JUDGEMENT OF LORD JUSTICE WARD CONCERNING THE FAMILY : PT 23
Click Here For A Warning Concerning This Judgment
THIS IS THE JUDGMENT OF LORD JUSTICE WARD IN THIS CASE WHICH
HE GAVE IN CHAMBERS ON THE 26TH MAY 1995 BUT WHICH IS BEING
HANDED DOWN IN OPEN COURT TODAY. IT CONSISTS OF 295 PAGES
AND HAS BEEN SIGNED AND DATED BY THE JUDGE.
THE JUDGE HEREBY DIRECTS THAT NO TRANSCRIPT OF THE JUDGMENT
NEED BE TAKEN AND THAT THE VERSION HANDED DOWN MAY BE
TREATED AS AUTHENTIC.
THE JUDGMENT IS BEING DISTRIBUTED ON THE STRICT
UNDERSTANDING THAT IN ANY REPORT OF IT NO PERSON (OTHER THAT
COUNSEL AND THEIR INSTRUCTING SOLICITORS AND THOSE PERSONS
IDENTIFIED BY NAME IN THE JUDGMENT ITSELF) MAY BE IDENTIFIED
BY NAME AND THAT IN PARTICULAR THE ANONYMITY OF THE CHILD, A
WARD OF COURT, AND THE MEMBERS OF HIS FAMILY MUST BE
STRICTLY PRESERVED.
SIGNED:
THE RT. HON. LORD JUSTICE WARD DATED 19TH OCTOBER 1995
W 42 1992 IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY IN THE MATTER OF ST (A MINOR)
AND IN THE MATTER OF THE SUPREME COURT ACT 1991h
Lord Justice Ward
Then another finding:-
"It was not necessarily wrong" (and I emphasis the word
"necessarily") "or contrary to the welfare of children, that
they should be brought up in a narrower sphere of life and
subject to a stricter religious discipline than that enjoyed
by most other people, nor that they be without parties at
Christmas and on birthdays: in this case it was essential to
appreciate that once the mother's teaching was accepted as
reasonable, it had to be considered against the whole
background of the case and not in itself so full of danger
that it alone could justify making an Order which otherwise
the Court would not make."
That authority merely supports the fact that it is against
the normal standards of society that the provisions of the
Act must be applied. A further reference to this approach is
to be found in the judgments of this Court, in a different
context admittedly to the present consideration, in the case
of C v C (a Minor) (Custody: Appeal) [1991] 1 FLR 223 in the
judgment of Balcombe L.J. where emphasis is made in the
context of a lesbian relationship that it is the generally
accepted standards that are to be applied when judging the
welfare of the child".
That decision of Balcombe L.J. in "C v C" is instructive. He
said this at page 230:-
"It is apparent that views will frequently differ as to what
the welfare of the child requires in a particular case. The
Judge is thus faced with having to make a decision without
the benefit of any guidelines, save such as may be
prescribed by decided cases. One thing is however clear: in
making a decision on welfare the Judge should not be
influenced by subjective considerations. To take an example:
the issue may be whether the child is to be brought up in
the faith of Religion A or in that of Religion B. The Judge
may be a member of Religion A, and a firm believer in it
tenets: nevertheless, he must try to ensure that his
personal beliefs do not affect his judicial function in
deciding where the child's welfare lies.
Nevertheless although the Judge may not allow his subjective
views to affect his decision on what the child's welfare
requires, he cannot abdicate responsibility merely because
the issue is a sensitive one on which different views are
held. What standards then should he apply if he is not to
apply his own objective views?
In my judgment, he should start on the basis that the moral
standards which are generally accepted in the society in
which the Judge lives are more likely than not to promote
his or her welfare. As society is now less homogeneous than
it was a hundred or even fifty years ago, those standards
may differ between different communities, and the Judge may
in appropriate cases be invited to receive evidence as to
the standards accepted in a particular community, but in
default of such evidence and where, as here, the child does
not come from a particular ethnic minority, the Judge is
entitled, and indeed bound, to apply his or her own
experience in determining what are the accepted standards."
There are, of course, objections to the test propounded in
that way. If the Judge has to rely on "his or her own
experience" to divine "the accepted standards" of society,
he or she is, in the final analysis, deciding the matter
without the benefit of any evidence to assist in the task.
