BAPTISM | DISAGREEMENT BETWEEN THE PARENTS | FREEDOM OF RELIGION | CATHOLIC CHURCH | INTEREST OF THE CHILD

 

 

        Lisbon Court of Appeal, proc. 2366/09.8TMLSB-B.L1-2, 21.06.2012

 

JURISDICTION: Civil

SUBJECT: Disagreement between the parents on a question of particular importance (baptism)

RAPPORTEUR: Jorge Leal

RULING: Dismissal of the appeal and confirmation of the lower court ruling which authorised the mother to make the arrangements for the baptism of the child without the father’s consent.

DOMESTIC LAW:

Civil Code (Articles 1877, 1878, 1885, 1886, 1901, 1906, 1909, 1911)

Code of Civil Procedure (Articles 712, 655, 685-B, 1410)

Guardianship of Minors OTM (Articles 150, 184)

Portuguese Constitution [Articles 36(5), 41(1)]

Religious Freedom Act (Law no. 16/2001, of 22 June 2001)

Lisbon Court of Appeal Judgment of 11.03.1993

INTERNATIONAL LAW:

Universal Declaration of Human Rights

International Covenant on Civil and Political Rights

Convention on the Rights of the Child

Protocol no. 1 to the European Convention on Human Rights

FOREIGN LAW: n.a.

KEYWORDS: Baptism; religion; freedom of thought, conscience and religion; equality principle; moral integrity; Catholic Church; family tradition; initiation ritual; Catholic religion and doctrine; relation with God; Jesus Christ; profession of faith; Creed; faith; personal conviction; religious education; profession of religion; separation between Church and State; Priest; acts of worship; sacraments; rare and serious existential questions; neutrality judgment; proselyte; apostasy; non-Christian religions; Orthodox; Jewish; atheists; axiological neutrality

COMMENTS:

  1. The primary concern of the current judgment is to decide, in the absence of an agreement between the parents, on an issue of particular importance for the child‚Äôs life regarding the choice of religion and her baptism. The question scrutinised in the judgment, and set out therein, may be summed up as follows: on 22.11.2010, the mother (A) lodged an application against the father (B) before the Lisbon Child and Family Court, appended to the application of regulation of parental responsibility, for the settlement of the dispute between the parents vis-√†-vis an issue of particular importance regarding their daughter (C). ‚ÄúThe applicant claimed she is a Catholic and she intends to baptise their two-year old daughter. At first, the defendant, from whom the applicant is separated, agreed on the baptism, but changed his opinion afterwards, arguing that the climate of hostility between the two families should be ended first, namely with the ending of the pending proceedings. Nonetheless, the applicant intends to baptise the child as soon as possible, namely because of her grandmother‚Äôs health condition, and as she almost daily expresses her dismay at the fact that her great-granddaughter is not baptised. Thus, the applicant requested the court to intervene in the aforesaid dispute as she considered it was an issue of particular importance. There was a conference between both parents but they did not agree upon the matter; the applicant reiterated what she mentioned in the initial application and the defendant declared he does not object to the baptism and that he is a Catholic himself, but, as there is an animosity between the families on both sides, he believes that all the existing proceedings must be solved and ended before baptising the daughter‚ÄĚ. It is worth noting that the defendant, in his allegations, ‚Äúadded that he believes it is not essential for the child‚Äôs education and development as a citizen and religious person to be baptised now and that the religious issues are not legal but merely moral issues; besides, pursuant to constitutional principles such as freedom, equality, moral integrity, and freedom of conscience, religion and worship, religion cannot be imposed upon anyone, let alone upon a child who cannot freely and consciously express her will‚ÄĚ. On 09.5.2011, the court delivered its judgment in favour of the applicant and authorised C‚Äôs baptism into the Catholic Church without the father‚Äôs consent.

 

  1. The appeal before the Lisbon Court of Appeal concerned two questions (the amendment of the established facts and the consent to baptise the child). Our comments will only focus on the consent to baptise C. 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. On the other hand, the Religious Freedom Act (Law no. 16/2001, of 22 June 2001) sets forth, in Article 11, that the 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 to their health. The judgment states that ‚Äúthe parents‚Äô right to educate their children according to their own convictions in terms of religious belief is linked with the different possible expressions of the freedom of conscience, religion and worship, such as the right ¬ęto have, not to have or no longer have a religion¬Ľ [Article 8(a) of Law no. 16/2001], ¬ęto choose freely, change or abandon their own religious belief¬Ľ [Article 8(b)], ¬ęto practise acts of worship, private or public, of the professed religion¬Ľ [Article 8(c)]‚ÄĚ. The Lisbon Court of Appeal also states, by referring to international law provisions, that the ‚Äúchild has the right to be educated, namely regarding religion, according to her parents‚Äô beliefs. This includes taking part in the respective acts of worship, like the sacraments, provided that this does not affect his/her physical and moral integrity. Hence, the parents‚Äô decision to baptise their children does not violate any rule and legal or constitutional principle‚ÄĚ.

