the child’s right to religious freedom and formation of identity

7/28/2019 The Childs Right to Religious Freedom and Formation of Identity

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Koninklijke Brill NV, Leiden, 2007 DOI:

International Journal of Childrens Rights 15 (2007) 117

THE INTERNATIONAL

JOURNAL OF

CHILDRENS RIGHTS

www.brill.nl/chil

The Childs Right to Religious Freedomand Formation of Identity

Anat ScolnicovFellow and Lecturer in Law, Lucy Cavendish College, University of Cambridge

A childs identity is formed relative to, but separate from, his or her family. Identityhas many facets, including those of gender, family membership, nationality, andmoral outlook. Some aspects of identity are immutable, such as race, some aremutable, such as religious identity.

Both mutable and immutable characteristics form identity, and the line betweenthe two is not necessarily clear-cut. Race, of course, is predetermined andimmutable, but the formation of an identity, in which belonging to a racial groupbears or does not bear a significance, is not. Sex is biologically determined, but gen-der identity is formed through social learning.

Furthermore, the line between mutable and immutable characteristics does notstay fixed. In the future, for instance, parents might be able to choose the geneticmakeup of their child. The legitimacy of such a means of controlling a childs iden-tity by the parents is very different from that of controlling education, religion, ornational identity. Nevertheless, it can be seen as simply a more extreme case of con-trol of identity.

This paper will examine the way in which family bonds influence the childs reli-gious identity. Specifically, it will analyse the legal regulation of parents rights overthe childs religious identity, asking to what extent parents should be allowed tocreate the childs identity, to what extent the state should control it, and how thelaw should regulate this process. I will argue that the law has fostered the ability of

parents to control the formation of their childrens religious identity. However, adiscussion of the subjacent principles involved is still missing.

I test this argument by examining legal regulation in two circumstances of abreak in continuity: adoption, and entering school. I analyse how the law protects,in these circumstances, family control over the formation of religious identity. Inthe case of adoption, I compare the legal regulation of formation or preservation ofreligious identity with regulation regarding formation of race identity. In the case

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How this shaping of identity is manifested can be seen in the regulation of adop-tion and in the regulation of choice of education.

1. Adoption

A newborn child obviously does not choose his or her religion. Generally, thechilds religious identity bestowed upon him or her by his or her parents is unques-tioned. As long as the parents agree on the childs religion, no question is asked asto whether the choice of religion is in the best interest of the child (so long it doesnot cause harm). However, in cases of parental disagreement over the childs reli-

gion, the legal system inquires whether the religious choice of either parent standsin conflict with their childs best interest.5 The law intrudes into a field usuallyreserved for family autonomy, simply because a decision must be reached. Thequestion whether the childs religious identity must be a continuation of one orboth of his or her parents identities is asked by the law only when there is an exter-nal breach in the continuity of family cohesion. Such is the case when parents dis-agree over the childs religion (usually following separation) or when the child isgiven to adoption.

Protection of religious identity is rarely protection of the exercise of individualchoice. What is protected is affiliation, determined usually not even by an active

choice of parents, but by their own membership in a religious group. This is gener-ally true, but is seen most clearly when the retention of original religious identity isstretched to its limitin the case of adoption. In adoption, the child no longerbelongs to a particular religion as part and parcel of belonging to the birth family.The social perception that values retaining the childs religion in adoption protectsneither choice nor continuing family connections, but a predetermined identity.

When prospective adoptive parents are of a different religion than the birth reli-gion of the child, the question arises acutely. Should children ever be adopted orfostered by parents of a different religion? Are those who oppose cross-religiousadoptions protecting the childs interest to remain in his/her religion, or the inter-

est of the community to which it belongs? With a child old enough to understandhis or her religious affiliation, there is a consideration of the interest of the childnot to add change of religion to the overwhelming change of the adoption itself.But there is also an argument against inter-religious adoption of infants akin to

Scolnicov / International Journal of Childrens Rights 15 (2007) 117 3

5) An Austrian law prohibiting a parent, without consent of the other parent, from bringing up thechildren in a faith different from that held by the parents at the time of the marriage, or from the religionin which the children had been brought up, was examined by the European Court of Human Rights in

Hoffmanv.Austria (1993) 17 EHRR 293. The Court decided the law impermissibly subjected each of theparents to a different treatment on the basis on his or her religion, violating Article 14 in conjunction with

Article 8 of the ECHR.



