Maksym Yurchenko[1]

Attorney, Family and Personality Protection Society, Ukrania

  

Protecting a child's rights in the context of forming his belief system

  

For a full understanding of the problem cited in the title of this presentation, we have to go through several stages.

 

To begin with, we examine the issues connected with the current definition of the term "human rights" in general and the human right to freedom of conscience and freedom of religious belief in particular. Then we will examine peculiarities that arise during the realization of children's rights in the context of the human right to freedom of conscience and of religious belief. Finally we will show complex, striking instances that arise during the practical implementation of these rights in forming a child's system of belief, taking into account the special position it acquires in the system of law and social relations.

 

As concerns the term "human rights," mankind came a long way, abounded with trial and error, before universal recognition of human rights became a reality. That achievement was gained at great cost and, as with any victory made at great sacrifice, over time it was put into the category of sacred. Any attempt to learn the real scope and mutual influence of these rights on each other, very often meets with a hostile reception and labels of "encroachment on human rights."

 

It is known, however, that rights do not exist without responsibilities, otherwise society would be overtaken by chaos and anarchy. Such a universal responsibility is the prevention of discriminatory encroachment by one group of human rights in the area where another operates. In other words, it is not permissible to raise any given right to an absolute power, turning it into a standard all other human rights must be up to. In such a case that “standard right” will certainly enter the sphere of social interests guarded by another right and will provoke a "conflict of interests."

So, any elevation of one right over the others leads to their debilitation, and the danger arises that the principles of justice and harmony will be breached. This is why it's necessary to define real limits of existence for any particular human right in its interactions with other basic fundamental human rights.

 

It's essential to recognize that the categories of good and bad are relative categories and, correspondingly, any given principles and rights cannot be absolutes. They have to be examined from the viewpoints of advantage and harm, and of safety and danger for the development of society. Dogma (by its determination) cannot be a condition for the development.

 

There is also the peculiarity that European society, on one hand, bases its development on securing diversity and stability for the historical, cultural traditions of European countries, and on the other hand, is in a state of social and economic flux. Such matter of things influences the understanding of a term "human rights" and puts forward new demands to its context. It should be concurrently stable and dynamic. The expansion of its significance and interpretation should occur properly on the basis of continuous learning of new terms and realities that emerge in the routine human activity with due regard to the cultural and legal traditions of specific European nations. Recall Jefferson's words that “the price of freedom is eternal vigilance”.

 

I, as an attorney and legal consultant for the Family and Personality Protection Society, have often happened to run into a legal dispute that began during the defense of human rights in the context of civil legal proceedings. It needs to be noted that this is a very complex and crucial part of legal practice for an attorney, because it is connected with many aspects of human activity; it is complex and not precisely regulated in either national or international legislation. Despite all the discussion about the necessity of protecting human rights, today the practical resolution of any particular problem largely depends on the opinions and ideas of the person who interprets and carries out the resolution.

 

The most acute problem of violating the limit of one right with another is seen in implementing the rights of freedom of conscience and of religious belief and the rights of children guaranteeing them security and a safe environment. The importance of this issue is unequivocal, because nonobservance of the first group of human rights has caused people a great deal of war and distress, while nonobservance of the second casts the existence and development of society into a doubt.

 

These rights are spelled out in detail in the following international documents:

articles 2, 18, 19, 29 of the General Declaration of Human Rights (1948)

articles 9, 14 of the Convention for the Protection of Rights and Basic Human Freedoms (1950) articles 2, 5, 14, 18, 19, 32 of the UN Convention on Children's Rights (1989). At first glance, we see here an exhaustive explanation of human rights and in particular of children's rights, but in practice everything is not that simple. In recent times a position has been persistently formed in world society that leads the group of human rights to freedom of conscience and of religious belief to play a dominative role in social life. The practical concept of this sort of position comes to the demand for the removal and weakening, up to the point of complete elimination, of governmental and state control over the process of functioning and registration of religious organizations.

 

On the one hand, such a position is plain and clear because it proceeds directly from human rights in any form of belief. Therefore an attempt to introduce limitation or control cannot be perceived as other than an encroachment upon the intrinsically spiritual world of an individual. On the other hand, this model of the human social system is presented in the form of an abstract unit, consisting of a fully formed individual who has an established opinion of good and bad, recognizes the meaning of his existence and is in charge of his own life at his own discretion.

 

Real society, unfortunately, does not on the whole consist of individuals who correspond to the criteria above specified. One of the most populous categories of people who are limited in the ability to realization of their numerous rights are children. The issue is not about children's rights as such, but about the possibility of them using their rights, in other words, consciously making a choice.

