The Constitutional Court protects a mother forced to send her daughter to school in a religious center against her criteria

Angela Martialay Madrid

Madrid

Updated Wednesday, February 14, 2024-19:06

The Constitutional Court has issued a ruling in which it upholds the request for protection filed by the mother of a minor against the judicial resolutions that agreed that the most appropriate school for her to pursue her studies was the one chosen by the father. . The parent had defended the convenience of taking her daughter to a secular school instead of a religious education.

The appeal for protection originates from the disagreement between the minor's parents regarding the choice of educational center for their daughter. The father wanted the girl to study at a religious charter school and the mother, on the contrary, was in favor of the minor being educated in a secular school. These differences gave rise to a judicial intervention procedure due to disagreement in the exercise of parental authority in which the father was given the power to choose the minor's school (religious charter school), allowing the mother to decide that the daughter enroll in the alternative subject to the Catholic religion.

For his part, the father denied that religion permeates all aspects of the school, since the only religious activity during school hours was the Catholic religion subject, which the minor was not taking; and he considered that the decision that the daughter not take the religion subject prioritized the mother's right, violating the right to religious freedom of the parent himself and her right to educate her daughter in accordance with her religious beliefs. her.

Religious freedom

The mother of the minor appealed to the Constitutional Court when she considered that the judicial resolutions by the Court of First Instance Number 15 of Barcelona and the Court of Barcelona were contrary to her fundamental right to religious freedom - included in article 16.1 of the Constitution - in relation to the right for his daughter to receive religious and moral training in accordance with her own convictions - article. 27.3 of the Magna Carta - since the center chosen by the father has an educational project in which Catholic religion and morality permeate all its activities, making it indifferent whether the minor takes an alternative subject to the Catholic religion.

Furthermore, judicial decisions, when trying to identify the best interests of the minor, have ignored her fundamental rights or have identified them with other circumstances unrelated to the fundamental rights in conflict, specifically, in which the subsidized center covers all training cycles. , teaching a second foreign language after finishing the first, teaching several classes in English and other activities such as swimming.

The Plenary of the TC has considered this Wednesday in the ruling that, without prejudice to the positive assessment that the aspects of the concerted center may deserve, the judicial bodies have ignored in their reasoning the true conflict between fundamental rights that was highlighted to them in the process. judicial, not weighing the assets and rights worthy of constitutional protection that are at stake, nor taking into consideration the principle of non-denominationalism of the State of article 16.3 of the Constitution.

The minor's right to religious freedom, which cannot be completely abandoned to the parents' decision, would have required, if the minor had been sufficiently mature, to respect her own freedom of belief. However, in this case, despite her young age, the judicial body should have taken into consideration that the minor is the holder of the right to religious freedom and that while she lacks the maturity to exercise said freedom, if the parents do not agree According to the choice of an educational center, respect for fundamental rights obliges it to be protected so that it can eventually self-determine in matters of religious beliefs.

In a context of substantial and irreconcilable divergence between the parents regarding their religious beliefs, from which the disagreement arises regarding the type of school education that should be provided to the minor, the most consistent thing in the child's best interest is that the decision that If adopted, ensure that this school training takes place in an environment of neutrality, so that they can form their own convictions freely.

All of the above without prejudice to the fact that, outside the school environment, each parent can involve their daughter in their own moral and religious convictions while respecting the rights and convictions of the other parent until the minor acquires sufficient maturity. to have their own convictions and beliefs, which could be different from those of their parents. The Plenary's ruling is based on the assumption that "in an increasingly diverse society, it can happen, and in fact happens, that the moral and religious convictions of the parents are not coincident, either because one is situated in the sphere of secularism. and the other participates in specific religious beliefs, either because each one of them belongs to a different religion.

The Constitutional Court annuls the judicial decisions and orders that the proceedings be taken back to the moment immediately prior to the issuance of the order of the Court of First Instance Number 15 of Barcelona, ​​so that this judicial body may issue a new resolution respectful of the fundamental rights that have been violated.

Proper weighting

The judges of the conservative sector Ricardo Enríquez

,

Concepción Espejel

and

César Tolosa

have expressed their dissenting opinion

. In his opinion, the sentence does not take into account that the annulled judicial resolutions have carried out an adequate weighing between the opposing positions of the parents.

For this reason, the decision for their daughter to be schooled in a subsidized religious center warns that she must not take the subject of religion or participate in activities of a religious nature, without prejudice to each of the parents being able to educate their daughter in the principles that consider relevant. This is a considered solution that denies all indoctrination, neither religious nor secular, and allows the girl to complete her training until the moment she decides, having had at her disposal all the elements that allow her to make a choice. fully conscious. On the contrary, the ruling applies an automatism that contradicts the need to reconcile the opposing positions of the parents; The lack of agreement between them leads to the imposition of education in a public school and the exclusion of subsidized centers, if they are owned by a religious order or congregation. For personal reasons, Judge

Enrique Arnaldo Alcubilla

could not participate in the vote on the sentence, although he could participate in its deliberation.