural and linguistic background (see s. 1(5), although the paramount consideration is the childs welfare, and any delay in placing the child must be borne in mind as likely to prejudice the childs welfare (see s. 1(2), and (4) ). A similar approach is taken by the English

6) 7) 8) 9) 10)

Carp (2004) p. 24. The Multiethnic Placement Act 1994, amended 1996, 42 USCA 1996b. Bartholet (1998) p. 2354. Conn. Gn. Stat. 45a-725(c )(3). Re Carroll [1931] 1KB 317.

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Children Act 1989, which applies in other matters regarding the upbringing of the child (such as placement of children in foster homes by local authorities). Section 1(1) mandates that the welfare of the child shall be a paramount consideration. Section 22(5)(c ) mandates that a local authority give due consideration to the childs religious persuasion, racial origin and cultural and linguistic background. Even prior to the 2002 Adoption and Children Act, English courts have taken into consideration the prospective adopted childrens religious, and other, background. If there are suitable adopters of the requested religion, they will be preferred. But the English courts have seen the welfare of a child as a consideration that can prevail over the religious convictions of the parents/parent if there are no suitable adopters of the required religion. For instance, in Re C (Adoption: Religious Observance)11 the High Court accepted that parents religious wishes should be taken into account, but their wishes should be weighed against the childs need for a stable, loving environment and other emotional, cultural and religious needs. The legitimacy of the consideration of religious background itself was not questioned. It is unquestioned by the courts, in the cases which will be discussed, and indeed follows the statute, that a child, even a baby who is clearly not yet attached to any religion, should preferably be placed with a family of his or her religion of origin. There is no discussion in case-law of why this is so, or what interest is served by including this consideration. The effect of such as consideration can be beneficial, but can also sometimes be detrimental to the child. In some cases in which there is difficulty in finding religiously matching adopters, the child remains in foster care, delaying or even preventing adoption. This was the case in Re E (An Infant),12 in which wardship proceedings were at issue. A previous decision had accepted the mothers religious belief that the child must be brought up in a family of a particular religion as a valid reason for her refusal to consent to adoption (hence the wardship proceedings). Even though the case concerned a baby a few months old, the Court held that great significance should be given to the wishes of the mother as to the religious upbringing of her child, but not when the childs welfare required otherwise (as in the case at hand). Thus, wardship was continued. But, because of the previous ruling, the child could not be adopted, which, other than for reasons of religion matching, would have been the preferable option for the childs welfare. Apart from the practical consequences of recognition of parents refusal to agree to a cross-religious adoption, there appears to be a lack of clarity as to what rights are involved. In Re P (A Minor) (Residence Order: Childs Welfare),13 a daughter
11) 12) 13)

[2002] 1 FLR 1119. [1964] 1 WLR 51. [2000] Fam. 15.

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with Down syndrome, of Orthodox Jewish parents, was placed with a nonpracticing Christian foster family. In deciding whether to vary the residence order, Butler-Sloss L. J. cited as the primary consideration the welfare of the child. In this case, the childs need for a settled life outweighed the religious considerations. But through the balancing of considerations an important question arose, whether the insistence of the parents that the child would be placed only with a Jewish family was meaningful, as her capacity to understand her religious affiliation was not expected ever to surpass that of a ten-year old. This factor led the lower court to reject the parents challenge to the placement, finding that she was unlikely to have any real perception of her Jewish heritage. The Court of Appeal accepted this reasoning (although mostly its decision was based on the other factors weighing heavily in favour of the placement). However, it can be asked, why should it matter at all as a consideration for placement whether a child will be able to understand (in the future) his or her religious affiliation? If the right invoked in support of this consideration is a right of the child to enjoy his or her religious affiliation, then a placement of a small child for adoption is never an exercise of this right, as there is no exercise of choice involved. This is true of any small child, whether he or she will be able in the future to understand his or her religious identity or not, as it is an identity which was chosen for him or her. On the other hand, if what is invoked is a right of the parents that their child will continue to bear their religious identity, then placement within their religion is always an exercise of this right, whether or not the child will ever be able to understand this identity. In Re P, Ward L. J., concurring, agreed with the analysis of Butler-Sloss L. J. which weighed religion as one factor in determining the welfare of the child. He added to the welfare analysis a rights analysis, mentioning that children have rights in international conventions ratified by the United Kingdom. The conventions may not have the force of law but, as international treaties, they command and receive our respect, he said, referring specifically to Article 14 of the Convention on the Rights of the Child (guaranteeing freedom of religion). He called it a right to practise ones parents religion. There is a confusion in this rights analysis between the rights of the child and the rights of the parents. The assumption that the child, who is not choosing the religion of his or her adoptive parents, is in some way exercising his or her own right by being given the opportunity to practice his or her parents religion, is telling. In fact, what is protected in this case is an interest of the biological parents to have their children brought up in their religion, even when they will be raised in a different family. This may be an interest worthy of protection or even of recognition as an independent right, but it is certainly not a right protected by the Convention, which protects rights of children. But there is a pivotal difference between adoption into a family of a different race and adoption into a family of a different religion. Parents could bring up a

