The Provincial Court Granada upheld the decision of the Court of First Instance to deny the mother’s request to baptise her daughter and dismissed the mother’s appeal.

Voluntary jurisdiction. Appeal to the Provincial Court Granada

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Family law

On 14 July 2021 the applicant, the mother of a four-year-old girl, filed a complaint to the Court of First Instance No. 1 Santa Fe. The complaint arose from a dispute with the father over the exercise of parental authority over religious matters, particularly regarding the child’s baptism. The Court of First Instance denied the mother’s request to baptise her daughter. The mother then appealed to the Provincial Court Granada.

The appellant argues that there are no grounds for believing that any form of Catholic religious education, including baptism, which the custodial mother wishes to provide for her daughter, could cause her any harm, affect her overall development, or impact her future ability to make her own decisions about religion. Furthermore, in the appellant’s view, the fact that the child is taught the “Catholic religion” at school is not considered by the Court. She relies on the right to freedom of religion and on the case law of the Constitutional Court, according to which minors have the right to freedom of religion with regard to Article 1 of Organic Law 7/1980 of 5 July 1980 and Article 2 of Organic Law 8/2015 of 22 July 2015 amending the system for the protection of children and adolescents. These laws state that the religious freedom of minors is understood to be “without prejudice to the duties and rights of parents to guide the minor in the exercise of his or her right, in accordance with the development of his or her capacities, in a manner that contributes to his or her integral development”. The mother considers that her right to decide whether the child should be baptised and educated in the Catholic faith should be recognized, since she has the custody and the guardianship of the child.

The respondent, on the other hand, opposed the appeal on the grounds that he was opposed to baptism due to the secular nature of the family: the couple had not entered into a Catholic marriage, and they had decided not to baptise their daughter at the time of her birth in order to allow her to decide for herself how to exercise her right to freedom of religion. The respondent also mentions his objection to the child receiving religious instruction at the mother’s request. This is an optional subject which is not taken by all the children in her class and for which she is not obliged to be baptised. In short, the ruling focuses on whether a disagreement between parents about giving the sacrament of baptism to their four-year-old daughter violates the parents’ right to educate their children according to their own convictions and the child’s freedom of religion. This decision also deals with the interference of the state in family matters, which is linked to the neutrality of the state, the autonomy of religions, and the consideration of whether or not baptism can be seen as a matter of principle.

The Provincial Court focuses mainly on family law. There are many aspects to consider in this area. These include the autonomy of the denomination concerned, the neutrality of the state with regard to religion, and the balance of rights. The Court held that, in the light of Article 16 of the Spanish Constitution, which guarantees the secular nature of the state, the disagreement between the parents, who have the parental authority to decide whether or not to baptise their four-year-old daughter, could never be resolved in favour of her receiving a sacrament of the Catholic religion. The Court based its reasoning on Article 8 of the ECHR. This article strikes a balance between parents’ autonomy to indoctrinate their children with their own beliefs within the family sphere and the protection of this sphere by a secular state. Article 8 provides that “there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

In addition, the Provincial Court also referred to Ruling No. 154/2002 of 18 July 2002 of the Constitutional Court, which states that Article 16.3 of the Spanish Constitution guarantees the neutrality of the public authorities, “which is inherent in the non-denominational nature of the State, and that, as a subjective right, has a double dimension, internal and external”: internal because it guarantees the existence of an intimate set of beliefs and, therefore, a space of intellectual self-determination in the face of the religious phenomenon, linked to one’s own personality and individual dignity; and external because it enables citizens to act in accordance with their own convictions and to maintain them vis-à-vis third parties. The Constitutional Court stated that the external aspect can be understood as the immunity from any coercion by the public authorities of those activities that are manifestations or expressions of the religious phenomenon. Therefore, the principle of minimum interference prevails and ends with the state refraining from intervening. In addition, the Court mentions Decision STC 141/2000 of 29 September 2000 on Article 2.1 of the LOLR (Organic Law on Religious Freedom), which develops this constitutional provision by recognizing the religious freedom of “everyone”, including minors. In this regard, the Court concluded that minors are entitled to their rights to freedom of religion or belief and to moral integrity. Precisely because minors are fully entitled to their rights to freedom of conscience and belief and to moral integrity, the exercise of these rights and the power to dispose of them cannot be subject to the decisions of those who have custody of minors.

