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Fasting for Ramadan and Court of Protection

Posted on June 17, 2017 by suesspiciousminds

 

An interesting Court of Protection case which might prove useful for other professionals.

 

IH (Observance of Muslim Practice) 2017

http://www.bailii.org/ew/cases/EWCOP/2017/9.html

 

Cobb J was presented with an application by the Official Solicitor on behalf of IH, a man of Muslim background who lacked capacity, for a declaration that IH should not have to fast during the period of Ramadan as would be culturally usual for Muslims who had capacity.

At the same time, IH’s family sought a direction that IH’s body hair should be trimmed.

 

 

  • There is no dispute that IH lacks capacity to make the decisions which are the focus of these applications; the diagnostic and functional criteria contained in, respectively, sections 2 and section 3 MCA 2005 are clearly established on the evidence. Specifically, to have capacity to make the decision to fast for Ramadan, a person would be expected to understand (section 3(1)(a)):

 

i) What fasting is; the lack of food and liquid, eating and drinking;

ii) The length of the fast;

iii) If for religion, for custom (family or otherwise), for health-associated reasons, or for other reasons;

iv) If for religion reasons, which religion and why;

v) The effect of fasting on the body;

vi) What the consequences would be of making a choice to fast and the risks of choosing to not fast or of postponing the decision.

 

  • Dr. Carpenter is clear that IH is not able to understand any of the six points listed in [20] above. It is further agreed between the parties, having received Dr. Carpenter’s advice, that, given the nature of his disability, IH will not ever acquire capacity to make such decisions (section 4(3)).
  • To have the capacity to make a decision in relation to the trimming or removal of pubic or axillary hair for religious or cultural reasons, a person would be expected to be able to understand:

 

i) Which parts of the hair are being removed – pubic, axillary, perianal, trunk, beard, leg, torso, or head;

ii) Whether the reason for the hair trimming/removal is religious, for the maintenance of good hygiene, custom, or some other;

iii) If for a religious reason, which religion and why;

iv) What the consequences would be of making a choice to have hair trimmed/removed, and of not trimming/removing the hair.

 

  • Dr. Carpenter is clear that IH is not able to understand any of the four points listed in [22] above. He opined that while IH may give the superficial appearance of engaging in prayer, by responding to the familiar practice of the adults in the family turning to prayer (he holds his hands up, or places them behind his ears), he has no understanding of the purpose or higher meaning of the act of prayer. It is further agreed between the parties, having received Dr. Carpenter’s advice, that, given the nature of his disability, IH will not ever acquire capacity to make such decisions (section 4(3)).

 

 

Cobb J outlined the religious principles involved in these issues, and in particular that the Islamic faith already has provision for those who lack the ability to make their own decisions and who are therefore exempt from obligations that might be placed upon others.

Islamic religious observance for those without capacity.

 

  • The Five Pillars of Islam (‘shahada‘ [faith], ‘salat‘ [prayer], ‘zakat‘ [charity], ‘sawm‘ [fasting] and ‘hajj‘ [pilgrimage]) are the foundation and framework of Muslim life, and are regarded as obligatory for Muslims. Not all actions or observances within Islam, however, are obligatory; some are recommended, others optional, some actions are reprehensible, and others prohibited. In Islam, a Muslim will commit a sin if he/she violates something which is obligatory or prohibited, will be rewarded for carrying out something which is recommended; a minor sin is committed for not doing something which is recommended, and for doing something which is reprehensible.
  • Significantly for present purposes, Islam stipulates different arrangements for those who lack ‘legal competence’. ‘Legal competence’ in Islamic terms is defined by Dr. Ali as “a capacity or a potential for mental functioning, required in a decision-specific manner, to understand and carry out decision-making. Competence is always presumed; its absence or inactivity has to be affirmed by a court.” It is normal (per Dr. Ali) to defer to medical practitioners or experts on the issue of legal (mental) competence; their opinion would be likely to be deemed valid and authoritative in the Shari’a. The evidence filed in these proceedings, most notably from Dr. Carpenter, would be sufficient, I was advised, to form the basis in Islamic law to declare IH to be “legally incompetent”; all parties agree that IH is not legally competent under Islamic law.
  • Dr. Ali advises that the legally incompetent person (along with the terminally ill, the disabled and minors) is perpetually in a heightened state of spirituality, hence he or she is exempt from practising the major rituals of Islam including adherence to the Five Pillars.
  • On the specific issues engaged in this application, Dr. Ali advises as follows:

 

Fasting in Ramadan

i) Fasting during the daylight hours of Ramadan is one of the Qur’anically mandated obligations for all Muslims who are legally competent, and who are not exempt. Certain groups are exempt from fasting; they include the incapacitous, minors, the ill, pregnant women, those who are travelling. Those who are exempt are not morally culpable for not keeping the daylight fast.