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child within a racial/cultural identity different from their own, more or less successfully, as the case may be. But religion has to be believed in. Parents could respect the different religion of the child, but they could not play the parental role inherent in the doctrines of many religions, unless they themselves believed in it. This problem is shown by the Re E14 case: It was suggested by the unsuccessful prospective adopters, who now wanted to be granted custody of the child, that they would bring the child up according to the Roman Catholic faith, even though they were secular, of Jewish descent. This proposal was understandably rejected by the Court, which saw the inevitable meaning of placement with this family, namely that the child would not be raised as a Catholic.15 It would be better to acknowledge the existence of an argument supporting matching that is separate from any measure of psychological adjustment in adoption. This argument is based on a claim of a right of belonging to a defined community, whether defined by religion or by race. This raises two further distinct questions: whether such a right is conceptually possible and whether it exists within international human rights law, and criticisms on both counts have been raised above. Such an argument could also be construed as an argument for a right of the parents or of the community to which the child was born. Sometimes, it may be legitimate to consider group interests in adoption placement, particularly in cases where the survival of the group is at stake. This approach would explain the Australian Aboriginal Child Placement Principle, adopted in various legislation in all Australian States and Territories,16 which ranks placement options for aboriginal children, placing extended family ahead of other aboriginal community members, which, in turn, are considered ahead of other adopters.17 Placement authorities are permitted to move down this list of potential placements only when to do otherwise would be detrimental to the childs welfare. A similar principle appears in the US Indian Child Welfare Act for placing NativeAmerican children,18 which overrides the equality principle of the Multiethnic Placement Act regarding these placements. It has been argued that it is legitimate to consider the interests of a group that could cease to exist if its children were adopted by outsiders, as is the case with the aboriginal community, but not those of larger minorities, such as in the UK.19 This would be true for children from a

See note 12. The Court nevertheless approved the custody of the Jewish couple in this case. 16) Incorporation of the principle: New South Wales: Section 87 of the Children (Care and Protection) Act 1987; South Australia: Section 5 of the Childrens Protection Act 1993; Northern Territory: Community Welfare Act 1983; Victoria: Section 119 of the Children and Young Persons Act 1989; Western Australia, Queensland, Tasmania and ACT: governmental policy. 17) See Dewar, (2000) p. 91. 18) 25 USC Ch. 25 1915. 19) As Murphy (2000), p. 33 argues.
15)

14)

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religious community at risk as much as other minority groups at risk. The approach which centers on the group, however, whether of any group or only small minorities, stands at odds with the rights articulated in international law regarding adoption, which are not rights of the community but of the child. State approaches encountered to religion-matching in adoption generally started from the premise that a child should, other things being equal, be adopted into his or her parents religion. (Even the US approach prohibiting matching did not include religion in its formulation in Federal law). The difference between the approaches was under what, if any, conditions could the religious determination of parent over child be overcome. The analysis of the legal approaches to the need for adoption of a child into the religion of birth uncovers a common underlying acceptance, that parents have a presumptive right to determine their offsprings religious identity, even when these are no longer part of their family unit, and to the protection of this connection. 2. Right of Parents to Choose Religious Education Religious identity is determined at birth but fostered through education. Education influences the way individual choices are made. The regulation of choice of religious education by international, and national law, is thus another way in which the law shapes the control that parents have over the formation of the childs religious identity. Should parents have this control over the childs religious identity through choice of education? It might be argued, that if it is the right to religious freedom of the child from which a right to choose religious education is derived, then no religious education should be given to children, no matter what are their parents wishes. Moreover, even if children choose freely their religious education, they will be unduly influenced in their choice by their parents. Therefore, non-religious education would be the only clean slate upon which they will be able make up their own minds as to their choice of religion in the future.20 Creating such a capability for meaningful exercise of religious choice would require a neutral education. But there is a problem in defining neutrality in education. There can be two definitions: education which fosters a neutral religious identity, or education which imparts a lack of prejudice against any religious viewpoint.21 Is it possible to impart the second kind of neutrality rather that the first? It can be argued that such a negative capability, can be taught, but not at a very young age. In order to grow up as full individuals, according to this argument,

