RE G (EDUCATION: RELIGIOUS UPBRINGING)

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.”

MABON v MABON

The right for a minor to enjoy autonomous representation within family law proceedings, is enshrined under both the Care of Children Act 2004 and the Family Proceedings Rules 1991.

English common law functions within a patriarchal system; however, it is sometimes counter-productive to fetter the needs of the child, when their aptitude and resilience to parental influence permits them to speak for themselves.

In this matter, a couple had enjoyed a marriage bearing six children, until such time as they parted company. This produced an almost equal split between the children, with the father remaining with the three eldest boys aged thirteen, fifteen and seventeen.

After her departure, the mother applied for residence orders to enjoy spending time with her sons, whereupon the CAFCASS officer became the legal guardian of all six children prior to proceedings.

Following a lengthy and somewhat protracted hearing, the three boys approached their acting solicitor to remove the presence of the CAFCASS officer in lieu of direct representation.

This was requested under Rule 9.2A(4) of the Family Proceedings Rules 1991, which explains that:

“Where a minor has a next friend or guardian ad litem in proceedings and the minor wishes to prosecute or defend the remaining stages of the proceedings without a next friend or guardian ad litem, the minor may apply to the court for leave for that purpose and for the removal of the next friend or guardian ad litem …”

Family Proceedings Rules 1991

At which point, the court must evaluate the merits of such a request under Rule 9.2A(6), which reads:

“Where the court is considering whether to

(a) …

(b) grant leave under paragraph (4) and remove a next friend or guardian ad litem, it shall grant the leave sought and as the case may be remove the next friend or guardian ad litem if it considers that the minor concerned has sufficient understanding to participate as a party in the proceedings concerned or proposed without a next friend or guardian ad litem.”

Family Proceedings Rules 1991

On this occasion, the trial judge found himself unable to reconcile the boys’ request with his own consideration of both time constraints and the value of their own personal insight, before passing judgment.

In response, the boys’ countered by appeal to the Supreme Court that failure to allow for the removal of the appointed guardian, stood in direct conflict with article 12 of the United Nations Convention on the Rights of the Child 1989, and article 8 of the European Convention on Human Rights (ECHR) (Right to respect for private and family life).

Having also received a doctors report, the Court were reassured to learn that:

“What is clear is that all three boys are very able. They are quick in terms of being articulate and perceptive. Andrew is perhaps the more articulate of the three boys; being the middle of the three he tends to be the spokesman, whilst Craig is the more quiet and thoughtful of the three.”

Which on the facts, allowed for greater appreciation of Rule 9.2A(6) and confirmation that to prevent the independent and separate representation of the three boys, was counter to the purposes of the Family Proceedings Act 1991 and both Conventions.

This was a view supported by section 6(2)(a)(b) of the Care of Children Act 2004, which reads:

“6 Child’s views

(2) In proceedings to which subsection (1) applies,

(a) A child must be given reasonable opportunities to express views on matters affecting the child; and 

(b) Any views the child expresses (either directly or through a representative) must be taken into account.”

Hence, with full consideration of not only the statutory powers afforded children, but the advances in family law since 1991, the Court recognised the need to embrace the advocacy of children’s views within family cases.

And so, while section 42 of the Children Act 1989 affords guardians powers to investigate the views of minors within trial environments, it was held unnatural to override the tenacity and endurability of children for the sake of adult overprotection.

Whereupon, the appeal was upheld and the order of Rule 9.2A(4) of the Family Proceedings Act 1991 allowed, while the court reminded the parties that:

“[T]he right to freedom of expression and participation outweighs the paternalistic judgment of welfare.”

DAVIDSON V SCOTTISH MINISTERS NO.2

The pollution of judicial impartiality was an issue raised by a prison inmate when campaigning for a transfer on grounds of Convention rights; and when faced with a verdict that ran contrary to his calculated expectations.

