2 Adopting and defining the term exorcism

There is no consistently accepted or wholly unproblematic terminology available within this field (Stobart, Reference Stobart2006) and I have opted to use the term ‘exorcism’ to denote ‘any rite or practice intended to free a person, place or object from a negative, external spiritual influence’ (García Oliva and Hall, Reference García Oliva and Hall2019, pp. 1–10).

Exorcism is acknowledged to be a feature of many religions and spiritual traditions, and it is not strongly tied to one particular worldview or culture (McCraw and Arp, Reference McCraw and Arp2017). Whilst it is true that tropes about Christian, and specifically Roman Catholic, exorcism are particularly prominent in the Western popular imagination (Olson and Reinhard, Reference Olson and Reinhard2016), there is widespread awareness of other forms of exorcism amongst both the general public and academic discussion.Footnote ⁵ This formulation also draws together a common element in practices that are shared by people with widely divergent belief systems (in short, that there is some external, spiritual force causing harm and requiring removal) but at the same time avoids equating or converging very different actions and doctrines. There is huge diversity in relation to understandings of the nature of the harmful external force, the appropriate means to expel it and the implications for the person, place or object feeling its effects. Being in need of exorcism may be a sign of transgressive behaviour or some inherent weakness; it may be a socially and morally neutral misfortune; or it may be a sign of virtue, innocence or enhanced status (the logic being that malevolent forces would want to attack the most desirable community members) (Hussein, Reference Hussein2019). Obviously, all of these variables are going to make a vast difference for the perception and treatment of any individual (child or adult) in receipt of exorcism.

It would be crucial to highlight that I have consciously steered away from the word ‘possession’, as this has a very specific meaning within some faith traditions (Perry, Reference Perry1996) and for many people is interpreted to mean the complete subjugation of a person's will by an external, sentient entity. I have also rejected the language of witches and witchcraft because understandings of these terms are so widely variable (Hutton, Reference Hutton2017).

I have adopted the label exorcism because it is widely understood and applied cross-culturally to describe practices within different traditions and belief systems. It makes no claim about the nature of the practices, the doctrines driving them or the social context in which they sit, as in this regard there is immense diversity. In order to understand the factors at play for a particular child who may experience exorcism and the considerations to weigh up when it comes to the involvement of state law and public authorities, it is imperative to avoid generalisations and false equivalence. It also cannot be overstressed that in a democratic society, the preferences of third parties cannot be a ground for restricting religious freedom. The right to manifest a religious belief can only be limited in accordance with Article 9(2) and the mere fact that some observers might consider a practice strange is not a reason to restrict itFootnote ⁶ (although it is clear and uncontroversial that the rights of individual children to dignity, safety and bodily integrity will be sufficient reason to restrain parental religious freedoms, as the leading case of Williamson demonstrates).Footnote ⁷

Furthermore, much of the discussion around children and exorcism, including calls for legal prohibition, has surfaced because of tragedies arising in communities of the African diaspora (La Fontaine, Reference La2016). Although I shall shortly turn to these debates, it is my contention that trying to differentiate exorcism in this setting from the countless other contexts in which it takes place is problematic practically and legally.

That being said, the imperative to protect children within the African diaspora communities from exorcism-related abuse is undeniable and the case for specific legislation has been persuasively made by those living and working within this context. For this reason, careful consideration must be given to the arguments in favour of introducing a new law and the reasons for rejecting them must be cogently explained.

3 The creation of a specific offence relating to the exorcism of minors

The two most developed proposals for new legislation in this arena come from the Private Members Bill introduced into parliament in the wake of the death of Victoria Climbié and the current position statement of AFRUCA. Each one takes a different approach to law reform but both arguably fall at the same hurdle, namely constructing an appropriate filter that would (1) criminalise harmful practices in a non-discriminatory way; and (2) avoid catching legitimate rituals and unduly curtailing religious freedom.

