Please note that the summary below covers only a selected aspect of the judgment, namely the claim by the father of a looked after child that the local authority breached its statutory duties with respect to the child’s religious upbringing. For a list of all the applications made to the High Court as part of the proceedings, please refer to paragraph 2 of the judgment.
Local authority’s duty to sustain the religious persuasion of a looked after child must not compromise the child’s welfare
Background
D, aged 5 at the time of the proceedings, is the subject of a care order and lives with his maternal grandmother.
D’s father is Muslim, and D’s mother converted to Islam before D was born. Care proceedings for D started shortly after his birth due to both parents’ “respective personal difficulties and the instability of their relationship”. The family court made D the subject of a care order on the basis that his maternal grandparents would be his long-term foster carers. D’s care plan addressed his heritage and his parents’ faith, confirming D’s parents’ desire for D to be raised in Muslim faith, ideally in a Muslim family. The family court decided that a placement with extended family best met D’s needs and that given neither of the grandparents were Muslim, they would need to “continue to communicate with the local Muslim leaders in order that D have an opportunity to be brought up in the Muslim faith identifying with the ideals and standards therein”. In response to D’s father’s objections to the (proposed) care plan, the family court concluded:
“I agree with the guardian who said in evidence that it was a question of balancing D’s right to be brought up within his family against doing one’s best to ensure his religious needs as a child with Muslim parents. I also agree with him that the former is more important and the religion issue whilst important does not take priority. My view on the matter is as follows. (1) [The maternal grandparents] will do their best to bring D up as a Muslim. […] (3) If they do not keep their promise there is to be a care order and the local authority could remove D if they thought it right. … [the social worker] told me that the local authority (who can control the exercise of parental responsibility) will direct them to bring D up as a Muslim. (4) Even if things do not go as well as hoped in this direction I am entirely satisfied that [the maternal grandparents] will maintain contact with [the father]’s family and keep him in touch with his religious roots. (5) I am as confident as I can be so far ahead that when he gets to an age where he is able to make choices for himself D will know sufficient of his Muslim heritage and of religions to decide for himself if that is the path he wishes to follow”. (Paragraph 12)
In between the making of the care order and the 2010 court proceedings, D’s mother renounced Islam and reverted to Catholicism. She had at some point asked the local authority for D to be christened and placed in a Catholic primary school, but the local authority rejected this.
The issue before the High Court
D’s father claimed that the local authority had failed to address D’s religious upbringing, thus breaching its duties under the Children Act 1989 and the European Convention on Human Rights. He raised, among other issues, that D had been born to Muslim parents and the local authority’s failure to recognise this (by exposing him to Catholicism) was incompatible with both his and D’s rights under the European Convention on Human Rights.
The legal framework
Effect of care order and limitations on local authorities’ exercise of parental responsibility Broadly speaking, section 33 of the Children Act 1989 concerns the effect of a care order. Section 33(1) requires a local authority designated in the care order to “receive the child into their care and to keep [the child] in their care while the order remains in force”. Section 33(3)(a) grants parental responsibility to the designated local authority for the duration of the order and section 33(3)(b) gives the responsible local authority the power to determine the extent to which other persons with parental responsibility – such as the child’s parent/s – can exercise their parental responsibility for the child. This means, in effect, that local authorities may limit the use of parental responsibility by others, by, for instance, overriding parental objections to a specific decision (unless the law says otherwise). The power of the local authority to exercise parental responsibility for the child in its care is not absolute. Section 33(4) prohibits local authorities from limiting the exercise of parental responsibility by others unless it is necessary to safeguard or promote the child’s welfare and domestic case law has established that local authorities should not use section 33(3)(b) to override the views or wishes of a child’s parent in serious or grave matters with profound or enduring consequences for the child. Furthermore, section 33(6)(a) makes it unlawful (‘shall not’) for a local authority to “cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made”.
Human rights obligations and remedies The European Convention on Human Rights (ECHR) guarantees a range of rights, freedoms and protections to children and adults alike, including: - Article 8 ECHR: right to respect for private and family life. ‘Private life’ encompasses not just privacy in the traditional sense but also physical, psychological and moral integrity. Public authorities must not interfere with Article 8 rights unless such interference is carried out 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, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. - Article 9 ECHR: freedom of thought, conscience and religion, including freedom to change religion or belief and to manifest it through worship, teaching, practice and religious observance. Any limitations imposed on Article 9 must be “prescribed by law and 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 feelings of others”. Section 6(1) of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with ECHR rights. Section 7(1) allows individuals (children and adults) to legally challenge public authorities when they consider they have suffered a violation of one or more of their ECHR rights.
Analysis of support received by D in relation to his heritage and faith whilst in care
Both D’s maternal grandmother and his mother are Catholic, meaning D is of dual religious heritage. D’s social worker gave evidence to the High Court setting out how D’s grandmother had supported his cultural and religious awareness and understanding of Islam. This included reading books to D given to her by D’s father, buying halal meat and reportedly speaking to a local Imam for advice about D’s educational and dietary needs. D’s cultural and religious needs were discussed during statutory reviews of his care and welfare (‘looked after children reviews’), and in the year before the court proceedings it had been agreed that “D would be encouraged to learn about both religions to enable him to make up his own mind when he is old enough to do so”. The local authority acknowledged that D might benefit from additional educational instruction in the Muslim faith but due to his young age any “formal religious education” was not considered appropriate at that stage.
