C’s parents are Jewish: they married in 1996 and divorced in 2010. C was born in November 2001 and her brother, A, in 2006. Their parents were not observant; and though they had A circumcised they did not teach the children about Judaism or celebrate religious festivals. Following their divorce they agreed that the children should live with each of them alternately. Subsequently, the father converted to Christianity and, with his ex-wife’s agreement, took the children with him to church on alternate Sundays.
In the summer of 2011 C decided that she wished to be baptised. Her mother obtained an order from a District Judge forbidding her ex-husband from baptising, confirming, or dedicating either child into the Christian faith. In November 2011 HHJ John Platt made a temporary order that neither child was to be baptised or celebrate a bar/bat mitzvah without the consent of the other parent until further order or the final hearing and ordered a report from Cafcass (the Children and Family Court Advisory and Support Service) about C’s wishes and feelings on the issue. The case came back to the county court as C (A Child), Re  EW Misc 15 (CC) (11 May 2012).
The father accepted his own and his children’s Jewish heritage and culture: both were and always would be halachically-Jewish. However, he was adamant that the children had genuinely wanted to go to church and that he had not initiated it or insisted on it. The mother alleged that C had been brought up in a non-religious household because the father had effectively controlled the family and prevented the mother from practising her religion: she had simply given in to his wishes. However, she conceded that since the shared care arrangements had come into effect she had not taken any positive steps to teach the children about Judaism beyond lighting the Shabbat candle on Friday nights and explaining its significance. Nevertheless, she believed that C was too immature to decide to be baptised and should wait until she was sixteen. She was concerned that C was unduly influenced by her father – but, against that, both parents agreed that C was a very bright and mature young girl who knew her own mind.
HHJ Platt pointed out that in Jewish law, “a person who is born a Jew cannot deprive himself of his Jewish status. Christian baptism does not have any effect on that status” (para 38). He began from the proposition that, in the Church of England,
“… baptism is a ceremony in which the child is welcomed into the community of the church and starts his or her journey in faith. Through a process of instruction and the test of time that journey may, but does not inevitably, lead to a moment when the child, usually not before the child reaches the age of 16, has attained sufficient maturity and understanding of the Christian faith and chooses to become a full communicant member of the church by the ceremony of confirmation. I am also satisfied on the evidence that C understands that in order to be baptised she must declare her belief in God, which she has done to both her father and her mother, and having made that declaration she can then be welcomed into the fellowship of her church through the ceremony of baptism” (paras 33 & 34).
- that C had genuinely expressed her own wishes and feelings “and that they are entitled to proper respect” (para 52);
- that there was nothing to suggest that C would be any less loved by her mother or grandparents as a result of baptism or that she would not be able to attend synagogue or to learn more about the Jewish faith if she wished to do so (para 53); and, in short,
- that no irrevocable consequences would flow from her baptism (para 53).
- C’s welfare interests were best served by letting her enrol in a baptism class and present herself for baptism as soon as she was ready;
- C’s baptism could proceed without her mother’s consent;
- he “strongly encourage[d]” the mother to meet C’s parish priest to discuss the issue, “preferably with the father not only so that she can be better informed but also because it will be hugely important for C to see her parents working together on this”; but
- because he regarded confirmation “as being one of much greater significance to C … she should not be confirmed before her sixteenth birthday without the consent of her mother” (paras 64–66).
Comment: This is an interesting case that raises a couple of interconnected issues.
In J (Child), Re  EWCA Civ 3022 (25 November 1999) (which involved a dispute between a Muslim father and a non-practising Christian mother about circumcising their son) the Court held that:
“The decision to circumcise a child on ground other than medical necessity is a very important one; the operation is irreversible, and should only be carried out where the parents together approve of it or, in the absence of parental agreement, where a court decides that the operation is in the best interests of the child” (per Butler-Sloss P at para 32).
As David Pocklington has previously observed, religious circumcision is, perhaps, a special case and a matter of some controversy; however, baptism has traditionally been regarded by most of the mainstream Churches – and certainly by the Church of England – as equally indelible and irreversible. While the act of baptism leaves no physical mark, you can’t get unbaptised. Moreover, the notion that confirmation is in some sense more significant than baptism is slightly wonky in terms of sacramental theology. The Thirty-nine Articles of Religion recognise
“… two Sacraments ordained of Christ our Lord in the Gospel, that is to say, Baptism and the Supper of the Lord. Those five, commonly called Sacraments, that is to say, Confirmation, Penance, Orders, Matrimony, and Extreme Unction, are not to be counted for Sacraments of the Gospel, being such as have grown partly of the corrupt following of the Apostles, partly are states of life allowed in the Scriptures; but yet have not the like nature of Sacraments with Baptism and the Lord’s Supper, for that they have not any visible sign or ceremony ordained of God” (Article XXV).
From which I have always assumed that it is baptism that is the basic, obligatory rite of initiation, while confirmation is merely a pastorally-helpful addition. (But then I’m just a (baptised) Quaker – so what do I know?)
Finally, there is the issue of the necessary maturity to make a decision – a matter on which I have already blogged in the context of religious education. If the House of Lords could conclude in Gillick v West Norfolk & Wisbech Area Health Authority  UKHL 7 that a girl under the age of 16 who was of sufficient maturity and intelligence to understand its nature and implications had the legal capacity to consent to contraceptive treatment, then is it unreasonable to suggest that a bright ten-year-old is quite capable of working out in her own mind whether or not she really wants to be baptised? Whatever one’s theology of baptism (or lack of it, in my case), in day-to-day practical and social terms it surely cannot be any more important than a girl’s decision to have sexual relations while under the age of consent – and risk pregnancy in consequence. And though the matter was not referred to in the present case, as I have observed previously, children also have rights under Article 9 ECHR.
For a slightly different take on this case, see David Hart’s post on UKHRB.
Pingback: Marriage, mental capacity and sharia: a clash of religious and cultural norms | Law & Religion UK
Pingback: Catholic midwives appeal against abortion ruling | Law & Religion UK
Pingback: Religion and Law roundup: 19th November | Law & Religion UK
Pingback: Respect for religion: the judge’s dilemma | Law & Religion UK
Pingback: UN Special Rapporteur on children, parents and freedom of religion or belief | Law & Religion UK
Frank Cranmer refers to Article XXV. This requires careful examination. It does not state that Confirmation (and the other four rites there identified) are not Sacraments, but that they are not to be counted as “Sacraments of the Gospel”. This implies that they are indeed Sacraments, but in a different category to Baptism and Holy Communion. It is significant that one can no more be unconfirmed (or unordained) than one can be unbaptised.
Any significance attached to “commonly called” must contextually be interpreted by other such usages in the Book of Common Prayer. For example, 25th December is a celebration of the Nativity of Christ “commonly called Christmas Day”. Just as everyone calls it Christmas Day, so (in 1662) everyone regarded Confirmation as a Sacrament.
Fair point: thanks. (My post, I’m afraid, is what comes of letting a non-Anglican loose in the blogosphere.)