In recent years a number of child protection concerns have been portrayed as problems particular to religious communities. Examples include exorcism, forced marriage, cliterodectomyFootnote 2 and corporal punishment. The need for childcare norms accepted across cultural differences has been noted in several reports over the years but was particularly emphasised by the Laming Report into Victoria Climbié's death through exorcism.Footnote 3 How to define such norms and square the multicultural circle when protecting children was addressed in academic circles after the signing of the UN Convention on the Rights of the Child and the Children Act 1989.Footnote 4 Further articles appeared in the wake of the Climbié case.Footnote 5 Media and academic concern probably underestimates the incidence of cases in which religious worldviews and standard child protection norms may conflict. Many cases appear before the County Court and so are not reported, yet my own practice across northern England included cases of extensive corporal punishment from both Christian and Muslim communities, the impact of Shabbath on medical treatment in the ultra-Orthodox Jewish community and concerns about faith-based education in Jewish, Muslim and Christian schools. Concerns continue nationally, with further cases of murderous exorcism (for example, Child BFootnote 6 and the teenager Kristi BamuFootnote 7) and forced marriage becoming significant political issues.
WHAT THE LAW SAYS
UK law and government policy are framed so that norms for childcare law are predominantly found in concepts of welfare and harm. ‘Welfare’ is not defined but is assessed according to factors taken into account or not at the judge's discretion; these include age, sex, disability, parentage, the impact of change, any harm suffered and factors such as culture, religion and language. Harm and welfare are also assessed by reference to children of similar characteristics, which allows for cultural relativism if judges are so minded. This also allows for class-based relativism, even though class is not mentioned in the Act. ‘Harm’ is defined as physical, sexual or emotional abuse or neglect leading to impairment of development physically, emotionally, sexually or educationally.Footnote 8 Some diocesan child protection policies also include spiritual harm. The higher threshold for state intervention through Care Proceedings is ‘significant harm’.Footnote 9 What the law prescribes may sound fairly common sense and straightforward but some argue that welfare is indeterminate and subjective, dependent on variable understandings about what is good for children.Footnote 10 What constitutes harm is assumed to be self-evident but the challenges of reaching consensus about what common sense requires are illustrated by the following contextual examples.
Corporal punishment: R v Williamson on Christian belief and punishment
The Williamson caseFootnote 11 was brought by a consortium of Christian schools seeking exemption from the ban on corporal punishment in schools.Footnote 12 The parents and schools supporting the case argued that use of corporal punishment based on the Proverbs dictum ‘spare the rod, spoil the child’Footnote 13 was an expression of their religious belief protected by Article 9 of the European Convention on Human Rights (ECHR).Footnote 14 The House of Lords accepted that use of corporal punishment following Proverbs was a genuinely held belief for some Christians and that banning corporal punishment interfered with their Article 9 rights. However, the rights of children under Article 3 not to be exposed to potentially cruel or unusual punishment were prioritised over Article 9 rights. Yet the House of Lords' reasoning differed radically from the Court of Appeal's rationale for dismissing the schools' appeal. The latter held that corporal punishment was not a part of Christian belief and therefore did not fall within Article 9. The case illustrates both diametrically opposed understandings of harm and the difficulties of defining religious belief.
From the legal perspective, the appellants' belief that corporal punishment was necessary to children's upbringing contrasts radically with current professional thinking, reinforced by research, that corporally punishing children tends to be harmful and counter-productive.Footnote 15 Yet, while the direction of legislation has been to limit and constrain corporal punishment and to define other forms of violence-related harm,Footnote 16 there is still sufficient support for its use across the population, as well as within some Christian and Muslim communities, to deter politicians from seeking a complete ban. Consequently, cases concerning abuse of corporal punishment, sometimes linked with exorcism, continue to come before the child protection courts, and the lack of consensus about use of force against children remains.
