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CONSULTATION ON THE EUROPEAN COMMISSION’S COMMUNICATION ON THE RIGHTS OF THE CHILD (2011-2014)

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In response to the European Commission’s invitation to contribute to the consultation on
the Rights of the Child (2011-2014), the Alliance Defense Fund (ADF) makes this submission.
ADF is a not-for-profit international legal alliance of more than 1700 lawyers dedicated to the
protection of fundamental human rights. ADF has argued cases before the United States Supreme
Court and the European Court of Human Rights.

 

It has also provided expert testimony to the European Parliament and United States Congress. ADF has full accreditation with the Organization for Security and Co-operation in Europe, full accreditation with the European Union (Fundamental Rights Agency and European Parliament) and full accreditation with the United Nations. As a result, ADF is fully-versed in the Convention rights and international law issues that bear upon this submission.


While ADF applauds the European Commission’s concern with the promotion and
protection of the rights of children and its desire to advance further the European Union Strategy
of the Rights of the Child, it writes to stress that the best interests of the child must always be the

 paramount concern when adopting standards governing the subject area, and that children’s
rights must be interpreted in a manner consistent with a traditional rights framework, typified by
the Universal Declaration of Human Rights (UDHR), which gives due accord to the rights of the
family as the social group unit best able to protect the rights of children.

ADF notes with concern the tendency among certain child rights’ advocates to envision
the child as an autonomous bearer of “rights” divorced from his or her familial context, and to pit
the rights of the child against the rights of the family and of parents, with an interventionist State
seen as the “guarantor” of the child’s rights. Taken to its extreme, the consequences of such a
mindset may be a violation of the rights of the family, parents and, indeed, the child, for it would
remove the child from his family, which is the social unit most protective of the child’s interests
and uniquely designed to promote the full and harmonious development of his or her personality.
In light of the Commission’s request for “factual information and concrete examples of
the situation on the ground” illustrating problems, ADF wishes to point the Commission to the
application of Christer Johnansson, Annie Johannson and Domenic Johansson to the European
Court of Human Rights under Article 34 of the European Convention on Human Rights.1 The
Johansson’s application was necessitated by actions taken by the Swedish social service agencies
in disregard for parental and familial rights.

The Righs of the Child Within a Traditional Rights Framework
The UDHR of 1948 recognizes the family as “the fundamental group unit of society …
entitled to protection by society and the State.” UDHR art. 16(3). It further states that “Parents
have a prior right to choose the kind of education to be given to their children.” (A “prior” right
is ipse facto pre-political and grounded in nature.)
1 ADF serves as legal counsel to the Johansson family in their application.

The Convention on the Rights of the Child (CRC) should be interpreted in a holistic
manner in harmony with the traditional human rights framework. It recognizes the family “as
the fundamental group unit of society and the natural environment for the growth and well-being
of all its members and particularly children,” and that the child “for the full and harmonious
development of his or her personality, should grow up in a family environment.” CRC preamble.
It further acknowledges that the child cannot be conceived of as an autonomous rights
bearing individual on par with an adult; rather, “the child, by reason of his physical and mental
immaturity needs special safeguards and care, including appropriate legal protection, before as
well as after birth.” CRC preamble. The child’s best interests is of paramount concern. See CRC
art. 21 (“States Parties that recognize and/or permit the system of adoption shall ensure that the
best interests of the child shall be the paramount consideration.”).

The CRC recognizes that parents, under normal circumstances, are the natural and best
guardians of the child’s best interests and therefore the parent-child bond should not be subject to
heavy-handed intervention by the State other than in extreme and unusual circumstances: “States
parties shall ensure that a child shall not be separated from his or her parents against their will,
except when competent authorities subject to judicial review determine, in accordance with
applicable law and procedures, that such separation is necessary for the best interests of the
child. Such determination may be necessary in a particular case such as one involving abuse or
neglect of the child by the parents…” CRC art. 9(1). The child’s rights should be seen as
consistent with, and not in opposition to, the familial bond: “States parties shall respect the right
of the child who is separated from one or both parents to maintain personal relations and direct
contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”
CRC art. 9(3).

There has been a tendency, however, by certain child rights advocates, including some
who sit on the Committee on the Rights of the Child, to interpret the CRC in a manner divorced
from the traditional rights framework, and to view the child as an autonomous rights bearer.
This can be seen in certain ultra vires statements by the Committee, such as its criticism in 1995
of a policy by the United Kingdom that empowered parents to remove their children from sex
education courses on the spurious ground that allowing parents to exclude their children from
such classes amounted to denial of the child’s right to express views freely.2 Likewise, in 1998
the Committee improperly instructed the government of Japan to take steps to “guarantee the
child’s right to privacy, especially in the family.”3 Such views undermine the parent-child and
family bond, and ultimately harm children, as they drive a wedge between parent and child and
disrupt family harmony. In the worse case, they lead to calls for the intervention by the State
against parents in a ham-handed attempt to enforce “rights” of the child.

