There’s been some recent buzz about this court decision, In the Matter of C (Romford County Ct. May 11, 2012); see, for instance, here, here, and here. I tend to think the court decision is correct, and here’s why.
The parents were nonobservant Jews for most of their marriage, but at the very end of the marriage, the father converted to Christianity (Anglicanism, specifically). The parents seem to have what in America would be treated as joint physical and legal custody, with the daughter spending roughly equal time with each, and with each having equal authority over the daughter’s upbringing. The daughter, who is apparently a quite intelligent 10½-year-old, decided she wanted to get baptised, which in the Anglican church involves taking baptism classes as well as going through the baptism ritual. The father had encouraged the daughter’s interest in Christianity, but the court concluded that the daughter genuinely did want to go through the baptism, and had been seeking to do so for about ten months; nor did the court note anything that it saw as undue pressure by the father that would bring this about (though of course it’s very hard to figure out what counts as undue pressure in such a situation).
It seems to me that there are four key facts here:
(1) The court had to decide whether to forbid father from taking the daughter to baptism classes and letting her go through the baptism ritual. The question wasn’t whether the mother could, during her parenting time, continue to expose the daughter to Jewish rituals (which she had started doing in some measure following the breakup, though only by “lighting a candle in the home on Friday nights and explaining its significance to the children,” and which she seemed to want to do to a greater degree in the future); for my views on that, in the American legal system, see Parent-Child Speech and Child Custody Speech Restrictions. The father was not seeking to stop the mother from engaging in such rituals with the child.
(2) The court had to decide what to do when the custodial parents disagreed. This did not involve parents who agreed with each other but disagreed with the daughter’s choice, or a contest between a parent who had primary legal custody and the child plus the other parent who had only visitation rights.
(3) The daughter seemed to genuinely want to be baptised, and wanted this over the span of several months.
(4) The daughter seemed to the court to be relatively intelligent and mature, even slightly more than a normal 10½-year-old would be.
Given this, what is the court to do? The usual rule in intact families, which is that the parents have the legal authority to control their children’s actions (to the point of getting the police to bring the children back if they go off without authorization, and to using the law against those adults who help the children go off without authorization), doesn’t apply here. Nor does the usual rule with divorced or never-married parents when one parent has legal custody, which is to say the legal power to make decisions about the child’s education, the child’s religious practice, the child’s medical treatment, and the like. How then is the court to decide?
(A) The court could try to decide for itself whether baptism is in the child’s best interests (independently of the child’s own preferences). But I see no basis for making such a judgment here, especially given that England now has a fundamentally secular legal system — despite having a formally established Church — and that English courts must therefore make the judgment based on secular rather than theological considerations. The child isn’t seeking to engage in a ritual with serious health risks (such as the handling of poisonous snakes), or to separate herself from the world in a way that might interfere with her education in secular subjects, or anything along those lines.
(B) The court could conclude that the parents are in such conflict on an important subject that joint legal custody has to be terminated, and one parent must be chosen as the primary legal custodian with the power to make such decisions. (One sometimes see this in American cases, though I know of none with quite these facts.) But that, I think, is something that ought to be saved for unusual situations, especially given the likelihood that changing settled parenting arrangements would cause disruption that is against the child’s best interests. In American courts, for instance, changes in existing custody plans are disfavored, and though I don’t know whether that’s equally true in English courts, it seems sensible to avoid such changes unless necessary.
(C) The court could in some situations opt in favor of making the decision that leaves the child with maximum choices as an adult. Thus, for instance, if a child seeks a medically unnecessary sterilization procedure — perhaps out of some ideological or religious commitment — the law might insist that such a largely irreversible and serious decision be saved until the child is an adult (maybe even if both parents agree with the child). But it’s clear that a baptism would have no such irreversible physical consequences. Indeed, I think it wouldn’t even have irreversible consequences for the girl’s future religious life, since she could always turn to Judaism (or return to not observing any religion). I think that, even in a situation where a religion took the view that once one converts away one is forever an apostate, such a conversion shouldn’t be disfavored on the grounds of irreversibility, since I don’t think the religion’s own views should count for those purposes; but in any event, that is not at issue here.