This view was endorsed by D’s Cafcass guardian, who expressed concerns about D’s father challenging any educational activities relating to D’s Catholic heritage, including opposing D visiting church and wanting the local authority to compel D’s grandmother to not expose D to Catholicism and for D to attend a madrasa (a place providing religious instruction in Islam). It was the guardian’s view that “D should be allowed to explore and develop an understanding of both sides to [his] heritage in order to develop a strong sense of identity and belonging. D has made comment on wanting to visit church and this should be encouraged and not suppressed…”
The father’s lawyer argued that creating room for D to make his own decisions when older amounted to “an abrogation of the authority’s prior commitment to a recognition of D’s identity as a Muslim child”. He also voiced concerns about “hybrid religious upbringing” inevitably leading to confusion and tension for D and suggested that the absence of formal tuition in Islam had the effect of eroding D’s right to manifest his religion.
The High Court’s decision
Considering that the father and the mother are of different faiths, the High Court concluded that the local authority was right to try to ensure that D was given opportunities to have an understanding of his full and varied heritage and “to develop his own thinking”. The local authority was found not in breach of its statutory duty under section 33(6)(a) of the Children Act 1989, nor its duties under Articles 8 and 9 ECHR.
Dismissing D’s father’s claim under the Human Rights Act 1998, the High Court shared its interpretation of section 33(6)(a):
“…the nature of a child’s religious persuasion evolves as the child matures. In the case of a very young child, whose concept of faith is undeveloped, [their] religious persuasion is necessarily that of [their] parents. If their religion changes, so will [the child’s]. As [the child] grows older, however, [they] will inevitably, to use the local authority’s phrase in this case, “make [their] own choice”, irrespective of [the] parents’ wishes and feelings. Some children follow their parent’s faith throughout their lives, others do not. There is nothing a parent can lawfully do to force a child to believe anything. Once [the child] is developmentally of an age to make a choice, the choice is [theirs]. In such circumstances, it would be absurd to impugn a local authority for failing to sustain the religious persuasion of a child who had decided for [themselves] that [they] did not wish to follow [their] parent’s faith. (Paragraph 73; emphasis added)
“I therefore conclude that the subtle and careful language used in section 33(6)(a) requires an equally subtle and careful interpretation…. When a young child is made the subject of a care order, the local authority is under a duty to ensure that [they are] not brought up in any different religious persuasion from that followed by [their] parents prior to the care order. If the local authority breaches that duty, it will be exceeding the limitation imposed on its exercise of parental responsibility by section 33(6)(a) and, in appropriate circumstances, the parents may apply for judicial review or seek injunctive relief for breach of statutory duty or under the Human Rights Act. Furthermore, so far as possible, the local authority must ensure that the child is brought up with a full appreciation and understanding of [their] religious heritage and background. If [the] parents subsequently change their religion, the local authority must have regard to that fact. In my judgment, however, [the local authority] is not obliged, nor indeed permitted, to take any steps that would be contrary to [the child’s] overall welfare. Equally, if one parent, but not the other, converts to a different religion, the local authority must have regard to that fact, particularly perhaps if the parent returns to a former religion previously practised within the extended family which constitutes a significant aspect of the child’s heritage, but again the local authority is not obliged nor allowed to take any steps that would be contrary to [the child’s] overall welfare. And as the child develops and makes [their] own choices, the local authority must respect [their] personal autonomy and freedom of conscience, provided again that by doing so it is safeguarding [their] welfare. (Paragraph 74; emphasis added)
“In my judgment, the local authority’s duty under section 33(6)(a), like all its statutory duties under the Children Act, is subject to its overriding duty under section 17(1) and section 22(3). Under section 17(1)(a), “it shall be the general duty of any local authority (in addition to the other duties imposed on them by this part) … to safeguard and promote the welfare of children within their area who are in need”. Under section 22(3)(a), “it shall be the duty of the local authority looking after any child … to safeguard and promote [their] welfare”. (Paragraph 75; emphasis added)
The High Court also referred to existing case law which states:
- “Religious, racial and cultural factors are integral elements of welfare and may on the facts of a particular case provide both the positive and negative factors and context by and within which decisions have to be made. However, whatever an individual belief system may provide for, and despite the respect that will be given to private and family life, and the right to freedom of thought, conscience and religion, and the freedom to manifest religion or belief in worship, teaching, practise and observation (by articles 8 and 9 of ECHR), the law does not give any religious belief or birthright a pre-eminent place in the balance of factors that compromise welfare …. Furthermore the safeguarding of the welfare of vulnerable children and adults ought not to be subordinated by the court to any particular religious belief”. [2006] EWHC 1620 (Fam)
- “… in the jurisprudence of human rights, the right to practise one’s religion is subservient to the need in a democratic society to put welfare first”. [2000] Fam. 15
The High Court acknowledged the need to identify suitable resources and support within the local Muslim community to assist D’s grandmother as and when necessary. The importance of resuming contact with members of D’s extended paternal family was also confirmed as being in his best interests and as an important avenue through which he could understand his heritage.
You can read the full judgment here: A Father v Lancashire County Council [2010] EWHC 2503 (Fam) (30 July 2010)