Forced marriage
Forced marriage might appear to be a more clear-cut issue than corporal punishment. However, difficulties of definition and consensus are becoming apparent as the numbers of forced marriage cases coming to public attention increase.Footnote 17 The Forced Marriage Unit states that during 2011 it gave advice in 1,468 cases of suspected or feared forced marriage,Footnote 18 though these numbers may underestimate the incidence of such cases.Footnote 19 Legally speaking, forced marriage occurs where duress vitiates consent or parties do not have the capacity to consent owing to mental illness or learning disability.Footnote 20 Duress includes emotional pressure and not just physical force or threat.Footnote 21 By contrast, arranged marriage, with consent to the arrangement and the actual marriage, is both a recognised practice in some communities' heritage – notably Muslim and Jewish communities – and recognised by English law.
Difficulties arise in assessing at what point hopes and aspirations for an arranged marriage become pressure that vitiates consent. In cases where physical force or kidnap is used, marriage is clearly forced and the majority in most communities would recognise such action as an offence. However, there is a range of pressure, expectation and conditioning that creates a grey area between entirely free consent and obvious duress. Although the law now provides for injunctive relief,Footnote 22 recognises forced marriage as a child protection concern for those below the age of 18 and is considering criminalising the offence, according to the Forced Marriage Unit there are still many cases of young people feeling pressured into marriage.
Among such young people there is a division between those who recognise the pressure and seek help to avoid the marriage and those who marry because they neither recognise inappropriate pressure nor realise that they can ask for help and are unaware of alternatives, assuming that the marriage is their only option and destiny in life. The contrasting cases of two 15-year-olds illustrate this division. Miss K was an Afghani refugee ‘rescued’ by child protection agencies from an abusive, under-age marriage to which she was found to have consented despite her age. The judge held that the family's ignorance of British law excused them from culpability, subsuming child protection norms of minimum marital age to cultural ignorance.Footnote 23 By contrast, Miss AB sought help via the consulate in Pakistan to avoid marriage to an older man believed to be an alcoholic. She was made a ward of court extra-territorially and was helped to join relatives in Glasgow.Footnote 24
Thus those with sufficient autonomy to seek help receive protection but those without such autonomy, like Miss K, are left in a cultural context where capacity to make decisions independent of family expectation is questionable. The contrast between Miss K's case and the Gillick-competent Jehovah's Witnesses discussed below is interesting. In the latter, courts intervened to overturn refusal of blood transfusions on the grounds of inadequately informed consent owing to the teenagers' religious background. There is no equivalent provision for marriages of dependent teenagers. Differences of worldview about what is best for children underlie some of the difficulties in this area. If parents believe that their role is to arrange their child's marriage and that they know better what they need in marriage, then factors such as attraction, love, personal choice and autonomy to decide who will make them happy in marriage become less significant and familial expectation a major factor.
Medical issues
Cases involving medical treatment raise significant legal concern and illustrate radically different understandings of what is good for children. Even faced with death for lack of treatment some communities still refuse blood transfusions as corrupting of the eternal soul. Other communities require cliterodectomy, despite medical risks, as protecting female ‘honour’.Footnote 25 In similar ways to forced marriage, many young women undergo cliterodectomy because of parental expectation and lack of awareness of alternatives. The absence of prosecutions under legislation prohibiting female circumcision indicates levels of enculturation that restrain young people from challenging medically harmful practices despite prohibition both domestically and internationally.Footnote 26 Meanwhile, the enculturation of Gillick-competent Jehovah's Witnesses is such that refusal of blood transfusions is not simply acceptance of communal expectations but an explicitly faith-based choice. Courts readily overrule parental refusal of transfusion for children too young to consentFootnote 27 and also treat Gillick-competent adolescent Jehovah's Witnesses as children by overruling their refusals of treatment, arguing that their competence is unduly constrained by their narrow religious upbringing.Footnote 28 As noted earlier, this makes an interesting contrast with the tackling of forced marriage.
