THE CASE AGAINST CHALON-SUR-SAÔNE

At the start of the school year in 2015, the Republican mayor of Chalon-sur-Saône presented a proposal to the city council for the discontinuation of alternative, pork-free lunches in school canteens.Footnote ⁴ These alternative meals (plats de substitution) had been in place since 1984 to accommodate Muslim and Jewish objection to meals containing pork. The proposal was adopted by a large majority. Yet the new regulation was promptly challenged by two Muslim organisations who equally sought to obtain interim injunctions to eliminate its effect. Those injunctions were not granted by the Dijon Administrative Tribunal.Footnote ⁵ However, in August 2017 the same tribunal found against the municipality in the main proceedings.Footnote ⁶

The main proceedings in question took the form of an administrative appeal based on fundamental rights, similar to a judicial review under English law. The applicants took the conventional route, arguing that the discontinuance of alternative meals violated freedom of religion under both national and international law (the latter made possible because of France's monist system).Footnote ⁷ They relied in particular on Article 9 of the 1789 Declaration of the Rights of Man and of the Citizen (Déclaration des droits de l'homme et du citoyen) (freedom of thought), Article 1 of the 1905 law on the separation of Church and State (freedom of conscience and manifestation), Article 18 of the International Covenant on Civil and Political Rights (freedom of religion and manifestation), Article 9 of the European Convention on Human Rights (ECHR) (freedom of religion and manifestation) and Article of the 10 Charter of Fundamental Rights of the European Union (freedom of religion and manifestation). In response, the municipality argued on the tested principles of laïcité and equality, the latter because schools tended to separate pupils on the basis of their meal to facilitate a quick distribution.Footnote ⁸ On the face of it, the application appeared doomed from the start. Since the second ‘headscarf-affair’,Footnote ⁹ numerous applications had followed the same set of reasoning and in every single one of them the French courts had held that the principles of laïcité and equality could justifiably limit religious manifestations within the educational context.Footnote ¹⁰ Having further received the backing of the European Court of Human Rights (ECtHR) on the matter,Footnote ¹¹ it was highly unlikely that the Administrative Tribunal would find for the plaintiffs.

Before pronouncing itself on the matter, however, the tribunal took the unusual step of soliciting an advisory opinion from both the French Human Rights Commission (Commission Nationale Consultative des Droits de l'Homme) and the Ombudsman (Défenseur des Droits).Footnote ¹² The Ombudsman suggested that there might be discrimination involved – an argument not too far removed from that of the applicants. By contrast, the Human Rights Commission dismissed arguments based on laïcité, freedom of religion or equality and embarked on an entirely novel route.Footnote ¹³ It based its entire argument in favour of maintaining alternative meals on Article 3 of the Convention on the Rights of the Child (CRC), which is concerned with the best interests of the child and enjoys direct effect in France.Footnote ¹⁴ The Commission argued that the abolition of alternative meals violated the interests of children who would now be deprived of (nutritious) school lunches for political gain.Footnote ¹⁵ It concluded that the municipality's decision was not made with the best interests of the child in mind as it should have been under Article 3 CRC. Abolishing alternative meals therefore violated international law and the tribunal should find against the municipality.

Swayed by the Commission's arguments, the Dijon tribunal decided that it was not necessary to engage with the parties’ submissions based on provisions concerned with freedom of religion or laïcité. Instead, it referred solely to Article 3 CRC and the General Comment adopted in respect of the best interests principle enshrined therein.Footnote ¹⁶ Applying the provision to the situation at hand, the tribunal held that the municipality had failed to properly balance the interests involved and to give primary consideration to the interests of the children affected. The municipality had not cited any technical or financial difficulties preventing the provision of alternative meals and the Court did not find the municipality's submission that alternative meals would single children out persuasive (it suggested that canteens could consider a self-service for all children rather than prepared trays). By contrast, the provision of alternative meals was an established practice in Chalon-sur-Saône that, until now, had continued unchallenged since 1984. The meals provided a choice to children and parents which could accommodate their religious and cultural concerns, which choice was now taken from them. Moreover, not every family had access to other means of lunch provision. The decision to discontinue the alternative meal plan could consequently ‘not be regarded as having accorded, in the sense of Article 3(1) CRC, a primary consideration to the best interests of the children concerned’ and had to be annulled.Footnote ¹⁷

AN IDEAL TEST CASE

The case against Chalon-sur-Saône appeared to be the ideal test case for a best-interests approach to what was essentially a matter of freedom of religion – and one that would probably not have survived the test of laïcité.Footnote ¹⁸ School lunches in France are heavily subsidised based on parental income. Those in the lowest earning category only pay €0.95 (£0.85) for a three-course meal with cheese in Chalon-sur-Saône.Footnote ¹⁹ A shop-bought equivalent would be at least ten times as expensive – a dramatic increase in family expenses. During the legal proceedings it became evident that some parents simply could not afford to give their children their own lunch and some children had effectively gone hungry.Footnote ²⁰ Potential religious interests were therefore layered with everyday ones, making the case for an interest approach particularly convincing.