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that raised against inter-racial adoption. Generally, such arguments are voicedagainst adopting from a minority or disadvantaged racial or religious group. Theargument could be seen as protecting an individual rightprotecting the child frombeing denied his or her heritage, but could also be seen as protecting a group inter-est of self-preservation. Such an interest of the group might stand in direct conflict

with the interest of the child in a speedy adoption.International legal regulation, found in the Convention (Article 20(3) ), man-

dates that, in placement of children, whether for adoption or foster care, due regardis to be given to the childs ethnic, religious, cultural and linguistic background.Article 8 specifically mentions a right of the child to preserve his or her identity.

Article 3 demands that the best interests of the child be the primary considerationin all actions concerning children. However, there is no clear indication as to howthese provisions are to be translated into practice regarding adoption. Specifically,

who can decide on the exercise of the childs right to identity: the parents, theadoption agency, the courts? and where is the childs right to identity to be placedamong other considerations?

The UN Declaration on the Elimination of All Forms of Intolerance and ofDiscrimination Based on Religion or Belief in Article 5(4) states that in the case ofa child who is not under the care either of his parents or of legal guardians, dueaccount shall be taken of their expressed wishes or of any other proof of their wishes

in the matter of religion or belief, the best interests of the child being the guidingprinciple. There are no clearer international norms, but it is instructive to see howthis was interpreted in the domestic law of the Unite Kingdom and of other states.

Different approaches to matching of identity between adopter and adoptedappear in the practice of states regarding different aspects of identity. However, as

will be seen, religion was often treated differently from other aspects of the childsidentity. The legitimacy of maintaining the religious affiliation of the child in adop-tion placement, at least as an important consideration, was almost unquestioned.

An approach which mandates matching child to adopting parents as far as theirreligion is concerned, is taken by the Israeli law. The Adoption Law, 1981 states (in

Article 5) that there is no adoption but by a parent of the same religion as the child.The provision refers to matching only in regard to religion, and reflects the per-ceived importance, in this state, of religious identity to individual identity and offamilial religious cohesion. In Israel, this is particularly poignant, reflecting histor-ical memories of Jewish life in the Diaspora, where children of the Jewish minority

were converted into the majority religion. However, this limitation can bebypassed, as the Legal Capacity and Guardianship Law, 1962 (in Article 13A (c))allows for the conversion of the child to the religion of the adoptive parents, sub-

ject to court approval.The unique perception of religion among other characteristics of identity in the

kinship bond is exemplified also in US law, which shows the difference in legal

4 Scolnicov / International Journal of Childrens Rights 15 (2007) 117



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Children Act 1989, which applies in other matters regarding the upbringing of thechild (such as placement of children in foster homes by local authorities). Section 1(1)mandates that the welfare of the child shall be a paramount consideration.Section 22(5)(c ) mandates that a local authority give due consideration to thechilds religious persuasion, racial origin and cultural and linguistic background.

Even prior to the 2002 Adoption and Children Act, English courts have takeninto consideration the prospective adopted childrens religious, and other, back-ground. If there are suitable adopters of the requested religion, they will be pre-ferred. But the English courts have seen the welfare of a child as a considerationthat can prevail over the religious convictions of the parents/parent if there are no

suitable adopters of the required religion. For instance, in Re C (Adoption:Religious Observance)11 the High Court accepted that parents religious wishesshould be taken into account, but their wishes should be weighed against thechilds need for a stable, loving environment and other emotional, cultural and reli-gious needs.

