G (Children), Re  EWCA Civ 1233 – read judgment
If you received this article by email, it will have been attributed to Adam Wagner. It is in fact by Karwan Eskerie – apologies
What is happiness? If you thought this most philosophical inquiry was beyond the remit of the judicial system then you should read this case.
In Re G (Children), the estranged parents of five children disagreed over their education. Both parents belonged to the Chassidic or Chareidi community of ultra orthodox Jews. However, whilst the father wanted the children to attend ultra-orthodox schools which were unisex and where all the children complied with strict Chareidi practices, the mother preferred coeducational ‘Modern Orthodox’ schools where boys did not wear religious clothing and peyos (long hair at the sides), and children came from more liberal homes where for instance, television was taken for granted.
The mother brought proceedings under Part II of the Children Act 1989, asking the Court to decide on the residence and education of the children.
On appeal, the main issue was the education of the children, which as the Court recognised, meant nothing less that the rules for life for members of religious communities such as the Chareidi.
Delivering the Court’s judgment, Lord Justice Munby stressed that as enshrined in section 1(a) of the 1989 Act, when the Court is determining any question with respect to the upbringing of a child, the child’s welfare is the paramount consideration. That much being clear, Lord Justice Munby went on to pursue the two obvious questions arising from it: what do we mean by welfare and by what standard or yardstick are we to assess it?
Evaluating a child’s best interests, his Lordship stressed, must involve a welfare appraisal in the widest sense:
“…taking into account, where appropriate, a wide range of ethical, social, moral, religious, cultural, emotional and welfare considerations…Very recently, Herring and Foster have argued persuasively…that behind a judicial determination of welfare there lies an essentially Aristotelian notion of the ‘good life’. What then constitutes a ‘good life’?”
There was no need to pursue the age-old question in the instant case, his Lordship added: “I merely emphasise that happiness, in the sense in which I have used the word, is not pure hedonism. It can include such things as the cultivation of virtues and the achievement of worthwhile goals, and all the other aims which parents routinely seek to inculcate in their children.”
Lord Justice Munby then summoned words from John Donne, Blackstone and Aristotle to underline the importance of social and familial links to an individual’s wellbeing, whilst reaffirming neutral and equal respect for different faiths and religious principles as the starting point of the common law.
As for the yardstick by which to assess welfare, one must turn to the man (and woman) currently on the Clapham omnibus:
“A child’s welfare is to be judged by the standards of reasonable men and women in 2012, not 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.”
This reasonable man or woman, his Lordship added, is receptive to change, broad-minded, tolerant, easy-going and slow to condemn. This means that when assessing a child’s best interests by reference to general community standards, due allowance will have to be made for the entitlement of people, within limits of what is permissible by those standards, to entertain divergent views about religious, moral, social and secular objectives they wish to pursue for themselves and their children.
The good life
Lord Justice Munby acknowledged, by reference to the then Lord Justice Scarman’s powerful judgment in Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239, that in deciding which parent’s choice for a child’s upbringing is in the latter’s best interest, one must be careful not to overplay the harm to a child of a way of life that is acceptable only to a minority or which conflicts with what appears to be the normal, somewhat materialistic, way of life. Where there is such a conflict, the Court has to look at the detail of the whole circumstances.
That is what the Court set out to do in Re G (Children). It took into account evidence on the one hand of the very limited career opportunities for children educated in ultra-Orthodox schools (it appeared to be rare for boys in such schools to attain any non-Talmudic qualifications beyond GCSEs, and even rarer for girls to do so), and on the other hand, the community’s views on the lifestyle that children were exposed to in more liberal schools and on the role of women in society.
The Court also heard evidence that a liberalisation of the children’s lifestyle would adversely affect their relationship with grandparents and other relatives but that equally, an ultra-Orthodox lifestyle would harm the children’s relationship with the mother. The mother felt her children would have more opportunity to make decisions about their life and relationships, and to pursue education, career and economic well-being, in a more modern community. The Court also heard that it would be easier for the children to move back to more strict practices in the future, were they raised in a more liberal community than the converse. However, as Lord Justice Munby put it, the dispute, in essence, was between the mother’s arguments based on education and the father’s arguments based on way of life.
A CAFCASS report, addressing the pros and cons, and recognising that both alternatives would result in some losses, concluded that on balance, the more liberal education was in the children’s best interests and both the High Court and the Court of Appeal agreed.
