Lisbon Court of Appeal, proc. 732/13.3TBVFX-A.L1, 11.09.2014

EARLY SCHOOL-LEAVING | INSTITUTIONALISATION | ROMA ETHNICITY | RESPECT FOR THE CHILDREN’S ETHNIC AND CULTURAL BACKGROUND

 

 

Lisbon Court of Appeal, proc. 732/13.3TBVFX-A.L1, 11.09.2014

 

JURISDICTION: Civil

SUBJECT: Child protection

RAPPORTEUR: Jorge Vilaça

RULING: Rejects the appeal and confirms the lower court decision, which had determined the replacement of the measure of support to the parents by the institutionalisation of the children for a period of one year.

DOMESTIC LAW:

Law on the Protection of Children and Youths at Risk, approved by Law No. 147/99, of 1 September 1999 (Articles 3, 4, 34)

Code of Civil Procedure (Article 635)

Judgment of the Lisbon Court of Appeal, proc. 1035/06.5TBVFX-A.L1-2, 27.02.2014

INTERNATIONAL LAW: n.a.

FOREIGN LAW: n.a.

KEYWORDS: Roma ethnicity; different usages and customs; school absenteeism; rules and forms of life; different reality and way of life; special family nature; children’s social background; best interest of the child; situation of danger; poorly regarded at school; rejected and looked with suspicion for being Roma; deaf; social report; Roma tradition; single-parent female-led family; protection agreement; children’s upbringing and full development; extended family; mandatory schooling; discriminated; respect for culture; respect for the children’s ethnic and cultural background; ghetto; excluded; Portuguese society in general; specific ethnic and cultural background; education equal to that of other citizens; integrated in society; regarded as equal, without prejudice to their specific culture; most in line with their cultural background; aggressive behaviour

COMMENTS:

1. This judgment concerns a child protection procedure initiated in response to the school absenteeism of two Roma boys. It is interesting for the importance given in the Court’s reasoning to the “children’s ethnic and cultural background”, with remarks on the need to combine respect for culture with respect for the general law, on the right of Roma children to an “education equal to that of other citizens” and on the importance of promoting their integration into Portuguese society and of avoiding that they live in a ghetto. It is possible that the attention paid to the issue was the result of the insistence with which the appeal brief stressed the children’s ethnic belonging, something which the Court mentions with a tone of criticism when it notes that the Roma ethnicity of the children had been stressed ad nauseam by the appeal brief. The Court agrees that the children cannot be discriminated against for being Roma and also that the culture specific to the context in which they are integrated is to be respected. On the other hand, the Court flatly rejects the possibility that the children’s estrangement from school could in any way have been triggered by the existence of an hostile school environment.

 

2. The judgment was issued on appeal against a decision which had determined the institutionalisation of two brothers of Roma ethnicity, after a protective measure of support to the parents had failed to put an end to their school absenteeism. The measure of support to the parents had been the object of a protection agreement, ratified by court ruling, which included the children’s commitment to attend school on a regular and punctual basis, to perform well and to respect the teachers, the staff, and their fellow-students. The social reports on the implementation of the protection agreement had shown that the children were not meeting their commitments, so the Public Prosecutor had initiated the child protection procedure aiming at the children’s institutionalisation. The lower court decision determined the institutionalisation after concluding that the children were left to themselves, with danger for their upbringing, since the mother had shown “no capacity or competence to supervise her children’s educational process”, and there was no indication of persons of the extended family or other persons who could take charge of the children.

 

3. On appeal against the lower court decision, it was alleged, in sum, that (i) the children were not in a situation of danger, since they were well cared for by their parents; (ii) school absenteeism could not lead to a drastic measure as the separation of the children from their family and from the Roma ethnicity among which they had always lived; (iii) the children could hardly be “formatted” to another reality and a different way of life; (iv) the institutionalisation would only worsen the children’s aggressiveness and revolt; and (v) the school absenteeism was not the result of lack of care on the part of the family, but instead of the fact that the children, due to being Roma, were poorly regarded at school, “rejected and looked with suspicion”, and were confronted with usages and customs different from their own, which led them to feel ill-at-ease in school.

 

