DISSENTING OPINION OF JUDGES PACZOLAY AND FELICI

1. We respectfully disagree with the majority’s reasoning in finding no violation of Article 14 of the Convention read in conjunction with Article 8.

2. In our opinion, the applicant’s religious convictions and his way of expressing them had a direct bearing on the outcome of the domestic courts’ decisions, and the measure ordered by the domestic courts was not proportionate, although it pursued the legitimate aim of protecting the best interests of his daughter. Thus, a violation of Article 14, in combination with Article 8, should have been found.

3. Firstly, we cannot subscribe to the majority’s conclusion that the applicant was not subject to a difference in treatment based on his religious beliefs. It appears from the domestic courts’ decisions that the applicant’s religion was of decisive importance in the outcome of the case.

4. As stated in the District Court of Livorno’s decision:

“ la espletata ctu e l’audizione della minore, inducono a ritenere pregiudizievole all’interesse della stessa, allo stato attuale, una pratica religiosa diversa da quella cattolica. [...] [A]ppare pregiudizievole per la bambina una pratica religiosa diversa da quella vissuta nell’ambiente familiare e sociale dove la stessa è inserita, in virtù del principio di continuità che deve presiedere l’educazione religiosa del minore, al fine di evitare allo stesso turbamenti e confusioni in una fase di ricerca e sviluppo della propria identità. [...] [S]ia dalla audizione della [minore] che dalla espletata ctu [...] viene evidenziato che la pratica di due credi religiosi diversi sarebbe occasione di confusione e di tensione per la bambina. ”

“... the court-appointed expert’s report and the examination of the child lead to the conclusion that a religious practice other than Catholicism is currently prejudicial to the child’s interests. ... A religious practice that differs from the one adopted by the family and the social environment in which she is growing up appears detrimental to her, by virtue of the principle of continuity governing the child’s religious education, in order to shield her from disturbance and confusion in a phase of research and development of her identity. ... It emerges both from the examination of the [child] and from the court-appointed expert’s report ... that practicing two different religions would cause confusion and tension for the child ”.

5. In so finding, the domestic courts ignored the fact that E. had been attending religious events and participating in religious activities with her father since the age of three. In this regard, it should also be mentioned that, in the meantime, the applicant had married E.B., a Jehovah’s Witness, and a child had been born from that union. According to the material before the Court, E. got along well with her step-family and met them regularly. As a result, E.’s social environment was equally linked to the Jehovah’s Witnesses, quite apart from the fact that her father is just as much “family” as her mother. Moreover, we cannot share the Government’s view that one’s adherence to the habits and practices of a religion automatically excludes participation in the activities of a different denomination (see paragraph 34 of the judgment), especially in the case of a young child, who has still to develop fully her critical thinking as regards religion.

6. In finding that it would not have been in the child’s interests to be involved in a religion other than Roman Catholicism, on the grounds that she was used to the Catholic Church by reason of the familial and social context in which she had been raised and was living, the domestic decisions seem to display prejudice against the applicant’s religion, resulting in a discriminatory difference in treatment.

7. It is worth adding that what in fact created confusion and tension for the child was the conflict between her parents. Indeed, E. voiced discomfort about her father bringing her to the Kingdom Hall and wished to spend more time playing with him; at the same time, however, E. was aware that her mother did not agree with the applicant taking her to Kingdom Hall and she felt irritated and disturbed by her mother’s comments about the applicant’s religious activities. In her report, the expert stated that these conflicts between the two parents resulted in E.’s tension and discomfort, so that it would have been appropriate for both parents to refrain from involving E. in their religious activities. Although acknowledging this, the Court of Appeal concluded:

“... it is advisable for [the child] to be able to continue to attend festivities traditionally linked to the Catholic religious calendar, ... without her father making her feel inadequate, and this not because of an ideological choice in favour of Catholicism but because E.’s world is permeated by occasions in this sense and the removal of such events would make her feel different from her peers”.

