JUDGEMENT OF LORD JUSTICE WARD CONCERNING THE FAMILY : PT 22


THIS IS THE JUDGMENT OF LORD JUSTICE WARD IN THIS CASE WHICH
HE GAVE IN CHAMBERS ON THE 26TH MAY 1995 BUT WHICH IS BEING
HANDED DOWN IN OPEN COURT TODAY. IT CONSISTS OF 295 PAGES
AND HAS BEEN SIGNED AND DATED BY THE JUDGE.

THE JUDGE HEREBY DIRECTS THAT NO TRANSCRIPT OF THE JUDGMENT
NEED BE TAKEN AND THAT THE VERSION HANDED DOWN MAY BE
TREATED AS AUTHENTIC.

THE JUDGMENT IS BEING DISTRIBUTED ON THE STRICT
UNDERSTANDING THAT IN ANY REPORT OF IT NO PERSON (OTHER THAT
COUNSEL AND THEIR INSTRUCTING SOLICITORS AND THOSE PERSONS
IDENTIFIED BY NAME IN THE JUDGMENT ITSELF) MAY BE IDENTIFIED
BY NAME AND THAT IN PARTICULAR THE ANONYMITY OF THE CHILD, A
WARD OF COURT, AND THE MEMBERS OF HIS FAMILY MUST BE
STRICTLY PRESERVED.

SIGNED:

THE RT. HON. LORD JUSTICE WARD DATED 19TH OCTOBER 1995



W 42 1992 IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

PRINCIPAL REGISTRY IN THE MATTER OF ST (A MINOR)

AND IN THE MATTER OF THE SUPREME COURT ACT 1991h

Lord Justice Ward



THE OPINION OF THE EXPERTS ON THE LIKELIHOOD OF CHANGE

1. Doctor Palmer

She argued:-

"That The Family has evolved far beyond David Berg's sexual
fantasies and questionable preoccupations and have
successfully established a healthy society with a highly
elaborated code of ethics which, if properly understood,
would not stretch the tolerance of the public."

In her evidence she told me:-

"This is an experimental society. I don't think it is just
pretended reform, but a predictable pattern seen in other
new religious movements where sexual deviancy changes as
they have children and seek to find a place in society.
There is a definite pattern to be more conventional."

Cross-examined she said that it had put aside its deviant
sexual practices and:-

"It is at a critical point in its history, changing shape
and becoming more accommodating to society."

2. Doctor Melton

He reported as follows:-

"As has been noted by both social and religious scholars for
the past 2 generations, religious and communal groups past
through a period of rapid change during their first
generation. In the early phases, the group is distinguished
by (1) its existence as a convert's-only organisation, (2) a
new religious vision which called the group into existence,
and (3) an emphasis upon the unique and different aspects of
the group (as opposed to those many elements it shares with
predecessor organisations). Groups then passed through a
period of rapid change as the new religious vision is
explored, its implications understood, and its adequacy
tested, i.e. as theological reflection occurs. Most new
religions die during this phase as their initial vision
proves too limited or shallow. If a group is successful and
survives, it generally faces a series of organisational
problems created by an immature leadership which must be
trained on the job. It is not unusual for people in their
early 20's to assume national and international leadership
responsibilities. If the group survives, however, the group
reaches a point of maturity as the initial teachings of the
founder are more completely stated, the implications
perceived, and the problems inherent within it (or the way
in which it was first stated) are handled. As the whole of
the teachings are, so to speak, put on paper (i.e. a
theology is developed), the larger portion of the teachings,
usually identical with that of the predecessor group(s),
begins to claim equal attention in the mind of followers
along with the unique different and aspects. Second, as the
group matures, so does its leadership. Youthful enthusiasms
that dictated policies are replaced by mature thoughtful
deliberations on organizational matters. The third major
force in stabilising the group arises as children are born
and claim significant attention of the group. Children have
to be trained in the group's teaching and along with a
theology, a programme of religious education must be
developed. Also, as a group, children are never as zealous
for the faith as the first convert. The second generation is
always more conservative than the first. ... As the second
generation arrives and is assimilated into the group's life,
the process of rapid change will slow to a crawl and a more
or less stable theology will be articulated, a mature
leadership will evolve and a stable behaviour pattern will
be adopted by the group. Like all groups it will continue to
change, but at a rate similar to that of the environment."

He concluded that:-

"The Family seems to have worked through its first
generation of problems and arrived at a mature
organisational state. ... The tendency of children has
generally been to move organisations in a more conservative
direction and into a lessening of tension with the
surrounding environment. We shall watch with interest to see
if they follow past trends."

