Lisbon Court of Appeal, proc. 783/11.2TBBRR.L1-1, 20.03.2012

SCHOOL DROPOUT | COMPULSORY EDUCATION | ROMA | INTEREST OF THE CHILD | EQUALITY OF OPPORTUNITIES

 

 

        Lisbon Court of Appeal, proc. 783/11.2TBBRR.L1-1, 20.03.2012   

 

JURISDICTION: Civil

SUBJECT: Child protection

RAPPORTEUR: Afonso Henrique

RULING: Overturn of the lower court ruling and order that the child protection procedure be resumed to enforce the protective measure of support to the parents so that they understand the need to ensure that the child completes compulsory education.

DOMESTIC LAW:

Law on the Protection of Children and Youths at Risk, Law no. 147/99, of 1 September 1999 [Articles 3(1), 4, 35(1)(a)]

Portuguese Constitution (Articles 18, 36, 69)

Law no. 46/86, of 14 October 1986 (Articles 2, 7)

INTERNATIONAL LAW:

Convention on the Rights of the Child (Articles 8, 9, 14, 30)

FOREIGN LAW: n.a.

KEYWORDS: Roma; cultural organisation; Roma ethnicity; menarche; current culture; purity; equality of opportunities; Roma community; culture; social exclusion; cultural tradition; right to one’s identity; cultural life; freedom of thought, conscience and religion; deeply engrained cultural rules and principles; family dynamics; cultural specificities; Roma traditions; community mores; people; cultural reasons; diversity of values; marginal behaviour; fundamental values of community life; origin of the family; cultural roots; sociological realities

COMMENTS:

1. This case shows us two very different judicial approaches to the question of the weight to be given to cultural arguments in court, with a lower court being deferential to the cultural reasons invoked by the child’s parents to justify the school dropout and a court of appeal deeming those reasons inadmissible and stating that the child’s interest in completing compulsory education must prevail over the parents’ objections. Even though it rejects the cultural arguments put forward by the parents, the Lisbon Court of Appeal nevertheless acknowledges that the right to education coexists – in Portuguese law and in international human rights law – with other rights that, in the instant case, are “antagonistic” to that right, such as, for example, the right to one’s own identity, freedom of thought, conscience and religion, and the right not to be denied the right, in community with other members of one’s group, to enjoy one’s own culture (Articles 8, 14 and 30 of the Convention on the Rights of the Child). The Court of Appeal does not list these rights explicitly, but it can be inferred from the sequence that the Court accepts the list made by the lower court, with whose normative review it seems to globally agree. Where the Court of Appeal parts ways with the lower court is in its conclusion that the conciliation of both interests of the child – to access education and to live in accordance with her “cultural roots” – is entirely possible and necessary. The Court states: “it is necessary to conciliate the youth’s interest in having access to an education that is equal to every other youth and her cultural roots which lead her (and her family) to believe that «once the menarche is reached, the young woman must leave school in order to preserve her purity». [It is necessary] to explain to the child’s parents that one thing [school attendance] does not exclude the other [purity] and that compulsory education is designed to protect children and youths, preventing that they enter the work force too early with negative consequences for their normal psychosocial development”.

 