While serving sentence in HMP Barlinnie, Scotland, the appellant took issue with the prison when complaining that his living conditions ran counter to his rights under article 3 of the European Convention on Human Rights (ECHR) (Prohibition of torture), which explained that:

“1. No one shall be held in slavery or solitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article the term “forced or compulsory labour” shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d) any work or service which forms part of normal civic obligations.”

And so, citing that he was justified a transfer to a more suitable prison, the appellant raised a petition and an order for specific performance under a claim for damages, while further requesting that the respondents personally arrange for his transfer and compensation.

In the first instance, the Court of Session refused to issue orders against them, on grounds that section 21(a) of the Crown Proceedings Act 1947 explained that:

“(a)where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties…”

Crown Proceedings Act 1947

However, the court denied such an order, while the Extra Division followed suit for the same reasons, before the appellant was again denied recourse before the House of Lords; until the appellant discovered that one of the presiding judges (Hardie LJ) had been involved in the amendment of the 1947 Act while serving as Lord Advocate; and that his presence contributed to the inclusion of Scottish Ministers when protecting members of the Crown under section 38(2), which stated that:

“”Civil proceedings’’ includes proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the King’s Bench Division;…’’Officer’’, in relation to the Crown, includes any servant of His Majesty, and accordingly (but without prejudice to the generality of the forgoing provision includes a Minister of the Crown and a member of the Scottish Executive.”

Thus, the appellant alleged ‘actual bias’ within the reclaim hearing and sought a re-trial under the rule of law for the purposes of objectivity and equity; whereupon, the House of Lords referred to Porter v Magill; in which, they had held that:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

PORTER v MAGILL

And so, after careful examination of the actual degree to which Lord Hardie had been involved in the amending of the statute, the House dismissed the appeal, on grounds that the origins of that particular legislative change had stemmed directly from the mind of Donald Stewart MP, who was at the time, the Secretary of State for Scotland; and that Lord Hardie had merely been representative of those actions within his professional capacity, before clarifying for the parties that:

“[A] risk of apparent bias is liable to arise where a judge is called upon to rule judicially on the effect of legislation which he or she has drafted or promoted during the parliamentary process.”

GHAIDAN v GODIN-MENDOZA

Smith, Philip Henry; Flats, 1960; Williamson Art Gallery & Museum; http://www.artuk.org/artworks/flats-1960-67888

Same-sex relationships and the discrimination of landlords under death of secured tenants, provokes the wisdom of the judiciary when the progressive interpretation of existing statute is the only salient answer to a claim for devolved rights by the freeholder.

After living together in a committed homosexual relationship for over thirty years, the respondent had been left facing continued occupancy of the flat under the terms of an assured rather than secure tenancy following the death of his partner and secure tenant, thus by falling subject to the lesser of the two tenancies, the respondent had become vulnerable to potentially increased rents and no legal rights to challenge repossession should the freeholder decide to remove him.

Having sought enforcement under schedule 2 paragraph 1 of the Rent Act 1977 the appellant landlord argued that same-sex relationships were precluded from the enjoyment of direct succession of statutory tenancy as prescribed, however those surviving death could remain in occupation under an assured tenancy, as was held in Fitzpatrick v Sterling Housing Association Ltd.

Whereupon the respondent argued that as that case was raised prior to the Human Rights Act 1998 (HRA), devolution of rights through the application of the 1977 Act constituted a direct violation of articles 8 (Right to respect for private and family life) and 14 (Prohibition of discrimination) of the European Convention on Human Rights (ECHR), therefore he was free to remain in occupation under the same rights bestowed those in schedule 1 paragraphs 1, 2 and 3 of the 1977 Act, which stated that:

“1.Paragraph 2 or, as the case may be, paragraph 3 below shall have effect, subject to section 2(3) of this Act, for the purpose of determining who is the statutory tenant of a dwelling-house by succession after the death of the person (in this Part of this Schedule referred to as “the original tenant”) who, immediately before his death, was a protected tenant of the dwelling-house or the statutory tenant of it by virtue of his previous protected tenancy.

