Background

In A Health and Social Care Trust v A Mother Re (A Child) [2024] NIFam 4, SE, the child of a single mother, was placed in foster care by the Trust as a result of her mother’s mental state and drug misuse. The mother is an agnostic, while the foster-carers are Pentecostal Christians. Difficulties arose about SE’s ability to engage in public acts of worship, private acts of family worship and general engagement with the foster family’s social activities, which are largely centred around their church.  The mother objected to SE receiving any form of religious instruction [1-12]. The Trust asked the Court to exercise its inherent jurisdiction to resolve an issue arising from conflicting provisions in the Children (Northern Ireland) Order 1995 relating to religious upbringing [1] and sought a declaration that SE be permitted to attend church services and church-based social activities with a spiritual content while in her foster placement and to engage in spiritual activities in the foster home [3].

The 1995 Order includes the following:

 “52(6) While a care order is in force with respect to a child, the authority designated by the order shall not—

(a) cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made.”

The Court noted that guidance from the ECtHR in Kokkinakis v Greece [1993] ECHR 20 at [31] indicated that Article 9 ECHR not only protected religious believers but was also “a precious asset for atheists, agnostics, sceptics and the unconcerned” [15].

Article 18(1)(a) and Article 26(1)–(3) of the Order place a general duty on the Trust to safeguard and promote the welfare of children within its area who are in need and, in the case of a looked-after child, to safeguard and promote the child’s welfare, giving due consideration, inter alia, “to the child’s religious persuasion, racial origin and cultural and linguistic background”. Therefore, said the Court,

“In fulfilling its duty to safeguard and promote the welfare of SE the Trust is obliged to ascertain and have regard to the wishes and feelings of SE, the mother, the foster carers and any other relevant party.  The Trust must also have regard to the child’s religious persuasion” [16].

The judgment

McFarland J said that it was clear that the mother’s rights under ECHR were engaged, both as to respect for her private and family life under Article 8 and her right to manifest her religion under Article 9 [20]. However, her rights under Article 9 were qualified by Article 9(2), and Ward LJ in Re P [2000] Fam 15 at [43] had enunciated the principle of the paramountcy of a child’s welfare: “in the jurisprudence of human rights the right to practice one’s religion is subservient to the need in a democratic society to put welfare first.” Similar sentiments had been expressed by Munby LJ in Re G [2012] EWCA Civ 1233 [22] and by Baker J in Re A & D [2010] EWHC 2503 [21 & 24].

The significant factor in the present case would be the change of circumstances. SE had had a turbulent upbringing in recent years and had achieved stability in her current placement. Any change of placement would therefore bring challenges and would be “likely to cause significant emotional harm to the child” [28].

In brief, any move at this stage was likely to cause harm [29]. Notwithstanding the Trust’s failure to ensure that SE was being brought up on the basis of her mother’s religious beliefs, therefore,

“the welfare of the child demands that the court exercise its inherent jurisdiction and I order that the Trust, in exercising its parental responsibility for the child, permit the child to engage in the religious practices of the foster carers” [30].