Guimarães Court of Appeal, proc. 926/07-2, 12.06.2007

CHILD PROTECTION | ROMA ETHNICITY | SOCIOCULTURAL SPECIFICITIES | RIGHT TO BE DIFFERENT | EQUALITY OF RIGHTS AND OBLIGATIONS

 

 

        Guimarães Court of Appeal, proc. 926/07-2, 12.06.2007

 

JURISDICTION: Civil

SUBJECT: Child protection

RAPPORTEUR: Gomes da Silva

RULING: Replacement of the protection measure of support to the parents by the Social Services with removal of the child from the family home and institutionalisation at a Temporary Host Centre

DOMESTIC LAW:

Portuguese Constitution (Article 69)

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

INTERNATIONAL LAW:

Universal Declaration of Human Rights

Declaration on the Rights of the Child

Convention on the Rights of the Child

European Parliament Resolution, of 24 May 1984, on the situation of Gypsies in the Community

Resolution by the Council and the Ministers of Education, of 22 May 1989, on school provision for Gypsy and Traveller children

FOREIGN LAW: n.a.

KEYWORDS: Roma ethnicity; Roma people; Romanian origin; sociocultural specificities; social identity; right to be different; cultural attributes; cultural heritage; multiculturalism; multicultural society; tolerance; respect for ethno-cultural differences; equality of rights and obligations; social marginalisation; communitarian; ethnic minorities; clans

COMMENTS:

1. This judgment is interesting because it deals directly with the question of whether culture and cultural difference are relevant for the enjoyment of rights, something which is not common in the case law of Portuguese courts. Also worth noting is the fact that, in its reasoning, the Court takes the time to elaborate on the role of culture and on the traits and struggles of the Roma people, which can be interpreted as a sign of openness to the admissibility of cultural information in court proceedings, even though the Court’s ruling ultimately rejects the relevance of cultural factors when adjudicating the case under appeal.

 

2. The lower court had ruled that a one year old child, son of a Roma mother and of a Romanian father, was to be granted protection by means of a measure consisting of support to the parents, with economic assistance, for one year. The facts established by the lower court included the following: (a) the child had been signalled as at risk after having been found together with his mother inside a car parked near a destroyed shed at an industrial park; (b) the family unit had in the meantime moved to a rented house, but the house lacked basic domestic appliances (refrigerator, heater), was dirty and disorganised; (c) the mother no longer benefited from the minimum social income after failing to comply with some of the associated obligations (e.g. the national vaccination plan); (d) both parents were unemployed and engaged in collecting, selling and burning copper; (e) the mother of the child had other five underage children, of a previous husband, already deceased, for whom she had accepted the measure of institutionalisation; on the other hand, (f) both parents had opposed institutionalisation for the child and had shown great affection for him; and (g) all social workers involved in the process had acknowledged that the child looked healthy and well nurtured. When establishing the terms under which the support to the parents was to be provided, the lower court had shown sensitivity to the importance of respect for the sociocultural specificities of the parents, by prescribing that the Social Services would have to “promote regular visits to the parents’ home, in order to, with respect for their ethnic differences, incentivise them to transform their house into a pleasant and harmonious home for the child”.

 

3. On appeal, the Public Prosecutor argued for the institutionalisation of the child, claiming inter alia that “the difference based on the parents’ ethnicity did not justify lowering the care afforded to the child nor his loss of equal opportunities”. The Court of Appeal was sensitive to this argument and granted the appeal, but not before making a series of comments on identity, difference, tolerance and equality.