The legitimacy of the consideration of religious background itself was not ques-tioned. It is unquestioned by the courts, in the cases which will be discussed, andindeed follows the statute, that a child, even a baby who is clearly not yet attachedto any religion, should preferably be placed with a family of his or her religion oforigin. There is no discussion in case-law of why this is so, or what interest is served

by including this consideration.The effect of such as consideration can be beneficial, but can also sometimes bedetrimental to the child. In some cases in which there is difficulty in finding reli-giously matching adopters, the child remains in foster care, delaying or even pre-

venting adoption. This was the case in Re E (An Infant),12 in which wardshipproceedings were at issue. A previous decision had accepted the mothers religiousbelief that the child must be brought up in a family of a particular religion as a validreason for her refusal to consent to adoption (hence the wardship proceedings).Even though the case concerned a baby a few months old, the Court held that greatsignificance should be given to the wishes of the mother as to the religious upbring-

ing of her child, but not when the childs welfare required otherwise (as in the caseat hand). Thus, wardship was continued. But, because of the previous ruling, thechild could not be adopted, which, other than for reasons of religion matching,

would have been the preferable option for the childs welfare.Apart from the practical consequences of recognition of parents refusal to agree

to a cross-religious adoption, there appears to be a lack of clarity as to what rightsare involved. In Re P (A Minor) (Residence Order: Childs Welfare),13 a daughter


11) [2002] 1 FLR 1119.12) [1964] 1 WLR 51.13)

[2000] Fam. 15.



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with Down syndrome, of Orthodox Jewish parents, was placed with a non-practicing Christian foster family. In deciding whether to vary the residence order,Butler-Sloss L. J. cited as the primary consideration the welfare of the child. In thiscase, the childs need for a settled life outweighed the religious considerations. Butthrough the balancing of considerations an important question arose, whether theinsistence of the parents that the child would be placed only with a Jewish family

was meaningful, as her capacity to understand her religious affiliation was notexpected ever to surpass that of a ten-year old. This factor led the lower court toreject the parents challenge to the placement, finding that she was unlikely to haveany real perception of her Jewish heritage. The Court of Appeal accepted this rea-

soning (although mostly its decision was based on the other factors weighing heav-ily in favour of the placement).

However, it can be asked, why should it matter at all as a consideration for place-ment whether a child will be able to understand (in the future) his or her religiousaffiliation? If the right invoked in support of this consideration is a right of thechild to enjoy his or her religious affiliation, then a placement of a small child foradoption is never an exercise of this right, as there is no exercise of choice involved.This is true of any small child, whether he or she will be able in the future to under-stand his or her religious identity or not, as it is an identity which was chosen forhim or her. On the other hand, if what is invoked is a right of the parents that their

child will continue to bear their religious identity, then placement within their reli-gion is always an exercise of this right, whether or not the child will ever be able tounderstand this identity.

In Re P, Ward L. J., concurring, agreed with the analysis of Butler-Sloss L. J.which weighed religion as one factor in determining the welfare of the child. Headded to the welfare analysis a rights analysis, mentioning that children have rightsin international conventions ratified by the United Kingdom. The conventionsmay not have the force of law but, as international treaties, they command andreceive our respect, he said, referring specifically to Article 14 of the Conventionon the Rights of the Child (guaranteeing freedom of religion). He called it a right

to practise ones parents religion. There is a confusion in this rights analysisbetween the rights of the child and the rights of the parents. The assumption thatthe child, who is not choosing the religion of his or her adoptive parents, is in some

way exercising his or her own right by being given the opportunity to practice hisor her parents religion, is telling. In fact, what is protected in this case is an inter-est of the biological parents to have their children brought up in their religion, even

when they will be raised in a different family. This may be an interest worthy ofprotection or even of recognition as an independent right, but it is certainly not aright protected by the Convention, which protects rights of children.

But there is a pivotal difference between adoption into a family of a different

race and adoption into a family of a different religion. Parents could bring up a




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child within a racial/cultural identity different from their own, more or less suc-cessfully, as the case may be. But religion has to be believed in. Parents could respectthe different religion of the child, but they could not play the parental role inher-ent in the doctrines of many religions, unless they themselves believed in it. This

problem is shown by theRe E14 case: It was suggested by the unsuccessful prospec-tive adopters, who now wanted to be granted custody of the child, that they wouldbring the child up according to the Roman Catholic faith, even though they weresecular, of Jewish descent. This proposal was understandably rejected by the Court,

which saw the inevitable meaning of placement with this family, namely that thechild would not be raised as a Catholic.15

It would be better to acknowledge the existence of an argument supportingmatching that is separate from any measure of psychological adjustment in adop-tion. This argument is based on a claim of a right of belonging to a defined com-munity, whether defined by religion or by race. This raises two further distinctquestions: whether such a right is conceptually possible and whether it exists

within international human rights law, and criticisms on both counts have beenraised above. Such an argument could also be construed as an argument for a rightof the parents or of the community to which the child was born.

