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Published online by Cambridge University Press: 17 January 2008
Within the past few years, the English Court of Appeal has ruled in a variety of cases involving disputes about the religious upbringing of children following the separation or divorce of their parents. Many of these cases have not been reported, although the most significant of them, Re R, is well known to family lawyers. In other jurisdictions the European Court of Human Rights in Hoffmann and the Supreme Court of Canada in Young and D.P. v. C.S. have also heard important cases in which a significant factor before the court was the influence of religious beliefs and practices on the children of those who professed them. This article is the result of a study of these and other cases from England, the United States and Canada in order to investigate the reasoning and the trends in judicial decision-making in cases involving children and religion.
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31. (1990) 75 D.L.R.(4th) 46.Google Scholar
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47. Supra, n.41.
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67. (1974) 4 Fam. Law 190.Google Scholar
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72. Harris v. Harris 343 So.2d 762 (1977).Google Scholar (The case was ultimately resolved by a finding of fact that the girl's mother had never felt called to handle snakes and that the only snake the child was likely to encounter in church was one that was taken in a locked cage and kept on the piano throughout the service.)
73. Bainham, , “Religion. Human Rights and the Fitness of Parents” [1994] C.L.J. 39, 40.Google ScholarAnthony, Bradney. op. cit. supra n.48, at p. 49. calls it a “peculiar kind of neutrality” that allows judges to say that they are not concerned with the theological soundness of a faith, but nevertheless to deprive some parents of the right to bring up their children in accordance with their religion because of that religion.Google Scholar
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90. Avitan v. Avitan (1991) 38 R.F.L. (3d) 382 (Ontario).Google Scholar
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94. Supra n.82.
95. That is, until the same welfare officer changed her mind and said she felt the boys actually preferred to be with their mother.
96. Cretney, and Masson, . Principles of Family Law (6th edn. 1997). p.730.Google Scholar
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99. The terms “custody” and “access”, whilst still in use in some jurisdictions, have been replaced in English law by the similar concepts of “residence” and “contact” (Children Act 1989).
100. Op. cit. supra n.36, at p.12.Google Scholar
101. Goldstein et al. idem. p.38. would permit even this.
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106. Supra n.56.
107. Supra n.105. at p.45.Google Scholar
108. See e.g. Re O (Contact: Imposition of Conditions) [1995] 2 F.L.R. 124Google Scholar; Re P (Contact: Supervision) [1996] 2 F.L.R. 314.Google ScholarBut cf. Re D (Contact Reasons for Refusal) [1997] 2 F.L.R. 48 in which the mother had “genuinely and rationally held fears” for herself and for the child about the consequences of a contact order for the father.Google Scholar
109. E.g. s.16(10) of the Canada Divorce Act. See also the reference in the UK Family Law Act 1996. s.11 (4)(c). to the “general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by (i) his having regular contact with those who have parental responsibility for him”.
110. Wallerstein, J. S. and Kelly, J. B.. Surviving the Break-up (1980). p.215Google Scholar: Hetherington, E. M.. Cox, M. and Cox, R., “Divorced Fathers” (1976) 25 The Family Co-ordinator 417–428.Google ScholarHowever. Furstenberg, F. F. and Cherlin, A. J. allege that more recent observational studies have not found the same correlation: Divided Families (1981). p.72.Google Scholar
111. Hodges, W. F., Interventions for Children of Divorce (1991).Google Scholar
112. Re M (Contact: Welfare Test) [1995] 1 F.L.R. 274.Google Scholar
113. Supra n.108.
114. Ibid.
115. The Times, 12 Feb. 1997.Google Scholar
116. (1984) 38 R.F.L. (2d) 293.Google Scholar
117. Fisher v. Fisher 324 N.W. 2d 582 (1982).Google Scholar
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119. Or those held by the liberally minded “elite” of judges and legislators. Mary Ann Glendon suggests there may be a disparity between the views of this group and those of the majority concerning the relative importance of the freedom of religion: “Religion and the Court; A New Beginning?”, in Eastland, T. (Ed.), Religious Liberty in the Supreme Court (1983), p.471.Google Scholar
120. Borris v. Borris (1991) 37 R.F.L. (3d) 339.Google Scholar
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122. Supra n.67.
123. Felton v. Felton 418 N.E. 2d 606 (1981).Google Scholar
124. It is, however, questionable whether, if a family omitted to celebrate Christmas because they were Jewish, or parents took the view, based on the study of child psychology, that it was not in children's interests to encourage belief in non-existent rabbits, these choices would still provoke judicial concern.
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132. Supra n.102.
133. Re B (Minors: Access) [1992] 1 F.L.R. 142. The same point was made in Kaasimkae, supra n.68 and Al-Okaidi, supra n.14.Google Scholar
134. As suggested by Goldstein et al, op. cit. supra n.37, at pp.53et seq.Google Scholar
136. This term is used in contrast to that of “significant harm” criticised by Carolyn Hamilton, op. cit. supra n.49, at p.214, as unduly favouring parents' rights at the expense of their children.Google Scholar
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