REGULATION OF PARENTAL RESPONSIBILITY | RELIGIOUS FREEDOM | RELIGIOUS EDUCATION | CATECHESIS | EQUALITY BETWEEN PARENTS| BEST INTEREST OF THE CHILD

 

 

        Guimarães Court of Appeal, proc. 623/04-1, 12.05.2004

 

JURISDICTION: Civil

SUBJECT: Regulation of parental responsibility

RAPPORTEUR: Gomes da Silva

RULING: Confirmation of the lower court ruling that had amended the regulation of parental responsibility so that, for the duration of the child’s attendance of catechesis, he would spend all weekends with his mother. This meant that the child would attend catechesis at the Parish Centre of Viana, instead of at the Parish Centre of Santa Maria dos Anjos, in Ponte de Lima, in order to be closer to the mother’s residence.

DOMESTIC LAW:

Civil Code (Articles 1878, 1886)

Portuguese Constitution [Articles 36(5), 41, 43, 75]

Guardianship of Minors OTM (Articles 147-A, 182)

Code of Civil Procedure [Article 1411(1)]

Law for the Protection of Children and Youths at Risk (Law no. 147/99, of 14 September 1999)

INTERNATIONAL LAW:

Universal Declaration of Human Rights

Convention on the Rights of the Child

Recommendation no. 84/4, of the Committee of Ministers of the Council of Europe on parental responsibilities, of 28 September 1984

FOREIGN LAW: n.a.

KEYWORDS: Religion; catechesis; religious education; belief; divinity; supreme being; universal law; divine project; correct models of life

COMMENTS:

  1. The primary concern of this judgment is to decide whether it is justified to amend the exercise of parental responsibility, as the parent responsible for taking the child to catechesis does not comply with this obligation. It is worth clarifying that the judgment addresses this issue in the light of the legislation in force prior to Law no. 61/2008, of 31 October 2008, that thoroughly amended the regulation of the exercise of parental responsibility in cases of divorce, legal separation, and void or annulled marriage. Thus, pursuant to the previous legislation, in those cases, parental responsibility was exercised jointly, provided that both parents agreed upon it. In the absence of an agreement, the court should, by means of a reasoned decision, determine that the parental responsibility should be exercised by the parent having custody of the child. The parent not holding parental responsibility would be entitled to ensure the child’s education and living conditions.

 

  1. The issue at stake in this judgment may be summed up as follows: appended to the action of regulation of parental authority (parental responsibility, since the Law no. 61/2008, of 31 October 2008) regarding child A (placed in his father‚Äôs custody), the father lodged an application against the mother in order to amend the regulation of this exercise, with the purpose of compelling her to ensure that the child attends catechesis on the Sundays she spent with the child and to pay the sum of 100‚ā¨ per month as child support. The mother was entitled to parenting time on weekends, every fortnight, and had the right to pick the child up at 8:00 pm on Fridays and drop him off at 8:00 pm on Sundays. The father claimed that the mother ‚Äúdoes not bother to take the child to catechesis on the Sundays of her parenting time; and that the expenses regarding the child increased as he started attending primary school‚ÄĚ. On the other hand, the mother argued that ‚Äúit is not possible for her to take the child to catechesis as this involves travelling twice from Viana do Castelo to Ponte de Lima, in addition to the journey to Arcos de Valdevez at the end of the day to take the child to the applicant‚Äôs residence. She cannot afford to pay the sum of 100‚ā¨ per month as child support‚ÄĚ. The child, upon agreement between the parents, attends catechesis in Ponte de Lima, on Sundays. In order to attend catechesis on the Sundays spent with the mother, ‚Äúthe child would need to get up early, to travel from Viana do Castelo to Ponte de Lima, to return to Viana do Castelo from Ponte de Lima and another journey would be needed to take the child to Arcos de Valdevez from Viana do Castelo at the end of the day to drop him off at the applicant‚Äôs residence‚ÄĚ (as stated in the judgment). The lower court decided to amend the regulation of parental authority and stated that, for the duration of the child‚Äôs attendance of catechesis, the mother‚Äôs parenting time would take place every weekend, from 7:00 pm on Fridays to 8:00 pm on Saturdays; the court also determined an increase of the child support (from 62,36‚ā¨ to 100‚ā¨). The applicant lodged an appeal against this decision before the Court of Appeal.