Trimming or shaving of pubic and axillary hair

ii) Cleaning pubic or axillary hair is a religiously sanctioned practice deemed in Islam to be a normal human ‘right’ (‘fitrah‘);

iii) The rationale is founded in a quest for ritual purity and cleanliness; (the aphorism ‘cleanliness is next to godliness’ is of course familiar to many religions);

iv) The removal of pubic and axillary hair for the legally competent Muslim is ‘mustahab‘ or ‘recommended practice’; while it is not obligatory (‘wajib‘) it would be viewed as a ‘minor sin’ if unattended (see [26] above);

v) As IH does not have ‘legal competence’ it is not even recommended practice for him (see [28] above); there is no obligation on his carers to carry out the removal of IH’s pubic or axillary hair, and his religious rights are not being violated by not attending to this;

vi) It is highly recommended and praiseworthy for carers (of whatever religion) to shave or shorten a patient’s pubic or axillary hair, in the same way as it is for them to assist the incapacitous in other routine care tasks;

vii) There are differences of opinion between Islamic commentators as to the preferred manner of hair removal; any method would be deemed acceptable;

viii) The time limit within which the hair needs to be cleaned or trimmed or removed is also a matter of assorted opinion, though the majority of commentators favour a 40-day limit;

ix) While it would be not permissible for a competent Muslim to expose their genitals, it would not be contrary to the Shari’a for a Muslim without capacity who requires assistance with his care, for his carers to clean his genitals or shave them; that said, “carers must be sensitive that the client’s dignity is not violated”;

x) ‘No hurt no harm’ is a cardinal principle of Islamic bioethics; avoidance of harm has priority over the pursuit of a benefit of equal or lesser worth. Therefore it would be wrong to create a situation in which observance of Islamic custom would, or would be likely to, cause harm to the person (i.e. IH) or his carers; if there is a risk of harm, then this principle would absolve even the capacitated person from performing an obligatory requirement.

Is it in IH’s best interests to be relieved of his obligation to fast during Ramadan?

 

  • As indicated above ([29](i)) there is no Islamic obligation on IH to fast given his lack of capacity. IH has never been required to fast by his family, and has not fasted while in their care. He has not, thus far, fasted while in the care of the Local Authority.
  • If this had been a case in which IH had some appreciation of the religious significance of fasting in Ramadan (as a means to attaining taqwa, i.e. the essence of piety, protecting one’s self from evil) there may be said to be some benefit in him doing so. But he has no such appreciation.
  • IH, I am satisfied, would not in fact understand why food and water was being withheld for the daylight hours in the month of Ramadan; the absence of food/water would be likely to cause him stress, or distress; this may cause him to become irritable and/or aggressive in the ways described above ([13]) increasing the risks to staff and himself. There is some minor anxiety that fasting and/or mild dehydration would increase the side effects of any one of his multiple medications. It is plainly not in his interests that he should fast, and the declaration will be granted.

 

Is it in IH’s best interests for his pubic and axillary hair to be trimmed?

 

  • Health or social care bodies who make the arrangements for the care for adults who lack capacity owe an obligation, so far as is reasonably practicable and in the interests of the individual, to create a care environment and routine which is supportive of the religion of P, and to facilitate P’s access to, or observance of religious custom and ritual. All forms of liturgy should, where practicable, be accessible to persons with disabilities. This view is consistent with Article 9 of the European Convention on Human Rights, and the right enjoyed by those who lack capacity as for those who have capacity, to freedom of religion and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. While no specific protection in this regard appears to be offered by the UNHR Convention on the Rights of Persons with Disability, the rights enshrined in the ECHR (above) “are for everyone, including the most disabled members of our community” (Baroness Hale in P (by his Litigation Friend, OS) v Cheshire West & Others [2014] UKSC 19).
  • The duty outlined above is consistent with the expectation that in best interests decision-making for someone who lacks capacity, the court will take account, so far as is reasonably ascertainable “the beliefs and values” of that person which would be likely to influence his decision if he had capacity (section 4(6)(b)); these must include, where relevant, religious beliefs and values. This is illustrated in the instant case by the fact that the Local Authority provides IH with a Halal diet even though IH himself would not know that the food he ate was Halal, or the significance of the source and/or preparation of the food. The Local Authority recognise the need to respect IH’s religion.
  • Of the “relevant circumstances” which require consideration in deciding on this issue, TH has placed the religious significance of the proposed procedure at the centre of the decision-making, and I turn to this first.
  • The frame of reference for consideration of the issue has altered since the start of the litigation. At a best interests meeting on 9 September 2016, TH advanced the proposition that there was a religious “duty” to remove or shave IH’s pubic and axillary hair. In the same manner, his early written evidence (see [14]) referred to the “very essential” and “compulsory” nature of the activity, a view pronounced apparently on the authority of an Imam. This indeed is how Roderic Wood J characterised the issue, in passing, in the case of A Local Authority v ED & others [2013] EWCOP 3069, in which he referred (at [12]) to a “duty” to remove the pubic hair of a Muslim woman (albeit recognising the exemption for the incapacitous). Dr. Ali’s evidence, on which he was not challenged, was to different effect.
  • In short, as is clear from [29](v) above, there is simply no religious duty, or obligation on a person who lacks capacity (‘legal competence’ in Islam) to trim or shave his or her pubic and axillary hair, or on his carer to do so for them. IH does not need to acquire this state of ritual cleanliness in order to derive spiritual benefit as he already occupies an elevated status by virtue of his incapacity. Moreover, I am satisfied that IH himself derives no religious ‘benefit’ by having the procedure undertaken, as he would not understand its religious significance. It is of no consequence to me, in the consideration of these facts, that the carers may be blessed in the eyes of Islam in undertaking a ‘praiseworthy’ activity by trimming the hair; their interests are not my concern.
  • I agree with TH, and with Mr. Jarrod, when they separately expressed the view that if IH had capacity he probably would have observed this custom.

