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Wednesday, 10 October 2012

Religion and education: Re G (Children) [2012] EWCA Civ 1233

Britain is a multi-faith country, in which each citizen is free to practice his or her religion without any state interference. Aside from a few mostly harmless quirks here and there involving the established church, the law does not favour one religion over any other. Nor does it investigate tenets of belief or judge their worth. What is more, that principle of freedom has a much wider application than just religion. In a free society one may choose one’s lifestyle on any ground, spiritual, material or otherwise. Someone’s lifestyle is only a problem if they break the criminal law or expect the state to fund them. Thus a person who squanders all his natural ability and works only the minimum amount to buy food and shelter, spending the rest of the time on the couch, beer can in hand, has the perfect right to do so and the law does not tell him otherwise.

Most of the above was recently reiterated in ringing tones by Munby LJ, giving the lead judgment of the Court of Appeal, in Re G (Children) [2012] EWCA Civ 1233. He wrote:

35. 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. … 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.

36. 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 …”

No-one who supports freedom of religion, much less the wider view of freedom in my opening paragraph, would disagree.

There is, however, one large caveat. It is simply not possible for the law always to remain non-judgemental about religion or culture. As recognised in the last sentence in the quotation above, some religious (or cultural, or a combination of both) beliefs involve practices that in this country at least are a criminal offence: forced marriages, female genital mutilation and “(dis)honour killings” are three extreme examples often mentioned in the media. Others involve breaches of civil law provisions such as equality legislation, as we have seen in other high profile cases.

Then there are cases where no breach of the law is involved, but where two religious adherents are compelled to resolve a dispute by way of litigation. This was the case in Re G, where in order to dispose of the case the court found that it had to evaluate competing religious beliefs and give a decision which, for all the court’s denials, amounted to saying that one set of religious beliefs provided a child with a better chance in life than another.

The facts of the case involved a marital breakdown and a consequent dispute between the parents as to which school the children should attend. Both parents were from the Chassidic (Hasidic) or Chareidi community of ultra-orthodox Jews. They were married in 2000. It was an arranged marriage. According to the mother it was not a happy marriage. The breakdown occurred in 2010. The father remained a strict adherent of the Chareidi community. The mother, on the other hand, while still considering herself an Orthodox Jew, no longer followed some of the more strict practices of the community. Because of the mother’s change of position, the parties were unable to agree about whether the children should attend a Chareidi school, and had to resort to the family courts to resolve their dispute. The judge at first instance ruled in favour of the mother and the father appealed to the Court of Appeal. (There was one other point in the case but I shall confine myself to the point about the children’s education.)

Munby LJ noted that once upon a time the court would simply have gone with the father’s choice irrespective of what the mother wanted or what a neutral third party (in the form of the court) might have thought best. In the present day, however, long after Mrs Gillick’s famous case, the court was required to ascertain and give effect to the best interests of the children. In doing so it would as a starting point give equal weight to the beliefs of both parents.

In the present case there was no extraneous factor that would enable the court to favour one parent over the other (there might be if one of the parents was a criminal, or had mental health issues, or something on those lines). Both were good citizens who held sincere and genuine views.

Therefore, when deciding the best interests of the children, the court could reach a decision that was consistent with the views of one parent, or neither – but not both. What is more, given that the only material dispute between the parents concerned religion, the court had to investigate the effect of those beliefs on the children and make a decision as to which belief system would be “best” for the children – precisely what Munby LJ was (quite rightly) adamant that the courts always wished to avoid.

In an admirably clear and practical judgment, Munby LJ faced up to the dilemma squarely:

“[76] Stripped down to bare essentials the dispute … was whether, on balance, the mother’s arguments based on education should prevail over the father’s arguments based on way of life.”

He then identified a “fundamental issue”:

“What in our society today, looking to the approach of parents generally in 2012, is the task of the ordinary reasonable parent?”

He found three answers: first equality of opportunity was a fundamental value of our society. Second, “we foster, encourage and facilitate aspiration”. Third, “our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead … and to give effect so far as practicable to their aspirations”.

The corollary to the last point was that where the court had to decide as a “judicial parent”, the judge had to be “cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child’s ability to make such decisions in future”.

That was the crux of the ruling: the schooling preferred by the mother would, on the evidence, give the children more opportunities than the more restrictive religious education preferred by the father. That evidence showed that, following the father's preferred course, beyond GCSEs it was rare for children to have non-Talmudic qualifications; the majority did not go to university for example.  It was rarer still for female children.

Interestingly, Munby LJ did not confine himself to saying that it was for the children’s benefit, but noted that society as a whole has gained from the increased participation of women in professions such as law and medicine. Endorsing the reasoning of the first-instance judge, he also based his decision on the case-specific point of the emotional impact on the children – their relationship with their mother might be affected if they were to go to a school of the father’s choice. A third strand in the reasoning was that the children would be able to return to their religious roots in adulthood if they followed the mother’s education path, but the reverse would be much more difficult.

It seems to me that that was the only way the court could have dealt with the case. If the state is called upon to adjudicate a dispute involving moral or religious questions, the fact is that it will do so according to the prevailing moral and religious tenets of the society as a whole, if there is no way of reconciling the tenets of the parties involved in the case. This is something all citizens – whether indigenous or immigrant, minority or majority – ultimately have to accept. Just as there are limits to the fundamental right to freedom of speech, so there are with freedom of religion. For those as devout and sincere as the father in Re G this may in certain circumstances be a harsh message, but they might also reflect on the fact that far greater freedom and respect is afforded to their beliefs in this country than most other societies past or present.

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