4. In its judgment, the Court of Appeal starts by citing the relevant provisions of the Law on the Protection of Children and Youths at Risk (Articles 3, 4, 34), which list the situations that are considered as situations of danger, the principles governing the state intervention and the goals pursued by the protection measures. The Court then stresses the importance that education has for “children such as the ones of the instant case”, enrolled in the 6th grade and still subject to mandatory schooling. Relying on the facts described in the social reports, the Court criticises the children’s behaviour, noting that they “excel at being constantly absent from classes and, when they do show up at school, do not have a behaviour that can be deemed the most appropriate”. The Court also notes that the mother never went to the school to meet the teachers, and that both her and the children failed to meet the obligations they had committed to in the protection agreement. As noted at the start of this annotation, the Court dedicates a considerable part of its reasoning to the analysis of the implications of the children’s Roma ethnicity. It notes, in this regard that (i) the children “cannot be discriminated against because of their Roma ethnicity nor for living among the Roma”; (ii) “the culture specific to the context in which the children are integrated is to be respected”; (iii) “respect for the children’s ethnic and cultural background cannot lead to the disrespect of general legal rules concerning mandatory schooling”; (iv) “the fact that the children are of Roma ethnicity does not mean that the best for them is to live in a ghetto, entirely excluded from the other citizens and from Portuguese society in general”; (v) the requirement of mandatory schooling does not hinder the “children’s right to respect as members of a specific ethnic and cultural background”; (vi) the requirement that the parents adopt all measures necessary “to have an education equal to that of other citizens is a perfectly adequate way to protect the children”, since, in this way, they may be better integrated into society and “be regarded as equal, without prejudice to their specific culture”; and (vii) it is mistaken to claim that the “inadequate behaviour” of the children at school is the “most in line with their cultural background”. Even though the Court is sensitive to the importance of the children’s cultural background, it refuses to accept that this background explains everything or exempts the children from respecting the general law. The Court concludes that separating the children from their family is the best way to protect them and promote their rights, since the family had failed to correct the situation of school absenteeism and had shown a “complete lack of responsibility”, since the mother had never been at the school to check on how the children were doing and wanted to blame the school for her children’s inadequate behaviour.

 

5. It is doubtful that the children’s institutionalisation for the period of one year, with the separation from their mother and the environment they were familiar with, was proportionate to the purported goal of ensuring that they continued to attend school, or the best way to protect them and promote their rights. In can be argued, as did e.g. the Évora Court of Appeal (proc. 1674/18.1T8TMR.E1, 09.09.2021), that the separation of Roma children from their parents is “unjust and disproportionate” to the goal of ensuring that they attend school, in light of the principles of proportionality and of prevalence of the family, enshrined in Article 4(e)(h) of the Law on the Protection of Children and Youths at Risk, and of the children’s right to live with their parents, established by Article 9(1) of the UN Convention on the Rights of the Child.

 

6. We also have reservations with regard to the way in which the Lisbon Court of Appeal dismissed the allegation that the children’s behaviour was motivated by an hostile environment at school. In this regard, the Court merely observes that “contrary to what was alleged in the appeal brief, the case file shows that the aggressive behaviour was only on the part of the children and of no one else. No proof was made of any fact that indicates that the children’s estrangement from school was due to a rejection from the school environment”. The Court seems to have relied solely on the content of the social reports to arrive at this conclusion. However, the difficulties faced by Roma children in their integration at school are extensively documented in Portuguese literature, and it is well known that prejudice against the Roma contributes to create an unwelcome school environment [see, e.g., ISABEL MOREIRA MACEDO, O Sucesso Escolar de Minorias: Estudo Sociológico sobre Trajectórias Escolares de Alunas e Alunos Ciganos na Escola Pública Portuguesa, Braga, Instituto de Educação da Universidade do Minho, 2010; MARIA JOSÉ CASA-NOVA, “A relação dos ciganos com a escola pública: contributos para a compreensão sociológica de um problema complexo e multidimensional”, Revista Interacções, no. 2, 2006, pp. 155-182; PEDRO JORGE CAETANO et al., “Como acolher os estudantes ciganos na escola pública? Do reconhecimento da alteridade a uma pluralidade de arranjos discriminatórios”, Vértices, vol. 23, no. 3, 2021]. In the instant case, considering also that one of the children is deaf, it does not seem that the allegation that the children felt hill-at-ease in school was unreasonable or just a way to evade responsibility by shifting the blame to the school. The fact that the children displayed an aggressive behaviour does not mean – contrary to what seems to be the Court’s inference – that that behaviour was not motivated, at least in part, by the suspicion, incomprehension and hostility faced by the children at school. Even admitting that the Court was right to decide in favour of the children’s institutionalisation, we see no reason for the Court to underestimate the children’s difficulties to integrate at school and to not recognise that the children are not the only ones responsible for those difficulties.

 

7. A final note to mention that the version of the judgment which is published on the Ministry of Justice’s website [Instituto de Gestão Financeira e Equipamentos da Justiça I.P. (IGFEJ)], of which a copy is enclosed with this annotation, includes a summary that does not correspond to the content of the judgment. That is the reason why the legal provisions and keywords in the summary are not included in the annotation.

 

Patrícia Jerónimo

Nicole Friedrich

 

Cite as: JERÓNIMO, Patrícia, and FRIEDRICH, Nicole, “[Annotation to the judgment of] Lisbon Court of Appeal, proc. 732/13.3TBVFX-A.L1, 11.09.2014”, 2022, available at https://inclusivecourts.pt/en/jurisprudencia2/.

 

REFERENCES IN THE LITERATURE: n.a.

 

 

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