Religious differences and child custody: TC v Italy

Background

In TC v Italy [2022] ECHR 379, the applicant had been in a relationship with SG and they had had a daughter, E, in 2006, but they broke up in 2008. TC started attending meetings of the Jehovah’s Witnesses, was baptised in 2011 and took E with him to services two or three times a month. In 2012 he married another Jehovah’s Witness, EB, with whom he had another child [5-8].

SG and TC disagreed about E’s custody and visiting arrangements. SG argued that, without her agreement, TC was taking E to Jehovah’s Witness services, had prevented her from attending ballet classes and took her along to distribute religious magazines in the street [9]. 12. In May 2014, TC agreed that E could take part in ballet and in July 2014 that she could make her first Roman Catholic communion – but requested that she also be allowed to attend the Kingdom Hall [12 & 13]. SG asked the Livorno District Court to rule out attendance at the Kingdom Hall and in 2015 the Court so ordered [14-16]. TC’s subsequent appeals were dismissed [17-19].

The arguments

Before the ECtHR, TC alleged a violation of Articles 6, 8 and 9 ECHR, alone and in conjunction with Article 14, claiming that the domestic courts’ decisions and the length of the proceedings had disproportionately interfered with his right to family life and his freedom of religion. He further claimed that the reason for the decision was because he was a Jehovah’s Witnesses [38] and, as such, it had amounted to differential treatment in respect of the enjoyment of his Convention rights, inasmuch as the domestic courts had affirmed that E should be encouraged to take part in Roman Catholic activities “in order to ensure her ‘healthy social growth’ and to prevent her being ‘different from her peers” [39]. He also argued that the domestic courts’ decisions had violated the equality of rights between him and SG in their relations with their child, as protected by Article 5 of Protocol No.7 [25].

The Government argued that the ECtHR was not a “court of fourth instance”, and re-examining the facts of the case was not within its competence [32]. Further, TC’s right to family life had not been restricted; he had never been prevented from sharing his religious thoughts with E [33], and the domestic courts had carried out a proper balancing exercise between the TC’s rights under Articles 8 and 9 and E’s best interests [34].

The judgment

The Court concluded that the order of the domestic courts requiring TC to refrain from actively involving his daughter in his religious activities had not severely circumscribed his relationship with her. In particular, he suffered no restrictions on his custody and visiting rights. The domestic courts had focused solely on the child’s interests, having decided to protect her from the purported stress exerted by TC’s intensive efforts to involve her in his religious activities [48]. The sole purpose of the contested order had been to preserve E’s freedom of choice by taking into account her father’s educational views, and because circumstances might change and domestic decisions were not final, TC could reapply to the Livorno District Court for a review of the decision of January 2015 [50]. There had accordingly been no violation of Article 14 taken in conjunction with Article 8 [52].

As to his complaint under Article 6 that he had been denied a fair trial in that the domestic courts had failed to decide on his appeal as a matter of urgency – the proceedings lasted more than four years [53] – there had been no restrictions on his custody and visiting rights. Moreover, he had not demonstrated how the length of the proceedings before the Florence Court of Appeal and the Court of Cassation could have had irremediable consequences on his relationship with his daughter [61]. It therefore rejected that limb of his complaint [62].

Paczolay and Felici JJ disagreed with the majority’s reasoning in finding no violation of Article 14 read in conjunction with Article 8.

Comment

The claim with the ECtHR was first lodged in 2018, which means that TC’s application has taken roughly four years to be concluded. That, when added to the four years spent in the domestic courts – whatever the views of the Court on the length of those proceedings – seems to be stretching to breaking-point the meaning of a “hearing within a reasonable time” under Article 6(1) of the Convention. Eight years might mean relatively little in a complex commercial dispute: surely it means rather more in relation to a child who was aged about seven when the proceedings began and is now in her mid-teens.

Cite this article as: Frank Cranmer, "Religious differences and child custody: TC v Italy" in Law & Religion UK, 20 May 2022, https://lawandreligionuk.com/2022/05/20/religious-differences-and-child-custody-tc-v-italy/

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