 

And in conclusion

Conclusion

 

  • I have faithfully endeavoured to consider these issues from IH’s point of view, while ultimately applying a best interests evaluation. IH has a life-long developmental condition and has never had the capacity to understand the tenets of Islam; the benefits of adherence to such rituals do not obtain for him, but for others. The fact is that by reason of his disability IH is absolved of the expectation of performing this recommended procedure, and there is no other clear benefit to him. The trimming of the pubic and axillary hair would serve no other purpose. I am anxious that IH should be spared additional stresses in his life, and wish to protect him and the staff from the risk of harm – an approach which itself has the endorsement of Islamic teaching (see [29](x) above).
  • For those reasons, and having reviewed the circumstances extensively above, I have reached the conclusion that:

 

i) The parties are right in agreeing, and I confirm, that IH should be relieved of the obligation to fast during Ramadan;

ii) It is not in IH’s best interests that his pubic and/or axillary hair be trimmed in accordance with Islamic custom for capacitous followers of Islam.

 

 

 

 

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Judge orders A father to take his child to Mass

Posted on January 20, 2015 by suesspiciousminds

 

[“A father”, not as I’d wrongly typed originally “His father”  – a Judge who ordered his own father to take his child (the Judge) to Mass would be legally impossible and is a sort of mix between Judge John Deed (for impropriety) and Doogie Howser MD (for a Judge who is still a child)  ]

This is a story in the Daily Telegraph

http://www.telegraph.co.uk/news/religion/11355745/Judge-orders-father-to-take-his-children-to-church.html

 

The gist of it is that His Honour Judge Orrell ordered a father in private law proceedings that when the child is with him, he will take the child to Catholic mass.  The order applies to Christmas only. The father is not Catholic, but the mother is.

“If the children are with their father at Christmas he will undertake that they will attend the Christmas mass.”

The Daily Telegraph say that they have seen the Court transcripts (I have not) and that the Judge discussed his own Catholicism during the hearing.

 

So, a number of quick points on this.

 

1. I haven’t been able to find a judgment on this case on any of the law websites.

2. Initially, my thinking was that this was an order that had been made in the run-up to Christmas this year, hence the topicality of the story as we are now late January.

3. The article does tuck away, in the midst of its hatchet-job on His Honour Judge Orrell, that the father involved appealed this case unsuccessfully and also failed in a judicial review challenge. (I haven’t been able to find either of those reported). I’d suspect that the order in question might be a bit older than December 2014 then, to have got the appeal and judicial review heard by now.  In fact, when you read the detail of the article, the order complained of was in 2009. But it remains in force.

4. If the appeal transcript does come to light (it may have been refused permission on the papers – you don’t always get a published judgment for that) I’ll put a link up to it so that we can read it for ourselves.

5. I’ll assume that the sub-headline “Child care proceedings challenged after judge tells father he has a legal requirement to take his sons to Catholic mass” which is wrong on both the nature of the proceedings and the legal requirement issue, is the work of a sub-editor and not the author of the piece.

6. The Court does have power, if two parents are arguing about religious upbringing of a child, to make orders stipulating how the child’s faith is to be observed.  If, as the article claims, this was not a request by the mother, but of the Judge’s own motion, that would be unusual  (not unlawful, but unusual).

7. If, as the article claims, the Judge had made the decision because of his own attitude to faith and imposing his own values on the case, that would have been something that would have troubled the Court of Appeal.  Without seeing the transcript, or the Court of Appeal decision, I can’t tell you definitively whether what has claimed happened.  To be fair to this father, the fact that his appeal was unsuccessful does not NECESSARILY mean that his claim was not accurate, he might have lodged his appeal in a flawed way or not highlighted that particular aspect.

8. There is an interesting issue about whether, when deciding a child’s religious upbringing, one parent’s lack of faith is to be respected as much as the other parent’s faith. Are they on an equal footing for the law, or does the person with faith have a head-start?

 

An interesting case, I wish that we knew a little more. The appeal judgment would help enormously.

The bald order does seem harsh, for a parent who does not believe in Catholicism, but without knowing the circumstances, we don’t know, for example, whether Christmas mass was such an important issue for the mother / child, that directing that father take them was the only way of getting him to have contact on Christmas Day. It might have been a trade-off.

