LAW, MORALITY AND RELIGION IN THE FAMILY COURTS

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1 LAW, MORALITY AND RELIGION IN THE FAMILY COURTS A Kent Alumni Lecture given by Sir James Munby, President of the Family Division for the Law School of the University of Kent in London on 16 May 2013 Only a little over a century ago, in 1905, a judge in a family case could confidently opine that the function of the judges was to promote virtue and morality and to discourage vice and immorality. 1 So the purpose of the law was the enforcement of morals. 2 And that morality was, of course, Christian. In 1910, the Divisional Court had to consider 3 whether a landlord was entitled to recover the unpaid rent on a flat let to a woman who was the mistress of the man who actually paid the rent. The decision was that the rent was not recoverable. There was evidence that the woman was in fact a prostitute and using the flat for purposes of prostitution, but that was not the basis of the decision. Darling J described her as an immoral woman, being the kept mistress of a certain man and the rent paid by him as the price of her immorality. He continued: I do not think that it makes any difference whether the defendant is a common prostitute or whether she is merely the mistress of one man, if the house is let to her for the purpose of committing the sin of fornication there. That fornication is sinful and immoral is clear. The Litany speaks of fornication and all other deadly sin, and the Litany is contained in the Book of Common Prayer which is in use in the Church of England under the authority of an Act of Parliament. Bucknill J described the contract as tainted with immorality and commented: It was urged that prostitution is one thing, and living as one man s mistress is quite a different thing. They may differ in degree, but they both stand upon the same plane Constantinidi v Constantinidi and Lance [1905] P 253, 278, per Stirling LJ. The title of Sir Patrick Devlin s 1959 Maccabaean Lecture, The Enforcement of Morals. Upfill v Wright [1911] 1 KB

2 If this is thought to be the voice of a different age, it is sobering to recall just how long this view retained its vigour. I recall appearing before Megarry J in 1974 in what we would now call a TOLATA claim. 4 He refused to allow my opponent to amend his pleadings to set up an express agreement between the man and the woman as to the shares in which their home was to be held. They were a most respectable middle-aged couple but they were unmarried. The contract he said, and I have never forgotten his words, was tainted with vice and immorality. I suggested that surely in the 1970s the law could distinguish between a contract for the provision of a carriage to a prostitute to enable her to ply her profession 5 and the contract here in issue, but the submission fell on deaf ears. My opponent and I quickly settled the case. Soon after, in 1977, this was consigned to history, when it was finally established that unmarried co-habitation is no longer regarded as an immoral purpose. 6 Before coming to a discussion of how the law has moved on, it may be useful to consider how these principles were applied by our ancestors in the context of family law. Victorian family law was founded on three great pillars. First, it went without saying that the basis of the family was a marriage that was Christian (or if not Christian, then its secular or other religious equivalent) and, at least in theory, lifelong. Until very recently family law was concerned largely, if not exclusively, with the family wrought in the image of Sir James Wilde s famous definition of marriage in Hyde v Hyde: 7 I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others. Secondly, the relationship of the husband and the wife within that marriage was fundamentally unequal. The classic statement of the nature of marriage was that of Sir James Hannen P in 1885 in Durham v Durham: 8 protection on the part of the man, See the Trusts of Land and Appointment of Trustees Act A reference to the celebrated case of Pearce v Brooks (1861) LR 1 Ex 213. Heglibiston Establishment v Heyman (1977) 36 P&CR 351. Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130, 133. (1885) 10 PD 80, 81. 2