It is also interesting to note a possible gender imbalance seen in the lack of prosecutions for cliterodectomy performed on young women while offences of encouraging adolescent boys to practice self-flagellation, in zanjeer zani, have been prosecuted.Footnote 29 Although such cases and the religious constructions of harm that surround them tend to offend western sensibilities consideration of criteria for what makes them harmful raises challenging questions for western or mainstream culture. For example; if zanjeer zani is problematic because of the risk to growing bodies then how does boxing differ? Similarly, how can plastic surgery to breasts or other body parts in the interests of socially constructed understandings of beauty, be distinguished from surgery to female genitalia for the sake of socially constructed understandings of dignity? If we are to engage with differences based on religious belief in the search for common protective norms there needs to be a parity of critique.
Religious dress
Another series of cases relates to religious dress in school settings. This may not seem like a child protection issue but the role of parents, other relatives and community expectations, even pressure, are a concern. Issues of consent versus duress or indoctrination over religious dress or symbols were first highlighted in R v Begum.Footnote 30 Miss Begum's older brother had staged a campaign in the local Muslim community, including a demonstration outside the school, about the right for female pupils to wear full covering. He was Miss Begum's senior male relative and guardian, as her father had died. The court accepted that it was Miss Begum's own decision, as a competent 16-year-old, to wear full Islamic covering and upheld her right to do so. However, the school's concerns about the impact of the decision on other pupils and possible familial or community pressure to follow suit were acknowledged. By contrast, in R v Y School ex parte X,Footnote 31 the young woman in question was just twelve. The court was sceptical that she was sufficiently independent of parental influence genuinely to consent to the application or wearing of full-cover school uniform.
The case of Lydia PlayfootFootnote 32 was brought on behalf of a 14-year-old who wanted to wear a silver ring as a symbol of Christian chastity before marriage, following the ‘Silver Ring Thing’ campaign. Her father, Lydia's next friend for the court proceedings, was the head of the Silver Ring campaign in the UK. The court found that a chastity ring was not an essential Christian symbol and therefore did not engage Lydia's right to manifest religious belief or justify legal protection. There was no direct comment on her father's role but there was an implication that his role, interest and suspicions of parental pressure did not assist his daughter's case. By contrast, 14-year-old Sarita Angel Watkins-SinghFootnote 33 brought an application concerning the wearing of a Sikh kara bangle: she was being raised by her white, western mother and her Sikh step-father; she chose to follow her step-father's religion but it was her mother who supported her as next friend, raising less concern about parental pressure. Wearing religious dress manifests counter-cultural religious beliefs and values, particularly around sexuality, raising concerns about children's welfare in preparing for adulthood, coping in wider society and indoctrination into practices such as forced marriage.
Faith-based education
Alongside the 1989 Children Act's welfare criteria, the Children Act 2004, enacting ‘Every Child Matters’,Footnote 34 added longer-term perspectives in which contribution to society and economic wellbeing in adulthood are also factors in assessing children's upbringing and safeguarding. This has exacerbated concerns about faith-based education and home schooling. In supporting rights to education according to religious values, the law permits parents to choose religious schools, to withdraw children from classes that conflict with their religious beliefs and to withdraw children from worship and for religious holidays, as well as the wearing of religiously compliant school uniforms. Exemptions from curriculum areas are permitted not only for religious education but also in relation to IT and use of audio-visual equipment for communities such as the Exclusive Brethren. Withdrawal from sex education and PE is allowed if it would breach religious rules on modesty or where its content is inconsistent with the religious beliefs of the family. This generates a difficult balancing act between minority communities' educational diversity and equality of safeguarding standards.
Impairment of welfare through differential education is long-term and hard to support with evidence. However, Carolyn Hamilton's concern that ‘the rights of the child should not be sacrificed on the altar of religious freedom’Footnote 35 is borne out by several OfstedFootnote 36 inspections criticising some faith-based schools' narrow education,Footnote 37 particularly in communities with separatist, counter-cultural stances towards wider society. Specific concerns include:
i. Lack of safeguarding policies in independent schools, many of which are religious or faith-based;Footnote 38
ii. Risks of prejudice against children's religious difference manifested in religious dress, language and separation from the wider community,Footnote 39 undermining community cohesion;
iii. Failure to equip young people to contribute to society and access economic opportunities;Footnote 40
iv. Limited English-language provision where teaching is in Yiddish and Hebrew;Footnote 41
v. Sex education,Footnote 42 creationism in scienceFootnote 43 and the impact of sexual difference on educational opportunity and expectations;Footnote 44
vi. Some secularists also criticise the existence of faith schools, worship and inclusion of religion in the curriculum for teaching non-scientific truthsFootnote 45 that they perceive as harmful, even abusive.
