Strasbourg, eccentric religious views and parental access rights

Earlier this month, in Vojnity v Hungary [2013] ECHR 131, the European Court of Human Rights handed down judgment on an interesting case about the degree to which religious views may be taken into account in deciding issues of child custody and access after divorce.

The facts

The applicant, Mr Péro Vojnity, belonged to Hit Gyülekezete (The Faith Congregation). In 2000, following their divorce, his ex-wife was given custody of their son. On two occasions the domestic courts rejected his request for revision of his access rights. In 2006 the courts withdrew custody from the mother but refused to give custody to Mr Vojnity. A psychologist concluded that the boy had strong emotional ties to his siblings and to his mother but none to his father: he also concluded that Mr Vojnity was unfit to provide his son with a normal upbringing because he had unrealistic educational ideas marked by religious fanaticism and he forced his beliefs on his son to an extent that alienated him. The court placed the boy with his older brother instead. In 2008 the court took away Mr Vojnity’s access rights altogether: the ground for doing so was that he abused his access rights by imposing his religious convictions on his son.

Before the Second Section Mr Vojnity argued that the complete withdrawal of his access rights was an unjustified and disproportionate interference with his right to respect for family life, contrary to Article 8 ECHR (private and family life) taken alone and with Article 9 (thought, conscience and religion) and 14 (discrimination).

The decision of the Court

The Court recalled that the enjoyment by parent and child of each other’s company was a fundamental element of family life. The removal of Mr Vojnity’s access rights based on his religious beliefs was a difference of treatment in comparison with other parents in a similar situation who did not have any strong religious convictions. The Hungarian courts, taking the child’s best interests into account, had held that Mr Vojnity’s allegedly-irrational worldviews and proselytism would endanger his son’s development; however, there had been no convincing evidence adduced to show that Mr Vojnity’s religion had exposed his son to dangerous practices or physical harm.

In the opinion of the Second Section, strict scrutiny was called for when restricting parental rights; but the national courts had applied an absolute ban without explaining what real harm an “irrational worldview” could cause. Moreover, they had taken away Mr Vojnity’s access rights altogether without considering any possible alternatives, such as access under controlled circumstances.

In short, the circumstances of the case had not been so exceptional as to justify severing all form of contact between Mr Vojnity and his son. Though the measure had pursued the legitimate aim of protecting the child’s best interests,

“… the approach adopted by [the] authorities amounted to a complete disregard of the principle of proportionality, requisite in this field and inherent in the spirit of the Convention” (para 42).

Mr Vojnity had therefore been discriminated against on the basis of his religion in the exercise of his right to respect for family life, in violation of Article 14 taken together with Article 8. No separate issues arose under Article 6, under Article 8 taken alone or under Article 9 taken alone or in conjunction with Article 14.

Comment

In the event, because the Court found a violation of Article 14 in conjunction with Article 8 it decided that it did not need to analyse the Article 9 point any further. In a sense, however, that was the most crucial issue: in short, how eccentric do religious views have to be before they become a legitimate reason for interfering with the parent-child relationship?

In Eweida & Ors v United Kingdom [2013] ECHR 37 the Fourth Section declared that

“[t]he right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance… Provided this is satisfied, the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed” (para 81).

In spite of it having been handed down a month earlier the judgment in Eweida was not mentioned in Vojnity at all; however, Vojnity is very much in accord with the line taken in the previous case. In short, Article 9 rights cannot be capriciously overridden – however misguided or ill-informed they may appear to be.

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