The ability and possibility to make a conscious choice is the Alfa and the Omega of a contemporary democratic society. Without that no person is a social unit, but simply a protoplasm or a sort of "Buridan's Ass," whose unenviable fate is to starve to death (due to an inability to make a decision) between two bundles of hay. But a choice is impossible to make without information and the practical skill to process and use this information.

 

The cognitive resources of children and adults are of two incomparable magnitudes. From the time they are born, children depend upon adults for all their needs and it is a long time before they learn. How parents answer the needs and wants of the children and how they react to their expressions have a profound impact as to process of forming their system of belief about their environment and about themselves. During this time many negative impressions are formed because the children still do not possess the skill of rejecting that which presents a harm to them. They absorb everything that comes from those close to them, who they believe or want to believe, whom their lives depend upon. In general context, a child, besides parents or people who are substitutes for them, depends on the social environment presented by its social and state institutions.

 

Such a specific social and psychological status of a child puts special responsibility upon society and the state to protect the child’s rights. It is a general understanding and approach that an effective mechanism to protect children's rights should include at a minimum two elements: setting children's rights into the national legislative system and determining the corresponding state organs to control and protect children's rights from encroachment, both from the people in their immediate vicinity, meaning their parents or parental substitutes, and from state, religious or other organizations.

 

Ukraine went on that way. Children's rights were established in Ukraine by incorporating the UN Convention of Children's Rights into national legislation, and in essence are reflected in such national laws as "Protection of children", "Preventing violence in the family" and in the Family and Civil Code of Laws. State institutions to protect children's rights are also available. They are organs of guardianship, agencies for juvenile affairs in each region and juvenile police.

 

In the ideal case this whole mechanism was created to react in a timely manner to any encroachment upon children's rights with the goal of preventing, warding off and rendering ineffective any harmful consequences to the child’s interests and healthy development. But in practice everything is a little more complicated, because a violation of children's rights is established and associated only with a direct act of violence. Such incidents of violence, that are concealed from the eyes (for example: psychological violence) remain latent and beyond the corresponding reaction of state enforcement.

 

Our experience shows us that a violation of children's rights in freedom of conscience is closely connected with a violation of their other rights and often represents a threat to their health. This is particularly evident when examining the activities of totalitarian cults and destructive trends.

  

In a special category is the case of children who run into a cult that is destructive, without informing their parents, guardians or the appropriate state agency, and without a clear understanding of what happens in these religious organizations.

 

In November 2005, for example, the Family and Personality Protection Society received news from several sources about the exploitation of homeless children during construction of offices for one of the charismatic religious organizations that had nearly 2,000 parishioners. As a result we found out that under the camouflage of carrying out charitable activity to render aid to homeless children at the city railroad station, 12 juveniles of different ages and genders had been gathered by that sect recruiters. Later the cult managers offered them lodging and free food in a cult building. Perhaps it could be said that the children were lucky. However, not everything turned out so simply.

 

Together with the local enthusiasts we initiated a review of that affair by the city and district agency of juvenile affairs into all the statements and facts. The bell rang when the leading pastor of that cult did not show up at the meeting with the inspectors, but instead talked to them over the telephone; the inspectors failed to meet with the children as the cult followers demanded them to leave the territory of a cult building with no delay on the pretext they felt their rights to religious believes had been violating by that inspection.

 

The further investigation resulted in establishing the facts that children had been used during cult service for collecting additional donations from the parishioners, for showing a charitable trend in the cult's activity, and promotion to get a plot of land from the local authorities to build a new cult building. During the services the cult leaders emphasized on the difficult living conditions of those homeless children, and particular attention was given to violence among them, especially related to sex abuse. The common practice was to focus the audience on a particular victim of sex abuse, putting him or her in a spot of attention. The stories of rape could be several times repeated during the service in order to highlight and dramatize victim’s pain, fear and despair. Before the children were brought out on the stage, they had been given a good looking clothes to put on that they had to give back after sermon was over. A mandatory condition for food and lodging was active participation in the religious life of the cult; getting up at 5:30 a.m. to attend the morning service, then work as unskilled hands at the construction site of a cult’s administrative buildings, noon service, work, evening service, etc.

 

In this way the children's religious beliefs were formed without corresponding parental or guardian permission. As a result the children lacked interest in studying and in their future (because "the world would collapse soon), became apathetic or were excessively aggressive with regard to the environment outside the cult, and so forth.