As someone who does not follow a faith, I’d have similar feelings to this father if a Judge imposed on me a requirement to go to church, so I have sympathy with his position and objection, and I think that this is a newsworthy story – I just wish that we had the appeal judgment to get more understanding of the factual and legal issues involved and why the decision was upheld.

 

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“I hope he gets to / baptising me soon”

Posted on June 3, 2013 by suesspiciousminds

An interesting case, on a topic I don’t think has been previously adjudicated on.  The case was dealt with by the Romford County Court, and I think handled with a great deal of sensitivity by the Judge, and who did something at the end of the judgment that I thought was quite quite excellent.

 

Re C (A Child) [2012] EW Misc 15 (CC)

 http://www.bailii.org/ew/cases/Misc/2012/15.html

 The child, C, was 10 ½ years old. Her parents were separated. Both had been of the Jewish faith, although the father underwent a religious experience and converted to Christianity. All four grandparents were Jewish.  The parents following the separation had arrived at a shared parenting arrangement, alternating care on a weekly basis.

During some time with her father, C went to a Christian festival and on her return told him that she too had had a religious experience and wanted to be baptised as a Christian.

 There was a dispute in the evidence about this as to whether father was pushing the child into it and making secret arrangements  (mother’s case) or whether he was cautious and careful and wanted C to spend some real time thinking about it and discussed it with the mother (father’s case)

 In any event, the mother made an application for a Prohibited Steps Order.

 A CAFCASS officer reported, and ascertained that C had thought about things very carefully and had very firm and clear wishes about wanting to be baptised. The report was something of a curate’s egg, recommending both that C’s wishes be listened to and that the decision be postponed for two years.

 The Court rejected all of the assertions that mother made that the father had been ‘brainwashing’ the child or taken secret steps to arrange a baptism class behind mother’s back.

 One of the issues the mother cited was this text message from father, which she claimed was proof that the baptism issue was being driven firmly by father

 

23.   “Can I suggest that you speak to C thoroughly before you write your statement to the court and consider how you (and your parents) actions will sit with her before you continue with this. I re-spoke with her a few times and she is absolutely adamant that she wants to be baptised. If she wasn’t I would not have continued, but she is absolutely dead set. Don’t damage your relationship with her any further by being the mother who didn’t talk and listen to her.

I’m asking you to consider this for C’s sake and also for your sake (by which I mean for the sake of your relationship with her). I have made a promise to C that I will fight for the right for her to practise and grow in her faith, and so can’t back down. …”

 

I have to say that mother’s reading of that text was not mine, and it was not the Judge’s either

 

I do not accept that the text message from the father which the mother has exhibited to her statement shows that it is the father who is driving this application and that it is his idea that C should be baptised. Of course as a committed Christian he wishes to do all he can to support her wish in this regard. That is only natural, but I accept his evidence that faith is a free gift from God to his daughter and not something which he would ever try to force upon her. His cautious, patient and sensitive approach to dealing with C’s request over the past nine months strongly supports his case on this point.

 

 The Judge was critical of mother making the application for Prohibited Steps as an ex parte application – she had claimed that there was about to be a secret baptism and thus she had to rush to Court. (There is a nice exchange of letters between the Rabbi and the Minister about this, set out within the judgment)

 I do not accept the validity of the reasons put forward by the mother for making her without notice application. It was wholly wrong for her not to have checked either with the father or with his Minister to discover the truth before applying to the court. There simply was no immediate danger. This has had serious consequences. She obtained her order on an assertion of fact that both children has secretly been enrolled in baptism classes without her knowledge or consent which was simply untrue.

 

 On the issue of whether a decision should wait for two years, the Judge decided this

 

  1. I have made it clear to the parties that I have no power to order C to be baptised. That is as decision for the Minister of her church to take in the light of his evaluation of her understanding and commitment, so far as he judges those criteria to be relevant. My powers are limited to considering whether the father should be prohibited from taking any positive steps towards his daughter’s baptism and in terms of any specific issues order directing that such steps may be taken without the consent of the mother.
  1. The issue of delay is an important factor in this case. Since C herself first raised the issue ten months has passed and just over five months since the issue came to a head in November 2011. That is a long time in a child’s life. The court has received all the relevant information to make an informed decision but is now being asked by the Cafcass officer to delay that decision for a further two years with no guarantee then of a decision being appropriate to be made. The court is also being asked by the mother to delay making that decision for a further five and a half years when C will be sixteen.
  1. The only possible justification for that delay would be that the court is not satisfied that C has sufficient maturity and understanding to take such an important step in her life. I could see some justification for taking that course if the court could be sure that at age twelve and a half C will be sufficiently more mature to make a decision which her parents would have to respect. But that is not the mother’s primary position. She in effect reserves her position to continue to argue that even at that age C will still be too immature to decide. If the court is against her now on waiting to age sixteen she reluctantly accepts the Cafcass recommendation.
  1. The advantage of any delay has in any event to be weighed against the risk of further emotional harm being suffered by C waiting for the decision to be made.
  1. I am satisfied that a decision must be made now for two reasons. The first is that in my judgment a decision to delay carries a significant risk of emotional harm to the child. The second is that upon consideration of all the evidence there is no proper purpose in any delay. I am satisfied that C has already reached a sufficient degree of maturity and understanding to make a properly informed decision. In this respect I disagree with the Cafcass recommendation so I must explain why.
  1. The first reason is that the author of the report does not herself make any recommendation. Since the report was specifically directed towards ascertaining the wishes and feelings of the child I make no criticism of the author on that account. The suggestion for delay comes from her line Manager who has never herself met or spoken to the child. The second reason is that the report gives no reason why the decision should be delayed.
  1. The third reason is that the report writer gives no indication of any concern on her part about the lack of maturity of the child. On the contrary she notes, as confirmed by the parents, that C is a bright articulate child who was able clearly to express her views and give reasons for them. The final reason is that C has maintained a consistent wish to be baptised for over ten months in the face of opposition from her mother and has been able to give age appropriate reasons for her decision, a factor which the line Manager does not appear to have taken into account