In this respect, it should be noted that the applicant had already accepted that his daughter could continue to follow Roman Catholic precepts, if she wanted. Among other concessions, the applicant did not object to E. attending the national curriculum’s religious-education classes in primary school. Given the applicant’s attitude of compromise, authorisation to involve E. in his religious activities would not have had an impact on E.’s integration into society; at least, the domestic courts did not provide evidence supporting such a conclusion. The domestic courts merely relied on P.C.’s expert report, and endorsed her finding that participation in Catholic activities and celebrations would ensure E.’s “healthy social growth”, so that she would not be “different from her peers”. Does that mean that practicing a religion other than Catholicism renders people “different”? And in any event, how is “being different” harmful?

8. Although the issues at stake were different, the Court has already emphasised that exposing young persons to the ideas of diversity, equality and tolerance can only be conducive to social cohesion (see Bayev and Others v. Russia , nos. 67667/09 and 2 others, § 82, 20 June 2017). Likewise, it has argued that pluralism is also built on genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs and artistic, literary and socio-economic ideas and concepts. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion. Respect for religious diversity undoubtedly represents one of the most important challenges to be faced today; for that reason, the authorities must perceive religious diversity not as a threat but as a source of enrichment ( see İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, 20 April 2016, § 109, and the references therein).

9. For the above-mentioned reasons, we find that there was a difference in treatment between the applicant and S.G., based on his religion.

10. According to the Court’s case-law, a difference in treatment is only discriminatory in the absence of an “objective and reasonable justification”, that is, if it is not justified by a “legitimate aim” and there is no “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see paragraph 43 of the judgment). Hence, we will first consider whether the domestic courts’ measure pursued a legitimate aim and, in the affirmative, we will discuss the proportionality of that measure.

11. With regard to the legitimate aim , the Court has repeatedly held that the interests of the child are of paramount importance and must be the primary consideration (see Gnahoré v. France , no. 40031/98, § 59, ECHR 2000-IX) and may, depending on their nature and seriousness, override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003-VIII).

12. The rights to respect for family life and religious freedom, as enshrined in Articles 8 and 9 of the Convention, together with the right to respect for parents’ philosophical and religious convictions in the educational sphere, as provided for in Article 2 of Protocol No. 1 to the Convention, bestow on parents the right to communicate and promote their religious convictions in bringing up their children. This would be an uncontested right in the case of two married parents sharing the same religious ideas or worldview and promoting them to their child, even in an insistent or overbearing manner, unless this exposes the latter to dangerous practices or to physical or psychological harm (see Tlapak and Others v. Germany , nos. 11308/16 and 11344/16, 22 March 2018, § 79), and the Court found no reason why the position of a separated or divorced parent who does not have custody of his or her child should be different per se (see Vojnity v. Hungary , no. 29617/07, 12 February 2013, § 37).

13. While it is important for children’s views to be taken into account, those views are not necessarily immutable and their objections, which must be given due weight, are not necessarily sufficient to override the parents’ interests. The right of a child to express his or her own views should not be interpreted as effectively giving an unconditional veto power to children without any other factors being considered and an examination being carried out to determine their best interests (see, mutatis mutandis , K.B. and Others v. Croatia , no. 36216/13, § 143, 14 March 2017). Here, we depart from the majority’s view that the sole purpose of the domestic courts was to preserve the child’s freedom of choice by taking into account her father’s educational views (see paragraph 50 of the judgment). The domestic courts themselves, relying on the expert’s report, noted that E. lacked mature discernment at the time of the proceedings, which prevented her from autonomously choosing a religion (see paragraph 16), and they have reviewed the measure in the light of the changing circumstances since it was adopted.

