Whither White Western Values? Comparative Perspectives on Culturally Motivated Decision-making for the Child

Date01 January 2007
Author
Whither White Western Values?
Comparative Perspectives on Culturally
Motivated Decision-making for the Child.
MÁIRÉAD ENRIGHT*
Introduction
Carriére, writing about representations of Native American families in US
law says that they are treated, “not as a subject, but as the object of Euro-
American knowledge; not as speaking, but as spoken about by a Euro-
American subject; not as self-def‌ining, but as def‌ined”.1This article is about
the definitional force of law in cases involving members of religious or
cultural minorities. In particular, it is about those cases where the courts
make decisions on behalf of a child, against the wishes of parents who
would prefer a different decision on religious or cultural grounds. It is about
how the courts portray the parents whose place they have taken. By
exploring in particular the American jurisprudence on the cultural defence,
this article presents three models for the judicial presentation and analysis
of cultural beliefs in cases where culture is cited as a justif‌ication for conduct
otherwise considered unacceptable by the majority culture.
The article begins with an analysis of the Irish law on decision-making
for the child with a view to exposing the law’s message of moral con-
demnation for parents who make dangerous decisions for their children on
the basis of faith or tradition. Next, the article discusses two models of
dealing with cultural issues in controversial cases: cultural avoidance, where
the case is decided without any reference to cultural considerations, and
cultural absorption, where cultural differences are tackled by analogy with
more neutral concepts already established in the Western legal schema. In
the final section, the article proposes a third model; that of cultural
accommodation, which aims to present cultural issues in child law cases in
a less pejorative and more authentic way.
* Máiréad Enright BCL (NUI), MA (Lond), Barrister-at-Law is a lecturer in law at the
Manchester Metropolitan University. Thanks to Fiona de Londras for helpful
comments on this article. This article was originally presented as a paper at the
Society of Legal Scholars Annual Conference in 2006 and a revised version was
presented as part of the MMU Law School Occasional Papers Series.
1Carriere, “Representing the Native American: Culture, Jurisdiction, and the Indian
Child Welfare Act” (1994) 79 Iowa L Rev 585, 591
The Irish Law on Intervention in Parental Decision-Making
An Irish court’s judgment in overturning a parental decision has explicitly
moral overtones. In the first place, it is an extremely serious thing for an
Irish court to make a care decision for a child who is in the care of his
parents. A policy of non-interference permeates Irish law on the family so
that judicial interference is always exceptional. Instead, the courts’ proper
role is seen as the protection of the family in its constitution and authority.2
Articles 41 and 42 of Bunreacht na hÉireann accord exceptionally strong
rights to the family unit. Article 41 describes the family as the natural,
primary and fundamental unit group of society. The rights afforded to it are
inalienable and imprescriptible, antecedent and superior to all positive law.
The Irish child’s parents are charged by the Constitution with his welfare,
his care and the protection of his rights. Accordingly, the courts find a
strong constitutional presumption in favour of the parent as the child’s chief
decision-maker.3According to Article 42.5 of the Constitution, it is only in
those exceptional circumstances where that presumption is rebutted, that
the courts may step into the breach and make an alternative decision for the
child, based on his best interests. In cases of this type, then, the Irish court
acts as a default parent, rather than as the supreme parent contemplated at
English law.4
When will the presumption against interference in a parental decision be
rebutted? It is clear that the mere existence of an alternative decision, closer
to the child’s objective best interests, is not enough to rob a parent of his
2In re JH (inf) [1985] IR 375, 394 per Finlay CJ
3North Western Health Board v HW and CW [2001] 3 IR 622 per Hardiman J
4It is true that, in practice, English courts rarely exercise their power as courts of
parental appeal and that a great violence is done to the integrity of the individual
family when that power is used against them. Nevertheless, as a matter of law it is no
great insult for an English father or mother to f‌ind themselves over-ruled by an English
judge. First, the courts’ power of intervention, arising as it does under the parens patriae
jurisdiction, is wide, “theoretically limitless” even. It is not conf‌ined to cases of life or
death or cases of wilful inf‌liction of gross injury on one’s child. Legally, it is not such
a black mark against a parent to find themselves within the ambit of this power.
Second, parents are, at best, bit players in intervention cases. In England, since J vC
([1970] AC 668) it has been clear that the welfare, or best interests, of the child form
the sole and determinative issue in cases of this kind. When a British court overturns
a parent’s medical decision for his child, what it says to him is; “all in all, you have
not made the best available decision for your child consistent with our view of his
interests”. The court’s view usually identifies the child’s interests primarily, if not
exclusively, with clinical welfare eg Re C (a minor) (medical treatment) [1998] 1 FLR
384, In re T (a minor) [1997] 1 DPP 242. (even though the course of action favoured
by the parents was contrary to medical opinion, the parents were articulate health
professionals with experience of caring for very young, ill children) Parental
involvement with the concept of welfare is minimal. UK cases, as a matter of law, are
not moral judgments about parents. In a way, the individualised, de-contextualised
manner in which UK law presents child welfare de-problematises the parental
decision. Parents are written out of the equation. The cases are not about them.
2MÁIRÉAD ENRIGHT

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