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Beating Children Is Wrong, Isn't It? Resolving Conflicts in the Encounter Between Religious Worldviews and Child Protection

  • Catherine Shelley (a1)
Abstract

Responding to the death of Victoria Climbié in 2003, the Laming Report stated that cultural differences should never again be a factor in inadequate child protection. Yet since that time there have been further deaths of children involving exorcism and allegations of witchcraft, based in part on particular understandings of Christianity. Situations resulting in forced marriage, cliterodectomy, ‘honour’ killing and corporal punishment are practices often perceived as arising from religious belief, both by those who defend them and by critics. This article explores practices perceived as grounded in religious belief or culture that conflict with current child protection practice and norms about what is harmful to children. The role of religious education, rights to manifest religious belief and different understandings of adoption are also considered as examples of religious difference in understandings about children. Engagement with religious difference through a defence of children's rights and autonomy are proposed as one means to resolve conflicts between religious worldviews and what it means to protect children. The aim is to identify and foster reflection and debate about different understandings of what constitutes harm, in order to enhance consensus over child protection where views of what is harmful differ radically.1

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2 Cliterodectomy is used as a neutral term for a procedure otherwise known as female circumcision or female genital mutilation.

3 Lord Laming, The Victoria Climbié Inquiry Report (January 2003), available at <http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4008654>, accessed 28 January 2013.

4 Alston, P, ‘The best interests principle: towards a reconciliation of culture and human rights’, (1994) 8 International Journal of Law, Policy and the Family (IJLF) 125; Eekelaar, J, ‘The interests of the child: the role of dynamic self-determinism’, (1994) 8 IJLF 4261; An Na'im, A, ‘Cultural transformation and the normative consensus on the best interests of the child’, (1994) 8 IJLF 6281; Parker, S, ‘The best interests of the child: principles and problems’, (1994) 8 IJLF 2641; Ahdar, R, ‘Religion as a factor in custody and access disputes’, (1996) 10 IJLF 177204.

5 Eekelaar, J, ‘Children between cultures’, (2004) 18 IJLF 178194; Fortin, J, Children's Rights and the Developing Law (second edition, London, 2003), pp 2730 and 66–68; Brophy, J, Jhutti Johal, J and Owen, C, Significant Harm: child protection litigation in a multi-cultural setting (London, 2003); Marshall, K and Parvis, P, Honouring Children: the human rights of the child in Christian perspective (Edinburgh, 2004), pp 2450; Munby, J, ‘Making sure the child is heard’, lecture to the National Youth Advocacy Service, published in (2004) 34 FLJ 338358, 427–435; James, A and Prout, J (eds), Constructing and Reconstructing Childhood: contemporary issues in the sociological study of childhood (second edition, London, 1997).

6 An Angolan refugee, Child B, aged eight, was cut, blinded and beaten to death by Sita Kissanga and Sebastian Pinto in the name of exorcising witchcraft: V Dodd, ‘More children victims of cruel exorcisms’, The Guardian, 4 June 2005; Hoskins, R, The Boy in the River (London, 2012).

7 15-year-old Kristy Bamu, drowned by his sister Magalie Bamu and her boyfriend Eric Bikubi during torture to procure exorcism: see ‘Witchcraft murder: couple guilty of Kristy Bamu killing’, BBC News, <www.bbc.co.uk/news/uk-england-london-17040111>, accessed 28 January 2013. See also the case of a mother jailed in 2011 for the forced exorcism of her son: R Cooper, ‘Jailed: mother who refuses to bring back son, 17, from Nigeria where he was “forced to undergo exorcism for disobedience”’, Daily Mail, 15 February 2011, <www.dailymail.co.uk/news/article-1357167>, accessed 28 January 2013.

8 Children Act 1989, s 1 and s 31.

9 Ibid, s 31.

10 Mnookin, R, ‘Child-custody adjudication: judicial functions in the face of indeterminacy’, (1975) 39 Law and Contemporary Problems 226293; Freeman, M, The Rights and Wrongs of Children (London, 1983); Bainham, A, Children, Parents and the State (London, 1988); Munby, ‘Making sure the child is heard’, pp 338–358; James and Prout, Constructing and Reconstructing Childhood.

