England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HUDDERSFIELD COUNTY COURT
(HIS HONOUR JUDGE BARTFIELD)

		Royal Courts of Justice Strand London WC2 Monday, 11th March 2002

Monday, 11th March 2002

1. LORD JUSTICE THORPE: The parties to this appeal are respectively the father, the mother and the guardian ad litem, of a little boy named U. He will be ten next month. His father is a committed Moslem. Although born in this country he comes of a family of Pakistani origin. He is the youngest of nine and the only male in his generation. He was born in 1971. The mother was born in 1976 of an Indian Moslem father and an English mother. Her parents separated when she was young and she has been effectively brought up by her mother and her English stepfather, who is, in every sense, her psychological father. She conceived when she was only 15 and U was born when she was 16. At that stage she was extremely young and vulnerable and entered into arrangements and commitments which she was quite unable to live through. She converted to Islam. She agreed that U should be brought up in that faith and to her credit she has since done her best to abide by the consequences of commitments which she now, with her greater maturity and understanding, concedes to have been fundamentally misguided.
2. The parties all live within a relatively small confine. The mother lives about two miles away from U's school and the father is much closer, only about half a mile from the school. Half a mile beyond his home, and a mile from the school, lies the mosque. The arrangements prior to April 2000 was that U attended mosque principally for teaching four days a week: Friday and Saturday whilst in his father's care, and Tuesday and Thursday whilst in his mother's care.
3. We have been furnished with a full chronology which shows that the arrangement for Tuesday and Thursday attendance was terminated by U's mother in April 2000. Within a matter of days the father had issued an application for a specific issue order to restore the midweek attendance. Sensible arrangements were made in the following month for U to be joined as a party and for him to be represented by a local solicitor who was given leave to disclose the papers to Mrs Saloojee as an expert to prepare a report. Unfortunately that report was not filed until 29th March of the following year. We have naturally made inquiries as to why there was such an extraordinary delay in the filing of this report. We have been informed by Miss Thornton, who represents the child, that Mrs Saloojee deliberately held off, understanding that there was a reasonable chance that the parties would reach agreement. However, no one thought of a mediator.
4. Agreement did not result and there was then a further delay until the case was set down on 17th August for trial three months later on 19th November. The trial was conducted by his Honour Judge Bartfield sitting in the Bradford County Court. He had before him in addition an application for a joint residence order. He had no hesitation in dismissing that application but he held the father's specific issue application to be extremely finely balanced. The core of his judgment is to be extracted from a single paragraph (paragraph 13) which reads as follows:

"These arguments seem to me to be extremely finely balanced and, as I think the advocate for the children's guardian recognised, this is a very delicately balanced question. I have borne in mind, of course, all the requirements of Section 1 of the Children Act 1989 which make the child's welfare paramount and I have borne in mind all the considerations that the Act requires me to consider, but in the end one important feature of the case tips the balance in the mother's favour and that is this. This is a nine year old boy. On Mondays he already goes to football, and whether you are an Islamic boy or a Christian boy or whatever football is important. Wednesday night is IT. All of these after school. Friday night is the mosque. If he goes to the mosque on Tuesday and Thursday where is there to be his free time to play, to relax, to put his feet up as young children need to do? I suspect that if an order is made by the court requiring him to go to the mosque he is going to be understandably resentful. If he lived with the father there would really be no problem about this, it would just be part of his life, but he does not. In my view if I send him to the mosque on Tuesday and Thursday nights as well he is not going to know where he is and it would, in my judgment, be too much of an imposition on this boy at this time."

5. He concluded his judgment by saying that he differed from the guardian. He justified that difference by saying:

"... I think, if anything, too little emphasis has been placed by the children's guardian on the final consideration that I have mentioned; the practicalities of life for a nine year old boy."

6. Both applications were accordingly refused.
7. On 3rd December a notice of application was made to this court for permission. On 22nd January I ordered an oral hearing on notice with appeal to follow if permission granted. When giving my reasons I gave notice to the mother and to the guardian that the one point that stood out from the application for permission was the assertion that the mother's evidence to Judge Bartfield as to U's after-school commitments was inaccurate. If the judge had founded his decision solely on practicalities, and if he had been misled as to those practicalities, obviously the judgment was vulnerable.
8. In the interim, Miss Hamilton has filed a supplemental and a revised skeleton argument and a number of other helpful documents. The guardian ad litem has managed to obtain funding and has furnished the court with a skeleton argument and an addendum report. In her addendum report she informs the court that she has interviewed U's headmaster, as well as his teacher at the mosque. The headmaster does not want to be directly involved but he has informed the guardian that U's after-school football club is on Tuesdays rather than Mondays, and only detains him from his normal finishing hour of 3.15 until 4.00. The headmaster also informs us that whilst U did attempt to attend an ICT club he abandoned it after only one visit. On that information Miss Thornton, on behalf of the guardian, fully supports Miss Hamilton's application.
9. We have the advantage of a transcript of the evidence and there is no doubt at all that at page 25 of the transcript there appears this question and answer, the question addressed to the mother:

"Q. What about after school activities?

