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Re N (A Child - Religion - Jehovah's Witness) [2011] EWHC B26 (Fam)

High Court proceedings in which father sought to restrict the extent to which mother involved the child in the practice of her religion as a Jehovah’s Witness. Principles to be applied in cases relating to religious upbringing.

This case concerned disputes about the division of time a child N (aged 4) should spend with each of the parents under a shared residence order and whether the father should be permitted to take N on holiday abroad, as well as an attempt by the father (who went to his local Anglican church most Sundays) seeking to restrict the extent to which the mother (who was a Jehovah's Witness) involved N in the practice of her religion.

HHJ Clifford Bellamy sitting as a Judge of the High Court set out the principles which should guide his approach to the issues relating to religious upbringing as follows (paragraph 85):

1. Parental responsibility is joint and equal. Neither parent has a predominant right to choose a child's religious upbringing.

2. Where parents follow different religions and those religions are both socially acceptable the child should have the opportunity to learn about and experience both religions.

3. A parent's right to enable her child to learn about and experience his or her religion is not an unconfined right. Where the practice of that religion involves a lifestyle which conflicts with the lifestyle of the other parent and the court is satisfied that that conflict has had or may in the future have an impact on the child's welfare the court is entitled to restrict the child's involvement in those practices.

4. Restrictions imposed for welfare reasons do not necessarily amount to a breach of that parent's right to follow the beliefs and practices of his or her religion provided that any restriction imposed is justified by the findings made by the court and proportionate.

5. In determining such an issue, as in the determination of any other question relating to the upbringing of the child, the child's welfare is the court's paramount consideration.

The learned Judge invited the parents to submit drafts of the orders they sought which narrowed the issues and each parent made concessions. The mother conceded, inter alia, that she would not take N with her in house to house ministry; that N would spend every Christmas Day with the father; and that the mother would pass on to the father invitations for N to attend celebrations which her religious beliefs precluded her from accepting.

The learned Judge held that:

• There was no reason why N should not continue to attend both the Kingdom Hall with his mother and the Anglican Church (including Sunday school) with his father and grandparents. There was no reason to impose a limit on the frequency of N's visits to the Kingdom Hall as the father had sought.

• It was both proportionate and in N's best interests to restrict the parents' right to "instruct" or "give lessons" to N concerning their Christian beliefs.

• In December 2010 the mother had known that N had a part in the school nativity, allowed him to take part in rehearsals, and subsequently withdrew him without consulting the father. There should be an order that "neither parent shall prevent N from taking part in school activities, including Nativity plays, other plays, performances, concerts, after school clubs, sports and field trips".
It had initially appeared that medical treatment would be the most difficult issue in the case, but in the end there was little difference between the parents. An outline of the position at law was agreed (paragraph 99), and it was agreed and accepted that where consent was required for medical treatment of a child, the consent of one parent alone would be sufficient.

The learned Judge made an order (rather than a recital as the mother had sought) detailing forms of consent to be signed by the parents and deposited with each other, at N's GP and at N's school. The order included provisions about withdrawing the forms of consent only with prior notification and the written consent of the other, notifying the other of medical treatment and bringing both signed forms of consent to the attention of treating clinicians.

The Judge also made an order that in the event that any medical professional should recommend a blood transfusion or other medical treatment for N when he was in the mother's care, she should inform them immediately of the father's contact details and his ability to consent to such treatment.

Summary by Victoria Flowers, barrister, Field Court Chambers


_________________________

Case No: NU10CO0100
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
COVENTRY DISTRICT REGISTRY
Date: 24th August 2011
Before His Honour Judge Clifford Bellamy
sitting as a Judge of the High Court
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Re N (A Child: Religion: Jehovah's Witness)

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Miss Frances Judd QC and Miss Zira Hussain for the father
Mr Richard Daniel for the mother
Mrs Margaret Styles for the child
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JUDGMENT
 
This judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

1. These proceedings concern a little boy, N. N is aged four. His parents are JLM ('the mother') and GLM ('the father'). The parents are separated. Since their separation they have been unable to agree the arrangements for N's care.

Background
2. The father is aged 29. The mother is aged 39. They met in September 2002. In 2003 the mother moved in to live with the father. They were married on 20th August 2005. Although they have been living separately since the summer of 2009 the marriage has not yet been dissolved.

3. The father is a member of the Armed Forces. He is a communication systems engineer. The mother is a personal assistant.

4. When N was born the father managed to obtain a posting close to the family home. This enabled him to play an active role in caring for N.

5. In March 2009 the father was posted to Cyprus. He had expected the mother to move to live in Cyprus with him. She didn't. It is clear that her reluctance to join him in Cyprus was the primary cause of the marriage breaking down. When the reality of this became plain to the father he sought a compassionate posting back to England. He returned to England in March 2010. By then it was too late to rescue the marriage.

6. Even before the father's return to England there were disagreements between himself and the mother concerning N. Those problems worsened after the father's return to England. As a result, on 26th April 2010 the father issued an application in the Warwickshire Family Proceedings Court.

7. On 25th October the proceedings were transferred to the County Court on the grounds of complexity. On 21st February I made N a party to the proceedings. Pursuant to Family Proceedings Rules 1991 rule 9.5, I appointed an officer of Cafcass as guardian ad litem for him. Cafcass allocated Mrs M. Mrs M had already been involved in the case as Children and Family Reporter.

The issues
8. At the beginning of this hearing residence was in issue, both parents seeking a residence order in their sole name. By the end of the hearing the parents were agreed that there should be a shared residence order. There remains an issue as to the division of N's time between them.

9. The father wishes to be able to take N on holiday abroad before he starts at his new school in September. The mother is prepared to agree to the father taking N on holiday but is not agreeable to him taking N abroad.

10. The mother is a Jehovah's Witness. The father is not. The father has concerns about the impact of the mother's beliefs on her care of N. He seeks to restrict the extent to which the mother involves N in the practice of her religion. It was because of this issue that the matter was transferred to the High Court.

The father's posting to Cyprus
11. In November 2008 the father was promoted from Corporal to Sergeant. He was given notice that he was to be posted to Cyprus. He went out to Cyprus in March 2009. He expected the mother to take steps to obtain a career break from her employment so that she and N could join him in Cyprus.

