Hands‐Off or Hands‐On?: Deconstructing the ‘Test‐Case’ of Re G within a Culture of Children's Rights
| Published date | 01 January 2014 |
| Date | 01 January 2014 |
| Author | Tamara Tolley |
| DOI | http://doi.org/10.1111/1468-2230.12058 |
CASES
Hands-Off or Hands-On?: Deconstructing the ‘Test-Case’
of ReGwithin a Culture of Children’s Rights
Tamara Tolley*
This note challenges the so-called ‘test-case’ status of Re G in so far as it attempts to overturn the
principle established in Re T that courts should adopt a neutral position when it comes to
weighing the merits of different upbringings and the education provided by parents of minority
religions. In determining the future upbringing and education of children who had been brought
up in a minority religious community, ReGapplies a principle of maximising educational
opportunity in order to uphold the mother’s proposed educational choice and way of life. This
note argues that ReGwas wrong to do so, should not be regarded as establishing any new
principle and that the only relevant principle, both in determining this case and future cases, ought
to rest on the psychological well-being of the child.
INTRODUCTION
The issue raised by Re G (Children) (Religious Upbringing: Education)1is whether,
and if so how, the courts ought to resolve disputes between parents concerning
the education of their children, where one parent’s preferred education conflicts
with the values, way of life and religion of the other. The courts have always –
rightly, it is submitted – been wary of involvement in evaluating the very
different experiences of parenting especially where cultural or religious diversity
is present.2They interfere where activities go ‘beyond the pale’ but traditionally,
in private law disputes between ‘unimpeachable’3parents, the courts tolerate
diverse standards of parenting, including the eccentric, the barely adequate and
the inconsistent.4Importantly, previous case-law highlighted the sensitivity that
is required when assessing the welfare of children in minority sects or religions.5
This approach, where it is set within the framework of families from religious
communities whose choices for their children may seem different from majority
practices or beliefs, fits with a vision of ‘cultural pluralism within limits’,6a
Razian approach to respecting persons qua members of cultures, based upon the
*I am grateful to Ruth Deech, John Eekelaar and the anonymous reviewer for their helpful comments.
Any errors remain my own.
2 I refer here to the point made in Re G ibid that the courts have traditionally not sought to evaluate
between the respective merits of different religions when deciding issues of residence and contact.
4 Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050. Munby LJ refers to this case in his
judgment.
5 n 3 above.
6 S. Poulter, Ethnicity, Law and Human Rights. The English Experience (Oxford: Clarendon Press,
1998).
bs_bs_banner
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(1) MLR 110–138
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
To continue reading
Request your trial