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March 01, 2011

A Step Further Away from the Law

Earlier today Rob posted a notice of the recent action taken by the High Court of Justice, Queen’s Bench Division directed against a Christian couple and quoted from N. 93 of the approved judgment in Eunice and Owen Johns v. Derby City Council on the suitability of observant Christians to be foster carers (parents) in the UK. The full decision is here [Download Johns_Approved_Judgment]. Later on in N. 102, the court raises the question of the status of the freedom of religion and the refusal of the would-be foster parents to compromise the tenets of their Christian faith. The court holds that there is only a “qualified” right founded on religious freedom [the court’s italics] based on the authorities upon which it, the court, relies. The court then asserts that there are other interests at stake, and this “will be particularly so where a person in whose care a child is placed wishes to manifest a belief that is inimical to the interests of children.” (My italics)

So, the court holds and imposes the view that Christian beliefs which do not embrace homosexuality are “inimical to the interests of children.” I would suggest that the court, for whatever reason or no reason, overlooks other law that is applicable to this case. In this age when international law is often relied upon to help direct judicial decision-making, the court in Johns v. Darby City Council fails to acknowledge the fact that the UK is a party to both the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1966 International Covenant on Economic, Social, and Cultural Rights (ICESCR). Article 18(4) of the ICCPR states that “The States Parties [here the UK] to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” Article 13(3) of the ICESCR presents an almost identical requirement “to ensure the religious and moral education of their children in conformity with their [the parents] own convictions.” It would then seem that the High Court of Justice failed to take stock of pertinent law to which the UK is bound assuming that foster carers hold the status of legal guardians.

The justifications for these provisions of the two 1966 Covenants are found in the working papers of the Universal Declaration of Human Rights where the drafters of the declaration knew that they had to preserve the rights of parents regarding the moral and religious education of their children which had first been compromised and then eviscerated by National Socialism. It appears that the High Court of Justice failed to take stock of this as well.

So what does Catholic legal theory have to say about all this? In 1965, one year before the ICCPR and the ICESCR were finalized, the Second Vatican Council in Dignitatis Humanae Personae, the Declaration on Religious Liberty, stated that,

Parents, moreover, have the right to determine, in accordance with their own religious beliefs, the kind of religious education that their children are to receive. Government, in consequence, must acknowledge the right of parents to make a genuinely free choice of schools and of other means of education, and the use of this freedom of choice is not to be made a reason for imposing unjust burdens on parents, whether directly or indirectly. Besides, the rights of parents are violated, if their children are forced to attend lessons or instructions which are not in agreement with their religious beliefs, or if a single system of education, from which all religious formation is excluded, is imposed upon all. N. 5.

Additionally, in 1983, the Pontifical Council for the Family issued the Charter on the Rights of the Family, and it had this to say about the issues found in the Johns case:

a) Parents have the right to educate their children in conformity with their moral and religious convictions, taking into account the cultural traditions of the family which favor the good and the dignity of the child; they should also receive from society the necessary aid and assistance to perform their educational role properly. b) Parents have the right to freely choose schools or other means necessary to educate their children in keeping with their convictions. Public authorities must ensure that public subsidies are so allocated that parents are truly free to exercise this right without incurring unjust burdens. Parents should not have to sustain, directly or indirectly, extra charges which would deny or unjustly limit the exercise of this freedom. c) Parents have the right to ensure that their children are not compelled to attend classes which are not in agreement with their own moral and religious convictions. In particular, sex education is a basic right of the parents and must always be carried out under their close supervision, whether at home or in educational centers chosen and controlled by them. Article 5

It would seem, then, that if the court were to revisit the issues in this case, it would need to take account of the two 1966 Covenants. Moreover, if a Catholic family were to find itself in the situation confronting the Johnses, they would also be guided by the principles of Dignitatis Humanae Personae and the Charter of the Rights of the Family.

 

RJA sj

 

Posted by Robert John Araujo, SJ on March 1, 2011 at 10:26 PM in Araujo, Robert | Permalink

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