 

  1. Pursuant to Article 1906 of the Portuguese Civil Code, in cases of divorce, legal separation, and void or annulled marriage, the parental responsibility regarding issues of particular importance for their children‚Äôs life is exercised jointly by both parents in compliance with the provisions laid down in their marriage; nevertheless, in cases of special urgency, one of the parents has the right to act alone and the other one shall be informed without undue delay. In the absence of an agreement between the parents regarding issues of particular importance for the child‚Äôs life, the court shall decide (see Article 1906 of the Portuguese Civil Code). The doctrine and case-law have been delimiting these issues of particular importance, including the religion to be professed by the child and consequently the issue regarding his/her baptism. As stated in the judgment, the ‚Äúlaw-maker uses a vague concept and entrusts the courts with the responsibility of defining the issues of particular importance[.] ¬ęThe case-law and doctrine will be in charge of defining this scope; it is expected that, at least at the beginning of the implementation of the framework, the relevant matters boils down to serious and rare existential issues that are part of the essential core of rights recognized to children. The goal is to have a workable framework ‚Äď as in different European countries ‚Äď and in order to achieve this, it may be advantageous to avoid frequent contacts between both parents¬Ľ. The explanatory statement establishes that, at least at the beginning of the implementation of the framework, the issues of particular importance shall consist of ¬ęserious and rare existential issues that are part of the essential core of rights recognized to children¬Ľ. The law-maker‚Äôs explicit purpose is to limit to ¬ęa minimum¬Ľ the scope of joint exercise. [Thus], if a specific issue of the child‚Äôs life is not classified as an issue ¬ęof particular importance¬Ľ, as referred to above, it will be considered as an ¬ęordinary issue¬Ľ of the child‚Äôs life, in other words, the parent having custody of the child may act alone without the consent of the other parent. If the decision on the child‚Äôs baptism is not considered an issue of particular importance, the parent ¬ęhaving custody¬Ľ may decide accordingly without the consent of the other parent, that is to say, this issue does not require court consent in the event the other parent objects to the baptism. In the current case, both parents believe it is an issue of particular importance. At least they both consider that the father‚Äôs consent regarding ¬ęC¬Ľ‚Äôs baptism is essential: on the one hand, the mother requested the court to intervene and remedy the absence of the father‚Äôs consent regarding this matter; on the other hand, the father voiced it in his allegations. We believe that the child‚Äôs religious education is, for this purpose, an issue of particular importance. And it is, indeed, the understanding of the doctrine[.] Within the scope of religious education, the participation in acts of worship, namely those the Religion attaches the greatest importance, such as the baptism, is of particular relevance. Thus, the Court agrees with the applicant and defendant‚Äôs opinion that ¬ęC¬Ľ‚Äôs baptism is a significant act that requires both parents‚Äô consent. [This] also means that, in the absence of an agreement between the parents, the court shall intervene‚ÄĚ.

 

  1. The Court, in order to decide, shall assess the child‚Äôs best interest. This is the understanding of the current judgment when it states that ‚Äúthe child‚Äôs interest may be taken into consideration to enforce the practice of an act or its prohibition. But this interest is also respected and relevant in the event of an impartial opinion, that is to say, when it originates a neutral opinion regarding a certain act, which means that the latter neither benefit nor harm the child, so that the choice to be made may depend on reasons other than the child‚Äôs interest itself provided that it will undeniably be granted‚ÄĚ. The Court concludes there is no evidence, in this particular case, that the baptism will affect the child‚Äôs interest. ‚ÄúBesides, the father, at the time of his initial objection, did not mention any reason related to the child‚Äôs interest. Only later did the defendant invoke reasons regarding the child‚Äôs freedom of conscience, religion and worship. The invocation of such reasons contradicts his other arguments as he claimed the impediment was merely due to conjunctural reasons, namely the conflicting issues within the family. In other words, from the defendant‚Äôs perspective, should there be no animosity between the families, he would not object to the baptism‚ÄĚ.