3 and submission on the part of the woman. Protection and submission reflect a characteristically Victorian view of the man as prepotent and the woman as essentially frail and weak. The inequality inherent in the marriage relationship was underscored by the notorious double standard enshrined in the law of divorce. The effect of section 27 of the Matrimonial Causes Act 1857 was that, whereas a husband could divorce his wife for simple adultery, a wife could not divorce her husband unless she could prove either what might be described as aggravated adultery (that is, adultery coupled with incest, bigamy, cruelty, desertion or rape) or sodomy or bestiality. Thirdly, the relationship of parent and child was in large measure left to the unregulated control of the father. The father was virtually absolute, the law was disinclined to intervene and the modern concept of the child s welfare was almost wholly absent from the law. The corollary of the second and third of these fundamental principles, when taken in combination, was, of course, that the mother s rights in relation to her children were precarious. In striking contrast with the position of the errant father, moral failings were enough to separate a mother forever from her child. The high Victorian approach expressed in characteristic language is wonderfully if appallingly exemplified by Re Besant in 1878, 9 where it was held that the publication by the mother, the redoubtable Annie Besant, of a book condemned by a jury as an obscene libel 10 was, in itself, sufficient grounds for removing her 7-year-old daughter from her custody. 11 The obscene libel which had these terrible consequences for both 9 In re Besant (1878) 11 ChD See R v Bradlaugh (Charles) and Besant (Annie) (1877) 2 QBD 569, (1878) 3 QB Sir George Jessel MR, sitting at first instance as was the custom in those days, waxed eloquent: Another accusation against Mrs Besant is this: It is said that in addition to these opinions on the questions as to the existence of a Deity and other speculative subjects, Mrs Besant has been guilty of immoral conduct in publishing an immoral or obscene book, or rather pamphlet. Now, I am sorry to say that on my attention being directed to some of the pages of this pamphlet I can entertain no doubt whatever as to its being an obscene publication Well, now, what is the result? The result of it is that Mrs Besant s character is to be judged not only by the publication of the book, but by the conviction following from that publication, and one cannot expect modest women to associate with her. She may be a most conscientious person that is to say, she may believe that all she has done was done by her for the purpose of doing good. I am not unwilling to admit that, and to credit her with good intentions, 3

4 the mother and her child was nothing worse than a treatise on contraceptive methods. There was nothing at all that we would find obscene in the book; it simply described and recommended methods of birth control. The most striking application of this approach was, of course, the practice, almost universally adopted, of denying an adulterous wife not merely custody of, but even access to her children. As Sir Cresswell Cresswell said in 1862 in Seddon v Seddon, 12 it would have a salutary effect in the interests of public morality that it should be known that a woman, if found guilty of adultery, will forfeit, as far as this Court is concerned, all right to the custody of, or access to her children. The case was a striking example, for the husband had himself been guilty of misconduct conducing to his wife s adultery. As Sir Cresswell said, The petitioner has come before the court in a most unfavourable character. His conduct towards the unfortunate respondent was most heartless. Jealous by nature, that unhappy woman had her jealousy constantly kept alive by her husband, and at last threw herself into the arms of her seducer. But, he continued, She must take the consequence of her conduct. 13 Standing back from the detail three features of the Victorian approach are striking. First, enthusiastic adherence to the view that the function of the judges was to promote virtue and discourage vice and immorality, secondly, a very narrow view of but if she has adopted a course which is reprobated by a vast majority of mankind, and in fact by the criminal law of this country, I do not think I should be right in saying that it would be beneficial for any young girl to be brought up by such a woman, and I think I should be guilty of a dereliction of duty if I allowed a young girl to be so brought up and educated in that way. Mrs Besant s appeal was dismissed. Giving the judgment of the Court of Appeal, James LJ equalled the Master of the Rolls in the vigour of his views and the vehemence of his language: It is impossible for us not to feel that the conduct of the Appellant in writing and publishing such works is so repugnant, so abhorrent to the feelings of the great majority of decent Englishmen and Englishwomen, and would be regarded by them with such disgust, not as matters of opinion, but as violations of morality, decency, and womanly propriety, that the future of a girl brought up in association with such a propaganda would be incalculably prejudiced But the Court cannot allow its ward to run the risk of being brought up, or growing up, in opposition to the views of mankind generally as to what is moral, what is decent, what is womanly or proper, merely because her mother differs from those views and hopes that by the efforts of herself and her fellow-propagandists the world will be some day converted. If the ward were allowed to remain with the mother, it is possible, and, perhaps, not improbable, that she would grow up to be the writer and publisher of such works as those before us. From such a possible future the Master of the Rolls thought it his duty to protect her, and we have no hesitation in saying that we entirely concur with him. 12 Seddon v Seddon and Doyle (1862) 2 Sw&Tr 640, 641, The approach was followed by the Court of Appeal in Handley v Handley [1891] P 124, where Lindley LJ commented that only in very exceptional circumstances would an adulteress be given access to her children. The court rejected what might be thought the very reasonable argument of Sir Edward Clarke SG that: In Hyde v Hyde (1859) 29 LJ (P&M) 150 access was given to a guilty husband, and there is no sufficient ground for a distinction between husband and wife in this respect. 4

