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The child's education--object of parental authority regarding the child's personality.

1. Preliminary Issues

The "governance" of the minor's person groups the characteristics of parental authority. These features form a beam whose synthesis is done in Article 487 Civil Code (a fundamental text). It reads: "The parents have the right and duty to raise the child, caring for his/her physical, mental, and intellectual health, his/her education and professional training, according to the child's own beliefs, characteristics and needs; they are obliged to give the child an appropriate direction and guidance necessary to exercise the rights that the law grants to the child." (1) Thus, although, within family life the features of parental authority overlap, with no clear-cut distinction, it is useful to discern the meaning of each, even if we do it just to prove, in all its richness, the content of parental authority.

In connection with the listing and designation of parental rights and duties regarding the child's person, in the literature of the field there is no consensus of opinions.

A remarkable author (2) enumerated the following parental rights and duties regarding the child: a) the right to determine the child's home; b) the duty to financially support the child; c) the duty to raise the child; d) the right to return the child; e) the rights to have personal relations with the child; f) the right to watch over the growth, education, teaching and professional training of the child; g) the right to consent to adoption of the child. (3)

In our opinion, we believe that parental rights and duties regarding the child's person can be approached through their subject. From this point of view, we believe that the customary trilogy, each with its own powers--care, supervision, education--covers in terms of attributes of parental authority object over the child's person. (4)

In parental authority field, the word "education" is used in the broadest possible sense. To educate a child means to grow him/her, to cultivate what is routinely called "common sense," to direct him/her. The education involves, on parents' behalf, a whole set of decisive choices and their outcomes. This privilege includes both children' elementary knowledge acquisition and school, artistic and religious education, but, first of all, in our opinion, is the guidance and moral formation of a child, his/her character building, his/her attitudes towards others and towards him(her)self; the latter is the one that prepares the child and lay down his/her future life, one that forms him/her for the adult social life, which leads to the essential and primary values of respect for human rights and humanity.

2. Guidance and Moral Formation of Children

The awakening of consciousness and discernment, openness to values represent, under innermost aspect, the parenting primary vocation. Parents are the source of all influences. Hand in hand with surveillance, vigilance exercised in relations and correspondence of the child is the parents' educational mission. The main task of parents is that of mentoring, training, educating their children, setting moral direction to follow. It is a right that lies in the nature of being parent and whose importance deserved to be proclaimed among the fundamental human rights by the United Nations: "Parents have a prior right to choose the kind of education that shall be given to their children." (Declaration of December 9th 1948, Article 26, paragraph 3)

Then, according to Article 2 of the Additional Protocol 1 to the European Convention on Human Rights, "No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions." Accordingly, the Law No. 272/2004 sets forth that parents are entitled to choose their children' education, thus being able to receive an education that would constitute the premises for a future development, under non-discriminative conditions, their aptitudes and their personality, the parents are bind to enroll their children in school, and obliged to assure their regular attendance.

United Nations Convention on the Rights of the Child makes a list of nearly all aspects relating to child training. It requires States Parties to ensure the right to education of all children within their jurisdiction progressively and on the basis of equal opportunity, to take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity as human being, to take all appropriate educational measures aimed at promoting the development of child's personality and his/her mental and physical skills, in the spirit of respect for children' rights, for parents, identity, language and cultural and national values of the country where they live, (Article 28). The Constitution of Romania states the right to education, to public free education (Article 32) and the right to culture (Article 33).

The Civil Code, within Article 488 paragraph (1), lists, among specific duties of parents to raise the child, the conditions that ensure the development of spiritual, moral and social harmony. Of course the phrasing is generic and intends to cover all aspects of training future adult personality. Despite the simple formulation, this task is not simple; it is complex and in order to be successfully accomplished it requires wisdom, patience, tact and a lot of dedication and love. (5)

It is said that the school is the institution that should worry about the children' education while parents are only obliged to oversee the process fulfillment. However, from our point of view, things are not so. In fact, each parent traces his/her own ways of moral and behavior education, freely and according to his/hers own principles and views on life, his/hers own sensibilities and standards. Values such as honesty, fairness, honesty, faithfulness, modesty, kindness, altruism are to be seeded through models and the parents are the first children' moral and social cues. No wonder there is a saying, referring to good or bad growth of a child: "the seven years of basic upbringing." The school cannot replace the parents in upbringing the children morally and behaviorally. It is true that the school may shape the character and behavior but it happens on bases and a foundation that is set within the family. In fulfilling this mission the collaboration and cooperation between the families and the school are prerequisites for a good and accurate moral, intellectual, spiritual and social training.

