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Judge children’s welfare ‘by standards of 2012’, Munby LJ says in Ultra-Orthodox ruling

Appeal judges back mother's choice of schools to ensure 'equality of opportunity'

8 October 2012

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Children’s welfare should be judged “by the standards of reasonable men and women in 2012”, Lord Justice Munby has said in a ruling on the future of five Ultra-Orthodox children.

The Court of Appeal decided that the children, aged from three to 11, should attend a co-educational Orthodox school, proposed by the mother, and not the single sex Ultra-Orthodox schools chosen by the father.

The couple, who have now separated, come from the Ultra-Orthodox Chareidi or Haredi community. Lord Justice Munby said that although the mother no longer considered herself to be a member of the Haredi community, she still considered herself to be an Orthodox Jew.

Delivering the leading judgment in Re G (children) EWCA Civ 1233, Munby LJ said: “A child’s welfare is to be judged today by the standards of reasonable men and women in 2012, not by the standards of their parents in 1970, and having regard to the ever changing nature of our world: changes in our understanding of the natural world, technological changes, changes in social standards and, perhaps most important of all, changes in social attitudes.

“If the reasonable man or woman is receptive to change he or she is also broad-minded, tolerant, easy-going and slow to condemn.

“We live, or strive to live, in a tolerant society increasingly alive to the need to guard against the tyranny which majority opinion may impose on those who, for whatever reason, comprise a small, weak, unpopular or voiceless minority.”

The Court of Appeal heard that the mother wanted her children to go to Orthodox schools to give them opportunities that she did not have, and the father did not have, to study for A levels, go to university, get jobs and support themselves.

Munby LJ said the father admitted that he had no secular qualifications and taught for only one hour a day at the Talmudic college or yeshiva, where he studied.

“He accepted that beyond GCSEs his oldest son would probably have no non-Talmudic qualifications.”

Lord Justice Munby said “equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls”.

He said aspiration should be fostered and encouraged, since “far too many lives” were blighted by the lack of it.

“Third, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead – what kind of person they want to be – and to give effect so far as practicable to their aspirations.

“Put shortly, our objective must be to maximise the child’s opportunities in every sphere of life as they enter adulthood.

“And the corollary of this, where the decision has been devolved to a ‘judicial parent’, is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child’s ability to make such decisions in future.”

Munby said that, in the Haredi community, job opportunities for boys in professions such as medicine and the law were “very limited indeed” and for girls virtually non-existent.

“The contrast with the wider community could hardly be greater,” he said. “It is hard to imagine how either law or medicine could operate today without the women who at every level and in such large numbers enjoy careers which they find fulfilling and from which society as a whole derives so much benefit.

“Take the law: when I was called to the Bar in 1971 there were 2,714 barristers in practice at the independent bar of whom only 167 (some six per cent) were women; by 2011 there were 12,673 of whom 4,106 (some 32 per cent) were women. That is a measure of just how far society has moved in the last 40 years.”

The lord justice noted that in this case all three barristers and both solicitors were female, as was the CAFCASS officer.

Lord Justice Munby dismissed the father’s appeal. Lord Justice Maurice Kay and Sir Stephen Sedley agreed.

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