In his evidence he expressed the view that on Berg's death
the leadership would pass to a bureaucracy but that it would
be a smooth transition because the structures are already in
place. He said, and I confess I find this worrying, that
there are some assumption that Berg will continue to guide
them from the spirit world. He has in the past sought to
give authority to his statements by asserting they come to
him from his spirit mentors. It is too depressing to
contemplate that Berg will rule from the grave. There are,
however, sufficient signs in the recent changes to suggest
to me that Maria and Amsterdam possess enough personal
integrity and intelligence and wield enough power for their
both to be able and to want to stamp their own mark of
authority on the movement. Doctor Melton felt that the
leadership had reached stability and maturity and so he, a
heavy critic of The Family in the 1980's, was generally
pleased to see their participation in inter-faith meetings
and in their engaging with others. He said, and, having
formed a favourable impression of him and a regard for his
expertise, I must accept his evidence that:-

"I have come to trust some of them from empirical
observation. I think the changes are very real. They show an
intense desire to come back into society judged at least by
their standing and fighting in Court and by their producing
whatever documents I have asked for to complete my library
of their literature."

3. Doctor Millikan

I remind myself that he has "taken on various cults
unequivocally pernicious" in the past. He told me that:

"A cult will break down when it modifies its view that there
are only two people in the world, the insiders and the
outsiders. The Family have moved away from this position.
The controversy in Australia and elsewhere has led them to
adopt different views about "flatlanders" and "systemites"."

He found it significant that whereas changes in the past
were initiated through Berg's fiat, now major changes, for
example, PER, have taken time to formulate as views are
invited and respected before policy is changed. Although he
was cautious enough to state that he was still making his
judgments about this group, his opinion was that the changes
were irreversible because The Family were opening up to the
world through their contact with the established churches,
through opening their homes to the public, and to making
themselves available to experts like himself. Whereas other
groups have tried to keep hold of their principles, they
have allowed change and his opinion is that if secrecy and
isolation break down, then that also breaks down any errant
behaviour.

4. Professor Richardson

He concluded as follows:-

"All groups, including the COG/FOL, go through a "natural
history" or organisational evolution. They start out more
radical, in part because the originators are typically
younger, healthier and unfettered with families and
responsibilities. Then the groups evolve, sometimes in fits
and starts towards a more normal existence. They are forced
to do this because of external pressures and because of
internal demands put on the group by increasingly diverse
types of members, including particularly the presence of
large numbers of small children in groups which do not
practice systematic birth control. The COG/FOL now seem more
"normal" than they once did, and if that word ever gets out
through the media, they may well fade into obscurity, simply
because they are not doing as many strange things any more,
and few people will be very interested".

I have added the emphasis so that the media may reflect upon
this opinion!

"Such relative obscurity will be a mixed blessing, of
course, and at present some may think it could never happen.
However, the history of many social movement organisations,
some of which were quite radical indeed, suggest that the
COG/FOL will follow a similar path. ... It is my considered
view .. that The Family is not a group "gone bad" - indeed,
by nearly all standards that could be imagined, The Family
has "gone good," what with the changes it has undergone
concerning sexuality and the rearing of children. The Family
certainly has a colourful past, but it seems to this scholar
that its future looks more normal."

When he gave evidence he said that if he were betting he
would wager that The Family would look more like the Seventh
Day Adventist than the Amish, a particularly isolated group.

MY FINDINGS

The review of the literature, the evidence of those who
remain in and those who have left the group and the
unchallenged common opinion of a group of experts who
differed in their expertise and in the manner in which they
gave evidence, all lead me to conclude that fundamental
changes have taken place which:

(a) have eradicated the sexual excesses of the past.

(b) have begun, but not completed, a ban on inappropriate
forms of discipline.

(c) offer wider avenues of education.

(d) have moved The Family significantly from a closed,
secret society to one which is more ready to engage with the
outside world.

(e) may make them more trusting of the system and perhaps
even more amenable to changes required by the system.

I am satisfied that the changes made are likely, on the
balance of probabilities, to be irreversible so that The
Family having moved forward, will not now move backwards.
How much further forward they may be required to move and
whether or not they will do so are matters which I shall
deal with soon.

THE OFFICIAL SOLICITOR'S CASE

The recommendation made to me by the Official Solicitor in
his written report dated 11th January 1994 was that he
concurred with and adopted Doctor Cameron's assessment and
recommendations and therefore:-

"Subject to the hearing of oral evidence, the Official
Solicitor submits that S should remain living with the
mother, the wardship continue, and the matter be reviewed
after one year. With regard to contact with the grandmother,
both Doctor Cameron and the Official Solicitor support this
continuing and the Official Solicitor will make his
submissions on the extent and nature of the contact through
Counsel at the conclusion of the hearing." (I have added the
emphasis)

Doctor Cameron's report was dated 17th October 1993 and I
have already cited from it.

