Article 18(1) of the Convention on the Rights of the Child (1990) expressly provides that parents or guardians have the primary responsibility for the upbringing and development of the child.Article 5 of the Convention on the Rights of the Child (1990) requires the State to respect the rights, responsibilities, and ...
Article 18(1) of the Convention on the Rights of the Child (1990) expressly provides that parents or guardians have the primary responsibility for the upbringing and development of the child.
Article 5 of the Convention on the Rights of the Child (1990) requires the State to respect the rights, responsibilities, and duties of parents and guardians.
The Special Rapporteur on Freedom of Religion observed, in a report to the United Nations General Assembly, that:
“The rights of parents to freedom of religion or belief include their rights to educate their children according to their own conviction and to introduce their children to religious rites.”
See: Special Rapporteur on Freedom of Religion's Report to UN General Assembly A/70/286 http:ap.ohchr.org/documents/d page-e.aspx?m-86)....,.
Article 14 of the Convention on the Rights of the Child (1990) emphasizes the importance of the role of the rights of the child in the parent-child relationship....,.
There are provisions in the Constitution and the Convention on the Rights of the Child (1990) which set out principles which guide a parent or guardian on the factors he or she has to take into account when making decisions on matters affecting the spiritual development of the child. The guiding principles set certain boundaries on the upbringing and development of children in terms of section 60(3) of the Constitution.
(i) The first guiding principle is that the parent or guardian must proceed on the basis that a child is a separate person with inherent dignity as a human being, entitled to respect and protection from harm to his or her religious interests.
The parent or guardian must accept that under section 60(3) of the Constitution a child has his or her own right to freedom of religion, entitling him or her to decide, if he or she has the ability to form a view and express it on matters affecting him or her, on what to do in the exercise of religion.
Honouring the agency and inherent dignity of children, by according them meaningful participation in decision-making on matters affecting them, is an important way of showing children that they are valued.
In a document titled “Faith and Children's Rights” produced by Arigatou International New York in 2019 (arigatouinternational.org)…, the authors make the observation that children are “subjects of rights” with individual identities that must be respected.
The right of a parent or guardian, to guide the spiritual development of the child, and the right of the child to practice his or her own religious belief, are both indispensable.
(ii) The second guiding principle, as set out in Article 3(1) of the Convention on the Rights of the Child (1990), provides that in all actions concerning children the best interests of the child shall be a primary consideration.
Article 18(1) of the Convention on the Rights of the Child (1990) requires parents and guardians to have the best interests of the child as their basic concern when discharging the primary responsibility of the upbringing and development of the child.
So, in determining matters relating to the upbringing of the child, in accordance with his or her religious belief, a parent or guardian must ensure that the best interests of the child, and not his or her own interests, are promoted as a result.
It is clear that the overriding principle that the best interests of the child shall be a primary consideration in all actions concerning the child has become universally acceptable. It is expressly provided for under section 81(2) of the Constitution, which provides that “a child's best interests are paramount in every matter concerning the child.”
A parent or guardian is bound, by the Constitution, when performing the primary responsibility of bringing up a child. There is, however, no fixed standard of what will be in the best interests of the individual child. The law does not start from a prior assumption about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, depending on the circumstances of the case; see In Re J (Child Returned Abroad: Convention Rights) [2006] 1 AC 80…,.
Religious norms are brought into focus by section 60(3) of the Constitution, which recognises that they should be taken into account by a parent or guardian and be the determinant factor in his or her decision on matters affecting the upbringing of the child according to his or her religious belief. If a religious norm is, by its nature, harmful to the best interests of a child or what it commands the parent or guardian to do in the practice of his or her religious belief is harmful or poses a substantial threat of harm to the best interests of the child, the Constitution mandates intervention by the State, through the courts, for the protection of the best interests of the child.
The interests underlying the rule of law that a parent or guardian has a right to determine the upbringing of the child in his or her custody in accordance with his or her religious belief are those of the child. The rule merits constitutional protection because its purpose, and primary object, is the protection and promotion of the best interests of the child. Like any other human being, every child is unique. The principle is that the activity to which the parent or guardian subjects the child in accordance with his or her religious belief should, on the whole, be conducive to the well-being of the child. Such a matter is of paramount consideration and is not rendered irrelevant by the religious motivation of the parent or guardian.