The wording of the bill was extremely succinct: it criminalised the performance of an exorcism on any person below the age of sixteenFootnote ⁸ and defined an ‘exorcism’ as ‘any rite or ceremony, the purpose of which is, or purports to be, to rid an individual or a menacing or oppressive condition or thing’.Footnote ⁹

The inherent flaw in this approach is that the net is cast so widely that, if interpreted literally, it would outlaw a plethora of customs and ceremonies, including the baptism of infants in the Church of England.

One response to this might be to suggest that a judge interpreting this hypothetical piece of legislation could apply a different mode of statutory interpretation, such as the golden rule, to avert an absurd application of the law and the unintentional criminalisation of manifestly harmless practices.Footnote ¹⁰ However, this is a dangerous route to tread, given that the boundaries of harm are open to debate and, as Jivraj and Herman (Reference Jivraj and Herman2009) argue, there is an inevitable risk of minority ethnic, religious or cultural communities being treated differently because their contexts are less well understood by the judiciary. Imposing a general ban on exorcism, whilst effectively requiring judges and other decision-makers in criminal justice to selectively disapply it, would lead to discrimination and inconsistency.

In light of this, a blanket prohibition of the kind envisaged by the 2001 bill would not be appropriate. It must be acknowledged, nonetheless, that at least at one level, the legislative action proposed by AFRUCA is more sophisticated in its construction. Instead of focusing on the act of exorcism, the approach here centres on accusing a child of being possessed and is prefaced with an explanation as to why the organisation deems all such statements to be abusive:

The policy document observes that as an abusive act, an allegation of possession is already a criminal offence in some circumstances by virtue of the Children and Young Persons Act 1933 (CYPA), as amended by the Serious Crimes Act 2015. This statute makes it explicit that it is an offence for someone with responsibility for a child to cause them unnecessary psychological suffering or injury.Footnote ¹¹ Nevertheless, it is frequently the case that suggestions of possession are initiated by third parties who do not have any responsibility for the child in question, such as family friends, lodgers, religious ministers or other members of the faith community, and in these cases, the accuser will not be caught by the legislation. AFRUCA, therefore, suggest that an amendment to widen the scope of the offence would be beneficial.

A second reason for their advocacy for change is that ‘[t]here is no common understanding or agreement in the UK that a possession accusation is psychological abuse’ (AFRUCA, 2017, p. 1).

Their contention is that there needs to be legal clarity that labelling a child is beyond acceptable bounds of behaviour and not simply an expression of personal belief or spirituality. They propose the following two changes to the Act:

AFRUCA maintains that this would fill a gap in the existing law, rejecting government's arguments put forward in 2014 before the Upper House at the Report Stage of the Serious Crimes Bill that existing statutes (specifically the Public Order Act 1986, the Protection from Harassment Act 1997 and the Serious Crimes Act 2007) provide an adequate response where abusive possession accusations are made by third parties.Footnote ¹² AFRUCA counters that there is no evidence of any of this legislation ever having been applied to such a case and that it is difficult to imagine authorities pursuing such a speculative prosecution, especially given that human rights arguments in respect of religious freedom would undoubtedly be raised by the defence. Furthermore, AFRUCA's primary objective in advocating for change is to prevent child abuse, and possible sanctions for offenders (even if successfully applied) would not further this goal (AFRUCA, 2017).

All of these arguments are powerfully persuasive. Furthermore, AFRUCA is an organisation with intimate knowledge of the context being discussed and is an expression of activism from within a minority community, as opposed to the commentary of an external agency or observer.

However, even allowing for this, it remains the case that, as Briggs and Whittaker argue, there are sensitive and complex issues around the proactive involvement of public authorities in what many community members perceive to be internal affairs (Briggs and Whittaker, Reference Briggs and Whittaker2018). The truth is that the AFRUCA proposal does account for this, giving the stress laid on the importance of respectful and collaborative working in the implementation and interpretation of the law (AFRUCA, 2017). Yet, whatever the initial impetus for legislative action, the end result would be more explicit state regulation of the life of the community and the possibility of a backlash is, without a doubt, a huge risk.