A. He goes to football classes on a Monday and he goes to IT classes on a Wednesday. Other than that he just does normal like playing out things in the street."

10. And she continues, expanding the information as to his normal recreational activities.
11. Miss Hamilton has told us that that was not cross-examined to, since her instructing solicitor had no information from the father that would justify a challenge; nor did that answer play any significant part in the submissions made to the judge. But there can be no doubt at all that it was fixed upon by the judge as being an absolutely crucial piece of evidence that effectively confined the exercise of his discretion in what was otherwise for him a finely balanced case.
12. Once that has been clearly established, as it has, both by the transcript of evidence and judgment in the court below and confirmed by the guardian's further inquiries, it is manifest that we must grant permission and entertain the appeal. It seems to me that equally the appeal must succeed on this one narrow ground. Miss Hamilton has sought to enlarge her submissions to suggest that absent this error the judge would have been driven to the opposite conclusion in any event. I do not think that submission is well-founded. I think absent this error it would have been quite inappropriate for this court to have interfered with the discretionary determination of so experienced a circuit judge. I, for my part, would interfere only on this one narrow ground.
13. Miss Hamilton urges that the consequence of this should be a fresh determination by this court in the exercise of its discretion rather than a rehearing. I believe that submission to be well-founded. Re-hearings are, as a generalisation, to be avoided in family cases wherever possible. However, I reach that conclusion not without misgivings. I am going to record these misgivings briefly.
14. First, there is an inevitable appearance of inequality of arms between the parents. They have apparently very different financial circumstances which permit the father to be represented by specialist leading counsel, whereas the mother is unable either to achieve public funding or to afford to instruct lawyers on her behalf, let alone lawyers of the standing of Miss Hamilton.
15. I also have some misgiving in that the solicitor for the child has perfectly properly instructed Mrs Saloojee as the children's guardian, but it is notable that her original involvement came under the third paragraph of the order of 10th May 2000, which permitted U's solicitor to disclose the papers to Mrs Saloojee as an expert. Mrs Saloojee is herself a committed Moslem, which is perfectly understandable, perfectly appropriate as an expert to guide the court as to the requirements for the proper education of a young boy in the Moslem faith. But there is obviously a danger that subjectivity might creep in and Mrs Saloojee's own commitments and convictions might in some unconscious way tinge her interpretation and representation of U's wishes and feelings. I am alive to this possibility, particularly as a consequence of reading the mother's full and lucid skeleton argument prepared for the purposes of this appeal.
16. The last consideration which bothers me is that because the proceedings in the trial court took an inordinately long 18 months to complete and because the proceedings in this court have added another six months to that, it will effectively be 24 months since U received midweek instruction at the mosque. Had this issue been decided in the father's favour within weeks of the interruption, then the reintroduction of U to midweek teaching would have presented few problems. But at the expiration of a period of two years his re-entry into midweek religious teaching may not be so straightforward. Therefore, in allowing this appeal, as I conceive we inevitably must, and in making the specific issue order for midweek attendance sought by the application of 10th April 2000, I would not wish to put any duration on the life of the order; nor would I wish to preclude in any way an investigation in the court of trial as to how the order has worked to the benefit of the boy. The last thing I want to do is to encourage further proceedings in the court at trial. But should there be disagreements between the parents as to U's future progress at the Hope Street mosque following the extension of his attendances from weekend to include midweek, then I would hope that they would try and tackle those differences by reference to a skilled mediator. Should that prove fruitless and should it be necessary for a judge in the county court to look at the case again, I would hope that Judge Bartfield would be available to ensure continuity; and without in any way seeking to invade his unfettered discretion as to how he should proceed, I would only point to the possibility of him seeing U for himself just to be quite sure that U's true wishes and feelings have been profoundly understood by his representative and clearly interpreted to the court.
17. With those pointers, which I hope will be of some benefit and which I feel bound to express out of anxiety for the future of this little boy, I would make the orders that I have already indicated; namely, grant permission, allow the appeal and substitute for paragraph 2 of the judge's order the provision sought, namely, attendance at the Hope Street mosque for one hour only between 5.00 and 6.00 on each of Tuesday and Thursday afternoons after school.
18. MR JUSTICE NEUBERGER: I agree. Although this is a troubling case, the issues are within the comparatively short confine. Once one accepts, as the judge did, that this is an extremely finely balanced case, and, as one must in light of the evidence, that he was misled as to the commitments of the child on two days a week, I would respectfully agree that it inevitably follows that this application to appeal must be allowed and that the appeal itself must also be allowed.
19. I also share all my Lord's views as to the proper course to take; namely, not to send the matter back but to substitute the order he indicates. I would particularly like to associate myself with what my Lord has said in relation to the possibilities as regards to the future.
20. I would therefore concur with the order my Lord proposes.
(Application for permission to appeal granted; appeal allowed; no order as to costs).