In this area the law can provide only some benchmarks, some general obligation, as in the Article 488 paragraph (2): "To this end parents are obliged: a) to cooperate with the child and to respect his/her private life and dignity; b) to present and allow the child's information and clarification on all acts and deeds which could affect him/her and to consider his/her opinion; to take all necessary measures for the protection and realization of children' rights; to work with natural persons and legal entities involved in the care, education and training of the child."

3. The Education and Instruction (6)

The parents are those entitled to choose and to assure the child's education, under the provisions of mandatory education up to the age of 16 or 18 years. Choosing both the school and the religion, the parents open to divergences. The Law No. 1/2011 of National Education as amended (7) imposes the obligation of parents to ensure the education of children aged from six (possibly seven years) to 18 years (Article 16), which may be provided in public, private or authorized religious schools (Article 22 of Law no. 1/2011). To facilitate the fulfillment of this obligation, the state provides free education. For the same purpose, through school in pre excluding post-secondary education, children benefit from state allowance for children, under the law (art. 17).

One of the parents' tasks is to choose a public or private school. When the child reaches the age of 6 or 7 years, the parents have a duty under the law on national education, to enroll the child in school, otherwise being liable to severe penalties. Obviously, these requirements do not exclude that sometimes parents want themselves to train their child at home; the direct transmission tradition of knowing is in the spirit of nature and of law. But this is an additional instruction, the enrollment in an educational institution is mandatory. Subject to legal requirements, which in our country refer to learning the Romanian language, parents are free to raise their children by teaching them one or more languages; this linguistic freedom is based on immemorial custom. Also taking into account the ethnic origin of children, the education can be conducted in languages of minority groups or other international languages.

The education and the training of children, young people and adults have as primary endpoint the skills' training, understood as a multifunction and transfer knowledge set of skills and abilities needed to: personal fulfillment and development by achieving one's own goals in life, as individual interests and aspirations and desire to learn throughout life; social integration and active citizen participation in society; forming a conception of life based on humanistic and scientific values, on the national and universal culture and fostering intercultural dialogue; the education for dignity, tolerance and respect for human rights and fundamental freedoms; growing sensitivity to human issues, to civic moral values and respect for nature and the natural environment, social and cultural (Article 4 of Law No. 1/2011).

From the age of 18, school education is no longer a legal obligation of the parents. But by this age, we consider that parents can compel children to complete compulsory education of 10 grades. Nonetheless, at the age of 14 years, the child may require his/her parents to change the way of teaching or training. If the parents do not comply, the child can go to a trustee court that shall judge upon a psychosocial investigation and the hearing of the minor (Article 498 of the Civil Code). If the child reached the full age, while during his/her studies, the parents are required to support the child up to the graduation, but not beyond the age of 26 years (Article 499 paragraph (3) Civil Code).

In case of separation or divorce, the right to education, school choice, and so on, is jointly for both of the parents. If, for good reason, the court determines that parental authority is exercised only by one of the parents, however, it shall be exercised subject to recognition in favor of the other parent of the right to control and supervise the manner of upbringing and education, and the right to consent to his/ her adoption (Article 398 of the Civil Code). We believe that the right of supervision for the parent who does not exercise parental authority implies the right to seek court intervention to correct the measures that might prove harmful to a minor. Thus, for example, in cases when the child would be educated in a religion, and the parent in whose care he or she is placed would enroll the child in a school where they teach another religion, or more, plans to change the religion of the minor, or if the child would enjoy excessive and inappropriate freedoms. But the judge should not interfere in everyday, minor matters. In general, these are not within his/ her reach. All these are to be taken into account when the separation de facto occurs, and the minor is entrusted into the care and education of the mother.