It is beyond question that Articles 3Footnote ¹³ and 8Footnote ¹⁴ of the ECHR are applied equally to all children, and the community in which they are born does not alter the duty on the part of the state to protect them from harm. Furthermore, the courts have consistently, and correctly, made clear that the standards set by CYPA section 1 are objective, as well as not being modified by cultural setting or heritage,Footnote ¹⁵ and minority communities cannot be allowed to manage their own affairs to the extent of harming vulnerable groups within their midst (García Oliva and Hall, Reference García Oliva and Hall2018). Yet, having acknowledged this point, it is still necessary to consider what strategies are likely to be most effective, which counter-productive measures should be avoided and, as Williams argues, we already have a backdrop in which discussions around African spirituality in the professional formation of those working within child protection tend to focus on its negative aspects and arguably give undue weight to the benefits that many individuals experience (Williams, Reference Williams2013). A legal reform to proscribe certain expressions of belief could widen the gulf in understanding on both sides, making it harder for social workers, teachers or police officers to gain a nuanced insight, and also leave members of the community more reticent in disclosing information about children in jeopardy. If a policy inadvertently accentuates one marginalising dynamic (e.g. distrust of state authorities amongst many Black British communities), this will exacerbate the jeopardy posed by other risk factors for abuse, such as the disempowerment faced by a child in relation to adults.

It is not the purpose of this paper to determine whether attaining the goal of outlawing witchcraft labelling in England and Wales would be the optimal direction to take from a child protection perspective, but to assess from a legal standpoint the desirability and workability of the concrete legislative reforms that have been put forward.

As previously indicated, the difficulty that I perceive with the statutory proposals drafted by AFRUCA is that they effectively amount to another general ban on child exorcism. Whilst AFRUCA set out arguments that cogently explain why such assertions are extremely harmful, where they amount to witchcraft labelling in the context of African diaspora communities, the proposed wording would catch many other forms of belief relating to external supernatural forces. Such a blanket measure would inevitably curtail religious freedom to an unjustifiable degree, not only for faith groups, but also for individual young people. Whilst the Strasbourg jurisprudence does undoubtedly permit general prohibitions, even where this comes with an inevitable restriction of rights, this is only acceptable when there has been a robust consideration into the range of options available and the measure is demonstrably proportionate.Footnote ¹⁶ In this context, there is simply insufficient evidence that a general proscription of child exorcism is a necessary and proportionate means to tackle a social problem, or even that it would be an effective means of doing so.

The high-profile tragedies all concerned situations in which the child victims had no agency and derived only suffering from the practices being inflicted upon them. Fortunately, this is not the typical way in which young people interact with their faith and cultural context. Many children gain immediate enjoyment and comfort from their spiritual environment, and later embrace their religious upbringing as adults. Sometimes a spiritual environment will include beliefs relevant to exorcism, which raises the religious autonomy of minors – an area to which we now turn.

4 Exorcism and the religious autonomy of children

To illustrate why a blanket ban on the exorcism of minors is so problematic from the perspective of individual autonomy, and indeed Article 9 of the ECHR, I will set out a hypothetical example. The actions of the adults involved would be criminalised by the proposed wording of the 2001 bill and the changes to the CYPA advocated for by AFRUCA.

Amina is a fourteen-year-old Muslim of Pakistani heritage. Last year, she began suffering panic attacks at school, her parents took her to the GP and she is now receiving help and support via Child and Adolescent Mental Health Services (CAMHS). Amina's grandmother believes that a jinn (evil spirit) may be part of the problem and has encouraged her to recite prayers to combat this (Rassool, Reference Rassool2019).Footnote ¹⁷ As Amina adores her grandmother, she has taken this on board and her parents are happy as long as their daughter continues to engage with the support offered by CAMHS. Amina is intelligent for her age, and finds comfort in her faith and the idea of doing something proactive. Moreover, she is positive about the National Health Service therapy that she is receiving and is making good progress (Sheikh and Gatrad, Reference Sheikh and Gatrad2000).Footnote ¹⁸

Here, it can be seen that a young person who might be the subject of an exorcism is not necessarily without agency, nor is it invariably the case that the suggestion of some external, spiritual force causing their problems is terrifying – an indication that they are in some way a threat to others or even dehumanised.