 

 

The Court also took into account that the baptism would not have any irrevocable impact on C’s ability to follow her Jewish faith in later life  (it would have been interesting had the roles here been reversed)

 

And thus the Court declined to make the Prohibited Steps order and indicated that there was no reason why C could not be baptised if that was what she wished and that the Minister who would be undertaking the ceremony was content (he ordered that the judgment could be disclosed)

 

The very last part of the judgment was, I think, a very nice touch, and something worth considering for other cases with children of this age and understanding  – the Judge wrote an open letter to the child

 

80.   Dear C,

It must seem rather strange for me to write to you when we have never met but I have heard a lot about you from your parents and it has been my job to make an important decision about your future.

Sometimes parents simply cannot agree on what is best for their child but they can’t both be right. Your father thinks it is right for you to be baptised as a Christian now. Your mother wants you to wait until you are older so they have asked me to decide for them. That is my job.

I have listened to everything your mother and father have wanted to say to me about this and also to what you wanted to tell me. You have done that by speaking to the Cafcass lady and she has passed on to me what you said to her. That has made my job much easier and I want to thank you for telling me so clearly why you want to be baptised now. It is important for me to know how you feel.

My job is to decide simply what is best for you and I have decided that the best thing for you is that you are allowed to start your baptism classes as soon as they can be arranged and that you are baptised as a Christian as soon as your Minister feels you are ready.

Being baptised does not mean that you give up your Jewish heritage. That will always be part of you and I hope that you will continue to learn more about that heritage and about you mother’s faith. Even after you are baptised you are still free to change your mind about your faith later when you are older. Finally, and this is the most important thing, both your mother and father will carry on loving you just as much whatever happens about your baptism.

I understand that the past few months have been a difficult time for you but that is over now and the decision is made. I send you my very best wishes for the future.

Yours sincerely,

Judge John Platt

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“You can’t handle the truth!”

Posted on March 1, 2012 by suesspiciousminds

(An imaginary judgment about an imaginary situation, in homage to the incomparable A P Taylor’s “Misleading cases in the common law”)

This is an application brought by X County Council under section 31 of the Children Act 1989, who seek Interim Care Orders in relation to two children, a boy who we shall call A, who is aged 7 and a girl who we shall call B who is aged 5.   The Local Authority seek orders from the Court permitting them to remove A and B from their parents and to place them in foster care. Further, as I shall consider in more detail later, the Local Authority have placed the Court and the parties on notice that should their application be granted, they would not be able to accommodate the parents wish for the children’s religion to be observed in foster care. The parents contest the application and contend that the section 31 threshold criteria are not made out, that the test established by the authorities for removal of a child is not made out, and that even if the Court were to be against them on both of those issues, that the children’s religious practices should be observed in foster care. The children’s Guardian confesses that she has found this an extremely difficult case with deeply unusual features, but on balance supports the Local Authority case.

It is common ground that these children are happy, that they are doing developmentally well, that they attend school and nursery and have positive reports from those establishments, that they are properly fed, that their home conditions are clean, tidy and with suitable toys for the children; further that they are not mistreated either physically or emotionally and that they receive good quality parenting from parents who love them very dearly. The parents shun the use of tobacco, alcohol and drugs. There are many Judges who would gaze enviously at this litany of praise for parents within care proceedings before gazing sternly at the Local Authority who placed the application before the Court.

However, this particular application does have a feature which leads the Local Authority to suspect that the children are at risk of significant harm; they accepting that there is no evidence that the children HAVE suffered significant harm to date.

The parents in this case moved to the United Kingdom from the state of Arkanas in the United States. They are both committed to their faith, which they have practiced for their entire lives, including when they were children in Arkansas.  Their faith is that of snake-handling.

