The most incisive guide to issues facing the American family today . . . An invaluable resource for anyone wishing to stay on the cutting edge of research on family trends.

-W. Bradford Wilcox
Associate Professor of Sociology, University of Virginia 

Parental Rights Around the Globe


Michael P. Farris


Ms. Trude Strand Lobben was struggling with a difficult pregnancy when, in May 2008, she approached the Norwegian social services authorities for assistance. They suggested that during the first months of the child’s life she stay at a family centre for evaluation, where she could be offered additional support.

Her son was less than a month old when the centre’s staff requested an emergency meeting. They noticed that the baby was losing weight and raised concerns about his mother’s feeding routine. The authorities immediately seized the infant and placed him into compulsory care and ultimately into a foster home on an emergency basis on the ground that the boy may not have been receiving enough food. The County Child welfare board approved the seizure of the baby—granting the mother only two hours of supervised access to her son on six occasions during the year. Twelve hours per year, and under supervision.

In an appeal to the City Court, the judge found that the initial weight loss may well have been due to an eye infection rather than any neglect or error by the mother. Nevertheless, the court declined to return the baby to his mother because she had “limitations” in her parenting skills, and he had special needs. Subsequently, in December 2011, the County Social Welfare board determined that the mother’s parental rights should be terminated, and the baby placed for adoption.

An appeal to the High Court failed in 2012 with the appellate judges noting that the mother had not shown an improvement in “empathizing” with her son, who was psychologically vulnerable. A further appeal to the Supreme Court of Norway was unsuccessful. All of Strand Lobben’s parental rights were terminated.

This is not, unfortunately, a rare or exceptional story in Norway. This country’s child welfare agency, the Barnevernet, is notorious for its extreme statist views and cavalier interference in the right of parents to raise their children. In 2015, the Barnevernet removed all five children from the Bodnariu family, including the family’s three-month-old infant.  Initially, the removal was justified on the claim that the family practiced corporal punishment, which is illegal in Norway. However, upon further investigation, it was determined that the authorities were also concerned that the parents were “indoctrinating” their children in their Christian faith. Upon intense pressure from the international community, the authorities returned the children to the family. The family then left Norway to prevent any further removal of their children. 

Finland’s system is little better. In 2005, Camelia Smicala married Petri Jalakoski, with whom she had two children. She gave birth to the couple’s two children, Mihail and Maria, in 2006 and 2007, respectively.  The Finish Child Protection Service was first called by the father in 2007, when he claimed that the mother had “bad parenting skills.” She reported that he had been subjecting her to domestic violence since 2006. The authorities conducted an investigation consisting of daily visits to the family home for a few weeks.

In 2010, the couple divorced because of the husband’s increasingly aggressive behavior. Shared custody was agreed to by the parties, but primary care was given to the mother. In 2012, the Finnish social services opened a new “social inquiry” to “investigate and clarify” a family situation. This procedure is common in the aftermath of divorce. The inquiry concluded with the observation that the relationship between the children and the father was initially reasonably good, yet had deteriorated over time. The report suggested that it was possible that the mother might try to turn the children against their father and that, as a result, supervision by social services was warranted.

Primary care was reassigned to the father, who, during a series of supervised meetings, suggested carrying out physical abuse—including waterboarding and other life-threatening acts. After this, the children were not returned to their mother, but were instead separated and put in outside care—one in a state institutional facility and the other in foster care.

The authorities refused to return the children to their mother even though their initial concern was only that she might turn the children against their father by speaking ill of him. The real reason for the state’s action appears to be motivated, or at least substantially influenced, by the fact that the children were dual citizens of Finland and Romania. The authorities did not want the children moved by their mother to Romania. The children are Romanian Orthodox, and officials have consistently denied them access to appropriate religious practices and services.

This case has been tied up in a multitude of Finnish legal proceedings in several courts. The children remain separated from their mother despite the clear facts that the mother’s questions about the appropriateness of the father’s pattern of behavior were more than justified.

