Évora Court of Appeal, proc. 1674/18.1T8TMR.E1, 09.09.2021

SCHOOL ABSENTEEISM | ROMA ETHNICITY | PROPORTIONALITY PRINCIPLE | STRENGTHENING SCHOOL-FAMILY RELATIONS | MEDIATORS

 

 

Évora Court of Appeal, proc. 1674/18.1T8TMR.E1, 09.09.2021

 

JURISDICTION: Civil

SUBJECT: Child protection

RAPPORTEUR: Maria João Sousa e Faro

RULING: Grants the appeal, overturning the appealed decision, which had ordered the children’s placement in a home, reprising the previous measure of support to the parents, with an increase in the school’s involvement, under terms to be defined after hearing the school’s board.

DOMESTIC LAW:

Constitution [Article 67(2)(c)]

Law on the Protection of Children and Youths at Risk, approved by Law No. 147/99, of 1 September 1999 (Article 4)

Code of Civil Procedure [Articles 608(2), 609, 635(4), 639, 663(2)]

INTERNATIONAL LAW:

Convention on the Rights of the Child [Article 9(1)]

FOREIGN LAW: n.a.

KEYWORDS: Roma ethnicity; strengthening the relations between the school and the family; mediators at school; understanding the family roots and culture; natural life context; situation of danger; school absenteeism; parental incapacity; fundamental values of life in society; development of personality; Roma community; specific values and convictions; family of Roma ethnicity; specific cultural rules, traditions and principles; ingrained habit; Roma community’s history of persecution and exclusion; attempts at normalisation; standard behaviour; different culture; right to be different; right to cultural identity; Roma community traditions; equality of opportunities; diversity of values; cultural reasons; best interest of the child; principle of proportionality; pandemic; differentiated support in educational context; routine; culture; deviant behaviour; prevalence of the family

COMMENTS:

1. This judgment concerns a recurring issue in the practice of Portuguese courts – school absenteeism of Roma children –, but sets itself apart from most of the judgments issued at appellate level by recognising the importance of the children’s cultural background, by drawing attention to the role of mediators at school and by invoking academic studies covering the topic of Roma schooling, with direct reference to a study published in 2019 by the Directorate General for Education with the title Promover a Inclusão e o Sucesso Educativo das Comunidades Ciganas – Guião para as Escolas [Promote the Inclusion and Academic Success of Roma Communities – Guidelines for the Schools]. The facts of the case have some non-negligeable specificities – i.e., the children were well behaved at school and some if their problems of attendance were partly due to the COVID-19 pandemic –, but this judgment is a good example of best practice on how to balance attention to cultural arguments with respect for the general law, with a view to promoting equality and social inclusion.

 

2. The judgment was issued on appeal from a decision which had determined the application to two Roma children (R. 14 and M. 11 years old) the protection measure of placement in a foster home, with provision of psychological and psychopedagogical support, for the period of one year, with a reassessment of the measure at the end of the first semester. The lower court decision had furthermore established that the children would be placed in the same foster home, that the parents and other family members were allowed to visit them at the foster home and that the Institute of Social Security would present information on the viability of the children’s visits to the parents “in natural life context” and on the children’s integration into their foster home. Before the lower court’s intervention, a protection agreement had been entered with the parents, establishing the measure of support to the mother. The placement at a foster home had been requested by the Public Prosecutor, whereas the children’s attorney had requested the measure of support to the parents accompanied by psychopedagogical supervision. As summarised in the appeal brief, the lower court concluded that there was a “situation of danger for the children, due to their repeated school absenteeism, failure to pass, and lack of interest in training and education, the absence of adequate parental guidance for their compliance with school obligations and the parental incapacity to positively change the course of their children’s lives and to provide them a set of rules that would allow them to internalise the need to change their behaviour towards school in order to fulfil their need for education and training”.

 

3. The appeal brief asked for the application of an alternative measure in natural life context, namely, the measure of support to a different family member. The appeal brief presented the following key arguments: (i) the state’s intervention on behalf of the children has exceptional character and can only interfere in the life of the children and their family to the extent that is strictly necessary; (ii) the children are well integrated at school, in their community and their family, with not indication of delinquency or deviant behaviour; (iii) even though they are not very successful, the children attend school, having acquired some competences, and there is a clear effort on their and their parents’ part to keep school attendance; (iv) the children have the “particularity” of being of Roma ethnicity, which is decisive for their life and way of thinking; (v) the Roma community has its own cultural rules, traditions and principles, different from those of the general community, which should be taken into consideration in the instant case; (vi) the Roma disregard school attendance, which is not an ingrained habit for them, largely due to their history of persecution and exclusion; (vii) the attempt at “normalisation” of Roma children, with the “imposition of a standard of behaviour and culture different from their own”, disrespects their right to be different and their right to a cultural identity; (viii) the instant case has nothing to do with risk factors, but instead with the “diversity of values which are specific to the children’s family and community origins and traditions”; (ix) even admitting that a danger exists, the measure adopted is in breach of the guiding principles of state intervention (best interest of the child, proportionality, prevalence of the family), according to which the separation from the family should be a measure of last resort, since the lower court did not even consider the possibility of adopting a measure of support with a different family member, such as the grandparents; (x) by causing “revolt, sadness and anguish in the children”, the contested decision would lead to their uprooting, affecting their emotional stability and potentiating deviant behaviour.

