The ‘no-go area’ is a relatively modern judicial construct. The classical position is that while courts don’t ‘animadvert’ (Lord Eldon’s lovely word in A-G v. Pearson, 1817) upon the merits of a religion, they WILL inquire into that religion and its propositions when that is necessary to doing justice in a matter before them – entitlement to property, marital status etc. Expert evidence was the usual solution, and the judge in this case does at least hint at that possibility in para 38, though admitting that he hasn’t heard any. I suspect that the judiciary who have shied away from religious tenets in some recent cases have been so frightened of offending believers’ sensibilities, or of an extended reading of ECHR Article 9 in Strasbourg, that they have rather forgotten the altogether more important Magna Carta 1297 Art. 29 (‘We will not deny or defer to any man either justice or right’).
However, perhaps because of the absence of such expert evidence, I do rather wonder whether the judge’s sharp distinction between baptism and confirmation in the practice of the Church of England is justified. The child is clearly able to answer for herself in baptism, and so will make there the profession of faith which those baptised in infancy make at confirmation. When she reaches 16 she will be eligible for enrolment on the church electoral roll even if unconfirmed (in saying this I’m assuming, from the reference to the Area Dean of Redbridge in para 31, that she lives in England rather than Wales). When ‘ready and desirous to be confirmed’, even before 16, she can become a regular communicant. There is nothing particularly magical about the imposition of episcopal hands that would change her level of involvement in church life. And unless things have changed dramatically since the days when I conformed to the Church of England, 13 is a more normal confirmation age than 16. I wonder therefore whether clause 2 of the Judge’s Order serves any good purpose.