5 sexual morality, and, thirdly, the dominant influence wielded by the Christian churches. Happily for us, the days are past when the business of the judges was the enforcement of morals or religious belief. That was a battle fought out in the nineteenth century between John Stuart Mill and Sir James Fitzjames Stephen (Stephen J) and in the middle of the last century between Professor Herbert Hart and Sir Patrick Devlin (Devlin J). The philosophers had the better of the argument, and rightly so. The controversy began with Mill s On Liberty, published in 1859 at a time, it may be noted, when sodomy was still a capital offence. In a famous passage he set out the classic libertarian argument: The object of this Essay is to assert one very simple principle, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign Mill continued It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury. For the same reason, we may leave out of consideration those backward states of 5

6 Stephen s riposte to this was Liberty, Equality, Fraternity, published in He held that restraints on immorality are the main safeguards of society against influences which might be fatal to it. 15 He saw the purpose of the law, both criminal and civil, as promoting virtue and preventing vice. 16 The criminal law, he said, 17 is in the nature of a persecution of the grosser forms of vice. Ten years later, in his History of the Criminal Law, Stephen returned to the same theme, expostulating in a striking passage 18 that the sentence of the law is to the moral sentiment of the public in relation to any offence what a seal is to hot wax and that the criminal law proceeds upon the principle that it is morally right to hate criminals and justifies that sentiment by inflicting upon criminals punishments which express it. The debate was reignited by the publication in 1957 of the Report of the Committee on Homosexual Offence and Prostitution (the Wolfenden Committee), which defined the function of the criminal law as being: 19 to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined. This time the debate began with the judges. In 1957 Lord Denning, speaking in a debate in the House of Lords on the Wolfenden Report, denounced homosexual acts as unnatural vice which strikes at the integrity of the human race. Posing the question Is this conduct so wrongful and so harmful that, in the opinion of society in which the race itself may be considered as in its nonage. The early difficulties in the way of spontaneous progress are so great, that there is seldom any choice of means for overcoming them; and a ruler full of the spirit of improvement is warranted in the use of any expedients that will attain an end, perhaps otherwise unattainable. Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. 15 Ibid, Ibid, Ibid, Vol 2, Cmnd 247, paras

7 Parliament, it should be publicly condemned and, in proper cases, punished? his answer was emphatic: I would say that the answer is, Yes; the law should condemn this evil for the evil it is. 20 In 1959 Sir Patrick Devlin delivered his justly celebrated Maccabaean Lecture, The Enforcement of Morals, also attacking the thesis propounded by Wolfenden. His language, if less colourful and muscular than Stephen s, 21 was to much the same effect. He held 22 that an established morality is as necessary as good government to the welfare of society, that societies disintegrate when no common morality is observed, and accordingly that The suppression of vice is a much the law s business as the suppression of subversive activities; it is no more possible to define a sphere of private morality than it is to define one of private subversive activity. The criminal law could properly be used to proscribe any immorality to which the man on the Clapham omnibus would react with intolerance, indignation, and disgust. 23 His adversary, Professor Herbert Hart, took much the same position as Mill. The debate raged for some time. 24 It died away without any definitive conclusion, but time has shown that Hart had had much the better of the argument. A poet famously suggested that Sexual intercourse began / In nineteen sixty-three. That caustic comment, which Larkin mordantly related to what he called the end of the Chatterley ban, conceals an important truth. The simple fact is that in so many 20 Lord Denning was speaking on 4 December 1957 (HL Debs, Vol 206, cols ): It is said that adultery and fornication are not criminal offences, so why should homosexuality be? The law answers that natural sin is different from unnatural vice. Natural sin is, of course, deplorable, but unnatural vice is worse; because, as the law says, it strikes at the integrity of the human race Take sterilisation. There was a case a little while ago where a hospital porter arranged with a doctor at the hospital that he should, by a slight operation, sterilise him, so that he could have all the gratification of sexual intercourse without any of the responsibilities. I thought, and still think, that it was a criminal offence between consenting adults if you please, in private. Or take abortion They all come within the category: they strike at the continuance and the integrity of the human race. And that is why they are put in a different category from adultery or fornication May I ask the question with which I started: Is this conduct so wrongful and so harmful that, in the opinion of Parliament, it should be publicly condemned and, in proper cases, punished? I would say that the answer is, Yes; the law should condemn this evil for the evil it is, but the judges should be discreet in their punishment of it. 21 Another well known example of Stephen s prose (Liberty, Equality, Fraternity, ) was the observation that I do not think the State ought to stand bandying compliments with pimps ; his view being rather that my opinion about you should be printed by the lash on your bare back. 22 Devlin, The Enforcement of Morals (Oxford University Press, 1965) Ibid, 15, The debate can be followed through Sir Patrick Devlin s original lecture, reprinted in Devlin, The Enforcement of Morals (Oxford University Press, 1965), 1, Hart, Law, Liberty and Morality (Oxford University Press, 1963), Hart, The Morality of the Criminal Law (Oxford University Press, 1964) and Devlin, The Enforcement of Morals (Oxford University Press, 1965). There is an interesting analysis of the debate in Mitchell, Law, Morality and Religion in a Secular Society (Oxford University Press, 1967). See also Lacey, A Life of H L A Hart (Oxford University Press, 2004), 221,