 

4. The appeal concerns only the “(un)fairness of the measure of placement of the children in a foster home”, not the decision on the facts. The facts considered as proven, which the Évora Court of Appeal lists at the start of its reasoning, include e.g. the following: (i) in the school year 2020/2021, the children were enrolled in the first grade; (ii) the children showed no interest or engagement in school activities; (iii) the children benefitted from a programme of differentiated support in educational context, even though this was not provided on a regular or effective manner, since their attendance was irregular; (iv) the children interacted well with their fellow students, teachers and school staff; (v) the parents did not value school attendance and did not consider their children’s absenteeism as a problem, they did not know the school obligations nor how many times the children had missed school; (vi) during the COVID-19 pandemic, the mother went to school regularly to pick up school sheets for the children; (vii) in the previous school years, the children had failed for excess of classes missed, but, in 2020/2021, M. had managed to pass, after successfully completing the recovery plan proposed by the school; (viii) all members of the children’s family were integrated in the Roma ethnicity and kept unaltered daily routines; (ix) R. opposed to placement at a foster home and, together with his sister M., expressed sadness with that possibility; (x) the relation of the children with their parents and between themselves was affectionate; (xi) the parents had criminal records; (xii) the mother of the children was sick and had been hospitalised on several occasions.

 

5. In its assessment of the merits of the appeal, the Évora Court of Appeal starts by expressing its “conviction that the measure applied is extremely violent” for the children, since it separates them from their family and their community, making them feel “punished for behaviour – school absenteeism – which is not viewed as harmful in their culture”. Furthermore, the Court doubts that the children’s placement in a foster home is likely to make them like school. In this respect, the Court notes that “there are many studies published on the problems with school attendance by Roma students” and that, in general, what these studies recommend is “to strengthen the relations between the school and the family, which is achieved mainly with the existence of mediators at school, with a view to raise awareness and engage the community for the schooling of their children”. The Court does not cite any specific academic study [the appeal brief had cited a chapter by MARIA JOSÉ CASA-NOVA, “A escolarização de crianças e jovens ciganos: entre a inclusão-excludente e a integração subordinada”, in AAVV, Intervenção em Sede de Promoção e Proteção de Crianças e Jovens, Lisbon, CEJ, 2015, pp. 69-109], making only a direct reference to the Guidelines published by the Directorate General for Education, but it is clear that the Court was careful to study academic publications on the subject and that it kept the recommendations made in these publications in mind when it decided the instant case, something which is not very common in the practice of Portuguese courts. Also not very common – in particular among higher courts – is the explicit acknowledgment by the Court of the importance of understanding the roots and culture of the children’s family before any intervention directed at promoting their education, presented by the Court as a consequence of the constitutional requirement of cooperation between the state and the parents in the children’s education [Article 67(2)(c) of the Constitution]. The Court does not deny the need to promote the children’s education – it holds that this need is unquestionable –, but it stresses that this must “inevitably involve interaction with the family”. To do otherwise would cause “revolt, sadness and anguish” in the children, “potentiating deviant behaviour”, because, being adolescents, they “need to understand the decisions in order to comply with them”. The Court considers that the mother’s omissions are to be excused due to her illness, and deems relevant that the children have an affectionate relation between themselves and with the parents, as well as the fact that M. managed to pass in academic year 2020/2021. Of the legal provisions applicable, the Court mentions, besides the constitutional provision referenced above, Article 4(e)(h) of the Law on the Protection of Children and Youths at Risk, which establish the principles of proportionality and prevalence of the family, respectively, and Article 9 of the Convention on the Rights of the Child, which likewise establishes these principles. In light of all this, the Court concludes that the investment must continue to be on a protection measure that involves the children’s family and the school. The appealed decision – which was deemed “unjust and disproportionate” – was overturned and the previous measure of support to the parents was reprised, with the caveat that it should be redefined “in light of the desired increase in the involvement of the children’s school”.

 

6. The Court goes further than many of its counterparts in the acknowledgment of the importance of the children’s cultural background when deciding on the measures better suited to promote their school attendance. It should be noted, however, that the Court does not mention a “right to be different”, a “right to cultural identity” or a “right to have one’s own cultural life”, nor does it address the question – raised in the appeal brief – of the tension between respect for these rights and the attempts at “normalisation” of Roma children through public education and mandatory schooling. The Court is very clear in its statement that the need to promote the children’s education is unquestionable. It manages, in any case, a good balance between the interests and the rights in tension by recognising the importance of understanding the roots and culture of the children’s family, and by recommending a stronger involvement of the school and the use of mediators to raise awareness in the Roma community about the benefits of an education for Roma children and youths.

 

Patrícia Jerónimo

Nicole Friedrich

 

Cite as: JERÓNIMO, Patrícia, and FRIEDRICH, Nicole, “[Annotation to the judgment of] Évora Court of Appeal, proc. 1674/18.1T8TMR.E1, 09.09.2021”, 2022, available at https://inclusivecourts.pt/en/jurisprudencia2/.

 

REFERENCES IN THE LITERATURE: n.a.

 

 

Download the ruling.