Consequently, the Court considers that parental authority must be modulated in accordance with the child’s fundamental rights, the child’s degree of maturity, and the various stages of his or her legal capacity. Moreover, the public authorities, and in particular the judicial authorities, have a duty to ensure that the exercise of such powers by the parents is also devoted to the protection of the child’s interests and not to the service of the child. The decision must be taken in the light of the best interests of the child and not in the light of the religious interests of the parents, however legitimate and respectable they may be. In accordance with Article 2 of Organic Law 8/2015 of 22 July 2015 on the modification of the system of protection for children and adolescents, the decision to baptise or not to baptise is made according to the future development of the child and with a view to preventing any risks to the effective integration and development of the child in society, as well as to minimizing the risks that any change in the material or emotional situation may cause in his or her personality and future development.

While no risk of social exclusion, maladjustment, or difficulties results from the child being baptised or not baptised, if the child has sufficient judgment and maturity, she should be able to exercise her right to ask her parents to baptise her. Moreover, the Public Prosecutor also considered that the baptism does not harm the child and that the father objects only in order to harm the mother. Considering the position of the parties, the Court concluded that there was no intention of harming the appellant, given that not even the appellant adduces this argument as a reason to challenge the decision. The Court upheld the decision of the Court of First Instance, which guarantees the religious freedom of the child, as it is clear that the child is not sufficiently mature to be considered to have a minimal understanding of the meaning of the sacrament of baptism. There must be a duty to ensure that parents act strictly in the best interests of the child and not in the service of the legitimate beliefs of one or the other parent. Finally, the Court states that the principle of neutrality and secularity of the state must be respected while at the same time respecting the right of the family to private and family life. Moreover, accepting or tolerating a child’s religious education does not mean that the parents are obliged to accept her baptism. The Court therefore concludes that, having regard to the child’s freedom of religion, her maturity, and the parents’ right to ensure the religious education of their child, the child’s freedom of religion must be respected in order to allow her to decide whether or not to be baptised in the future.

“From the perspective of freedom of religion and worship, the same Article 16 of the Spanish Constitution, which guarantees that freedom by integrating it with the constitutionally protected fundamental rights, proclaims the non-confessional nature of the State, and so it cannot be inferred in any way that the discrepancy between parents with parental authority over the decision to baptise their four-year-old daughter should be resolved by giving preference to her receiving a sacrament of the Catholic religion”. (legal reasoning 2, para. 2)

“[…]which, serving as a development of the aforementioned constitutional precept, prescribes in Article 3.1 LOLR that ‘the exercise of the rights deriving from freedom of religion and worship has as its only limit the protection of the right of others to exercise their public freedoms and fundamental rights, as well as the safeguarding of security, health and public morals, constituent elements of public order protected by law in the sphere of a democratic society’”. (legal reasoning 2, para. 2)

“Concerning a mere disagreement between the parents as to the appropriateness of giving their four-year-old daughter the sacrament of baptism, it must be held that the decision of the Court of First Instance is precisely that which safeguards the religious freedom of the minor, since even though it is clear that she is not sufficiently mature for her opinion to be considered to be based on a minimal understanding of the meaning of that sacrament according to the Catholic religion, it responds, from the point of view of the subjective right and its internal dimension, to the duty to ensure that the parents act strictly in accordance with the meaning of the sacrament of baptism in the Catholic religion”. (legal reasoning 2, para. 4)

“The principle of minimum intervention by public authorities in family matters, particularly for religious or ideological reasons, is considered discriminatory. Intervention is only justified if there are particularly important interests at stake that require protection, such as the legal protection of minors. This approach considers competing interests.”. (legal reasoning 2, para. 5)

