Home Schooling Court Case 1990-1994

Court Case in Barcelona, 1990-1994

In July, 1990, regional authorities in Barcelona, Spain, raided a Family Community and forcibly apprehended 21 children, one only 8 months old. The authorities alleged that the children were abused and in need of state care. In a related case, the parents of the children were charged with illegal association, operating an illegal school, inflicting mental damage on their children and fraud. Although no evidence of abuse was found, the children were forced to remain against their will in state custody for nearly 12 months.

In May, 1992, the First Section of the Provincial Appeal's Court ruled that there was no evidence that abuse had occurred and the children were returned definitively to the custody of their parents. The Catalonian Social Services Agency (Direccion General de Atencion a la Infancia de la Generalidad de Cataluña) appealed this ruling to the Constitutional Court. Their grounds for appeal was that the constitutional rights of the children to a state-sponsored education were being infringed upon, due to the fact that the children were being home-schooled and religiously indoctrinated according to the beliefs of their parents. In October 1994, the Constitutional Court found that the article of the Constitution guaranteeing education for minors did not carry an inherent meaning that such education could not be supplied privately by the parents outside of state institutions, and all appeals were dismissed.

June 29th, 1993, the parents were acquitted of all charges in the related criminal case. The District Attorney appealed this verdict of the Barcelona Provincial Court. On October 30, 1994, the Supreme Court of Spain rejected the appeal and upheld the findings of the Provincial Court.

Following are excerpts of the resolutions emitted:

BARCELONA, SPAIN MINORS COURT RESOLUTION

May 1992 Roll no.: 0160/92E Dennis Edward Molinsky vs. Children's Welfare Dept.

First Section of The Provincial Appeal's Court

Ruling: Adolfo Oubina, Jesus Perez Burred, Jose Ma. Bachs Estany

LEGAL REASONING:

"If the Law is supposed to be in touch with the necessities of real life.., it must be employed with a great deal of common sense and care in so far as it implies a high risk of arbitrariness since it places extremely delicate appraisals such as that concerning a people's moral conscience in the hands of the Judge and his subjective criteria.

...the Constitution states that everyone has the right to education and that the public powers guarantee this right that parents have for their children to receive religious and moral education in accordance with their own convictions.

...the residential complex occupied by a religious community known as the "Familia del Amor" (Family of Love) consisting of persons of both sexes, parents and children, that the Judge a quo had no hesitation in defining as a "sect .... in so far as it is made up of a group of people professing a doctrine that is different from that which is generally accepted" (an identical charge as that which led the Inquisitor Lucero to have the Archbishop of Carranza imprisoned as an Erasmian) and which is governed by a catechism which, according to the Attorney General's office - although no evidence at all has been presented in the case on this point - is full of religious teachings and beliefs of a marked monotheistic and hierarchical tendency.

These rules state that they reserve the right to educate the minors and young people that are born into, or join, the group, to the exclusion of state education. To this end they have established their own education plan including a number of subjects having to do mainly with this field and adopting an authoritarian approach, that is by imposing a series of moral, philosophical and religious convictions in accordance with their particular ideology over and above the mere passing on of scientific knowledge (...in fact no different from that which is the practice in schools run by religious orders in our own country) shying away from further education in favor of practical experience (which is similar to the recommendation made by the Ministry of Education in favor of Vocational Training).

Following the police operation, the police separated the children, most of whom are foreign and have little knowledge of Castilian, from the company of their parents and took them to a children's home run by the Generalitat. There they were put in the hands of a group of psychologists who, in a language which the children did not know, psychoanalyzed them twice for a prolonged period and issued reports cast in esoteric language designed rather to justify the operation than to describe any intellectual anomalies, which are completely non-existent.

With the situation of neglect raised in this way, despite the complete absence of any medical or juridical grounds.., on the basis of accusations that are really surprising because of their innocuousness such as asking Nestle, Gallina Blanca and "Don Pollo" for food, measures of intervention were requested which the Judge "a quo" appropriated, imposing without trial the punishment of being confined to Spain on a group of foreign children.., thus breaking up the natural harmony between parents and children and giving preponderant weight to intervention by the State in a tragical parody of the Areopagus of Sparta or the concentration camps of those empires that ceased to be when human dignity brought down the Berlin wall.

...and in the light of the fact that nothing unusual was found in any of the children beyond the natural bewilderment of someone who is living in a foreign country and is forcibly separated from their parents despite their tender years and is schooled in an unknown language, the supposed judgement of neglect should have been annulled, as it is hereby agreed to do, and the resolution completed with a statement to the effect that the parents are perfectly free to live with their children in whichever country they consider best and to orient them towards whatever moral, religious or philosophical convictions they believe to be appropriate to their intellectual and physical development without any other restrictions.