14. In this regard, in declaring the application in F.L. v. France (no. 61162/00, 3 November 2005) inadmissible, the Court held that the young age of the children at the point when the domestic courts issued their decision was relevant. It noted that young children are eminently susceptible to being influenced, in particular by the family in which they are primarily resident. The Court pointed out that the [particular] child’s interests lay primarily in the need to maintain and promote her development in an open and peaceful environment, reconciling as far as possible the rights and convictions of each of her parents. In that case, the applicant, a member of the Raëlian movement, claimed, inter alia , a violation of Articles 8 and 9, alone and in conjunction with Article 14, since the domestic courts had ordered her to refrain from bringing her children into contact with other members of the movement. In concluding that the interference in the applicant’s rights was justified by a legitimate aim, the Court noted that the applicant had joint custody of her children, who resided with her, and that she was not prevented from participating in religious activities in her personal capacity. Moreover, the applicant was able to continue to practice her religion in her children’s presence, provided that they were not brought into contact with other members. For these reasons, the Court found the application to be manifestly ill-founded.

15. The above case differs from the present one, in which the domestic courts ordered the applicant to refrain from “actively” (whatever that means) involving E. in his religious activities, that is, essentially to refrain from sharing and promoting his religious convictions while raising her since, even as clarified by the Court of Appeal, the applicant could only “let her know, on an informative level, his experience” (a literal translation of the Court of Appeal’s decision). We thus consider that the domestic authorities failed to give due consideration to the applicant’s requests and to reconcile his rights with those of the other parties involved, while pursuing the overriding objective of defending the best interests of the child.

16. In other words, it cannot be claimed in the present case that the domestic courts tried to maintain and promote E.’s development in an open and peaceful environment, or to reconcile the rights and convictions of the parents in order to strike a satisfactory balance between their individual worldviews, without any value judgments. Hence, they did not pursue the child’s primary interest.

17. This does not mean that the protection of a child’s best interests is not a legitimate aim to pursue, even by means of a difference in treatment between the parents. In order not to be discriminatory, however, such a difference in treatment also needs to be proportionate .

18. With regard to proportionality , the Government claim that the domestic courts sought to pursue the child’s best interests and to protect E. from the purported stress caused by the applicant’s intensive efforts to involve her in his religious activities. While it can be accepted that the domestic authorities may have shown legitimate concern in this respect, we have reservations as to whether this consideration qualifies as a very weighty reason allowing for differential treatment.

19. Specifically, there is no evidence that the applicant’s religious convictions involved dangerous practices or exposed his daughter to physical or psychological harm. Whilst P.C. considered that E.’s involvement in the applicant’s religious activities had been harmful, no convincing evidence was presented to substantiate a risk of actual harm , as opposed to the mere unease, discomfort or embarrassment which the child may have experienced on account of her father’s attempts to transmit his religious beliefs (see, mutatis mutandis , Vojnity v. Hungary , cited above, § 38).

20. If, in the event of disagreement between the parents about their child’s religious education, the domestic courts are empowered and required to act to protect the child’s best interests (see paragraph 34), the State has a duty of neutrality and impartiality, which is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (see, mutatis mutandis , Eweida and Others v. the United Kingdom , nos. 48420/10 and 3 others, § 81, ECHR 2013 (extracts)).

21. We regret that the majority did not follow the same approach as in Vojnity v. Hungary (cited above) in examining whether the interference with the applicant’s family life was proportionate.

22. In Vojnity , the Court found that the applicant had been subjected to a difference in treatment compared to other parents in an analogous situation, on the basis of his religious convictions which had been decisive in the removal of his visitation rights. The Court did not find “very weighty reasons” to justify such a different in treatment and the absolute ban on the applicant’s rights amounted to a complete disregard of the principle of proportionality: no consideration was given to whether any other less severe measures could have been adopted to allow the child to regain his emotional balance (see Vojnity , cited above, § 42). Moreover, several elements indicated that the expert reports and the courts’ decisions were actually motivated by prejudice (for instance, they considered the applicant’s worldview to be irrational), without explaining what real harm the applicant’s religious convictions could cause to the child (ibid., § 38).