For many communities, beliefs around spirits are part of everyday life and children are going to encounter these ideas and incorporate them into their analysis of the world around them (Bane, Reference Bane2012, pp. 5–8). Criminalising a suggestion that a child might be subject to the same spiritual misfortunes as older community members or proscribing any attempt to address such a perceived occurrence would have far-reaching implications for the practice of religion and the transmission of culture. Moreover, it would be extremely difficult to imagine how a total ban in all circumstances could avoid falling foul of either Article 9 or Article 8 with regard to the assessment of the necessity and proportionality.

Additionally, a universal prohibition takes no account of the capacity of children to exercise agency nor to realise their own Article 9 rights. This wider consideration is critical, as it opens up a much larger problem in respect of the interpretation and protection of human rights. The truth is that addressing exorcism is problematic, particularly when we take into account the capacity of children to make independent choices, because the entire legal framework is deficient in this regard. The instrument at the heart of human rights in respect of religion and belief is Article 9 of the ECHR and, for the reasons that we are about to explore, is sorely lacking when applied to children.

5 Children and Article 9

The work of Langlaude (Reference Langlaude2007) has been valuable in highlighting the adult-centred nature of Article 9 and the failure of courts to make headway in acknowledging or addressing this issue. This instrument protects the practice of faith, but does so within a framework that conceives freedom of religion as the right to hold and manifest a belief. In other words, its core concern is the externalisation of an inner conviction.Footnote ¹⁹ In a UK paradigm, the House of Lords affirmed that whilst spiritual beliefs, by their very nature, need not be amenable to logical argument or empirical demonstration, to qualify for protection, a doctrine must be reasonably coherent and capable of articulation in some form.Footnote ²⁰

This formulation reflects the context in which it arose, moulded by the European Reformations and Enlightenment (Rakove, Reference Rakove2020). The prototypical model is that of an adult, generally a male adult, with social, economic and educational capital, whose conscience dictates a particular course of action (Stanford, Reference Stanford2017).Footnote ²¹ A text that is rooted in an understanding of faith as the expression of an intellectual idea inevitably favours spiritualities centred on orthodoxy as opposed to orthopraxy (Guhin, Reference Guhin2020).

In simple terms, if an action is not linked to an identifiable belief, it is likely to fall outside of the scope of the Convention protection, even if it is part of a pattern of cultural norms and rituals. For example, in Jones v. UK, a family's deeply held desire for a particular form of memorial for their son was interpreted as being outside the scope of Article 9,Footnote ²² even though their chosen expression was squarely within the norms of mourning rituals for the community.

In addition, because Christianity, and in particular Western Protestant Christianity,Footnote ²³ is a prime exemplar of a religious tradition fixed in orthodoxy, this privileging of creed over practice arguably bolsters wider systemic bias in favour of the historically dominant faith (Jolly, Reference Jolly2016;Footnote ²⁴ Kahn, Reference Kahn2018). These are entirely legitimate concerns and worthy of academic attention, but my prime focus for present purposes is the specific disadvantages for childrenFootnote ²⁵ of the doctrinally based character of Article 9, in respect of both managing exorcism and more widely.

This prejudicial effect is twofold: (1) it sets up a conception of religious practice that tends to exclude or marginalise elements involving children, increasing the risk of these being misinterpreted or overlooked; and (2) it is inevitably disadvantageous to those whose capacity to formulate and articulate an independent belief is still inchoate.

This is, undoubtedly, a cause for concern and takes us, naturally, to a discussion of children and their religious practice.

6 Children and religious practice

An understanding of religion that emphasises doctrine, such as that set out in Article 9, tends to focus on the aspects of faith and practice that are grounded in sacred texts, community buildings and formal power structures. As previously stated, unquestionably, these elements of faith concentrate on adults, and frequently adult male actors.