Homeschooling families have been specifically targeted by several European countries, but two cases rise to the level of true infamy. In 2009, Annie and Christer Johansson, along with their son Domenic, were on a plane sitting on the runway about to leave for India. Annie is an Indian citizen. Domenic possesses dual citizenship in India and Sweden. The family had decided to move to India permanently. The right to move to another country is one of the most protected principles of international human rights law.

Authorities raided the plane, removing Domenic on the ground that the family was intending to homeschool their son in India. The parents never regained custody, and their parental rights have been terminated.

German authorities also responded with an egregious show of force against a homeschooling family. Early on the morning of August 29, 2013 a group of 33 police officers and 7 youth welfare officers stormed the home of the Wunderlich family near Darmstadt, Germany. The police squad threatened to use a battering ram to open the door and shoved the father, Dirk, into a chair as they dragged away his four children, aged 7 to 14. A policeman pushed aside Petra, Dirk’s wife, as she tried to kiss one of her daughters goodbye, telling her: “Too late now!” The couple, powerless, watched their children being taken away.

What had led to these terrifying events? The family had just sat down to begin its first homeschool lesson of the year—in Germany, homeschooling is forbidden. Germany’s ban on homeschooling dates back to 1918. Since then, the nation has signed onto a number of international human rights agreements that explicitly protect the right of parents to choose the manner of education for their children. Germany has failed to honor these agreements on several occasions, pursuing families—such as the Wunderlichs—who have chosen to educate their children at home.

Dirk and Petra Wunderlich wanted the best for their children and felt that their home environment was the best choice. This also allowed them to teach on the basis of their Christian faith. The family had moved around Europe several times in order to find a place where they could pursue their wish to homeschool. Finally, when they settled back in Germany, authorities illegally took their passports in an attempt to keep them from moving again. It was just as they were about to start homeschooling in August 2012 that the police officers and social workers forcibly entered their home and took away their children.

In the litigation that followed, Germany ironically claimed that the seizure of the Wunderlich children was justified. They would be forced to attend the local school and hence “learn to deal with those who think differently.”

The war against parents who defy progressivist theology is not limited to Europe. The Supreme Court of British Columbia held that a father had committed “family violence” for referring to his daughter as a “she” rather than as her “preferred” gender. Over his objection, but with the consent of her mother, this 14-year-old girl was given testosterone injections to attempt to “align” her body with the male gender.

And in England, the medical authorities, backed by the government and judiciary, determined that they—rather than the parents of Charlie Gard and Alfie Evans—would decide whether or not either of these children could be transferred to a medical facility in another country for experimental treatment. Children died because government, rather than parents, were in charge.

In every one of these cases, the national government prevailed in its domestic courts. And I can find a close parallel to each of these cases with an American family under legal attack—many of them from cases that I have personally litigated. The war against parents and families in the part of the world that used to be called “the West” is the direct result of a philosophical revolution.

 

International Law

The reason that the Americas, Western Europe, Australia, and New Zealand were called the “West” had little to do with geography. Rather, these were the nations that compromised Western Civilization. Western Civilization was, of course, founded upon the worldview arising from Christianity.

Those who claim that the Enlightenment, rather than Christianity, was the foundation for these societies mistake the parasitic plant for the original tree. The Enlightenment in its purest form rejects all theories of the divine. Man, and man alone, is the measure of all truth. God’s truths are rejected as myth.

God teaches that life is sacred. Man teaches that Charlie Gard should be allowed to die because men have decided that his life is not worth living. God teaches that parents, not government, should be responsible for the upbringing of children. And, of course, God expects parents to raise children to believe in Him. But Germany, Sweden, Norway, and Finland believe that their governments—guided by the enlightened leadership of their nations—should decide how children are raised.

God teaches that we are created male and female. The government of British Columbia—joined by a vast number of nations, states, and provinces within “Western Civilization”—think that men get to decide which gender a child should be. And even a parent who objects to men changing God’s choice will be silenced by court order.