23. The majority distinguished the present case from Vojnity merely because the applicant’s visiting rights in the latter case were subject to a total ban, while the present applicant’s custody and visiting rights were not affected. However, the present case requires that the Court follow Vojnity because of its ratio decidendi , irrespective of the different enjeux that were at issue for the applicant. What is in fact at issue is whether the domestic courts based their decisions on a value judgment of the applicant’s religious beliefs. In other words, it does not matter whether custody and visiting rights are heavily and directly affected; a difference in treatment is discriminatory when it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

24. It is worth noting that while all the cases cited by the Court concern an alleged difference in treatment in child custody proceedings based on one parent’s religion, in the majority of these cases the applicants claimed a violation of Article 8 in conjunction of Article 14 of the Convention. In the present case, however, the majority agreed to reclassify the complaints as falling under Article 14 read in conjunction with Article 8 of the Convention (see paragraph 30 of the judgment). As a result, the focus of the present case is no longer whether the measure taken by the domestic courts infringed on the applicant’s custody rights on account of his religious beliefs, which would logically have been examined under Article 8 read in conjunction with Article 14. Thus, the fact that the applicant suffered no restrictions on his custody and visiting rights should not be decisive (see paragraph 48).

25. In any event, the measure adopted by the domestic courts was not only radical, but immediately effective (and, at the same time, probably the easiest one), and it can be argued that the measure had a direct impact on the content and quality of the applicant’s visiting rights and disrupted the relationships that previously prevailed within the paternal family unit.

26. In fact, the domestic courts could have envisaged other less stringent measures, rather than immediately imposing a complete ban on the applicant involving his daughter in his religious activities. For example, according to the expert, one of the main concerns seemed to be the applicant’s method of communicating with his daughter, and specifically the fact that, during the period when the applicant was considering whether to join the Jehovah’s Witnesses, he asked E. not to tell her mother that he had brought her to meetings of the Jehovah’s Witnesses. Thus, the domestic courts could, for instance, have considered arranging a monitoring period, during which both parents would be asked to adopt new communication measures when discussing religion with E. It should be noted that S.G.’s communication methods were also considered inappropriate by the expert – although she did not investigate them further – since E. admitted to being annoyed by her mother’s comments about the applicant’s religious activities. The proposed measure is merely one example of a more balanced and proportionate approach. A more proportionate measure would also have taken into consideration the fact that the expert’s report itself – which was the main determinant in the decisions – suggested that it would have been appropriate for both parents to refrain from actively involving E. in their religious activities.

27. In this respect, it is worth mentioning Deschomets v. France ((dec), no. 31956/02, 16 May 2006), used as an a contrario case by the majority. In that case, the Court was correct in concluding that the application was manifestly ill-founded as the interference with the applicant’s right to respect for her family life was not disproportionate in relation to the rights of others. Specifically, the applicant complained that the domestic courts’ decisions on child custody were based solely on her religious affiliation to the Brethren movement and that the change in the residence of her children interfered with her right to respect for family life. However, the Court held that the domestic courts had carefully considered the children’s interests, taking into account different and multiple evidence of the effective consequences of their mother’s lifestyle on them. In the Court’s opinion, the domestic courts had given their disputed rulings without any theoretical discussion, and therefore any value judgments, as to the applicant’s worldview and ideological practices. In fact, they had succeeded in striking a balance between the conflicting rights in trusting the applicant “ not to allow the Brethren to put pressure on the children to ‘make them change their minds’ ... [and] [s]hould 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 Italian courts could have considered a similar approach.

28. The foregoing considerations are sufficient to conclude that there was no reasonable relationship of proportionality between the domestic courts’ decision to immediately prohibit the applicant from actively involving his daughter in his religion and the aim pursued, namely the protection of the best interests of the child. In imposing this measure, the domestic courts essentially ruled in abstracto , without establishing a link between the child’s living conditions with her father and her real interests (see Palau-Martinez v. France , no. 64927/01, § 42, ECHR 2003-XII) nor the effective consequences of the applicant’s religious practices on E. (see Deschomets , cited above). Consequently, the applicant suffered discrimination based on his religious convictions in the exercise of his right to respect for family life. There has accordingly been a violation of Article 14 in conjunction with Article 8 of the Convention.

