CHAPTER 24 Geraldine Van Bueren, Parents, Children, State Parens Patriae Interests and Freedom of Religion or Belief
The final chapter in this section is Geraldine Van Bueren’s The Right to be the Same, The Right to be Different: Children and Religion. Recognizing the potential for conflict in the triangle of children’s rights, parental rights and duties, and the interests of the state, Van Bueren contends that we need to get beyond asking what trumps what. We need to “sit down and discuss what religion can learn from human rights and how human rights can in turn be enriched by religion in ways which will better protect the rights of children.”97 Her essay is an eloquent appeal for balance: balance in understanding the best interests of the child, balance in assessing whether children have the right to be different from dominant views in their states or even in their families, balance in weighing the importance of parental authority against the autonomy of the child, balance in resolving how a child should be raised when its parents disagree on religion, balance in determining when children should be seen “as symbolizing continuity, affirmation, and the future”98 and when the focus should be on their present.
In addressing the scope of a child’s right to freedom of religion or belief, Van Bueren discloses some of the ways in which vague general norms paper over deep cultural divides. Thus, she notes that “the CRC, in contrast to the ICCPR, omits any express reference to having or adopting a religion or belief of the child’s choice. . . . In addition, unlike the ICCPR, the CRC does not expressly include the freedom of a child to manifest a religion or belief in worship, observance, practice, and teaching.”99 For those who assume that the CRC simply builds on the ICCPR, the assumption is that the CRC implicitly incorporates the omitted ICCPR notions and that both children and adults have the right to “have or adopt a religion.” But a number of Islamic and Catholic states “were not able to accept any provision granting children the freedom to choose and change their religion or belief.”100 Similarly, the CRC waffles to some extent on the strength of parental authority. In these areas Van Bueren believes better balancing is needed.
The chapter addresses a number of the sensitive issues concerning religion and education — religious instruction, controversial secular instruction (e.g., “factual sex education”) — and how the sometimes conflicting interest of the state in educating its future citizenry is to be weighed against parental authority to control what instruction is received. Again there is a call for balance, a plea that education be “child-centered” and the implicit suggestion that it not be disrupted by religious tug-of-wars between parents (and sets of parents). Recent case law concerning corporal punishment of children is also addressed.101
The chapter addresses a number of the sensitive issues concerning religion and education—religious instruction, controversial secular instruction (e.g., “factual sex education”)—and how the sometimes conflicting interest of the state in educating its future citizenry is to be weighed against parental authority to control what instruction is received. Again there is a call for balance, a plea that education be “child-centered” and the implicit suggestion that it not be disrupted by religious tug-of-wars between parents (and sets of parents). Recent case law concerning corporal punishment of children is also addressed.102 mature; parents err and disagree. The state is left with the delicate task of balancing all these balances, and of doing so without undue interference in the lives children and their families.
97 Van Bueren, chapter 24, 561. 98 Ibid. 99 Ibid., 564. 100 Ibid,, 564–65. 101 Ibid., 568–69. 102 Ibid., 569. 103 CRC, art. 14.