The Supreme Court of the United States correctly identified the irrefutable linkage between parental rights and Western Civilization in its 1979 decision of Parham v. J.R[1] As the Court ruled:

Our jurisprudence historically has reflected Western concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is “the mere creature of the State” and, on the contrary, asserted that parents generally “have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.”[2]. . . [other citations omitted] . . . The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has been recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries 447; 2 J. Kent, Commentaries on American Law 190.[3]

The current effort of the leftist progressive utopians—also known as Social Justice Warriors—is not the first time that serious efforts have been made to dismantle Western Civilization from within. Nazi Germany rejected every premise of Western Civilization and sought to replace it with a man-made philosophy that seemed glorious to some but was hideous to decent people everywhere. Among the other evils of the Third Reich was its efforts to disconnect children from their primary loyalty to their parents and their families. The government schools were the primary mechanism for this attempted transformation.

As the world sought to recover from the horrors of Nazi philosophy, the international human rights movement arose, seeking to declare that some things are beyond the legitimate power of any government. The power of government to demand the authority to raise children in their preferred worldview was decisively denounced by the foundational documents of international human rights law. Article 26(3) of the Universal Declaration of Human Rights proclaimed: “Parents have a prior right to choose the kind of education that shall be given to their children.” It is undisputed that this right was meant to be prior in two senses: Parental rights are both first in time and first in priority.

The UDHR was a 1948 resolution by the United Nations. Its altruistic language was expanded into two separate treaties—the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. Both the ICCPR and the ICESCR contain strong parental rights provisions.

The ICESCR’s parental rights provision is found in Article 13(3):

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

Article 18(4) of the ICCPR provides:

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

In American law, our rights have been classified by the Supreme Court as fundamental and non-fundamental rights. (This is a judicially created formula that is completely unrelated to the text of the Constitution.) The two different levels of rights are primarily used to describe the circumstances in which government may override one of these freedoms. Fundamental rights may be overcome only with a rigorous showing; it is intended that it be difficult for government to prevail. Non-fundamental rights may be shunted aside with relative ease.

In international law, a very similar theory is called the doctrine of derogation. If a government can override a legitimate claim of rights, it is said that a derogation of the rights has been permitted. In both the ICCPR and the ICESCR, there is a specific article which sets forth the rules for when a government may derogate a claim of protected rights.

Here are the rules for the derogation of rights contained in the ICCPR, Article 4(2):

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.[4]

This is a very high standard. In order to derogate these protected rights there must be a three-part showing: (1) there must be a public emergency; (2) that emergency must be so grave that it threatens the life of the nation; and (3) this emergency must be publicly declared. And then, even when the derogation is permitted, it must be a limited derogation following three additional rules: The incursion into rights must be strictly limited, no other international legal obligations can be violated, and derogations cannot be discriminatory.

However, even these very constrained forms of derogation have an additional exception that is found in Article 4(2). This section absolutely prohibits the derogation of certain rights even when the life of the nation is threatened by an emergency that has been publicly declared. Rights that are listed in Article 4(2) are considered non-derogable—rights that can never be violated by a nation no matter how urgently necessary the government believes it is to do so.

There are seven articles of the ICCPR which contain non-derogable rights. These include the protection of the right to life in Article 6, the ban on torture and cruel punishments in Article 7, the prohibition against slavery in Article 8, the prohibition on using jail time to collect contractual debts in Article 11, the ban on ex post facto definition of crimes in Article 15, and the rule requiring the law to always respect the personhood of every individual in Article 16.

Human rights lawyers recognize the right to life, the prohibition of torture and slavery, and the others listed to be at the very pinnacle of the human rights protections. Any state that violates these rights—even in times of dire national emergencies—is considered a rogue state acting outside the bounds of civilized society.

But there is one additional article—Article 18—that is enumerated in this list of non-derogable rights. Article 18 contains the broad protection of religious freedom for all persons. Thus, religious liberty is also a non-derogable right. However, it is Article 18(4) that is of special interest here—and it is also a non-derogable right.