[1] As for the relevance of this type of proceedings under the common law, see Re G (Children) , [2012] EWCA Civ 1233 ( http://www.bailii.org/ew/cases/EWCA/Civ/2012/1233.html ), a judgment in which the UK domestic court included a “postscript” to clarify what follows:

“91. This is not a case where the State – the court – is seeking to intrude uninvited into the private sphere of this particular family or of the community or communities of which they are part. These are not care proceedings, what family lawyers call public law proceedings, …; they are what family lawyers call private law proceedings, … The court – the State – is involved in the present case only because the parents have been unable to resolve their family difficulties themselves, whether with or without the assistance, formal or informal, of their community, and because one of the parents… has therefore sought the assistance of the court.”

The case was one of many in UK case-law, in which the domestic courts took responsibility to prevent exposure of children to what was believed to be a new religious conduct not shared by both parents. The judgment relies, inter alia , on Re R (A Minor) (Residence: Religion) [1993] 2 FLR 163, a rather famous case within common-law jurisdictions. A full review of the position of English law concerning parental disputes about the religious upbringing of children is Sylvie Langlaude, “Parental disputes, religious upbringing and welfare in English law and the ECHR”, in John Eekelaar (Ed.), Family Rights and Religion , Routledge, 2017, pp. 71 et seq.

[2] It is interesting to note that the French Ministry of Justice in 2013 entrusted a research team with the task of carrying out a study on the evolution of the role of the judge; among the several judicial roles that the final report identifies as remaining needed in societies in the 21st century, one of them – termed as “ office tutélaire ” (protective role) – includes iurisdictio inter volentes , as well as, in general, protection of vulnerable persons. It also important to emphasise the title of the report, underlining the subdivision between the “prudential” and “authoritative” tasks of the judge: Antoine Garapon, Sylvie Perdriolle and Boris Bernabé, La prudence et l'autorité , Odile Jacob, 2014. The report, in a slightly different text, can also be downloaded in its official format from the website “Vie Publique”: https://www.vie-publique.fr/rapport/33725-la-prudence-et-lautorite-loffice-du-juge-au-xxie-siecle .

[3] On this decision, see Renata Uitz, “Rethinking Deschomets v. France : reinforcing the protection of religious liberty through personal autonomy in custody disputes”, in Eva Brems (Ed.), Diversity and European Human Rights - Rewriting Judgments of the ECHR , Cambridge University Press, 2012, pp. 173 et seq., an essay in which the author proposes a specific approach. Leaving aside any consideration regarding the given approach, it is worth noting that the essay criticises the fact that, relying mainly on Article 8, the Court lost sight of “the kernel of the dispute: the religious freedom (Article 9) of the parent (and child)”. I should also note that, in reality, as I mentioned in the text, in Deschomets the Court examined, if only briefly and with reference to the conclusions reached under Article 8, the complaint under Article 9.

[4] See, for example, Ursula Kilkelly, “The Best of Both Worlds for Children’s Rights? Interpreting the European Convention on Human Rights in the Light of the UN Convention on the Rights of the Child”, in Human Rights Quarterly , Johns Hopkins University Press, Vol. 23, No. 2 (May 2001), pp. 308-326.

[5] See, for example, Jane Mair and Esin Örücü (Eds.), The Place of Religion in Family Law: A Comparative Search , Intersentia, 2011; Prakash Shah and Marie-Claire Foblets (Eds.), Family, Religion and Law: Cultural Encounters in Europe , Ashgate, 2016; and John Eekelaar (Ed.), Family Rights and Religion , Routledge, 2017.

[6] See, inter alia, on the basis of Article 18 of the International Covenant on Civil and Political Rights, CCPR General Comment No. 22, adopted by the Human Rights Committee on 30 July 1993 on “Article 18 (Freedom of Thought, Conscience or Religion), paragraph 6, which clearly states “the liberty of parents or legal guardians to ensure that their children receive a religious and moral education in conformity with their own convictions”.