12. The mother travelled to Cyprus in April 2009. It was understood by both parents that this was to be a two week holiday. Whilst the mother was in Cyprus the father had the opportunity to go to Canada to play rugby for his regiment. He wanted to take up the offer. He believed that the mother agreed to him going. The reality is that she was given little choice. To have refused would have sparked an argument. The father went to Canada. The mother arranged to travel back to England early. It is possible that the father's self-indulgence on this occasion contributed to the mother's reluctance to move to live with him in Cyprus though I am satisfied that it was not the predominant reason. This was the first time she had ever been onto a military base and the first time she had experienced army life. She did not like what she saw. She did not consider a military base to be a suitable place to bring up a young child. She said that whilst in Cyprus she was 'shocked' to realise what the father was involved in. I find that if she was in any doubt about whether to join the father in Cyprus when she arrived there in April 2009 she was not in any doubt by the time she flew home. I am equally satisfied that this was not apparent to the father and that she did not make her position clear to him.

13. There is one piece of evidence that is inconsistent with that finding. The father has produced a 'Certificate of Willingness to Reside and Travel Overseas', an official Armed Services form. The form is dated 6th April 2009 though the mother claims to have signed it in March, before her first visit to Cyprus. The form begins

'I confirm that it is my intention to reside with my spouse/civil partner overseas for at least twelve months from the date of my arrival, unless my spouse's/civil partner's tour of duty is terminated before the twelve months have elapsed.'

There is no evidence to suggest that the mother was coerced by the father into signing this document. I am satisfied that she signed it willingly. I am also satisfied that she signed it disingenuously.

14. After the rugby tournament in Canada the father returned to England to undertake a course. He went back to Cyprus on 20th June. The mother joined him in Cyprus on 30th June. I am satisfied that the father genuinely believed that the mother had obtained a career break and that she and N were going to stay with him. With that in mind he had purchased one-way air tickets for them. The mother must have realised that the father thought she was going to stay. The father claims that the mother told him that she had negotiated a career break. She hadn't. Whether she told him directly that she had secured a career break is immaterial. I am satisfied that he believed she had come to stay and that she knew that that was what he believed. She did not disabuse him of that idea. I am satisfied that by then she had made up her mind that she was not going to join him in Cyprus on a permanent basis.

15. A few days after the mother's arrival in Cyprus she purchased a return air ticket. She used her own bank card. She did not tell the father that she was going to buy a ticket back to England. She accepts that she purchased it first and told the father about it afterwards. It should not have been difficult for her to anticipate that he would have been upset, as indeed he was.

16. Although the father's distress at learning that the mother and N were to return home was understandable, his response was inappropriate. The mother says that he tried to trap her in Cyprus. He took her passport, her bank cards and her house keys. She was scared by his behaviour. She had to seek assistance from a senior officer. The officer escorted them to the airport. At the airport she asked the father for money for the journey home. He gave her ten euros in cash.

17. Not only did the father make it difficult for the mother to leave Cyprus he also took steps to make life difficult for her when she arrived back in England. Whilst the mother and N were airborne he contacted his father and asked him to go to the matrimonial home and put a deadlock on the door to prevent the mother from getting in. When she arrived home she could not get into the house. She had to call a locksmith.

18. The father accepted that he had arranged for his father to go round to the house to prevent the mother from getting in. He says that he had told her not to go to the house. He conceded that he could see how his behaviour might be construed as being controlling, though he asked rhetorically, 'why should N have been taken away from me. I was reacting to circumstances'. The truth is that he was over-reacting to circumstances and was trying to impose his own will on the mother. He was being controlling. Given that the mother had N with her he was also acting in a way that impacted adversely on his own son.

19. The mother says that after her return to England the marriage deteriorated because 'there was no trust between us'. I am satisfied that the mother's lack of openness about her unwillingness to relocate to Cyprus was a key factor in engendering mistrust between them. I am also satisfied that the father played his own part by the way he responded. The reality is that by the time the mother left Cyprus the marriage was effectively at an end.

After Cyprus
20. The relationship between the parents deteriorated markedly after the mother's return to England. The father returned to England on leave in September 2009. They attended some mediation sessions together. Little progress was made. One of the issues discussed in the mediation sessions was the mother's debts. The father says that she had run up debts of around £30,000. The mother accepts that she had run up debts but says that the figure was nearer £20,000. The mother was unable to give an account of how that debt had been incurred. Even in her oral evidence she was unable to explain it saying that she was 'just not managing my money'. The father is concerned that she may have given large sums of money to the Jehovah's Witnesses. The mother denies this.

21. The father says that he paid the mother's debts and that having done so the mother had then incurred further debts of around £10,000. The mother agrees that she got into debt again. She said that this was simply 'bad management'. I find it difficult to accept that the mother is not able to give a more detailed account of how these debts were incurred. On this issue I found her to be evasive.

22. At the time of the attempted mediation the relationship between the parents was strained. It is unnecessary to go deeply into the history of the next few months. There were times when each of them contacted the police. The police records contain a note that their impression was that 'both parties are trying to get one over on the other; both are polite and it is hard to see who is telling the truth'. I am satisfied that that assessment was fair and accurate.

23. The father attempted to arrange contact with N over the Christmas period in 2009. The mother refused. In evidence she conceded that 'maybe I was being inflexible'. She said that she had tried to make a decision that was best for everyone. I do not accept that to be the case. She was, as she knows, being deliberately inflexible.

24. Although there was some improvement in contact in early 2010 it was short-lived. The father says that after he returned to England in March 2010 the mother agreed to N living with him. The mother disputes this. N stayed with his father from 25th March until 3rd April. The father's perspective is that on 3rd April the mother wrongfully retained N after contact. After N returned to his mother's care on 3rd April she once again stopped contact. She says that she did not trust the father, that she was scared that if the father had contact he would not return N. As a result of her decision the father had no contact with N between April 2010 and August 2010.

25. I do not accept that the mother had agreed to N living with his father, though I accept that the father managed to persuade himself that that is what she had agreed, largely because that is what he thought should happen. Whilst the mother's actions in restoring the status quo may be understandable, her action in stopping contact was no more child-centred than the father's actions had been.