4. The Religious Instruction and Education

In a system as secular and pluralistic as ours, the parents are free to choose from the beginning their child's religion. (8) Article 491 paragraph (1) of Civil Code states in this regard that parents guide the child, according to his/her own convictions, in choosing a religion, under the law, taking into account the opinion, age and degree of maturity, without being able to force them to adhere to a particular religion or a particular religious cult. In this matter, the right is recognized only to parents and not a legal representative of the minor, e.g. a tutor. If the child is under a special protection measure (placement, emergency placement, specialized supervision) the person in whose care he/her is prohibited any action in influencing the religious beliefs of the child (Article 25 paragraph (4) of Law No. 272/2004). The child who has reached the age of 14, has the right to freely choose his/her religious confession (Article 492 paragraph (2) Civil Code). (9)

Regarding the confessional religious education in schools, Article 18 paragraph (1) of Law No. 1/2011 provides that the National Education Curricula of primary, secondary and vocational school has the discipline 'religion' as part of the core curriculum. The students belonging to religions cult recognized by the state, regardless of their number, are provided the constitutional right to participate at religion class, accordingly to their confession. But religion as a school discipline is not compulsory, the paragraph (2) of the same article states that upon written request of the full-ages pupil, or of the parents or legal guardian of the minor pupil, the pupil may not attend religion classes. In this case, the school records are closed without religion discipline. For the pupil who, under objective reasons, the school had not provided the possibility to attend classes for his/ her confession, the procedures are alike.

On this fundamental point, more than on others, delicate questions arise when between parents or between parents and children there is no understanding. The religious orientation of children is undoubtedly one of the essential attributes of parental authority: it is part of the right to education and moral training of the child. But its exercise involves a number of highly sensitive issues.

a) We consider firstly the normal assumption that there is no any disagreement between parents about the religion they want to educate their children in. In this case, however, there are situations in which, already having discernment, the children' religious conscience conflicts with their parents faith. (10) The parental authority exercise entails rights that are never absolute and cannot been exercised arbitrarily or abusively. The violation of a person's religious belief that, although before the age of 18 years, has full consciousness and judgment is undoubtedly an abuse. Therefore, in our law, as we have seen, it is recognized that children after the age of 14 years are able to choose freely their worship or religious confession. Instead, we believe that the parental decision to impose a religious education must be respected by the age of compulsory education, where the child would just turn to atheism. Indeed, this implies a negative attitude that is not fundamentally affected by the situation in which the preparation is carried out, for example, in a confessional unity. The atheist can be educated there, without suffering any moral damage. The situation is completely different where the child, already having chosen a faith is required to practice another.

b) Suppose now that there are differences between parents on religious education. In this type of conflict, to whom should be acknowledged the priority to father or mother holding the parental authority exercise? The answer can only be negative given equality of parents in exercising parental authority. Provisions of Article 486 Civil Code on disagreements between parents shall apply. This right is not absolute: one parent cannot, without the consent of the other, decide to initiate or educate the child in a religion other than the one they agreed upon or to terminate the child's religious education.

However, the limitations of the rights of parents to decide upon the religious education are highlighted especially when the minor wants to change the religion he/her was educated in his/her early years of life. If there is agreement between the parents and the child has not yet reached 14 years (or the child is of this age and (s)he agrees) there shall be no problem and the court trustee shall not have any hearings in the case. But the question must be raised if the parent holding parental authority can change the religion of his/her child despite the opposition from the other parent (legitimate or not) that does not have parental authority. This can happen if father or mother who has parental authority denied his/her former religion and embraced another. The doctrine and the jurisprudence tend to protect the minor's changes of religion, which can generate in his or her infantile mind, serious conflicts; the opposition of the other parent must be accepted by the judges. Similarly, if the child was educated in a particular religion by the deceased parent, it is necessary to deny the parent who assumes parental authority, at the moment of the other parent's death the right to change the child's religion. These solutions mean the consecration of what is called as the immutability over the minors' religion right, which may have one exception, where both parents would decide upon mutual agreement for a child up to 14 years. After this age, however, in all cases, the child must consent to the change of religion.

c) The enrollment in closed religious orders. An interesting problem, at least in theory, is the closed religious orders enrollment of minors aged between 14 and 18 years. (11) The question is: given that the child is still under the parental authority protection, may the parents prohibit the minor to enter a monastic order? Or, if the child entered one against his/ her parents will, can the parents object to this?