It is common for children to participate primarily in spiritual activities in the private domestic setting and if these aspects of practice are misinterpreted as auxiliary rather than essential, there is greater likelihood of them being dismissed. This is particularly detrimental in relation to assessing practices such as exorcism, because it runs the risk of undervaluing the significance of experiences that are of subjective value to the young person concerned whilst at the same time opening the door to trivialising activities or statements, thereby underestimating the potential danger that they might pose. There is jeopardy of this being fuelled by other systemic societal prejudices such as misogyny or ageism; for example, harmful statements may be downplayed on the basis of ‘that's just what grannies say’ or ‘that is just an old wives’ tale’ (McNamara, Reference McNamara2019, p. 22).

A good illustrative example can be found in the following article from a mainstream liberal-leaning British newspaper:

This commentary succinctly combines gender stereotypes, the infantilisation of women and dismissal of spiritual practices of females and young people as at best irrational and at worst pathological.

The very drafting of Article 9 emerged from the same cultural milieu in which perceptions like this still flourish and encourages a distorted approach to concrete problems. This is severely problematic, in and of itself, but there is the additional, perhaps even greater difficulty of applying the requirement of a ‘qualifying belief’ to a minor.

7 Children and qualifying beliefs

Another consequence of making a qualifying belief a sine qua non for accessing protection under Article 9 is to entirely exclude babies and very young children from its ambit, at least in terms of direct claims on their own behalf.Footnote ²⁶ Of course, their parents have Article 9 rights in respect of their upbringingFootnote ²⁷ and the infants themselves may seek the shelter of Article 8 with regard to religious and cultural identity. This has been interpreted to include the right to personal development and autonomy,Footnote ²⁸ and the Strasbourg Court has expressly acknowledged that, in some circumstances, Article 8 has a role in protecting religious interests.Footnote ²⁹ Whilst the desirability of constructing a right to religious freedom in a way that excludes infants is ideologically open to debate, it might be argued that in practical terms, their position is relatively straightforward.

However, the situation of older children is far more complicated as, whilst they have independent opinions and beliefs, their values, identity and personal autonomy remain inchoate and neither domestic courts nor the European Court of Human Rights have been willing to tackle the complexity of this head-on. Thus we have a marginalising legal instrument, enshrined in international and national law, reinforced by a judicial stance that accentuates its impact.

There is no doubt that Article 9 does apply to minors, but judges have made little effort to address how this might work practically. When young people have brought claims in their own name, little enquiry has been made into whether they do in fact possess a qualifying belief.

For example, in Dogru v. France,Footnote ³⁰ the applicant challenged her expulsion from school for refusing to remove her Islamic head covering during physical education sessions. Neither the French government nor the Strasbourg Court paused to consider whether she was acting of her own volition or with full understanding, even though she was eleven years old at the time. This is troubling because, as noted above, parents have their own Article 8 and 9 rights to raise their children in accordance with their own belief system and, in these sort of cases, also a Protocol 1 Article 2 right in respect of their daughter's education.Footnote ³¹ If parents wish to bring an application on their own behalf, that is entirely legitimate, but it is also laudable for adult family members to facilitate a young person in making a legal challenge if they have sufficient maturity to appreciate what this means and assent to it. Nevertheless, parents should not be permitted to act vicariously through a minor child lacking such independent conviction.

An eleven-year-old, such as the applicant in Dogru, might or might not have sufficient understanding and the matter ought therefore to have been investigated. The judicial tendency to abnegate all responsibility and sidestep the issue is regrettable if our legal framework aspires to take the dignity and human rights of children seriously.

The picture has been no more encouraging at a domestic level; for example, in the case of R (SB) v. Governors of Denbigh High School, the House of Lords hinted that the case was being driven by the applicant's family rather than Ms Begum, but did not explore the implications of this.Footnote ³² Considering that she was only thirteen years old when the dispute started, this omission is again quite striking.

Neither is the willingness to elide children's rights and parental rights confined to the judicial treatment of these cases. Academic commentary has also tended to skate over the issue of whether the applicant child did, in fact, hold an independent qualifying belief. Authors such as Sandberg, despite his otherwise insightful analysis, omit tackling this issue in discussing the Begum case (Sandberg, Reference Sandberg2011). This gap in legal debate has rendered the analysis of exorcism even more difficult, in relation to both decision-making in individual cases and policy-making.

