DESCHOMETS v. FRANCE
Inadmissible
The applicant, Mrs Claudine Deschomets, is a French national who was born in 1967 and lives in Saint-Agrève. She was represented before the Court by Ms C. Imbach, a lawyer practising in Strasbourg. The respondent Government were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant married V. on 23 April 1985. At the time they both belonged to the Brethren, a movement in which they had grown up and met each other. The couple had two sons: A., born on 12 December 1986, and J., born on 5 August 1989. In March 1991 V. left the movement completely, as he could no longer agree with the way of life imposed by the Brethren’s precepts. The applicant brought separation proceedings on the grounds of repeated infidelity by V. On 21 October 1991 a non-conciliation order was made by the Privas tribunal de grande instance, which, among other things, granted custody of the two children to their mother, with the agreement of their father. The father retained “the right to maintain a personal relationship with his children and to be involved in their upbringing, through unrestricted correspondence, visits or regular overnight stays”. Rights of visiting and staying contact were further granted to him under the following conditions: (i) on the first and third Sunday of each month, from 10 a.m. to 6 p.m.; (ii) on the first and third Saturday of each month, from 2 p.m. to 6 p.m.; (iii) on the second and fourth Wednesday of each month, from 2 p.m. to 6 p.m.; (iv) Christmas Eve from 10 a.m., Christmas Day, and Boxing Day until 6 p.m. The applicant appealed against that decision, challenging the scheduling of visiting contact and staying contact on Sundays on the grounds that it was a day set aside for religious devotion and that it would be abnormal for the children to be deprived of their Sunday observances because of the change in the father’s beliefs. In a cross-appeal, V. sought an order granting him parental responsibility. In a judgment of 25 June 1992, the Nîmes Court of Appeal upheld all the provisions of the order under appeal. The court found in particular as follows: “parental authority was granted to the mother by the court below in agreement with the father, who has not adduced any evidence to suggest that such decision should be reconsidered ... The court need not order a welfare report, as the living conditions of each parent are not such as to justify the intervention of a welfare officer”. In a judgment of 7 January 1993, the Privas tribunal de grande instance took note of V’s confession of reiterated adultery, declared the couple separated on the grounds of fault by the husband, granted parental responsibility for the minor children to the applicant and decided that they should principally reside with her, scheduled the father’s visiting and staying contact (first and third weekend of the month and half the school holidays) and ordered him to pay maintenance of 1,000 French francs (FRF) for each child. The applicant appealed against that judgment, requesting that the father’s visiting contact should mainly be scheduled for Saturdays so that the children could continue their religious observances every Sunday. In a cross-appeal V. sought a decision granting joint parental responsibility for the children. In a judgment of 17 March 1994 the Nîmes Court of Appeal upheld all provisions of the decision under appeal. The court found in particular that “in view of the major conflict between the parents, it [was] not in the children’s interests to grant joint parental responsibility”. In a judgment of 30 January 1997 the Privas tribunal de grande instance ruled on a divorce petition filed by the applicant and granted a divorce on grounds of fault by V. The court decided that the children should live with the applicant, who was granted parental responsibility. The father’s visiting and staying contact was fixed as follows: (i) the first, third and fifth weekend of each month, from Saturday at 2 p.m. to Sunday at 7 p.m.; (ii) one half of every school holiday. On 20 June 1997 V. applied to the court for an order stipulating that the children should reside with him and providing for joint parental responsibility. He also applied for a welfare report. On 13 October 1997 the family-affairs judge of the Privas tribunal de grande instance ordered the report and deferred his decision on the remainder of the application. The findings in the welfare report, which was filed on 16 February 1998, were as follows: “Both parents provide sound guarantees, whether material, emotional or moral. They offer their children very different lifestyles. Mrs Deschomets’ educational qualities and her deep affection for her children are not called into question. However, her way of life is not favourable to their opportunities for further education, to their integration into society in the broad sense or to their character development; the children live with a constant feeling of guilt whenever their aspirations diverge from her own. It was very clear during the two interviews with the children that they both wanted to change their way of life. A. no longer wishes to attend Brethren meetings and is aware that his mother cannot change her lifestyle or religious practice. J. would like to have greater freedom; he does not want to leave his brother but remains very attached to his mother. Consequently, a change of residence could be envisaged for the children, with the mother being granted a “classic” right of visiting and staying contact that could be extended