 

4. Regarding these comments, it is worth noting that the Court does not use the term culture, opting instead for the expressions “cultural attributes”, “cultural elements” and “cultural heritage”. The Court notes that, “anthropologically, social identity is a construct based on cultural attributes; it is characterized by the ensemble of cultural elements acquired by individuals through cultural heritage. By expressing itself in terms of conscience of difference and contrast vis-à-vis the other, it grants individuality over dignity”. Even though the phrasing is somewhat redundant and enigmatic, it seems clear that the Court establishes a link between culture and identity and between identity and difference. It is also seems that the Court understands this link to be unavoidable, so that social identity is always based on cultural attributes and it always involves the perception of difference. What should be understood as “cultural attributes” is left unspecified, but it is worth noting that, elsewhere in the ruling, the Court expresses serious reservations as to what may be invoked as “cultural attributes” by referring, with ostensive skepticism, to “allegedly cultural conditionings”.

 

5. From the remarks on social identity, the Court draws the conclusion that “the education aimed at diversity, respectful of multiculturalism, is the big challenge that demands attention to economic, social and racial differences in order to overcome them in the constant search and affirmation of equality of opportunities, through critical knowledge that allows their interpretation, in the preservation of the basic values of the community”. The phrasing is confusing, but the idea seems to be that multicultural societies face the challenge of simultaneously fight economic, social and racial inequality, promote equal opportunities for all, respect cultural diversity and preserve the basic values of the community – a challenge for which “education aimed at diversity” is crucial. Even if ultimately intelligible (admitting that our interpretation is correct), this passage of the ruling is problematic for the terminological confusion between difference and inequality that leads the Court to state that differences should be overcome, i.e. fought and/or eliminated, when the international human rights consensus is that we should fight inequalities while protecting differences.

 

6. As for the term multiculturalism, it seems to be used in a merely descriptive sense, as synonymous with cultural diversity and not with a political and legal model for managing diversity. In any case, the ruling is clearly focused on the protection of common values, against divisive factors such as “religious rivalries” and the “clashes among communities”, albeit acknowledging that diversity is a source of wealth and vitality for European societies. According to the Court, “our society, integrated in the European Union, is based on democratic institutions whose core principles and processes are based on civic and social value systems that tend to consolidate the harmony among the different human groups to which Europe owes its wealth and vitality. Only these founding values and principles, without other dogmatic impediments, will be able to safeguard us from clashes among communities, religious rivalries, simplistic fundamentalisms and the usurpation of civil rights”. It is not clear what the Court means by “other dogmatic impediments” and “usurpation of civil rights”. This latter phrase would, in our view, be problematic if taken to mean that the Court views the use of cultural arguments, in court or in the public sphere in general, as a way of usurping rights.

 

7. The Court acknowledges the existence of a “right to be different”, but, when balancing it with the principle of equality, it is clearly in favour of the latter, seeming to adopt a formalistic view of equality, since it states that “any type of differentiations” is inadmissible and defends a “total equality of rights and obligations among all citizens”. The phrasing of the judgement (again, somewhat confusing, mainly due to stylistic problems) is the following: “Therefore, the common European law cannot contain or tolerate any type of differentiations, even those that, for reasons of ethnic or communitarian considerations, harm children, based on the future status of free and responsible citizen, or do not ensure to the maximum children’s defence against all allegedly cultural conditionings; all that, even so, in the incentive of the practice of mutual tolerance and respect for ethno-cultural differences – but only in a framework of total equality of rights and obligations among all citizens, without laxness vis-à-vis segregationist expressions, since better grounded in the political sphere as well as in social life. That is: the fundamental principle of the legitimacy of the right to be different must not create unacceptable differences in the law”. The reading of the full passage allows us to understand that the differentiations deemed inadmissible by the Court are only those that may hinder the rights of the child. An absolute refusal to differentiate would be hardly sustainable in light of the case law of the Portuguese Constitutional Court and opinions by constitutional scholars, who concur in the acknowledgment that the principle of equality does not forbid and may actually require differentiations in treatment [see e.g. Constitutional Court judgment no. 232/03; J.J. GOMES CANOTILHO and VITAL MOREIRA, Constituição da República Portuguesa Anotada (Artigos 1.º a 107.º), vol. I, 4th ed. rev., Coimbra, Coimbra Editora, 2007, pp. 340-342; JORGE MIRANDA and RUI MEDEIROS, Constituição Portuguesa Anotada, I, 2nd ed., Coimbra, Coimbra Editora, 2010, pp. 232-233]. In any case, the Court’s phrasing is ambiguous and may well be read as meaning that the Court is opposed to any differentiations base on ethnicity, for assuming that they are always contrary to the interest of the child. After all, the Court states the need to ensure to the maximum extent possible the defence of the child “against all allegedly cultural conditionings” and also that the “right to be different must not create unacceptable differences in the law” (leaving open the question as to whether all differences in the law are unacceptable or only unacceptable differences in the law are to be forbidden). The assumption that the “cultural conditionings”, even when true, are always to the detriment of the child does not sit well with provisions in international human rights treaties to which Portugal is obligated. Consider, for instance, Article 30 of the UN Convention on the Rights of the Child, under which a child belonging to an ethnic, religious or linguistic minority shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