Sometimes, it may be legitimate to consider group interests in adoption place-ment, particularly in cases where the survival of the group is at stake. This approach

would explain the Australian Aboriginal Child Placement Principle, adopted invarious legislation in all Australian States and Territories,16which ranks placementoptions for aboriginal children, placing extended family ahead of other aboriginalcommunity members, which, in turn, are considered ahead of other adopters.17

Placement authorities are permitted to move down this list of potential placementsonly when to do otherwise would be detrimental to the childs welfare. A similar

principle appears in the US Indian Child Welfare Act for placing Native-American children,18 which overrides the equality principle of the MultiethnicPlacement Act regarding these placements. It has been argued that it is legitimateto consider the interests of a group that could cease to exist if its children were

adopted by outsiders, as is the case with the aboriginal community, but not thoseof larger minorities, such as in the UK.19 This would be true for children from a


14) See note 12.15) The Court nevertheless approved the custody of the Jewish couple in this case.16) Incorporation of the principle: New South Wales: Section 87 of the Children (Care and

Protection) Act 1987; South Australia: Section 5 of the Childrens Protection Act 1993; NorthernTerritory: Community Welfare Act 1983; Victoria: Section 119 of the Children and Young Persons Act1989; Western Australia, Queensland, Tasmania and ACT: governmental policy.

17) See Dewar, (2000) p. 91.18) 25 USC Ch. 25 1915.19)

As Murphy (2000), p. 33 argues.



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children should first be given an affiliation, whether national or religious. It is notadvisable or even possible to raise a child with no sense of identity. Similarly, it

would seem impossible to instil in a child a completely neutral gender identity,lacking in any gender role. But this does not mean that we cannot teach childrennot to accept stereotypical gender roles and to accept different sexual orientations

The argument against a neutral education can be understood by reference toNagels22 more general claim that liberal theory is non-neutral, because it discountsconceptions that depend on inter-personal relations. Indeed, the family and partic-ularly the parental bond constitute such relations, ignored by the call for reli-giously-neutral education.

It can be argued that the family as a group has rights. ONeill23 has commentedon the tension between childrens rights and family rights. He sees the individual-istic approach to rights as unsatisfactory when it comes to the intra-family relation-ship and suggests instead a mode of family covenant. ONeill does not deal with therole of religion in the family covenant. However, it seems that religious cohesionmight play an important part in this covenant.

Although the perception of the family as a bearer of rights has been criticised inthis paper, it cannot be denied that there is much importance in familial religiouscohes ion. A judgement must be made whether the value of this bond is enough toovercome the individualistic conception of rights. As will be seen, international

human rights law has prevaricated between two approaches, one protecting thefamily bond and the other protecting the individual right of the child. This, with-out much principled discussion.

Regulation of the parents control over their childs religious education is partic-ularly interesting because the guarantee of education in conformity with the childsreligion is one of the first issues in which international law has dealt with the con-duct of the family unit. It is worthwhile to inquire what considerations are impliedby international instruments, especially whether these considerations wereintended to protect the right of the child or strengthen the protection of familialor even community control.

Initially, state obligations regarding religious education were not based on chil-drens rights or even parents rights, but were intended for protection and preser-vation of the relevant minority. The particular interest in childrens education wasa product of minority communities wish to guarantee the continued existence oftheir religious minority community into the next generation.

Protection of religious education in international law begins in instruments pro-tecting groups, and predates the 1948 watershed of individual rights, the Universal


22) See Nagel, (1975) p. 9.23)

ONeill (1994) p. 63.



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Declaration of Human Rights. The Minority Treaties included guarantee of reli-gious education. For instance, the 1919 Minorities Treaty between the PrincipledAllied and Associated Forces and Poland24 committed Poland to equal funding foreducational, religious and charitable causes of minorities. The Permanent Court ofInternational Justice25 opined, that the prohibition of privately owned schools bythe Albanian constitution was a breach of Albanias obligations regarding religiousand linguistic minorities.

