Fronteira General Jurisdiction Court, proc. 315/16.6T8FTR, 05.01.2017

EARLY SCHOOL-LEAVING | ROMA ETHNICITY | TRADITION | SOCIAL INTEGRATION IN CONTEXT OF BELONGING

 

 

Fronteira General Jurisdiction Court, proc. 315/16.6T8FTR, 05.01.2017

 

JURISDICTION: Civil

SUBJECT: Child protection

JUDGE: Joana Gomes

RULING: Dismissal of the case on the grounds that there was no actual danger to the child’s health, safety, upbringing and education.

DOMESTIC LAW:

Law no. 147/99, of 1 September 1999 (Law on the Protection of Children and Youths at Risk)

INTERNATIONAL LAW: n.a.

FOREIGN LAW: n.a.

KEYWORDS: Risk factor; actual danger; schooling; Roma ethnicity; tradition; basic academic skills; social integration in context of belonging; personality development; dignified life; diverse and equally rewarding paths; social rules

COMMENTS:

1. The ruling concerns the early school-leaving of a Roma child. It is quite brief, but it is interesting for the fact that the Court openly considered the child’s context of belonging to conclude that there was no actual danger for the child’s health, safety, upbringing and education. The Court’s dismissal of the case was criticised in the media and led to a national debate on the integration of Roma children, their obligation to comply with national legislation, compulsory education, and the principle of equality.

 

2. The case started in 2016, when the child, who was 15 years old at the time, stopped attending school. Although the ruling does not include this information, it is known that the school alerted the Child and Youth Protection Commission, which then contacted the child’s parents to persuade them to ensure that the child attended school. According to what was later reported in the media, the parents refused to allow the child’s return to school, saying that she had reached puberty and that they wanted to ensure her “purity” [see ANA CRISTINA PEREIRA, “Tribunal aceita abandono escolar de jovem cigana em nome da tradição”, Jornal Público, edition of 5 September 2019]. The Child and Youth Protection Commission reported the case to the Public Prosecutor, which initiated the child protection procedure. The Court heard the child, her parents, and the Commission’s official. After the hearing, the Public Prosecutor proposed the dismissal of the case and the Court decided accordingly, having concluded that there was no actual danger that warranted judicial intervention.

 

3. In its reasoning, the Court started by citing the legal provision which lists the types of situations which are to be considered as amounting to a situation of danger, Article 3(2) of the Law on the Protection of Children and Youths at Risk. According to the Court, the case at hand did not fit into any of the types of situations listed by the legislator and the child was not at risk, since (i) she did not show any motivation to attend school; (ii) she helped her mother in domestic chores; (iii) she was of Roma ethnicity and, in line with Roma tradition, she believed that she did not need to attend school; (iv) she knew how to read and had the “basic academic skills” needed for her professional activity and for the “social integration in her context of belonging”. The Court concluded, therefore, that there was, “clearly and absolutely, no actual danger, as is required for judicial intervention in this sphere of child protection”.

 

4. The Court acknowledged that there was “some risk” for the child’s professional future, mas gave more importance to the fact that, at that time in her life, the child was not in the least motivated to go back to school. In a surprising nod to what can be considered a “relativistic” sensibility, the Court noted that “nowadays, the development of youths’ personality and capabilities to lead a dignified life, in conformity with social and legal rules, is sometimes achieved by diverse and equally rewarding paths other than simply the attendance of compulsory education until reaching majority, as is precisely the case in the present instance”. Even though we have reservations regarding the apparent ease with which the Court is willing to accept the child’s lack of motivation to attend school, it is in our view positive that the Court acknowledges that there is no one single way to lead a dignified life and that the development of youths’ personality and capabilities can also take place outside the usual formal educational settings.

 

5. When balancing the child’s right to education against the weight of Roma tradition and ways of life, the Court seems to favour the latter, since it accepts as sufficient the fact that the child knows how to read and has the “basic academic skills” needed for her work and for “social integration in her context of belonging”. This phrasing is problematic as it seems to rely on the idea that Roma children do not need as much schooling as other children because their ethnicity almost inevitably leads them to domestic work and/or work in informal economic sectors. Although the Court was right to point out that the development of youths’ personality and capabilities can take place through “diverse and equally rewarding paths”, the idea that, for Roma children, “basic academic skills” are enough is not defensible.