11 R v Williamson [2005] UKHL 15.

12 Education Act 1996, ss 548 and 549.

13 Proverbs 13:24; 23:13–14.

14 Enacted into English law by the Human Rights Act 1998.

15 Williamson, at para 49: ‘The legislation is intended to protect children against the distress, pain and other harmful effects … of physical violence … . That corporal punishment may have these harmful effects is self-evident.’ The UK Colleges of Paediatrics and Psychiatrists describe corporal punishment as ‘ineffective and negative’: Department of Health consultation on corporal punishment (2000), <http://webarchive.nationalarchives.gov.uk/+/www.dh.gov.uk/en/Consultations/Closedconsultations/DH_4083513>, accessed 12 February 2013; Sturge, C and Glaser, D, ‘Contact and domestic violence: the experts' court report’, (2000) Family Law 615623.

16 Section 58 of the Children Act 2004, defining harm from corporal punishment; section 120 of the Adoption and Children Act 2002, highlighting the harmful effects of children witnessing domestic violence.

17 A An-Na'im, Forced Marriage Project (London, 2000). 85% of UK forced marriage victims are female; 39% are minors; most believe that they have no alternative to the marriage: see Patel, H, Langdale, R and Hutchinson, A-M, ‘Forced marriage: the concept and law’, (2009) Family Law 726729; NS v MI [2006] EWHC 1646; P Taneja, ‘New Indian brides abandoned by British Asian husbands’, BBC News, 23 November 2009, <http://news.bbc.co.uk/1/hi/8370459.stm>, accessed 12 February 2013.

19 An-Na'im, Forced Marriage Project, estimated 1,000 cases per year in 2000.

20 15% of forced marriage victims are young men, often with learning difficulties: see, for example, City of Westminster v IC, KC v NNC [2007] EWHC 3096; Re SA (Vulnerable Adult) [2005] EWHC 2942, [2006] 1 FLR 867; Re SK (by her litigation friend A-M Hutchinson) [2004] EWHC 3202, [2005] 3 AllER 421, [2005] 2 FLR 230, [2006] 1 WLR 8.

21 Hirani v Hirani [1983] 4 FLR 232.

22 Forced Marriage (Civil Protection) Act 2007.

23 Re K sub nom LA v N and Others [2005] EWHC 2956.

24 Re AB [2008] EWHC 1436.

25 ‘Honour’ is a translation of the Urdu izzat. It is recognised that the law is sceptical about the use of the word ‘honour’ in connection with criminal activity against women: see eg Re B-M (Care Orders: Risk) [2009] EWCA 205, Wall LJ.

26 Prohibition of Female Circumcision Act 1985; Female Genital Mutilation Act 2003; Roald, A-S, Women in Islam: the Western experience (London, 2001), p 243; Population Reference Bureau, ‘Abandoning female genital cutting’, <http://www.prb.org/pdf/AbandoningFGC_Eng.pdf>, accessed 12 February 2013; World Health Organization, ‘Global strategy to stop health-care providers from performing female genital mutilation’, <http://www.who.int/reproductivehealth/publications/fgm/rhr_10_9/en/index.html>, accessed 14 February 2013; World Health Organization, ‘An update on WHO's work on female genital mutilation (FGM)’, <http://www.who.int/reproductivehealth/publications/fgm/rhr_11_18/en/index.html>, accessed 14 February 2013.

27 Re R (Minor: Medical Treatment) [1993] 2 FLR 757; Re O (Medical Treatment) [1993] 2 FLR 149.

28 Re L (Medical Treatment: Gillick Competency) [1998] 2 FLR 810; Re E (A Minor: Consent to Medical Treatment) [1993] 1 FLR 386; Re S (A Minor: Consent to Medical Treatment) [1994] 2 FLR 1065.

29 R v Syed Mustafa Zaidi: see D Pallister, ‘Man guilty of making boys flog themselves with blades in Muslim rite’, The Guardian, 27 August 2008, <http://www.guardian.co.uk/uk/2008/aug/27/ukcrime.islam>, accessed 12 February 2013.

