UNITED KINGDOM

by

Simonetta Agnello Hornby

After the 11^th September 2001, there has been a shift in the international community’s approach to religions and sectarianism.

It has become clear that the offshoots of established religions may not be as benign as generally assumed, but indeed may be dangerous.

The Western world has yet to make sense of what happened and of its reaction to the events of the 11^th September.

In this context it is relevant to consider some of the fears and reactions to the destruction of the 2 skyscrapers in New York, in so far as these affect children, the European Courts and sectarianism.

There is an underlying and powerful belief that the same group or others will, and are capable of, successfully repeating the same or similar destruction and carnage, irrespective of any military success of the USA and its allies.

This fear is based on the fact that adequate and foolproof security systems are not and cannot ever be in place everywhere.

I have not seen incontrovertible evidence that the September bombing is directly linked with Islam, a religion I know well and respect greatly.

I am aware that the pointers are clearly in the direction of an organisation, which has roots in Islam. I am not able to form a view, as to whether it constitutes a religious sect which calls itself Islamic but is not recognised as such by Islam, (like some of the so called "Christian" sects which use the cloak of Christianity to justify and propagate beliefs and practices which are perverse and un-Christian) or it is an organization which is fundamentally political.

The fear about Islam, since the 11^th September 2001are:

1. Fear that Islam may be demonised and persecuted and thus the human rights of its believers may be infringed by an emotive and inappropriately vengeful reaction.
2. Fear that sects have developed within people of the Islamic faith who live in Europe, because they have not been granted the same rights as the indigenous population and the other monotheistic religions. I refer to the fact that they have not received the same treatment given to Christianity and Judaism, for example regarding education in the state schools, special provisions being made for holy days, dietary arrangements, dress attire, work arrangements to facilitate prayers, etc. (In the UK this is particularly relevant regarding education, as historically the state funds denominational schools.)
3. Fear that the denunciation of an Islamic sect may increase its power and popularity within Islamic countries and in the western world, with the result that we would be fertile ground for the growth of violent acts, underground activities and further extremism. This would place us at renewed peril of terrorist acts.
4. Fear that appeasement may facilitate the growth of destructive sects within Islam and further extremism. This would place us at renewed peril of terrorist acts.

It has been one of revulsion coupled with disbelief that any religious group could be involved in such acts.

It has also been one of appeasement born out of guilt and fear of unfamiliar cultures and beliefs.

In some cases, certainly in the UK, there have been positive steps to bring together children of different cultures and religions to know about each other and dispel potential aggression, but this has not covered, as far as I know, the new religious movement. What are commonly known, as "cults" have not been involved in this process, partly, I presume, because they are secretive and are not willing to open themselves to scrutiny.

Civil libertarians and conservatives have discussed sectarianism, but have both been ambiguous about the 3 fundamental questions:

Where lies the difference between religion and sectarianism?

I will now move on from the events of September 11 and Islam, and will deal with the present.

The Convention, which has been signed by all the nations of the world except the USA and Somalia, provides the general fundamental rights of children, including education, family life and independence of thought and religion.

All the European countries are signatories and the courts must take cognition of the Convention. It is a very useful tool in negotiations and should be referred to in the legal proceedings. Regrettably judges and lawyers are often not aware of its usefulness.

The Convention was an attempt to prevent a recurrence of the horrors of World War II and the period that preceded it. It has been ratified and implemented (in part only) in the United Kingdom only since the 2^nd October 2000, the enabling legislation being the Human Rights Act 1998. There have been some significant decisions.

I shall give below the most relevant articled of the convention incorporated in the UK legislation and some recent cases:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

1. Everyone has the right of 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 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.

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.

Right to education

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and reaching in conformity with their own religious and philosophical convictions.

NOTE:

1. The essence of the Convention is that it is a living instrument and therefore evolves constantly.

The Bible, Book of Proverbs, Chapter 13, v.24

"He who spares the rod hates his son
But he who loves him is diligent to discipline him"

This case concerns an independent Christian school whose head-teacher, teachers and parents submitted that corporal punishment in independent school had not been abolished, and that domestic legislation which prohibited parents from sending their children to a school, which practices corporal punishment, would be in breach of their human rights.

The school contended that the imposition of physical discipline limited to reasonable chastisement was part and parcel of their Christian beliefs and did not constitute inhuman or degrading treatment or punishment in contravention of article 3 of the Convention.

The court dismissed the application.

I will refer to the following points made in the judgement:

1. The abrogation of the relevant section 548 of the Education Act 1996 removed entirely the defence of reasonable chastisement for a teacher who administered corporal punishment in his capacity as a teacher (as opposed to his capacity as a parent) and it was not possible to argue that a parent could delegate to a teacher the parental authority to administer corporal punishment.
2. The belief that corporal punishment should be imposed could not properly be described ad philosophical or religious, even if the reason for holding was supported by a religious text.
3. Equally the belief in the desirability of corporal punishment could not be properly described as a religious conviction in its own right.
4. To impose corporal punishment was not the manifestation in practice of a religious conviction; it was an approach designed to reintroduce a respect for religious values. Therefore its abolition did not infringe the right to freedom of conscience under article 9 or the right to education under article 2.
5. Article 3 forbids the imposition of inhuman or degrading treatment and punishment although case law (Costello-Roberts v UK (1995), Tyrer v UK (1979-80) accepts than the infliction of corporal punishment does not necessarily infringe that article: it depends in the circumstances, including the nature, severity and its manner of execution.
6. The rights of article 9 of the Convention and article 2 of the Protocol are closely interrelated in circumstances where the parents claim the right to have their child educated according to their religious beliefs.
7. A philosophical conviction is a conviction worthy of respect in a democratic society and not incompatible with human dignity, which must not conflict with the fundamental right of a child to education.

