Judge decides that Jewish girl could be baptised
4 August 2012
A Mother v. A Father HHJ Platt, Romford County Court, 11 May 2012, read judgment
I recently dared to enter religious territory in a post about religious no-go zones declared by the courts – they should not pronounce on the intricacies of Sikh succession because it raised doctrinal issues which the courts should not decide. Compare and contrast this family law case.
Judges have to get involved in disputes on divorce, of which the current case is an exquisitely difficult example. Its facts are very simple. C was 10. Her parents and grandparents are Jewish. Her father is a Christian convert, and C wanted to be baptised. Her mother did not want this. She said father had brainwashed C, and it was premature. Mother went to court to stop any baptism proceeding until C was 16. The Court could not simply wash its hands of the case; that would encourage self-help taken by one or other parent, to the lasting resentment of the other.
What then was the judge’s job? Simply to follow the task set him by section 1 of the Children Act 1989, and to decide what was in the best interests of the child – which is not necessarily the same as what either parent wanted for the child. He reviewed the religious and cultural history of the marriage (secular Judaism, with little if no religious observance), the father’s conversion (after the marriage had emotionally come to an end), and C’s involvement in the Church and her wish to undergo baptism. The judge thought that the latter was important. C had raised the issue initially. Father had told mother about C’s desire for baptism, but also had sought to persuade C out of rushing into baptism. Then C had made her own independent inquiries of her Sunday School teacher as to how to go about preparing for baptism. This appears to have triggered mother’s application to court.
Given C’s wishes, the real issue for the judge was whether he should prohibit baptism until C was older, or allow her to follow her own wishes. In the end, he preferred the latter; that was in the best interests of C, even though baptism may upset mother and grandparents.
Interestingly, no expert evidence was called by either side, other than rival letters from Rabbi and clergyman. The judge certainly attached importance to the fact that baptism was an introduction into the Church, as distinct from confirmation which did not usually occur before 16 at which point the person would become a full communicant member of the Church. But what about any effect of baptism on C’s status as a Jew?
It may be some comfort both to the mother and to the grandparents if I set out my understanding of Jewish law on this topic although I stress that since I have received no expert evidence on this issue what follows has played no part in my decision making process. My understanding of Jewish law is that a person who is born a Jew cannot deprive himself of his Jewish status. Christian baptism does not have any effect on that status. The purported act of conversion to Christianity simply has no legal effect and C would therefore be free to resume her Jewish faith at any time if she wished to do so.
But let us assume that some dispute had arisen between experts about how baptism would impact on Judaism or indeed any other faith. What then? It seems as if the Courts would then have to decide such doctrinal disputes if they were relevant to the welfare of the child – despite the religious no-go area identified in my previous post.
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The ‘no-go area’ is a relatively modern judicial construct. The classical position is that while courts don’t ‘animadvert’ (Lord Eldon’s lovely word in A-G v. Pearson, 1817) upon the merits of a religion, they WILL inquire into that religion and its propositions when that is necessary to doing justice in a matter before them – entitlement to property, marital status etc. Expert evidence was the usual solution, and the judge in this case does at least hint at that possibility in para 38, though admitting that he hasn’t heard any. I suspect that the judiciary who have shied away from religious tenets in some recent cases have been so frightened of offending believers’ sensibilities, or of an extended reading of ECHR Article 9 in Strasbourg, that they have rather forgotten the altogether more important Magna Carta 1297 Art. 29 (‘We will not deny or defer to any man either justice or right’).
However, perhaps because of the absence of such expert evidence, I do rather wonder whether the judge’s sharp distinction between baptism and confirmation in the practice of the Church of England is justified. The child is clearly able to answer for herself in baptism, and so will make there the profession of faith which those baptised in infancy make at confirmation. When she reaches 16 she will be eligible for enrolment on the church electoral roll even if unconfirmed (in saying this I’m assuming, from the reference to the Area Dean of Redbridge in para 31, that she lives in England rather than Wales). When ‘ready and desirous to be confirmed’, even before 16, she can become a regular communicant. There is nothing particularly magical about the imposition of episcopal hands that would change her level of involvement in church life. And unless things have changed dramatically since the days when I conformed to the Church of England, 13 is a more normal confirmation age than 16. I wonder therefore whether clause 2 of the Judge’s Order serves any good purpose.
The requirement to not show the judgement to C seems odd given that she could stumble on it on the web herself.
A drop of water hurts nobody and if it makes someone happy where’s the harm ?