The child's religious identity, usually given at birth, is a product of social and legal mechanisms constituting group choice. The child's religious identity is determined from, or even before, its birth. This determination is recognized and given legal protection in certain cases. A newborn child clearly cannot choose his or her religion. So, it may be asked what is being protected: a right of the child or an interest of the community it was born into?
Generally, the child's religious identity bestowed on it by its parents is unquestioned. As long as the parents agree on the child's religion, no question is asked as to whether the choice of religion is in the best interest of the child (as long as it does not cause neglect). Only in cases of parental disagreement does the legal system ask if the religious choice of either parent stands in conflict with their child's best interests. Indeed, when one parent converts, the state may be prone to side with the parent who holds the religion into which the child was born.
When prospective adoptive parents are both of a different religion than the birth religion of the child, the question arises even more acutely: should children be adopted or fostered by parents of a different religion? Are those who oppose cross-religion adoptions protecting the child's interest to remain in his/her religion, or the group interest to maintain its membership? With a child old enough to understand his or her religious affiliation, it is understandably in the interests of the child not to add change of religion to the overwhelming change of the adoption itself. But an argument has been raised also against inter-religious adoption of infants, akin to the argument raised against inter-racial adoption. Generally, such arguments are voiced against adopting from a minority or disadvantaged racial or religious group. The argument can be seen as protecting an individual right - protecting the child from being denied its heritage - but should perhaps be seen as protecting a group interest of self-preservation. Such a group interest may stand in direct conflict with the interests of the child in a speedy adoption. For example, US federal law firmly opposes racial matching in adoption by prohibiting reliance on race to delay or deny adoptive placement by federally funded agencies. There is no similar prohibition on matching religious background in adoption.
International legal regulation, found in the CRC (Article 20(3)), mandates that, in placement of children, whether for adoption or foster care, due regard is to be given to the child's ethnic, religious, cultural and linguistic background. Article 8 specifically mentions a right of the child to preserve his or her identity.
Article 3 demands that the best interests of the child be a primary consideration in all actions concerning children. However, there is no clear indication as to how these provisions are to be translated into practice regarding adoption. Specifically, who can decide on the exercise of the child's right to identity: the parents, the adoption agency, the courts? And where is the child's right to identity to be placed among other considerations?
The UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief in Article 5(4) states that in the case of a child who is not under the care either of his parents or of legal guardians, due account shall be taken of their expressed wishes or of any other proof of their wishes in the matter of religion or belief, the best interests of the child being the guiding principle. There are no clearer international norms.
In the UK, until the Children Act 1975, consent to adoption could be given subject to a condition concerning the religion in which the child would be brought up. Even when a mother had reconsidered, after the placement of her child, and asked for the child to be returned to her so she could place the child with an agency of her religion, the Court of Appeal held that the court must give effect to the religious choice of the parent. This reflected a common law rule that parents (originally the father, or the mother of an illegitimate child) have a natural right to determine the religion of their children.
Following the 1972 report of the Houghton Committee, the Children Act 1975 abolished this possibility. The subsequent Adoption Act 1976 provided (in s. 7) that an agency shall, in placing a child, have regard, insofar as is practicable, to any wishes of the child's parents or guardians as to the religious upbringing of the child. Today, the Adoption and Children Act 2002 requires the adoption agency duly to consider the child's religious persuasion, racial origin and cultural and linguistic background (see s. 1(5)), although the paramount consideration is the child's welfare, and any delay in placing the child must be borne in mind as likely to prejudice the child's welfare (see s. 1(2), and (4)). A similar approach is taken by the UK Children Act 1989, which applies in other matters regarding the upbringing of the child (such as placement of children in foster homes by local authorities). Section 1(1) mandates that the welfare of the child shall be a paramount consideration. Section 22(5)(c) mandates that a local authority give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.
Even prior to the 2002 Adoption and Children Act, English courts have taken into consideration the perspective adopted children's religious, and other, background. If there are suitable adopters of the requested religion, they will be preferred. But the English courts have seen the welfare of a child as a consideration that can prevail over the religious convictions of the parents/parent if there are no suitable adopters of the required religion. For instance, in Re C (Adoption: Religious Observance) the High Court accepted that parents' religious wishes should be taken into account, but their wishes should be weighed against the child's need for a stable, loving environment and other emotional, cultural and religious needs. The legitimacy of the consideration of religious background itself was not questioned.
It is unquestioned by the courts, in the cases that will be discussed, and indeed follows the statute, that a child, even a baby who is clearly not yet attached to any religion, should preferably be placed with a family of his or her religion of origin. There is no discussion in case law of why this is so, or what interest is served by including this consideration.