26. In a speech in 2010 the President of the Family Division of the High Court, Sir Nicholas Wall, referred to the predicament that some children find themselves in of being 'both the battlefield and the ammunition' in disputes between their parents. That is certainly an appropriate description of the position N has found himself in since the summer of 2009.

27. Even after issuing proceedings the difficulties in arranging contact continued. The father had wanted contact to take place at his parents' home. The mother wanted it to take place at a contact centre. On 4th August 2010 the Family Proceedings Court ordered that contact should take place at the paternal grandparents' home. The father then sought to move from visiting contact to staying contact. Again the mother was opposed. On 20th September the Family Proceedings Court ordered that the father should have staying contact every weekend. The father then tried to agree arrangements for contact with N during the Christmas period, an issue that was of no consequence to the mother given that she does not celebrate Christmas. She nonetheless rejected the father's request. That issue, too, had to be brought before the court. On 22nd December 2010 the court ordered that the father should have staying contact from Christmas Eve until 29th December. All of this provides further illustration of the mother's inflexibility.

28. There continues to be communication problems and mistrust between these parents. The father complains that the mother 'makes no attempt to communicate with me on any level regarding N's personal progress'. However, that criticism cuts both ways. At the guardian's suggestion, in an attempt to ease communication, the parents use a communication diary which passes between them with N. Although the communication diary provides the opportunity for openness the father has not always been open with the mother. He is in a new relationship. His partner has a four year old daughter. The father, N, the father's partner and her daughter recently went away together to Alton Towers for the weekend. They stayed in a hotel. The father shared a bed with his partner. His partner's daughter and N shared a bed in the same room. The father could have set out his plans in the communication book. He didn't. He could have mentioned this incident in his most recent statement. He didn't. It was left to N to tell his mother what had happened. So far as concerns the problem of openness, regrettably there is little to choose between these parents.

Education
29. The question of which school N should attend from the beginning of next term was one of the issues to be determined by the court at this hearing. In the event, the parents were able to agree that issue at court before the hearing began. However, there are issues around N's education that are, in my judgment, relevant in terms of my assessment of the mother.

30. N has been attending the H Day Nursery. At the beginning of the year the mother unilaterally took the decision that he should move to a different nursery. She sent the father an e-mail on 12th January 2011. The letter began

'I thought that I would e-mail you so that you get the message before Friday when you pick N and the diary up.

With regard to my choice of putting N in the D Pre-School and Infant School my reasons are below…

If you have got any objections to N being placed at the D Pre-school and Infant School then by all means let me know your objections and the reasons why you believe he shouldn't go there.'

I am satisfied that that was not an attempt to consult. It was the communication of a decision. In his oral evidence the father said that he 'didn't exist' as far as the mother is concerned.

31. The guardian advised the mother against moving N to the D Pre-school. The mother says that she did not understand why she should not do what she thought was right for N. She moved N to the D Pre-school. She knew she did not have the father's agreement to this move. At the direction of the court, she returned him to the H Day Nursery. On 4th May I granted a prohibited steps order prohibiting her from removing N from the H Day Nursery.

Religion
Jehovah's Witnesses
32. Religion is an important issue in this case. Before I consider each parent's evidence concerning issues relating to N's religious upbringing, it is first necessary to set out some basic detail about the practices of Jehovah's Witnesses and in particular those which have a particular relevance to the circumstances of this family.

33. Jehovah's Witnesses

(a) are committed to converting others; they give time each week to further and spread their beliefs, engaging in house to house evangelism; it is common for Jehovah's Witnesses to take their children with them on this house to house ministry;

(b) are committed to studying the Bible (using their own translation of the Bible, the New World Translation) both in their meetings at the Kingdom Hall and individually, at home;

(c) do not celebrate Christmas, Easter or birthdays, whether by religious or social activities; they believe that the celebration of these events is based on pagan customs;

(d) believe that blood transfusions are against the will of God; they therefore refuse blood transfusions or the use of blood products in the course of medical treatment, whether for themselves or for their children;

(e) refuse military service; they do not believe in war;

(f) maintain a degree of separation from those who are not members of the movement; social contact tends to be within the Jehovah's Witness circle;

(g) do not engage in ecumenical relationships or in inter-faith dialogue; they are an insular movement.

The mother's religion
34. The mother was brought up in a Jehovah's Witness household. Her parents used to take her to the Kingdom Hall. In due course she herself became a Jehovah's Witness. She was baptised in 2002, the year she met the father. Although in evidence she said that at the time she met the father she was not a practicing Jehovah's Witness, the fact that she was baptised that same year suggests that she is not being completely open about that issue.

The mother's relationship with the father
35. The mother accepts that she did not tell the father that she was a Jehovah's Witness until they had been in a relationship for some six months.

36. Cohabitation before marriage is contrary to the teaching of Jehovah's Witnesses. The fact that the mother moved in to live with the father before they were married is an indication of the extent of her commitment to her faith at that time. It is also notable that she maintained her relationship with him notwithstanding the fact that he is a member of the Armed Services. She had not told him that Jehovah's Witnesses disagree with military service. When asked how she squared all of this with her beliefs she said that her heart had overruled her head.

Teaching the faith to N
37. Until the present arrangements for contact began in September 2010, on Sundays the mother would regularly take N with her to meetings at the Kingdom Hall. Although, because of the contact arrangements, she is no longer able to take him on a Sunday, meetings are also held on Thursday evenings and she takes him to the first hour of those meetings. Jehovah's Witnesses do not have separate teaching sessions for children. Children stay with their parents throughout the meeting. It is part of the process of bringing them up in the faith.

38. The mother says that she spends time in prayer and studying the Bible each day. She also ensures that N spends time each day watching DVDs or reading books produced by the Jehovah's Witnesses. She says that this is a very minimal part of his day.

39. It is understandable that the mother should want N to grow up understanding, and perhaps in due course making his own decision to follow, her religious beliefs and practices. However, she goes further than that. Because of her own beliefs there are activities she does not want N to be involved in. For example, she would not want N to take part in school assemblies. She said that it is possible that she would withdraw him from school assemblies. She also said that she would not be comfortable about N going into any place of worship other than the Kingdom Hall.

