A father’s rights?
Last week the Court of Appeal was the venue for a stark clash of cultures. One the one side stood members of the Haredi Jewish Community and on the other stood 21st Century secular Britain.
The Haredi (also spelled ‘Chareidi’ or ‘Charedi’) community is the one of the most religiously conservative within Judaism, although they are not always of the same sect. They are collectively often referred to Hasidic Jews, although this properly refers to only branch, or as ultra-Orthodox, although many Haredim themselves do not like the latter term.
The term Haredi itself translates roughly as ‘those who tremble (at the word of the Almighty)’.
Some of those who describe themselves as Haredim do not at first sight seems as extreme as others who are more readily identifiable by their dress. The menfolk wear large black hats under which they will also have the traditional skullcap or kippah. They have long beards and typically wear long black coats. The women cover their heads by wearing wigs (sheitels) and always wear modest dress and never trousers. As a community they live amongst themselves, and do not really form a part of the wide secular society around them. In Israel this has lead to much bitterness between the Haredim and other Israelis, particularly in relation to compulsory service in the Israeli Defence Forces, from which Haredi men and women are currently exempt.
The Court of Appeal case concerned a Haredi family living in northLondon. Their ultimately unsuccessful marriage, which nevertheless produced five children, had been arranged by their families. They had separated two years previously after a full ten years of marriage. During that time the couple had led a fully Haredi lifestyle, with a strict observance of religious standards that most other members of the Jewish faith could not readily or easily match.
Since the separation, however, to make up for what she felt were the deficiencies in her education, the mother had begun studying for an Open University degree and became determined, to quote the Daily Telegraph, that her children “should have the education she never had”. In July this year she applied for and obtained a residence order in respect of the children, as well an order which would allow her to move the children from single sex ultra-orthodox schools to co-educational Jewish schools with a broader curriculum: orthodox but not ultra-orthodox. She argued that these new schools would offer the children “infinitely superior opportunities”.
The horrified father, with the support of both families, sought permission to appeal both orders. He sought joint residence and did not wish his children to be sent to a co-educational school or to have unsupervised access to television and the internet. The Haredim place a very high value on education –Lord Justice Munby noted in his judgement that is it is of “transcendental importance” – but for them secular knowledge comes a firm second to religious knowledge, to the study of the Torah and all its sources.
Religious communities like the Haredim are often very self-contained and we see something of this in the father’s concerns that moving the children to orthodox schools would isolate them from the Haredi community in which they had been born and grown up.
Thus, as Lord Justice Munby sensitively put it, the assistance of the court was being voluntarily requested. There was no state intervention. The court was responding at the request of the family, as to what it considered to be in the best interests of the children. The father and the grandparents on both sides were convinced they knew. So too, did the mother who it seemed to me, had had a taste of a freedom and, appreciative of its benefits, wanted it for her children too. What she was proposing by educating her children at another less Orthodox but still Jewish school, wasn’t that radical.
In a judgement that is deeply perceptive and fully appreciative of both parties’ opinions, Lord Justice Munby considered the law and expressed views on how it should be applied that should be required reading for every judge in my opinion.
He adopted the position of a ‘judicial parent’ looking towards the 22nd Century, because “with modern life expectancy a judge dealing with a young child today may be looking to the 22nd century.”
First he traces the history of the court’s approach to such matters, and how at the present day in 2012 women have the right to make the same choices for their children as fathers.
Then he considers the factors to which the court attaches importance, such as their familial, educational and social environment, and his or her religious, social, cultural and ethnic community. “A child’s best interests have to be assessed by reference to general community standards, making due allowance for the entitlement of people, within the limits of what is permissible in accordance with those standards, to entertain very divergent views about the religious, moral, social and secular objectives they wish to pursue for themselves and for their children”
He goes on to discuss the general non-critical approach of a modern court in relation to religion, reminding us that in our democratic society, the state will tolerate diverse religious practices unless they manifestly go ‘beyond the pale’ and are contrary to public policy.
He discusses various religious practices where the court has felt obliged to intervene – as with a 15 year-old boy who as a Jehovah’s Witness objected to a life-saving blood transfusion. The court ordered such transfusion to take place and presumably still would, notwithstanding the fact that the same boy died only a few years later when as an adult he again rejected a blood transfusion and “went bravely to his death”.
But as Lord Justice Munby made clear in the present case, it is not for the court to normally criticize or intervene in relation to religious practices which may only be acceptable to a few.
“What in our society today, looking to the approach of parents generally in 2012, is the task of the ordinary reasonable parent? What is the task of a judge, acting as a ‘judicial reasonable parent’ and approaching things by reference to the views of reasonable parents on the proper treatment and methods of bringing up children? What are their aims and objectives? These are questions which, in the forensic forum, do not often need to be asked or answered. But in a case such as this they are perhaps unavoidable.”
Then he gives his answer:
“In the conditions of current society there are, as it seems to me, three answers to this question. First, we must recognise that equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls. Second, we foster, encourage and facilitate aspiration: both aspiration as a virtue in itself and, to the extent that it is practical and reasonable, the child’s own aspirations. Far too many lives in our community are blighted, even today, by lack of aspiration. Third, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead – what kind of person they want to be – and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximise the child’s opportunities in every sphere of life as they enter adulthood.”
Looked at from this perspective, the court made the only possible decision in the case – a broader education is clearly better for the children than a narrower one.
But the father and other members of the Haredi community will have seen the situation very differently. For them the father has the right to choose and it would not surprise me if he tries to take the case higher up the court system.
What do I think, as a Jewish mother myself? I am in full agreement with the judgment because I recently attended the Bar Mitzvah of a Haredi boy, obviously very bright. It was the day after Yom Kippur when this boy performed in Hebrew and then gave a text in English that should have been years beyond him. However in his case, his university educated parents have also ensured that his secular education is also excellent and he has access to the things we take for granted;- television and play stations. They nevertheless still describe themselves as an Haredi family.
It would seem that a good all round education which equips her children for life inside and outside of their community is actually the aim of the mother for her children in the London case. The order she obtained will mean that the children will not be brought into conflict with her and will still be able to become more observant if they wish. That door has not been closed as Lord Justice Munby observed.
Thus I applaud Lord Justice Munby for a judgment which was addressed with great sensitivity to both the parties and all those who may experience religious issues in family breakdown.
Finally, I noticed this too:
“…the corollary of this, where the decision has been devolved to a ‘judicial parent’, is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child’s ability to make such decisions in future.”
Photo of Haredim going to synagogue by Christophe Cagé via Wikipedia under a Creative Commons licence.
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
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