Domestic law

• Articles 16, 18, 27, 39 of the Spanish Constitution
• Articles 162, 322, 323 of the Spanish Code Civil
• Organic Law 7/1980 of 5 July 1980 on Religious Freedom
• Article 2 of Law 11/1981 of 13 May 1981
• Article 30 of Law 30/1992 of 26 November 1992 on the Legal Regime of Public Administrations and Common Administrative Procedure
• Article 6 of Organic Law 8/2015 of 22 July 2015 on the Modification of the Child and Adolescent Protection System

International law

• Protocol 1, Article 2, and Articles 8, 9 European Convention on Human Rights
• Articles 12, 14 Convention on the Rights of the Child

Relevant Spanish case law

Tribunal Constitucional, Sentencia de 14 julio 1994. Sentencia número 215/1994 (Constitutional Court, Judgment of 14 July 1994, no. 215/1994)

ECLI:ES:TC:1994:215

Tribunal Constitucional, Sentencia de 29 de mayo 2000, Sentencia número 141/2000 (Constitutional Court, Judgment of 29 May 2000, no. 141/2000)

ECLI:ES:TC:2000:141

Tribunal Constitucional, Sentencia de 18 Julio 2002
Sentencia número 154/2002 (Constitutional Court, Judgment of 18 July 2002, no. 154/2002)

ECLI:ES:TC:2002:154

Juzgado de Primera Instancia nº 1 Santa Fe, Sentencia de 14 de Julio 2021, Sentencia número 147/2021 (Court of First Instance and Preliminary Investigation no. 1 of Santa Fe, Judgment of 14 July, no. 147/2021)

Relevant European Court of Human Rights case law

Hoffman v. Austria, App no. 12875/87, 23 June 1993

ECLI:CE:ECHR:1993:0623JUD001287587

Palau Martínez v. France, App. no. 64927/01, 2003

ECLI:CE:ECHR: 2003:1216JUD006492701

Deschomets v. France, App. no. 31956/02, 2006

ECLI:CE:ECHR:2006:0516DEC003195602

Ismailova v. Russia, App. no. 37614/02, 2007

ECLI:CE:ECHR:2007:1129JUD003761402

Vojnity v. Hungary, App. no. 29617/07, 2013

ECLI:CE:ECHR:2013:0212JUD002961707

Haddad v. Spain, App. no. 16572/17, 2019

ECLI:CE:ECHR:2019:0618JUD001657217

Gubasheva and Ferzauli v. Russia, App. no. 38433/17, 2020

ECLI:CE:ECHR:2020:0505JUD003843317

Although this case deals only indirectly with religious education as a subject, it has an entirely new aspect concerning the protection of minors against “interference” under Protocol 1, Article 2, of the ECHR, which states that “the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions and the right to private and family life. There is also a dimension of autonomy of religious denominations in the question of whether or not baptism should be a matter of principle. When considering the right to private family life and parental authority, the legal status of family members must be considered. Each of them has an independent legal personality, while the institutional aspect of the family is preserved. The right of parental authority has changed from a right of the parents, exercised in a quasi-absolute manner over the person and property of the children, to a right granted to the parents to facilitate the fulfilment of the duties inherent in their parental authority. This change is inseparable from the re-evaluation of children as subjects of rights themselves. In this case, it is applied to the religious freedom of the child (Asensio Sánchez 2023: 63).

This aspect is mentioned in Organic Law 1/1996 of 15 January 1996 on the Legal Protection of Minors (LOPJM), amended in 2015 by the Law 26/2015 of 28 July 2015 on the Modification of the Child and Adolescent Protection System, which refers to the social and cultural changes in the social status of the child in the new human rights approach, specifically Article 6, which mentions that the child has the right to freedom of thought, conscience, and religion, and Article 6.3, which states that “parents or guardians have the right and the duty to cooperate” in the exercise of this freedom by the child in a manner conducive to his or her integral development. Spain has also remained in step with human rights standards by ratifying the 1989 UN Convention on the Rights of the Child. Of particular note in this Convention is Article 12.1, which states that “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”. In addition, Article 14 states that all “States Parties shall respect the right of the child to freedom of thought, conscience and religion” (Article 14.1) and “States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, 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 14.2). Thus, the recognition of minors as holders of rights and their progressive capacity to exercise them is a consequence of a state’s membership in these international conventions.