Christmas
40. When they were living together the parents celebrated Christmas, buying and exchanging presents. The mother says that she found it hard to take a stand. Now that they are living separately the mother wishes to live by Jehovah's Witnesses' principles. That means not celebrating Christmas irrespective of whether N is with her. She is content for N to spend Christmas with his father.

41.  Last Christmas N had a part in the school nativity play. He took part in rehearsals. The guardian's enquiries of the school suggest that he even went into nursery on days of the week when he didn't normally attend simply in order to take part in rehearsals. The mother does not accept that to be the case. She says she did not know that he had a part in the school nativity play and that she did not find out until she saw his name on a list on the classroom door. I do not accept the mother's evidence on this issue.

42. The mother says that as soon as she found out that N had a part in the nativity she withdrew him. She did not consult the father before making that decision. She did not even mention this in the communications book. The mother was very clear that she would not want N to take part in the school nativity play in future years.

43. The mother would not want N to attend Christmas parties, whether at school or with his school friends.

Birthdays
44. When they were living together the parents celebrated birthdays and anniversaries. The mother no longer celebrates birthdays. Instead, she arranges what she called 'treat days'. She would not be happy for N to attend other children's birthday parties, though she accepts that if N receives an invite to a party on a day when he is supposed to be staying with his father then he can attend. If she received such an invitation she would let the father know. She would not herself be willing to take N to a birthday party.

House to house ministry
45. In the past the mother has taken N out with her on house to house ministry. Ideally, she would wish to be able to continue to do so. She would be disappointed if she were not able to continue doing so.

Social isolation
46. The mother does not accept that her commitment to the Jehovah's Witnesses means that N is socially isolated whilst in her care. Although she accepts that her own friends are also Jehovah's Witnesses, she believes that N is likely to develop his own circle of friends at school. She said that in principle she had no objection to him visiting his friends' homes even if their parents were not Jehovah's Witnesses. However, it was clear that she had not really thought this through. When asked whether, for example, she would agree to N visiting a friend's home if his friend's parents were a same-sex couple, she said that she would not consider that appropriate.

The father's religious convictions
47. The father says that he is 'not a great religious person'. However, he does go to his local Anglican church most Sundays, with his parents. He has been going there all his life. N goes too. He goes to Sunday school.

48. The father accepts that the mother had a degree of commitment to the Jehovah's Witnesses at the time they were together. She attended a book group during the week and went to meetings at the Kingdom Hall on some Sundays. He says that her religious beliefs and practices were 'never an issue'. In his opinion, since their separation the mother's commitment to the Jehovah's Witness movement has increased. He says that she now practices her religion 'more overwhelmingly' than had been the case when they were together. He said, 'I don't know who she is'.

49. From the father's perspective, he considers that the mother's commitment as a Jehovah's Witness is 'overwhelming and extreme' He is concerned that if N is over-exposed to the mother's lifestyle then it won't be long before that is all that N focuses on. He is anxious that when he gets older N should be able to make his own mind up about religious matters.

50. When challenged, the father denied that he had a 'deep-seated loathing' for Jehovah's Witnesses. He said that he accepts the mother's right to practice her religion as she sees fit and that he is not seeking to deny her right to do so. He is not seeking to prevent the mother from taking N to the Kingdom Hall but rather that he believes N's exposure to the beliefs and practices of Jehovah's Witnesses should be limited. If that is not the case he is fearful that as he grows up N is likely to follow in the mother's practice of her faith in order to try to please her.

The guardian's evidence
51. The guardian's first report is dated 22nd October 2010. In it she acknowledged that from her discussions with the parents 'they both present as parents who deeply care for N and have his best interest at heart'. However, she regarded issues to do with the father's employment and the mother's religion as being complicating factors necessitating a transfer of the proceedings from the Family Proceedings Court to the County Court. That was her recommendation.

52. In the guardian's second report, dated 9th February 2011, she set out a very clear recommendation to the court. She says that

'it would not be in N's best interest for a Residence Order to be made in favour of either party as it is clear from my meetings with N that he has attachments to both parents and there are no concerns raised by the care and protection afforded by either parent. In the light of…N's developmental progress and his presenting behaviour, it is respectfully recommended that consideration is given by the court for the making of a Contact Order which will provide N a balanced shared care arrangement. It is respectfully recommended that in order to provide N with the required…balance the arrangement should included (sic) N spending alternate weeks with each of his parents…'

53. The guardian's final report is dated 21st July 2011. By this stage it is clear that she was beginning to have concerns about some aspects of parenting and in particular some aspects of the mother's parenting. Her concerns had largely arisen from contact with staff at N's nursery. She had been informed that N's behaviour in nursery had regressed. He had become clingy to his mother. She records that

'It was also reported that prior to Christmas N had been excitedly involved in preparing for the festivities, including rehearsing his role as a shepherd in the nativity play. It was reported that [mother] was fully aware of N's [part] in the nativity and had raised no objections. However two days prior to the performance taking place staff were informed that N would not be attending due to other commitments.'

54. I referred earlier to the mother's unilateral decision to move N to a different nursery. The guardian confirms that the nursery was given only two day's notice by the mother of her intention to remove N and that the mother had proceeded to move him notwithstanding the fact that she herself had 'strongly advised' the mother to await the outcome of the following week's court hearing.

55. Although the guardian clearly has concerns about some of the mother's behaviour, those concerns are not all one-sided. In her final report the guardians notes that

'[The father is] fervent in his determination to remain actively involved in N's upbringing in a manner which could easily be construed as being intense, pedantic and controlling. [The mother] resists what she perceives as [the father's] attempts to control N's upbringing and the undermining of her parenting skill, with a quiet, steely determination, resulting in her withholding information from [the father] and taking unilateral decisions regarding N's future.'

56. The guardian recommended a shared residence order though did not set out her opinion as to how N's time should be divided between his parents.

