In their best interests, part two: the alarming case of C (A Child)

competent child faith caseYesterday we looked at the case of L v P, in which a 15-year-old child objected to her father’s application for a DNA test to confirm her paternity. The child argued that the test and its results could affect her relationships with both her parents. The judge in that case, Mr Justice Hedley, ruled in her favour. He decided that she fully understood the issues in relation to the test, and was entitled to consent or refuse it.

Today’s case, C (A Child), Re [2012] EW Misc 15 (CC), also concerns a parent’s wishes pitted against a child’s. Again, the judge concluded that the child understood the issues and should be permitted to realise her wish. His judgment, however, has left me horrified – to the extent that, if I found myself in such a situation, I would be considering an appeal.

 

Let’s take a closer look.

Unusually for such a serious case, about which the judge himself remarked that there are “no binding precedents”, C (A Child) was not heard in the High Court. Instead it was heard by Judge Platt of Romford County Court.

The case centres upon a 10-year-old girl, whose parents divorced when she was eight. The girl and her younger brother spent alternate weeks with her mother and her father. Their parents and all four of their grandparents were Jewish, although the children were being raised with little religious observance.

Following the divorce, the girl’s father converted to Christianity. With the mother’s permission, he took the children to his church and also took them to a Christian festival called New Wine.

However, when the 10-year-old daughter returned from the festival she had decided that she, too, wished to be baptised into the Church. The mother and grandparents were horrified. Why had faith become such an issue? Because of the husband’s conversion, which doesn’t seem to have been raised in this case, but which had sent the entire family into a tailspin.

In November 2011 the mother applied without notice to the father for a prohibited steps order, and the father was forbidden from  baptising the girl into the Christian faith. Later that month, the without notice order was discharged by Judge Platt, who instead made an order that neither child was to be baptised or to “celebrate a bar mitzvah” (sic) without the consent of the other parent before a final hearing.

 

The Cafcass officer

A Cafcass officer was asked to file a report, and spoke to all parties. The officer recommended caution and suggested that a decision be deferred for two years, until the child was older. In the meantime, the officer made the following proposals, after consulting with her service manager:

a. C’s current feelings are noted, acknowledged and respected by the court and both her parents.

b. The parents to ensure C has access to information and teaching of both her parents’ faith to enable her to fully understand her choices and the implications of this.

c. the matter be reviewed in two years time, when C may have acquired the maturity and information to be able to make a fully informed decision.

d. there should be a contact activity order for the parents to attend a Parenting Information Programme and work to avoid the children being placed in an impossible position by the conflict between them.

Her conclusions don’t seem unreasonable to me, not least because the child’s experiences of the Jewish faith had been hitherto limited.

 

The judge’s decision

Judge Platt decided otherwise:

I am satisfied that C’s welfare interests are best served by allowing her to be enrolled in a baptism class and to present herself for baptism into the Christian church as soon as she is ready. If the mother feels unable to accept this judgment and consent to this course of action it may proceed without her consent.

He ordered that although the child was permitted to be baptised into the church, she should not be confirmed until she was 16.

It is clear from the evidence that the father belongs to the Anglican Church and I accept his evidence and understanding of mainstream Anglican belief, which is the view of his church, that baptism is a ceremony in which the child is welcomed into the community of the church and starts his or her journey in faith.

My thoughts

I note that the father’s church, New Wine, is part of a growing evangelical movement in the UK. It holds summer festivals, or “conferences”, which have been described as “proselytising”, with importance placed upon the “power of prayer”, “charismatic worship” and powerful spiritual experiences. A newspaper photograph shows followers standing, their hands in unison stretching up into the air.

“The vision is to see the nation changed”, the New Wine festival director has said.

I don’t have any problem with an adult following their religion. But my question is this: immersed in a proselytising movement, how could a 10-year-old step back and make a fully informed choice? I’m trying to imagine the impact of the church on such a young child, especially one who has been encouraged by her father. Judaism does not seek to convert others, so this case couldn’t have occurred the other way round.

I can certainly understand why the child asked to be baptised.  But was it in her best interests, given the family’s seemingly casual attitude to the Jewish faith, and the family turmoil resulting from the father’s conversion?

In Jewish law, a 10-year-old child is not recognised as having the capacity to fully understand the nature, implications and ramifications of such a choice. As a onetime mother of a 10-year-old, I agree.

 

The judge’s startling comments

When dealing with the mother’s objections as to the amount of time the child intends to spend with the church, the judge made the following, incredible comments:

As the father pointed out this arrangement does not increase C’s quality time with him. It simply increases the quality time she spends with God and with the friends she has made at church.

He continued:

The fact that C is away at church gives the mother the opportunity for her to spend one to one quality time with her son A which would not otherwise be open to her.