in respect of J. at the child’s request. V. has undertaken to comply with the child’s requests”. In an order of 20 April 1998 the family-affairs judge granted the parents joint parental responsibility and maintained the children’s residence with their mother. The father’s rights of visiting and staying contact were extended as follows: (i) every Friday evening until the following Monday morning; (ii) every Wednesday from 8.30 a.m. to 7.30 p.m.; (iii) in the Christmas holidays, one week alternating from year to year; (iv) the whole of the remainder of the school holidays. The court fixed at FRF 1,500 per month, for both children, the maintenance to be paid by V. and found in particular as follows: “V. ceased to adhere to the Brethren’s precepts and left the movement, leading to the breakdown of his marriage, after which he started a new relationship; [the applicant], who was happy in the Brethren movement, did not change her religious practice or way or life. .... the children ... are currently torn between their father and mother, each of whom represents a different lifestyle; A and J do not adhere to [the applicant’s] way of life, as they suffer from various taboos when they are with her, although they remain very attached to her. ... V. and [the applicant] both display sound relational and moral qualities, and both appear concerned about their children’s happiness – that happiness being perceived by [the applicant] in the sense of spiritual fulfilment, which, to the extent that it is not accepted by the children, appears prohibitive and austere to them. V. perceives that happiness in the sense of a social adaptation that is appealing to the children who, without simply taking the easy option, may be attracted to sports or school activities that are more open in their outlook. ... each parent offers the children very satisfactory physical living conditions and provides them with all the necessary care. ... these findings justify the granting of parental responsibility to both parents. ... the residence of the children should be fixed in the light of their own interests. ... the fact that [the applicant] adheres to a religious movement cannot in itself justify a change in the children’s residence, as she provides them with a high standard of care and education that have made them well-bred children with good school results, and as the continuation of the children’s schooling is not currently at issue. However .... the findings set out in the welfare report cannot be ignored; it states that the children are very unhappy – and [the applicant] admits that the children have sometimes broken down in tears – , that they have unquestionably chosen their father’s lifestyle and that they are afraid of pressure from the movement. .... in the light of these facts ... it is appropriate to extend V.’s right of visiting and staying contact as set out in the operative provisions, so that he will be able to offer his children the possibility they are seeking of expanding their horizons and of taking part in activities that V. encourages, without however depriving the minor children of the caring and warm-hearted presence of their mother. ...” V. appealed against that order and requested the court to declare that the children should habitually reside with him. In his view, the decision of the court below was at odds with the findings of the welfare report. He observed that the religious obligations imposed on the children by the Brethren were contrary to the interests of the children, who were required to travel a certain distance to daily meetings in various places. V. also explained that the Brethren movement imposed on the children a lifestyle that was not conducive to their development, social integration or career preparation, as they could not follow classes on Saturdays, use computers, take part in school outings, watch television or do sport. The applicant lodged a cross-appeal and requested the court to grant her normal leisure time with the children at weekends, on Wednesdays and throughout the school holidays. She argued in particular that her religion, which she was free to choose, should not influence the decision concerning the children’s residence and that any change of residence should be decided only in accordance with their interests. A hearing was held on 26 May 1999 in the Nîmes Court of Appeal, which reserved judgment in the case until 1 September 1999. On 6 July 1999 the children’s lawyer (acting under Article 12 of the International Convention on the Rights of the Child and under Article 388-1 of the Civil Code) submitted to the Court of Appeal a document containing their views, which included the following passages: “Lawyer: Which do you think provides the better arrangement of your daily life: your mum’s place or your dad’s place? A: To live with my father and stay with my mother every second and fourth Wednesday, every first, third and fifth weekend in each month, and for half of the school holidays. (14 June 1999)” “Lawyer: How would you like your time to be divided between your mum’s place and your dad’s place? J.: To live with my mum and visit my dad every Wednesday and for half of the school holidays. (14 June 1999)” On 24 June 1999 the children asked their lawyer to send a letter to their father with the following observations, among others: “... the order of 20 April 1998 provides that the children should stay with you for the whole of their school holidays in the summer. However, A. and J. have asked me to confirm to you that