The needs of the child and the heritage of religious conformity are bound to reach an impasse when the parents share opposing views of life; and so it is, that a divorced couple were forced to litigate when their five children were at risk of emotional and intellectual harm.
Born into families following the ultra orthodox principle of Judaism, it was by arranged marriage that the appellant and respondent were mutually bound before starting a family.
Having raised five children aged between three and eleven, the marriage broke down, resulting in the father leaving home and returning to his religious community, while the mother immersed herself into a less demanding way of life, yet remaining faithful to the principles of her faith.
Under Chassidic (Hasidic) or Chareidi rules, a persons life is subject to strict controls covering their dietary intake, dress, education, speech, community responsibility, respect for elders, religious education and cultural heritage, as was embraced by the father, and in whose words it was made clear that:
“Strict Chareidi parents will not allow their children to mix with children who are using the internet or watching television for fear that their own children will become corrupted.”
Contrastingly, the mother had since abandoned herself of such restraints in favour of a more mainstream and unorthodox lifestyle, including obtainment of higher education and a prominent teaching position within an established school.
It was for those reasons, that the mother had made plans for the children to attend new schools, in order to gain greater access to both educational and professional advantages while growing up.
Having then applied for a shared residence order, the father had argued against the children being moved from their existing schools, on grounds that their change of lifestyle would cause long-term harm to both their wellbeing and standing within the Chareidi community and extended family.
Despite this, the court awarded residency in favour of the mother, while allowing extensive contact by the father; and so, tentatively granted leave to appeal, the father took issue with the fact that the judge had erred in not granting the requested shared residence order; and that he was wrong to have adopted the views of the mother.
As far back as the eighteenth century, men were assigned sole discretion as to how best their offspring were to be educated; and so, remained beyond the powers of the court to interfere.
However, in light of the decision taken in Ward v Laverty, the welfare of the child quickly became statutory principle, as found in section 1 of the Guardianship of Infants Act 1925, which reads:
“When a court determines any question with respect to … the upbringing of a child… the child’s welfare shall be the court’s paramount consideration.”Guardianship of Infants Act 1925
This was further supported by section 1(2) of the 1925 Act, which explains that:
“The court … shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, … is superior to that of the mother, or the claim of the mother is superior to that of the father.”Guardianship of Infants Act 1925
Which allowed men and women the right to equal measure in the eyes of the law, particularly in matters such as these.
It was thus held by the Court of Appeal that while the welfare of the children was integral to the decision making process, it was equally important to remain focussed on the bigger picture, as noted by Lord Bingham MR in Re O (Contact: Imposition of Conditions), who explained that:
“The court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems.”Re O (Contact: Imposition of Conditions)
Given the limitations of the Chareidi education system (which offered little beyond GCSE standards) it was noted that while article 9(1) of the European Convention on Human Rights (Freedom of thought, conscience and religion) allowed for the general traditions of religious practice, article 9(2) stresses that:
“Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”European Convention on Human Rights
And that when considering the long-term welfare needs of the children, it was vital to embrace the opportunities available to those living in a democracy, while addressing the innate need for progressive learning in a twenty-first century society.
With further appreciation of the fact that the children had (for over two years) forgone their previously strict upbringing in lieu of a more liberal existence, the Court dismissed the appeal, while reminding the parties that:
“Evaluating a child’s best interests involves a welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, religious, cultural, emotional and welfare considerations.”