England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL CIVIL DIVISION
ON APPEAL FROM BATH COUNTY COURT
(His Honour Judge Ticehurst)

		Royal Courts of Justice The Strand London WC2 Thursday, 22 August 2002

LADY JUSTICE HALE:

1. This is listed as the father's application for permission to appeal, with the appeal to follow if permission is granted, against specific issue orders made by His Honour Judge Ticehurst in the Bath County Court on 18 July 2002 in relation to the education of three children: C aged 12, E aged 10 and G aged 8. The matter is urgent because the order provided that all three children should move from their present schools for the new school term starting in September.
2. Given that we have spent the best part of the morning arguing the merits of this matter, it seems unrealistic not to grant permission to appeal. I turn, therefore, to the appeal itself.
3. The background is that the parents were married in 1988. They separated in March 2000. The children remained with the mother in the former matrimonial home in a village in the west country, the father living elsewhere in the same village. There is no residence order; both parents retain parental responsibility unaffected by such an order.
4. There is a consent order providing for the children's contact with each of their parents, made in April 2001. Basically it provides that they should spend alternate weekends, Friday to Monday, and also overnight every Wednesday with their father; three weeks with each parent during the summer holidays; one week with each parent during the Christmas and Easter holidays, alternating the Christmas holiday year by year, with the mother having Christmas 2001 and the father having Christmas 2002 etcetera, and similarly the Easter holidays, with the father having Easter 2002 and the mother 2003, etcetera. The order went so far as to provide that they should have Mothers' Day with their mother and Fathers' Day with their father. There was provision open for telephone calls, letters and e-mails and for variation for specific functions for the children's and the parents' wishes. In other words, the order was a model of sharing, save that -- and this is a very important aspect -- that the mother has the lion's share of the weekday responsibility during the school terms. It is clear from the papers that the mother regards herself as the children's primary carer. On material before us, that seems to be correct.
5. In July 2001, the mother applied for a specific issue order that she should decide which schools the children should attend. I have to say that is not usually the object of a specific issue order. The family lawyers amongst us will know that the whole purpose of having specific issue orders is to decide the issue and not to give the right of exclusive decision to one parent or the other.
6. There was a two-day hearing before His Honour Judge Meston QC, which provided for the two younger children to attend the primary school which they currently attend. This was the mother's then preference based on her then plans to move to a village near that school and to train with a view to becoming a primary school teacher. The father's preference had been for the school which was local to the village where they were all still living.
7. As far as C was concerned, the order provided that he should go to one of two named state secondary schools unless satisfactory arrangements could be made for him to continue at the private school which they had all attended up until that time. The mother agreed to his remaining at the private school, even though the other two children were going to have to enter the state sector, because his common entrance year was coming up; but only provided that the father could fund that year. It so happened that the father did manage to fund that year.
8. There was an ancillary relief order made in November 2001 by consent. So far, therefore, apparently not so bad as far as court proceedings were concerned.
9. However, war broke out between the parents again this year. In May the mother applied to have the ancillary relief order set aside. That application was dismissed on 4 July this year. The consequence was that she received £102,000 from the sale of the matrimonial home and the father some £92,000 plus a pension, he having benefitted from an increase in the value of the former matrimonial home.
10. In June the father made an application for C to continue at his present school for a further year, with a trip to Florida in January 2003. He also made an application for a variation of the contact order in such a way that the children would be spending some of each day with him, apparently being ferried to and fro for the most part by the mother. On 4 July the mother applied for a specific issue order to change the other children's schools.
11. It is apparent from this history that these parents are still at odds about the future, no doubt pursuing an agenda which is not wholly concerned with their children's best interests. This court has to be concerned with what will be best for the children, considered both individually and collectively, and in the light of the factors listed in section 1(3) of the Children Act 1989.
12. I turn, therefore, to the specifics of the present application, dealing first with the oldest child, C. He was born in December 1989 and so is 12 and a half. He has just completed his final year at a Preparatory School, in a village near Shepton Mallet. He is a year ahead of himself. He has already secured a place with an all rounders' 25 per cent scholarship at the Kings School in Bruton.
13. The father wanted him to do a further year at prep school, coupled with the month in Florida, in order to allow his chronological age to catch up with his educational age, as recommended by his headmaster. It would further give him the opportunity of going on to Kings as planned, but with the possibility of a full 50 per cent scholarship.