I was left (almost) speechless.

The judge found entirely against the mother. He criticised her for seeking the assistance of the court. But faced with her daughter’s determined father, who “wishes to do all he can” to support the child’s wish to be baptised, it doesn’t seem to me that the mother had many options. Why not invoke the court? It was her right.

 

What happens next

Where now for this little girl and her family? She has received a letter from the judge, in which he told her she could be baptised:

My job is to decide simply what is best for you and I have decided that the best thing for you is that you are allowed to start your baptism classes as soon as they can be arranged and that you are baptised as a Christian as soon as your Minister feels you are ready.

 I suspect the decision will have chipped at the bond between  mother and child. And for a judge to suggest that the mother should be comforted because she can spend more time with her son, and that this should somehow make up for the loss of her daughter,  is one of the strangest comments I can recall reading in any judgment.

What of the grandparents’ relationship with their granddaughter? And what of the paternal grandparents’ relationship with their son? How will the family dynamic between the mother, father, daughter and son be affected? Why did religion have to be imposed upon the family by the father, with such a profound impact?

It is difficult to conceive of a more serious issue for a child than this. Surely, manifestly, this case called out for a High Court judge.

If I was advising the mother, I would suggest an appeal. But I also wonder if, by writing to the little girl as he did, the judge hasn’t ensured that an appeal is virtually impossible.

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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17 comments

DT - August 15, 2012 at 5:15pm

What an alarming case Marilyn!

This judge’s comments are absolutely incredible.

I think the decision must be appealed; I’d hate to see this deeply flawed decision followed again.

I think that it’s worthwhile saying here that I would have the same objections to the ruling no matter which religions were involved.

When I first read it, I had to read it again because I thought that I’d misread it or got it wrong some how. It’s such a poor decision with such defective reasoning and totally lacking in joined-up thinking in my opinion.

And of course, all of this comes back to ‘what is best for the child’! How can that principle be made in any way consistent with this decision?! I am very much in favour of child-focused legislation – more than many I would say, but this decision wasn’t at all child-focused!

I think 10 years of age is far too young to make an informed decision, and that is (as Marilyn rightly points out) what is required here – an informed decision.

Marilyn raises the important point of this decision upon the family dynamic and I think that’s absolutely right. This decision will more than likely affect and change (for the worse) the family dynamic. That’s not child-focused!

I think this also raises and interesting point about being brought up with religion. I wasn’t brought up with religion – I wish I had been. I have no objections to children being brought up in a particular faith, whatever that faith may be. By the same token, I think those parents who choose a secular upbringing for their children and leave it for the child to decide when they are older is also just fine too.

I have heard parents says that religion is a very personal thing and shouldn’t be forced upon a child; if the child wants to embrace a faith later on, then so be it. I think there’s credence in this view also.

I do think that as children have increasing access to information (not just from the internet, but many aspects of life are now more liberally discussed), then this may perhaps be the start of things to come, be it religion, life-style or other.

DT

Observer - August 16, 2012 at 1:04am

It seems a bit odd to speak of “informed decisions” in matters of religion, but I’ve heard much more incredible things from the mouths of judges.

It is good to see this unequivocally flawed judgment being questioned here. It would be helpful to see more such judgments questioned.

The judgment in L v P is also unquestionably morally flawed. It is disingenuous to say that the mother had no objection to the paternity test, and it is obvious that some barrister planted those words in the mouth of the girl, and it is even more surprising that the judge actually bought them. (Actually, he didn’t; as we all know, such decisions are already made way in advance). Goes to show that justice is completely subordinate to crafty language (but we all know that already). I suspect that this decision simply has more to do with preempting a development where the financial burden on “dad” would shift to a financial burden on the state.

Nothing new there though. Politics has always trumped ethics.

DT - August 16, 2012 at 5:15pm

Observer

“Informed decision” relates to the ability to decide, determine, consider and weigh-up – the subject matter is immaterial.

I think, for the most part, Judges get it right. This case stands out because the decision was, in my view, SO spectacularly poor.

RE: your comments on L v P – I think that you’re perhaps under-estimating the girl. I have come across many a savvy 15 year old in practice who was more than capable of autonomously articulating wishes and feelings.

DT

Legal Expert - August 16, 2012 at 8:17pm

DT-

Okay, but the ability to weigh up the merits of one cult over another is still pretty non-sensical, isn’t it? One might have expected more from a judge?

If you cite nearly any “leave to remove” case over the past 20 years, you will also find some “spectacularly poor” decisions that run entirely counter to the empty rhetoric of child welfare. Nobody flags these up though….