The relevance of this case is that the courts are now taking a questioning and investigative role on religious beliefs and are prepared to examine them very carefully, when they are asked to decide on human rights.

A consultant gynaecologist had formed a relationship with a woman who had a daughter. The girl made allegation of indecent assault against him. He was tried an acquitted on four charge, and found not guilty on the remaining 3, when the jury had been unable to reach agreement.

He then formed a relationship with another woman who had children and wished to cohabit with her.

The Social Services of the local authority under their statutory duties under the Children Act 1989 made an investigation.

They concluded that the initial allegations were highly credible and there was a need to deal with the prospect of the applicant interfering with children. They set out specific steps, to be taken only if they were really necessary.

Because on the balance of the probabilities the social workers believe that the allegations were true and the applicant was likely to represent a medium to high risk of sexual abuse to children, they proposed to inform other agencies of their concerns.

The applicant requested judicial review of the Local authority’s actions.

The court dismissed his claim and held that the social workers had acted lawfully in assessing the risk and their conclusion were not perverse.

In addition, the Court decided, given that the social workers’ decision was justified, it was necessary to make disclosures and to enter into discussions with those responsible for children who potentially came under the control of the applicant. Disclosures of documents and information in this context needed to be made only if there was "pressing need and should be the exception rather than the rule".

In this case two children aged 10 and 11, who lived with their mother, refused to continue to see their father at the contact centre (supervised contact) or anywhere else.

It was claimed by the mother that their father had some strange beliefs about someone interfering with the relationship between him and his sons.

In the first instance the judge found that his beliefs would make him more rather than less concerned with the children’s safety and ordered that there should be unsupervised contact. The judge did not have the benefit of a psychiatrist’s report on the father, but had a report from a Court welfare officer (a state employee with social work qualifications).

The mother appealed and put forward the preposition that the children suffered emotional harm as a result of unsupervised contact.

The Court of Appeal ordered that there should be a psychiatrist’s report on the father. The psychiatrist found that the father was likely to be suffering from a delusional disorder.

The Court considered the main issue to be whether the poor quality of control resulted from the restriction of the contact centre or the father’s mental disorder. It found that the Court Welfare Officer had not addressed this issue and the Judge had not dwelt on it.

It ordered further psychiatric reports on the children and meanwhile reduced contact and made it subject to supervision.

There are several steps in the uphill task of persuading a court that there are unhealthy aspects in a sect whereby leaving or placing a child within it is detrimental to his welfare, whether or not one or both his parents and carers are within it.

The historical approach

Courts have historically been reluctant and in some cases unwilling to accept that there are organizations that have nefandous aspects and coercive practices on theirs adepts.

The civil libertarianism of the last 40 years, and the optimism of the post war approach quite simply have disenabled the judiciary from accepting that these sects may exist. The starting point is to assume that the allegation must be fruit of the imagination of the applicant.

When incontrovertible evidence is placed before the judiciary, they seek to be reassured by the members of the sects that they now have changed, whether in atonement or through logical reasoning, and have abandoned their least acceptable practices. In this the judiciary have been naïve.

The change from incredulity

Some judges have experienced the damage inflicted on people by their sect, and accept it. Some other have had personal experiences, within their own family. They are few.

However there is increasingly more awareness, and since September 11 the attitude of disbelief may be changing into one of demanding from the applicant cogent evidence of what is possible but is still considered unlikely. The attitude of the judiciary may now be changing, because they have seen, heard and read a great deal about fanaticism and wanton destruction.

They need however to be taken step-by-step along new paths, always with well prepared evidence and well prepared legal arguments.

Lawyers have shared the same views and attitudes of the judiciary. They too are now more aware of the issues.

Cases involving children and sects require greater amount of work that ordinary custody cases.

The lawyer must prepare the pleadings and collect the evidence with great care and diligence, (and so must do the prosecution in those countries in which this task is devolved to agencies and/or the judiciary itself), in order to rely on factual evidence and avoid emotional issues.

The courts are now more aware and able to deal with children’s cases involving sectarian issues, provided that their legal arguments are:

• clear,
• specific,
• well reasoned,
• fully evidenced .

and

• must be rigidly based on the law,

and

• avoid,
• emotional statements,
• hyperbolism,
• irrelevant issues,
• generalizations,
• hearsay.

Expert evidence is often necessary. In my experience, it is provided usually by persons connected in the anti-cult movement, or by psychologists, psychiatrists or anthropologists who are sympathetic.

There is a tendency to rely on the same professional experts, those who are predictable. Beware: the courts recognise them as such and their evidence is taken with some scepticism by the judge.

I favour the tactics of instructing a competent expert not fully cognisant with the issue of sectarianism but willing to learn, and provide to him the evidence which will enable him to appreciate the argument put forward by my client and hopefully prepare a report favourable to the case.

This approach has been very helpful in two of my cases. It was necessary to do a great deal of work to enable the expert to learn about the sect while preparing the report. We worked alongside, but he was free to reach any conclusions and indeed he worked independently of me, using me as a sounding board.

Other professional witnesses can be very helpful such as schoolteachers, nursery workers, doctors, and playground workers.

The crucial difficulty in such cases is to describe convincingly to the court the (sometimes) small but very significant changes in the behaviour of the member of the sect as a result of being part of it, and the characteristics of the sect, which make it different from other organizations.

The witnesses

They must be credible and independent.

Particularly if they were members of the sect, the lawyer must check their reliability, stamina and their motives for agreeing to give evidence.

Avoid paying the witnesses and coaching them

Prepare clear and specific statements, which must be to the full satisfaction of the witness.

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