The best way to guarantee the social and legal protection of children is to promote their autonomy as legal subjects. Concerning the approach to state intervention, before focusing on the religious dimension of this case, it must be said that the relationship between parents and children is linked to the effectiveness and exercise of fundamental rights and freedoms within the family (Asensio Sánchez 2023: 71). The fundamental right to privacy (Article 18.1 of the Spanish Constitution) protects the core of the family from any interference or intrusion by the state, as does Article 27.3 of the Constitution, which refers to the right of parents to ensure that their children receive a religious and moral education in accordance with their own convictions, and Article 39 of the Constitution, which states that the “public authorities shall ensure the social, economic and legal protection of the family”. However, the family cannot be understood as an area in which its members are deprived of fundamental rights and freedoms.

The Provincial Court considers that the child's right to religious freedom should prevail over the parents' right to provide their children with a religious education. However, the Court does not wish to interfere in what is considered a family matter, nor does it wish to grant a waiver or exemption from legal obligations. Moreover, this is linked to a distinction made by the Court concerning an argument made by the appellant as to why the father did not want the child to be baptised when she was already being taught the Catholic religion at school. Indirect religious instruction focuses not only on the school environment but also on the family environment of instruction. Therefore, even if indirect, baptism is a form of indoctrination in the Catholic religion. However, the Court distinguishes between the teaching of the Catholic religion at school and the act of baptism. One can be seen as religious instruction in the school system, the other as a kind of rite of passage to create the identity of a religious person in Catholicism. Both fall within the understanding of religious instruction but belong to different spheres in terms of how a child’s religious identity should be constructed. In this regard, the Court weighed the implications of baptising the child against the child’s future development – on the one hand because the minor is not yet of age to decide on her own how her religious rights should be exercised, and on the other hand because of the possible consequences for the child’s social environment. It can be argued on both sides that baptism has no direct effect on future social exclusion or failure to adapt to society. Therefore, the Court states that if there are no future consequences, the child’s religious freedom should be protected until she is mature enough to decide for herself whether or not to be baptised.

The principle of the religious freedom of the child is intertwined with Article 27.3 of the Spanish Constitution, which states that “parents have the right to educate their children according to their own convictions”. Furthermore, the mother, who is the applicant in this case, has both custody and guardianship of the child and the right to have her child educated in accordance with her beliefs. The father, on the other hand, also has the right to educate the child according to his own convictions, but he does not have custody or guardianship. If the parents are separated, which is not mentioned in the decision, it is established that parental authority is exercised by the parent with whom the child lives. However, the judge may, in the interests of the child, upon a well-founded request by the other parent, grant the applicant the right to exercise parental authority jointly with the other parent or distribute the functions inherent in its exercise between the father and the mother (Ramírez Navalón 2015: 147). Furthermore, as this case concerns religious rituals or the religious instruction of the child, the neutrality and secularity of the state and the right to private and family life are also weighed up. If the state were to intervene, it would violate the right to private and family life, and if it were to declare that the child should be baptised, it would contradict the neutral and secular nature of the state. Furthermore, giving priority to the decision to baptise the child indirectly implies that the mother’s custody of the child should take precedence over the child’s freedom of religion and the father’s parental authority.

As stated in Law 11/1981 of 13 May 1981 amending the Civil Code on filiation, parental authority, and matrimonial property regimes, parental authority and the right of parents to ensure the upbringing of their children according to their own convictions should be based solely on the best interests of the child and not on the interests of one or the other parent. Furthermore, if the state were to take a position in favour of baptism, its own neutrality could be undermined. This would suggest that the only factors that could change the outcome would be the potential social exclusion and inadequacy that the child might experience in the future, rather than the secular nature of the family or the state itself. Moreover, the right to privacy and family life should also be respected in the best interests of the child. Minors have special protection under state law, and parental authority has been socially and legally transformed to a point where the aspect of the best interest of the child is imperative. The state should only intervene on behalf of the child when a dispute is likely to have a serious impact on the child’s development. Therefore, parents have both the duty and the right to act in the best interests of the child, which is a consequence of the very nature of the function of parental authority (Asensio Sánchez 2023: 74). However, parental authority is a right that entails a duty towards children and an obligation towards the state. Therefore, parental authority is exercised as a right to protect the family from interference by the state.

