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Louisa Gothard
Louisa Gothard
Senior Solicitor, Head of Family Law
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Blog - Race, Religion, Culture and the Children Act 1989
Date:6 FEB 2019
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Solicitor Kash Mahmood wonders whether Lady Justice's blindfold should be removed to see the world as she really is.

Since the 16th century, Lady Justice has often been depicted wearing a blindfold. The blindfold represents impartiality and to apply the law fairly and justly. However, Justice should not only be done but it should be seen to be done.
Those from a BAME (black, Asian minority ethnic) background who have gone through the family Justice system argue that justice cannot be done when those that assess, represent and ultimately judge the family are not from similar backgrounds. So should Lady justice blindfold be removed to see the world as she really is? 


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Diversity

Population diversity in the UK is as wide as it has ever been. British history is full of diverse people living in our lands. From the invaders of the Romans and Vikings to the immigration workers of the 60s and 70s.

The race riots of the 80s reinforced not only the differences but the problems we as a society had in dealing with such issues. It’s no co incidence that the Children Act was designed in the 80s and deals with one of the issues of the time and in this article I look at how race, religion and culture affected our community and the laws on the law relating to children.

In the 1990s, Britain's population grew by 4%. 73% of this growth was due to minority ethnic groups, and from 80s to 90 s there was an increase of 34 percent. The most recent Census in 2011 highlights that in England and Wales of a population of nearly 65 million, 80 per cent of the population were white British.

Asian (Pakistani, Indian, Bangladeshi, other) ‘groups’ made up 6.8 per cent of the population; black groups 3.4 per cent; Chinese groups 0.7 cent, Arab groups 0.4 per cent and other groups 0.6 per cent. To put it into context in 2001, 8 per cent of the UK population belonged to a non-white ethnic where as you can see today it is 20 percent

Race, religion or culture

The first question is what is the difference between Race Religion and Culture.

Race has many definitions, and some may say is an outdated concept when dealing with the modern world, not that it isn’t relevant but that classification of people into categorises defined by race in unnecessary. 

As a noun it can be an arbitrary classification of modern humans. It its arbitrary sense then we need to consider the importance of Race in context of religion and culture. Can you have religion and culture without race? Surely race is intrinsically based upon culture or is it the other way around. My point being is that whether you call it race or culture, or use both, is not the point. It is the understand of what the words mean, is important. For that I suggest we look at the other two.

Religion and culture are easily recognised. Religion is based upon a specific fundamental set of beliefs and practices which in the main religions are set down in holy books. Culture however is the behaviours and beliefs characteristic of a particular group.

There is a certain cross over because of the word beliefs and that is why this concept is hard to differentiate. Culture often occurs over a generation or so where the practices of a certain group of people become the norm. Most people consider a narrow-minded view of culture as tribes and how they live their lives. Whilst that may be true, it is also true of any society that has certain behaviours. Can we call the antics of the right wing fanatics, or the current problems where people are drawn to Syria to fight a holy war, as culture?

But an important question is why do we need to differentiate between the two?

One person’s religion is another person’s culture and can be just as important. But just as the example above, we are tolerant of others religion and beliefs but not fanaticism, even if they call it culture or, probably more correctly, a cult.

Seciton 1 of the Children Act 1989, often called the welfare test makes no particular reference to race, religion and culture but this is considered under section 1 (3)(d) …. Background and any other characteristic.

The point is that whether a characteristic or background ( as set out in the Children Act ) is a race, religion or culture, makes no difference. The importance is that we recognise that characteristic for what it is, important. That is why the Act didn’t define characteristic or background any further nor to include race religion and culture.

So where do we go

The issue is now we know what not to look for, we can look for the issues that matter. The family’s characteristic or background is based upon their upbringing.

It is vital that any tribunal, advisors and Cafcass officer is aware of that upbringing. The difficulty is that despite that population diversity, the diversity is not reflected in Family Justice , in particular the Judges, lawyers and Cafcass officers.

From my own profession and the Latest Law Society Diversity data: There has been an increase in the proportion of black, Asian and minority ethnic (BAME) lawyers working in law firms, now one in five lawyers. This is up 7%, from 14% in 2014 to 21% in 2017.

Christians form the largest proportion of all lawyers at 51% . Those who had no religion or belief (including those reporting as atheists) form the second largest group at 30%, up from 29% in 2014.

The next largest faith group is Muslim up from 5% in 2014 to 8% in 2017. The remaining faith groups are 3% for Jewish and Hindu groups, 2% for Sikh and other faith groups and 1% for Buddhist.

From the 80s onwards to the 21st century, those migratory families started to have children and those children had the difficult time of being born in England to immigrants. They were neither British or their parents’ culture. They were stuck in between. They were brought up as brutish because they lived here, but also not British by their parents who wanted their children to retain their heritage. Those children had a 50-50 identity crisis.

What was difficult to impose on those children was British culture when they had parents forcing their own. There is no one solution.

The other issue is that even when there are professionals available who can provide valuable insight, they are being ignored. Magistrates who sit are ensured there not just male or females so why not also consider ethnic diversity. Even as I have mentioned that the numbers are low, then should we look at positive discrimination so that where cases are brought before the tribunal which clearly have ethnicity issues then there should be a representative available, or positively promoted. Prior and in the 70s the large migration population either had no children or brought their children with them. The culture and identity was vital to them living in Britain at that time. The children were also imbedded in that culture

So I suggest we need to be the eyes for Lady Justice. Ensure that Justice is seen to be done, not in our eyes, but of those who we represent, assess and judge.