Tom Cruise Divorce - Can parents dictate what religion a child should adopt?

2012-07-03 12:18

Katie Holmes (Cruise) filed for divorce in a New York court last week after being married to Tom for five years, and they are expected to clash about how 6 year old Suri their minor child is brought up, with the 49-year-old actor adamant she remains part of the Scientology religion he is part of. We all know that Tom Cruise is incredibly passionate about Scientology and that this isn’t just some hobby for him. According to reports he truly believes in the church and its teachings and truly believes that it is imperative that his children are raised as Scientologists. Tom believes Scientology changes people’s lives for the better and, obviously, he wants what is best for his children.

The media frenzy about the divorce between Tom Cruise and Katy Holmes prompted two interesting questions in South Africa law, namely what if parents can’t agree on the spiritual upbringing of their child? and what if a child disagree with their parents religion or traditional socio-cultural beliefs?

There has been a dramatic shift during the twentieth century in the law regarding the relationship between parents and their children, both internationally and in South Africa. In the past there was an emphasis on the rights and powers of parents (termed parental authority), but this emphasis moved towards a more child-centred approach with the best interest of children at the forefront. Today parental authority is concerned more with parental responsibilities and duties, which should be exercised in the best interest of children, rather than with parental rights and powers. The Constitution of the Republic of South Africa specifically protects the rights of children in that it recognises that children, as a vulnerable group within society, have specific and unique interests different from those of adults, and that these interests deserve special and separate protection.

The question regarding religion within the family relationship has been dealt with in 2001 in the case of Allsop v McCann. In this matter the custodian parent applied for an interdict to restrict the minor children in certain religious practices whilst in the non-custodian parent’s care. The custodian parent was from the Anglican denomination and the non-custodian parent from the Roman Catholic denomination. The custodian parent sought an interdict from preventing the children from attending the Catholic Church. The court held that the custodian parent (the parent who has primary care of the children) is entitled and required to direct the daily lives of the children and that educational, religious and secular activities fall within that duty. However the court ruled that neither parent may dictate what religion, if any, their children eventually adopt, but each parent is entitled to provide religious instruction. The application was accordingly dismissed.

In 2003 in the case of Kotze v Kotze the court refused to incorporate into a settlement agreement a provision which stated that both parties undertook to educate the child in the Apostolic Faith Church. The court, being the upper guardian in matters involving the best interests of a child, has extremely wide powers in establishing what such interests are. It was held that the clause was not in the best interest of the child as it did not afford him the freedom of religion that he was entitled to.

Recognising that children are the holders of fundamental rights may conflict with the rights of other holders of human rights especially within the family context, where different fundamental rights can come into conflict with one another, for instance between the parents’ right to religious freedom and their children’s rights to life and human dignity. This requires a weighing or balancing act to determine which right must take preference. This balancing of interests often creates tension, which can have serious negative implications for those involved within the family context.

In a ground-breaking case not so long ago the Western Cape High Court was requested for the first time to use its discretion to interfere in the parent-child relationship, due to the “traditional socio-cultural beliefs” of the parents. In what has been described as “every parent’s nightmare; the fancy of many teenagers”, a 16 year-old schoolgirl from the Western Cape asked to be “freed” from her parents to live semi-independently from them because of her unhappiness with the conservative manner in which her parents treated her. According to reports her parents came from a very conservative sector of South African society and kept her under constant supervision, barred her from talking to boys, communicating with friends on her mobile phone, reading what she likes (her parents found Harry Potter inappropriate) or even going out with friends after school.

The court granted her request to live semi-independently with a school friend and her family (referred to by the judge the host family) until she reaches the age of 18 (her majority). It was further ordered that the parents could have contact with her for two to three hours a week at a neutral venue and could phone her between 8:00 and 8:30 pm on a Tuesday and Friday. Holidays were shared between the host family and her parents. Despite the fact that the child no longer resided with her parents, the parents retained their responsibility to contribute to the maintenance of their child.

When parents are acting within the law, even though they are seen to be conservative, and their actions don't reflect any form of abuse or neglect, their responsibilities and rights must take preference above the rights of their children, for without this kind of recognition the value of the traditional family unit as the natural and fundamental unit of our society will not be recognised. A child’s mere dislike or disapproval and personal preferences in their upbringing cannot alone tip the scales of justice in a child's favour.

The relationship between parents and their children is very personal in nature. This domain forms part of the world of morality and not even the state should interfere unless the parents’ conduct towards the child is harmful or amounts to unlawfulness. When the conduct is not in the best interests of the child or contravenes constitutional rights, such conduct is inconsistent with the principles of the Constitution and thus invalid.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc. Cape Town

021 422 1323

Twitter: bertuspreller

Join the conversation!

24.com encourages commentary submitted via MyNews24. Contributions of 200 words or more will be considered for publication.

We reserve editorial discretion to decide what will be published.
Read our comments policy for guidelines on contributions.
NEXT ON NEWS24X

AB praises selfless skipper

2010-11-21 18:15

Inside News24

 
/News
Traffic Alerts
There are new stories on the homepage. Click here to see them.
 
English
Afrikaans
isiZulu

Hello 

Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.


Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire 24.com network.

Settings

Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.




Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.