The Court has heard evidence from senior figures within the Snake-Handling faith, and this evidence has been sufficient to make it plain that the faith is legitimate and recognised, albeit, as the parents concede more of the margins than of the mainstream.  The faith arises from quotations from the Bible:-

And these signs shall follow them that believe: In my name shall they cast out devils; they shall speak with new tongues. They shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands on the sick, and they shall recover. (Mark 16:17-18)

Behold, I give unto you power to tread on serpents and scorpions, and over all the power of the enemy: and nothing shall by any means hurt you. (Luke 10:19)

In terms, those who practice the snake-handling faith believe, and it is a central tenet of their belief system, that they may handle snakes and drink poison and that it will not harm them as they are protected by God.

The parents in this case have made it plain, and their evidence on this aspect was, I find, credible, that they do not indulge in the consumption of poisons; as this was not the practice in the Church where they practiced their Faith.

They were, however, candid, that their religious practice is to pray and celebrate the words of the Bible whilst handling  live snakes. They gave evidence that they undertook this ceremony several nights per week, a minimum of three times and as many as five nights per week. The ceremony and handling of the snakes would be for a minimum of ninety minutes, and could on occasion last considerably longer.

Dr Parsel, the expert herpetologist who gave helpful and invigorating evidence confirmed that some of the snakes kept by the family are venomous, and that their bite would be harmful to humans, and in rare cases if medical attention were not sought, could be fatal. She indicated that she would consider the risk of a bite having serious consequences requiring for example an overnight  hospital stay to be at around 30% and the risk of a bite being fatal (if medical attention were sought) to be at around 5% – if medical treatment were not sought for a venomous bite, the consequences would be more severe.   In relation to the non-venomous snakes, her evidence was that a bite would be painful, comparable to the bite of a medium-sized dog, but more of a ‘nip’ than something that would necessarily require medical treatment.

She freely confessed to not have any particular expertise in whether snake-handlers were immune to pain or consequence from receiving bites, but did refer the Court to documented examples of some fatalities emerging from the practice. I note, in relation to this, that the snake-handling church treats such aberrations as being evidence of a lack of genuine faith in the religion, rather than a failure of the religion itself.

She was understandably cautious about estimating the possibility of a snake inflicting such a bite, but did accept in cross-examination by those representing the parents that the risk of a bite being inflicted was considerably reduced where the persons handling the snake are respectful, gentle and not apprehensive or scared.

The medical records of both parents, in this country and those obtained from America have bourne out their account that neither of them have received medical treatment for snake bites and of course, both are here to tell the tale.

They both gave evidence to the effect that being bitten by the snake is very rare in the ceremony, and that it is not the intention of the ceremony to provoke or promote a bite from the snake. I accept the parents’ evidence in this latter regard, but am more cautious about the rarity of the occurance.

Their further evidence, that if they were to be bitten, it would have no effect as they are protected by God and their faith is something that the Court have to be more cautious about. It would probably be best expressed in this way, that the Court is satisfied that the parents genuinely believe this to be the case, that they believe this as a fundamental part of their religious faith and that they are not knowingly placing themselves in what they consider to be harm or jeopardy.

The Court further accepts the following, as drawn from the parents’ evidence:-

1)    That they would intend for the children to become involved in the religious practice, and to handle the snakes, some of which are venomous.

2)    That the older child has already, under careful supervision been involved in the handling process; but not with the venomous snakes

3)    That the younger child has observed the ceremony and worship

4)    That both of the children have been shown how to handle the snakes with care and dignity

I now have to consider whether  there is, on the balance of probabilities a likelihood that significant harm may arise. For today’s purposes, the section 38 criteria apply and the test is whether there are reasonable grounds to believe that the children have suffered or would be likely to suffer significant harm, such harm being attributable to the care given or likely to be given not being what it would be reasonable for a parent to provide.

The risk of harm, as outlined by the Local Authority is as follows :-

(a)  that there is a risk of the children sustaining a bite injury from a non-venomous snake, which would be painful, on a par with a ‘nip’ from a medium sized dog, and which would be likely to hurt a child for several minutes but not require medical attention

(b)  that there is a risk of the children sustaining a bite injury from a venomous snake. This would have the same degree of pain as above, accompanied by a feeling of nausea and light-headedness, which would probably last for an hour or two  (if the anti-venom serum were administered immediately) and might require hospital treatment.

(c)  That if the parents did not, as a result of their religious belief that the children would suffer no ill-effect, obtain medical treatment, the consequences could be much more serious and there is a risk of a fatality

(d)  The Local Authority add that although the risk of either incident occurring might be said to be low for each ceremony (though they took pains to point out that they did not necessarily accept this) the Court were entitled to take into account that exposure to a low level of risk several times per week, over the children’s minority could give rise to a cumulative risk which would perforce be higher.