FINAL CONCLUSIONS:

The Court hereby decides: ...to annul the finding of neglect and the granting of legal custody to the Children's Welfare Department of July 10th, 1990."

BARCELONA, SPAIN PENAL COURT RESOLUTION

CHARGES LAID BY THE D.A.: The D.A. asked for 203 years of prison for the 10 defendants, presumed members of the Children of God for the following crimes:

-Illegal association

-Foundation of an illegal school

-Psychic Damage

-Fraud

THE VERDICT:

The third section of the Provincial Court absolved all of the accused on June 29th, 1993. The verdict, of which the chairman has been the president of the panel, magistrate Jose Antonio Oscariz, (other members of the panel were G. C. Guilabert and A.I. Fernandez) makes a fiery acclaim of human freedom, "that makes it possible for individuals to choose, select and forsake".

ELEMENTS OF PROOF:

"During the first days of the month of July of 1990, the ten accused lived in a community in the town of Casteliar del Vailes, all of them adults, without any police record. The accused constituted a group or community that they called "Missionary Family" and was imbued with its translation of a religious and missionary spirit to be carried out in different countries... Its doctrine in the sense of establishing behavioral norms and lifestyle aids in the carrying out of a disciplined communal life, with the distribution of responsibilities.., but without any evidence of coercive behavior." ...and where they educated the 22 minors that lived with them in a manner such as the one "ruling the religious boarding schools and the classical pre-military schools of Prussian style".

The 43 page verdict does an extensive reasoning about the concept of the word "cult" from the etymological and the sociological point of view.

The Court admits that the CHILDREN OF GOD was founded by the American citizen David Berg, from his work, the Mo Letters, and that later on it was spread over several countries the world over. However, the court specifies that it is not relevant "nor even important, that such cult is still around with that same name, or under another denomination since having been dissolved or that from it's trunk members would split off forming other inter-connected branches", such as "the ones called the Families of Love, or Missionary Families"...

The Court considers that the group comprises a "community that adopts a lifestyle that bears the absence of any type of hitting or mistreatment", but admits that there is a tendency to "close up in itself" in whose members "show a love and tenderness that the prosecution's experts feel is excessive because it foments inter-dependence".

1. Illegal Association:

This has been the first trial in which the prosecution has asked that a group that's considered religious be declared illegal and that an order be issued for its dissolution. In the verdict the accusation is rejected, because this is usually reserved for clandestine groups "that endanger the security of the State". The magistrates add that it is not possible to place under the criminal charge of illegal association "groups in their peculiar mores and lifestyles, in their beliefs qualified as pseudo-religious".

"The term "sect" has a clear religious content, except when used with a political meaning, and it has little to do with the internal security of a secular state... In any case it can not be considered as a threat to the internal security of the Spanish state".

2. Foundation of an Illegal School:

The Judges denied that the defendants founded an illegal School. According to the Court, the defendants decided to educate their children "themselves according to their ideology and following techniques that are known in English speaking countries by the name of Home Schooling".

3. Psychic Damage:

The verdict affirms that there was no psychic damage inflicted on the 22 children... "The Court has not found in the defendants the will to cause damage to the minors" and assures that in none of them has been detected any abuse, although it has been found some "emotional instability". The tribunal affirms that this "can be attributed to the violent and drastic intervention and subsequent separation from their parents, and incommunication that was prolonged to about a month."

It points out that if parents should be punished because their children are not normal, "with the meaning that the experts give to this term, action should be taken as well against the gypsies or immigrants of other races, cultures and religions that differ from the predominant ones of their surroundings".

The Court understands that the children received classes which consisted of Biblical readings. "Such educational and formative methods, as well as way of life would not provoke psychological harm, even if there are difficulties in integrating with children of their own age in the Catalan cultural area and to successfully integrate with a postindustrial and competitive society."

4. Fraud:

The charge of fraud was rejected as well. The magistrates stated that the defendants had not cheated the people whom they asked for money, food or clothing. The accused did not hide their identity and the donors declared that they did not feel cheated.

"The ones presumed to be deceived, with rare unanimity, did not consider themselves cheated".

The developments of the trial were characterized by the sharp reminders of the president of the Court, Judge Oscariz, that they were not judging a "lifestyle or an organization". The verdict concludes by saying: The debate over the persecution of sects has not been resolved. The court believes there are two opposite positions: "That of extreme freedom and tolerance towards other ways of life and another interventionist tendency to make prevalent rational civilizational criteria".

Therefore:

"The final decision made by the Third Section of the Barcelona Provincial Court is: 'That we must acquit and we acquit the accused of the offenses'."