14. The mother wanted C to transfer now to the state sector to the Blue School in Wells where he would eventually be joined by the two younger children. It is, as I understand it from the papers, included in a letter from the father common ground that the Blue School is the best state secondary school available locally. The judge made an order to that effect.
15. As far as the two younger children are concerned, E was born in September 1992, and so is nearly 10. G was born in February 1994 and so is 8 and a half. They had originally also been at the prep schools, but on the breakdown of the parents' marriage, it was questionably possible to continue to fund any of the children there, and certainly not possible to afford all three in the private sector. It was clear, therefore, that the two younger ones were going to have to transfer to the state sector.
16. The order that was made last July was that they should go a school which, as I have said, was stage close to the village to which at that stage the mother proposed to move. They started there last September. The mother now wants them to move to the Wells Central Primary School, whereas the father wants them to stay where they are. The judge made an order that they should move.
17. The effect, therefore, is that all three children should move to schools in Wells, C from the independent sector, where he has been all his school life, and the others from a state school to which they transferred only a year ago.
18. Given that the one of the factors in the welfare of children listed in section 1(3) is the effect upon them of any change, one would normally require compelling reasons for such disruption in the lives of children which have already been disrupted by their parents' marriage breakdown, and the loss of the home which they enjoyed, which must have been a substantial home albeit without the benefit of television, in a no doubt attractive village.
19. What are the reasons justifying such a change? There are general reasons applicable to all of these children which arise from a straightforward commonsense approach to the situation. The mother has changed her plans from those that she made before the resolution of the ancillary relief proceedings last year. She has decided to move to the city of Wells. She has actually now, I am told, done so. The children live with her on most of their school days. It makes good practical commonsense for the children to have much shorter travelling distances. We are told that the round trip from Wells to the village school is some 40 minutes. That means that the children are travelling 40 minutes a day and the mother is travelling 80 minutes a day.
20. Primary school children generally, although if they are in the private sector often do not, live within close proximity to their school. This is partly so as to cut down on the amount of travelling that they have to do, which is very tiring for children, let alone their parents, and partly so that they can make friends locally and conveniently engage in out-of-school activities. Also a factor which operates in a great many cases, when in due course they have to move to a secondary school, they have a reasonable confidence that some of their primary school colleagues, hopefully friends rather than enemies, will be moving with them to the same secondary school. A child who has to move to a secondary school with no friends and no colleages from the previous school, can often suffer a disadvantage.
21. The judge did not refer to any of those general factors, although I accept Mr Reddish's argument that in relation to the younger children he certainly did not reject the arguments based on proximity, both from the point of view of the children and from the point of view of the parent who bears the responsibility of looking after those children, getting them to school and combining those heavy responsibilities with the responsibility of earning enough money to support them, subject, of course, to the contribution made by the father both to the Child Support Agency and through his own periods of looking after the children which, as I have already said, are considerable.
22. The judge concentrated more on the longer term security and stability of all three children, coupled with the specifics. In C's case, there was a concern as to whether the fees for continued private education were affordable. The mother was concerned at the father's cavalier attitude towards money, which was based partly on some late payments of child support liability and accumulated debts at the time of the ancillary relief proceedings, and also from the overall picture, which was described by Judge Meston in July 2001, as bleak. Judge Meston is a very experienced judge in assessing family finances. If he called it a "bleak" picture, I have no difficulty in accepting that it was.
23. His Honour Judge Ticehurst was not satisfied that there was a sufficient guarantee that the income would be there to provide for the education which the father wanted. The uncertainties for C of not knowing whether he could remain year-on-year and have his expectations fulfilled would create difficulties for C, undermining his emotional and educational development. There was also a concern about the differential treatment of C and the two younger children. This was unhelpful to the stability of the family as a whole. C would, in essence, need to know where he was going to be educated where he was going to live and how his education would be provided for. It was for that reason that the judge decided that he should move now.
24. As far as the two younger children are concerned, they would have to move schools in any event in the future. That is trite; primary school children have to move on to secondary school. If C was going to the Blue school in Wells, they would have to live in the catchment area. The judge then went on to say that their present school in Kilmersdon was not in the designated area for the Blue school and this raised a question mark over whether they would be able to go to the Blue School. As all the children needed certainty and security, he concluded:

