Rethinking deschomets v. France: Reinforcing the protection of religious liberty through personal autonomy in custody disputes

Introduction Deschomets v. France is an admissibility decision involving a custody dispute between a divorced father who left a religious community (the Brethren movement) and a mother who decided to stay within the religious community. The religiously dictated, strict and puritan lifestyle of the mother, which she also imposed on the couple’s children, met the father’s disapproval. In addition to seeking a divorce, the father also started a long battle for custody of their children in order to rescue them from the daily regimen dictated by their mother’s religious beliefs. At first sight, such a custody dispute resulting from a religious disagreement between the parents appears to be a rather ordinary, if sad, conflict within a family. On a deeper level, however, such custody disputes touch upon the religious freedom of at least one parent, and a child or children, if not an entire family. The choice of religion and the decision to change one’s religion are the most intensely protected aspects of religious liberty (i.e. the so-called inner core (forum internum)), and the manifestations stemming from this choice are not only protected in the context of various Convention rights, but also inhabit the private sphere (family homes). In addition, lawsuits arising from custody disputes of the Deschomets type centre around the best interest of children caught in the middle of the dispute, and ultimately turn into a highly sensitive balancing act about the versions of the good life a judiciary finds tolerable, easily leaving the parent who made a controversial choice somewhat behind. The European Court of Human Rights (hereinafter ECHR) tends to decide these disputes under Article 8 (right to respect for private and family life) in conjunction with Article 14 (prohibition of discrimination). While the current approach offers a neutral frame of judicial analysis, it seems to bypass the kernel of the dispute: the religious freedom (Article 9) of the parent (and child) who wishes to deviate from the mainstream in her beliefs and, also, in ensuing lifestyle choices.