20) 21)

See: Dwyer [1998]. For a riposte to this argument see Ahdar [2002]. Compare a discussion of first and second order neutrality in De Marneffe, (1990) p. 253.

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children should first be given an affiliation, whether national or religious. It is not advisable or even possible to raise a child with no sense of identity. Similarly, it would seem impossible to instil in a child a completely neutral gender identity, lacking in any gender role. But this does not mean that we cannot teach children not to accept stereotypical gender roles and to accept different sexual orientations The argument against a neutral education can be understood by reference to Nagels22 more general claim that liberal theory is non-neutral, because it discounts conceptions that depend on inter-personal relations. Indeed, the family and particularly the parental bond constitute such relations, ignored by the call for religiously-neutral education. It can be argued that the family as a group has rights. ONeill23 has commented on the tension between childrens rights and family rights. He sees the individualistic approach to rights as unsatisfactory when it comes to the intra-family relationship and suggests instead a mode of family covenant. ONeill does not deal with the role of religion in the family covenant. However, it seems that religious cohesion might play an important part in this covenant. Although the perception of the family as a bearer of rights has been criticised in this paper, it cannot be denied that there is much importance in familial religious cohes ion. A judgement must be made whether the value of this bond is enough to overcome the individualistic conception of rights. As will be seen, international human rights law has prevaricated between two approaches, one protecting the family bond and the other protecting the individual right of the child. This, without much principled discussion. Regulation of the parents control over their childs religious education is particularly interesting because the guarantee of education in conformity with the childs religion is one of the first issues in which international law has dealt with the conduct of the family unit. It is worthwhile to inquire what considerations are implied by international instruments, especially whether these considerations were intended to protect the right of the child or strengthen the protection of familial or even community control. Initially, state obligations regarding religious education were not based on childrens rights or even parents rights, but were intended for protection and preservation of the relevant minority. The particular interest in childrens education was a product of minority communities wish to guarantee the continued existence of their religious minority community into the next generation. Protection of religious education in international law begins in instruments protecting groups, and predates the 1948 watershed of individual rights, the Universal

22) 23)

See Nagel, (1975) p. 9. ONeill (1994) p. 63.

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Declaration of Human Rights. The Minority Treaties included guarantee of religious education. For instance, the 1919 Minorities Treaty between the Principled Allied and Associated Forces and Poland24 committed Poland to equal funding for educational, religious and charitable causes of minorities. The Permanent Court of International Justice25 opined, that the prohibition of privately owned schools by the Albanian constitution was a breach of Albanias obligations regarding religious and linguistic minorities. A similar minority protection guarantee in the inter-war era, a provision regarding childrens religious education, was included in the Anglo-Irish treaties. The Articles of Agreement for a Treaty Between Great Britain and Ireland26 establish that Ireland will not endow any religion or restrict free exercise or affect rights of children to attend publicly financed schools without receiving religious education (see Article 16). The 1937 Irish Constitution (in Article 44.2.4) guarantees the right of any child to attend school without receiving religious instruction. In this case too, the religious education provision in the treaty concluded between states was aimed at a protection of the Protestant minority rather than childrens rights, as other rights of children are not mentioned or protected by it. Even in the post-1948 era of individual human rights, the right to choose religious or moral education was first only recognized as a right of the parents, and only later of the child: Under the ICCPR (Article 18 (4)), states undertake to have respect for the liberty of the parents and, when applicable, legal guardians, to ensure the religious and moral education of their children in conformity with their own convictions.27 The same wording is used in Article 13(3) of the International Covenant on Economic Social and Cultural Rights. Van Bueren (1998, 159) believes the omission of the childs own right to religious freedom in the ICCPR was due to oversight. More likely, however, this approach follows the Universal Declaration, which viewed the childs religious education as a right of the parents rather than of the individual child. Indeed, such a right accorded to the child would be incompatible with that of the parent. Article 26(3) of the Universal Declaration of Human Rights states, that parents have a prior right to choose the kind of education that shall be given to their children. While