57. The guardian has had further contact with the nursery since completing her final report. She discovered that when the mother first registered N at the nursery she had not disclosed that N was having regular contact with his father. It was left to the father to contact the nursery to make them aware of his interest. The guardian also discovered that although the mother had withdrawn N from the school nativity play she had not disclosed to the school that this was because of her beliefs as a Jehovah's Witness. It was not until after Christmas that the mother informed the school that she is a Jehovah's Witness.

58. The guardian expressed concern about the messages N receives from one parent about the other. She made the point that the fact that the mother is a Jehovah's Witness is an important part of her identity and the fact that the father is in the army is an important part of his identify. She is concerned that N should not come to reject either parent because of their identities.

59. As for the implications for N of the mother's beliefs and practices as a Jehovah's Witness, the guardian expressed some concerns. She said that N needs to know that he can socialise with other children. She expressed concern that he is likely to become isolated if he is not allowed to socialise freely, for example, by being allowed to go to other children's parties. She is concerned about the clash of lifestyles. The mother's decision to follow the beliefs and practices of the Jehovah's Witnesses affects the way she leads her life. She is concerned that the more time N spends with his mother the more he will become immersed in her religion. When challenged about this by Mr Daniel, on behalf of the mother, the guardian made the point that a child of N's age does not need to be subjected to overt pressure in order to shape their views. A child's views can be shaped by quite subtle behaviour by a parent.

60. The guardian is concerned that N should understand that he has two homes. She described how when she spent time with him he had used smiley faces to describe how he felt about meeting each parent and sad faces for saying good-bye to them. At the moment, she is concerned about the risk that both parents will compete for N's sympathies, especially when it comes to religious and spiritual matters.

The law
61. The court's approach to this application is set out in s.1 Children Act 1989. In deciding the questions that are in issue N's welfare must be the court's paramount consideration (s.1(1)). In deciding where N's welfare interests lie the court must have regard to each of the factors set out in the welfare checklist in s.1(3). The court must also have regard to the Art 8 rights of each family member (mother, father and N) and must endeavour to arrive at an outcome that is both proportionate and in N's best interests.

62. The particular difficulty in this case relates to the mother's commitment as a Jehovah's Witness.

63. The mother's right to choose and practice her religion is guaranteed by Article 9 of the European Convention on Human Rights and Fundamental Freedoms which provides that,

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or in private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

64. The mother also has the right not to be discriminated against in either the choice or manifestation of her religion. Article 14 provides that

'The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.'

65. Though the mother's right to choose and practice her religion is not in doubt, the extent to which she is entitled to allow or encourage N to share in her religious beliefs and practices is less straightforward. I have been referred to a number of authorities.

66. Re T (Minors)(Custody: Religious Upbringing) [1981] 2 FLR 239 concerned a custody dispute between married parents in respect of their younger three children, twin girls aged 14 and their youngest daughter aged 8. The mother had become a Jehovah's Witness. The father was nominally a member of the Church of England. The father profoundly objected to the children being raised by the mother. He was concerned about the impact the mother's beliefs and practices would have upon both the minds and lifestyle of his children. Scarman LJ made the point that

'We live in a tolerant society. There is no reason at all why the mother should not espouse the beliefs and practice of Jehovah's Witnesses. It is conceded that there is nothing immoral or socially obnoxious in the beliefs and practices of this sect…It is as reasonable on the part of the mother that she should wish to teach her children the beliefs and practice of the Jehovah's Witnesses as it is reasonable on the part of the father that they should not be taught those practices and beliefs.'

He went on to make the point that

'it was not necessarily [my emphasis] wrong or contrary to the welfare of children, that they should be brought up in a narrower sphere of life and subject to a stricter religious discipline than that enjoyed by most other people, nor that they be without parties at Christmas and on birthdays; in this case it was essential to appreciate that once the mother's teaching was accepted as reasonable it had to be considered against the whole background of the case and not in itself so full of danger for the children that it alone could justify making an order which otherwise the court would not make.

67. The same point was made by the Divisional Court in Harrison v Harrison (unreported) 17th June 1980. In that case Sheldon J also went on to make the point that

'There have been many occasions upon which the courts have had to consider the problems that can arise in the family environment when one parent, but not the other, has become a Jehovah's Witness – problems which may be particularly difficult to resolve when they relate to the upbringing of children. Some aspects of that particular faith, indeed, may be thought by many to create an environment which is not the happiest for a child's upbringing, particularly if it leads to his or her isolation from other children and from his or her wider family. Clearly, moreover, these may be matters of great importance when considering the welfare of any particular child and the orders to be made for custody and access. But there are many other matters which also have to be taken into account and it would be quite wrong for anyone to assume, in any dispute between two parents of whom one is and the other is not a Jehovah's Witness, that the custody and care and control of their child will necessarily, or even more often than not, be given to the latter. Each case must depend upon its own particular circumstances.'

68. Though both of these cases were decided some years before the Children Act 1989 came into force, the points made are entirely consistent with the approach the court is now required to take under s.1 Children Act. The impact of a parent's religious convictions and practices is just one of the factors the court will consider when undertaking a thorough welfare checklist analysis. Every case depends upon its own facts. In some cases this issue will be given more weight than in others. That was acknowledged recently in M v H [2008] EWHC 324 (Fam) in which Charles J made the point that

'30. …it cannot be said that the beliefs and practices of a parent who is a Jehovah's Witness creates a situation that is so inimical to good family life that ordinary considerations have to give way to it in determining what will best promote the welfare of the relevant child…

31. Rather the relevance of the religious difference relates to the impact in all the circumstances of the case on S's welfare of the respective beliefs of the parents and thus of their respective lifestyles and attitudes based thereon. This is an exercise that can only be carried out in all the circumstances of a given case…'

69. There remains an issue as to the extent to which, if at all, the court can control the steps taken by a parent to involve her child in the beliefs and practices of her religion. In this case it is submitted on behalf of the mother that her religious beliefs as such are granted absolute protection under Art 9(1) and that the manifestation of her beliefs is granted qualified protection under Art 9(2). When taken in conjunction with Articles 8 and 14, Mr Daniel goes on to submit that any interference with the manifestation of the mother's religious beliefs must be justified in that it must (a) be in accordance with law; (b) have a legitimate aim; (c) be necessary in a democratic society; (d) meet a pressing social need; and (e) be proportionate. 