 

8. A propos intolerable differentiations, the Court uses the phrasing “ethnic or communitarian considerations”, which raises questions as to the meaning with which the term communitarian is being used. The combination with “ethnic considerations” seems to suggest a non-technical meaning, as synonymous with community, but the concern later expressed for “segregationist expressions” allows for an interpretation of the term as a reference to the academic and political construct championed by Charles Taylor et al. Irrespective of terminological and conceptual precision or lack thereof, the Court is clear as to its scepticism vis-à-vis what may be allowed in the name of tolerance, respect for ethno-cultural differences and the right to be different.

 

9. In its comments a propos the Roma people, the Court includes curious historical and anthropological notes, observing that this people “refers to itself as «man» in its language – the Romani”, is present in Europe for around one thousand years, and “continues to be essentially nomad, having as its motto: «the sky is my ceiling; the land, my home and freedom, my religion»”. The Court does not reference the source of these observations and, from the text of the judgment, it does not appear that expert testimony was heard on this topic during the proceedings. It should be noted, in any case, that the characterisation of the Roma people as continuing to be essentially nomad is disputed in the literature [see e.g. LUIZA CORTESÃO et al., Pontes para Outras Viagens. Escola e Comunidade Cigana: Representações Recíprocas, Lisbon, ACIME, 2005, p. 18; ANCA PUSCA, “The «Roma Problem» in the EU: Nomadism, (in)visible architectures and violence”, Borderlands, vol. 9, no. 2, 2010, pp. 5-8].

 

10. When characterising the Roma people, the Court also mentions the social integration problems faced by Roma communities and some of the measures put forward in this respect by the Council of Europe and the European Union (mainly, in the fields of education, housing and work). Although it refers to the European Parliament resolution of 24 May 1984, which stressed the importance of “improving the situation of gypsies without destroying their separate identity”, the Court summarizes the Council of Europe and the EU’s take on the matter by saying – paraphrasing Marc Leyenberger, a member of the European Commission Against Racism and Intolerance – that “the fact that a community has a different culture should not prevent the search for measures to integrate it” and that we must insist “on training and education as key words for fighting exclusion”. Leyenberger’s statement does not necessarily have to be interpreted with the meaning that integration must be achieved at the cost of cultural specificities, but that seems to be the interpretation preferred by the Court, given the way it uses the goal of promoting integration and fight social exclusion to dismiss the need to safeguard sociocultural specificities in the case under appeal.

 

11. According to the Court, the lower court ruling accepted the safeguard of sociocultural specificities (“with reference to the right to be different and to individuality”) to the detriment of the parents’ obligations “and, most of all, of the rights owed to children as citizens of tomorrow”, which the Court considers to show an unacceptable indifference in the face of the resulting risks of social exclusion and marginalisation. Says the Court: “The concern with not destroying the specific characteristics of ethnic minorities, furthermore suffering from well-known difficulties of socioeconomic and cultural integration, cannot lead us to be lax vis-à-vis the placement of such defenceless beings at imminent risk of irreparable damage to their development as human beings”. And adds: “the maintenance of social pariahs (fluctuating at the margins of criminality and of the lower economic strata), even if under the pretext that they refuse to come close to what is reasonably demanded as socio-educational standards, cannot be justified lightly and interminably”. Again in a bit of a roundabout way, the Court here makes the good point of rebutting the argument according to which the “self-exclusion” of ethnic minorities would excuse the State for not endeavouring to promote the integration and fight the social exclusion of Roma communities.