 

A more detailed study of documents and activities uncovered other violations of law by this cult. We initiated the expert assessment, which was conducted by experts of the State Institute for Problems of Family and Youth under the auspices of the Department for Family, Youth and Sports Activities of Ukraine. It has established the fact that methods of psychological pressure were being used, and that the consciousness of cult followers was being manipulated during church services.

In our opinion, this case revealed the tendency that cults being left on their own (in terms without duly control from public opinion and state organs) might actively resort to deception and breach of laws to pursue their mercantile goals. The cults tend to wear a mask of a public organization that cares for the society, wants to fight its evil but in fact will exploit society's social problems to their best benefits.

 

No charity is meant. To the contrary, the goals pursued include receiving definite property privileges from the local authorities, wide social recognition as a socially approved organization, getting away from the possibility of criticism, attracting additional donations from their followers under a mask of philanthropy to children, and the prospect of more and easier recruitment of new adepts. The given situation features nothing but cult management greatly exploiting the children, who in return for this exploitation receive a bowl of soup.

 

The absence of a timely reaction from the state institutions to the revealed facts of children's rights violations in that religious cult seems to be a typical enough situation. In our opinion this attitude has several causes.

 

First, state organs prefer to initiate a criminal or rights violation case when it is of a clear-cut character, and the activities have already been set up in the public awareness under a negative psychological label. For example, in cases of physical or sexual violence, or of inveigling minors into vagrancy, begging, consumption of alcohol, drugs, etc. But the system of timely protection does not work when the harm that affects the child's physical and psychological health is not of an obvious character and it is difficult or impossible to establish it by objective means of determination.

 

Second, a legal regulating procedure is lacking to ward off this type of psychological violence. Also lacking are: a legal definition of a destructive cult and of the negative consequences, primarily, upon the health of the minors cult followers. Along with that, there is an insufficient number of experts capable of discovering, classifying and documenting that sort of damage.

 

Third, when the situation depicted is encountered by the officers of the law enforcement organs or child guardianship organs, they get puzzled with its dualistic nature. On the one hand, the children's rights might have been violated and it is necessary to react in a proper way to restore them, but on the other hand, i.e. on the part of the offenders, no oppressor or maniac exists except the parents, guardian or organization whose activities are under the auspice of the human rights of freedom of conscience and of religious belief. The paradox of the situation is that both these rights have positive labels, but in the given situation they confront and oppose each other. It's necessary for them to choose one principle of the two and say it is evil. An official makes this kind of choice neither with an insufficiency of a set up regulation for that type of situations, nor with a fear of violating the religious rights of a cult, of getting into the annual "International Religious Freedom Report, released by the Bureau of Democracy, Human Rights and Labor", and thus destroying the reputation of the country and ruining his career. Such fears cause the real goals of the cult, as the economic, social, sexual and physical exploitation of its followers, to remain beyond the due official attention and investigation. It is easier to leave a skeleton in a wardrobe.

 

In the case of minors, their right to freedom of conscience is completely under the control of parents or legal guardians. According to law, they not only have the right but the obligation to watch what the religion is practiced by the minors in their custody, as well as to develop their personal systems of belief.

 

Problems arise when the parents or guardians of the children are members of a destructive cult. In the case of their mutual, active participation in the cult's operations, the children have practically no chance to get help or protection from outside. But even if one of the parents falls under the cult's influence, this is often enough to endanger the child's previous path of development.

 

This is often connected with the fact that after being recruited into the cult, one of the parents is often urged to actively recruit the remaining members of the family. Fairly often this leads to opposition within the family and its subsequent break-up. If the family has children, then the cult member, as a rule, starts to fight for gaining custody and residence privileges to the children. Having failed with his spouse, he directs his energy to the "easy" acquisition of one more person. It is a common understanding, that the child will bind a newcomer to the cult with the ties stronger than ropes. It is a good chance for the cult to vividly demonstrate its power in resolving the routine problem of its new follower. Therefore, in this state of opposition inside the family the cult actively supports its follower, giving him psychological and material aid. In case this process ends in their favor, the cult will gain a practically boundless chance to influence the child, both directly and through the cult-member-parent, in order to exploit him as well.

 

So that my words do not sound hollow, I'll give the examples taken from real cases examined in the Ukrainian courts or due to be examined in the near future. Relatively, the cases can be divided into several categories.

