Reconciling Minority Rights, Gender Equality and the Best Interests of the Child: Judicial Challenges for the Courts in Disputes Over Children’s Religious Upbringing and Educational Development

Abstract

This paper highlights the challenges facing the European Court of Human Rights (ECtHR) and the English and Welsh courts in cases involving disputes between the state and between the parents about the choice of religious education, medical treatment or dress for their children. The initial challenge for the courts in any case involving religious issues is the assessment of what qualifies as ‘belief’ and is therefore entitled to some protection in terms of the European Convention on Human Rights (ECHR) which promises each person ‘the right to freedom of thought, belief conscience and religion’ Article 9 (1) of the ECHR). A second challenge for the courts is to attempt to reach a decision without any pronouncement on the validity or otherwise of the religious beliefs in question.  A third challenge involves the need to balance principles of the welfare of the child with the rights of all the parties (including the child) to freedom of religion, along with the parental right to respect for their religious convictions, when there are disputes surrounding children’s religious upbringing and educational development. The fourth challenge for the courts is the determination of the welfare of the child in the particular circumstances and in the light of the possible irrevocable effect of a decision on the child. By what standard the welfare of the child concerned is to be assessed – by general community standards or by the cultural context?  An overarching problem for the English courts in such cases is to assess the law in the light of (at times) inconsistent jurisprudence of the ECtHR. The article concludes that the English courts are generally managing to reconcile religious freedom and the welfare of the child. However, at times the courts need to be wary of an albeit unconscious evaluation of other religious beliefs. 

About the Speaker

Brigitte Clark has been a Senior Lecturer in the Law School at Oxford Brookes University since August 2012 where she lectures in Family Law and takes seminars in the Law of Contract.  Before that, she lectured at the University of East Anglia for ten years and prior to that she was Associate Professor at Rhodes University and Senior Lecturer at the University of Cape Town in South Africa.   She has also qualified as an Attorney and Conveyancer in South Africa. She completed a BA and LLB at Rhodes University in South Africa, an LLM at Cambridge and her doctorate was on South African Law on Child Maintenance. Her research interests are mainly in Family Law, International Family Law and Comparative Family Law.  She has published extensively in English family law journals, South African Law Journals and Comparative and International Law Journals.  She is General and Contributing Editor of the South African Butterworth’s Family Law Service.