It is a pity that The Family appear to have misunderstood
the Official Solicitor's role. He, through his
representatives in his office, through Counsel whom he
instructs, have a duty to act in the best interests of the
child they represent. They must approach that task at all
times with an open mind but also with an inquisitive one.
His duty is to probe and to explore the evidence. The Family
know perfectly well, if they are true to themselves, that
there are vast areas of their past which scream out for
thorough but dispassionate investigation and they could
hardly expect otherwise. It is, therefore, a pity that Mr
Barton was instructed to make his closing submissions on the
basis that: "It became apparent from the outset of the oral
evidence that the Official Solicitor took a more hostile
attitude than that reflected in the report." He would have
failed in his duty had he not, through Counsel, thoroughly
investigated the areas of concern raised in this case.

Doctor Cameron reported again on 13th May. He had, by then,
been informed of the nature of the evidence which had been
led and he expressed the opinion that it was best for S to
adopt a "wait and see policy" provided certain safeguards
could be written into the Order for S's protection. He
envisaged, for example, supervisory visits by the Official
Solicitor's appointee with periodic progress reports, the
appointment of a peripatetic christian nursery school
teacher and substantial contact including staying contact.
That wait and see policy was however dependent on certain
preconditions being satisfied partly by The Family and
partly by the mother. The following day he wrote the very
important letter setting out the three hurdles for NT to
surmount as I have already described.

When he gave evidence he explained that her failure at any
hurdle would cause him concern as to putting S first. He
felt that the changes effected were small steps in the right
direction and he had weak confidence in The Family's ability
to go as far he required of them. At the conclusion of his
evidence, his message seemed clear enough to me: he wished
for some movement on NT's part to be able to give effect to
what he felt was best for S, namely that the Court adopt the
wait and see policy. As I have already indicated, NT's
evidence fell far short of satisfying his conditions.

There was then an unfortunate development. Doctor Cameron
attended a consultation with Counsel in preparation of the
Official Solicitor's final submissions. Having reviewed the
case, Doctor Cameron reported that in his opinion the least
detrimental alternative appeared to be "strongly to leave
well enough alone." The Official Solicitor took another
view. He was minded to submit that S should be removed from
his mother's care and placed with grandmother. He
recognised, however, that it was his duty to give full and
frank disclosure of all material facts and matters and that
would include the opinion of his expert which did not
support his conclusion. When all of these matters were drawn
to Doctor Cameron's attention he gave further thought to the
best course to be adopted for S and having thought again, he
changed his mind. He concluded that S would almost
inevitably suffer educational neglect, that there was a real
danger that S would be emotionally pressurised; there was a
real danger that S could become the victim of sexual abuse
and there was a probability of his being physically
punished. He concluded:

"Regrettably the attitude of (mother) and The Family is
typified by secrecy and aloofness rather than by willingness
to cooperate voluntarily."

Now rather than wait and see:

"a strong recommendation is made that S's welfare would be
best promoted by his being transferred to live in the care
and control of his maternal grandmother."

He was recalled. He was embarrassed by his volte face. I
cannot be harshly critical of his changing his mind. This is
a difficult case and I make no secret of the fact that I
have had some difficulty in finally deciding what is best
for this young boy. Although Doctor Cameron's opinions are
always most useful, the important point of his evidence is
that this child would ordinarily be better off with his
mother to whom he has made his attachments and that I should
not remove him unless there are good and compelling reasons
to do so. It is at the end of the day for me to assess
whether or not those compelling reasons exist. Before
deciding whether they do or not, I must remind myself of the
law.

THE LAW

At the beginning of this judgment I reminded myself that S's
welfare was my paramount consideration. So it is, and so it
will remain. My decision is dictated by what I consider to
be in his best interests having regard to the facts I have
found to have been established, having regard to the risks
to which I judge he may be exposed in the future and having
regard to all the circumstances of the case including the
counter-balancing of fundamental human rights claimed by the
mother and claimed on behalf of the child. I shall need,
therefore, to address some of these matters in more detail.

