The case of Salford CC -v- W and others  EWHC 61 (FAM) raised an interesting question as to whether a mother, whose 5 children were placed with a maternal aunt, should retain control over the religion they might follow.
The children, aged between 4 and 11-years-old had been living with the maternal aunt and uncle for over three years when this case came before the High Court. Everyone agreed that the aunt and uncle should be appointed as their special guardians which is a legal arrangement intended to provide stability for the children going forward. The mother was a Protestant, but the aunt was a Roman Catholic. The mother opposed the children following the aunt’s faith and asked the Court to make an order prohibiting her from having the children take the sacraments of that religion.
Mr Justice MacDonald in deciding the case noted that the children had been participating in the Catholic faith without objection from the mother since placement with the aunt. The children had developed an age-appropriate understanding of the rights of passage in the Catholic faith and the older children in particular were aware that their friends did not face the same limitations which the mother was asking to be imposed on them.
The Judge had to consider what was in the best interests of the children’s welfare and this involved taking into account a “wide range of ethical, social, moral, religious, cultural, emotional, and welfare considerations”. In the aunt’s family, the children’s passage into the Catholic faith was considered an integral part of family and community life. The making of the order the mother was seeking would mark the children in their own eyes as different to their community and family which would risk confusion and emotional distress.
The judge also considered that the mother’s application was inconsistent with the nature of a special guardianship order. Although such an order maintains the legal link between the children and their parents, it is intended to provide a firm foundation to build and promote a lifelong permanent relationship between the proposed special guardians and the children. The making of the order would “place a sharp brake on the children’s integration into the family”.
There was no evidence that the religious practice of the special guardians would pose a risk to the welfare of the children. Additionally, the children considered themselves Catholics and, although their wishes and feelings would not decide the case, their wishes reinforced the conclusions the Judge had made in relation to their welfare.
This case emphasises the fundamental nature of special guardianship order which allows a special guardian to exercise parental responsibility to the exclusion of the parents. The courts should not impose restrictions on that exercise of parental responsibility without good cause.
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