One might well ask what possible evidence could be led to
assist? Are the standards to be set by the readers of Daily
Telegraph, or the Sun or, having regard to their special
interests in the Children of God, the Daily Mail? Is an
opinion poll to be conducted? How would one frame a question
or even a series of questions which would encapsulate even
the main arguments, never mind the nuances of this case? At
the end of the day it is a decision for the Court to make.
In making it, I will not be governed by subjective
considerations of personal preference but I am bound by my
judicial oath to "do right to all manner of people after the
laws and usages of this realm without fear or favour
affection or ill will". There is nothing new about this.
Lord Mansfield in R v Wilkes 4 Burr. 2839 defined discretion
as follows:-
"Discretion, when applied to a Court of Justice, means sound
discretion guided by law. It must be governed by rule, not
by humour; it must not be arbitrary, vague and fanciful, but
legal and regular."
For that great English jurist, Sir Edward Coke, to exercise
discretion was:-
"To discerne by the right line of law, and not by the
crooked cord of private opinion."
I shall endeavour to follow them.
3. Religious Tolerance and the Law
We live in a tolerant society. For centuries it was the
Church and not the State which controlled the exercise of
religious worship and expression of opinion on religious
matters. The State recognised and obeyed the law of the
Church as it was enforced in the Ecclesiastical Courts. The
link between Church and State remained a close one after the
reformation. Although at the time of the Reformation
Settlement, the establishment of the Church of England led
to the proscription of other denominations, Parliament has
in successive centuries passed Acts which have, from time to
time removed the disabilities against observance of other
religions. For example the Toleration Act of 1689 removed
many of the disabilities against Protestant non-
conformists. Discriminatory laws against Roman Catholics
were swept away in the Roman Catholic Relief Acts of 1791
and the Roman Catholic Emancipation Act of 1829 allowing
Roman Catholics to sit in Parliament and to be eligible for
public office. Perhaps the last vestige of disability was
swept aside with the Lord Chancellor (Tenure Office in the
Discharge of Ecclesiastical Functions) Act 1974 which for
the avoidance of doubt declared that the office of Lord
Chancellor is tenable by an adherent of the Roman Catholic
faith. In 1846 the Religious Disabilities Act relieved Jews
of their constitutional disabilities.
Blasphemy is some barometer of the changing attitudes to
religious observance. No longer is it a blasphemous libel
simply to asperse the truth of Christianity. In Regina -v-
Ramsey and Foote (1883) 15 Cox CC 231, Lord Coleridge, LCJ
directed the jury in his summing up that:-
"To asperse the truth of Christianity cannot per se be
sufficient to sustain a criminal prosecution for blasphemy.
And on the ground that in the sense understood by the judges
in former times that Christianity is part of the "law of the
land" to suppose so is in my judgment to forget that law
grows. The principles of law remain, and it is the great
advantage of the common law that its principles do remain;
but then they have to be applied to the changing
circumstances of the time. This may be called by some
retrogression, but I should rather say it is progression -
the progress of human opinion ... I now lay it down as law,
that, if the decencies of controversy are observed, even the
fundamentals of religion may be attacked without the right
of being guilty of blasphemy."
In Regina -v- Lemon (1979) AC 617 Lord Scarman observed:-
"In an increasingly plural society such as that of modern
Britain it is necessary not only to respect the differing
religious beliefs, feelings and practices of all but also to
protect them from scurrility, vilification, ridicule and
contempt."
We claim to be a civilised society whose distinguishing
hallmark is our long-sufferance of our neighbour's
practices, however obnoxious they may strike us to be.
4. Religious Freedom
The European Convention on Fundamental Human Rights and
Freedoms;
The United Kingdom is a contracting party to the European
Convention of Human Rights, Article 9 of which provides
that:-
"1. Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his
religion or beliefs and freedom, either alone or in
community with others and in public or private, to manifest
his religion or belief, in worship teaching practice and
observance.
2. 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."
Among those other rights of freedoms are those in Article 8
which provides as follows:-
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the
interests of national security, public safety or the
economic well being of the country, or for the prevention of
disorder or crime, or for the protection of health or
morals, or for the protection of the rights and freedoms of
others."