30 R v Denbigh High School, ex parte Begum [2006] UKHL 15.

31 R v Y School, ex parte X [2007] EWHC 298.

32 R v Millais School, ex parte Playfoot [2007] EWHC 1698.

33 R v Aberdare Girls High School v Rhonddha Cynon Taf Unitary Authority, ex parte SA Watkins-Singh [2008] EWHC 1865.

34 Green Paper 2003.

35 Hamilton, C, Family, law and religion (London, 1995), p 342.

36 Office for Standards in Education.

37 Bradney, A, Religions, Rights and Laws (Leicester, 1993), chapter 4. Most independent Christian and Muslim schools are inspected not by Ofsted but by independent inspectorates: see Ofsted Annual Report 2008–2009, pp 37–40, <http://www.ofsted.gov.uk/resources/annual-report-of-her-majestys-chief-inspector-of-education-childrens-services-and-skills-200809-summ>, accessed 14 February 2013.

38 Ofsted Annual Report 2008–2009; Ofsted Annual Report 2007–2008, <http://www.ofsted.gov.uk/resources/annual-report-of-her-majestys-chief-inspector-200708>, accessed 14 February 2013.

39 G Badman, Review of Elective Home Education in England, report to the Secretary of State for Education, June 2009, <http://webarchive.nationalarchives.gov.uk/20090617172705/http://publications.everychildmatters.gov.uk/eorderingdownload/hc-610_home-ed.pdf>, accessed 12 February 2013.

40 Bradney, Religions, Rights and Laws, chapter 4; Badman, Review of Elective Home Education in England.

41 R v Secretary of State for Education and Science, ex parte Talmud Torah Matzikei Hadass School Trust (1985) Times, 12 April; Ofsted reports re Salford Senior Jewish Boys School (2008) <www.ofsted.gov.uk/inspection-reports/find-inspection-report/provider/ELS/105995>, accessed 14 February 2013; Talmud Torah Yetev Lev (2011) <http://www.ofsted.gov.uk/inspection-reports/find-inspection-report/provider/ELS/100289>, accessed 14 February 2013; Talmud Torah Machzikei Hadass School (2007 and 2010) <http://www.ofsted.gov.uk/inspection-reports/find-inspection-report/provider/ELS/100294>, accessed 14 February 2013.

42 P Curtis, ‘Sex education for five-year-olds to be made compulsory in schools’, The Guardian, 27 April 2009, <http://www.guardian.co.uk/education/2009/apr/27/sex-education-contraception-schools>, accessed 12 February 2013.

43 Pharoah, R, Hale, T and Rowe, B, Doubting Darwin: creationism and evolution scepticism (London, 2009); R Butt ‘Migration is spreading creationism across Europe’, The Guardian, 13 November 2009, <http://www.guardian.co.uk/science/2009/nov/13/migration-creationism-evolution-michael-reiss>, accessed 12 February 2013.

44 Critical reports on two Jewish, four Christian and three Muslim schools are considered in Bradney, Religions, Rights and Laws, chapter 4.

45 See the website of the British Humanist Association, <http://humanism.org.uk/education/>, accessed 12 February 2013.

46 Keating, J, ‘The struggle for identity: issues underlying the enactment of the 1926 Adoption of Children Act’, (2001) 3 University of Sussex Journal of Contemporary History (2001) 57; Keating, J, A Child for Keeps: the history of adoption in England, 1918–45 (Basingstoke, 2008), Bridge, C and Swindells, H, Adoption: the modern law (Bristol, 2003), p 3; Carp, W, Family Matters: secrecy and disclosure in the history of adoption (Cambridge, MA, 2000), pp 135.

47 Triseliotis, J, In Search of Origins: the experience of adopted people (Boston, MA, 1975); Campbell, L, Silverman, P and Patti, P, ‘Reunions between adoptees and birth parents: the adoptees' experience’, (1991) 36 Social Work 329335.

48 Huda, ‘Adopting a child in Islam’, <http://islam.about.com/cs/parenting/a/adoption.htm>, accessed 12 February 2013; Broyde, M, ‘Adoption, personal status, and Jewish law’, in Jackson, T (ed), The Morality of Adoption (Grand Rapids, MI, 2005), pp 128147; Sowle Cahill, LAdoption: a Roman Catholic perspective’, in Jackson, Morality of Adoption, pp 148171. Post, S, ‘Adoption: a Protestant agapic perspective’, in Jackson, Morality of Adoption, pp 172–18. See also Matthew 8:18–22 and 10:34–39; Romans 8:14–17; Galatians 4:4–7; Ephesians 1:5.

