Hassan could be advised to apply for a residence order because he wants to not only re-establish his relationship with his son but also ensure that he is brought up with Islamic traditions. It would be difficult for Susie, a non-practising Catholic, to bring up Osama as a Muslim because the religion depends on practices in the home as well as community worship. As we have seen above, the factors which the court will consider before making an order is in this case the child’s age, sex, background and any characteristics of which the court considers relevant. The child’s background includes his religious upbringing. The preservation of links with the child’s culture and heritage are important issues that should not be overlooked as we see in Re M (Child’s Upbringing) in which the Court of Appeal ordered the return of a Zulu boy to his mother in South Africa.
Religious upbringing is of great significance but it is inconceivable that a parent would be refused a residence order on the ground of atheism except in the case of the poet Shelley who was denied care on this ground. The court will have a look at Osama’s age in making a decision . In the case of a very young child( and probably no fixed religious beliefs) the question of religious upbringing will have little bearing on the result of the case. In Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) 1999 2 FLR 678 the child concerned was 5 years old and was being brought up as a non practising Christian in accordance with the beliefs of his mother with whom he lived and as a non practising Muslim when staying with his father. He could therefore be said to have no religious settled faith. Wall J refused to make a specific Issue Order that the child be brought up in the Muslim religion. But we do not have enough information in the case facts to find out how old Osama is.
Another important point to make would be to find out if Osama was Gillick competent according to the Gillick v West Norfolk and Wisbech Area Health Authority where
It was held that if a child is capable of expressing his or her own wishes then that child is Gillick competent. For example in Re S (Specific Issue order: Religion: Circumcision) 2005 1 FLR 236, the children, one of whom was a boy approaching nine, were brought up by a Hindu father and a Muslim mother, experiencing a mix of the religions. The mother separated from the father and wished to bring the children up solely as Muslims and to have the boy circumcised. Islam required circumcision, Hinduism forbade it.
The court held that the children of a mixed heritage should be allowed to decide for themselves which, if any, religion, they wished to follow. Circumcision was not in the son’s best interests at present because it would limit his freedom of choice. The Muslim religion permitted circumcision later, at puberty, by which time the son would be Gillick competent and could make an informed decision himself. But we do not have sufficient information as to the age of Osama to see whether he is Gillick competent already.
So assuming that Hassan applies for a residence order, the court is not going to discuss over which religion they prefer. In Re Caroll, Scrutton J in the Court of Appeal stated that:
“It is, I hope, unnecessary to say that the court is perfectly impartial in matters of
Religion; for the reason that it has as a court no evidence, no knowledge, no view
As to the respective merits of the religious views of various denominations”
Indeed to favour one religion over another would arguably be in breach of the European Convention of Human Rights and the Universal Declaration of Human Rights. However it has been seen that courts tend to think that parents who are religiously observant are able to provide a superior moral environment for the child. In McNamara v McNamara, the court in awarding residence to the father, emphasised the importance of its finding that ‘ he conscientiously adheres to religious teachings and would apparently rear his children in the same manner’.
But with the welfare principle in place, it is unlikely that a decision will be made according to McNamara because in this case we also see that when Osama is at his grandparents, they do not speak in English to him. This particular fact can be detrimental to Osama’s educational needs because he is going to an English school and living in the UK. As we see in H v H 119 Sol. J. 590, the father, an Egyptian Muslim, and his English Christian wife were contesting the residence of two boys aged one and five. The judge awarded the residence order of the five year old to the father on the ground that the provision of a religious and cultural education by the father outweighed the other considerations which, in normal circumstances, would have resulted in both children being placed in the custody of the mother. On appeal, the Court of Appeal held that having settled in England and entered into a mixed marriage, the father must have faced the difficulty of maintaining his cultural roots. The court had to consider the child’s best interests. The child was half Egyptian and half English, and would grow up and go to school in England. There was no overriding need for a close connection with the boys’ Arabic and Muslim background given this situation, and no reason why this factor should be treated as being of overriding importance. Treating the religious issue as just one more factor to put in the best interests balance, the Court of Appeal concluded that the child should be with his mother, even though she was unable to instruct him or bring him up as a Muslim.
And that brings us to Osama’s case because its not going to be in his best interests to not speak in English and that has an effect on his educational path.