1. The mother's "right" to bring up her son.

She claims, as do those who support her, to have "the right"
to bring up S free from interference from her mother, S's
grandmother, and free, moreover, from interference imposed
by the Court. It is an understandable enough reaction. Any
interference with the power which a parent possesses to
bring up his or her child strikes at the atavistic instinct
to nurture and protect one's young. Whether the parent has
such a "right", strictly speaking, is open to some
jurisprudential debate into which it would not be profitable
for me to enter. A fundamental purpose of the Children Act
was to deflect concentration from parental rights to
parental responsibilities and to emphasise that we do not
own or possess our children: parenthood's only purpose is to
bring them up to the best of our ability. I need no
persuading that the mother's primary submission that she, as
mother, is better able by nurture and by nature to care for
S than his grandmother, is a powerful one. It is a
submission which carries with it the backing of a number of
significant recent cases which began in the House of Lords
in Re: K.D. [1988] 1 A.C. 806 and has culminated in Re: "W"
(a Minor) (Residence Order) [1993] 2 FLR 625. There Balcombe
L.J. said:-

"There have been a number of cases recently on (the proper
approach of the Court) to which I think I ought to refer.
The first is Re: "KD" (cited above.) That was a case where a
young married mother of a Ward of Court had been stopped
access on the basis that the child was to be adopted by the
foster-parents and she appealed against this. One of the
matters which the Court had to consider was the fundamental
human rights of the mother as laid down by the European
Convention of Human Rights. There are two passages from the
speeches to which I refer. First, from the speech of Lord
Templeman where he says, in the context of whether there was
any inconsistency between the English rule about the welfare
of the child being the first and paramount consideration and
the European Convention:

"The best person to bring up a child is the natural parent.
It matters not whether the parent is wise or foolish, rich
or poor, educated or illiterate, provided the child's moral
and physical health are not endangered. Public authorities
cannot improve on nature. Public authorities exercise a
supervisory role and interfere to rescue a child when the
parental tie is broken by abuse or separation. In terms of
the English Rule the Court decides whether and to what
extent the welfare of the child requires that the child
shall be protected against harm caused by the parent,
including harm which would be caused by the resumption of
parental care after separation has broken the parental tie.
In terms of the Convention Rule the Court decides whether
and to what extent the child's health or morals require
protection from the parent and whether and to what extent
The Family life of the parent and child has been supplanted
by some other relationship which has become the essential
life for the child."

I have to say that when that passage is quoted, it is
usually the first few lines that are quoted and not the
second part of the passage, and I think it is important to
bear in mind the second part as well.

From the same case, the speech of Lord Oliver of Aylmerton
where he says,:

"If the child's welfare dictates that there should be no
access, then it is equally fruitless to ask whether that is
because there is no right to access or because the right is
overborne by considerations of the child's welfare. For my
part, I think the President's analysis in Hereford and
Worcester County Council -v- JAH [1985] F.L.R. 530, places
the emphasis perhaps too much upon the necessity of finding
a positive benefit to the child from parental access. As a
general proposition, a natural parent has a claim to access
to his or her child to which the Court will pay regard and
it would not I think be inappropriate to describe such a
claim as a "right". Equally, a normal assumption is, as
Latey J. observed in M v M (Child Access) [1973] 2 ALL E.R.
81, that a child would benefit from continued contact with
his natural parents. Both the "right" and the assumption
will always be displaced if the interests of the child
indicate otherwise."

Next in this line of cases is Re: "K" (a Minor) (Custody):
[1990] 2 FLR 64, where the contest was between the uncle and
aunt on the one hand, with whom the child had lived
immediately after his mother had committed suicide, and the
father on the other. Fox L.J. referred to the speeches of
Lord Templeman and Lord Oliver in Re: K.D. and he, himself,
set out the test in the following passage:

"The question was not where the child would get the better
home. The question was: Was it demonstrated that the welfare
of the child positively demanded the displacement of the
parental right. The word "right" is not really accurate
insofar as it might connote something in the nature of a
property right which it is not but it will serve for present
purposes. The "right" if there is one, is more that of the
child."

I am not certain that Fox L.J. in his paraphrase of the
speeches in Re: K.D. went rather further than he was
entitled to do, and for my part I would prefer the approach
in the same case OF Waite J. where he says this, after
referring to Re: K.D.:

"The principle is that the Court in Wardship will not act in
opposition to a natural parent unless judicially satisfied
that the child's welfare requires that the parental rights
should be suspended or superseded. The speeches in the House
of Lords make it plain that the term "parental right" is not
there used in any proprietary sense, but rather as
describing the right of every child, as part of its general
welfare, to have the ties of nature maintained wherever
possible with the parents who gave it life."

A little later in referring to the question that the Judge
in that case ought to have asked:-

"The question he ought of course to have been asking was:
are there any compelling factors which require me to
override the prima facie right of this child to upbringing
by its surviving natural parents."