2. If the original tenant was a man who died leaving a widow who was residing with him at his death then, after his death, the widow shall be the statutory tenant if and so long as she occupies the dwelling-house as her residence.

3. Where paragraph 2 above does not apply, but a person who was a member of the original tenant’s family was residing with him at the time of and for the period of 6 months immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be the statutory tenant if and so long as he occupies the dwelling-house as his residence.”

Rent Act 1977

Historically the courts viewed paragraph 3 of the Rent Act 1977 as designed to treat unmarried women as family members in order to allow assured tenancies to permit continuous occupancy when no marriage or family previously existed; however, Fitzpatrick widened the scope of entitlement when the House of Lords had held that:

“[T]wo people of the same sex can be regarded as having established membership of a family, one of the most significant of human relationships which both gives benefits and imposes obligations.”

FITZPATRICK v STERLING HOUSING ASSOCIATION LTD

In the first hearing, the court awarded for the respondent on principle that overt discrimination was not a virtue welcome in English law, while the Court of Appeal upheld the previous judgment, before the matter wound up before the House of Lords.

Here, the facts were given equal attention before the House dismissed the appeal on grounds that the time was right to embrace the universal nature of close and loving bonds and the freedoms of the Convention without a need for Parliamentary involvement, while further holding that:

“[T]he social policy underlying the 1988 extension of security of tenure under paragraph 2 to the survivor of couples living together as husband and wife is equally applicable to the survivor of homosexual couples living together in a close and stable relationship.”

AHMAD v UNITED KINGDOM

While paving the way for a number of similar ‘religious obligations’ versus ‘convention rights’ cases, this protracted legal discourse reveals a number of indiscretions, that in many respects, served to influence legislative and educational policy in the United Kingdom, and illustrate how laws evolve through the integration of cultural norms and progressive state cohabitation.

After working as a supply teacher within the mainstream schools arena for a considerable number of years, the Islamic applicant took issue with the government, upon grounds that his need (or at least doctrinal requirement) to attend a mosque on Friday afternoons was being denied by statute; and that subsequent operational policy created the violation of a number of constitutional rights afforded to all citizens of the United Kingdom.

Citing article 9(1) of the ECHR (freedom of thought, conscience and religion) and article 14 (prohibition of discrimination), the applicant protested that section 30 of the Education Act 1994 stood in immediate conflict with his need to manifest his religious beliefs every Friday between the hours of 1.30pm to 2.15pm.

Having been employed by a number of London Borough schools prior to his decision to resign rather than reduce his working hours, the applicant had been given verbal allowances by one school, and shown strict opposition by another, which bore an inconsistent position of unwillingness to accommodate a religious need, which until recently, had never been expressed nor discussed at the time of his original appointment.

When it was submitted that the repeated failure of a Muslim man to attend a mosque (subject to relative distances) would likely result in a beheading in a country such as Saudi Arabia, the applicant expected that the same principles would apply under  domestic jurisdiction, and that those grounds, along with previous (albeit unofficial) allowances were sufficient enough to warrant time taken from his contractual duties, despite any inconvenience to teaching  staff, pupils or the school as a whole.

After failing to find those arguments upheld in the domestic courts, the matter wound up before the European Commission for Human Rights, where it was unanimously decided that the terms of the Convention were constructed in such as fashion as to allow interpretation and consideration of all religions and beliefs, not just those of the applicant.

However, when willingly accepting a position of employment that brings with it a set of express and implied terms, the accepting individual takes ownership of how that agreement might impinge upon their religious requirements or obligations of faith, and must therefore act accordingly; hence, the Commission dismissed the application, while holding that:

“[E]ven a person at liberty may, in the exercise of his freedom to manifest his religion, have to take into account his particular professional or contractual position.”

Book your Free Consultation