We also need to examine the status quo factor of the case, for example in Diocco v Milne 1983 4 FLR 247, each parent wished to care for their child. The magistrates found in favour of the father and the mother appealed. There were three key factors important in child cases that the magistrates had failed to consider, namely the desirability of continuity of care as an important part of a child’s sense of security and the need to avoid the disruption of established bonds whenever possible; the desirability of avoiding, if possible, the division of care of a child between several persons; the parent’s attitude towards contact with the other parent.
So , in this respect we see that the courts are more likely to favour Susie because of the status quo argument as the courts would like to maintain the continuity of care available to Osama. Based on the reasons aforementioned, Hassan seems to be less likely to get the residence order but will probably be successful with a contact order especially because there is evidence of Osama meeting Hassan regularly on weekends.
However with regard to changing the child’s surname, the court must be involved not only if there is a Residence Order in existence, but also where any parent, with or without parental responsibility, objects to the change. The parent may apply for a specific issue order or prohibited steps order to require or to block a change of name. The child’s best interests will be of prime importance together with the reasons for seeking the change and the authority for this is Dawson v Wearmouth 1999 where the mother had two children from a previous marriage. She separated from the father of her third child when the child was only one month old and registered the child with the surname of her former husband, which she and her other children had continued to use. The father sought a specific issue order to change the child’s surname. At first instance, the order was granted but the Court of Appeal allowed the mother’s appeal. The House of Lords held that an order changing the surname of a child should not be made unless there was evidence that this would benefit the child. In this case, the benefit of the child sharing a surname with his mother and half siblings was greater than the benefit of sharing a name with his father. The appeal would be dismissed.
The case demonstrates the reluctance of the courts to authorise a change of surname. It is usually difficult to show that a change will lead to a positive improvement in the child’s welfare. So we can advise Hassan to apply for a specific issue order or prohibited steps order under section 8 because there is no evidence that changing Osama’s name to Tom Smith will be beneficial to him.
Another point worth mentioning would be the fact that Susie changed her address without informing Hassan or his parents. She did not technically leave the country but there is no presumption in favour of the primary carer’s plans in deciding whether leave to remove child from jurisdiction should be granted and the authority for this is the case of Payne v Payne 2001.
We also gather from the facts that Osama calls Michael “daddy” which lets the readers assume that Susan is hiding the truth from him about his father. Had Hassan been an alcoholic and had it been damaging for the child to find out, it would be different like in the case of Re K (Specific Issue Order) 1999, the mother told the kid that his father was dead. In fact, the father was an alcoholic whom the mother hated intensely. The father wanted his son to be told of his paternity and applied under section 8 for a Specific Issue order to require this. Court held that, while in principle it would be in the son’s interest to know who his father is , in this instance it would be damaging. However, there is no such thing in Hassan’s case so he could be advised to apply for a Specific Issue order to let his son know who his real father is.
Hence, to conclude we have seen how when parents separate and follow different religions or have different beliefs, this may become an issue to be resolved by the courts. Where the religious upbringing that a parent has in mind is nothing more than ‘acquainting’ the child with traditions, beliefs and culture of that parent’s religion, the situation is relatively uncontroversial. However when it encroaches on the best interests of the child, whether in the way of his educational path or his emotional stance, the courts have to be careful before submitting the child to the full range of religious observances. While a balance between tolerance and a child’s best interests is a delicate one, a requirement that substantial harm exist or be threatened is, it is argued, too high a threshold, and unduly emphasises parental religious rights at the expense of children’s best interests.
(2505 words)
Bibliography
Articles, Textbooks and Internet Sources
Bromley’s Family Law
Nigel Lowe and Gillian Douglas
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C Hamilton Family, Law and Religion 1995
Chapter 4 and 5
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Themes and Perspectives, Sixth edition
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2008
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Authorities
Re Caroll,
Children Act 1989
Dawson v Wearmouth 1999
Diocco v Milne 1983 4 FLR 247
European Convention of Human Rights
Gillick v West Norfolk and Wisbech Area Health Authority
Guardianship of Infants Act 1925
Guardianship of Minors Act 1971
H v H 119 Sol. J. 590
Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) 1999 2 FLR 678
Re K (Specific Issue Order) 1999,
Re M (Child’s Upbringing)
McNamara v McNamara
Payne v Payne 2001
Re S (Specific Issue order: Religion: Circumcision) 2005 1 FLR 236
Shelley v Westbrooke 1817 Jan 266n
Universal Declaration of Human Rights
