Portal de Periódicos da CAPES

Parental Consent and Children’s Rights in Europe: A Balancing Act

2010; Taylor & Francis; Volume: 11; Issue: 3 Linguagem: Inglês

10.1080/19452829.2010.495516

1945-2837

Stacy J. Kosko,

Judicial and Constitutional Studies

Abstract Three recent European Court of Human Rights cases of discrimination in education against Roma raise the question of what conditions must be present for parents to give ‘meaningful’ consent in decisions pertaining to their children and whether such consent can be meaningful when a fundamental freedom is at stake. The paper investigates the nature and limits of parental consent and makes the case for a ‘threshold’ above which respect for the dignity of the parents requires meaningful consent for any decision pertaining to their children and below which respect for the human rights of the child prohibits interference with the exercise of a right. Identifying the exact location of the threshold in any specific case requires local‐level public deliberation; insisting that decisions meet those threshold conditions, and enforcing their recognition, is a job for the Court. Key words: EducationHuman rightsAgencyCultural libertyRoma Acknowledgements The author is grateful for invaluable feedback from two anonymous referees as well as Alexandru Cojocaru, David Crocker, David Luban, James Nickel, Alec Walen, and Robin West. This paper also benefited from discussions with participants at the academic conferences of the Human Development and Capability Association (2009), the International Development Ethics Association (2009), and the Association for Practical and Professional Ethics (2010), as well as the Maryland School of Public Policy Tuesday Forum (2009). Notes * Since this paper was accepted for publication, the Grand Chamber of the European Court of Human Rights has handed down a ruling overturning the decision of the lower chamber, effectively bringing it in line with the two earlier decisions (Orsus and others v. Croatia, Citation2010). 1 Here I refer to ‘capabilities’ in Amartya Sen’s sense, most simply stated as “the substantive freedoms … to choose a life one has reason to value” (Sen, Citation1999, p. 74). 2 Cultural liberty: “Cultural liberty is about expanding individual choices, not about preserving values and practices as an end in itself with blind allegiance to tradition … [It is] the capability of people to live and be what they choose” (UNDP, Citation2004, p. 4). 3 For a rich account of the debate about children’s and parents’ rights, see Archard and Macleod (Citation2002). 4 The Court held that compelling secondary school attendance in this case violated the respondents’ rights under the Free Exercise Clause of the First Amendment, which applied to the States via the Fourteenth Amendment (Wisconsin v. Yoder, Citation1972). 5 The Council of Europe promulgated Additional Protocol 12 in November 2000, which only came into force in April 2005, after the alleged violations in these cases took place. This Protocol grants a freestanding right not to be discriminated against (Gilbert, Citation2002). It is worth noting that several of Europe’s most powerful states, including France and the UK, have not ratified the Protocol. 6 These include the consideration of country‐wide statistical evidence in establishing a prima facie case of indirect discrimination, the fact that the Court considered the ‘wider social context’ in its deliberations and findings as opposed to the narrow context of the eighteen applicants (Hobcraft, Citation2008), and the decision to embrace the concept of indirect discrimination and uphold the principle that a prima facie allegation of discrimination shifts the burden to the defendant state to prove that any difference in treatment is not discriminatory. 7 For convenience, I will use the term ‘parent’ as a catch‐all that includes any legal guardian. 8 Such control might be thought of as a kind of bargain between a government and parents: a state’s survival (immigration notwithstanding) requires its citizens to provide children and to prepare those children for some level of economic and political participation and, in return, it protects parents’ freedom to raise their children more or less as they wish. This bargain gives the state a reason to respect parents’ decisions regarding child‐rearing, their control. The ‘consent’ at issue in this paper follows from this broader idea of parental ‘control.’ What I mean throughout much of this paper is really ‘parental control,’ as consent implies a more passive form of agency. For consistency, and to capture the weaker sense of control—for example in actions such a signing waivers—I will use the term that appears most frequently in legal documents: consent. 9 The arguments in this and the following sections both appear in more detail in an earlier, unpublished, version of this paper and are available upon request. 10 I do not have space here to address the subject, but see Kymlicka (Citation2006) for a justification of the right of minorities to education in their own language. 11 Where ‘intentional communities’ such as the Amish are concerned, what counts as an opportunity varies according to the type of education a child receives but not in the way we expect with mainstream society. An Amish child who wishes to remain within the conservative part of the group might not have the opportunity to do so if she receives a conventional liberal education. For this paper, however, I will leave out the discussion of special cases such as intentional communities which state explicitly that they do not wish to participate in mainstream society. Here, I am concerned with groups that do wish to have opportunities for such participation, even if they wish it to be so in a way that respects their cultural norms and values. For a fuller discussion of participation, see Crocker (Citation2008), Sen (Citation1999), Drèze and Sen (Citation2002), UNDP (Citation2004), and any part of the substantial literature on development and participation. For a critical discussion on deliberate restriction of participation with regard to the Amish in the USA, see Barry (Citation2001). 12 As discussed in note 11 above, ‘intentional communities’ that rely on limiting certain opportunities of their members in order to preserve their culture are a special case. 13 Such a limit may or may not also apply to the self, as when an individual, in full knowledge of the consequences, chooses to limit her own freedom, but here I emphasize ‘others.’ This concept does not allow, for example, a parent to permanently limit the freedoms of her child. One idea I have tried to advance elsewhere is that agency must be sustainable. Applied here, limiting a child’s education is a limit on her future agency and a violation of a principle I articulate as ‘sustainable agency.’ 14 While there is some debate about what constitutes ‘serious harm,’ such as exposing a child to the risk of bodily harm by allowing her to ride a dirt bike, even such an exception is not without limitations. Parents are still often required to ensure that the child wears a helmet in order to limit the risk. Similarly with education, a parent might home‐school a child and perhaps that education will carry greater risk of limiting that child’s opportunities than other forms of education, but there are bottom limits to what that education might comprise. In European countries, where the quality of education is otherwise fairly high, the limited curriculum and poor teaching quality found in many ‘special schools’ for the Roma constitute similarly serious harm. 15 This said, the cultural survival of certain insular peoples (including both intentional communities and many indigenous groups) may depend in part on the parental right to control a child’s education and other aspects of her upbringing. Although Roma are not considered ‘indigenous peoples,’ in the longer form of this paper I consider the consequences of my argument for such groups and find that the applicable international laws can help us to navigate the limits of parental control of education more generally. 16 For the purposes of this paper, we can take for granted that democracy should be a goal in and of itself, since European institutions are firmly and explicitly committed to democracy. 17 Such local deliberations do not negate a role for the Court in evaluating the effectiveness of the decision in protecting human rights. As with the doctrine of margin of appreciation, the Court must respect, but not in all cases concede to, state decisions.