49 Re A (Adoption in contravention of the Adoption Act) [2005] 2 FLR 727.

50 Adoption and Children Act 2002, s 115.

51 Newcastle v Z [2005] EWHC 1490.

52 Fortin, J, Children's Rights and the Developing Law (third edition, Cambridge, 2009); Eekelaar, J, ‘The emergence of children's rights’, (1986) 6 Oxford Journal of Legal Studies 161182; Eekelaar, J, ‘The interests of the child and the child's wishes: the role for dynamic self-determinism’ (1994) 8 IJLF 4261; Eekelaar, J, ‘Children between cultures’, (2004) 18 IJLF 178194; Holt, J, Escape from Childhood (London, 1974); Alston, P (ed), The Best Interests of the Child: reconciling culture and human rights (Oxford, 1994); Freeman, M, The Rights and Wrongs of Children (London, 1983); Bainham, A, Children, Parents and the State (London, 1988); Munby, ‘Making sure the child is heard’, pp 338–360; Marshall and Parvis Honouring Children.

53 MacIntyre, A, After Virtue: a study in moral theory (London, 1981); J Millbank, ‘Against human rights’, <http://theologyphilosophycentre.co.uk/papers/Milbank_AgainstHumanRights.pdf>, accessed 12 February 2013; S Hauerwas, Suffering Presence: theological reflections on medicine, the medically handicapped, and the Church (Notre Dame, IN, 1986), pp 125–127.

54 Hauerwas, Suffering Presence; Millbank, ‘Against human rights’.

55 UNDHR, along with rights of women under the Convention of the Defence of Women and the UN Convention on the Rights of the Child.

56 Wolterstorff, N, Justice: right and wrong (Princeton, NJ, 2008).

57 Rashkover, R and Kavka, M (eds), Tradition in the Public Square: a David Novak reader (London, 2008).

58 Matthew 18:6; 19:13.

59 Ramadan, T, Radical Reform: Islamic ethics and liberation (Oxford, 2009); Ramadan, T, Western Muslims and the Future of Islam (Oxford, 2004; Y Suleiman (ed), Contextualising Islam in Britain, <http://socialsciences.exeter.ac.uk/media/universityofexeter/instituteofarabandislamicstudies/centres/csi/CIBPReportWeb.pdf>, accessed 12 February 2013.

60 Williams, R, ‘Civil and religious law in England: a religious view’, lecture at the Royal Courts of Justice, 7 February 2008, (2008) 10 Ecc LJ 262282; R Williams, ‘Religious faith and human rights’, lecture at the London School of Economics and Political Science, 1 May 2008, <http://rowanwilliams.archbishopofcanterbury.org/articles.php/1161/archbishop-religious-faith-and-human-rights>, accessed 12 February 2013.

61 See the following essays in Webster, J (ed), The Cambridge Companion to Karl Barth (Cambridge, 2000): W Krötke, ‘The humanity of the human person in Karl Barth's anthropology’, pp 159–176; K Sonderegger, ‘Barth and feminism’, pp 258–273; W Werpehowski, ‘Karl Barth and politics’, pp 228–242; N Biggar, ‘Barth's Trinitarian ethic’, pp 212–227; K Tanner, ‘Creation and providence’, pp 111–126.

62 Barth, K, Church Dogmatics, III/4 (London, 2009); Werpehowski, W, ‘Reading Karl Barth on children’, in Bunge, M (ed), The Child in Christian Thought (Grand Rapids, MI, 2001), pp 228242.

63 McFadyen, A, The Call to Personhood: a Christian theory of the individual in social relationships (Cambridge, 1990).

64 Wolterstorff, Justice; Forrester, D, On Human Worth (London, 2001).

65 Ramadan, Western Muslims; Ramadan, Radical Reform.

66 A-S Roald, Women in Islam.

67 Rashkover and Kavka, Tradition in the Public Square.

68 Sacks, J, Radical Then, Radical Now (London, 2000); Sacks, J, The Dignity of Difference (London, 2002).

1 The article is based on a Manchester University doctoral thesis entitled ‘Constructing normative ethics for child protection and children's rights in a multicultural but largely secular society: a defence of children's graced autonomy’. It was delivered on 8 June 2012 as part of the Ecclesiastical Law Society's London Lecture series.

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