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Diversity, Religion And Families Notes

BCL Law Notes > Children, Families & the State Notes

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(6) Diversity, Religion and Families
PROVISIONS
Convention on the Rights of the Child

Article 14

1. States shall respect the right of the child to freedom of thought, conscience and religion.

2. States shall respect the rights and duties of the parents and, when applicable, legal guardians, 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.
Note: While noting general rights and responsibilities of parents, Article 14 reiterates these rights and responsibilities specifically.

SEMINAR NOTES
(1) Theoretical literature
Eekelaar: dominant model of English law (descriptively) — purposive abstention (ie. State deliberately chooses not to intervene in certain aspects of family law)
- Reflects part. strong normative reasons for State to withdraw from aspects of private life —important to allow families, individuals and religious groups to organise intimate family life according to own understanding of moral and social obligations
- Creates a system of tolerant pluralism (different groups live intimate family according to own religious and social norms, and State will largely keep out, unless harm)
HOWEVER: Four key problems:
- (a) Posits decisions made in family as matters of choice when in reality it is often not a choice
- (b) If we see it as a matter of choice, allow dominant members to impose own values and norms that serve their interests on weaker members of the community
- (c) If State does not step in, potential for authority vacuum, and other forms of authority can step in (ie. parallel systems of law operating in practice)
- (d) Esp. in relation to the upbringing of children, concern that we might end up with situation in which there is a threat to social cohesion
(2) Law on religious upbringing
Model of abstention particularly influential in law on upbringing of children — State very reluctant to intervene unless children are harmed
- Common arguments: Parents have own religious rights; Minority groups will safeguard future through children; and Beneficial for children (identity and sense of self)
- HOWEVER: Common concerns: Harmful practices; Social cohesiveness; and Child's ability to participate in wider society
What role, if any, should the religious beliefs and identity have in applying the welfare principle or determining whether the child has suffered 'harm'?
- Consider transgender case:
o J v B (EWHC): welfare of child within religious community (ie. purely religious lens)
o M (Children) (EWCA): welfare of child within wider secular society

1 

Only take account of behaviour that does not conflict with HR rights and norms

Note: Only impose above obligations on people at point at which they come before the court
EXAM: Good test case in relation to parental responsibilities/rights

Children — Academic Commentary
Langlaude 2008

Children and Religion under Art 14 UNCRC: A Critical Analysis
Argument:
(1) Theoretical basis for right of child to religious freedom — interest theory: right is an interest that is deemed worthy of moral or legal protection
- Interest of child is to be brought up as a religious being, belong to religious community and interact with parents and religious community

Thus: Right of the child to religious freedom is the right of every child to be unhindered in growth as an independent autonomous actor in the matrix of parents, religious community and society (ie. child has right to religious freedom not for the sake of it, but in order to flourish)
 Child's right to religious freedom different basis from adult's right— based on relationship with parents and community (cf. autonomy)
(2) Examining work of UN Committee on the Rights of the Child in relation to: concept of evolving capacities of the child; freedom of religious choice; freedom of manifestation; and education — Committee fails children in relation to their religion:
- (a) Inconsistencies and lack of clarity including in relation to relationship between parents' and children's rights

While family very important institution and rights of child should be envisaged in this context —Committee argues that it is necessary to strike a balance between parents' and children's rights — new model of family emerging, according to which parents' rights, prerogatives and interests must generally give way to the child's if there is a conflict
- (b) Treats child as autonomous religious believer, disconnected from family and community

Too much focus on child being about to organise religious autonomously, and too much intervention in family
- (c) Impoverished conception of religion

Too much insistent on freedom of choice, on child leaving religious community, and choosing not to have religion — impression that
Committee objects to idea of child as a religious believer (as if something slightly harmful in having religion)

Children's Upbringing — Academic Commentary
Adhar and Leigh 2013

ARGUMENT:
(1) Courts should only restrict parental religious practice on solid evidence of actual harm (lower, welfare standard risks undermining parents' religious rights)
- HOWEVER: Taylor: Suggested approach rejected by English courts
(2) Children do not have an independent legal right of religious liberty (ie. no right separate from parents' religious liberty)

2 (3) HOWEVER: In children's rights era, tentative signalling of potential acceptance of independent right of religious freedom
- Gillick: Parental rights:
o (a) do not exist for parents' benefit but for child — justified only to the extent they enabled the parent to perform his duties towards the child

(b) 'dwindling rights' — diminish in proportion to increasing maturity child — parental right yields to child's right to make own decision when sufficient understanding and intelligence to be capable of making up own mind
- Article 14 UNCRC interpretation unclear