Article 14 of the Convention provides:-
"The enjoyment of the rights and freedom set forth in this
Convention shall be secured without discrimination on any
grounds such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status." (I have added the emphasis)
These articles were considered by the European Court of
Human Rights in Hoffmann -v- Austria [1994] 17 E.H.R.R. 293,
a case concerning the Jehovah's Witnesses. The European
Court, by a narrow majority of 5 to 4 held this:-
"In awarding parental rights - claimed by both parties - to
the mother in preference to the father, the Innsbruck
District Court and Regional Court had to deal with the
question whether the applicant was fit to bear
responsibility for the children's care and upbringing. In so
doing they took account of the practical consequences of the
religious convictions of the Jehovah's Witnesses, including
their rejection of holidays such as Christmas and Easter
which are customarily celebrated by the majority of the
Austrian population, their opposition to the administration
of blood transfusions, and in general their position as a
social minority living by its own distinctive rules. The
District Regional Courts took note of the applicant's
statement to the effect that she was prepared to allow the
children to celebrate holidays with their father, who had
remained Roman Catholic, and to allow the administration of
blood transfusions to the children if and when required by
law; they also considered the psychological relationship
existing between the children (who were very young at the
time) and the applicant and her general suitability as a
carer.
In assessing the interests of the children, the Supreme
Court considered the possible effects on their social life
of being associated with a particular religious minority and
the hazards attaching to the applicant's total rejection of
blood transfusions not only for herself but - in the absence
of a Court Order- for her children as well; that is,
possible negative effects of her membership of the religious
community of Jehovah's Witnesses. It weighed them against
the possibility that transferring the children to the care
of their father might cause them psychological stress, which
in its opinion had to be accepted in their own interests.
This Court does not deny that, depending on the
circumstances of the case, the factors relied on by the
Austrian Supreme Court in support of its decision may in
themselves be capable of tipping the scales in favour of one
parent rather than the other. However, the Supreme Court
also introduced a new element, namely the Federal Act on the
Religious Education of Children. This factor was clearly
decisive of the Supreme Court.
The European Court therefore accepts that there has been a
difference in treatment and that the difference was on the
ground of religion; this conclusion is supported by the tone
and phrasing of the Supreme Court's consideration regarding
the practical consequences of the applicant's religion.
Such a difference in treatment is discriminatory in the
absence of an "objective and reasonable justification" that
is, if it is not justified by a "legitimate aim" and if
there is no "reasonable relationship of proportionality
between the means employed and the aim sought to be
realised."
The aim pursued by the judgment of the Supreme Court was a
legitimate one, namely the protection of the health and
rights of the children; it must now be examined whether the
second requirement was also satisfied.
In the present context reference may be made to Article 5 of
Protocol number 7 ... although it was not prayed in aid in
the present proceedings, it provides for the fundamental
equality of spouses inter alia as regards parental rights
and makes it clear that in cases of this nature the
interests of the children are paramount.
Where the Austrian Supreme Court did not rely solely on the
Federal Act on the Religious Education of Children it
weighed the facts differently from the "Courts" below, whose
reasoning was moreover supported by psychological expert
opinion. Notwithstanding any possible arguments to the
contrary, a distinction based centrally on a difference in
religion alone is not acceptable.
The Court therefore cannot find that a reasonable
relationship proportionality existed between the means
employed and the aim pursued; there has accordingly been a
violation of Article 8 taken in conjunction with Article
14."
I am an advocate for the principles expressed in the
Convention and I see the force of the judgment of the
European Court. The purpose of the Convention is to protect
the rights of an individual against intrusion by the State:
it is not a convention for the protection of children's
rights. There is, of course, a balance to be struck between
the parental rights of freedom of religion which is
qualified by other rights one of which is the child's right
to respect for his family life.
The United Nations Convention on the Rights of the Child:
The rights of the child are agreed in the United Nations
Convention on the Rights of the Child adopted by the general
assembly of the United Nations on 20th November 1989 and
ratified by the United Kingdom on 16th December 1991. It is,
however not adopted into the law of the United Kingdom. It
may well be that like the European Fundamental Human Rights
Convention, it can be prayed in aid to resolve any ambiguity
in the construction of our law but no ambiguity arises in
the construction of the Children Act 1989 which this later
Convention could resolve. Its recent ratification must,
however, make it a valuable mine from which I may draw
nuggets of public policy. Its preamble calls for
consideration of the truism that:
"The child should be fully prepared to live an individual
life in society, and brought up in the spirit of the ideals
proclaimed in the Charter of the United Nations, and in
particular in the spirit of peace, dignity, tolerance,
freedom, equality and solidarity."