The virtues of secular education
Dismissing the suggestion that too much weight had been placed on a secular education and its virtues (eg, enhanced career opportunities and economic well-being), Lord Justice Munby endorsed the High Court Judge’s conclusion that the mother’s schools offered a more rounded and extensive education. His Lordship added that in the ‘conditions of our current society’, the task of the judge, acting as a ‘judicial reasonable parent’, in deciding on the proper approach to the education and upbringing of children, was informed by three values:
a) We must recognise that equality of opportunity (between communities as well as genders) is a fundamental value in our society;
b) We foster, encourage and facilitate aspiration, both as a value in itself and to the extent practical and reasonable, the child’s own aspiration (“Far too many lives in our community are blighted, even today, by lack of aspiration”); and
c) 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 and to give effect so far as practicable to their aspirations. (para 80).
In short, Lord Justice Munby concluded, “our objective must be to maximise the child’s opportunities in every sphere of life as they enter adulthood.”
Choice and empowerment
So, it seemed that what tilted the balance in this case was individual choice and empowerment: the children’s ability in the future to decide for themselves the course of their social relationships, economic and career aspirations, and religious values. That being the yardstick, it is hardly surprising that the more liberal schools won on all counts.
Nor would it be a wild gamble to bet on the more liberal option winning in every other case. The Court was careful to stress that every case would turn on its own circumstances. Of course, there may well be situations demanding a different decision. However, it is difficult not to see this as a rejection, by the ‘judicial reasonable parent’, of the ultra-conservative religious perspective on children’s education and a verdict on its conflict with the liberal ‘conditions of our society’; on the undesirability of the way in which it forecloses opportunities different to those offered within the community.
Whilst it must be true that the prevalent conception of welfare or well-being in modern Western society is heavily informed by individual freedom and worldly aspiration, there is a deep tension between that value and many religious doctrines. I dare go further and submit that the idea that the best approach to upbringing is to preserve and enhance children’s ability to choose and pursue their own destinies on adulthood appears to me to be a decidedly liberal one, curtailing as it seems to do the reach of the very core principle underpinning religion: divine truth. For a devout Muslim parent sees it as her religious duty to ensure her child does not stray from what she considers to be the true path, as does an Orthodox Jew. The opportunity to follow a different path, from within that world view, is far from desirable.
That there can be such an irreconcilable conflict between religion and the State’s obligation to individuals is not a revelation. As Lord Justice Munby pointed out, certain manifestations of religious practice are rejected when contrary to a child’s welfare. A well-known example is blood transfusion in children of Jehovah’s Witnesses, where the religious rejection of the treatment will not prevent the court from ordering it even when the parents and the child vehemently object. Forced marriage is another well-known example. But the question here is whether the choice between two legitimate educational routes is in the same category.
In answering that question, it is important to bear in mind the nature of the proceedings here. As the Postscript of the judgment reminds us, these were private proceedings where the parents had asked the Court to decide the issue as opposed to care proceedings where the State is intruding uninvited into the private sphere of a particular family or community and where there is a preliminary threshold to be overcome before the State can intervene. The Court simply could not decline jurisdiction in this case and had to decide the matter.
I should also respectfully add that I wholeheartedly agree with the conclusions expressed in Lord Justice Munby’s masterly, measured and insightful judgment to which this article simply cannot do justice. All I wish to do is humbly pose a number of questions:
Firstly, am I right to have a nagging suspicion that the reason I so vehemently agree with the judgment is precisely because I subscribe to the pursuit of what the then Lord Justice Scarman describe in Re T (Minors) as “the normal and happy, even though somewhat materialistic, way of life, accepted by the majority of people in our society”? If so, do we simply have to accept that when forced to decide, our institutions have to uphold the prevalent values of our society at the expense of the less popular albeit mostly tolerated minority ones?
Secondly, looking at the three values of the ‘judicial reasonable parent’, are we giving individual aspiration too much weight here? Are we in danger of too-hastily labelling as unreasonable the parent who wishes their child to focus less on individualist pursuits and more on values such as community and spirituality? What I am saying is isn’t the fostering of individual aspiration a bit too value-laden, too political, a task to be undertaken by our Courts?
Finally, is happiness justiciable? If not, do we have any choice but to subject it to some adjudication anyway?