Finally in the sequence one comes to the case of Re: H (a
Minor) (Custody: Interim Care and Control) (1991) 2 FLR 109
again in this Court. It is sufficient if I only refer to the
Judgment of Lord Donaldson MR at p.112 where he says:

"... I am slightly apprehensive that Re: K (a Minor)
(Custody) [1990] FLR 64 may be misconstrued as an authority.
It was being used by (Counsel) as if it were authority for
the proposition that fathers (or, as the case may be,
mothers) have parental rights in the sense of proprietary
rights. I think it is more important, if one is citing or
relying on Re: K to look at the Judgment of Waite J. of
which Fox L.J. would, no doubt, have been aware and with
which he would undoubtedly have agreed, not only in the
passage which Butler-Sloss L.J. has quoted, but also in the
succeeding sentence which reads as follows ..." and he then
quotes the passage which I have just mentioned. Lord
Donaldson goes on: "So it is not a case of parental right
opposed to the interests of the child, with an assumption
that parental right prevails unless there are strong reasons
in terms of the interests of the child. It is the same test
which is being applied, the welfare of the child, and all
that Re: K is saying, as I understand it, is that of course
there is a strong supposition that, other things being
equal, it is in the interests of the child that it shall
remain with its natural parents."

For my part I agree whole heartedly with what Lord Donaldson
says there, and I hope that it may be possible that this
divergence of views, if such it really is, can finally be
stilled. I would repeat what Lord Donaldson says. It is the
welfare of the child which is the test, but of course there
is a strong supposition that, other things being equal, it
is in the interests of the child that it shall remain with
its natural parents, but that has to give way to the
particular needs in particular situations."

Waite L.J. delivered a concurring Judgment in which he
said:-

"I agree. The authorities which had been cited by Balcombe
L.J. illustrate the difficulty of finding, within the
infinite variety of circumstances in which the welfare of a
child may fall to be applied as the paramount consideration,
some principle which does procure justice to the element in
the child's welfare represented by the advantage of
maintaining the ties of nature with its own parents. I agree
that the principle is best and more succinctly expressed by
Lord Donaldson in Re: H (a Minor) (Interim Custody) to the
general effect that the welfare of the child is indeed the
test, but there is a strong supposition, other things being
equal, that it is in the best interests of the child to be
brought up by his natural parents."

I direct myself accordingly.

2. The Court's Approach to Religious Controversies and Moral
Dilemmas:

Cases involving Jehovah's Witnesses, the Plymouth Brethren
and the Scientologists have been before the Court and the
factual circumstances in each case have inevitably varied
significantly. I can, however, obtain some help from that
line of authority.

In Re: "T" (Minors) December 19th 1975, Scarman L.J., as he
then was, said this:

"We live in a tolerant society. There is no reason at all
why the mother should not espouse the beliefs and practices
of Jehovah's Witnesses. There is nothing immoral or socially
obnoxious in the belief and practices of the sect. There is
a great risk because we are dealing with an unpopular sect,
in overplaying the dangers to the welfare of these children
inherent in the possibility that they may follow the mother
and become Jehovah's Witnesses."

More recently the Court of Appeal had occasion to consider
the Plymouth Brethren in Re: "R" (a Minor) (Residence:
Religion) [1993] 2 FLR 163. Purchas L.J. said this:-

"The Judge's approach to the fellowship, their beliefs and
rules is set out at the beginning of his judgment in these
terms: "The beliefs of this group of Christians are in some
respects relevant to this case, but I stress that I have
judged this case under the normal principles which apply in
these Courts to every case." I have no hesitation in saying
that that is an impeccable approach to this problem. It is
no part of the Court's function to comment on the tenets
doctrines or rules of any particular section of society
provided that these rules are legally and social acceptable.
... However, ... the impact of the tenets, doctrines and
rules of a society upon a child's future welfare must be one
of the relevant circumstances to be taken into account by
the Court when applying the provisions of Section 1 of the
Childrens Act 1989. The provisions of that section do not
alter in their impact from one case to another and they are
to be applied to the tests set out in accordance with the
generally accepted standards of society, bearing in mind
that the paramount objective is promoting the child's
welfare, not only in the immediate, but also in the medium
and long-term future during his or her minority. This is
well established. We will refer to the case of Re: T
(Minors) (Custody: Religious Upbringing) [1981] FLR 239
which among other matters held that:-

"It was not for the Court to pass any judgment on the
beliefs of the parents where they are socially acceptable
and consistent with a decent and respectable life; there was
no reason why the mother should not espouse the beliefs and
practices of Jehovah's Witnesses for there was nothing
immoral or socially obnoxious about them."


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