Among its provisions are the following to which I have added
the emphasis to order to stress to the Plaintiff and to NT,
and through her ,The Family, the importance the General
Assembly of the United Nations attaches to these fundamental
rights which ought to be the birthright of every child in a
civilized society. The Family should not be able to fault
them and can have no justification for not assuring this
Court that they will be applied by The Family without
qualification.
"Article 3: 1. In all actions concerning children ... the
best interest of the child should be of primary
consideration.
Article 5: States Parties shall respect the responsibilities
rights and duties of parents or, where applicable, the
members of the extended family ... to provide ...
appropriate direction and guidance.
Article 12: States Parties shall assure to the child who is
capable of forming his or her own views the right to express
those views freely in all matters affecting the child, the
views of the child being given due weight in accordance with
the age and maturity of the child.
Article 13: The child shall have the right to freedom of
expression; this right shall include the freedom to seek
receive and impart information and ideas of all kind,
regardless of frontiers, either orally, in writing or in
print ...
Article 14: 1. States Parties shall respect the right of the
child to freedom of thought conscience and religion.
2. States Parties shall respect the rights and duties of the
parents ... to provide direction to the child in the
exercise of his or her right in a manner consistent with the
evolving capacities of the child.
3. Freedom to manifest one's religion or beliefs maybe
subject only to such limitations as are prescribed by law
and are necessary to protect public safety, order, health or
morals, or the fundamental rights and freedoms of others.
Article 15: States Parties recognise the right of the child
to freedom of association.
Article 16: 1. No Child will be subjected to arbitrary or
unlawful interference with his or her privacy, family, home
or correspondence, nor to unlawful attacks on his or her
honour and reputation.
Article 18: 1. Parents ... have the primary responsibility
for the upbringing and development of the child.
Article 19: States Parties shall take all appropriate ...
measures to protect the child 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) ... or any other
person who has the care of the child.
Article 28: 1. States Parties recognise the right of the
child to education, and with a view to achieving this right
progressively and on the basis of equal opportunity, they
shall in particular:
(c) Make higher education accessible to all on the basis of
capacity by every appropriate means.
Article 29: 1. States Parties agree that the education of
the child shall be directed to:
(a)The development of the child's personality, talents and
mental and physical abilities to their fullest potential ...
(d)The preparation of the child for responsible life in a
free society in the spirit of understanding, peace,
tolerance equality of sexes, and friendship among all
peoples, ethnic, national and religious groups and persons
of indigenous origin.
2. No part of the present article or Article 28 shall be
construed so as to interfere with the liberty of individuals
and bodies to establish and direct educational institutions,
subject always to the observance of the principle set forth
in paragraph 1 of the present article and to the requirement
that the education given in such institutions shall conform
to such minimum standards as may be laid down by the State.
Article 30: In those states in which ... religious ..
minorities .. exist, a child belonging to such a minority
... shall not be denied the right, in community with other
members of his or her group, to enjoy his or her own
culture, to profess and practice his or her own religion, or
to use his or her own language.
Article 34: States Parties undertake to protect children
from all forms of sexual exploitation and sexual abuse ...
in particular ... (a) the inducement or coercion of a child
to engage in any unlawful sexual activity ... the
exploitative use of children in pornographic performances
and material.
Article 37: 1. States Parties shall ensure that (a) no child
shall be subjected to torture or other cruel, inhuman or
degrading treatment or punishment ... (b) no child shall be
deprived of his or her liberty unlawfully or arbitrarily ...
On the evidence presented to me, and as set out above, there
has been a significant number of breaches of the provisions
of this Convention applied to children in The Family. I am
not satisfied that children are fully prepared by The Family
to live an individual life in society nor are they brought
up in the spirit of tolerance as set out in the preamble, I
am not satisfied children enjoy the right to express their
views freely in all matters affecting them. They do not
enjoy the freedom to seek and receive ideas of all kinds.
They do not have the right to freedom of thought or the
freedom of association. Forsaking all is an interference
with their Family. In many respects, therefore, The Family
fall short of the standards set by this Convention.