Treaty Series, No. 8 (1919).Treaty reprinted in Robinson [1943] Appendix I. Minority Schools in Albania (advisory opinion) PCIJ Rep. (ser. A/B) No. 4 (1935). 26) 6 December 1921. Documents on Irish Foreign Policy Vol. I, 1919-1922 NAI DE 2/304/1. 27) However, legitimate limits to this right have been recognised. In Comm. No. 40/1978 Hartikainen v. Finland, CCPR/C/OP/1/1984 at 74, the UN Human Rights Committee decided that state requirement that every school pupil will receive some instruction in religion or ethics, when the parents are given a choice to accept the school instruction or to opt for outside instruction of their choosing, does not breach Article 18 (4) of the ICCPR.
25)

24)

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this article does not refer specifically to religious education, it is clearly one of the important choices protected by it.28 Its phrasing resulted from a conscious ideological choice of the drafters to offset state power over education by giving parents the pre-emptory choice over the kind of education their children receive. In this context, it is notable that, during the drafting negotiations, the proponents of this phrase, such as Dr. Malik of Lebanon, stressed the need to take control of education out of the hands of the states, where dictators could use it to teach against the principles enshrined in the Declaration, much as Hitler used the state education system to inculcate pupils in Nazi principles.29 This rationale reflects the fear that the state will provide an education which will teach pupils not to respect human rights. It ignores the possibility that the parents will choose private education, including religious education, which will go against the human rights principles of the Declaration. Children are not mentioned as bearers of rights, but rather a power balance is sought between the state, which can and must provide compulsory education,30 and the parents, who have a prior right of choice of education. Similarly, the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief states the childs right to access to education in accordance with the wishes of his parents or guardians, the best interests of the child being the guiding principle.31 Thus, the parents are given the initial legal control over the childs religion. The only limitations on the practices of the childs religious upbringing are that they not be injurious to his health or development.32 By giving the parents the right to organize the life of the family in accordance with their religion or belief,33 the 1981 Declaration recognizes the family as an autonomous religious group headed by the parents. As in international documents, the right to choose religious education as a right of the parents, is also espoused in some national constitutions.34 The European Convention for the Protection of Human Rights and Fundamental Freedoms and its jurisprudence bring into sharp relief the problems

Morsink [1999] p. 267. Ibid, 30) Article 26(1). 31) Article 5(2). 32) Article 5(5). 33) Article 5(1). 34) E.g., in Cyprus, Article 18 of the 1960 Constitution provides the right of parents to bring up their children according to their own convictions. However, the Constitution of Malta, article 2, specifically decrees that [r]eligious teaching of the Roman Catholic Apostolic Faith shall be provided in all State schools as part of compulsory education.
29)

28)

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of assigning to parents the right to choose religious education for their child. The European Convention recognizes in Protocol 1 (2) that:
. . . the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. 35

Since no mention is made of childrens right regarding their education, it is not the right of the child that is encapsulated in Protocol 1(2), but the right of parents. Here, as with the similar provisions enshrining parental choice in religious education, it may be suggested that the right is accorded to parents because they are seen as agents of the religious community to which they belong. The Draft Charter of Fundamental Rights of the European Union, part of the proposed EU Constitution, attempts to affect a balance between the parents right and the constraint of democratic principles.36 Again, the voice of the child is not heard. Unequivocal recognition of the childs own rights was finally given in 1989 in the UN Convention, which includes in Articles 14 and 28 the childs rights to religious freedom and education. An approach to identity and religious education more coherent with this current approach of the rights of the child would be to formulate the right to choose education according to religious and philosophical convictions in legal documents as a right of the children themselves and not as a right of the parents. Normally, this right could be exercised by the parents on behalf of young children who are too young to make a rational choice by themselves. The exercise of this right will, of course, shift to the child in accordance with its evolving capacities. However, because it is the right of the child, parents would not be allowed to exercise it on the childs behalf in all cases, and the courts will have to prefer an option which ensures the childs continuing religious freedom. Why parents should not always be allowed to exercise this choice can be seen by an examination of the US Supreme Court decision of Wisconsin v. Yoder.37 In this decision, the Supreme Court, by a majority, affirmed the rights of members of the Amish religious community to refrain from sending their children to school after the age of fourteen, an age younger than that mandated by law for compulsory

The African Charter on the Rights and Welfare of the Child makes the same point more vaguely, demanding in Article 9(3), on religious freedom of the child that: States Parties shall respect the duty of parents and where applicable, legal guardians to provide guidance and direction in the enjoyment of these rights subject to the national laws and policies. 36) Article II-14: The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right. 37) 406 US 205(1972).

