No 'bright-line' test between religion and secular law, senior family judge says

It was the courts' duty, as secular institutions, to ensure the primacy of secular law over religious beliefs, but the boundaries between the two were not always clear, Mr Justice Munby (pictured) has said in a speech on the role of religion in the family justice system.

"Reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law," the president of the Family Division said in his 'Law, Morality, Religion and the Family Courts' address.

But, he continued, where precisely the limits were drawn was often "a matter of controversy" and there was "no blight-line test that the law can set."

Sir James said there were nevertheless circumstances that were "beyond the pale", including forced marriages, female genital mutilation, and "so-called, if grotesquely misnamed," honour-based domestic violence.

In an indirect reference to the case of Sandwell MBC v RG and Ors [2013] EWHC 2373 SJ 157/34 he also said "some aspects of even mainstream religious beliefs may fall foul of public policy".

In this case, a 38-year-old man from the Midlands with learning difficulties was taken to India to marry a bride chosen by his parents. Following an application by the local authority, the High Court found that because the groom lacked capacity to consent, the marriage would not have been possible in England, but the judge declined to annul it.

A few years earlier the Court of Appeal had refused to recognise a marriage entered into by phone between an autistic 26-year-old man in Britain and a woman in Bangladesh. Giving the lead judgment in KC and NNC v City of Westminster v IC [2008] EWCA Civ 198 Lord Justice Thorpe said the marriage may have been valid under both Sharia law and Bangladeshi law but that refusal to recognise it in England was "an essential foundation" of the protection the courts had to afford to individuals lacking capacity.

"Not every marriage valid according to the law of some friendly foreign state is entitled to recognition in this jurisdiction," the judge said, and in this case, "the refusal of recognition [wa]s justified even if not precedented."

Munby J's comments on religion came after a series of reflections on the shifting definition of public morality in English law.

It was only in the case of Bowman v Secular Society in 1917 that the House of Lords moved away from Christian values and from the pronouncement of Darling J in Upfill v Wright, in which the judge relied on the Book of Common Prayer to determine that fornication was "sinful and immoral".

One hundred years later, the president said, we live in a society that was "largely secular" and insofar as it remained religious at all, was now "increasingly diverse in religious affiliation".

Judges, he continued, "have - rightly - abandoned their pretensions to be guardians of public morality".

Now, he said, "We sit as secular judges serving a multi-cultural community of many faiths, sworn to do justice 'to all manners of people'. We live in this country in a democratic and pluralistic society, in a secular State, not a theocracy."

Sir James Munby was speaking at the Law Society's Family Law Section conference on Tuesday 29 October 2013.