 

  1. With respect to the issue of catechesis‚Äô attendance, which is the sole concern of this annotation, the judgment of the Guimar√£es Court of Appeal establishes at first that ‚Äúone of the fundamental rights, of socio-cultural nature, allocated to every human being, as it relies on a special organisation of society, is the guarantee of freedom of religion, such as to learn and to teach (Articles 43 and 75 of the Portuguese Constitution and 2 of the Universal Declaration of Human Rights). Parents have the right and the duty to educate their children [Article 36(5)], including, to prepare them for life within the ambit of the religious belief (Article 41), that is to say, to attend catechesis. ¬ęIn the best interest of their children, parents shall ensure their safety and health, provide them with care and education, represent them, including the unborn children, and provide for the administration of their property¬Ľ ‚Äď Article 1878 of the Portuguese Civil Code. Parental authority ¬ęis not a set of faculties of selfish nature and free exercise to the discretion of the respective holders, but a complex legal situation that lead to functional powers that must be exercised altruistically, in the child‚Äôs interest, in conformity with the role of law, aimed at ensuring the protection and promotion of the child‚Äôs interests, in view of his/her harmonious physical, intellectual and moral development¬Ľ[.] As an authentic power-duty or functional power aimed at the integral development of the child, so as to guarantee him/her, in conditions of freedom and dignity, a fulfilled life as a responsible citizen, it encompasses different aspects, among them the religious education of the children under the age of 16. In civil guardianship proceedings, such as the current one, the child‚Äôs interest shall be the cornerstone or the guiding principle, under sensible discretion, while also remembering other legitimate interests, such as the equality between both parents, in matters of the diversity of conflicting issues of the current case[.] The education process leads to the use of a set of methods in order to ensure the upbringing and the physical, intellectual and moral development of a human being[.] Through religious education, the human being is raised mostly in terms of values, as he has been nurtured to face life from a value perspective of its implementation as a divine project‚ÄĚ.

 

  1. Article 1886 of the Portuguese Civil Code entrusts the parents with the right to decide on the religious education of children under the age of 16, upon joint agreement of the parents, or, in the absence of an agreement, upon a decision of the competent authority, as in this case. The education includes catechesis attendance. On the other hand, the Religious Freedom Act (Law no. 16/2001, of 22 June 2001) sets forth, in Article 11, that parents have the right to educate their children according to their own convictions in terms of religious belief, in respect of the moral and physical integrity of their children and without prejudice of their health. In the present case, both parents agreed on the catechesis attendance. The issue at stake is the practical impossibility for the mother to take the child to catechesis on the Sundays of her parenting time. The question is to know if the mother may be required to do so in this case and if the non-observance entails an amendment of the previous decision on the regulation of parental responsibility. The Guimar√£es Court of Appeal considers that ‚Äúthe Court ensures the observance of the fundamental right of religious freedom, with respect to the child ¬ęA¬Ľ‚Äôs best interest, welfare, and harmonious development. Based on these guiding principles, the Court may and shall decide to compel the defendant to take the child to catechesis[,] although this decision may abstractly interfere with the parents‚Äô specific freedom to carry out a non-religious education. The applicant has never questioned such education; he has only requested the defendant to take the child to catechesis and Sunday mass in the Parish Centre of Santa Maria dos Anjos, in Ponte de Lima[,] in order not to disrupt his education, where, on his own initiative, the child is being initiated into the Catholic Church[.] ¬ęA¬Ľ‚Äôs mother also agreed upon the catechesis attendance and religious practice[.] It is not because this religious education may occur under her responsibility that it jeopardises this fundamental right; besides, the father may always check on the progress of this religious education, by questioning the mother, the religious education coordinator in Viana or even the catechists about it. To attend catechesis in the said Parish Centre (without any evidence that this parish centre is better than any other centre), thirty kilometres away from the place where the child will spend the weekends with his mother, would definitely become a real torment for both the mother and the child, as they would have to get up early and take long, unnecessary and even dangerous car journeys ‚Äď a fact that the applicant cannot ignore. Unlike the father‚Äôs concerns, which have changed along with the different stages of the case, there is no evidence that the child‚Äôs welfare and happiness would, therefore, be affected‚ÄĚ.

 

  1. The Court of Appeal considers, although the judgment conclusions are not very clear, that the mother will be responsible for the catechesis attendance and that classes will take place in Viana do Castelo instead of Ponte de Lima, due to the inconvenience and impossibility of compliance this situation causes. This does not affect the parents’ responsibility regarding the religious education of the child (see Article 1886 of the Portuguese Civil Code). Therefore, no amendment with regard to the regulation of parental responsibility is needed. This was the decision the Court, bearing in mind the child’s best interest.