35)

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school attendance (which was sixteen).38 The decision was based on the petitioners right to religious freedom. The Court viewed the conflict as one between state and parents, ignoring a potential conflict of interest between parents and children. Under the right to religious freedom, the US Supreme Court allowed the community to maintain its future membership by making it harder for young people with less education to leave. The state itself has a social interest, distinct from that of the children and from that of the Amish community, in providing children with the sort of education that will allow them to become socially responsible citizens.39 By choosing to protect the religious freedom of the parents, the Court fosters and protects the community at the expense of (individual) childrens liberty. The wishes of parents and community were furthered, at the cost of limiting the childrens choices of later in life.40 The right to choose education is given to parents as representatives of the religious groups to which they belong, likely to send their children to schools of the same group, thus maintaining group membership. In contrast, if children (at least older children) are given a right to choose, overriding the decision of the parents, they may be more likely to opt out of the group to which they were born. The same core issue, state minimum demands of secular education imposed on religious communities, arose in England R. v. Secretary of State for Education and Science Ex P. Talmud Torah Machzikei Hadass School Trust.41 An independent Orthodox Jewish school challenged the school inspectors report, which decided that the schools curriculum was unsuitable since it did not provide enough secular education. The school provided less than 15 hours per week of secular instruction in English. The Court (Mr. Justice Woolf) decided that the school provided efficient and suitable instruction within the Education Act 1944, sections 71 and 76, in force at the time. To determine whether the instruction provided was suitable, the Court formulated a test inquiring whether the school equips children for a place in the community in which they live, rather than the way of life of the country as a whole. This was sufficient, under the Courts test, as long as the instruction gave the children the ability to adopt another way of life in the future, should they wish to do so. This test would seem to effect a balance between maintenance of parental control, free from state intervention, and protection of the independent religious freedom of the child. On the facts of the case, however, it is not clear why the court found the instruction sufficient. Without a requirement of specified minimum hours of instruction in English, it is not clear how could a graduate of

The right to choose religious education as an alternative to public schooling had been recognized in US law in the Supreme Court decision of Pierce v. Society of Sisters 268 US 510 (1925). 39) See De Groot, [2000] p. 1310-1314. 40) Indeed, Justice Douglas, in partial dissent, noted the potential conflict between the interests of the parents and the children. (Ibid, at 242). 41) The Times, April 12 1985, (1985 Westlaw 310493).

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the school be able to exit the community and cope outside it (Hamilton, 1995, p. 261). The report of the case is brief, and so it is not known how the court would determine the suitability of instruction which would let a child leave the familial religious environment in the future. The court did consider the possibility that a child might want in the future to dissociate itself from the familial religious environment, and saw the state as justified in intervening to protect this possibility when it may be seriously compromised. Thus the result of the US court decision is that the ability of use of the parental bond by parents to shape and control their childrens futures is protected, while the English court struck a balance between protection of this bond and the independent interests of children. Currently, the UK Education Act 2002, provides that standards for independent schools shall be prescribed, for matters including the quality of education and spiritual, moral, social and cultural development of pupils.42 The curriculum of maintained schools43 is circumscribed more pointedly in the Education Act, demanding that they satisfy the double criteria of promoting the spiritual, moral, cultural, mental and physical development of pupils, and of preparing pupils for opportunities, responsibilities and experiences of later life.44 So it appears that the state demands that maintained schools incorporate, although in vague terms, a consideration of later life of the students, separate from the parents and possibly from their way of life. The statutory matters for standards in independent schools do not have any such direct mention. The interpretation of these school requirements in light of a perception of parental choice remains a salient problem. A broader conceptual problem is raised by this discussion. Human rights generally guarantee various aspects of the individuals autonomy, choices and freedom of action. It is not clear then, how a human right can guarantee an individuals right over someone elses choices and actions. A right to respect for family life, accorded in the Universal Declaration to the family,45 comes close, as it has a relational aspect, but it is still not a right over anothers actions or choices. (Indeed, subsequent international instruments phrased it as an individual right: The ICCPR and the European Convention on Human Rights and Fundamental Freedoms phrase the right to family life as an individuals right to family life46). So, it is even more pointed that international and national legal instruments have uniquely resorted to framing a right of parents over the freedoms of their children in the area of religious education, underlining the importance the law accords to protection of parents control over formation of religious identity of their children.
42) 43) 44) 45) 46)

Section 157(a) and (b). Essentially, schools funded by the state. Section 78(a) and (b). Article 16 (3). Article 17. See also Article 8 of the European Convention.