The Johansson Case and the Undermining of Familial Rights
On June 26, 2008, Domenic Johansson, a seven year-old boy who is a dual citizen of
Sweden and India, was seated in a commercial airline awaiting departure on a flight to India.
Without a court order or any kind of preliminary notification, Swedish authorities boarded the
plane and removed Domenic from the custody of his parents. At the time of the removal, the
sole issue that motivated the actions of the Swedish government was the fact that Domenic was
being homeschooled in accordance with his parents’ Christian beliefs. Since this extraordinary
removal, Mr. and Mrs. Johansson have been allowed extremely limited contact with their son
and only under overbearing state supervision, while Domenic has been placed in foster care.
2 Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain andNorthern Ireland, 18th Session (1995) ¶ 14.
3 Concluding Observations of the Committee on the Rights of the Child: Japan, 18th Session (1998) ¶ 36 (emphasis
added).

Compulsory school age in Sweden is at seven years. Prior to the time the Domenic
turned seven, Mr. Johansson contacted the Swedish Ministry of Education to inquire about home
education. He was told that he should contact his local school principal to obtain materials for
use in Domenic’s home education program. Mr. Johansson reasonably interpreted this statement
to affirm his understanding that homeschooling was a legally available choice for his son.4
Shortly thereafter, Mr. Johansson made contact with Mr. Jerker Eneqvist, the principal of
the closest public school, Sudret northern RO. Mr. Eneqvist not only refused to supply
curriculum as had been suggested by the Ministry of Education, but categorically insisted that
Domenic “had to go school.”

Mr. Johansson replied that he had the right to homeschool his son, to which Mr. Eneqvist
angrily asserted, “You don’t have the right to educate your son and I will be taking this further.”
In reliance on Swedish law and the assurances of the Ministry of Education (not to
mention the guarantees of the Universal Declaration of Human Rights and other legally binding
international human rights instruments), the Johansson’s began to homeschool their son Domenic
in spite of the lack of cooperation of the local school officials. Mrs. Johansson acquired suitable
materials for their son and began the process of Domenic’s formal education.

Ignoring the most basic principles of due process of law, the local board of education
purported to make a decision relative to the home education of Domenic Johansson—all the
4 Homeschooling is legal in Sweden under the following statutory conditions:
A school-aged child shall be allowed to fulfill the school obligation in other ways than what is stated in thislaw, if it appears to be a fully satisfactory alternative to the education otherwise available to the child
according to the law. Possibilities [for the authorities] to have an insight into the activities shall be
provided. Permission can be given for up to one year at a time. During this time it shall be tried how theoperation turns out. Permission shall immediately be withdrawn if necessary insight into the operation isnot granted, or if for other reasons it can be assumed that necessary circumstances for permission no longer
exits.

Svensk författningssamling (1985:1100); 10 kap. Särskilda utbildningsformer, Home education has also been
affirmed by Swedish case-law. See e.g. In the case of RÅ 1990 ref 111 (holding that a 7 year old child could be
home educated in Sweden under the Swedish School Act).

while refusing to grant any form of hearing to the Johansson family despite numerous requests
for an opportunity to be heard.

In January, 2009, Mr. Johansson insisted on a meeting with the local school
superintendent. The school convened a meeting with other officials instead—the Chief of
Management, the Chief of the local school and a lawyer for the school authorities. When the
school authorities persisted in their demand that Domenic attend only the government school,
Mr. Johansson asked if they could leave the country. The officials replied, “You may leave the
country, but Domenic must attend school.”

On February 11, 2009, without the benefit of any prior adjudication, the Child and
Education Department ordered Christer Johansson to pay a penalty of a fine of 250 SKr per
school day to ensure that his son Domenic Johansson completes his compulsory education. This
written demand was given to Christer Johansson on February 13, 2009.

On May 27th an action concerning the enforcement of the fines—now totaling 15,000
SKr—was brought by the Child and Education Department before the County Court of Gotland.
The Court refused to impose the fines on the grounds that it was futile to do so this late in the
school year and would not achieve the desired result. The County Court wrote “it [is] futile that
the assessed fines would lead to the desired outcome, which is that Domenic attends school.” In
so holding the court recognized that the Johansson’s had the right to homeschool their son and
that they would not force the fines onto the family for exercising that right.