70. On this issue I have been referred to the decision of the European Court of Human Rights in Ismailova v Russia (Application N 37614/02) [2008] 1 FLR 533. In that case at the time of their marriage both parents were Muslims. The mother later became a Jehovah's Witness. This led to tensions which in turn led to the mother leaving the matrimonial home. The local welfare services recommended that the children, aged 7 and 4, should remain with their father. Amongst the reasons for that recommendation were the mother's attendance at Jehovah's Witnesses' meetings, the fact that Jehovah's Witnesses' meetings were held in the mother's flat, and the children's responses to attendance at Jehovah's Witness meetings. The court granted custody of the children to the father, noting that Jehovah's Witnesses came to the flat in which the mother was living a few times a week, that the mother attended the weekly meetings of the Jehovah's Witnesses and that the children had been frightened by some of the things they had heard at such meetings. The mother took her case to the ECHR alleging that she had been discriminated against on the grounds of her religion. By a majority, the court found that there had been no violation of the mother's human rights and no discrimination against her based on her religious views. The following passages of the court's judgment are relevant to the issues before me:

[47] The court reiterates that Art 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to the 'enjoyment of the rights and freedoms' safeguarded by those provisions. Although the application of Art 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter…

[55] The court finds that by contrast to the aforementioned Palau Martinez judgment (see [33]–[38]) it cannot be said that the domestic courts decided the present case solely or principally on the basis of the applicant's religious affiliation. In fact, the court decisions made it clear that the applicant and her former husband were in completely different situations in so far as the relevant factors, such as their financial status and housing conditions, were concerned. It is true that the domestic courts did examine the arguments concerning the incidence of and implications on the applicant's religious affiliation on the children's upbringing, but nothing in the reasoning of the domestic courts suggests that the case might have been decided differently had it not been for the applicant's religion…

[56]   In any event, the court does not consider that it has to resolve this issue, especially since the arguments on the effects on the applicant's religion on the children situation are of relevance in determining whether the difference of treatment was justified. The court will proceed on the assumption the applicant and her former husband were in an analogous situation and that they were treated differently.

[57]   The different treatment is considered discriminatory for the purposes of Art 14 if it 'has no objective and reasonable justification', that is, if it does not pursue a 'legitimate aim' or if there is not a 'reasonable relationship of proportionality between the means employed and the aim sought to be realised'. The contracting states enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment...

[58]   The court is of the opinion that the aim pursued in the instant case, namely protection of the children's interests, is legitimate.

[59]   As to whether there was a reasonably proportionate relationship between the means employed and the legitimate aim pursued, the court notes that unlike in the mentioned Palau Martinez judgment (see paras 42 and 43) the domestic authorities in the present case made conclusions concerning the incidence of the applicant's religious affiliation on her children's upbringing on the basis of the direct and concrete evidence demonstrating the influence of the applicant's religion on her two children's upbringing and daily life…

[62]   The reasoning presented by the domestic courts shows that they focused solely on the interests of the children. The courts did not rely on their mother being a member of the Jehovah's Witnesses, but on the applicant's religious practices, in which she had included her children and failed to protect them. In the view of the domestic courts, this had led to social and psychological repercussions for the children. The courts considered that this would have negative effects on the children's upbringing. Furthermore, this was only one of the elements in the courts' reasoning, which was largely based on the children's age and the financial, housing and general living conditions the parents could provide them with. There is nothing to suggest that the national courts' reasoning was arbitrary or unreasonable

[63]   In such circumstances, the court cannot but conclude that there existed a reasonable relationship of proportionality between the means employed and the legitimate aim pursued…Accordingly, the court finds that there has been no violation of Art 8 of the Convention taken in conjunction with Art 14.

Discussion
71. At the end of the hearing I invited all parties to submit a draft of the orders they were contending for. This has had the benefit of narrowing the issues.

Shared care
72. The father proposes that N's time be shared between his parents on a four weekly cycle. In weeks one to three it is proposed that N be with his mother from after school on Monday until start of school on Thursday and the remainder of the week with his father. In week four it is proposed that N be with his mother from after school on Monday until start of school on Wednesday and from after school on Friday until 5pm on Sunday.

73. The guardian agrees with the father's proposal. The mother does not. The draft order filed on her behalf proposes that 'So far as is reasonably attainable the time spent by N with each parent shall be equal including alternate weekends and shared school holidays…' That drafting is at odds with the mother's position as outlined during the hearing. She there sought an outcome which would leave the father with alternate weekends and shared school holidays. That would represent a reduction in the time N spends with his father.

74. The guardian's evidence is clear. N loves both of his parents equally. Both parents need to recognise that and to encourage him to continue valuing what each of them has to offer him.

75. Although it is not a requirement that an order for shared residence should lead to an equal division of a child's time between the homes of each parent, I am satisfied that in this case N's welfare requires that the division of time should be equal or close to equal. Given the differences between these parents so far as the issue of religious upbringing is concerned, a broadly equal sharing of time is in my judgment one way of trying to guard against the risk that the religious perspective of either parent will predominate. I therefore consider the father's proposals to represent a balance of care that is in N's best interests. I approve his proposals save that in week four the mother shall not be required to return N at 5.00pm on Sunday as proposed by the father but shall return him to school on the Monday morning.

76. Although neither set of grandparents is party to these proceedings, it is clear that they have played an important part in assisting and supporting the parents in their care of N. I have no doubt that their assistance and support will continue to be available in the future. For that reason it should be clearly understood by each parent that if, when N is with the other parent, the other parent leaves N in the care of his or her parents, for whatever reason, that that is acceptable.

77. The parents are agreed that school holidays should be shared equally between them.

Holidays
78. There is an issue about whether either parent should be entitled to take N abroad on holiday. At the time of the hearing this was an issue that required urgent resolution because the father wished to take N abroad at the end of this month. Shortly after the hearing I indicated to the parties that I proposed to grant the father's request. I now give my reasons for doing so.

79. N has past experience of travelling abroad, albeit not recent experience. He travelled to Cyprus twice during 2009. There is no evidence that he has any phobia about flying or any medical or other condition which makes foreign travel inadvisable.