If we consider Article 495 paragraph (1) provisions which give parents the right to ask the court to return the child from any person has no right upon the child and those provided in Article 262 paragraph (1) according to which, the child cannot be separated from his/her parents without their permission (except where required by law) we might incline to say that parents, from this perspective, may oppose to the entry of the minor in a closed religious order. Another argument in supporting this assertion would be the provisions of Article 483 paragraph (1) Civil Code in fine and Article 503 paragraph (1) Civil Code, stating that parents exercise parental authority together, they having the right and duty to raise the child (Article 487 of the Civil Code) and they are the ones responsible for their minor child (Article 483 paragraph (3) Civil Code); or, those powers should be canceled if the child was enrolled in a religious community against his/her will.

In fact, these discussions were exposed only in theory because the status of the Organization and Functioning of the Romanian Orthodox Church (GD No. 53 of 16 January 2008), Article 78 provides: "(1) Receiving to the monastery of those who wish to enter the monasticism is made upon the written request of the applicant, the recommendation of the confessor and abbot and with the approval of the Hierarch. (2) The minimum age for admission to the monastery as a novice, is 18 years. Under this age, but not more than 16 years, it is required the written consent of the parents or legal guardians. It is also prohibited the promotion to monastic grades to those with family responsibilities and obligations or prosecuted."

But would the vice versa situation be possible? In other words, would parents be able to force their child to enter a religious order? In this case, the answer is definitely negative. Despite the right of the parents to educate their children, they still could not force them to enter a religious order. This claim should be rejected in the light of the constitutional guarantee of freedom of conscience and worship.

REFERENCES

(1.) The present paper reiterates the provisions of Article 101 paragraph (2) Family Code, with the difference, that according to new civil code, the upbringing of a child does not constitute an obligation but a right of parents.

(2.) Albu, I. (1975), Dreptul familiei. Bucharest: Didactica si Pedagogica, 317 et seq.

(3.) Recently, an author has held the following rights and obligations of parents when upbringing a child: the right and obligation to hold and support, to guide and to survey the minor (Florian, E. (2011), Dreptul familiei--in reglementarea NCC, Bucuresti: C.H. Beck, 288 et seq.). For a different opinion on these rights and obligations, see Popescu, T. R. (1965), Tratat de dreptul familiei Bucharest: Didactica si Pedagogica, 281 et seq; Ionascu, A. Murescan, M. M. Costin N., Ursa, V. (1980), Filiatia si ocrotirea minorilor. Cluj-Napoca: Dacia, 207 et seq; Filipescu, I.P., A. I. Filipescu (2006), Tratat de dreptul familiei. Bucharest: Universul Juridic, 507 et seq; Bodoasca, T. (2005), Dreptul familiei. Bucharest: All Beck, 146 et seq; Bacaci, Al., V. Dumitrache, C. Hageanu (2006), Dreptul familiei. Bucharest: C.H. Beck, 289 et seq, Ungureanu, O., C. Munteanu (2013), Drept civil. Persoanele--in reglementarea noului Cod civil. Bucharest: Hamangiu, 262 et seq; Oprescu, M.A. (2010), Ocrotirea parinteasca. Bucharest: Hamangiu, 117 et seq. It should be noted that in substance between the opinions expressed there is no difference in terms of actual content of parental rights and duties regarding the person of the child, but rather, the differences appear in the way of systematizing them and how they are set forth. It should be noted that not all the rights that parents have towards their children enter the content of the concept of "parental rights" by which the parental authority may be exercised, for example, the right of the parent to inherit the minor child, which creates some parental benefits.

(4.) For the French law, see Terre, Fr., D. Fenouillet (2005), Droit civil. Les personnes. La famille. Les incapacites. Paris: Dalloz, 337-368; Buffelan-Lanore, Y. (2005), Droit civil. Premiere annee. 14-e edition, Paris: Armand Colin, 271-333; Voirin, P. Goubeaux, D. (2003), Droit civil. Personnes-Famille. Incapacites-Biens. Obligation-Suretes. Tom I, 29-e edition. Paris: LGDJ, 185-197; Cornu, G. (2003), Droit civil. La famille. Paris: Montchrestien, 141-192; Gare, T. (1998), Droit des personnes et de la famille. Paris: Montchrestien, 43; Courbe, P. (2005), Droit civil. Les personnes. La famille. Les incapacites. 5-e edition, Paris: Dalloz, 179-185;

(5.) The latest revelations of our media, based on some statistics, read that children begin their sexual life at the age of 10 years associated with tobacco and drink.

