Exercise of Inherent Jurisdiction under Article 173 for Religious Upbringing of Children in Care

Introduction

This commentary examines the Court of Appeal in Northern Ireland’s decision in A Health and Social Care Trust v A Mother & A Child’s Court Guardian in the matter of SE (a child aged 5 years) [2024] NICA 78. At the heart of this appeal is the Trust’s application—under Article 173 of the Children (Northern Ireland) Order 1995—to invoke the High Court’s inherent jurisdiction to determine the religious upbringing of SE, a five-year-old girl in foster care subject to an interim care order. The key issues were:

Whether, and to what extent, the Trust could seek declaratory relief under its inherent jurisdiction to authorize religious activities for SE;
How the court should balance the child’s best interests, the mother’s agnostic beliefs, and the foster carers’ Pentecostal practices;
The scope and limits of Article 173(3)(b) (likelihood of significant harm) as a gateway to inherent-jurisdiction relief;
The interaction of domestic statutory duties with Articles 8 (private and family life) and 9 (freedom of religion) of the European Convention on Human Rights (ECHR).

The parties included the Health and Social Care Trust (applicant/respondent), SE’s mother (respondent/appellant), and SE’s Court Guardian (notice party). The High Court (Family Division) granted the Trust’s application for declaratory relief on 30 May 2024, and the mother appealed to the Court of Appeal.

Summary of the Judgment

By a unanimous judgment, Keegan LCJ and McCloskey LJ (with Kinney J concurring) affirmed Mr Justice McFarland’s order granting the Trust declaratory relief under its inherent jurisdiction. The operative declaration permitted SE to participate fully in the foster family’s religious practices—Sunday services, church social events, prayers, hymns, Bible stories, grace before meals and summer camps—on the basis that:

No other statutory remedy could prevent imminent placement breakdown and avoid disruption to SE’s schooling and emotional stability;
There was reasonable cause to believe that, absent court intervention, SE would suffer significant emotional harm by being uprooted from her settled placement;
On a holistic welfare analysis—paramount under Article 3 of the 1995 Order—the child’s best interests favoured continuity and stability, including participation in the carers’ religious life.

The appeal asserted (1) an impermissible focus on the mother’s contact failures, (2) disproportionality of the broad order, and (3) inadequate weight to the short-term nature of the placement. The Court of Appeal rejected each ground, finding no error of law or principle.

Analysis

Precedents Cited

Article 173 framework: SV (A Minor) v PV & Anor [2023] NICA 41—underscoring the sparing use of the High Court’s inherent jurisdiction when statutory powers suffice.
Religious upbringing in care:
- Re T [2001] NIFam 4—foster carers of one faith proposed to adopt a child of another; court exercised inherent jurisdiction under welfare paramountcy.
- Re P [2000] Fam 15—Ward LJ: right to practice religion is subordinate to a democratic society’s duty to put child welfare first.
- Re G [2012] EWCA Civ 1233—Munby LJ’s holistic welfare appraisal, including religious, cultural and moral considerations.
- Re A and D [2010] EWHC 2503—Baker J: local authority’s religious‐persuasion duty (mirror of Art 52(6)) is subject to overriding welfare duties under Children Act.
Convention rights and care/adoption:
- Strand Lobben v Norway [2019] ECHR 615—Grand Chamber: adoption severs family ties only in very exceptional circumstances; decision-making must genuinely balance child’s interests and biological family’s rights.
- Ibrahim v Norway [2021] ECHR 1060—article 9 applies to parental convictions; article 8 analysis must be “in the light of article 9.”
- AU v Belfast HSC Trust [2024] NICA 1—positive obligations under article 8 to promote family life and proportionality in contact suspensions.

Legal Reasoning

The Court of Appeal’s reasoning unfolded in three stages:

Statutory gateway (Article 173(3)):
- Could the Trust achieve its aims through any other order? No statutory order could guarantee stability or prevent placement breakdown while allowing religious engagement.
- Was there reasonable cause to believe SE would suffer significant harm? Yes—evidence showed that moving SE would disrupt her schooling and emotional well-being.
Welfare appraisal (Paramountcy principle):
- The judge applied the welfare checklist (Art 3(3) 1995 Order) and took a “holistic approach” (Re G). Stability in school, foster attachment, and emotional security outweighed the mother’s agnostic preference.
- Short-term placement status was considered but did not override welfare imperatives in the absence of alternative carers with known religious backgrounds.
- The mother’s erratic contact—driven by mental health vulnerabilities—was a relevant material consideration.
Convention rights (Articles 8 & 9 ECHR):
- Article 8: No breach of the mother’s family-life or private-life rights—SE’s placement and contact arrangements had been proportionate, transparent, and subject to periodic review.
- Article 9: The mother’s agnosticism is protected belief, but enjoyment of article 9 rights may be limited when the child’s welfare and stability outweigh parental preference. There was no coercion, no adverse effect on SE, and the mother remained free to convey her beliefs at contact.

Impact

This decision establishes authoritative guidance on:

The precise application of Article 173 inherent-jurisdiction relief to religious-upbringing disputes involving interim care orders;
The necessity for a rigorous, fact-sensitive welfare appraisal that properly weighs stability and harm against parental convictions;
The limited ambit of Articles 8 and 9 ECHR where a child’s settled placement and best interests are at stake;
The Court’s margin of appreciation in resolving conflicts between parental religious preferences and foster-care realities;
The procedural importance of leave applications under Article 173 and the requirement for demonstrable statutory necessity and risk of significant harm.

Complex Concepts Simplified

Inherent jurisdiction: The High Court’s residual power to fill gaps in statutory frameworks when a child’s welfare demands it.
Declaratory relief: A court order that declares the legal position (here, the lawfulness of religious arrangements) without imposing enforcement orders.
Interim care order: A short-term court order placing a child in care, carrying the same religious-upbringing restriction (Art 52(6)) as a full care order.
Article 173(3)(b) test: Two-fold gateway for declaratory relief—no statutory alternative and a real risk of significant harm.
Paramountcy principle: Under the Children (NI) Order, welfare of the child is the court’s overriding consideration.
Welfare checklist: A non-exhaustive list of factors (wishes of the child, parental capability, cultural background, etc.) to guide best-interests decisions (Art 3(3) 1995 Order).
Margin of appreciation: The latitude granted to domestic authorities by the European Court to balance competing interests, especially in care contexts.
Positive vs. negative obligations: States must refrain from unjustified interference (negative) and sometimes take active steps (positive) to secure Convention rights.

Conclusion

This landmark judgment clarifies the scope of the Trust’s inherent jurisdiction to obtain declaratory relief under Article 173 of the 1995 Order, firmly anchoring any intervention to the twin requirements of statutory necessity and risk of significant harm. It reinforces the paramountcy of the child’s welfare—assessed holistically and sensitively balanced against parental religious or philosophical convictions. The decision offers a clear procedural and analytical roadmap for future disputes over religious upbringing in foster care and underscores the measured application of Articles 8 and 9 ECHR in the best-interests calculus.