[7] The specific proposal is by Ursula Kilkelly, “The Child’s Right to Religious Freedom in International Law: The Search for Meaning”, in John Eekelaar (Ed.), Family Rights and Religion , cited above, pp. 123-148, esp. pp. 129-132. For a similar approach, providing an interesting analysis of the Court’s case-law, Sylvie Langlaude Doné, “The Child’s Religious Freedom, Religious Upbringing and the Prevention of Coercion in International and English Law”, in Annuaire Droit et Religions , 2012-2013, pp. 643-661, available in English at SSRN: https://ssrn.com/abstract=2445972 . From an adoption perspective very close to the Adbi Ibrahim context, see Anat Scolnicov, “The Child’s Right to Religious Freedom and Formation of Identity”, in John Eekelaar (Ed.), op. cit., pp. 149 et seq. See also, by the same author, the chapter devoted to children’s rights in Anat Scolnicov, The Right to Religious Freedom in International Law, Between Group Rights and Individual Rights , Routledge, 2012.

[8] See Committee on the Rights of the Child, General Comment No. 7 (2005), Implementing Child Rights in Early Childhood, Fortieth Session, Geneva, 12-30 September 2005. The CtRC refers in particular to Article 5 of the CRC and the concept of “evolving capacities as an enabling principle”, that is:

“... processes of maturation and learning whereby children progressively acquire knowledge, competencies and understanding, including acquiring understanding about their rights and about how they can best be realized. Respecting young children’s evolving capacities is crucial for the realization of their rights, and especially significant during early childhood, because of the rapid transformations in children’s physical, cognitive, social and emotional functioning, from earliest infancy to the beginnings of schooling. Article 5 contains the principle that parents (and others) have the responsibility to continually adjust the levels of support and guidance they offer to a child. These adjustments take account of a child’s interests and wishes as well as the child’s capacities for autonomous decision‑making and comprehension of his or her best interests. While a young child generally requires more guidance than an older child, it is important to take account of individual variations in the capacities of children of the same age and of their ways of reacting to situations”.

In general, on the concept of “evolving capacities” see Sheila Varadan, “The Principle of Evolving Capacities under the United Nations (UN) Convention on the Rights of the Child”, The International Journal of Children’s Rights , 27(2), 2019, pp. 306-338, https://doi.org/10.1163/15718182-02702006 .

[9] Committee on the Rights of the Child, General Comment No. 20 (2016) on the implementation of the rights of the child during adolescence, 6 December 2016, § 43, which reads as follows:

“The Committee urges States parties to withdraw any reservations to article 14 of the Convention, which highlights the right of the child to freedom of religion and recognizes the rights and duties of parents and guardians to provide direction to the child in a manner consistent with his or her evolving capacities (see also art. 5). In other words, it is the child who exercises the right to freedom of religion, not the parent, and the parental role necessarily diminishes as the child acquires an increasingly active role in exercising choice throughout adolescence.”

[10] See, for example, the survey carried out by the European Union Fundamental Right Agency, “Change of religion”, in https://fra.europa.eu/en/publication/2017/mapping-minimum-age-requirements-concerning-rights-child-eu/change-religion

[11] See, for example, the two chapters on “Freedom of thought, conscience and religion” and “Parents’ rights and the freedom of religion of their children”, in European Union Agency for Fundamental Rights and Council of Europe, Handbook on European law relating to the rights of the child , 2022, pp. 37-41.

[12] See, for example, Nuala Mole and Blandine Mallevaey, Feasibility study of a legal instrument on the protection of the best interests of the child in situations of parental separation , Council of Europe, 2021, esp. p. 71.

