5 October 1999
A recent case has, for the first time, forced the courts to consider whether religion should be a decisive factor when placing children with foster parents and how far the wishes of the natural parents should be taken into consideration in respect of their children's religious up-bringing.
An eight-year-old girl, known as "N" and who suffers from Downs' Syndrome, was placed with foster parents when she was just 17 months old because her parents, Orthodox Jews, were not in a position to care for her.
Since 1994, however, she has been at the centre of a legal battle over her future. Her natural parents sought her return, saying that they wanted her to be brought up in accordance with their religion. Her foster parents are Roman Catholics.
High Court family division judge, Mr Justice Wall refused to return the child to her parents. Instead, he made a residence order in favour of the foster parents, although this gave reasonable contact to the natural parents.
However, the case returned to court in 1998, but the same judge refused to vary his earlier order.
He held that "N" did not have the capacity to fully appreciate or understand her Jewish heritage. As such, he ruled that the benefit to her of being brought up in an Orthodox Jewish way of life was outweighed by other considerations, namely her attachment to her foster parents.
He considered that this was exceptionally strong, and that there was a risk of serious emotional harm inherent in any move back to her natural parents.
The Court of Appeal has backed that decision. Family law specialist, Mike Devlin, a partner with Salford-based Stephensons which acted for the foster parents, believes the case is the first of its kind.
Devlin says it is probably the first time that the relevance of religion has been regarded by the courts as a factor to be considered in the welfare checklist which is set out in the Children Act 1989.
In the Appeal Court's ruling, Lady Justice Butler-Sloss said that when it came to considering what was best for a child, natural religious and cultural heritage were relevant factors.
However, she stressed that they were not "paramount considerations".
The primary consideration, said Lady Justice Butler-Sloss, was the child's overall welfare. Accordingly, the presumptive right for a child's natural parents to be preferred to foster parents, or that the child should be raised in the religion of the natural family, could be overridden on welfare grounds.
Devlin, who has been involved in the case from the beginning, says the case has wider implications.
He considers that the addition of religious up-bringing to the welfare criteria is applicable to any case involving a child's up-bringing.
Apart from specific points, the checklist also allows for the general consideration of any characteristics which the court considers relevant, and it was under this option that religion was considered.
Devlin says: "The inclusion of religion under this head is of considerable significance. If, for example, you have parents who are separated and the child was brought up within a religious household in that one parent had strong religious beliefs and the other did not, then one of the parents may want the court to take into account religious up-bringing in the future.
"Without wanting to over-emphasise the importance of the point, it is going to be a matter family practitioners will need to pay closer attention to in the future."
He adds that this case has also brought home to him personally the "high quality and the care of justice in the High Court's family division".
He says: "This case, more than any other, illustrates that the consideration given to
the welfare of children is absolute. It was a very emotional case on both sides."
Devlin continues: "However, I can only praise the approach of all the family lawyers involved in the case. The quality of representation we have seen in this case shows that it is possible, even in the most fraught case, to still conduct litigation without losing dignity, fairness and openness."