The effect of such as consideration can be beneficial, but can also sometimes be detrimental to the child. In some cases in which there is difficulty in finding religiously matching adopters, the child remains in foster care, delaying or even preventing adoption. This was the case in Re E (An Infant), in which wardship proceedings were at issue. A previous decision had accepted the mother's religious belief that the child must be brought up in a family of a particular religion as a valid reason for her refusal to consent to adoption (hence the wardship proceedings). Even though the case concerned a baby a few months old, the court held that great significance should be given to the wishes of the mother as to the religious upbringing of her child, but not when the child's welfare requires otherwise (as in the case at hand). Thus, wardship was continued. But, because of the previous ruling, the child could not be adopted, which, other than for reasons of religion matching, would have been the preferable option for the child's welfare.
Apart from the practical consequences of recognition of parents' refusal to agree to a cross-religion adoption, there appears to be a lack of clarity as to what rights are involved. In Re P (A Minor) (Residence Order: Child's Welfare), a daughter with Down's syndrome, of Orthodox Jewish parents, was placed with a non-practising Christian foster family. In deciding whether to vary the residence order, Butler- Sloss LJ cited as the primary consideration the welfare of the child. In this case, the child's need for a settled life outweighed the religious considerations. But through the balancing of considerations an important question arose, whether the insistence of the parents that the child would be placed only with a Jewish family was meaningful, as her capacity to understand her religious affiliation was not expected ever to surpass that of a 10-year old. This factor led the lower court to reject the parents' challenge to the placement, finding that she was unlikely to have any real perception of her Jewish heritage.
The Court of Appeal accepted this reasoning (although mostly its decision was based on the other factors weighing heavily in favour of the placement). However, it can be asked, why should it matter at all, as a consideration for placement, whether a child will be able to understand (in the future) his or her religious affiliation? If the right invoked in support of this consideration is a right of the child to enjoy his or her religious affiliation, then a placement of a small child for adoption is never an exercise of this right, as there is no exercise of choice involved. This is true of any small child, whether he or she will be able in the future to understand his or her religious identity or not, as it is an identity which was chosen for him or her. By the same token, if what is invoked is a right of the parents that their child will continue to bear their religious identity, then placement within their religion is always an exercise of this right, whether or not the child will ever be able to understand this identity.
In Re P, Ward LJ, concurring, agreed with the analysis of Butler-Sloss LJ, which weighed religion as one factor in determining the welfare of the child. He added to the welfare analysis a rights analysis, mentioning that children have rights in international conventions ratified by the United Kingdom. The conventions 'may not have the force of law but, as international treaties, they command and receive our respect', he said, referring specifically to Article 14 of the Convention on the Rights of the Child (guaranteeing freedom of religion). He called it 'a right to practise one's parents' religion'. There is a confusion in this rights analysis between the rights of the child and the rights of the parents. The assumption that the child, who is not choosing the religion of his or her adoptive parents, is in some way exercising his or her own right by being given the opportunity to practise his or her parents' religion, is telling. In fact, what is protected in this case is an interest of the biological parents to have their children brought up in their religion, even when they will be raised in a different family.
This may be an interest worthy of protection or even of recognition as an independent right, but it is certainly not a right protected by the Convention, which protects rights of children. But there is a pivotal difference between adoption into a family of a different race and adoption into a family of a different religion. Parents could bring up a child within a racial/cultural identity different from their own, more or less successfully, as the case may be. But religion has to be believed in. Parents could respect the different religion of the child, but they could not play the parental role inherent in the doctrines of many religions, unless they themselves believed in it. This problem is shown by the Re E case: it was suggested by the unsuccessful prospective adopters, who now wanted to be granted custody of the child, that they would bring the child up according to the Roman Catholic faith, even though they were secular, of Jewish descent. This proposal was understandably rejected by the court, which saw the inevitable meaning of placement with this family, namely that the child would not be raised as a Catholic.
It would be better to acknowledge the existence of an argument supporting matching that is separate from any measure of psychological adjustment in adoption. This argument is based on a claim of a right of belonging to a defined community, whether defined by religion or by race. This raises two further distinct questions: whether such a right is conceptually possible and whether it exists within international human rights law, and criticisms on both counts have been raised earlier. Such an argument could also be construed as an argument for a right of the parents or of the community to which the child was born. Sometimes, it may be legitimate to consider group interests in adoption placement, particularly in cases where the survival of the group is at stake.
Protection of religious identity is rarely protection of the exercise of individual choice. Religion is usually assigned at birth: it is determined more by heredity than by any process of conscious choice. What is protected is affiliation usually, determined not even by an active choice of parents but by their own membership in a religious group. This is seen most clearly when the retention of original religious identity is stretched to its limit - in the case of adoption. In this case, the child no longer belongs to a particular religion as part and parcel of belonging to the birth family. The social perception that values retaining the child's religion in adoption protects neither choice nor family connections, but a predetermined identity.
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