8 matters sexual the modern world our world is a world which has come into being during the lifetime of many of us alive today. It is a development of the 1960s. To the Victorians, homosexuality and adultery (though only, of course, if committed by a wife) were naturally beyond the pale. But so, too, as we have seen was mere fornication. But the narrow Victorian view of human sexuality went deeper. One has only to look at the Bradlaugh-Besant litigation in the 1870s to see a society which in such matters was almost unimaginably different from ours. For those who have grown up in the modern world it is hard to comprehend the immense gulf which separates our world from theirs. 25 The moment at which the world changed can, in fact, be identified even more closely than Larkin suggested. The last hurrah of the ancien regime was not so much the failed prosecution of Penguin Books Limited in 1960 for publishing D H Lawrence s Lady Chatterley s Lover but rather the famous or infamous decision in 1961 of the House of Lords in Shaw v Director of Public Prosecutions, 26 for it marked the end, even if not recognised at the time, both of the ancien regime in matters sexual and of the pretension of the judges to set themselves up as custos morum. The defendant published a booklet called the Ladies Directory which contained the names, addresses and telephone numbers of prostitutes, with photographs of nude female figures and, in some cases, details which conveyed to initiates willingness to indulge not only in ordinary sexual intercourse but also in what were described as various perverse practices (no doubt it was all very appalling for the judges of the early 1960s; one suspects it was pretty tame by modern standards). He was convicted of various offences, including conspiracy to corrupt public morals. Upholding the convictions, Viscount Simonds 27 made wide claims for the role of the judges in the enforcement of morality. In what Professor Hart crushingly described See on all this R (Smeaton on behalf of SPUC) v Secretary of State for Health [2002] EWHC 610 (Admin), [2002] 2 FLR 146, paras [171]-[189], [329], [332]-[337]. 26 [1962] AC Ibid, Hart, Law, Liberty and Morality (Oxford University Press, 1963), 10. 8

9 as A fine specimen of English judicial rhetoric in the baroque manner, this distinguished chancery judge and former Lord Chancellor said this: In the sphere of criminal law I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for When Lord Mansfield, speaking long after the Star Chamber had been abolished, said (Rex v Delaval (1763) 3 Burr 1434, 1438, 1439) that the Court of King s Bench was the custos morum of the people and had the superintendency of offences contra bonos mores, he was asserting, as I now assert, that there is in that court a residual power, where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare. Such occasions will be rare, for Parliament has not been slow to legislate when attention has been sufficiently aroused. But gaps remain and will always remain since no one can foresee every way in which the wickedness of man may disrupt the order of society. Let me take a single instance to which my noble and learned friend Lord Tucker refers. Let it be supposed that at some future, perhaps, early, date homosexual practices between adult consenting males are no longer a crime. Would it not be an offence if even without obscenity, such practices were publicly advocated and encouraged by pamphlet and advertisement? Or must we wait until Parliament finds time to deal with such conduct? I say, my Lords, that if the common law is powerless in such an event, then we should no longer do her reverence. But I say that her hand is still powerful and that it is for Her Majesty s judges to play the part which Lord Mansfield pointed out to them. In similar vein, Lord Morris of Borth-y-Gest 29 cited with approval the assertion of Lord Mansfield in Jones v Randall 30 that the King s court, is the general censor and guardian of the public manners. 29 [1962] AC 220, p