80. Notwithstanding the criticisms I have made of the parents earlier in this judgment, I am satisfied that they can both be relied upon to look after N whilst he is in their care. There is no evidence to justify a concern that either of these parents would fail to return N to this country at the end of a foreign holiday.

81. It was not clear to me that the mother has any principled reasons for objecting either to the father's proposed holiday abroad or to future holidays abroad. The mother's objection appeared to be based on N's age and the fact that it would be unsettling for him to go on holiday abroad so close to the date when he is due to start school. In my judgment there is no real substance in the mother's concerns.

82. I accept, in principle, that the experience of foreign travel is likely to be beneficial to a child's development. In short, subject to the usual safeguards (e.g. advance disclosure of full details of the proposed holiday including flight details, hotel details, contact details) I can see no welfare reason to deny the father's proposal to take N on holiday this month or to deny either parent the opportunity to take N on holiday abroad in future.

83. At the moment the mother holds N' passport. I see no reason why she should not continue to do so.

N's religious upbringing
84. This is the most difficult aspect of this case. Although the draft orders submitted by the parents make it clear that each is prepared to make some concessions, there remain a number of issues that are not agreed. The concessions made by the mother are that:

(a) she will not take N with her in the house to house ministry;

(b) N shall spend every Christmas Day with his father;

(c) N shall spend time with his father both on his own birthday and on the father's birthday;

(d) she will pass on to the father, as soon as reasonably practicable after receipt, all invitations for N to attend celebrations which her religious beliefs preclude her from accepting so that he can ensure that N can attend such events if he wishes to do so.

85. Before considering the issues relating to religious upbringing that are not agreed, I first set out the principles which, in my judgment, should guide my approach:

(1) Parental responsibility is joint and equal. Neither parent has a predominant right to choose a child's religious upbringing.

(2) Where parents follow different religions and those religions are both socially acceptable the child should have the opportunity to learn about and experience both religions.

(3) A parent's right to enable her child to learn about and experience his or her religion is not an unconfined right. Where the practice of that religion involves a lifestyle which conflicts with the lifestyle of the other parent and the court is satisfied that that conflict has had or may in the future have an impact on the child's welfare the court is entitled to restrict the child's involvement in those practices.

(4) Restrictions imposed for welfare reasons do not necessarily amount to a breach of that parent's right to follow the beliefs and practices of his or her religion provided that any restriction imposed is justified by the findings made by the court and proportionate.

(5) In determining such an issue, as in the determination of any other question relating to the upbringing of the child, the child's welfare is the court's paramount consideration.

86. The mother's proposed draft order includes a recital stating that she should be allowed to take N to meetings at the Kingdom Hall. Although the draft goes on to say that 'N should be made aware of the religion of both his parents and of comparative religion consistent with his level of understanding' the draft does not expressly accept that the father should be entitled to continue to take N to church.

87. I am satisfied that there is no reason why N should not continue to attend both the Kingdom Hall with his mother and the Anglican Church (including Sunday school) with his father and grandparents. Although the father seeks to limit the frequency of N's visits to the Kingdom Hall to once a month I can see no reason to impose such a limit and neither would I consider the imposition of such a limit to be either justified or proportionate.

88. I have greater concern with the proposed recital set out in the mother's draft order that she 'may teach the child her Christian beliefs as one of Jehovah's Witnesses'. I note that on this issue, too, the mother's draft does not include a like provision that the father should be entitled to 'teach' N his Christian beliefs.

89. N is involved in the life of the Jehovah's Witnesses and also in the life of the Church of England. There are profound differences between the two both in terms of practices and beliefs. When either of these parents refers to his or her 'Christian beliefs' it should not be assumed that they are talking about the same thing, the same set of beliefs. They are not. Later in her draft proposed order the mother includes a recital that 'neither parent will do anything either themselves or through third parties to criticise, denigrate or undermine the faith or practices of the other'. In my judgment there is a real risk that in taking advantage of her first proposed recital the mother is likely to put herself in breach of the second.

90. There is also a risk that as N grows older and begins to appreciate the differences between the beliefs held by each of his parents the fact that one of them is actively engaged in 'teaching' him is likely to be experienced by him, consciously or subconsciously, as a pressure to subscribe to that parent's beliefs in preference to the other parent's. If both parents were 'teaching' him the bind he would find himself in would be even worse in that there is a risk that at some stage he would become caught up in the conflict between the two sets of beliefs and experience inner conflict between his loyalty to one parent and his loyalty to the other.

91. I accept that 'teaching' can take many different forms. In terms of the living out of one's faith in daily life I accept that it could be said that one teaches by example. I see nothing inappropriate in that. However, another meaning of 'to teach' is to instruct or to give lessons in. That is what one would expect to happen in a classroom. So far as concerns these parents, given the potential for conflict, I have profound reservations about the appropriateness of either parent 'teaching' their Christian beliefs to N in any formal sense, by 'instructing' or 'giving lessons'. In my judgment it is both proportionate and in N's best interests to restrict the parents' right to 'instruct' or 'give lessons' concerning their Christian beliefs.

92. In his draft proposed order the father seeks an order that 'Neither parent shall prevent N from taking part in school activities, including Nativity plays, other plays, performances, concerts, after school clubs, sports and field trips'. The mother's draft order is silent on these issues.

93. I recognise the risk that in including a provision such as that proposed by the father it may be said on behalf of the mother that the court is itself expressing a preference for the father's beliefs over her beliefs. However, that would be to overlook the evidence relating to the mother's withdrawal of N from last year's school nativity play. On that issue I have preferred the evidence of the guardian to that of the mother. I am satisfied that last December the mother knew that N had a part in the school nativity, that she allowed him to take part in rehearsals and that she subsequently withdrew him without consulting the father. Whilst I do not for a moment doubt the genuineness of the mother's religious beliefs and her commitment to the Jehovah's Witnesses, I also do not doubt that some of her actions, including her actions in withdrawing N from the nativity, play are motivated not just by religious conviction but also, in part, by her dispute with the father.