Such criticisms highlight further difficulties in reaching consensus over protecting children and their education while also respecting religious difference.
Adoption
Adoption provides another example of radical difference. In English law, adoption removes legal ties with birth parents, replacing them with families constituted by legal construction, including the replacement birth certificate. Historically, children were not told they were adopted and contact with birth families was seen as harmful, unsettling and potentially corrupting.Footnote 46 More recently, research has shown the harmful impact of denying adopted children knowledge of their background,Footnote 47 leading to changes that enable them to know their genetic identity, their biological parents' identity and the possibility of tracing those parents when adult. Nevertheless, a closed adoption culture remains, in which children have no direct contact with birth parents.
By contrast Jewish law and Muslim law both argue that biological ties can never be broken: adoption is more like long-term fostering, with some residual relationship with the birth family. This shows radically different understandings of parenting, identity, heritage and relational ties between these two cultures and British culture.Footnote 48 In part this is addressed by the device of open adoptionFootnote 49 and in part by the device of special guardianship.Footnote 50 However, where children are to be cared for outside the extended family and adopted by strangers, English law rather than Jewish or Muslim understandings of what is good for the child prevails, even for children from those communities.Footnote 51 Such different understandings of the parent/child relationship go to the heart of the difference about what is good for children.
SUMMARY
The examples considered illustrate a non-exhaustive range of religious differences that affect understandings of what is good or harmful for children, going to the root of child protection and what society seeks to protect children from. The nub of the differences turns on the levels of parental or communal control of the lives and communities into which children are being educated and socialised. Defensive approaches that keep children within their birth community contrast with education enabling decisions about how they live their faith and contribute to wider society. A pivotal difference is whether children have sufficient autonomy to protect themselves from harm or are so relationally and educationally enmeshed that they cannot seek help. It is those without autonomy and capacity who are most vulnerable and most need protection.
There is such a diversity of possible goods in parenting that defining exhaustive understandings of what is good for children is not feasible. However, recognition of the need for common criteria about harm and attempts to seek common understandings of what constitutes harm are necessary if there is to be cross-cultural engagement with and support for child protection norms. The idea that consensus already exists is misguided, as indicated by the examples above, which demonstrate gulfs of difference between worldviews. There is a need for meaningful discussion across faith communities rather than simple imposition of Western secular norms. So what criteria can be developed to seek consensus about what is harmful and what children need to be protected from?
A SUGGESTED PARADIGM: THEOLOGICAL DEFENCE OF AUTONOMY AND RIGHTS
The international framework for agreed childcare standards is the United Nations Convention on the Rights of the Child, which is signed by all but two nation-states and has significant judicial and academic support.Footnote 52 Although the UK is a signatory the Convention is not, unlike the ECHR, enacted into UK law. Rights have been criticised, particularly from religious perspectives. It is argued that children's dependency makes them incapable of exercising rights or their correlative duties;Footnote 53 rights are also viewed as incompatible with religion as self-centred, unrealistically universal and flawed by liberal assumptions about autonomy and reason. However, contemporary rights are distinguishable from the eighteenth-century conceptions of individualistic libertarian freedom that have been cited in discrediting rights as a whole.Footnote 54
Twentieth-century instruments such as the UN Declarations on Human RightsFootnote 55 and the ECHR began as paradigms to protect essential humanity in the wake of state genocide. Far from being anti-religious, the dynamic of protective rights can be traced from the Hebrew Bible's protection of the ‘vulnerable quartet’ of the widowed, orphaned, aliens and poor.Footnote 56 This is supported by deterrence of exploitation in the theology of jubilee and Novak's analysis of justice and righteousness, tzedeqa and mizpat, as a Jewish justification of rights.Footnote 57 The New Testament develops this protective dynamic, for example in Jesus' very specific calls to protect children.Footnote 58 Tariq Ramadan and the Contextualising Islam report provide similar defences of human rights in Islam.Footnote 59
The difficulty is that, unless there is consensus about what is protected, rights frameworks can be differentially interpreted. It is suggested that the heart of what rights seek to protect is the graced autonomy or uniqueness of each human being, the divine gift of personhood that lies in ‘what is least fathomable and controllable in the human subject’.Footnote 60 A theology of ‘graced autonomy’ protects the cognitive, affective and bodily integrity and identity inherent in all human beings from birth. Bodily integrity resides in protection from both physical and sexual abuse, defined and demonstrated through subjective consent for those with capacity and objective science for those lacking capacity. Affective integrity lies in protection from emotional harm through appropriate boundaries, recognition of human worth, dignity and respect, healthy relationships and affective preferences. Cognitive integrity is protected through conscience and its informed development through education for life in a multicultural world rather than through isolated communities, particularly for those still developing their cognitive capacity. Integrity of identity lies in respecting cultural and religious difference, familial relationships and communities, both within society as a whole and within particular communities.