[13] It is indeed difficult to trace any possible discriminatory intent in a court order that, as I have clarified, did not at all prevent religious education about his beliefs by the father, with the exclusion of only one type of religious activity. Also, no comparison seems to me possible between attendance at the services of the first and the second religious groups, in which the first group’s activities were allowed and the second group’s restricted, as the dissenting judges seem to assume: in reality, the mother was not a practising affiliate of the first religious group, and the girl would not attend any service of the latter group (with the only limited exception, agreed upon by the parents, of what was necessary toward the socially relevant rite of taking first communion).

[14] This test, also referred to as of “continuity” or “status quo” (see paragraph 37 of this opinion), is also termed as a “contract” test in the scholarly categorisation by Mumford, referred to below.

[15] See Géraldine Maugain, “Le juge, le droit de la famille et la religion”, La Semaine Juridique , 31(1-2), LexisNexis, 14 January 2019. This report, based on interviews with judges, after recognising the prerogatives of parents, underlines clearly that judges, when consent is impossible, prefer to order a return to the status quo ante since it is the French Civil Code that suggests consideration of the practice that parents have previously agreed upon. This attitude of judges has been attested by the empirical research on which the report is based, where the judges interviewed expressed the concept that it is better to limit the freedom of conscience of one parent based on a previously existing agreement, rather than to restrict the freedom of the other parent and bring about a situation on which agreement has never existed (“ il vaut mieux restreindre la liberté de conscience d’un parent au profit d’un consensus ancien, plutôt que de contraindre celle de l’autre pour parvenir à une situation qui n’a jamais fait consensus ” – p. 31). The approach, in my view, has some basis in the principles inspiring “Emile, or On Education” ( Émile, ou De l'éducation ), the famous treatise on the nature of education and, in the end, on the nature of man written by Jean-Jacques Rousseau, who advocated that children should be led by educators to discover by their own means only “natural” religion (i.e. non-confessional general religious principles), whereas “civil” religious education should be imparted only to adults.

[16] See, inter alia , the Interim Report of the UN Special Rapporteur on freedom of religion or belief, submitted to the General Assembly on 5 August 2015, A/70/286, § 66.

[17] This is the conclusion to which a very interesting study of existing tests comes, based mainly on common-law experiences: S.E. Mumford, “The Judicial Resolution of Disputes Involving Children and Religion”, International and Comparative Law Quarterly , 1998, vol. 47, pp. 117-148. The author notes that, after the decline of the “traditional maxim” religio sequitur patrem which however was not applied in certain cases (the poet Shelley lost custody of children in 1817 because of his atheistic views – ibid., p. 120), the general “best interest test” has started to be the paramount consideration, but it is “essentially unqualified”, leaving a broad scope for judicial interpretation (p. 121). The essay goes on to study judicial attitudes and, after noticing some judicial tendency to favour certain mainstream religions (p. 127), it classifies some judicial responses accepting limited degrees and intensity of belief and practice over deep religious affiliations (p. 128), or including the religious elements in consideration of the “causation” of the family conflict (p. 130). Some judges, also, tend to assert that they do not rule on religious choices, but only assess the “secular effects” of affiliations (p. 131). Going back to the concepts of freedom of religion and the “best interest” approach, the author develops on the concept of freedom of religion of children along with that of the parents (p. 135) and clarifies that best interest in the area of religious choices is usually framed within the several models of parent-child “contacts”, balanced against the arm that the child would be at risk of suffering (pp. 141 et seq.): among the types of harm that should be avoided, religiously motivated continuing parental conflict after divorce (especially p. 144, but also, for example, p. 147, where the psychological impact of such conflict is discussed). In the final discussion, the study examines – among other criteria, including the “contract” test I mentioned in a previous footnote – the two-stage test developed by some American courts: first, assessing potential harm; if this exists, the second step for the court is “to rule in order to achieve the manner of preventing harm that is least restrictive of the parental right of freedom of religion”, which “might involve a prohibition of certain limited aspects of religious practice”; “rarely would it countenance a complete ban on discussion of a religious nature” (pp. 147-148). The latter test resembles very closely the one adopted, in addition to the principle of “continuity”, by the Italian court in the case at hand, as well as by the French court in the case of F.L. v. France , cited above.