Salford CC v W & Ors (Religion and Declaration of Looked After Status)

A prohibited steps order restricting a child’s religious observance must be based on objective evidence and justified by the child’s best interests. The court must adopt a holistic welfare appraisal, including ethical, social, moral, religious, cultural, emotional and family considerations. Religious neutrality prevents the court from judging the comparative merits of mainstream faiths; the relevant question is the effect of the proposed practice on the child’s welfare.

Where a special guardianship order is intended to secure a child’s permanent integration into a family, a restriction on the special guardian’s parental responsibility requires good cause. The High Court also has jurisdiction to grant a freestanding declaration of fact under its inherent declaratory jurisdiction. It may exercise that jurisdiction where there is a real dispute, the declaration serves a useful purpose, all affected parties can be heard, and it is the most effective means of resolving the issue.

The proceedings concerned five children living with their maternal aunt and her husband, who all parties agreed should become their special guardians. The mother sought a prohibited steps order under Children Act 1989, s 8, preventing the children from receiving Roman Catholic sacraments until they were 16.

The proposed special guardians sought a declaration that the children had been looked after by a local authority for the purposes of Part III of the Act. That status was relevant to possible remuneration under reg 7 of the Special Guardianship Regulations 2005. The local authority argued that the issue should ordinarily be determined by judicial review in the Administrative Court. The questions were whether the religious restriction served the children’s best interests and whether this court should determine the freestanding declaration.

1. Religious upbringing. The mother’s application for a prohibited steps order was dismissed. The court’s paramount consideration was the best interests of each child under s 1 of the Children Act 1989. The order had to be grounded in objective evidence, and there was a high responsibility not to restrict parental responsibility without good cause.
2. The court adopted the holistic approach described in Re E (Education: Religious Upbringing) [2013] 1 FLR 677. It was not for the court to weigh one religion against another or determine the validity of religious beliefs. The relevant issue was the impact of the religious practices on the children’s welfare. Here, the children had participated enthusiastically in Roman Catholic religious life since 2017, identified with that faith, and wished to receive the sacraments. Preventing formal progression would risk exclusion, difference and emotional distress within their family and community.
3. The proposed restriction was inconsistent with the agreed special guardianship plan. A special guardianship order would confer parental responsibility on the special guardians to the exclusion of the parents, subject to existing court orders. In the absence of any religious practice causing welfare harm, restricting the special guardians’ decisions about religious observance would undermine the stability and permanence which the order was intended to secure.
4. The children’s wishes and feelings were not determinative, but were relevant in light of their ages and understanding and reinforced the welfare conclusion. The mother’s religious wishes were carefully considered but did not outweigh the children’s welfare needs.
5. Freestanding declaration. The court held that the High Court had jurisdiction under its inherent declaratory jurisdiction, subsumed in s 19 of the Senior Courts Act 1981, to determine whether the children were looked after. Applying Financial Services Authority v Rourke [2002] C.P.Rep. 14, Rolls-Royce Plc v Unite the Union [2010] 1 WLR 318 and Egeneonu v Egeneonu [2017] 4 WLR 100, the declaration could be made despite claiming no other remedy.
6. In the particular circumstances, the declaration would clarify a real and present dispute, serve a useful purpose, reduce delay and expense, and assist determination of the special guardianship support issue. The application was therefore adjourned so that Suffolk and Norfolk County Councils could be heard. The ordinary position, recognised in Re B [2014] 1 FLR 277, remained that a challenge to a local authority’s refusal of financial support would ordinarily proceed by judicial review.