Religion and the welfare of the child

Several judgments have been recently reported highlighting co-parenting issues faced by separated parents within religious communities. Judge Rowe QC made three detailed judgments about one family within the Satmar sect: F v M and others (Number 1: Religious Differences: Schools) [2014]; F v M and others (Number 2: Orthodox Schools) [2015]; and F v M and others (Number 3: Division of Religious Festivals) [2016].

In this case, both parents hailed from the ultra-Orthodox Jewish Satmar sect. After separation, the father had left the sect and the mother had remained within it along with the children. In F v M (No 1), Judge Rowe QC was asked to decide to what extent the father should be expected to replicate the children’s lives within the Satmar sect when they were spending time with him. The judge at this time directed that the father should agree to only feed the children kosher food, not to speak negatively about the community, to wear the kippah in Stamford Hill, and to be sensitive to the children’s religion and culture.

Judge Rowe referred to an earlier judgment by Lord Justice Munby, as he was then, in Re G [2012] EWCA Civ 1233. Munby LJ had pointed out that religion is not the business of the government nor the secular courts, although the courts will pay every respect to the individual’s or the family’s religious principles, and it is not the court’s place to weigh one religion against another. However, the welfare of the child is always paramount, and where the court feels that conflict of a religious nature is negatively affecting the welfare of the children, the court will make an order regardless.

Lord Justice Scarman, in the earlier case of Re T (Minors) (Custody: Religious Upbringing) [1981] 2 FLR 239, opined that where there is a conflict between one parent’s way of life and the other’s, it is important that the court does not simply look at what is acceptable to most of us, but looks at the detail of the circumstances of the parents and child and determines where the true interests of the child lie.

In F v M (No 2), the mother requested that Judge Rowe revisit her decision, asking the husband to commit to providing the children with a full Satmar experience when they were with him. The judge criticised the father as unwise for taking the children to a museum where there was a depiction of evolution. This criticism was picked up by the media as a suggestion that the court had failed to remain impartial. However, the judge’s criticism was rooted in the fact that the father had agreed that exposure to outside ideas should only be done at a slow and sensitive pace. This was not about shielding the children from the outside world, but rather about avoiding their distress while doing so.

In F v M (No 3), the parties made cross applications. The father made an application to uphold a previous ruling that the children were to spend alternate weekends with him, including the Sabbath period, and that his contact would also include Jewish religious festivals. Conversely, the mother invited the court to find that the father had acted in ways which breached the religious rules of the Satmar sect, directing him to comply with these rules when he was in charge of the children.

The mother’s case was that the father had allowed the children to see and do things which were forbidden by the rules of the Satmar sect, such as breaking the rules of the Sabbath by using electronic devices, allowing the children to ride their bikes during the Sabbath, and further allowing the children to eat non-kosher food, watch television, and refuse to wear a kippah when they were with him. She argued that the father’s actions both placed the children at risk of exclusion within their community and meant that they missed out on the full Satmar experience of the Sabbath by not spending the Sabbath with her.

Judge Rowe QC criticised the father as ‘careless, unwise and actually disappointing’ for showing the children TV and resisting aspects of the Satmar life which applied to them. The judge explained that it was important for the children to receive the clear message that their lives with each parent were equally important. She went on to say that it was vital for the children to see their father as still Jewish, regardless of the Satmar community’s difficulty in acknowledging him as such.

The judge’s rulings throughout the F v M case could be interpreted as being in conflict with the court’s role as secular and impartial. However, Judge Rowe QC was not prescribing a specifically religious upbringing for the children, but rather one where there is sensitivity in respecting both parents’ ideas for their children.

Hannah Greene is an associate at Family Law in Partnership

@FLiPltd flip.co.uk

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