Section 18(4) protects the rights of parents to choose education for their children that conforms to their own moral and religious convictions.

Thus, under the unmistakably clear language of the ICCPR, the right of parents to choose an education for their children that is consistent with the parents’ religious and moral beliefs and convictions is absolute—this is a non-derogable right.

 

The Implications

The lesson is clear. Sweden, Norway, and Germany have crossed the line and are rogue states from a human rights perspective. Any nation that believes that the government, rather than parents, should determine the philosophical upbringing of children is dangerously close to sharing their status as an outlaw nation—a nation outside the boundaries of civilization.

Despite this clear and lofty status of parental rights, international courts have been extremely deferential to national governments when parents appeal denials of their rights.

The Wunderlich and Johansson families both lost their cases in the European Court of Human Rights. Alliance Defending Freedom International and Home School Legal Defense Association joined together in both appeals.

The Wunderlich family won a recent lower court victory in Germany that is allowing them to homeschool for the moment. But the Johanssons have never been reunited with their son.

ADF International has filed an appeal (technically called a “communication”) to the UN Committee on the Rights of the Child in the Smicala v. Finland case.

But the biggest news in international human rights protections for parents came in 2019 in the Strand Lobben v. Norway case in the European Court of Human Rights. In its 2019 decision, the Grand Chamber of the European Court of Human Rights found that Norway violated the fundamental right to family life through the actions of its child welfare services. Strand Lobben v. Norway was one of several cases appealed to the European Court of Human Rights in which parents complained that Norwegian authorities unlawfully removed their children from their care.

In a previous ruling, the Fifth Section of the European Court of Human Rights had upheld the government’s removal of the child—finding no violation of Article 8 of the European Convention of Human Rights which protects the right to family life. However, in October 2018, the Grand Chamber, the highest level of the European Court of Human Rights, agreed to review the case. ADF International intervened before the Grand Chamber as a Third Party arguing for greater respect for parental rights in Norway and highlighting fundamental issues with child protection services in Norway.

The Court reiterated the consistent position that family ties between child and parents may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family. The Grand Chamber applied this standard to the actions of the Norwegian authorities in this case and found them to be in violation of this human rights norm. While noting that the best interests of the child (the theory advanced by Norway) was of “primordial importance,” the Court held that the process leading to the withdrawal of parental responsibilities and consent to adoption shows that the domestic authorities did not attempt to perform a genuine balancing exercise between the interests of the child and his biological family.

The Court found that at all times the actions of the Norwegian authorities were “focused on the child’s interests instead of trying to combine both sets of interests,” and that at no time did they “seriously contemplate any possibility of the child’s reunification with his biological family.”

In reality, some adult is always going to be making the decisions regarding the upbringing of children. Norway believes that its government should be in the primary position for such decisions. This important case from the highest international human rights court in Europe is a crucial step in regaining the proper priority for parental decision-making.

Embedded in these legal disputes and international law texts is an important truth about living as a peaceable, civilized, and free society.  Totalitarian regimes understand that families are their ultimate enemy. When parents train their children with beliefs and loyalties that differ from those that the state wishes to propagate, rebellion is not far away. Love of freedom and a culture of virtue are learned at the hearth and can only be suppressed with violence—and then only for a season.

Any nation that seeks to supplant parents with the apparatchiks of the state is dangerous to all forms of freedom. When parental prerogatives about childrearing come under attack, every citizen who loves any aspect of freedom should realize that it is time to stand up and fight. The family is truly the bellwether of freedom.[5]

 

Michael P. Farris is president, CEO, and general counsel of Alliance Defending Freedom.


[1]     442 U.S. 584, 602-606 (1979).

[2]     Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) 

[3]     Full text available at https://supreme.justia.com/cases/federal/us/442/584/.

[4]     ICCPR, Article 4(1), adopted December 16, 1966, available at https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

[5]     Some case descriptions have been adapted from ADF International materials.