The parents respond in the following way:-

(a)  the children would feel no pain from the bite of non-venomous snakes, as is clear from their faith

(b)  the children would feel no pain or ill-effects from the bite of a venomous snake, as is clear from their faith

(c)  thus, no harm would result from the children demonstrating their faith and engaging in their legitimate act of worship

They accepted wholly that a parent who were not a snake-handler and protected by their faith, who gave venomous snakes to a child, would be acting in a way that it would not be reasonable to expect from a parent; as such a child would sustain a painful injury, and I myself would not find it a stretch to make such a finding.  (They do not claim that venomous snake bites are harmless to the population at large, and if I were required to find that being bitten by a venomous snake would be generally a bad thing for the average child, I would make such a finding)

I find myself in difficult waters here. I would have no difficulty whatsoever in finding that a parent who allows a child to handle venomous snakes for long periods, on numerous occasions per week, would have a child who was at risk of significant harm.

The parents’ case is, in part, that no harm could arise, because of the protection that their faith offers them and their children.

All parties accept that there is some risk (although they differ as to the level) that the children could be bitten by a snake whilst handling it. The Local Authority say that there would be consequences if so, which would constitute significant harm, the parents say that there would be no such consequences.

To reject the parents’ conviction out of hand would draw the Court into territories of ruling that an individual’s faith is incorrect in fact.  The accepted fact that this particular religion is followed by a relatively small group, rather than having a groundswell of popular opinion does not mean that I should discount their beliefs. There might be many who would regard their beliefs as nonsense, but the same could be said of those who believe that God sent his son to earth to die for our sins.   Many generations of philosophers and theologians have grappled with these weighty issues without necessarily coming to a conclusion; and it would certainly be wrong of me to attempt to do what Aquinas, Bertrand Russell and Descartes could not and put a full stop under whether a particular religion is true or misguided.

I have had to consider whether I need, to determine, on the balance of probabilities whether the Local Authority is right (and thus that the parents faith is misplaced) or vice versa.

Looking at the law, it is clear that what I must consider, in weighing up “likelihood”  is the construction set out in Re H and R 1996  “the context shows that in section 31 (2) (a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case”

With that in mind, I am able to determine, with confidence, that there is a real possibility that cannot sensibly be ignored that these children, might over cumulative exposure to snakes (some non-venomous, some venomous) be bitten by the snakes and suffer adverse harm as a result.

I do not, when determining this, need to set out that the risk of this occurring is greater than 50%, and therefore do not need to determine that the parents belief is objectively true, or objectively false, rather that there is some margin for doubt.  I am absolutely plain that I could not rule that one could be absolutely categorically certain that the children of snake-handlers would suffer no harm if they were bitten by a snake, and thus I have to accept that there is a possibility which cannot sensibly be ignored that they might be.

I further accept that the consequences of a bite could constitute significant harm if consequences were to arise, and that therefore the threshold criteria as set out in section 38 of the Children Act 1989  are made out.  I do not believe that, having made that determination, there will be a dispute as to the section 31 criteria at final hearing, the same facts coming to bear.

Turning now to the test for removal, I shall not recount the plentiful authorities, as it is common ground between all of the parties that a satisfactory construction of the test would be “is the harm, or risk of harm that the child would suffer or be at risk of suffering proportionate to the removal of the child at interlocutory stage”

I am mindful here that having effectively established that the religious practice of snake-handling gives rise, if children are participating to a likelihood of significant harm, there is a risk of developing a position whereby the Court determines that effectively all parents who are snake-handlers and wish to bring up their children in that faith are not able to safely care for their children.

That in turn, would effectively be the Court saying to a parent that they do not have the right to practice their religion AND simultaneously parent.  Whilst snake handling is a relatively small religion, practised in some forty churches, it is nonetheless a religion. I am reminded of Martin Niemoller’s famous statement “First they came for the communists….”

Considering the body of authorities where the Court have had to consider the extents to which the State can interfere with someone’s religious practices, I would distill this concept  – that any person is free to believe whatever religious principles they wish and that the State should not interfere with that belief, but that where the exercise of such beliefs has an adverse, or potentially adverse impact on the rights and freedoms of another, the State may intervene and must consider whether such intervention is necessary and proportionate.

I have attempted to apply that principle throughout this case – it is perfectly legitimate for these parents to believe that they, and their children can safely handle snakes as part of their religious practice – it is the point at which they propose that the children actually do handle snakes which leads to the Court needing to become involved. That crosses the line from belief into action.

I have obtained some useful guidance from the Court of Appeal in Re R (A minor) (Residence : Religion) 1993 2 FLR 163 where it was held that it is no part of the Court’s role to comment on the tenets, doctrines or rules or any particular section of society provided that these were legally and socially acceptable, but that the impact of tenets and rules on a child’s future welfare was one of the circumstances to be taken into account.  I have endeavoured to approach the case in that manner.

I have to consider that the parents Article 9 right to freedom of religion, would be engaged. Whilst this is a qualified right, and the Court would be entitled to prescribe those rights if it were necessary in a democratic society for the protection of the rights and freedoms of others, the Court should be reluctant to curtail someone’s religious expression.

Speaking for myself, I would feel an enormous sense of disquiet in being the Judge who set a pebble rolling down a slippery slope; whilst I cannot think at present of other religions who might effectively be outlawed to parents I would not wish to set that particular precedent.