10 These judicial assertions were, no doubt, in part a response to the recommendations in the report of the Wolfenden Committee. So too, a little earlier, was Sir Patrick Devlin s Maccabaean Lecture. But they were no more than the dying fulminations of an age which, viewed even from the perspective of little over 50 years, now seems almost as remote from us as Nineveh or Babylon. All that Viscount Simonds feared very soon came to pass. Six years later, in 1967, the world changed. In June Parliament enacted the National Health Service (Family Planning) Act 1967, sweeping away the remaining institutional restraints on the provision of contraception for social rather than purely medical reasons and the remaining distinction between the provision under the NHS of contraceptives to the married and the unmarried, in July the Sexual Offences Act 1967, decriminalising homosexuality, and in October the Abortion Act 1967, legalising abortion. The ready availability of the contraceptive pill, both commercially and legally, removed the fear of unwanted pregnancy. The legalisation of abortion removed the fear of the consequences of contraceptive failure. Sex was now something to be enjoyed, if one wished, for purposes having nothing to do with procreation. And sex between consenting adults of the same sex was no longer criminal. A fundamental link the connection between sex and procreation had been irretrievably broken. We are surely in a world that neither Sir James Wilde nor Sir James Hannen could ever have contemplated even in their wildest imaginings. And a subsequent attempt to prevent by statute the propagation in schools of any favourable view of homosexuality was widely criticised and proved, so far as can be seen, of purely symbolic significance and not, one suspects, of what its authors had intended. It is, perhaps, unfair to be too critical of Viscount Simonds. He was, after all, born in the nineteenth century; I come from a generation of judges most of whom were not even alive when the Second World War ended. But where judges like Viscount Simonds can perhaps fairly be criticised is for failing to understand that their world could not remain and was almost bound to change. Perhaps it is easier for us, looking back on what has happened in recent years, but the lesson for us is clear: we need to 30 (1774) Lofft 383,

11 recognise that, whether we like it or not, we live in ever changing times. And we need to ensure that our law and in particular our family law remains adequate to deal with our modern society Judges are no longer custos morum of the people, and if they are they have to take the people s customs as they find them, not as they or others might wish them to be. Once upon a time, as we have seen, the perceived function of the judges was to promote virtue and discourage vice and immorality. I doubt one would now hear that from the judicial Bench. Today, surely, the judicial task is to assess matters by the standards of reasonable men and women in 2012 not, I would add, by the standards of their parents in 1970 and having regard to the ever changing nature of our world: changes in our understanding of the natural world, technological changes, changes in social standards and, perhaps most important of all, changes in social attitudes. 31 And, if I may pick up a point first made by Hart, 32 a judge, although it may be that on occasions he can legitimately exercise the functions of an aedile, is no censor. As Hart pointed out, 33 both Stephen and Devlin assumed a society marked by a very high degree of homogeneity in moral outlook and where the content of this homogeneous social morality could be easily known. He suggested that neither of them had envisaged the possibility that society is, and on one view had already by the 1960s become, morally a plural structure. Be that as it may, it can hardly be disputed that the last few years have marked the disappearance in an increasingly secular and pluralistic society of what until comparatively recently was in large measure a commonly accepted package of moral, ethical and religious values. This means that on many of the medical, social, ethical and religious issues which the courts increasingly have to grapple with there is simply no longer any generally accepted common view. All of this poses enormous challenges for the law, as indeed for society at large. Many of these changes have given rise to profound misgivings in some quarters. We live in a society which, on many social, ethical and religious topics, no longer either thinks 31 [33] Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para Hart, Law, Liberty and Morality (Oxford University Press, 1963), 44. Hart, The Morality of the Criminal Law (Oxford University Press, 1964),

12 or speaks with one voice. These are topics on which men and woman of different faiths or no faith at all hold starkly differing views. All of those views are entitled to the greatest respect but it is not for a judge to choose between them. The law must adapt itself to these realities but that is a task for Parliament. So what of the court s approach to religion? If, in 1910, Darling J seems to have treated the Book of Common Prayer as being part of the law, in 1917 in Bowman v Secular Society Ltd 34 the House of Lords decisively rejected the proposition that Christianity is part of the law of England. But whatever the House of Lords may have said, the dominating influence of the Christian churches, and especially of the Church of England, survived for a long time. The positive role the Church of England played in the discussions that led to the Divorce Reform Act 1969 contrasts with the fact that, even as late as 1936, it was felt necessary to propitiate both the Church of England and the Roman Catholic Church when it came to negotiating the details of what became the Matrimonial Causes Act In recent years we have witnessed enormous changes in the social and religious life of our country. A century ago, a judge could pray in aid the Church of England s Book of Common Prayer as an appropriate statement of the public policy to be applied by the courts. Today we live in a largely secular society which, insofar as it remains religious at all, is now increasingly diverse in religious affiliation. At the same time as the judges have rightly abandoned their pretensions to be the guardians of public morality, though adapting, since the coming into force of the Human Rights Act 1998, to their new role as the guardians of the European Convention and the protectors of the rights guaranteed by it, Christian clerics have, by and large, moderated their claims to speak as the defining voices of morality and of the law of marriage and the family. 34 [1917] AC