A similar minority protection guarantee in the inter-war era, a provision regard-ing childrens religious education, was included in the Anglo-Irish treaties. TheArticles of Agreement for a Treaty Between Great Britain and Ireland26 establish

that Ireland will not endow any religion or restrict free exercise or affect rights ofchildren to attend publicly financed schools without receiving religious education(see Article 16). The 1937 Irish Constitution (in Article 44.2.4) guarantees theright of any child to attend school without receiving religious instruction. In thiscase too, the religious education provision in the treaty concluded between states

was aimed at a protection of the Protestant minority rather than childrens rights,as other rights of children are not mentioned or protected by it.

Even in the post-1948 era of individual human rights, the right to choose reli-gious or moral education was first only recognized as a right of the parents, andonly later of the child:

Under the ICCPR (Article 18 (4)), states undertake to have respect for the lib-erty of the parents and, when applicable, legal guardians, to ensure the religious andmoral education of their children in conformity with their own convictions.27 Thesame wording is used in Article 13(3) of the International Covenant on EconomicSocial and Cultural Rights.

Van Bueren (1998, 159) believes the omission of the childs own right to reli-gious freedom in the ICCPR was due to oversight. More likely, however, thisapproach follows the Universal Declaration, which viewed the childs religious edu-cation as a right of the parents rather than of the individual child. Indeed, such a rightaccorded to the child would be incompatible with that of the parent. Article 26(3)

of the Universal Declaration of Human Rights states, that parents have a priorright to choose the kind of education that shall be given to their children. While


24) Treaty Series, No. 8 (1919).Treaty reprinted in Robinson [1943] Appendix I.25) Minority Schools in Albania (advisory opinion) PCIJ Rep. (ser. A/B) No. 4 (1935).26) 6 December 1921. Documents on Irish Foreign Policy Vol. I, 1919-1922 NAI DE 2/304/1.27) However, legitimate limits to this right have been recognised. In Comm. No. 40/1978Hartikainen

v. Finland, CCPR/C/OP/1/1984 at 74, the UN Human Rights Committee decided that state require-ment that every school pupil will receive some instruction in religion or ethics, when the parents are givena choice to accept the school instruction or to opt for outside instruction of their choosing, does not breach

Article 18 (4) of the ICCPR.



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this article does not refer specifically to religious education, it is clearly one of theimportant choices protected by it.28 Its phrasing resulted from a conscious ideo-logical choice of the drafters to offset state power over education by giving par-ents the pre-emptory choice over the kindof education their children receive. Inthis context, it is notable that, during the drafting negotiations, the proponentsof this phrase, such as Dr. Malik of Lebanon, stressed the need to take control ofeducation out of the hands of the states, where dictators could use it to teachagainst the principles enshrined in the Declaration, much as Hitler used the stateeducation system to inculcate pupils in Nazi principles.29 This rationale reflectsthe fear that the state will provide an education which will teach pupils not to

respect human rights. It ignores the possibility that the parents will choose pri-vate education, including religious education, which will go against the humanrights principles of the Declaration. Children are not mentioned as bearers ofrights, but rather a power balance is sought between the state, which can andmust provide compulsory education,30 and the parents, who have a prior right ofchoice of education.

Similarly, the 1981 Declaration on the Elimination of All Forms of Intoleranceand of Discrimination Based on Religion and Belief states the childs right to accessto education in accordance with the wishes of his parents or guardians, the bestinterests of the child being the guiding principle.31 Thus, the parents are given the

initial legal control over the childs religion. The only limitations on the practicesof the childs religious upbringing are that they not be injurious to his health ordevelopment.32 By giving the parents the right to organize the life of the family inaccordance with their religion or belief,33 the 1981 Declaration recognizes the fam-ily as an autonomous religious group headed by the parents.

As in international documents, the right to choose religious education as a rightof the parents, is also espoused in some national constitutions. 34

The European Convention for the Protection of Human Rights andFundamental Freedoms and its jurisprudence bring into sharp relief the problems


28) Morsink [1999] p. 267.29) Ibid,30) Article 26(1).31) Article 5(2).32) Article 5(5).33) Article 5(1).34) E.g., in Cyprus, Article 18 of the 1960 Constitution provides the right of parents to bring up their

children according to their own convictions. However, the Constitution of Malta, article 2, specificallydecrees that [r]eligious teaching of the Roman Catholic Apostolic Faith shall be provided in all State

schools as part of compulsory education.