BARCELONA CONSTITUTIONAL COURT RULING

The First Courtroom of the Constitutional Court, composed of Mr. Justice Miguel Rodrguez-Piero Bravo-Ferrer, Chairman; Mr. Justice Fernando Garca-Mon Gonzlez-Regueral, Mr. Justice Carlos de la Vega Benayas, Mr. Justice Vicente Gimeno Sendra, Mr. Justice Rafael de Mendizbal Allende and Mr. Justice Pedro Cruz Villaln, has decided

IN THE NAME OF THE KING the following V E R D I C T

In the cumulative appeals numbers 1561, 1562, 1563, 1564, 1565, 1566 and 1567/1992, filed by the Generalidad de Cataluña [Catalonian regional government], as the guardian institution of the minors… against the rulings issued by the First Section of the Barcelona Provincial Court, dated 21st of May 1992, in the appeals numbers 163/1992, 157/1992, 159/1992, 161/1992, 162/1992 and 160/1992, filed against the ones dictated by the Examining Court number 19 of Barcelona, dated 6th of November 1991, in the proceedings numbers 517/1990, 510/1990, 512/1990, 511/1990, 515/1990, 514/1990 and 516/1990, ensued by the request of the entitled complainant in opposition to the declaration of neglect and assumption of the legal custody carried out by order of the Direcci0n General de Atencion a la Infancia de la Generalidad de Cataluña [Children's Welfare Department of the Catalonian regional goverment].

I. ANTECEDENTS

1. On June 17, 1992, it was registered in this Court the arrival of seven writs sent by the Generalidad de Cataluña, as the guardian institution of the minors… formalized the appeals against the rulings issued by the First Section of the Provincial Court of Barcelona, dated 21st of May 1992, in the appeals numbers 163/1992, 157/1992, 159/1992, 158/1992, 161/1992, 162/1992 and 160/1992, filed against the ones dictated by the Examining Court number 19 of Barcelona, dated 6th of November 1991, in the case numbers 517/1990, 510/1990, 511/1990, 515/1990, 514/1990 and 516/1990, ensued by the request of the entitled complainant in opposition to the declaration of neglect and assumption of the legal custody carried out by order of the Direccion General de Atencion a la Infancia de la Generalidad de Cataluña.

2. The facts in which the appeals are founded are, in concise form, as follows:

a) On July 23, 1990 the Direccion General de Atencion a la Infancia notified the Examining Court number 19 of Barcelona of the opposition of the parents of the minors, whose names were transcribed above, to the measures of protection adopted by the Generalidad regarding them, specified with the declaration of neglect and the assumption of the legal custody carried out by order of the Direccion General de Atencion a la Infancia.

b) The 6th of November 1991 the Court issued the rulings 510 to 516/1991, identical in its contents, rejecting the opposition against the declaration of neglect and the assumption of the legal custody carried out by the Generalidad.

The above-mentioned rulings, after focusing the legal problem on the extent and limits of the legal custody and, particularly, on the right of the parents to educate and train their children in accordance with their own convictions (2nd legal ground), they consider that the article 27.3 of the Constitution has to be confronted with the duties that the legal custody entails, and that when the given education substantially hinders or limits the minor's integral development, then we encounter an inadequate exercising of the parental rights and a possible situation of neglect, motive for the assumption of the legal custody by the official public institution (3rd legal ground); after considering as proved that the parents of the minors belong to a sect ("Children of God") facing penal proceedings, it reasons that the conduct of mental control and annulment of the capacity to analyze carried out by the parents has caused deficiencies in the minors in the areas of socialization and personal autonomy, reason why it considers that it results in a situation of neglect, exhibited, among other aspects, in the lack of schooling of the minors, and consequently declaring the measure of confinement of the minors legally right, though, to the request of the Generalidad, "due to the favorable evolution of the minors as a result of attending public school", it returns to the parents the mere guardianship of the minors.

c) The parents of the minors filed appeals against the above-mentioned rulings; appeals which were resolved in a favorable way by the verdicts (identical in its contents) numbers 157 to 163/1992, of the 21st of May, by the First Section of the Barcelona Provincial Court. The Court concluded that, even though the legal custody has to be used in the benefit of the children and in accordance to their personality, determining what is the interpretation of such an ambiguous sentence is something which has to be considered on a case by case basis and respecting as well the right of the parents that their children receive a religious and moral education in accordance with their own convictions (art. 27.3 Spanish Constitution); in its opinion, there wasn't enough evidence to prove that the "Children of God" community was a sect, and it esteemed that the teachings were imparted to the minors without neglecting the ones considered as basic and mandatory, "free schooling according to the legal ordinances of some of the home countries of the children, and, after all, alike to the one imparted in the religious schools within our country". Lastly, it points out that the confinement in Spain was imposed on a group of foreign children, "breaking the natural harmony between parents and children and giving superior authority over it to the state", and that, conclusively, "the religious freedom of the parents and the right to choose the education of their children should prevail".