 

12. The Court acknowledges the “healthy respect for differentiating idiosyncrasies” (adding an enigmatic “even if inside clans”), but interprets it as demanding from all the respect for common values, i.e. that “the cornerstone values of this democratic and multicultural society must not be put off, even if we are dealing with occasional residents or nomads”. The Court considers that, when children are involved, the way of life chosen “more or less consciously” by the parents cannot become a “compressing standard of what ought to be, a standard for assessing legality”, an observation which is easy to stand by, but which raises the problem of knowing what should be understood as “compressing standards” and how to make sure that, in practice, this reasoning is not applied solely to the education of children belonging to ethnic or religious minorities.

 

13. Considering the case under appeal, the Court finds that it is evident that the mother failed to provide the child with the minimum care required (as she had already done to the five children of her previous relationship, all institutionalised without her opposition), exposing the child to a situation of “blatant danger” (hunger, cold, risk of poisoning, isolation in the night, lack of health care, sloppy hygiene, mendicancy, des-education) and putting the child’s future in jeopardy. “In that type of life, the child will not have at his disposal, in the future, more than deprivation of all kinds, disease, illiteracy and social marginality, very close to delinquency”. Although it mentions that “clear priority” should be given to solutions that allow the child to stay with the natural family over institutional solutions, the Court concludes that the former is not viable, given the difficulties observed during the year in which the family was accompanied by the Social Services and also the foreseeable aggravation of the social and economic problems of the parents. In a final note, the Court reiterates the importance of securing equal rights for all children and expresses scepticism as to the parents’ affection for the child in the instant case: “Well, as so many other children, Roma or not, of foreign father or not – actually, as his half-brothers – Romeu has the right to expect (and demand) much more of his parents and of society, without being a burden to anyone, receiving and giving love, growing up and developing himself in all aspects. His institutionalisation will be similar to that of his brothers, much better than what he has now, even with the chance of integration in a family who really wants him”.

 

14. In light of the facts established as to the housing, health, hygiene and safety conditions in which the child lived and the difficulties observed during the year in which the family had been assisted by the Social Services, the Court was right to conclude that the child was at risk and that the situation warranted an institutionalisation measure. It is also commendable the openness shown by the Court in including cultural information in the assessment of the case under appeal, and in making, in an explicit and reasoned way, the difficult balancing exercise between the right to be different and the right to equal treatment. We will say, in any case, that this balancing exercise was very clearly (and at times with excessive language) tipped in favour of affirming the right to equal treatment with sacrifice to the right to be different, which makes us question the depth and reach of statements such as that of a “healthy respect for differentiating idiosyncrasies”. In the end, the Court is not very keen in acknowledging the relevance of cultural specificities, given that it considers that much more important than any preservation of cultures is the social integration of all in conditions of equality. We do not disagree, but still believe that it is possible to achieve another balance that does not rely on treating the “cultural conditionings” as inherently damaging for the rights and interests of individuals.

Patrícia Jerónimo

Cite as: JERÓNIMO, Patrícia, “[Annotation to the judgment of the] Guimarães Court of Appeal, proc. 926/07-2, 12.06.2007”, 2020, available at https://inclusivecourts.pt/en/jurisprudencia2/

REFERENCES IN THE LITERATURE:

JERÓNIMO, Patrícia, “Direitos humanos e diferença cultural na prática dos tribunais”, in Patrícia Jerónimo (ed.), Temas de Investigação em Direitos Humanos para o Século XXI, Braga, Direitos Humanos – Centro de Investigação Interdisciplinar, 2016, pp. 303-328.

 

Download the ruling.