13 We live, or strive to live, in a tolerant society increasingly alive to the need to guard against the tyranny which majority opinion may impose on those who, for whatever reason, comprise a small, weak, unpopular or voiceless minority. Equality under the law, human rights and the protection of minorities, particularly small minorities, have to be more than what Brennan J in the High Court of Australia once memorably described as the incantations of legal rhetoric. 35 Although historically this country is part of the Christian west and, although it has an established church which is Christian, we sit as secular judges serving a multi-cultural community of many faiths, sworn to do justice to all manner of people. We live in this country in a democratic and pluralistic society, in a secular State not a theocracy. Religion 36 whatever the particular believer s faith is not the business of government or of the secular courts, though the courts will, of course, pay every respect to the individual s or family s religious principles. Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, after all, demands no less. The starting point of the common law is thus respect for an individual s religious principles, coupled with an essentially neutral view of religious beliefs and a benevolent tolerance of cultural and religious diversity. A secular judge must be wary of straying across the well-recognised divide between church and State. 37 It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and, generally speaking, passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, so long as they are legally and socially acceptable 38 and not immoral or socially obnoxious 39 or pernicious Secretary, Department of Health and Community Services v JWB and SMB (Marion s Case) (1992) 175 CLR 218, On what follows see R (Johns) v Derby City Council (Equality and Human Rights Commission Intervening) [2011] EWHC 375 (Admin) [2011] 1 FLR 2094, paras [34]-[55], Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, paras [34]-[51]. 37 R (E) v Governing Body of JFS and Another (United Synagogue and Others Intervening) [2009] UKSC 15, [2010] 2 AC 728, para [157]. 38 Purchas LJ in Re R (A Minor) (Residence: Religion) [1993] 2 FLR 163, Scarman LJ in Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239, 244. Latey J in Re B and G (Minors) (Custody) [1985] FLR 134, 157, referring to scientology. 13

14 The Strasbourg jurisprudence is to the same effect. The protection of Article 9 41 is qualified in two ways. In the first place, the Convention protects only religions and philosophies which are worthy of respect in a democratic society and are not incompatible with human dignity. 42 Secondly, whilst religious belief and thought are, subject to that overriding qualification, given absolute protection by Article 9(1), the manifestation of one s religion in worship, teaching, practice and observance is subject to the qualifications referred to in Article 9(2). The important point for present purposes is that the Convention forbids the State to determine the validity of religious beliefs and in that respect imposes on the State a duty of what the Strasbourg court has called neutrality and impartiality: 43 The State s duty of neutrality and impartiality is incompatible with any power on the State s part to assess the legitimacy of religious beliefs. The point has been expressed with great eloquence by Laws LJ 44 in a passage too long to be quoted but which should be read in full: Article 9 of the European Convention provides as follows: 1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2 Freedom to manifest one s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. 42 Campbell and Cosans v United Kingdom (No 2) (Application No 7511/76) (1982) 4 EHRR 293, para Moscow Branch of the Salvation Army v Russia (Application No 72881/01) (2006) 44 EHRR 912, para McFarlane v Relate Avon Limited [2010] EWCA Civ 880, [2010] IRLR 872, paras [21]-[23]. 45 The full passage reads as follows: In a free constitution such as ours there is an important distinction to be drawn between the law s protection of the right to hold and express a belief and the law's protection of that belief s substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian s right and every other person s right to hold and express his or her beliefs, and so they should. By contrast, they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society. The first of these conditions is largely uncontentious. I should say a little more, however, about the second. The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves. So it is with core provisions of the criminal law, the prohibition of violence and dishonesty. The Judea-Christian tradition, stretching over many centuries, has no doubt exerted a profound influence upon the judgment of law-makers as to the objective merits of this or that social policy, and the liturgy and practice of the established church are to some extent prescribed by law. But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled; it imposes compulsory law not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since, in the eye of everyone save the believer, religious faith is 14

