How should the Family Court treat a dispute about the custody of a small child when a religious conflict between parents comes into play? The issue came before HHJ Clifford Bellamy, sitting as a Judge of the High Court, in a series of hearings of which the most recent is N (A Child: Interim Care Order: Interim Removal) [2015] EWFC 40.

The issue in brief

The history of the case is very complex. N is aged eight. His parents are estranged: his mother is a practising Jehovah’s Witness and his father was described at an earlier hearing [N (A Child: Section 37: Interim Care Order) [2014] EWFC 53] as “nominally an Anglican” [2014:79]. At the suggestion of a Chartered Psychologist instructed by the parties, both parents had undertaken cognitive behavioural therapy. The father was very concerned at what he alleged was indoctrination of an impressionable eight-year-old; the mother, on the other hand, contended that N was a Jehovah’s Witness by choice (and, indeed, that is what N had himself told the social worker assigned to the case).

In 2011 HHJ Bellamy had made orders restricting the extent to which the mother should be able to involve N in the practice of her religion – see Re N (A Child: Religion: Jehovah’s Witness) [2011] EWHC B26 (Fam): [2012] 2 FLR 917 – and in the course of that judgment he addressed the issues raised by Articles 9 & 14 ECHR [2011:63-70]. The mother argued that the 2011 order had been too restrictive:

“The question is whether there should be a relaxation of the moratorium on religious involvement and I would like to be able to take N to the Kingdom Hall once a month. I believe that N misses going there and to be able to pray at mealtimes. This is a simple grace for the food and I will continue to refrain from any further discussion about religion in accordance with my undertakings” [53].

The 2011 order had included provision [2011:102] that, in the event of any medical professional recommending a blood transfusion or any other medical treatment for N when in the mother’s care, she should at once inform the medical authorities of the father’s contact details so that he could give consent: that does not appear to have been challenged in the latest hearing.

HHJ Bellamy was obviously concerned that the mother did not realise the impact of her beliefs on an impressionable youngster:

“54. In her oral evidence the mother confirmed that in the past she and N have had evenings when they would discuss religion. She referred to ‘family worship evenings’. Although this is the third time the mother has given evidence over the last four years it is the first time she has mentioned ‘family worship evenings’. These would occur once a week. They would last between 10 and 30 minutes. The ‘worship’ comprised discussion and watching DVDs. I doubt that this has been the full extent of her engagement of N, within the home, in matters of religion. When challenged the mother said, ‘Maybe I didn’t realise how deeply he was taking my views on board’. Given that she has read three reports from Mr Livock [the Chartered Psychologist assigned to the case], four reports from the guardian and two judgments of the court it beggars belief that she did not appreciate that he was taking her views on board ‘deeply’.

55. Although the mother said that she doesn’t know why N keeps saying that his father isn’t going to Paradise she accepts that she has shared with N the Jehovah’s Witness beliefs about Paradise. Indeed, when challenged … the mother accepted that what N believes about death and Paradise is what she has shared with him – ‘his views come from me’.  It is clear that N is now deeply anxious about his father not going to Paradise. ‘Maybe I didn’t explain things well enough’, the mother said. There is an alternative view and that is that she has explained these things to him all too clearly.”

HHJ Bellamy concluded [100] that N had suffered emotional harm in the care of his parents and made an interim care order that N “be removed from the care of his parents and placed in foster care without further delay”. He was in no doubt that that course was in accordance with the child-focused approach required by s 1 of the Children Act 1989. There is to be a final hearing in August.

Comment

S 1 Children Act 1989 (Welfare of the child) requires that in matters relating to the upbringing of a child “… the child’s welfare shall be the court’s paramount consideration.”

The present case involves a clash of rights: the right of the mother to manifest her religion by, inter alia, teaching it to her child, set against the interest of society at large in making sure that children do not suffer mental harm – and, insofar as it attracts judicial notice, the right of the child under the UN Convention on the Rights of the Child to protection under Article 19 from

“all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”. [emphasis added]

If the case demonstrates anything, I would suggest that it shows what extraordinarily difficult decisions judges in the Family Court sometimes have to make – and what a thankless task they face in doing so.