 

6. In view of the complexity of the balancing exercise made by the Court and the sensitive nature of the topic, we think that the Court could have gone further in its reasoning. Among the aspects that could have been mentioned is the existence of other schooling regimes – e.g., home-schooling and long-distance teaching – which would arguably allow for the conciliation of compulsory education obligations with the Roma parents’ concerns over their daughter’s security before marriage. Even if the Court concluded that such options did not warrant an intervention vis-à-vis the parents, it would have been important to mention their existence and explain why they were not relied on in the instant case. We believe that such an explanation would have made the decision more understandable to society at large. In a similar case, in which a first instance court also found no danger warranting an intervention vis-à-vis the parents, the Lisbon Court of Appeal concluded that the child was indeed in danger and ordered a protective measure of support to the parents so that they understood the need to ensure that the child completed compulsory education [see Lisbon Court of Appeal, proc. 783/11.2TBBRR.L1-1, 20.03.2012]. On the other hand, the Court could also have noted that compliance with compulsory education would not per se ensure the child’s social integration. Even accepting that in the Court’s view the most important integration is the integration in the child’s “context of belonging”, it would have been important to acknowledge the challenges faced by Roma children in the school system, which are extensively discussed in the literature [see, among others, JEAN-PIERRE LIÈGOIS, Minoria e Escolarização: O Rumo Cigano, Lisbon, Centre de Recherches Tsignes, Secretariado Entreculturas and Ministério da Educação, 2001; MARIA JOÃO LEOTE DE CARVALHO, “Segregação residencial na área metropolitana de Lisboa: a violência da não inclusão pelo olhar das crianças”, in Irene Cortesão et al. (eds.), Travessias e Travessuras nos Estudos da Criança: Atas do III Simpósio Luso-Brasileiro em Estudos da Criança, ESEPF, 2016, pp. 993-1008; ARMANDA DE OLIVEIRA MAIA, Integração Escolar e Sucesso Educativo na Perspectiva de uma Comunidade Cigana: Estudo de Caso, Porto, Universidade Portucalense, 2006; LINA SUSANA TRINDADE RODRIGUES MARTINS, Um Olhar sobre o (In)sucesso Escolar na Diversidade Cultural: Estudo de Caso, Porto, Universidade Aberta, 2007]. The possible explanations for the challenges faced by Roma children in their integration at school include: (i) the differences between the teaching methods used at school and the teachings learned at home; (ii) prejudice and discrimination from other children; (iii) difficulties of Roma children in adapting to theoretical and decontextualized school teaching programmes and methods. It is also well known that, for many Roma families, the children’s enrolment at school clashes with the Roma way of life [see MARIA DA CONCEIÇÃO SOUSA PEREIRA VENTURA, A Experiência da Criança Cigana no Jardim de Infância, vol. I, Braga, Universidade do Minho, 2004], which leaves room to consider the possibility that forcing the child to pursue her studies could hinder her integration in her “context of belonging”. If the Court had addressed these different aspects, it could have avoided the perception – widespread in the media reports – that it had paid no attention to the child’s social integration.

 

7. The ruling was criticised from different quarters of Portuguese society. For the most part, the critics were unhappy with the Court’s balance of the competing interests, which was viewed as in breach of the fundamental right to education, a basic condition for children’s development as individuals and members of society, and for the integration of Roma children. This was the view expressed by Rosa Monteiro, Secretary of State for Equality and Citizenship. The High Commissioner for Migration refrained from commenting the individual case but said nevertheless that the right to education “is not compatible with any approaches which compromise the principle in light of any ‘cultural’ interpretations” [see ANA CRISTINA PEREIRA, “Tribunal aceita abandono escolar…”, cit.]. The members of the Social Democratic Party (PSD) in the Lisbon City Council commented that, “besides unconstitutional, the ruling was absolutely at odds with the principles governing our democracy of promoting equality of opportunities, rights and obligations for all citizens, irrespective of origin, race, belief or socioeconomic context”, and “contributed to the social exclusion and perpetuation of cycles of poverty and lack of social and educational mobility among generations of certain marginalized groups” [see DIOGO CAMILO e CAMILO RISO, “PSD/Lisboa crítica decisão de tribunal sobre criança cigana”, Sábado, edition of 6 September 2018]. On the other hand, civil society organisations working for the defence of Roma rights, such as the Observatório das Comunidades Ciganas (Observatory of Roma Communities) and Letras Nómadas, noted that there are alternatives to traditional education, which can ensure Roma children’s right to education, including home-schooling by a family member with the required competences, and tutoring in tutoring centres [ANA CRISTINA PEREIRA, “Tribunal aceita abandono escolar…”, cit.].

 

Maria João Lourenço

Guest contributor, researcher at JusGov Translated from the Portuguese by Patrícia Jerónimo

 

Cite as: LOURENÇO, Maria João, “[Annotation to the judgment of] Fronteira General Jurisdiction Court, proc. 315/16.6T8FTR, 05.01.2017”, 2021, available at https://inclusivecourts.pt/en/jurisprudencia2/

 

 

REFERENCES IN THE LITERATURE:

LOURENÇO, Maria João, “A (falta) de preparação dos Tribunais para assegurar a proteção das minorias dentro das minorias: os casos de abandono escolar por crianças de etnia cigana”, in AAVV, Atas das Jornadas Internacionais: Igualdade e responsabilidade nas relações familiares, Braga, EDUM, 2020, pp. 212-224, available at https://repositorium.sdum.uminho.pt/handle/1822/67783.

 

Download the ruling.