Re: LvP, I don’t think a 15-year old knows how to be so manipulative with language. Is her relationship with her parents really any less changed, now that there are the doubts as to who her real dad is? She will now be forced to suffer uncertainty, because some judge was gullible enough to really think she knew what she was saying. But I think we know that gullibility doesn’t even enter into it, because the judgment was formed prior to it even entering court.

DT - August 16, 2012 at 8:38pm

Legal Expert

I would hardly call Judaism a cult.

Yes, this is not the first poor decision, but it is resplendently shocking. However, this is not an exercise in ‘Which was the worst case’. This is about a very specific case.

RE: L v P: – I don’t know what kind of legal expert you are; however, I think you have under-estimated this young lady. I have come across some very articulate young people in practice. I once had a 5-year-old write to a judge in a care case – of her own volition.

I don’t believe a decision was made without listening to the evidence. What kind of cases over which you are a “legal expert’ does this occur?

DT

DT - August 18, 2012 at 12:56pm

“That Guy on August 18, 2012 at 1:03 am
DT :- Via the Children Act 1989, a judge is obliged to consider the wishes of a child, where it is appropriate to do so. I think judges consider it appropriate to consider the wishes of a 10 year old. On the one hand he had the father and the daughter in favour of baptism. On the other hand, the mother opposed to it. In the circumstances, I think he was more or less obliged to accept the wishes of the father and the daughter.”

Why do you think he was obliged?

Marilyn Stowe - August 18, 2012 at 3:34pm

All
This child is only ten! At ten years old, no matter how bright, how convincing, how much she wishes for something, by age 11 she can equally want something else. That’s what growing up is.
 When I was ten I wanted desperately to be an Olympic athlete. When I was eleven I wanted to be a fashion designer. I can remember how much I wanted to be both those things and gave them both up. 
What is going to happen to that little girl now? Should ten year olds get their own way because they want it? Is that the welfare test?
Further as a lawyer, who is used to the concept of full disclosure and making sure that someone is fully advised as to all their options before they commit, this outcome for me is truly shocking. She didn’t have the full picture and the attempt to give her it was rebuffed by the Judge.
I don’t believe a ten year old is in any event capable  of making that type of informed decision still less when the options were not even permitted to be put to her. 
Finally, and even more important, I believe her relationship with her own mother should always come first, and that should undoubtedly have been a first consideration for the Judge. It counts far more than her new found religion and her new religious friends.  
Marilyn

DT - August 18, 2012 at 8:18pm

When I wrote of a child being able to make an informed decision, it was in relation to
L v P (a 15 year old on a very specific matter), and NOT in relation to C (A Child) a 10 year old; I would just like to be clear about that if I was in any way not so.

I think it’s good to juxtapose these two cases because they consider the same principle, i.e a child being involved in a case, expressing their own view, but in different situations and with different outcomes in my mind.

I think the Welfare Test was given scant consideration in this case (C (A Child); certainly going forward, I think the consequences of this decision haven’t been thought through.

When I was thinking about this case this morning, I thought about how (detailed in points 7, 8 & 9 of the attached linked case) the childrens’ home was not a religious one and the grandparents of the children were not religious either and festivals, holidays and dietary rules weren’t followed etc. I thought a lot about this aspect to see if it would colour my thinking. I concluded that it didn’t and the reason why is this.

To be Jewish is more than a religion, it is also a race. I understand through my previous readings on the subject that it is the only religion to also be a race, (please correct me if I’m wrong). Therefore, if this child changes religion, racially, she’ll still be Jewish; it’s immaterial if she practices or not, it’s still and always will be part of her. And so to change religion at such a young age will surely leave her with a past and a future which are inconsistent with one another.

Now, if she wants to do that later, in the future, once she’s a bit older, she will be better equipped to understand her past, her ancestry, her heritage and what she is; but right now, I don’t see how she could have the skill-set to deal with that.

I agree with your point Marilyn about the child’s mother and their relationship. I don’t know how this will be affected, but surely it will be.

I hope this decision is appealed.

DT

Observer - August 18, 2012 at 8:51pm

Society now frowns on 10 and 15 year old boys/girls entering a relationship with someone older. The reason for this is because they are emotionally vulnerable and do not know what they are doing. It therefore follows that children under the legal age of 18 should not be preyed on by judges to offer up explanations about things the implications of which they know nothing.

Children should clearly not be allowed in court, except in very extreme cases. It is well researched and known that children are only ever spokespersons (and indeed used as spokespersons) for the person on whom their loyalty is centered. We know that this usually tends to be mom.

It is wicked child abuse to put a child in the middle of a court scenario and seek to divide their loyalty to a parent or guardian or anyone else. Shame on the courts!