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of assigning to parents the right to choose religious education for their child. TheEuropean Convention recognizes in Protocol 1 (2) that:

. . . the state shall respect the right of parents to ensure such education and teaching in con-formity with their own religious and philosophical convictions. 35

Since no mention is made of childrens right regarding their education, it is not theright of the child that is encapsulated in Protocol 1(2), but the right of parents.Here, as with the similar provisions enshrining parental choice in religious educa-tion, it may be suggested that the right is accorded to parents because they are seenas agents of the religious community to which they belong.

The Draft Charter of Fundamental Rights of the European Union, part of theproposed EU Constitution, attempts to affect a balance between the parents rightand the constraint of democratic principles.36 Again, the voice of the child is notheard.

Unequivocal recognition of the childs own rights was finally given in 1989 inthe UN Convention, which includes in Articles 14 and 28 the childs rights to reli-gious freedom and education.

An approach to identity and religious education more coherent with this cur-rent approach of the rights of the child would be to formulate the right to chooseeducation according to religious and philosophical convictions in legal documents

as a right of the children themselves and not as a right of the parents. Normally, thisright could be exercised by the parents on behalf of young children who are tooyoung to make a rational choice by themselves. The exercise of this right will, ofcourse, shift to the child in accordance with its evolving capacities. However,because it is the right of the child, parents would not be allowed to exercise it onthe childs behalf in all cases, and the courts will have to prefer an option whichensures the childs continuing religious freedom.

Why parents should not always be allowed to exercise this choice can be seen byan examination of the US Supreme Court decision ofWisconsin v. Yoder.37 In thisdecision, the Supreme Court, by a majority, affirmed the rights of members of theAmish religious community to refrain from sending their children to school afterthe age of fourteen, an age younger than that mandated by law for compulsory


35) The African Charter on the Rights and Welfare of the Child makes the same point more vaguely,demanding in Article 9(3), on religious freedom of the child that: States Parties shall respect the duty of

parents and where applicable, legal guardians to provide guidance and direction in the enjoyment of theserights subject to the national laws and policies.

36) Article II-14: The freedom to found educational establishments with due respect for democraticprinciples and the right of parents to ensure the education and teaching of their children in conformitywith their religious, philosophical and pedagogical convictions shall be respected, in accordance with thenational laws governing the exercise of such freedom and right.

37)

406 US 205(1972).



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school attendance (which was sixteen).38 The decision was based on the petitionersright to religious freedom. The Court viewed the conflict as one between state and

parents, ignoring a potential conflict of interest between parents and children.Under the right to religious freedom, the US Supreme Court allowed the commu-nity to maintain its future membership by making it harder for young people withless education to leave. The state itself has a social interest, distinct from that of thechildren and from that of the Amish community, in providing children with thesort of education that will allow them to become socially responsible citizens.39 Bychoosing to protect the religious freedom of the parents, the Court fosters and pro-tects the community at the expense of (individual) childrens liberty. The wishes of

parents and community were furthered, at the cost of limiting the childrens choicesof later in life.40

The right to choose education is given to parents as representatives of the reli-gious groups to which they belong, likely to send their children to schools of thesame group, thus maintaining group membership. In contrast, if children (at leastolder children) are given a right to choose, overriding the decision of the parents,they may be more likely to opt out of the group to which they were born.

The same core issue, state minimum demands of secular education imposed onreligious communities, arose in England R.v. Secretary of State for Education andScience Ex P. Talmud Torah Machzikei Hadass School Trust.41 An independent

Orthodox Jewish school challenged the school inspectors report, which decidedthat the schools curriculum was unsuitable since it did not provide enough seculareducation. The school provided less than 15 hours per week of secular instructionin English. The Court (Mr. Justice Woolf) decided that the school provided effi-cient and suitable instruction within the Education Act 1944, sections 71 and 76,in force at the time. To determine whether the instruction provided was suitable,the Court formulated a test inquiring whether the school equips children for a

place in the community in which they live, rather than the way of life of the coun-try as a whole. This was sufficient, under the Courts test, as long as the instructiongave the children the ability to adopt another way of life in the future, should they

wish to do so. This test would seem to effect a balance between maintenance ofparental control, free from state intervention, and protection of the independentreligious freedom of the child. On the facts of the case, however, it is not clear whythe court found the instruction sufficient. Without a requirement of specifiedminimum hours of instruction in English, it is not clear how could a graduate of


38) The right to choose religious education as an alternative to public schooling had been recognized inUS law in the Supreme Court decision ofPiercev. Society of Sisters 268 US 510 (1925).