 

In the small Ukrainian city a father went to a charismatic church and just in two years became one of its most zealous admirers. His wife did not fall for his recruitment, and, in the very beginning, considered it as a kind of eccentric but burdensome circumstance for the family. And nothing more than that. With the time passed, they ended up losing almost all their friends and ceasing the relations with the relatives from both sides. But in a small city this sort of isolation has essentially influenced negatively the quality of their life. Having failed to bring his wife into the church, the husband began to "spiritually" nourish the 4-year-old son; he constantly brought him to church services, made him pray for a long time and put him on a strict fast. After several months of this the child became apathetic, timid and lost, and was emotionally estranged from his mother, who he associated with some sort of danger ("shame, that the devil speaks for you" "ask God and you will become like papa.") The woman asked for a divorce and for custody of her son. The court granted her request.

 

From the legal point of view, that case was the simplest. While examining it the court went the traditional way, as in the Ukraine the prevailing public opinion is that in a divorce the child would rather be with the mother than the father. The father had no serious legal argument, since he gave practically all his salary to the cult for a promise of becoming a pastor, and the court, taking into account the child's minor age, did not ask the child’s opinion.

The second category of cases is more complicated. After the divorce, by mutual agreement, the child was to live with his mother, while the father moved to another city, where he made a new family. Several years went by during which time the father contributed practically no attention to the son's upbringing and did not associate with him. Once the boy turned ten years old, he started to associate with his father and, with his mother's consent, went to visit him. Upon his return home the boy enthusiastically told his mother about having gotten some of his father's special knowledge. The mother did not have enough information about the cult, which in that case was Scientology, and she let the son associate with the father.

It concluded with the son running away to the father. The boy was detained in the police station, where he said he did not want to live with his mother, but with his father. The police and the state office for juvenile affairs took the traditional approach and did not investigate the incident, but regarded it as a family conflict. They let the father, who came for him, take the son without permission from the mother. Now the case is clogged with new facts, reciprocal complains and is at this moment being examined in the courts with very bleak chances for the child’s mother to win the custody.

 

The third category is the most complicated with a situation that is not already in the traditional framework. For example, when the mother is attracted to a cult's activity, but the father opposes it. In this sort of case, where the father finds the strength in himself to go to the defense of his children and use the court to try to establish the custody, is for the time being very, very rare.

 

In one of such cases, for instance, a woman became a cult active practitioner in one of the charismatic churches. After the divorce both daughters remained with her to live, during which time the father accepted the state of affairs as proper, and he continued to take part in their upbringing and visited them frequently. With grave anxiety he watched as the mother started to acquaint their daughters with the activities of the church she went to.

 

Those activities included: the regular and excessively abundant attendance at church services, selection of a school for the girls to study where the cult members worked as professors, a complete substitution of the girls' close environment, limitation and direct banning for the contacts with the relatives, nap time to the accompaniment of taped cult sermons and so forth. Having gathered enough information and rating it negative, the father made a decision to begin the fight for his daughters. The sole chance of getting approval from the court for the custody was to submit a hard evidence of real harm to the girls' psychic health as a result of their participation in cult activities.

 

Examination of the above examples allows the following conclusions to be made:

 

It's necessary to very carefully and distinctly approach a case of violation in the sphere of realizing the human right of freedom of conscience.

to take into consideration the peculiarities of a functioning cult, in particular in cases of its encroachment on other rights and human freedoms.

to give a precise assessment of this encroachment, not to let a human right be used as a shield for destructive activity.

 

A peculiarity of state legal reaction to violation of rights of children who have contact with destructive and pseudo-religious cults is that it, in the person of its authorized organs, mainly reacts to the occurred facts of children's rights violations. Such an approach "by fact," and not prevention has a particularly negative consequence as the topic is children, their psychic and physical health. In practice it turns out that the harm begins, then the state starts to react, and results are not always predictable. Thus, both international acts that have been created to protect children's rights and the local national system of legislature that is also meant to protect children loose their significance.

 

Latent score of violation of children's rights upon the sound, healthy physical and psychic development during their contact with a cult has a frightening dimension. Spiritual aspirations, of course, are inherent to all of us; they are not a manifestation of vogue, but develop more strongly for a period, during which time such religious feelings can be exploited. In the case of applying the right of freedom of conscience to minors, the state needs to take a firm position on protecting their basic rights, and not the parents' opinion. Those postulates that remain unshakable for adults (in the view of protecting mainly their right to freedom of belief), must be transformed for children and supplemented by the advantage of securing their safe development.

 

Translator’s note:

The word for "cult" in the popular English meaning is “secte” (French). On the other hand, I have not used the word “sect” or “sectarian” as it could be interpreted in English as having a religious bias.

 



[1] Mr. Yurchenko was not present at the Conference not having obtained a visa for Belgium