they find it hard to understand this judicial requirement to be separated from their mother throughout the summer holidays. In my discussions with your children I have seen that the situation is not perceived in the same way by both children. ... In an attempt to encourage the development of a situation where the children can make the most of their summer holidays, without any uneasiness or difficulty, and with the agreement of A. and J. as to this initiative (the sending of this letter) and to the general substance of this letter, I would ask you, at their request, kindly to agree to the following: (1) that A. may spend part of the summer with his mother; (2) that J. will not be obliged to spend his entire summer holidays with you; (3) that with regard to J., however, arrangements will be made for him to stay with you for one week, in late July or early August, it being agreed that during the stay the boy will be protected from embarrassing questions or criticism [concerning in particular his life in the Brethren movement].” The Nîmes Court of Appeal gave its ruling in a judgment of 1 September 1999. It set aside the above-mentioned decision and found in particular, with respect to the children’s residence, as follows: “ ... the decision taken by the court below in the light of the welfare report does not appear satisfactory for the parents or for the children. By granting the father a right of visiting and staying contact for three days and three nights a week, and for the whole of the school holidays except for one week at Christmas, the impugned decision obliges the children to travel a lot – a situation that is hardly conducive to their stability – and deprives them of contact with their mother during the school holidays, which is equally unsatisfactory in terms of their character development. Moreover, the fact that [the applicant] adheres to the Brethren movement does not call into question her strong emotional relationship with her two children, and the court therefore does not intend to base its decision on a negation of the quality of that relationship. Lastly, it is not for the court to decide whether or not the Brethren movement constitutes a sect, but simply to determine whether the constraints imposed on the children, because of the mother’s affiliation to the movement, do not run counter to their interests. Contrary to what [the applicant] seems to believe, the moral values that have to be inculcated in children are not the prerogative of religions. Above all, the acquisition of such values does not depend on stringent religious observances and the imposing of prohibitions on children which have the effect of setting them apart from their non-believing peers, who are regarded as sinners. The welfare report, which on this matter has not been criticised in any way by the respondent, reveals the way of life imposed by the movement: (i) daily religious observances, every weekday evening (from 6.30 p.m. to 10 p.m.) being devoted to services or meetings, with no activities on Saturdays, and Sundays from 6 a.m. being set aside for acts of religious devotion; (ii) numerous prohibitions such as not being able to eat or drink with anyone who is not affiliated to the Brethren, to watch television, to listen to the radio or read a newspaper, use a computer or do sports. The obligations and prohibitions thus imposed on the children, based on the idea that everything outside the movement is “evil”, is unquestionably harmful to the children’s development and social integration. The welfare report further points out that the Brethren are obliged to follow school courses by correspondence rather than going to boarding school, and a very small minority manage to obtain the school leaving certificate, even though they are regarded as good pupils. The children, who are described by the welfare officer as mature, have clearly expressed their rejection of their mother’s religious practice and way of life, displaying a distinct preference for their father’s lifestyle. The two children broke down in tears during their meeting with the welfare officer, appearing very unhappy, but, in their mother’s presence, they confirmed their position. In the light of the welfare report and the factors analysed above, the court considers that, contrary to the decision of the court below, it is in the immediate interest of the children to reside with their father. ...” As regards the right of visiting and staying contact, the court noted as follows: “Whilst the court below, maintaining the children’s residence with their mother, granted V. a right of visiting and staying contact .... with the intention of preventing the mother from imposing on the children the religious activities of the movement to which she belongs, that decision was far from satisfactory for the reasons already given above. Since the [applicant’s] maternal qualities are not called into question – the two children are genuinely fond of their mother – the court considers that it is appropriate to trust the mother not to allow the Brethren to put pressure on the children to “make them change their minds”, as child A. has feared. Should she fail to do so, it would be for V. to request the appropriate court to change the right of visiting and staying contact granted to the mother.” The Court of Appeal decided that the children should habitually reside with their father and granted the mother a right of visiting and staying contact under the following conditions: (i) outside the school holidays, on the first, third