The Prosecuting Attorney, through writings dated November 14, 1992, solicited the refusal of the appeals. The Prosecuting Attorney reasons that we find ourselves before a question of ordinary legality without any Constitutional dimension whatsoever --to determine whether or not a situation of neglect of the minors exists-- well solved by the Court of Appeals. In his opinion, the article 27 of the Spanish Constitution has not been broken as it has not been proven that the minors did not receive an education that tends to the full development of the human personality in accordance with the religious and moral convictions of the parents.

The Prosecuting Attorney, in writings registered on May 3, 1993, considers that the impugned judicial rulings do not break the article 27 of the Constitution. The fundamental right to education assigns to the public powers the obligation to collaborate and to help in the application of this fundamental right; that precept declares, firstly, the right of the parents to have their children receive the religious and moral education that is in accordance with their convictions, establishing right after that the gratuity of a basic education as well as a series of obligations that entails a mandatory service on the part of the State, so that the lack of a unique way or avenue established to acquire this finality implies that any means whereby this can be obtained is in accordance with the fundamental right, without the paths established by the State being exclusive or excluding, so that, in the event of not following the State's avenue, it can't be asserted that the right has been infringed upon. The article 27.4 --continues the Prosecuting Attorney-- does not mean that the education has to be performed in the manner established by the State, as it can be done in another way as long as the results obtained are the same, and this is, indeed, what the Provincial Court affirms that has happened, without the difference in the procedure of receiving the schooling in itself signify the infringement of the fundamental right. The Provincial Court considers that, in spite of the fact of the nonexistence of school attendance, the integral education and formation had not been neglected; the impugned rulings interpret a legal term such as the article 154.1 of the Civil Code, and they do it in a reasonable and founded manner, and, therefore, within the realm of its competence and function.

II. LEGAL GROUNDS

1. For the correct delimitation of the object of the present appeals we must remember, briefly, which have been the incidents of the proceedings that have concluded in the judicial rulings that are now being impugned and which have been the reasons and the allegations around which the terms of the appeals filed by the Generalidad de Cataluña have been articulated.

The parents of the minors opposed the measures carried out by the Generalidad de Cataluña. Such opposition was dismissed by the rulings of the Examining Court number 19 of Barcelona; in the opinion of the Court, the minors were in a situation of neglect and it was appropriate, consequently, that the regional Administration would assume their custody. After filing an appeal before the Provincial Court of Barcelona, the First Section ruled revoking the ones from the lower court, leaving without effect the administrative measures that had been adopted. In the opinion of the Provincial Court, the minors were not neglected nor did they suffer from any disturbances in their processes of physical, intellectual, spiritual or moral formation. In regards to their schooling, the Court points out that their educational formation, which was performed outside of the official educational system, was insured by their own educational system, perfectly accepted in the realm of freedom designed by the Constitution.

J U D G E M E N T

Considering all that's been exposed, the Constitutional Court, BY THE AUTHORITY THAT THE SPANISH CONSTITUTION CONFERS TO IT,

Has decided to reject the cumulative appeals numbers 1561, 1562, 1563, 1564, 1565, 1566 and 1567/92. Let this ruling be published in the "Official Bulletin of the State".

Issued in Madrid on the third of October nineteen ninety four.

Supreme Court Ruling Excerpts

Appeal Number: 3032/93. Verdict number 1669 October 30, 1994

Judged presiding: Enrique Ruiz Vadillo, Jose Antonio Martin Pallin and Justo Carrero Ramos

We find ourselves in the presence of a community of people, made up of adults and children, who have adopted a lifestyle that differs from the generally accepted norms… Not a single element is found that could allow us to declare the existence of any intention to hurt their children or the other children of the community.

They avoid sending their school-aged children to official institutions of learning, public or private, choosing to teach them themselves using the method that in the Anglo-Saxon countries is known as "home school"… To proclaim the superiority of one educational system over another would inevitably lead us to apply value judgments based on psychological, sociological, cultural and moral presuppositions that open up a never-ending debate which, in any case, should remain in the scientific realm, bearing in mind also its clearly political connotations.

Judges cannot enter into the sanctuary of personal beliefs, except when external behaviors originating from a particular ideology negatively affect legally protected rights.

JUDGEMENT: THAT WE MUST DECLARE AND DO DECLARE THAT THERE IS NO ROOM FOR THE APPEAL for infraction of law filed by the Prosecuting Attorney against the ruling dictated on June 29, 1993, in the case followed… for the crimes of illegal association, foundation of an illegal teaching center, psychic damage and fraud.

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