This paradigm recognises that communities are constituted by human beings in relation; they change, develop and grow, just as do individual human beings. Yet individuals within communities need protecting, not just communities. Integrity of identity also recognises that many people belong to overlapping communities, creating more diverse identities than simply race or religion. The ‘graced autonomy’ of personhood can only be lived in relationship with family, community and God but recognises that, without respect for each person's integrity and worth, right relationship is impossible. Rights that protect ‘graced autonomy’ are therefore defended as the means to establish, monitor and maintain right relationships. Such rights address distortions of power and exploitation that subordinate the interests of some to more powerful others, both individuals and communities. Reports of abuse against children or vulnerable adults highlight the fact that children and vulnerable adults need protection more than adults who are capable of protecting themselves. Rights based on ‘graced autonomy’ provide substance to what constitutes worth in terms of the material, social and participative and give clearer criteria about what is protected than the definitions criticised in defining welfare.
The Christian theology underlying ‘graced autonomy’ is based on Karl Barth's theological anthropology, political, Trinitarian and creation theology and writings about the child.Footnote 61 These speak of each person's unique relationship with God, children being no exception. Barth particularly considers children's growing autonomy and development in their relationship with God and duty as they discover parental clay feet.Footnote 62 Alistair MacFadyen's work on the formation of personhood via communicative relationship also informs this analysis, providing insights into the uniqueness of the person, as well as rights and communication as means of protecting the person.Footnote 63 Wolterstorff's and Duncan Forrester's works are both relied on in defence of rights-based models for protecting each person and each child's graced uniqueness, giftedness and autonomy grounded in God.Footnote 64
Cross-cultural application and development of the concept of ‘graced autonomy’ can be defended by reference to Tariq Ramadan's work, which sets out processes of legal interpretation enabling contextual application of Islamic law and considers particular issues of social, political and educational engagement and rights within Muslim communities.Footnote 65 Anne Sofie Roalds' research amongst Qur'anically literate Muslims considering varied ways of reading Islamic law is relied on in relation to issues of gender and contested Qur'anic sources.Footnote 66 A range of sources can ground the paradigm in Judaism, from the Hebrew biblical theology considered in Wolterstorff's protective paradigm for the ‘vulnerable quartet’ to academic and philosophical support in David Novak's workFootnote 67 and the writings of Rabbi Jonathan Sacks.Footnote 68
The paradigm of ‘graced autonomy’ is tentative, and further work is needed to explore its implications across different communities and its application in public and legal debate concerning children's protection and their upbringing. Following understandings from liberation theology, the model of focusing on the most vulnerable in society should reap benefits across society as a whole. If the paradigm of rights protecting right relationship and ‘graced autonomy’ is good for children's personhood and protection, it must inevitably benefit adults too. The hope is that greater transparency and consistency about child protection criteria and decision-making, recognising and reflecting on diverse worldviews and cultural practices, will enhance child protection through more consistent and objective practice and through greater acceptance of agreed norms, reducing the need for enforcement action.