Another notable aspect is the mention of ECtHR cases in the decision that are not directly relevant to the issue at hand. In the case of Haddad v. Spain, for example, the Spanish authorities failed to fulfil their positive obligations to facilitate the applicant's reunification with his daughter, who had been taken into care. Another case, Gubasheva and Ferzauli v. Russia, concerns the failure of the authorities to enforce a judgment granting a mother a residence order for her young daughter for four and a half years. Ultimately, there should be a minimum of interference by the state in the family sphere, limited only to the prevention harm to the best interests of the child. The best interests of the child must be paramount and, as is the case here, there is no harm to the child if she does not receive the baptism that the applicant wishes to impose on her. This case law of the European Court of Human Rights establishes the principle of minimal intervention by public authorities in the family sphere, particularly for religious or ideological reasons, among others, which may be considered discriminatory. Therefore, intervention is only justified if there is a specific interest that requires protection, such as the legal safeguarding of children. This approach is based on the idea of balancing competing interests, including those of the child, both parents and public order.

Other relevant cases include Vojnity v. Hungary, where the Court explicitly recognized religion as a “suspect” ground for differentiation. States must provide “very weighty reasons” if they wish to justify differential treatment based on religion. It should be noted that the applicant is a member of the Congregation of the Faith, is divorced, and has a son. Expert opinions suggested that he should be denied custody given his “unrealistic educational ideas marked by religious fanaticism”. Furthermore, in Deschomets v. France, the Court reiterated that the religious affiliation of the applicant, in this case the mother’s membership in the Brethren movement, could not be the sole reason for denying custody. In contrast, in Palau-Martinez v. France, the father was granted custody of the children because the mother was a Jehovah’s Witness. This was considered a violation of Article 14 of the ECHR, read in conjunction with Article 8, as the judgment contained no direct and tangible evidence of the influence of the applicant’s religion on her children’s education and daily life. Another noteworthy case is Ismailova v. Russia (2007), which raises the question of whether the facts of the case fall within the scope of Article 8 of the Convention. The Government claimed that granting custody of the children to their father was lawful and reasonable, and in the children's best interests. The Court also noted that the children would suffer significant harm if they were forced to attend Jehovah's Witness meetings while living with the applicant. The Court notes that, unlike in the above-mentioned Palau Martinez v. France judgment, the domestic authorities drew their conclusions as to the impact of the applicant’s religion on the upbringing of her children based on direct and concrete evidence of the influence of the applicant’s religion on the upbringing and daily life of her two children.

In addition, the Court focused on the case of Hoffman v. Austria, a landmark judgment that is generally perceived as a milestone in ECtHR case law. It established a new principle that has had a significant impact on subsequent cases in the area of parental rights and religious beliefs (e.g., Vojnity v. Hungary (2013)). The issue was whether the denial of parental rights to a divorced mother based on her religious affiliation to the Jehovah’s Witnesses was contrary to the ECHR. The Court held that a difference of treatment in respect of parental rights based essentially on a difference of religion alone is unacceptable and constitutes a violation of Article 8 in conjunction with Article 14. Although the Austrian Supreme Court found that the reasons given by the parents (refusal of public holidays, refusal of blood transfusions, position as a social minority) could favour one parent over the other, the national court introduced a new element, the fact that the mother, by unilaterally deciding on the children’s future religious education, had violated the Federal Act on the Religious Education of Children. Although the proportionality of interference in cases concerning baptism and the religious indoctrination of Jehovah's Witnesses cannot be compared, both fall within the same sphere: unilaterally deciding on a child's religious upbringing without considering its possible repercussions for the child's life and infringing their freedom of religion. As far as Spanish case law is concerned, it is relevant to include related cases such as STC 141/2000 of 29 May 2000, in which the wife brought an action for separation because of her husband’s membership in the so-called “Movimiento Gnóstico Cristiano Universal de España” and his attempts to proselytize her and the children of the marriage. She also requested that the visiting rights granted to the father be restricted. The Court of First Instance awarded custody of the children to the wife and established visiting rights for the husband (alternating weekends and half of the holidays) with an express prohibition for the father to proselytize his children, as well as the presence of the minors at any related religious function. The Constitutional Court ruled in favour of the father, considering that the Provincial Court had failed to prove that there was an additional risk justifying the more severe restriction of the father’s parental rights. As stated in this decision, the right of believers to believe and to conduct themselves in accordance with their beliefs is subject to no other restrictions than those imposed by respect for the fundamental rights of others and other legal interests protected by the Constitution. Furthermore, Article 3.1 of the LOLR provides that “the exercise of the rights deriving from freedom of religion and worship has as its only limit the protection of the right of others to exercise their public freedoms and fundamental rights, as well as the safeguarding of security, health and public morality, which are constituent elements of public order protected by law in a democratic society”. It is becoming increasingly common for courts of first instance to hear appeals requesting judicial intervention to resolve conflicts in the exercise of parental authority in matters such as the choice of school or religious subject, attendance at catechesis, baptism of children, or first communion (Ramírez Navalón 2015: 161).In light of the cases presented, it could be argued that certain controversies concerning the religious education of children have perhaps become overly dependent on the judicial system. This type of conflict could be resolved through mediation to avert judicialization, which provokes detrimental positions between parents and is most harmful to the interests of the child.