In relation to this issue, I have had to consider whether it is possible for safeguards to put in place so that the risks to children I have ruled cannot sensibly be ignored in snake-handling can be managed, such that the child can remain with the parent and that the family can have the freedom to observe their religious practices.

I have a proposal in mind, which I shall outline, and I propose to adjourn the hearing briefly to allow the parents to consider that proposal.

I would not rule that the snake-handling faith in all circumstances is dangerous to children, but I am prepared to decide that  the snake-handling faith, where children are participating in it, requires robust safeguards to be in place in order to prevent the likelihood of significant harm that otherwise would justify the intervention of the State in removing the children to alternative accommodation.

On that basis, I indicate that I would be minded, if the parents accept the safety proposals, to make Interim Supervision Orders, and for there to be monitoring of the adherence to these safety proposals between now and final hearing. If the proposals are agreed but the Court is later presented with evidence that they have not been adhered to, the Local Authority are likely to find the Court much more amenable to the application they have made today. They would be, as the saying has it, pushing at an open door.

If however, the parents are not able to bring themselves to accept the safety proposals, then my ruling will be that the risk of harm that the children are exposed to in the absence of safety mechanisms, is such that the removal of the children is a proportionate response to dealing with it, and would be minded to make the Interim Care Orders.

In the event that I make Interim Care Orders (and I would hope not to need to)  I would not be minded to invite the Local Authority to make arrangements pursuant to section 22 (5)  (giving due consideration to the child’s religious persuasion) , being satisfied that they are extraordinarily unlikely to find foster carers who are snake-handlers or to find foster carers who are willing to allow the children to handle snakes (even in a carefully prescribed environment or regime)

This also requires me to consider s 33 (6) of the Children Act 1989  “while a care order is in force with respect to a child, the local authority designated by the order shall not – (a) cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made ‘

And it could be argued that any form of placement other than with snake-handlers would be in breach of this, even if the carers had no religious beliefs  (it is hoped that at final hearing, one would not need to cross-examine Richard Dawkins as to whether atheism or agnosticism constitutes a religious persuasion in the negative)

Thankfully, Justice Baker rides to my rescue in that regard in the case of Re A and D (Local Authority : Religious Upbringing ) 2010 1 FLR 615  involving a child who had been brought up by Muslim parents but the mother reverted to Catholicism after they separated (it being largely impossible to raise a single child as both a Muslim and a Catholic)  and the Court determining that section 33(6) is subject to the overriding duties on the Local Authority under section 22 (3) to safeguard and promote the child’s welfare when they are caring for him.

I am satisfied that it would not be reasonable to expect the Local Authority to provide the children with live exposure to snake-handling in their foster placement, though the children should be educated about their religious faith without practically carrying it out. That would be sufficient to ensure that they are not in breach with either s 22 (5) or s 33(6).  As I have said, I would hope that the issue of these children being cared for by the State does not arise.

My proposals, which I invite the parents to consider very carefully are as follows :-

  1. When handling snakes as part of their faith, the children shall not handle venomous snakes until such time as the Court can review this safety package
  2. The children shall be supervised by adults at all times
  3. In any event, the parents shall obtain anti-venom serum suitable for treatment of bites from the venomous snakes that they own
  4. The herpetologist having identified the symptoms of snake bite from the venomous snakes that the parents own, the parents shall undertake to administer that anti-venom serum immediately if they observe either of the children to be bitten by a venomous snake; or if they observe these symptoms in the children, and to seek medical attention for the children in either event
  5. This is by way of a placatory mechanism, and does not reflect adversely on the parents’ deep-seated conviction and belief that the children would be unharmed by snake bites. It is simply their recognition that the State has to manage that degree of risk that cannot safely be ignored by the Court that the children would not be unharmed by snake bites, regardless of their faith.
  6. The parents accept, as a long-term proposal, that notwithstanding their faith and conviction that the children would be unharmed by handling snakes and would not require any medical intervention, they will keep this safety net in place until such time as the children are adjudged to be competent to make informed decisions about the risks themselves [by which I would contemplate their later teenage years], or the Court rule that the safety provisions may be relaxed.

I would refer the parents to the decision of the High Court in Re W (A Minor) 25th November 1991, involving parents of a child who were Jehovah’s Witnesses and could not consent to a blood transfusion.

In that case, the order was phrased “Being Jehovah’s Witnesses, the parents do not and cannot approve the order hereinafter stated but recognise the power of the Court to direct the same and cannot therefore maintain any objection to this order”

I would ask the parents to go further in this case, but I think a preamble to the order that  “It is accepted by all parties that the parents are snake handlers and profoundly believe that they and their children would receive no harm or damage from handling snakes as part of their religious practice, but recognise the authority of the Court to make decisions about children who are deemed to be at risk of harm, and offer the following assurances to ensure that during the children’s minority, they are protected from harm that might arise from snake-handling, even if that risk is no higher than one which the Court cannot sensibly ignore”   would be a sensible resolution to the religious quandary that the parents find themselves in.

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