(D) The court could opt in favor of preserving the status quo, which in this situation would lead it to block a baptism, or for that matter any rituals that would mark a shift to more observant Judaism, since the religious status quo wasn’t Judaism but rather lack of any religious observance. And some people have argued that this is proper, since a couple that raise a child in a particular religion (or absence of a religion) are implicitly promising each other that they won’t try to change that, at least absent the other parent’s permission.
But I don’t think that’s right. People famously often change their religious beliefs, both during adulthood and during adolescence and late preadolescence, and a willingness to practice one religion (or practice no religion) at one point should not be seen as any sort of implied commitment to keep the same views even when life has caused one to alter those views. (I would say the same about other ideological views; that two parents are raising their child as a good Socialist shouldn’t keep one from teaching the child capitalist ideology if the parent changes his views, or taking the child to pro-capitalism events, and the same if a formerly pro-capitalism parent changes to a Socialist.)
This is especially so when we’re dealing with a child who can’t be said to have made any agreement, implied or otherwise, in this situation. When one parent and a child have changed their religious views and want to engage in religious rituals that comport with the new views, I don’t see the basis for the other parent’s using the coercive force of the law to stop that just in the name of preserving the status quo.
(E) Finally, the court could take into account the child’s wishes, especially if they seem to be the result of at least moderately mature and thoughtful consideration (given the child’s age, the child’s apparent development, and the length of time the child has persisted in those views). This is partly because the child’s autonomy should be seen as having some value, and partly because using the coercive force of the law to block someone — even a 10½-year-old — from doing something that she sees as spiritually important (and that is unlikely to be temporally harmful) is likely to be at least somewhat against the child’s best interests. Indeed, English law calls for considering “the ascertainable wishes and feelings of the child in the light of her age and understanding.”
Again, if both parents agree, the child’s preference should generally not count for much (perhaps unless the child is much closer to the age of majority, and maybe not even then). Among other things, we presume that the parents know their children well, and want what’s best from them. This is not always a sound presumption, and in some situations it can be rebutted, but it’s generally true if one considers the alternatives (judges, social workers, or even the child herself). Likewise, if one parent has been awarded primary legal custody, that reflects a judgment that that parent is likely to be best able to look out for the child’s best interests. But when two parents who are seen as equally capable and interested in what’s best for the child disagree, and there’s no reason to think that the moderately mature child’s proposed actions would be against the child’s best interests (or is irreversible), then it seems to me that the child’s preference should be used to break the tie.
Finally, let me turn to the letter from Rabbi Odom Brandman (“the Director of the Buckhurst Hill branch of the Chabad Lubavitch Community Centres”), which the mother submitted to the court; the part of the letter quoted by the court (which I assume is quoted in proper context) says,
It was extremely disturbing to hear last night of the proposed baptism of the two young children named above [A and C] in clear contradiction to the wishes of their biological mother and all four grandparents — all of whom are proudly Jewish.
In Judaism we don’t encourage conversion either way as it is unnatural for a person to change the religion they are born into and which thus is ingrained in their soul in a deep way. Although conversions are performed they must be worked at over a number of years when a real change can realistically take place.
It is unfair to any child to put them under this pressure and to do something unnatural to their soul.
What was even more disturbing in this case was the fact that the children have been enrolled in a baptism program without the knowledge or consent of their mother...
A formal change of religion must be agreed by both parents. To me this does not stand well for the integrity, trustworthiness or responsibility of the father.
The court concluded that the rabbi erred in asserting that the father had enrolled the child in the baptism program without the mother’s permission, so let’s set that allegation aside. What remains is the rabbi’s assertions about what is “natural to [one's] soul,” what the wishes of the mother are, and what the wishes of the grandparents are. The grandparents’ wishes strike me as legally irrelevant. The wishes of the mother, under the modern secular English legal system, have no greater legal claim to being implemented than are the wishes of the father. The assertion that the change of religion “must be agreed by both parents,” if that assertion rests on a “preserving the status quo” theory, strikes me as mistaken, for the reasons given above. The implication that it’s psychologically bad in a temporal sense for a child to change her religion doesn’t seem to me to be factually well-founded.
And as to what is natural to a person’s soul, that strikes me as no business of a secular court. Jews have one view of this. Christians have another. Other religions and nonreligious philosophies have others. Secular courts ought to stay out of this, whether the child is ethnically Jewish or not.
So that’s my tentative thinking on the subject; I’d love to hear others’ views on it.