39) See De Groot, [2000] p. 1310-1314.40) Indeed, Justice Douglas, in partial dissent, noted the potential conflict between the interests of the

parents and the children. (Ibid, at 242).41) The Times, April 12 1985, (1985 Westlaw 310493).



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the school be able to exit the community and cope outside it (Hamilton, 1995, p.261). The report of the case is brief, and so it is not known how the court woulddetermine the suitability of instruction which would let a child leave the familialreligious environment in the future.

The court did consider the possibility that a child might want in the future todissociate itself from the familial religious environment, and saw the state as justi-fied in intervening to protect this possibility when it may be seriously compro-mised. Thus the result of the US court decision is that the ability of use of the

parental bond by parents to shape and control their childrens futures is protected,while the English court struck a balance between protection of this bond and the

independent interests of children.Currently, the UK Education Act 2002, provides that standards for independ-

ent schools shall be prescribed, for matters including the quality of education andspiritual, moral, social and cultural development of pupils.42 The curriculum ofmaintained schools43 is circumscribed more pointedly in the Education Act,demanding that they satisfy the double criteria of promoting the spiritual, moral,cultural, mental and physical development of pupils, and of preparing pupils foropportunities, responsibilities and experiences of later life.44 So it appears that thestate demands that maintained schools incorporate, although in vague terms, aconsideration of later life of the students, separate from the parents and possibly

from their way of life. The statutory matters for standards in independent schoolsdo not have any such direct mention. The interpretation of these school require-ments in light of a perception of parental choice remains a salient problem.

A broader conceptual problem is raised by this discussion. Human rights gener-ally guarantee various aspects of the individuals autonomy, choices and freedom ofaction. It is not clear then, how a human right can guarantee an individuals rightover someone elses choices and actions. A right to respect for family life, accordedin the Universal Declaration to the family,45 comes close, as it has a relationalaspect, but it is still not a right over anothers actions or choices. (Indeed, subse-quent international instruments phrased it as an individual right: The ICCPR and

the European Convention on Human Rights and Fundamental Freedoms phrasethe right to family life as an individuals right to family life46). So, it is even morepointed that international and national legal instruments have uniquely resorted toframing a right of parents over the freedoms of their children in the area of religiouseducation, underlining the importance the law accords to protection of parentscontrol over formation of religious identity of their children.


42) Section 157(a) and (b).43) Essentially, schools funded by the state.44) Section 78(a) and (b).45)

Article 16 (3).46) Article 17. See also Article 8 of the European Convention.



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It can be seen that allowing parents to decide on the religious education of theirchildren is not a simple proposition. The perception underlying the recognition ofhuman rights, including religious freedom, is built on the exercise of individualautonomy. It is precisely this perception that mandates against favouring exclusiv-ity of parental control over determination of religious identity through religiouseducation.

4. Conclusions

International human rights law recognises a right of the child to preserve his or her

identity. However, it is not obvious how or by whom the construction of this iden-tity is to be determined.International law includes a right of the child to have his or her background,

including religious background, considered when deciding on placement for adop-tion. Different states have applied this in different ways. But, the question, whoseright is invoked by this provision, has not been asked. Analysis of this question willhave important practical implications in deciding on adoption policy, as well asleading to a better theoretical understanding of the rights involved.

For a long time, international law has protected religious freedom and religiouschoice as a right of the family, rather than of the child. It was a right of the parents,

seen as agents of their religious community, which was upheld against the state.Even today, international law prevaricates between recognising a right of the childto religious freedom and protecting a right of the parents over the childs religiouseducation.

In light of the lack of sufficient theoretical discussion of whether a general par-ents right over their childs religious identity exists and without such a generalarticulated right in international instruments, even more notable is the extent to

which control of parents over the religious identity of the child is presumed andupheld by law.

References

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