During the course of the hearing, Mr. Johansson advised the judge that the family was
planning to move out of the country in six weeks to which the judge replied, “Ok, fine.” When
the judge asked for the date of travel, Mr. Johansson told the court that they would leave on June
26.

No court order was entered prohibiting the Johansson’s from moving to India as planned
on June 26, 2009. Subsequent Swedish court proceedings have upheld the social workers
actions, however, which, upon exhaustion of remedies, made an application to the European
Court of Human Rights necessary in order to seek redress.

The facts demonstrate that the Swedish authorities acted on a singular basis: their belief
that they had more of a right and ability to raise Domenic then his own parents; a belief steeped
in discrimination against the religious and philosophical beliefs of his parents.
Governing European Court of Human Rights case law dictates that any removal of a
child from his natural parents and taking them into public care is a per se interference with the
mutual enjoyment of parents with their children guaranteed by Article 8 of the European
Convention on Human Rights;5 a right which constitutes a fundamental element of family life.6
The Court has also held in the matter in Olsson that it is an interference of a very serious order to
separate a family. Such a step must be supported by sufficiently sound and weighty
considerations in the interests of the child; as the European Commission rightly observed, it is
not enough that the child would be better off if placed in care.7 The Court requires that extreme
diligence is required in such matters because of the danger of irreversible harm to both the family
structure and the child.


According to Sweden’s Childcare Act (Prop 1989/90:28 page 62, 63, 73) forced legal
restraint of parents from their children is a serious measure and can only be used when strong
reasons exist to do so. For being allowed to take action in accordance with the act, the risk of
injury to the child must be clear and concrete. There cannot be a subjective presumption that the
5 See e.g. Olsson v. Sweden, (No 2) (1992) 17 EHRR 134, [1992] ECHR 13441/87, ECtHR.
6 Elsholz v. Germany, ECHR decision of 13 July 2000, Report of Judgments and Decisions 2000- VIII, § 43.
7 Olsson, op. cit., P. 72.
8 ECHR, H v. United Kingdom, (judgment of 8 July 1987, Series A No. 120, pp. 59-63, para. 85.

child will be harmed. The state cannot judge the fitness of the parents based on its conception of
societal values or because of the parents’ religious views as an underling reason behind a forced
legal restraint.


In the Johansson case, the Swedish authorities failed to establish any cause for Domenic’s
abduction prior to it occurring other than that he was being home educated. Rather, they
subsequently justified their actions by, among other things, claiming that the parents had violated
Domenic's rights – including rights under the Convention of the Rights of the Child – and cast
the State in the role as guarantor and enforcer of the child's rights against his parents, removing
Domenic from his family and placing him in foster care.


Elsewhere, the European Court of Human Rights has held, “It is in the discharge of a
natural duty towards their children - parents being primarily responsible for the “education and
teaching” of their children - that parents may require the State to respect their religious and
philosophical convictions. Their right thus corresponds to a responsibility closely linked to the
enjoyment and the exercise of the right to education.”9 Second and equally pertinent, that
“democracy does not simply mean that the views of a majority must always prevail: a balance
must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse
of a dominant position.”10


This case personifies an abuse of the dominant majority position. Social services
intervened into the private family life of the Johansson’s because they disagreed with the
family’s belief system, thereby making value judgments which are not permissible under
Convention law. Rather than remaining neutral in its functions, the State actively discriminated
against the family for holding beliefs which differed from the majority viewpoint. These
9 Id., § 84(e).
10 Id., § 84(f).

judgments, lacking any serious investigation or provable fact, were then used to destroy the
applicant family. These same judgments, which continue to exist without fact or serious
evidence, persist in keeping the family separated.


While the Johansson case may be an extreme example of the disregard for the rights of
parents and families under the ostensible guise of protecting children’s “rights,” it nevertheless
serves as a cautionary tale which any discussion of the rights of the child must consider.
Conclusion


In sum, while ADF welcomes the Commission’s concern with the rights of the child, its
concern must ultimately be with the welfare of children, and not with the exercise of rights in the
abstract or to the exclusion of the rights of parents and of the family. As the Convention on the
Rights of the Child recognizes, the family is “the fundamental group unit of society and the
natural environment for the growth and well-being of all its members and particularly children.”
Society and the Commission disregard this sound observation at their own peril – and that of its
littlest and most vulnerable members


Respectfully submitted,


ALLIANCE DEFENSE FUND

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