Cristina Dias (translated from the Portuguese by Ana Rita Silva)

 

  1. It is worth noting the way in which the Court addresses the argument put forward in the appeal according to which ‚Äúthe Court is not allowed to order the mother to bring her son to catechesis, since it would amount to an interference with the parents‚Äô liberty to ensure the religious education of their children‚ÄĚ. The Court starts by noting that the parents have the right and the obligation to ensure their children‚Äôs education, including that of ‚Äúpreparing them for life from a religious perspective, that is by attending catechesis‚ÄĚ. The Court explains that parental responsibilities, being as they are power/duties aimed at the integral development of the child, ‚Äúcover different vectors, among which the religious education of children under the age of 16‚ÄĚ. In what concerns its own role on the matter, the Court notes that it is responsible for ensuring ‚Äúrespect for the fundamental right of religious freedom, framed by the best interest of the child ¬ęA¬Ľ, his well-being and his harmonious development‚ÄĚ, and that, in view of these guiding principles, the Court ‚Äúmay and must decide to impose on the mother the obligation of taking the child to catechesis, even if in theory that could interfere with the parents‚Äô concrete freedom not to give their child a religious education‚ÄĚ. This statement is somewhat alarming, since it seems to suggest that the Court feels entitled to impose a religious education against the parents‚Äô wishes. The Court did not need to go this far in its reasoning, given that, in the case under appeal, there had not been an actual judicial imposition of attendance of religious education, since both parents wanted the child to attend catechesis. The Court points this much out, adding that the fact that the mother wanted the child to attend catechesis ‚Äúwas somewhat at odds with the father‚Äôs legitimacy to contest the lower court decision on that basis‚ÄĚ. It is interesting that, having the possibility of an outright rejection of the argument according to which the lower court had imposed religious education against the parents‚Äô wishes, the Court nevertheless decided to engage the discussion of its role in the arbitration of disputes about religious education. It is a pity that in doing so it left open the possibility of interfering with the parents‚Äô liberty to ensure the religious education of their children.

 

  1. The Court explicitly acknowledges the importance of religious education, seeming to consider it as something crucial in the upbringing of individuals ‚Äúcapable of constructing a world more humane and more fraternal‚ÄĚ and for the ‚Äúlearning of rules and standards which are essential for understanding and internalizing the correct models of life‚ÄĚ. The Court gives a definition of religion, stating that it is ‚Äúreflected in the ensemble of ethical values grounded on a certain religious meaning, in veneration or belief in a divinity, in the existence of a supreme being as cause, end or universal law‚ÄĚ. According to the Court, a religious education mostly provides individuals with values, pushing them to face life as part of the divine plan. ‚ÄúThrough religious education, the human being is raised mainly in terms of values, as if nurtured to face life in the axiological perspective of its execution as divine project‚ÄĚ. In an apparent non sequitur, the Court mentions the common perception according to which education, much like matrimony, are going through a profound crisis; the latter due to the ‚Äúhigh rates of divorces‚ÄĚ, the former due to the ‚Äúdisenchantment and even despondency of many of its protagonists‚ÄĚ. It is not entirely clear if this observation applies to education in general or to religious education in particular. Admitting that the Court is referring to education in general when alluding to the profound crisis in education, one is still left wondering whether, in the Court‚Äôs view, this profound crisis is due to a lack of religious education. The sentence with which the Court closes the section of the ruling in which the topic is addressed seems to point in that direction, given the causal relation established between ‚Äúeducation for the construction of the person‚ÄĚ (which, among other things, enables him/her to ‚Äúexperience transcendence‚ÄĚ) and the capacity to construct a world more humane and more fraternal, mentioned at the start of this paragraph. The sentence deserves a full quote: ‚ÄúThe education for the construction of the person and, by extension, for the humanisation of this world, to reach the capacity of understanding the world and existence, to love it, to develop our capacity to reflect, symbolise, feel and experience transcendence ‚Äď under that perspective ‚Äď individualises us and makes us unique and one of a kind, capable of constructing a world more humane and more fraternal‚ÄĚ.

Patrícia Jerónimo

REFERENCES IN THE LITERATURE: n.a.

 

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