The basic principle in English law, as outlined in the iconic Gillick case, is that capacity for children is an incremental concept and decision-specific.Footnote ³³ Once a young person achieves sufficient maturity to adequately understand a given decision and all of its implications, he or she has the right to make that determination independently and parental responsibilityFootnote ³⁴ ceases for the matter in question (Gilmore and Herring, Reference Gilmore and Herring2011). This means that a young person will achieve Gillick competence gradually and a child will be able to give legally operative consent to a haircut before being in a position to independently choose whether or not to have elective surgery involving a general anaesthetic.

As Adar and Leigh correctly assert, the Gillick principle applies to religious matters in the same manner as other spheres (Adar and Leigh, Reference Adar and Leigh2005). The difficulty with which we are faced, however, is that there has been little discussion of what it might actually look like in this context, at least where it is divorced from a decision about medical treatment. There has admittedly been extensive judicial and academic debate over the operation of Gillick competence in the sphere of the refusal of clinical interventions (Cave and Wallbank, Reference Cave and Wallbank2012).Footnote ³⁵ Nevertheless, I would argue that these discussions are of very limited help and relevance in assessing what a young person would have to understand in order to make a choice about an exorcism.

The debate over Gillick has focused on paradigms in which the physical well-being is directly at stake, either directly or indirectly, but this does not assist greatly when translated into a scenario in which the harms and benefits may be psychological and social or cultural in nature. There are two reasons for this contention: first, as noted, the factors being weighed in the balance are radically different and there is a real risk of comparing apples and oranges; second, I would argue that the question of bodily autonomy is the fundamental issue (Ó Neill, Reference Neill C2018) in cases around a teenage Jehovah's WitnessFootnote ³⁶ who wishes to refuse a blood transfusion or a vegan wishing to decline a vaccine containing animal products,Footnote ³⁷ albeit that religious factors may be directing the preference. Although the motivation for a decision in respect of medical treatment may shed light on understanding or maturity, the core question is whether the young person has capacity to decide, and if a person is deemed competent to make a choice, they can exercise that autonomy on the basis of whatever values or priorities they wish.

Undoubtedly, some practices relating to exorcism can lead to serious injury and even death, but there is no serious suggestion that minors should be in a position to give operative consent in such cases. Therefore, what is the situation where the harm is not bodily in nature? How would Gillick competence operate in that sphere, and what factors should a court weigh up in permitting or forbidding participation in an exorcism ritual where the child lacked capacity?

For instance, there has recently been understandable controversy around the activities of the Danish religious leader Torben Sondergaard and his assertions that exorcism and baptism can ‘cure’ autism (Boseley and Lignel, Reference Boseley and Lignel2015)Footnote ³⁸ and homosexuality (Quinn, Reference Quinn2016). Suppose that a child aged thirteen was taken to the meeting of such a group by one of his parents. He and the relevant parent become convinced that an exorcism could ‘cure’ his autism and believe that this would make his life easier; the other parent is horrified and seeks a prohibited-steps order pursuant to section 8 of the Children Act.Footnote ³⁹

What would the young person have to be able to understand and weigh up in order to give valid consent on his own behalf? If the minor failed to attain Gillick competence, how would a court ascertain the relevant factors in making a best-interests determination?Footnote ⁴⁰ It is hard to imagine a court acquiescing to such a plan for the child in the face of parental opposition, given the lack of scientific evidence for any therapeutic benefit, and this would be in keeping with the consistent case-law on ritual male circumcision and non-competent minors.Footnote ⁴¹

At present, the approach of the courts remains speculative because, in England and Wales, we regrettably simply do not have sufficient adequate judicial or academic consideration of children's rights in the context of religion and spirituality outside of the highly specific context of faith-based refusals of medical treatment. This systemic legal deficit further marginalises all under-eighteens and has an even greater impact on those subject to other marginalising factors (e.g. membership of minority ethnic or cultural groups).