15 The common law and ECHR Article 9 offer vigorous protection of the Christian s right and every other person s right to hold and express his or her beliefs, and so they should. By contrast, they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society The promulgation of law for the protection of a position held purely on religious grounds cannot be justified; it is irrational, as preferring the subjective over the objective, but it is also divisive, capricious and arbitrary the law must firmly safeguard the right to hold and express religious beliefs. Equally firmly, it must eschew any protection of such a belief s content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime. Within limits the law our family law will tolerate things which society as a whole may find undesirable. 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. We have moreover to have regard to the realities of the human condition. 46 necessarily subjective, being incommunicable by any kind of proof or evidence. It may, of course, be true, but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer who is alone bound by it; no one else is or can be so bound, unless by his own free choice he accepts its claims. The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified; it is irrational, as preferring the subjective over the objective, but it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion, any belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law, but the State, if its people are to be free, has the burdensome duty of thinking for itself. So it is that the law must firmly safeguard the right to hold and express religious beliefs. Equally firmly, it must eschew any protection of such a belief s content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime. 46 See Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, para [50]: society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done. 15

16 That said, 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. Where precisely the limits are to be drawn is often a matter of controversy. There is no bright-line test that the law can set. The infinite variety of the human condition precludes arbitrary definition. Some things are nevertheless beyond the pale: forced marriages (always to be distinguished of course from arranged marriages to which the parties consent), female genital mutilation and so-called, if grotesquely misnamed, honour-based domestic violence. Some aspects of even mainstream religious belief may fall foul of public policy. A recent striking example is the case 47 where the Court of Appeal held on grounds of public policy that a marriage valid under both Sharia law and the lex loci celebrationis, despite the manifest incapacity of one of the parties, was not entitled to recognition in English law. And there can be tensions between religious belief and secular discrimination law. 48 Some manifestations of religious practice may be regulated if contrary to a child s welfare. Although a parent s views and wishes as to the child s religious upbringing are of great importance, and will always be seriously regarded by the court, just as the court will always pay great attention to the wishes of a child old enough to be able to express sensible views on the subject of religion, even if not old enough to take a mature decision, they will be given effect to by the court only if and so far as and in such manner as is in accordance with the child s best interests. In matters of religion, as in all other aspects of a child s upbringing, the interests of the child are the paramount consideration. 47 Westminster City Council v C and Others [2008] EWCA Civ 198, [2009] Fam See, for example, Islington London Borough Council v Ladele (Liberty Intervening) [2009] EWCA Civ 1357, [2010] ICR 532, McFarlane v Relate Avon Limited [2010] EWCA Civ 880, [2010] IRLR 872, R (E) v Governing Body of JFS and Another (United Synagogue and Others Intervening) [2009] UKSC 15, [2010] 2 AC 728, R (Johns) v Derby City Council (Equality and Human Rights Commission Intervening) [2011] EWHC 375 (Admin) [2011] 1 FLR 2094, Eweida and others v United Kingdom (Applications nos /10, 59842/10, 51671/10 and 36516/10) ECtHR 15 January