and fifth weekend of each month, from 2 p.m. on Saturday until 8 p.m. on Sunday; and (ii) for one half of the school holidays. The maintenance contribution to be paid by the mother in respect of each child was fixed at FRF 500 per month. The applicant lodged an appeal on points of law. In support of her appeal she submitted a single ground divided into four limbs. In the first she alleged that the judgment of the Court of Appeal had lacked a legal basis, since it had failed to establish any new factor justifying a change of residence. In the last three limbs, relying on Articles 8 and 14 of the Convention, the applicant alleged that she had suffered discrimination on the ground of religion, as the court had based its decision solely on a negative assessment of her religious practice. On 19 February 2002 the Court of Cassation dismissed the appeal for the following reasons: “ ... as regards the first limb, the Court of Appeal based its decision on the results of a welfare report which had been drawn up prior to the decree of divorce, and which revealed the way of life imposed by the movement to which [the applicant] belongs. As regards the last three limbs, the Court of Appeal, which did not have to give explanations as to undertakings not mentioned by [the applicant] in her grounds of appeal and which took into account the findings in the welfare report, together with the feelings expressed by the children, whose maturity was emphasised in that report, considered that the obligations and prohibitions imposed on them were harmful to their development and social integration. It follows therefore that its decision cannot be called into question by the grounds of appeal. ...” V. subsequently lodged an application with the Puy-en-Velay tribunal de grande instance seeking a restriction of the applicant’s right of visiting contact and the withdrawal of her right of staying contact. In accordance with an order of the family-affairs judge on 12 April 2002, a welfare report was filed. The proceedings are currently pending. The Brethren, founded in the British Isles in the 1820s, is a Christian movement which dissented from the Established Church. In 1828 John Nelson Darby (1800-1882), an Anglican clergyman, denounced the involvement of his Church with the State and became an itinerant preacher among the “free assemblies” that spread across Europe and North America. To “abide in Christ”, he advocated the formation of assemblies without any formal organisation or hierarchy, after the model of the churches of the Apostles. Darby resigned from the Anglican church and settled in Plymouth. He brought together various small congregations of which the adherents were known as “Darbyites”. The movement mainly developed in English-speaking countries. It is estimated that there are about 1,000 adherents in France. A central tenet of Brethren doctrine is their concern to adhere unconditionally to the Scriptures and to distance themselves from outside influences. This stems from the basic principle of Separation - the duty of a believer to separate himself from evil or from anything that may undermine purity, in all aspects of daily life. As regards their lifestyle, the following aspects, among others, should be mentioned: daily religious observances; no work on Saturdays for anyone, not even school children (with Sundays being entirely set aside for religious activities); emphasis on the importance of family life (parents are very attentive to their children, divorce is not accepted); no eating or drinking with anyone outside the Brethren, because every meal is a communion; no participation in associations; and the avoidance of any harmful influence (no television, radio or newspapers, no use of computers or the Internet). From the age of admission to a senior high school children often continue their education by correspondence. The relevant Articles of the Civil Code, as in force at the material time, read as follows: Article 371-2 “A child’s father and mother shall be responsible for protecting his or her safety, health and morals. They shall have a right and a duty to look after, supervise and bring up their children.” Article 372 “Parental responsibility shall be exercised by both parents jointly ... if the parents of an illegitimate child, who have legally recognised the child before he or she reaches the age of one, were living together at the time of the joint recognition or of the second recognition ...” Article 372-1-1 “Should the father and mother fail to reach an agreement as to what is in the child’s interests, any practice that they may previously have followed on similar occasions shall serve as the rule. Failing such previous practice, or in the event of dispute as to its existence or merit, either parent may take the initiative of submitting the matter to the family-affairs judge, who shall rule after attempting to reconcile the parties.” Article 374 “In all cases the family-affairs judge may, at the request of the father or the mother or State Counsel, modify the arrangements for exercising parental responsibility with regard to an illegitimate child. He may decide that it will be exercised either by one of the parents, or by the father and mother jointly, in which case he shall designate the parent with whom the child shall habitually reside. The family-affairs judge may grant a right of supervision to the parent who does not have parental responsibility. He may deny that parent a right of visiting and staying contact only for serious reasons ...”