The approach is based on the personhood and distinct interests of children.
The special protection of the principle of the best interests of the child is guaranteed to all children who are subject to the exercise of the parental right until they have their own opportunity to make life's religious decisions for themselves upon the attainment of the age of reason.
The Convention on the Rights of the Child (1990) establishes a direct relationship between the child and the State. It renders the child visible as a subject of rights, entitled to protection on his or her own behalf. It empowers the State to intervene, when necessary, to protect the rights of the child in recognition that the best interests of children are not always protected by parents or guardians.
(iii) The third guiding principle is that the parent or guardian is under a duty to direct the spiritual development of the child in his or her custody in terms of section 60(3) of the Constitution in a manner that is consistent with the evolving capacities of the child.
Article 14(2) of the Convention on the Rights of the Child (1990) recognises the right and duty of a parent or guardian to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. Article 5 of the Convention on the Rights of the Child (1990) imposes an obligation on the State to respect the responsibilities, rights, and duties of parents or legal guardians “to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child” of the rights recognised in the Convention on the Rights of the Child (1990).
The use of the words “appropriate direction and guidance” is clearly intended to set an objective standard by which the decision of the parent or guardian can be measured.
As subjects of rights, children's voices must be heard and given due weight in matters that concern them, in keeping with their evolving capacities. The Special Rapporteur on Freedom of Religion has observed that parents or legal guardians have the right and duty to direct the child in the exercise of his or her freedom of religion or belief. He said “such direction should be given in a manner consistent with the evolving capacities of the child in order to facilitate a more and more active role of the child in exercising his or her freedom of religion or belief thus paying respect to the child as a rights-holder from early on.”
The principle of evolving capacities of the child, by which a parent or guardian is required, by Article 14(2) of the Convention on the Rights of the Child (1990), to be guided when providing appropriate direction and guidance to the child in the exercise of his or her right to freedom of religion was discussed in a document titled “Evolving Capacities” prepared for UNICEF and SAVE THE CHILDREN. The author of the document said:
“The concept of evolving capacities is central to the balance embodied in the Convention between recognising children as active agents in their own lives, entitled to be listened to, respected, and granted increasing autonomy in the exercise of rights, while also being entitled to protection in accordance with their relative immaturity and youth. This concept provides the basis for an appropriate respect for children's agency or their capacity to act and make decisions without exposing them prematurely to the full responsibilities normally associated with adulthood. As children grow up, they have evolving capacities and a growing understanding and maturity.”
The author of the document also states that the concept of evolving capacities recognises that children in different environments and cultures, who are faced with diverse life experiences, will acquire competencies at different ages. Their acquisition of competence will vary according to circumstances. Children, therefore, require varying degrees of protection, participation, and opportunity for autonomous decision-making, in different contexts and across different areas of decision-making.
The words “in a manner consistent with the evolving capacities of the child”, used in Article 14(2) of the Convention on the Rights of the Child (1990), suggest that the degree to which a parent or guardian can influence a child's religious formation is universally proportional to the age of the child. In other words, parents or guardians may be able to bring up the children in their custody in accordance with their own religious faith and practice, but they should gradually grant the children more freedom on religious matters as they mature into adulthood.
Recognition of the agency of children avoids the conflation of the religious freedom of parents and guardians with that of the children.
In summary, the principle underlying section 60(3) of the Constitution is that the responsibility of involving a child in matters of religion and bringing him or her up to be a good citizen lies with the parent or guardian. The State will not interfere with the performance of parental duties in the absence of clear and affirmative evidence of harm or “substantial threat of harm” to the best interests of the child.
The parental right provided for under section 60(3) of the Constitution, and the attendant duties, come to an end when, in terms of section 80(1) of the Constitution, the child attains the age of eighteen years.
When the boy or girl attains the age of eighteen years, he or she becomes an adult and is deemed, at law, to have acquired full capacity for self-autonomy and self-determination as a holder of fundamental rights and freedoms.