Following the criterion of continuity, it seems advisable to grant custody to the parent who ensures the continuity of the religious education received by the child until the moment of the break in the parents’ cohabitation (Ramírez Navalón 2015: 156). This avoids the risk that a sudden change of orientation in this respect could pose to the psychological balance of the minor, especially if he/she has been educated in a particular religion or ideology for a considerable period. Therefore, to promote the best interests of the child, to avoid possible harm, and to ensure the best development of the child, it is safe to say that if the child has had a secular upbringing, there should be no religious indoctrination until the child reaches an age when he or she can decide for himself or herself.

In conclusion, the Provincial Court of Granada has decided to give priority to the religious freedom of the child and to leave the decision to the child when she is mature enough to make it, rather than intervening and endangering the neutrality of the state and the right to privacy and family life. When balancing the right of parents to ensure the religious upbringing of their children, the Court has adopted a cautious stance in order to safeguard the best interests of the child. This is because prioritising public order over the religious beliefs of one parent could jeopardise the child's best interests, as well as affecting the state's position in family matters and its secular character.

General legal literature on the topic

• Asensio Sánchez, Miguel Ángel. 2023. “Ideario educativo constitucional e interés del menor”. Laicidad y libertades: escritos jurídicos 23: 53–86.

• Corral, Benito Aláez. 2011. “El ideario educativo constitucional como límite a las libertades educativas”. Revista Brasileira de Direitos Fundamentais & Justiça 5 (17): 41–77.

• Kinkelly, Ursula. 2010. “Protecting Children’s Rights under the ECHR: The Role of Positive Obligations Special Issue: Positive Obligations and the European Court of Human Rights”. Northern Ireland Legal Quarterly 61 (3): 245–262.

• Öztürk, Fatih. 2011. “Manifestation of Religion and Religious Education under the ECHR Jurisdiction”. Journal of Istanbul University Law Faculty 69 (1–2): 1105-1124.

• Pelayo Olmedo, José Daniel, Almudena Rodríguez Moya, and Concha Antón Rubio. 2022. “Conviv@ula: ¿preparados para lo diverso? Escuela, factor religioso y gestión de la diversidad”. Observatorio del pluralismo religioso en España.

• Rajska, Dagmara. 2020. “Parent-Child Relationship Cases before the ECtHR”. Socio Economic Challenges 4 (1): 36–64.

• Ramírez Navalón, Rosa María. 2015. “Patria potestad y educación religiosa de los hijos menores”. Iuris Tantum Revista Boliviana de Derecho 19: 142–163.

• Romero Coloma, Aurelia María. 2013. “Libertad religiosa del menor, patria potestad y derecho a la educación”. Actualidad jurídica Aranzadi 875: 1–152.