Published on 8 December 2025
FIFTH SECTION
Application no. 18193/24
D.H. and E.H.
against Spain
lodged on 19 June 2024
communicated on 19 November 2025
SUBJECT MATTER OF THE CASE
The first applicant and N.C. had the shared custody of their daughter, the second applicant, who was born on 10 April 2015. They divorced soon after the child had been born. In the summer of 2018, the mother, N.C. registered the child for her first school year in a public non-confessional school (colegio no confesional), against the views of the father (the first applicant), who wanted to ensure the child’s education in a private religious school.
The first applicant initiated non-contentious proceedings on the grounds of disagreement in the exercise of the parental authority (procedimiento de jurisdicción voluntaria de intervención judicial por desacuerdos en el ejercicio de la patria potestad) concerning the choice of school. In December 2018, the court decided that for the first school year, it was in the child’s best interest to stay in the public school she had been registered in.
In the summer of 2019, the first applicant started the same type of proceedings for the following school year. On 23 July 2019 a first instance court decided in favour of the first applicant, because the private religious school preferred by him had better facilities besides the religious education, and this was considered to be in the child’s best interest. The court of appeal upheld the decision on 21 May 2021.
N.C. brought amparo appeal proceedings against these decisions.
From September 2019 the second applicant started attending the private religious school.
On 14 February 2024 the plenary of the Constitutional Court held that the instance courts had evaded the main legal issue, which was a disagreement over the parents’ religious convictions and whether the child should attend a religious or a non-confessional school. It observed that the religious component pervaded all the educational, pedagogical and methodological aspects of the private school proposed by the first applicant. It recalled that the child, despite her young age, also enjoyed freedom of religion and that the Spanish State was non-confessional, according to Article 16.3 of the Constitution. The Constitutional Court concluded that the case revealed an irreconcilable disagreement between the mother’s non-confessional convictions and the first applicant’s religious convictions. In this situation, the best interest of a child who is not mature enough to express her own religious convictions, was to be educated in a neutral environment. For the Constitutional Court, such an environment was provided in a public non-confessional school. It concluded that by having evaded the main fundamental rights at issue, the lower courts had breached N.C.’s fundamental right to bring up the child in line with her own religious or philosophical convictions. It further annulled the decisions of 23 July 2019 and 21 May 2021 ordering the restoration of the proceedings.
The applicants complain that the Constitutional Court’s decision amounted to a violation of their rights to respect for family/private life under Article 8 and their freedom of religion under Article 9, both read alone and in connection with Article 14 of the Convention. In the latter respect, they allege a disproportionate and unnecessary difference in treatment between the parents, based on religious beliefs. In addition, they complain that the State did not respect the right to ensure the second applicant’s education in conformity with the first applicant’s own religious convictions protected under Article 2 of Protocol No. 1.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, considering the first applicant’s procedural position as a respondent party in the amparo appeal proceedings, and in view of the Constitutional Court’s ordering of restoration of proceedings, did the applicants raise before the national authorities, at least in substance, the rights on which they now wish to rely before the Court?
2. Taking into consideration the context of irreconcilable parental disagreement that was decided on by the domestic courts, has there been an interference with the applicants’ private or family life within the meaning of Article 8 of the Convention (see Abdi Ibrahim v. Norway [GC], no. 15379/16, §§ 140-143, 10 December 2021)? If so, has there been a violation of the applicants’ right to respect for private or family life contrary to Article 8 of the Convention? In particular, did the domestic courts examine the entire family situation and the best interest of the child with sufficient thoroughness, striking a fair balance between the different interests involved?
3. Has there been an interference with the applicants’ freedom of religion, within the meaning of Article 9 § 1 of the Convention? In particular, was the choice of school a manifestation of the first applicant’s freedom of religion within the meaning of this provision? If so, was that interference necessary in terms of Article 9 § 2? Did the Constitutional Court’s identifying of the non-confessional nature of the State with the concept of neutrality in public education, and this in a dispute between private parties, amount to a disproportionate interference with the applicants’ freedom of religion?
4. Did the course of action taken by the national authorities amount to discrimination prohibited by Article 14 read in conjunction with Article 8 or Article 9 of the Convention?
5. Were the decisions of the national authorities issued in the exercise of the State functions in relation to education and to teaching (see Folgerø and Others v. Norway [GC], no. 15472/02, § 84, ECHR 2007-III and Lautsi and Others v. Italy [GC], no. 30814/06, § 63, ECHR 2011 (extracts))? If so, has there been a breach of the State’s obligation to respect the first applicant’s right under Article 2 of Protocol No. 1 to ensure his child’s education in conformity with his religious and philosophical convictions (see Lautsi and Others, cited above, § 61)? Was the registration in a public school without any religious education imposed by the Constitutional Court compatible with the applicant’s right under Article 2 of Protocol No. 1?
6. The applicants are requested to produce copies of any decisions delivered in the proceedings issued after the Constitutional Court’s judgment of 14 February 2024. They are also requested to submit updated information concerning which type of school the second applicant has attended from that date on and whether she has been receiving any religious education.