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It can be seen that allowing parents to decide on the religious education of their children is not a simple proposition. The perception underlying the recognition of human rights, including religious freedom, is built on the exercise of individual autonomy. It is precisely this perception that mandates against favouring exclusivity of parental control over determination of religious identity through religious education. 4. Conclusions International human rights law recognises a right of the child to preserve his or her identity. However, it is not obvious how or by whom the construction of this identity is to be determined. International law includes a right of the child to have his or her background, including religious background, considered when deciding on placement for adoption. Different states have applied this in different ways. But, the question, whose right is invoked by this provision, has not been asked. Analysis of this question will have important practical implications in deciding on adoption policy, as well as leading to a better theoretical understanding of the rights involved. For a long time, international law has protected religious freedom and religious choice as a right of the family, rather than of the child. It was a right of the parents, seen as agents of their religious community, which was upheld against the state. Even today, international law prevaricates between recognising a right of the child to religious freedom and protecting a right of the parents over the childs religious education. In light of the lack of sufficient theoretical discussion of whether a general parents right over their childs religious identity exists and without such a general articulated right in international instruments, even more notable is the extent to which control of parents over the religious identity of the child is presumed and upheld by law. References
Ahdar, R. A Childs Right to a Godly Future (2002) 10 International Journal of Childrens Rights, 89107. Bartholet, E., Private Race Preferences in Family Formation, (1998) 107 Yale Law Journal (1998) p. 2351. British Agencies for Adoption and Fostering, Practice Note 13: The Placement Needs of Black Children (British Agencies for Adoption and Fostering, London, 1995) and Practice Note 18: Recruiting Black Families (1991). Carp, E. W., Adoption in the United States, Encyclopedia of Children and Childhood (Thomson, New York, 2004), p. 22. De Groot, D., The Liberal Tradition and the Constitution: Developing a Coherent Jurisprudence of Parental Rights, (2000) 78 Texas Law Review, 1278.

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De Marneffe, P., Liberalism, Liberty, and Neutrality, (1990)19 Philosophy and Public Affairs 253. The Department of Health: Adoption: Achieving the Right Balance, LAC (98) 20, (HMSO London, 1998). Dewar J., Indigenous Children in Australian Law, in J. Murphy (ed), Ethnic Minorities, their Families and the Law, (Oxford, Hart, 2000),91. Dwyer, J. G., Religious Schools v. Childrens Rights, (Cornell University Press, Ithaca, 1998) Flekkoy, M. G., Kaufman, N. H. The Participation Rights of the Child: Rights and Responsibilities in Family and Society, (Jessica Kingsley Publishers, London, 1997). Hamilton, C., Family, Law and Religion, (Sweet and Maxwell, London, 1995). Morsink, J., The Universal Declaration of Human Rights: Origins, drafting and intent, (University of Pennsylvania Press, Philadelphia, 1999). Murphy, J. Child Welfare in Transracial Adoptions in J. Murphy (ed), Ethnic Minorities, their Families and the Law, (Oxford, Hart, 2000), p. 33. Nagel, T., Rawls on Justice, in N. Daniels (ed.), Reading Rawls: Critical studies of A Theory of Justice, (Oxford, 1975) p. 9. ONeill, J., The Missing Child in Liberal Theory, (Toronto University Press, Toronto, 1994). Rushton A. and Minnis H., Research Review: Transracial Placements, 24 Adoption and Fostering (2000) p. 53. Smith C. and Pellow G., Due Consideration to Race, Religion, Language and Culture?, 19 Adoption and Fostering (1995) p. 1. Van Bueren, G., International law on the Rights of the Child, (Kluwer, The Hague, 1998). Veerman P. and Sand C. Relgion and Childrens Rights (2000) 7 International Journal of Childrens Rights p. 385.

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