94. I do not accept that participation in the kind of events referred to by the father would either undermine N's understanding of or respect for the mother's beliefs or that it would in some way give the father some kind of advantage over her. To deny N the opportunity to take part in such activities would be likely to mark him out as 'different' from other children and could potentially cause him distress. I am satisfied that the order sought by the father is in N's best interests.

95. In her draft proposed order the mother includes a recital that in each calendar year she should be permitted to take N to the annual evening celebration of the Memorial of Christ's death as practised by Jehovah's Witnesses. The father agrees.

96. The mother also seeks to include a recital enabling her to take N to a Jehovah's Witnesses' Circuit Assembly day, a weekend Circuit Assembly and an annual District Convention. The father is agreeable to her taking N to one day of the annual district convention, so long as it is not on a school day.

97. It is difficult for the court to adjudicate on this issue as the mother has provided very little detailed information concerning any of these events. I do not say that the mother's request is unreasonable or that there are welfare reasons for denying her request. All I say, at this stage, is that there is insufficient information available to the court to enable an informed decision to be made.

Medical treatment
98. At the beginning of this hearing it appeared that the issue of medical treatment and in particular the use of allogenic blood, blood products or plasma derivatives, may be the most difficult issue in the case. In the event, it is clear from each party's proposals that there is now little difference between them on this issue.

99. For the mother, Mr Daniel draws my attention to guidance given by The Association of Anaesthetists of Great Britain and Ireland in a booklet published in 2005 under the title, Management of Anaesthetics for Jehovah's Witnesses. Section 3 of the booklet is headed The legal position in respect of anaesthesia and consent. So far as is material, paragraph 3.6 advises that

'Children of Jehovah's Witnesses below the age of 16 years may cause particular difficulty. The wellbeing of the child is overriding and, if the parents refuse to give permission for blood transfusion, it may be necessary to apply for a 'Specific Issue Order' via the High Court in order legally to administer the blood transfusion...It is important, however, before this serious step is taken, that two doctors of consultant status should make an unambiguous clear signed entry in the clinical record that blood transfusion is essential, or likely to become so, to save life or prevent permanent serious harm…

In the case of young people over 12 years who are capable of understanding the issues, the anaesthetist may be able to rely upon their consent.

The management of a child of a Jehovah's Witness in an emergency situation who is likely to succumb without the immediate administration of blood is viewed in law in a different light. In this situation, application to the courts will be too time-consuming and the blood should be transfused without consulting the court. The courts are likely to uphold the decision of the doctors who give blood.'

All parties agree that that is an accurate outline of the position in law. It is also agreed and accepted that where consent is required for the medical treatment of a child the consent of one parent alone is sufficient.

100. The mother proposes that there be a recital to the order providing that

(i) each parent shall sign a form of consent to medical treatment. I have appended to this judgment a copy of the form she proposes to sign.  I accept that that form is appropriate.

(ii) each parent should deposit a signed copy of their respective forms with each other, with N's General Practitioner and with his school;

(iii) neither parent will without prior notification to and the written consent of the other vary or withdraw their signed consent form;

(iv) each parent will notify the other immediately of any non-trivial medical treatment proposed to be given to N while in their care;

(v) each will ensure that the other is informed immediately should N attend at or be admitted to hospital for any reason, either for an elective procedure or as an emergency and whether in the UK or abroad; and that

(vi) each will bring to the attention of the treating clinicians both signed forms of Consent to Treatment.

101. I agree with each of those requirements. Where I part company with the mother is that in my judgment those provisions should be incorporated into the body of the order and not merely stand as recitals to the order. Recitals are appropriate where either the matters recited fall outside the ambit of the court's powers or where the court is satisfied that the voluntary nature of the recital is adequate to give confidence in compliance. In this case I have reservations about the extent to which either of these parents, and particularly the mother, can be relied upon to abide by assurances and promises contained in recitals. I am satisfied that the court has the power to make orders reflecting the recitals proposed by the mother and that in the circumstances of this case it is appropriate for the court to make such orders.

102. Although the mother's proposals are positive and are acceptable to the father, in light of the draft proposed orders filed on behalf of the father and the guardian I accept that they do not go quite far enough. The father proposes an order that

'In the event that any medical professional (whether here or abroad) recommends a blood transfusion or any other medical treatment for N when he is in the mother's care, the mother shall inform the medical authorities/professional immediately of the father's contact details, and his ability to consent to such treatment.'

I agree that such an order is appropriate.

Family Assistance Order
103. Finally, the guardian proposes that there should be a Family Assistance Order for a period of six months. Neither parent objects. Given the history of this case and the findings I have made, I accept that such an order is in N's best interests. It will, I hope, assist the parents in implementing my order and, more importantly, in making it work for N's benefit. This case has features suggestive of the risk that unless the parents begin to work together to promote N's well-being this could become a high conflict, intractable case. For N's sake, both of these parents need to do their utmost to ensure that that does not happen.

APPENDIX
MOTHER'S CONSENT TO MEDICAL TREATMENT
in respect of N.

I JLM:
1. STATE
that I am the lawful mother of and hold Parental Responsibility for my child N described above. I also have a Shared residence Order under which N divides his time and care between myself and his father. His father also holds Parental Responsibility and Shared Residence as described above;

2. CONSENT to all such necessary medical treatment for N, including anaesthesia, surgery and the administration of appropriate pharmaceutical products together with associated ancillary treatment such as (but not limited to) X-rays and MRI scans, intubation and/or ventilation as shall be recommended by qualified Registered Medical Practitioners treating him and considered necessary for his welfare SAVE AND EXCEPT that this consent is limited in that it does not extend to the administration to N under any circumstances of allogeneic blood or blood products;

3. ACKNOWLEDGE that N's Father is entitled as a matter of law to give valid Consent to Treatment of N that includes the administration of allogeneic blood and blood products;

4. REQUEST that all members of the treating team respect so far as they properly can my wishes for non-blood management for N and, in accordance with Best Practice and their legal duty, that they consider and if practicable deploy less invasive alternative treatment that does not involve allogeneic blood or blood products;

5. FOR THE AVOIDANCE OF DOUBT consent to the use of all or any of the modalities and techniques for non-blood management set out in the Schedule annexed hereto.