CASE OF PALAU-MARTINEZ v. FRANCE
Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Baka;Gaukur Jörundsson
7. The applicant is a French citizen who was born in 1963 and lives in Alcira, near Valencia (Spain). 8. The applicant married in January 1983. She and her husband had two children, born in 1984 and 1989. 9. In August or September 1994 the applicant's husband left the matrimonial home and moved in with his mistress. In December 1994 the applicant petitioned for divorce. 10. By a judgment of 5 September 1996, the Nîmes tribunal de grande instance ruled on the divorce petition. It found, firstly, that a reading of the submitted documents had not established that the applicant's membership of the Jehovah's Witnesses had been the cause of the break-down in the couple's relationship, but that it had been attested that her husband had left the matrimonial home to live with his mistress, and had also prevented the applicant from working in the pizzeria they ran. Accordingly, it granted the divorce, attributing fault to the husband alone. 11. With regard to the children, the court decided that they would reside with their mother in Spain and that parental responsibility would be exercised jointly. The father was to have visiting and residence rights on an unrestricted basis and, in the absence of agreement, during the whole of the children's school holidays, provided that he collected them himself and escorted them back to their mother's home. It set the amount of the father's maintenance payments at 1,500 French francs (FRF) per month and per child. 12. On 21 November 1996 the applicant appealed against this judgment. She asked to be given access for one month during the children's summer holidays and one week during the Christmas and Easter holidays. She also renewed her request for a complementary allowance. In her pleadings in reply, the applicant complained that her ex-husband had not returned the children to her at the end of the 1997 summer holidays and had enrolled them in a school in Aigues-Mortes, where he lived with his new companion. She submitted that the father had influenced the children so that they would express a wish to live with him; she filed statements and photographs intended to show that she was bringing up her children with great care and that they were allowed to take part freely in any activity that interested them. She requested that a social inquiry report be drawn up. 13. The Nîmes Court of Appeal delivered judgment on 14 January 1998. It upheld the judgment with regard to the divorce pronouncement and awarded the applicant a complementary allowance of FRF 1,500 per month for three years. With regard to the children's place of residence, the court found as follows: “The two under-age children, C., aged 13, and M., aged 8, currently live with their father in Aigues-Mortes, where they attend school. This is a de facto situation which has been brought about by the father, who, contrary to the provisions of the appealed judgment, failed to return the children to their mother's home at the end of the summer holidays. In justifying his behaviour, R. claims that he has acted in the children's interests, in order to remove them from the detrimental influence of their mother and her circle, who oblige them to practice the religion known as 'the Jehovah's Witnesses'. Furthermore, R. has submitted a letter from child C., expressing the latter's wish to remain with his father, together with a medical certificate drawn up by Doctor D., a psychiatrist, on 7 January 1997, which states that child C. 'experiences his mother's prohibitions, via the Jehovah's Witnesses, as distressing and frustrating' and that 'child M. suffers from the religious constraints imposed on him and expressed a wish to live in Aigues-Mortes with his father as far back as the beginning of 1997'. Finally, numerous other witness statements testified to the children's expressed wish not to return to Spain. Séraphine Palau-Martinez does not deny that she is a Jehovah's Witness or that the two children were being brought up in accordance with the precepts of this religion. Admittedly, she has submitted numerous statements attesting to her affection for her children and showing that she provides for their well-being, and has filed group photographs in which her children appear happy. Taken together, however, the submitted documents are not inconsistent with the arguments of R., who does not wish to deny the mother's maternal attributes but restricts himself to criticising the strict upbringing received by the children on account of their mother's religious convictions. The rules regarding child-rearing imposed by the Jehovah's Witnesses on their followers' children are open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise. It is in the children's interests to be free from the constraints and prohibitions imposed by a religion whose structure resembles that of a sect. There is no reason to order a social inquiry report which, in the present circumstances, would serve only to unsettle the children. In the light of the above analysis, the Court considers that, contrary to the lower court's decision, the two under-age children's place of residence should be their father's home, but that parental responsibility should continue to be exercised jointly. Should no agreement be reached [between the parents], Séraphine Palau-Martinez will enjoy free right of access and the right to have the children to stay: – for the whole of the February and All Saints holidays; – for one month during the summer holidays; – for half of the Easter and Christmas holidays, when it will be for the mother to collect the children from the father's home and for the latter to collect them from the mother's home; ...” 14. The applicant appealed on points of law. In particular, she complained that the Court of Appeal had reversed the first-instance judgment on the central ground that the rules regarding child-rearing imposed by the Jehovah's Witnesses on their followers' children were open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise; in so deciding, it had done no more than apply a general and abstract ground and had failed to investigate whether, in reality, the children's upbringing was disrupted to an extent that justified changing their place of residence. She considered that this value judgment on the way in which she practised her religion, taken in abstracto, did not justify the court's decision. She added that the manner in which the court had asserted that it was in the children's interests to be free from the constraints and prohibitions imposed by a religion whose structure resembled a sect had been just as abstract. She also complained that the Court of Appeal had refused to grant her request for a social inquiry report. Referring to freedom of conscience and religion and to the rules of a fair hearing, she relied on Articles 9 and 6 of the Convention. 15. The Court of Cassation delivered its judgment on 13 July 2000. After summarising the grounds of the Court of Appeal's judgment, it ruled as follows: “It is apparent from these findings and considerations that the Court of Appeal, which replied to the submissions without inconsistency, was not obliged to order a social inquiry report and did not interfere with Ms Palau-Martinez's freedom of conscience, ruled, on the basis of the evidence which it alone is empowered to assess, that the children's interests required that their father's home be established as their habitual place of residence; ...” 16. The relevant provisions of the Civil Code provide: “Parental responsibility shall be exercised jointly by both parents. Failing an agreement or where the court considers that such an agreement goes against the child's interests, the court shall designate the parent with whom the children shall habitually reside. Where it is necessary in the interests of the child, the court may confer parental responsibility on one of the two parents. On their own initiative or at the court's request, the parents may submit their observations on the arrangements for exercising parental responsibility.” “Prior to any interlocutory or final decision setting out the arrangements for the exercise of parental responsibility and visiting rights, or entrusting the children to a third party, the court may instruct any qualified person to draw up a social inquiry report. The aim of this document is to gather information on the family's material and moral situation, the conditions in which the children live and are brought up, and the measures which should be taken in their interests. If one of the spouses disputes the conclusions of the social inquiry report, he or she may request a second expert opinion. The social inquiry report may not be used in the divorce proceedings.”