Manifestation of belief and religious upbringing: when parents disagree

A recent case in the Court of Appeal, G (Children), Re [2012] EWCA Civ 1233 (4 October 2012), has raised some fundamental questions about the tension between the religious life and the demands of wider society in the 21st century.

The case concerned a conflict between divorced parents about their children’s education. Both are Orthodox Jews. The father, a Chareidi, wanted the children to attend single-sex schools operated in accordance with the principles of the Chareidi community. The mother, who regards herself as Orthodox but is no longer a member of the Chareidi community, wanted to send the children to a “Modern Orthodox” school that was coeducational in its teaching, where, aside from lessons, boys and girls participated equally in most activities and in which, for example, the pupils’ homes mostly had television (para 6). The mother brought proceedings under Part II of the Children Act 1989.

As Munby LJ pointed about, for the vast majority – even the vast religious majority – the world of ultra-Orthodox Judaism is based on principles that they can barely comprehend:

“For the nominal Anglican, whose sporadic attendances at church may be as much a matter of social convention as religious belief, religion may in large part be something left behind at the church door. Even for the devout Christian attempting to live their life in accordance with Christ’s teaching there is likely to be some degree of distinction between the secular and the divine, between matters quotidian and matters religious. But there are other communities … for whom the distinction is, at root, meaningless, for whom every aspect of their lives, every aspect of their being, of who and what they are, is governed by a body of what the outsider might characterise as purely religious law.” (para 18).

That said, however, the case was

“… of transcendental importance not merely to the father, the mother and the children but also to the Chareidi community and … the larger society of which it forms part.” (para 16).

The Court (Maurice Kay LJ, Munby LJ and Sir Stephen Sedley) dismissed the father’s appeal against the order of HHJ Copley that, with effect from September 2012, the children should attend the schools proposed by the mother rather than the schools proposed by the father.

The family law aspects of the case have been subjected to detailed analyses by Karwan Eskerie in the UK Human Rights Blog, most interestingly in relation to the balance to be struck between religious values and the likely impact of a strict Chareidi education on the children’s future social and career prospects, and by Rob George in Legal Liberal on Munby LJ’s broad discussion of “welfare”. There is, however, a more general point: the reluctance of the courts to involve themselves in disputes that are purely religious in content.

Delivering the sole judgment, Munby LJ was at great pains to stress that there were places where judges simply will not go:

  1. “Religion – whatever the particular believer’s faith – is not the business of government or of the secular courts, though the courts will, of course, pay every respect to the individual’s or family’s religious principles. Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, after all, demands no less. The starting point of the common law is thus respect for an individual’s religious principles, coupled with an essentially neutral view of religious beliefs and a benevolent tolerance of cultural and religious diversity.
  1. It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, so long as they are ‘legally and socially acceptable’ (Purchas LJ in Re R (A Minor) (Residence: Religion) [1993] 2 FLR 163, 171) and not ‘immoral or socially obnoxious’ (Scarman LJ in Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239, 244) or ‘pernicious’ (Latey J in Re B and G (Minors) (Custody) [1985] FLR 134, 157, referring to Scientology).
  1. The Strasbourg jurisprudence is to the same effect … The protection of Article 9 is qualified in two ways. In the first place, the Convention protects only religions and philosophies which are “worthy of respect in a ‘democratic society’ and are not incompatible with human dignity’: see Campbell and Cosans v United Kingdom (No 2) (1982) 4 EHRR 293. I mention the point only for completeness; it plainly does not arise in this case, because the parents’ beliefs are in each case clearly worthy of respect. Secondly, whilst religious belief and thought are (subject to that overriding qualification) given absolute protection by Article 9(1), the “manifestation” of one’s religion in “worship, teaching, practice and observance” is subject to the qualifications referred to in Article 9(2).
  1. The important point for present purposes is that the Convention forbids the State to determine the validity of religious beliefs and in that respect imposes on the State a duty of what the Strasbourg court has called neutrality and impartiality: see, for example, Moscow Branch of the Salvation Army v Russia (2007) 44 EHRR 46…”

All this is very much in accordance with the line taken recently in Khaira & Ors v Shergill & Ors [2012] EWCA Civ 983 (17 July 2012), in which Mummery LJ reaffirmed that

“A secular court will not adjudicate on the truth of disputed tenets of religious belief and faith, or on the correctness of religious practices: those questions are non-justiciable, because they are neither questions of law nor are they factual issues capable of proof in court by admissible evidence. Judicial method is equipped to deal in hard facts objectively ascertainable, directly or by inference, from probative evidence: it is not equipped to determine the truth, accuracy or sincerity of subjective religious beliefs about doctrine and practice.” (para 5).

But is it always possible to draw a hard-and-fast distinction between “disputed tenets of religious belief and faith, or on the correctness of religious practices” and “factual issues capable of proof”?.

In Williamson & Ors, R (on the application of) v Secretary of State for Education and Employment & Ors [2005] UKHL 15 the appellants were conservative evangelical Christians who believed that it was their right under Article 9 – and their religious duty in accordance with Proverbs 13:24 – to beat their children for misbehaviour. Lord Nicholls of Birkenhead said this about the linked issues of “doctrine” and “manifestation”:

“[l]t is not for the court to embark on an inquiry into the asserted belief and judge its “validity” by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant’s belief conforms to or differs from the views of others professing the same religion.. Everyone, therefore, is entitled to hold whatever beliefs he wishes. But when questions of “manifestation” arise, as they usually do in this type of case, a belief must satisfy some modest, objective minimum requirements… Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment, would not qualify for protection. Moreover, the manifestation must normally by something actually enjoined by the doctrines and practice of the religion in question rather than mere pious opinion or personal devotion.”  (paras 22 and 23).

Which leaves open the question as to what is “actually enjoined” by a particular religion: wearing a cross for a Christian, a jilbab coat for a Muslim, a kara bangle for a Sikh? And, given that they have very largely been born and raised in the Judaeo-Christian tradition, are judges always able to make those decisions on adequate and authoritative information about the religious practices in question?

To return to the facts in G (Children): for a devout Chareidi, is the requirement to send one’s children to an ultra-Orthodox religious school “enjoined by the doctrines and practice of the religion in question” or merely a matter of personal choice or custom? As implied by Munby LJ in the passage quoted earlier, the distinction may be “at root, meaningless”.

Cite this article as: Frank Cranmer, "Manifestation of belief and religious upbringing: when parents disagree" in Law & Religion UK, 13 October 2012, https://lawandreligionuk.com/2012/10/13/manifestation-of-belief-and-religious-upbringing-when-parents-disagree/

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