5. Corporal Punishment and other forms of Discipline
Section 1 of the Children and Young Persons Act 1933
provides:-
"(1) If any person who has obtained the age of 16 years and
has responsibility for any child or young person under that
age, wilfully assaults, ill-treats, ... or causes or
procures him to be assaulted, ill-treated ... in a manner
likely to cause him unnecessary suffering or injury to
health ... that person should be guilty of an offence, and
shall be liable - (a) on conviction on indictment ... to
imprisonment for any term not exceeding 10 years.
(7) Nothing in this section shall be construed as affecting
the right of any parent, teacher or other person having the
lawful control or charge of a child or young person to
administer punishment to him."
It is, therefore, a good defence that the alleged battery
was merely the correcting of the child by its parents,
provided that the correction be moderate in the manner, the
instrument and the quantity of it.
It is not unlawful for a childminder who is registered with
the local authority pursuant to Part X of the Children Act
1989, to smack a minded child with the consent of the
natural parent: Sutton L.B.C v Davis [1994] Fam. 241.
Following that decision, the Department of Health reviewed
the guidance it issued to the local authorities to include
the following:
"5. The Department recognises that there are differing views
on use of smacking. Many parents when teaching their child
right from wrong consider it an effective sanction.
Punishment for the latter and praise for the former are part
of a good family setting. It is for parents to decide
whether to give a gentle smack as a quick and effective way
of dealing with behaviour that has not responded to other
powers of persuasion.
6. Childminders, whose relationship with the child is more
detached than that of a parent, should not normally smack a
child as a means of dealing with its behaviour. The use of
smacking should be rare and then only as a last resort with
the consent of the parents. Childminders will have special
skills for looking after young children and can be
encouraged to develop other strategies for helping children
to understand the difference between acceptable and
unacceptable behaviour.
7. When a childminder is prepared to use smacking as a
sanction of last resort, this should be made clear to the
parents at the outset. For the avoidance of doubt it is
desirable for the parent's consent to be part of the written
contract between the two parties about the childminding
arrangements."
The position is quite different with private fostering
arrangements. Under Section 66(1) of the Children Act 1989:
"A privately fostered child means a child who is under the
age of 16 and who is cared for, and provided with
accommodation by, someone other than a parent of his."
Section 66(2) provides that a child is not privately
fostered if the person caring for and accommodating him does
not intend to do so for any longer period than 28 days. It
may well be that there are children within Family homes
whose parents are away and who are, therefore, being
privately fostered. Section 67 of the Act then imposes a
duty on the local authority to satisfy themselves that the
welfare of such children are being satisfactorily
safeguarded. The Foster Placement (Children) Regulations
1991 require that the local authority do not place a child
with a foster parent unless the foster parent enters into a
written agreement with them covering the matters specified
in Schedule II to the Regulations, paragraph 6 of which
requires the foster parent to undertake "not to administer
corporal punishment to any child placed with him."
It may be that some of The Family homes are "voluntary
homes" within the meaning of Section 60 of the Children Act.
Section 63 provides that no child shall be cared for and
provided with accommodation in a Childrens home unless it is
registered under Part VIII of the Act. A children's home
means a home which provides or usually provides or is
intended to provide care and accommodation wholly or mainly
for more than 3 children at any one time but a child is not
cared for and accommodated in a children's home when he is
cared for and accommodated by a parent of his. It may be,
therefore, that Family homes are caught by the provisions of
the Children's Homes Regulations 1991, Regulation 8 of those
regulations provides that the following measures shall not
be used in a children's home:
(a) any form of corporal punishment;
(b) any deprivation of food or drink
(c) any restrictions on visits to or by any child or any
restriction on or delay in communication by telephone or
post with his parent, his relatives or friends (which would
include grandmother)."
The relationship of teacher and pupil formerly carried with
it the right of reasonable chastisement. This right has,
however, been severely curtailed by Section 47 of the
Education (No.2) Act 1986 which provides that the giving of
corporal punishment cannot be justified on the ground that
it was done in pursuance of a right exercisable by the
member of staff by virtue of his position as such. Corporal
punishment has therefore been abolished in all except
private fee-paying schools. Even there the enlightened
policy of the Act is invariably adopted.
[ Click Me ] Go To Part 22 . . .
[ Click Me ] Go To Part 24 . . .