DT - August 18, 2012 at 9:16pm

Observer

I don’t like the phrase ‘preyed upon by judges’; this makes them sound predatory and that’s absurd.

There are times, (not often, but sometimes), when children do have to go to court, and I’m thinking now in some care cases. I think it can be empowering for them to do so – to see what great ‘machine’ is determining their destiny. Some ask to go.

A child can be listened to – their wishes don’t have to be followed.

DT

boxerdog - August 22, 2012 at 10:22am

It seems the issue here is around “informed consent”, and the expressed wishes of a child. Having interviewed and spoken to thousands of children and young people in my working life I have a few observations.

Children even as young as 10 can have a sophisticated understanding of complex issues…..provided they are explained to them in ways that they can understand….see the Edinburgh school of child psychologists and the work of Edward de Bono.

But clearly that understanding will be influenced by social and emotional factors, particularly when in difficult circumstances involving parental conflict about any issue. And this needs to be factored in before any judgement is made.

Children are not stupid…..I have interviewed many children who have worked out what the least damaging option is for themselves and their parents, and choose to excercise that option even when it may have consequences for themselves, which may or may not be in their best interests. I have seen children make decisions in order to manage their parents disputes….in fact they are accepting and excercising pseudo-adult responsibilities, from a position of vulnerability. I have been moved by the stoicism, sacrifice and accomodation that some children make in order to reduce real or perceived parental conflict.

The reports of conversations with and analysis of childrens expressed wishes should also be tested to see if it meets their needs…..as well as their wishes and feelings, about the issues of the moment.

This is the key, in my view…..to have a set of scales with needs on one side and wishes and feelings on the other….and some balance in the whole process otherwise we risk further burdening children with finding solutions for their parents shortcomings.

Observer - September 8, 2012 at 7:19pm

Boxerdog,

The parent who puts the child in the middle of a conflict is inflicting child abuse (although the law community that thrives on conflict wants to deny that still).

The child may ‘feel’ that this parent is best capable of looking after their own interests; that is only natural since their loyalty has been divided and conquered by that parent. But role-modeling child abuse cannot be good for any child, and I am very surprised to hear that you say you have worked with children for many years and show very little sensitivity to this.

No one - November 9, 2012 at 8:22am

If you have been led to believe that the child (ren) are yours and it is later proven to the courts satisfaction that there is no biological relationship (thus an act of fraud has been committed) AND if the mother cannot remember the name of the biological father then YOU ARE LIABLE FOR MAINTENANCE. Maintenance is not enforceable by the CSA but by way of a court order, which can go further than the CSA. You will not necessarily have Parental Responsibility and may have to apply to the court for a contact order if you so wish. Even if you decide to not to have contact then the fraudster is still entitled to maintenance, as you accepted the child as a “child of the family” even though you had been duped into believing it.

JamesB - November 9, 2012 at 11:37am

Sorry, but that is just plain wrong and misleading and may upset and confuse people unessesarily, bit like Philip Schofield yesterday. Unless child is adopted, if it’s not biologically yours, then you have no financial liability for it.

Observer - November 9, 2012 at 2:04pm

No one,

Can you provide evidence for what you say?

Concerned Australian - March 6, 2013 at 3:42am

I really believe that the Judge did not like the Jewish faith, that is why he was so against the Mother and all for the Father and the daughter becoming a christian.That MOTHER really needs to appeal or her relationship with her daughter will be badly damaged. I am sure the Father realizes that but he does not seem to care,he appears so full of himself he assumes that the Mother is jealous of his remarriage -or his 2 remarriages if I understood the meaning of that correctly maybe I am wrong on the 2 marriages.Anyway he is not much of a Father to be prepared to damage the Mother and daughter relationship.Maybe he wants the new wife to be the new Mummy too, and hopes that the damage he causes will result in the next thing the daughter will want is to live with him and the new Stepmother all the time , and I am sure the Judge will let her seeing as he does not like the Mother.The Mother should also be concerned because the next thing the Father will want is the son to become a christian as well,and then she will have lost them both to a very selfish Father. GOOD LUCK to the MOTHER I think she will need it.
Concerned Australian.

Stephanie Kahn - November 30, 2013 at 12:26am

I agree with “Concerned Australian” as to the judge’s dislike of the Jewish faith. I would appear that the judge believes one can only go to Heaven if one has accept Christ as the Savior, and as such, I believe his decision been unfairly made on that basis. The judge has given NO consideration to the Mother or the grandparents on both sides. The Father has put is 10 year-old daughter in an unenviable position and is a very selfish person!

To “DT,” Judaism is a RELIGION…….NOT a RACE. Anyone can be Jewish, be they Caucasian, Black, Asian, Hispanic, etc. I am Jewish and Caucasian!!!!

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