17 There are many examples of the working out of these principles in the family courts. Sometimes, as in the cases involving blood transfusions for the children of Jehovah s Witnesses, the issue is literally one of life or death (using those words in the secular sense). The tenets and faith of Jehovah s Witnesses will not prevent the court ordering a child to receive a blood transfusion, even though both the parents and the child vehemently object. 49 But the clash between a parent s religious beliefs and a child s welfare may arise in many other contexts, for example 50 where the question was whether, within the meaning of s 16(2)(b) of the Adoption Act 1976, a mother was unreasonably withholding her consent to the adoption of her son on the basis of religious beliefs that were reasonable and genuinely held. 51 Often issues of this kind arise following the breakdown of the parental relationship in a situation where the parents have different religious beliefs or follow different religious observances. In a well-known case in custody was in dispute between 49 See, for example, Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR Re S; Newcastle City Council v Z [2005] EWHC 1490 (Fam), [2007] 1 FLR I adjudged that she was. As I said, para [56]: Religious belief is no more determinative of whether a parent is acting reasonably than it is of whether something is in a child s best interests. Whilst the court will no doubt be slow to conclude that a parent faithfully striving to follow the teachings of one of the great religions of the world is acting unreasonably, there is nothing to prevent the court coming to that conclusion in an appropriate case. Everything must depend upon the facts and the context. In this, as in so many other areas of family law, context is everything. 52 Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239. Scarman LJ s classic judgment needs reading in full. I confine myself to the key passages: We live in a tolerant society. There is no reason at all why the mother should not espouse the beliefs and practice of Jehovah s Witnesses. It is conceded that there is nothing immoral or socially obnoxious in the beliefs and practice of this sect. Indeed, I would echo the words of Stamp LJ in T v T (1974) 4 Fam Law 190 in which he said this of the Jehovah s Witnesses and what he said is, indeed, borne out by such evidence as we have in this case: Many families bring up their children as Jehovah s Witnesses and the children are good members of the community, although perhaps a little isolated from other children in certain respects. They are different but the same thing could be said of Presbyterians, Catholics and indeed any other religious faith. It is as reasonable on the part of the mother that she should wish to teach her children the beliefs and practice of the Jehovah s Witnesses as it is reasonable on the part of the father that they should not be taught those practices and beliefs. It is not for this court, in society as at present constituted, to pass any judgment on the beliefs of the mother or on the beliefs of the father. It is sufficient for this court that it should recognize that each is entitled to his or her own beliefs and way of life, and that the two opposing ways of life considered in this case are both socially acceptable and certainly consistent with a decent and respectable life. What follows from that? It follows, in my judgment, that there is a great risk, merely because we are dealing with an unpopular minority sect, in overplaying the dangers to the welfare of these children inherent in the possibility that they may follow their mother and become Jehovah s Witnesses. Of course, most of us like to play games on Saturdays, to go out to children s parties and to have a quiet Sunday some of us will go to church, and some of us will not. This appears to be the normal and happy, even though somewhat materialistic, way of life, accepted by the majority of people in our society. It does not follow, however, that it is wrong, or contrary to the welfare of children, that life should be in a narrower sphere, subject to a stricter religious discipline, and without the parties on birthdays and Christmas that seem so important to the rest of us. These are factors that must be considered, but I think it is essential in a case of this sort to appreciate that the mother s teaching, once it is accepted as reasonable, is teaching that has got to be 17

18 a father who was a member of the Church of England and a mother who was a Jehovah s witness. In a later case 53 residence and contact were in issue because the father was a member of the Exclusive Brethren. 54 You would not thank me for a mere catalogue of cases. Let me finish with the powerful words of that great judge, Lord Scarman. He was speaking in 1975 but his words still ring true today: We live in a tolerant society. There is no reason at all why the mother should not espouse the beliefs and practice of Jehovah s Witnesses It is as reasonable on the part of the mother that she should wish to teach her children the beliefs and practice of the Jehovah s Witnesses as it is reasonable on the part of the father that they should not be taught those practices and beliefs. It is not for this court, in society as at present constituted, to pass any judgment on the beliefs of the mother or on the beliefs of the father. It is sufficient for this court that it should recognize that each is entitled to his or her own beliefs and way of life, and that the two opposing ways of life considered in this case are both socially acceptable and certainly consistent with a decent and respectable life it does not follow that, because one parent s way of life is more acceptable to most of us, it is contrary to the welfare of the children that they considered against the whole background of the case and not as in itself so full of danger for the children that it alone could justify making an order which otherwise the court would not make when one has, as we have here, two good parents, indeed, two unimpeachable parents, each of them following very different ways of life, which have led to the matrimonial breakdown, it does not follow that, because one parent s way of life is more acceptable to most of us, it is contrary to the welfare of the children that they should adopt the way of life of the other parent that is acceptable only to a minority, and a tiny minority at that It seems to me that when one has, as in this case, such a conflict, all that the court can do is to look at the detail of the whole circumstances of the parents and determine where lies the true interest of the children. 53 Re R (A Minor) (Residence: Religion) [1993] 2 FLR 163. Purchas LJ said: It is no part of the court s function to comment upon the tenets, doctrines or rules of any particular section of society provided that these are legally and socially acceptable The impact of the tenets, doctrines and rules of a society upon a child s future welfare must be one of the relevant circumstances to be taken into account by the court when applying the provisions of s 1 of the Children Act The provisions of that section do not alter in their impact from one case to another and they are to be applied to the tests set out in accordance with the generally accepted standards of society, bearing in mind that the paramount objective of the exercise is promoting the child s welfare, not only in the immediate, but also in the medium and long-term future during his or her minority. 54 Other examples are Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678, affirmed Re J (Specific Issue Orders: Child s Religious Upbringing and Circumcision) [2000] 1 FLR 571, where there was a dispute between a Muslim father and a Christian mother as to the circumcision of their 5-year-old son, and Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam), [2005] 1 FLR 236, where a similar dispute arose between a Muslim mother and a Hindu (Jain) father. 18