2. The child protection procedure was initiated by the Public Prosecutor after the child, of 14 years of age, was signalled by the Child and Youth Protection Commission of her area of residence for school dropout when she was enrolled in the 8th grade. According to the Public Prosecutor, the child was “in a situation of danger to her social and school training, which it was urgent to bring to a stop by adopting measures to ensure her education and school integration”. Instructed the process, it was proposed that the protection measure should be support to the parents with the obligation that the child attend school and complete compulsory education. At the conference with the child and her parents, it was concluded that an agreement was impossible, given the parents’ opposition on the grounds that the child was obliged to leave school to preserve her purity. The lower court considered that the child was not in a situation of danger that warranted judicial intervention and dismissed the case. Among the established facts were the following: (a) the child is part of a family of Roma ethnicity, which is organised according to their own cultural rules and principles, deeply engrained; and (b) the child shows an adequate family integration, with caring and protecting parents. On the basis of these facts, the lower court concluded that the “refusal of school integration is not the result of lack of protection or incapacity of restraint on the part of the parents, but is explained by a diversity of values distinctive of the origin of the family, which has no link with any risk factors connected with the family dynamics”. The lower court admitted that it could be considered to exist a risk for the education and training of the child, but noted that “the concept of children and youths at risk is very demanding, it is not enough to establish that there is a risk”, it is necessary “a high level of severity” in order to legitimise the State’s intervention in the life of the child and of her family, since this intervention must be exceptional and meet the requirements of necessity and proportionality. When balancing the interests at stake – the lower court explained – the child’s right to education is pitted against the parents’ right to educate and raise their children and the rights guaranteed by the Convention on the Rights of the Child, such as the right to one’s own identity, the right not to be separated for one’s parents against their will, the right to freedom of thought, conscience and religion, and the right not to be denied the right, in community with other members of one’s group, to enjoy one’s own culture. After balancing the interests at stake in light of the guiding principles of State intervention set by Article 4 of the Law on the Protection of Children and Youths at Risk (LPCYR), the lower court concluded: “Considering A’s age – 14 years – and the wishes expressed by the parents of not having the child subjected to any protective measure, and the principles of minimal intervention, proportionality and topicality, of parental responsibility and priority of the family, we find that the best interest of the child is the non-intervention”. In its appeal against the lower court decision, the Public Prosecutor requested the Lisbon Court of Appeal that it take the necessary measures to ensure that the child continued to attend compulsory education. Among the arguments put forward by the Public Prosecutor, it is worth noting the following: (a) “whether belonging or not to an ethnic group (in casu, the Roma) the child has a right to schooling, education and training, and the State must provide her the different degrees of education, in accordance with her ability and in equality of opportunities”; (b) “children have the right to protection by society and the State with a view to their full development, especially against all forms of abandonment, discrimination and oppression, and against the abusive exercise of authority in the family and all other institutions”; (c) “only schooling, education and training are answers to the problems of poverty and social exclusion, almost always linked with lack of qualifications”. The child’s father counter-argued that the lower court ruling should be confirmed, since there was no risk for the child, who was a happy and autonomous girl, integrated in a close-knit family very attached to Roma traditions, “it being unthinkable for her to go against the mores, certain of the utmost importance that the community life has for her people as well as the respect for its traditions”. According to the father, an intervention by the State “would lead to the child’s emotional instability”, placing her at risk. The Lisbon Court of Appeal reversed the decision pointing out that the lower court had considered that “the cultural reasons invoked by the child and her family trumped the constitutional imperative and that of the Portuguese State that obligate the national youth to attend school until completion of compulsory education”.

 

3. Even though it starts by noting that “the instant case is not of easy solution”, due to the need to balance conflicting rights, the Court is very clear as the right that must prevail in the balance. “Between the parents’ refusal to allow the child to attend school, in the context of their cultural organisation, and the child’s interest in completing (at least) compulsory education, the latter must prevail”. The Court is also not shy in expressing its rejection of the key cultural argument used by the child’s parents to justify school dropout – the need to preserve her purity. The Court says: “Social realities are not static and it is not acceptable that the reason for the child dropping out of compulsory education is the preservation of her «purity»”. In any case, the Court seems to be sensitive to the fact that the preservation of the child’s purity is important for her parents, since it stresses that this goal is compatible with the completion of compulsory education and makes the explanation of this compatibility a key aspect of the pedagogical work to be conducted with the parents in the framework of the protection measure to be adopted. It is worth noting that, when phrasing the content of the protection measure as support to the parents, the Court does not mention the child’s obligation to attend school and complete compulsory education, as had been requested by the Public Prosecutor in first instance. The Court only states that the support to the parents will consist of a pedagogical work so that the child’s parents understand the need for her to complete compulsory education.

 

4. It is interesting to see the way in which both courts incorporate in their decisions the cultural information brought to the case by the Social Report and by the statements made by the child’s parents. There is no indication in the judgment that either court relied on expert witnesses or other sources to ascertain the value of the cultural claims made by the parents. Both courts take as established facts that (a) the child and her family are of Roma ethnicity; (b) the Roma are organized according to their own cultural rules and principles, deeply engrained; (c) the refusal to integrate at school is a result of the diversity of values that are particular to the ethnic origin of the family; and (d) Roma values include the provision that girls must drop out of school after reaching menarche in order to preserve their purity. The distinctive character of the Roma ethnicity as a community/people is taken as a given by both courts, even though the Lisbon Court of Appeal prefers to note that sociological realities are not static and that it is possible to conduct pedagogical work with the Roma community so that they value school.

Patrícia Jerónimo

Cite as: JERÓNIMO, Patrícia, “[Annotation to the judgment of the] Lisbon Court of Appeal, proc. 783/11.2TBBRR.L1-1, 20.03.2012”, 2020, available at https://inclusivecourts.pt/en/jurisprudencia2/

REFERENCES IN THE LITERATURE: n.a.

 

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