(6.) Among the principles that govern the educational system in Romania we mention: the principle of equity concerning access to education without any discrimination; the relevance principle, under which the education answers the personal development and socio-economic needs; the principle of guaranteeing all Romanian citizens the cultural identity and intercultural dialogue; the principle of ownership, promotion and preservation of national identity and cultural values of the Romanian people; the recognition of the principle and the guarantee of the rights of persons belonging to national minorities to preserve, develop and express their ethnic, cultural, linguistic and religious identities; the principle of freedom of thought and independence of ideology, religious dogma and political doctrines; the principle of focusing the education on its recipients; the principle of participation and responsibility of parents; the organizing principle of religious education according to the specific requirements of each recognized confession; the principle of the right to opinion of the pupil as a direct beneficiary of the education system (Article 3, Law No. 1/2011).

(7.) Published in OG of Romania, Parte 1, No. 18 of 10 January 2011 amended and added by Law No. 166 of 5 October 2011; Law No. 283 of 14 December 2011; UGO No. 21 of 30 May 2012; UGO No. 84 of 12 December 2012; UGO No. 92 of 18 December 2012. Article 2 of the law stipulates that Romanian school's educational ideal is the free, full and harmonious development of human individuality, personality formation and autonomous in taking a system of values that are necessary for personal fulfillment and development, entrepreneurship development, for active citizen participation in society, social inclusion and employability [paragraph (3)]; the state ensures Romanian citizens equal access to all levels and forms of education and higher education and lifelong learning without any form of discrimination [paragraph (4)] and paragraph (6) provides that the rights referred to in paragraph (4) are recognized equally to minors seeking or have obtained a form of protection in Romania, foreign minors and stateless persons minors whose stay in Romania is officially recognized by law. Also Article 12 stipulates that the State guarantees the right to education of all the persons with special educational needs. Special education and special are integrated part of the national education system pre par. Special education at special integrated school is a form of differentiated instruction, adapted as a form of educational, social and medical assistance, complex for people with special educational needs [paragraph (6) and (7)]

(8.) Article 15 paragraph (2) of Law No. 1/2011 of the National Education provides the authorized religious confession, the right to organize religious education by setting up and managing their own units and private educational institutions, according to the present law.

(9.) Article 25 paragraph (3) of Law No. 272/2004 provides that when the child is 16 he/she has the right to choose his/ her religion. This text was repealed by Law No. 17/2011 on implementation of the new Civil Code.

In other countries, systems of law set forth the so-called 'religious pre full age' or 'anticipated full age' but the age when children can choose their own religious differ from legislation to legislation. For example, the French law does not know the nuances introduced by some foreign laws, on the topic related to consciousness in the relationship between parents and children. Various laws provide early religious majority (16 years in Switzerland, 12 years in England, 10 to 14 years in Germany, according to some complex combinations according to Lander).

(10.) The French jurisprudence has registered an interesting case. A 17 year-old Jewish girl embraced the Catholic religion and had to be baptized, sheltering herself in an institution of this cult. Her parents asked their daughter to return home. But the court rejected the claim "until they promise that would allow the child to practice the Catholic religion" based on the freedom of religion guaranteed by the National Constitution. We believe that the judgment in this case was prudent.

(11.) In French law the former Article 275 expressly provided that the inclusion of children in religious orders could not be closed without parental permission. The new Article 275 (Law 23.264) does not expressly provide this matter; it limits its provisions to that children cannot leave the family home without parental permission, which involves automatically the prohibition of joining closed religious communities without such permission.

CORNELIA MUNTEANU

munteancomelia@ymail.com

Lucian Blaga University, Sibiu
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Author:Munteanu, Cornelia
Publication:Contemporary Readings in Law and Social Justice
Article Type:Report
Geographic Code:4EXRO
Date:Jan 1, 2014
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