 

  1. The Lisbon Court of Appeal further argues that, as we said above, ‚Äúchildren have the right to be raised according to their parents‚Äô religious beliefs. This strengthens family ties, the identification between parents and children, as well as with other relatives who share the same beliefs. In this particular case, the parents are both Catholic. The child‚Äôs baptism is an act which is proper of their way of life, much desired by the applicant and to which the defendant does not object for reasons of substance but merely conjunctural‚ÄĚ. Therefore, the Lisbon Court of Appeal stated there were no grounds for preventing C‚Äôs baptism, despite the father‚Äôs objection. It is worth noting that the Court does not enforce the baptism; it merely allows ‚Äúthe applicant, if she intends to, to baptise C even without the defendant‚Äôs consent. The final decision belongs to the applicant. Besides, nothing is imposed on the Catholic Church. The members of the clergy will decide what is best regarding the baptism ceremony, namely concerning the child‚Äôs father‚Äôs stance‚ÄĚ.

 

  1. The final comment refers to the dissenting opinion appended to the decision (allowing the appeal). Thus, Judge S√©rgio Almeida considers it is reasonable to meet the father‚Äôs wish, as the parents are both Catholics and their dispute merely refers to the baptism. But he believes this is not the point at issue. ‚ÄúThe father vaguely refers he has not decided on the religion he would like to raise his daughter in until she is capable of choosing or approving on her own. Pursuant to the abovementioned Articles 1886 of the Portuguese Civil Code and 8 of the Religious Freedom Act, Law no. 16/2001, parents have the power-duty (from our perspective) to educate their children according to the religion belief they deem appropriate (a particular one, another one or none), and may raise them (without prejudice to compliance with their intrinsic dignity) in the religion they profess. However, forcing a particular religious choice despite one of the parents‚Äô objection is completely different. Thus, each parent will be legitimately responsible for imparting the values that they may consider relevant to the child; teaching the religious education they find appropriate; and taking the child to relevant acts of worship during their parenting time. However, parents cannot make the child a member/proselyte of their religion, or non-religion, despite the other parent‚Äôs opposing stance‚ÄĚ. In this case, it seems to us that it is not the Court‚Äôs role to grant the request and that the parents shall wait for the child to be capable of forming her own view, which will thoroughly comply with the dignity of the human person [Articles 1 and 25(1) of the Portuguese Constitution] and with the inherent inviolability of religious freedom [Article 41(1)]‚ÄĚ. Therefore, the dissenting Judge agrees with the father regarding the possible distinction between teaching and initiating the child into a religion. We shall confine ourselves to pointing out that one thing may lead to another, in other words, in order to instruct a specific religion or to practise a particular worship, professing a specific religion may be required. For instance, some sacraments (like the Eucharist, when the faithful receive Holy Communion) are only conferred on those baptised into the Catholic Church. In this case, the child cannot participate in every act of worship if she is not baptised.

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

 

  1. 7. It is worth noting that the lower court heard testimony by a Catholic Priest, upon request by the appellant (defendant in the first instance). Even though the testimony was not recorded, it is possible to gather that the Priest gave the court explanations on aspects of doctrine and practice of the Catholic Church, since, as noted in the judgment, the transcript of the session indicates that the Priest stated that ‚Äúthe baptism of children takes place according to the parents‚Äô wishes, the Church being unable to decide on their behalf‚ÄĚ.

 

  1. 8. It is also worth noting the way in which the Court deals with the question of whether the parents of the child profess the Catholic religion or not, given the relevance attributed to the statements of the parents (i.e. their self-identification as Catholic). According to the appellant, the lower court could only have considered as proven that both parents profess the Catholic religion if ‚Äúthe case file included the birth records of both parents, as well as the records for their first communion and confirmation, and, materially, through the witness testimony‚ÄĚ. The court dismissed the fact that the case file did not include any documents issued by the Catholic Church attesting to the baptism, first communion or confirmation of the child‚Äôs parents, considering it to be enough that, in her initial application, the mother had stated to be Catholic and to have been raised and taught in a religious environment of practicing Catholics (which the father had not contested) and that, during the parents‚Äô conference, the appellant had stated that he was also Catholic. The Court pointed out that the ‚Äúassertion that the child‚Äôs parents profess the Catholic religion is not subject to any specific means of proof, so that the judge in this respect will review the evidence freely and decide according to his conviction‚ÄĚ. The witness testimony ‚Äď which was not recorded ‚Äď cannot be reviewed by the Court, but what is known of it (i.e. the session transcript) does not contradict the conclusion that the child‚Äôs parents profess the Catholic religion. Therefore, the statements made by the parents during the court proceedings and the witness testimony invoked by the lower court are enough to ground this conclusion. The Court ends by noting that the parties‚Äô Catholicism had not been a controverted issue in first instance. This may help explain why the Court was so willing to accept the individual self-identification in matters of religion and limits the applicability of this ‚Äúprecedent‚ÄĚ to cases in which there are contradictory versions about the parties‚Äô religion and/or in which the religious denominations at stake are less well known.

Patrícia Jerónimo

REFERENCES IN THE LITERATURE: n.a.

 

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