Yet at its core this case was about religious manifestation. The consequence of the tribunal admitting the new approach is that, now that the precedent has been set, administrative courts should expect to be increasingly confronted with religious manifestation cases framed in the language of children's interests. The ripple effect of the decision against Chalon-sur-Saône could be vast, especially in cases involving children using government services that have traditionally been decided on the basis of a laïcité that increasingly erases religious manifestation from the public sphere. Some such cases could even be brought back to court, with applicants now reformulating their arguments in the language of children's interests. Would it, for example, violate children's interests to prohibit them from wearing religious attire in public schools? The answer might differ from that given when the question considered was whether laïcité allowed for a restriction on religious manifestation.Footnote ²¹

SOLUTION OR FAUX AMI?

So, have we found a way out of the laïcité malaise, or is the principle of best interests a faux ami? A reformulation of religious claims into children's interests can be extremely beneficial to religious communities and believing children seeking to protect religious practices within French society. While freedom of religion has become a thorny issue entangled with political considerations, who can object to children's interests? Certainly not French courts, in whose procedures the best interests principle enjoys direct effect and takes on a superior status as a provision of international law. A cleverly formulated best interests claim to maintain a religious practice (especially one that equally touches upon more mundane considerations such as children's physical wellbeing and family relationsFootnote ²²) has a far greater chance of success than a request founded on freedom of manifestation. Indeed, the Committee on the Rights of the Child itself stated in the General Comment quoted by the Dijon tribunal that children's religious identity forms a consideration for a determination of interests.Footnote ²³ Religious manifestation forms part of that identity.Footnote ²⁴ Moreover, not only would a best interest claim be much stronger at the national level but it would equally place appellants in a more advantageous position at the European level (not to mention the international level).Footnote ²⁵ Best interests do not officially form part of the ECHR regime, but in Neulinger v Shuruk the ECtHR explicitly adopted the principle for cases concerning children.Footnote ²⁶ Although the Court generally grants states a wide margin of appreciation in cases involving best interests,Footnote ²⁷ this margin is much more limited than the exceptionally wide margin it tends to cede in freedom of manifestation cases.Footnote ²⁸ A best interests approach is therefore bound to fare better than a religious freedom approach and may thus present the answer to an increasingly restrictive form of laïcité.

However, while at first sight the best interests approach appears to offer a long-awaited solution for believing children and religious communities, the approach may turn out to be a faux ami, both for children generally and also for religious communities. The approach is problematic for French children because of what Eekelaar terms the ‘lack of transparency objection’ to best interests or welfare.Footnote ²⁹ A best interests approach might actually ‘fail to provide sufficient protection to children's interests because its use conceals the fact that the interests of others … actually drive the decision’.Footnote ³⁰ In short, the objection states that, where the emphasis is on children's interests, there is the danger that adult concerns are reformulated or moulded into the language of children's interests. Children's interests then become a vehicle for parents and the religious community to push through an agenda that serves them, but not necessarily the children on whose behalf they claim to argue. A good example of such a situation would be where religious parents seek to argue that the best interests of their children are compromised if religiously motivated exemption requests to co-educational swimming classes are not granted.Footnote ³¹ The argument could be based on both religious interests (whether or not projected onto the child) and more mundane relationship-focused interests such as the interest in maintaining positive parent–child relationships.Footnote ³² A relatively convincing case might be built upon the two, especially if courts are willing to place emphasis on continued positive relationships in the same way they do in custody cases.Footnote ³³ Yet is it really in children's interests that they be exempted from co-educational swimming classes? It is not difficult to see how best interests can become the reserve of adults and communities, rather than the children themselves, in matters of religious manifestation.

In the long run, however, a best interests approach is equally problematic for religious communities. This is because taking a best interests approach to what is essentially a religious practice fails to address the underlying religious issue. It pushes the religious arguments that should be at the forefront of the reasoning to the sides, thereby diminishing the relevance of those arguments and religion itself. Too great a reliance on best interests precludes the discussion on the place of religion in society that can provide legitimacy to religious manifestation. Best interests may circumvent laïcité but, without challenging the current interpretation of the principle, they cannot take on France's radical secularism that is at the root of limits on religious manifestation in the public sphere.Footnote ³⁴ While a pragmatic solution for the moment, best interests may therefore not be a long-term friend.