Potential constriction upon traditional religious upbringing and bolstering of child's religious rights one "increasingly plausible" reading:
 Article 14(2) — parents have power only to 'direct', not command child's religion
 Direction is in exercise of child's right
 Direction is to be 'consistent with the evolving capacities of the child' (echoes Gillick diminishing parental rights) — as children mature, parental direction should relax accordingly
*Langlaude 2014

Parental Disputes, Religious Upbringing and Welfare in English Law and the ECHR
NOTING that concept of "parental responsibility" (which includes all rights, duties, powers, responsibilities and authority of parents) "clearly includes the right to bring up children in particular religious faith, or none" (Re J (A Minor) (Prohibited Steps Order: Circumcision))
Argument:
(1) Noting wide discretion to determine what is in child's welfare — religious upbringing and heritage only one factor to consider amongst others
- Munby J: While parent's views and wishes as to religious upbringing of great importance, given effect by court only if and so far as in accordance with child's best interests — in matters of religion, as in all other aspects of child's upbringing, interests of child are paramount
-  While courts accept necessity of protecting parents' religious liberty, any manifestation contrary to child's welfare will have to give way
(2) Despite strong emphasis on parents being able to direct child's religious upbringing, Courts have interpreted child's welfare to restrict exposure of child to parental religious beliefs and practices in order to preserve child's:
- (a) Future choice of religion
- (b) Physical integrity

Where parents disagree on whether child should be circumcised, courts tend to adopt pragmatic approach and prohibit circumcision when child is not going to be brought up in that environment or in order to preserve child's freedom of choice when older
- (c) Contact and relationship with both parents

Emphasis on meaningful relationships being maintained with both parents may mean child's involvement in religious restricted or terminated
 M v H (Educational Welfare): Jehovah's Witness mother and Catholic father — deep distrust and antagonism
 Father more likely to promote relationship with mother through contact than mother
 Father offered wider group of friends of age, and relationships with adults from diverse walks of life (cf. Mother)
o Courts need to be careful not to prohibit parents passing on beliefs through teaching
 Re N (A Child: Religion: Jehovah's Witness): Jehovah's Witness mother and Anglican father — mother more active in teaching beliefs —
both parents permitted to carry take four- year-old boy to places of worship — however, prohibited parents from teaching beliefs in

3 -any formal sense (ie. instructing or giving lessons)
(d) Educational choices

Protecting child from mixed religious heritage by not anchoring too much in one religious community or preserving current educational opportunities

Re G (Children): Emphasis on preservation of educational opportunities and, ultimately, life choices
(e) Relationship with religious community

Courts might allow or prohibit religious rituals and practices to ensure that a child is welcomed in both religious communities

(3) Courts should have a wide understanding of welfare, pay attention to how they view socialisation, not stigmatise minority religious practices and be wary to prohibit parents teaching beliefs to the child
Eekelaar 2004

(1) Fundamental value at stake in protection of culture — individual liberty and obligation on liberal states to treat all members with respect — includes respecting interest of group members to bring children up in beliefs and practices of the group
- State and courts should respect right of each parent to pass on religion or culture to children, and not favour bringing up children in a religion or not in a religion, or mono-culturally or multiculturally
(2) HOWEVER: Duty to respect individual rights imposes limits — State must also respect interests of children of communities:
- (i) to determine own futures
- (ii) to be protected from harm

Victoria Climbie report: While cultural heritage important, cannot take precedence over standards of child care embodied in law

Examples of harm: differences between parents engender serious conflict; one parent's attitude would alienate the children from the other parent (or that parent's culture or religion) or close children's mind entirely to the community around them

Taylor 2015

The Role of the State and Parents in Determining Religious Upbringing and Education
NOTING concerns regarding:
- certain forms of religious upbringing and education as threats to children and the wider society;
- rise of religious extremism and threat for children brought up with extremist values and State itself
Argument:
(1) Parental responsibility means that:
- (a) Primary responsibility for the child is for the parent rather than the State (locus of responsibility for upbringing lies with parents)
- (b) Parental rights are exercised as a responsibility to the child rather than primarily for the benefit of the parents themselves
(2) Parental responsibility includes broad freedom to raise children within particular religion (ie. religious upbringing a matter of parental discretion)
- Baroness Hale: the child is not the child of the State — important in a free society that parents should be allowed large measure of autonomy in the way they discharge parental responsibilities
- While broad freedom not unique to religious context, justification goes beyond general respect for autonomy of parents

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