"Whilst a further move at this stage is not altogether the best, I consider it is the least worst situation."

25. The arguments put forward on behalf of the father on this appeal concentrate principally on the general point that it is odd that the argument for stability and certainty, which obviously influenced the judge very considerably, should lead to moving schools and changing plans decided upon with some difficulty only a year ago. The explanation for that, however, is that the judge was concentrating on the longer term stability and security of the children and looking at the family as a whole.
26. The father's argument in relation to C is that the judge ignored all the evidence about what was in his best interests educationally. C is obviously doing extremely well in the private sector and has good prospects there. The parents had originally wanted this for him, and the mother had been content that he should be singled out to continue in the private sector last year. Indeed, it is said that she had investigated the possibility of his going to Downside after leaving prep school rather than Kings Bruton.
27. The other argument, on which time has been concentrated today, is that the judge gave too much weight to the financial problems and the father, who was acting in person, was not given the opportunity to clarify the availability of funds. We now have evidence that the father has put his solicitors in funds which will enable the coming year's fees at prep school to be met and also the first year's fees at Kings School in Bruton.
28. That argument is met on behalf of the mother with very considerable scepticism. She asks, as indeed did Thorpe LJ when listing this matter, if it was the case that the fees could be afforded, why was this not done or proper evidence that it could be afforded submitted at the time the father made his application? Why was it left until after that application had failed?
29. The mother is also concerned that the father has acknowledged debts to the Inland Revenue and to the social security fund in relation to his previous business. It is by no means clear what those debts are. But without a full financial statement, backed up with evidence, the mother is sceptical that even the funds currently lodged with the solicitor will indeed be available to meet the fees. It is common ground that the father does not currently have sufficient income to provide for the fees. The money paid to the solicitor was paid from the proceeds of sale of the matrimonial home.
30. The judge was quite right to say that there is not sufficient income to meet the fees, either now or in the future. We have no evidence of the father's prospects of generating such an income in the future. We have some evidence that the father has from time-to-time expected the mother to make contributions towards the school fees. That, it seems to me, is completely unrealistic. The mother is having to establish herself in separate living accommodation and to get herself back into employment after a hiatus of some years. Neither of these are easy things to do, and she has to do all that while taking primary responsibility for the children.
31. There has been some suggestion that the father's parents will fund the education. Again, there is no evidence from them of any promise to do so. There is some suggestion in the papers that they feel that they have already been of considerable financial help to this family, and that it is now for the parents to sort out the difficulties arising from the break up of their marriage. One cannot, of course, rule out that grandparents, who have the resources to do so, will, in the last resort, try their hardest to rescue the parents from the problems in which they find themselves. We do not have evidence to suggest that this is a reliable and long term prospect.
32. All of those factors lead one to agree with the judge in his assessment that there is not sufficient income to ensure that this is a stable situation for C throughout his educational career. If he is going to have to move into the state sector, clearly now is the time for him to do it. It would be wrong to raise his hopes of a continued future in the private sector and to jeopardise his successful integration into the different timetable of the state sector by delaying any further.
33. It is, of course, the case that each child has to be looked at separately. If one looked at what was individually in C's best educational interests at the moment, one might conclude that it was better for him to stay where he was. I am also prepared to assume that he would prefer to stay where he was. That does not mean it is not in his long term best interests to make the move now, and also no longer to be singled out, as the oldest and possibly the ablest child, for preferential treatment from his other siblings. I put that at a lower priority than the general factors.
34. As far as the younger children are concerned, again the main argument is that the mother asks the court to adopt what she now describes as her settled plans. She has changed those in every respect. It is very bad that these children, who have had enough difficulty with the previous change of school, are expected to change yet again.
35. That has to be set against all the factors relating to where the children's lives in the future will be. They will be in Wells, living during school days with their mother. All the reasons why it is convenient for primary school children to be near to their school will apply to them. There will also be the factor that they will be going on, one hopes, to the Blue School in due course and join their brother there.
36. The one point which is troubling is that the judge was undoubtedly wrong to give weight to the factor that their continuing at the village school was likely to put at risk the chances of their attaining places at the Blue School in due course. That appeared inconsistent with the fact that C, living in the catchment area, has attained such a place. In general, allocation of places at a state school is governed first by parental preference; and then if a school is over subscribed, by a range of factors which include proximity and siblings already attending the school. These factors would rate highly in their prospects of going on to the Blue School wherever they now are.
37. Nevertheless all the other factors which lay behind the judge's overall consideration of what would be in the best interests of this family as a whole continue to apply. Therefore, whilst acknowledging the force of many of the points made by the father, very ably urged on his behalf by Miss O'Neill this morning, I am very far from persuaded that the judge was plainly wrong in the exercise of his discretion in this case.
38. The plain fact of the matter is that this was a family which appears to have enjoyed a good standard of living with all three children at private schools until the break up of their parents' marriage. Both parents have now to accept that their standard of living, circumstances, everything about their lives will have to be downsized. That includes the education of their children. The important thing therefore is recognise that and make the best possible arrangements. My impression from the papers, and from everything else, is that the mother has recognised that, and the arrangements she proposes for the children are making the best of what, no doubt, both parents would regard as a bad job in relation to their children's educational future.
39. For those reasons, I would dismiss this appeal.
40. LORD JUSTICE KEENE: I agree.
ORDER: APPEAL DISMISSED