Childrens’ religious upbringing following parents’ divorce/separation
Following the recent case of Re: C (A child)  EW Misc (CC,) where a Judge sitting at Romford County Court where the court ruled that a 10 year old girl could choose to convert from Judaism to Christianity following disagreement between the parents, there is much which must be considered when looking at a child’s religious upbringing following separation/divorce. In this case, the mother was Jewish and the father had converted from Judaism to Christianity following the parties’ separation in 2010. The court noted that the parents had not been strict Jews and were not practising Jews in that they did not regularly attend the synagogue or teach the children anything about Judaism at home. It became apparent that it was actually the child’s maternal grandparents, both Jews, that were against the child’s decision to convert. At the end of the case, the Judge ruled that the child should be allowed to have baptism classes as she wished, as she was mature enough to make the decision and should feel supported in doing so. The mother was encouraged to learn more about being baptised by speaking with the Minister. The father stated that he had not encouraged the child to convert although he did regularly take the children to the Church during the period that they stayed with him, on alternate weeks and would continue to do so.
Geraldine Morris, a solicitor at LexisPSL, recently wrote an article on the disagreements on religious upbringing which can arise in a family following parents’ divorce/separation. This issue of religious disagreement also recently hit the news when actor and leading member of theChurchofScientology, Tom Cruise, filed for divorce for the third time and it inevitably attracted a lot of attention and speculation. Reportedly, a cause for concern to his third ex-wife, Katie Holmes, is that of their daughter’s religious upbringing within theChurchofScientology.
InEnglandandWales, there is a range of potential courses of action available under the Children Act 1989 (ChA1989), although alternative dispute resolution methods, particularly mediation, should always be the first port of call. In law, parents do not have to provide their child with any religious instruction where the parties are of different religions and/or have strong views.
The starting point is that religious influences are significant in terms of a child’s future and thus are one of the relevant circumstances when applying the principle of the paramountcy of the child’s welfare per ChA 1989, s1 (see Re R (A Minor) (Religious Sect)  2 FCR 525). Context is everything – there are no hard and fast rules relating to set religious practices or beliefs, so the court will look at the reality of the child’s upbringing and family circumstances and the impact of any decision made in relation to religion.
Specific Issue Applications
One potential course of action is an application for a specific issues order under ChA 1989, s8 as in Re J (child’s religious upbringing and circumcision)  1 FCR 307, in which the child lived with his non-practising Christian mother and his Muslim father sought an order that his son be circumcised. The judge at first instance ordered that circumcision was not in the child’s best interests, summarising his views thus: ‘Although born a Muslim, it is clear to me that J is going to have an essentially secular upbringing inEngland. He is not going to mix with Muslims and the Muslim ethos will be his contact with his father. J is therefore not going to grow up in an environment in which circumcision is a part of family life; or in which circumcision will be conformity with the religion practised by his primary carer; or in which his peers have all been circumcised and for him not to be so would render him either unusual or an outsider.’ This decision was upheld by the Court of Appeal.
In Re: T (minors) (custody: religious upbringing)(1975) 2 FLR 239 a specific issue order was made allowing the child to be brought up as a Jehovah’s Witness, subject to an assurance from the parent that the child would have blood transfusions, usually prohibited by the faith, if necessary for life and health.
Condition on a contact order
A condition in relation to religious upbringing may be attached to a contact order that the person given contact with the child must not communicate in any way with him in relation to religious or spiritual matters. In Re R (A Minor) (Religious Sect)  2 FCR 525 the court was concerned with a religious organisation who operated a very strict separatist rule – members were not allowed to mix socially with anyone not in the Fellowship and anyone outside the strict tenets of the society was ‘impure’ and contact with then was regarded as injurious.
Transfer of residence
In Re: B and G (minors) (custody)  FLR 134 the court made an order that the children concerned should not be brought up as Scientologists. The court heard three full weeks of evidence, largely regarding Scientology itself. The judge had initially considered the time estimate excessive, however by the time he gave his judgement he had changed his mind. He described Scientology in very strong terms thus: “Scientology is both immoral and socially obnoxious…It is dangerous because it is out to capture people, especially children and impressionable young people, and indoctrinate and brainwash them so that they become the unquestioning captives and tools of the cult, withdrawn from ordinary thought, living and relationships with others”. While recognising the dedication of the father to the children, the judge made an order transferring custody (now residence) to the mother with ample access (as it then was) with their father.
In most cases, any issues as to religious upbringing will be minor and hopefully resolvable without redress to the court. In every case, the family societal context will be extremely significant, as Thorpe LJ in Re: J (child’s religious upbringing and circumcision) commented: “A child’s perception of his or her religion generally depends on involvement in worship and teaching within the family. From this develops the emotional, intellectual, psychological and spiritual sense of belonging to a religious faith”.