ON APPEAL FROM WILLESDEN COUNTY COURT
HIS HONOUR JUDGE COPLEY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUNBY
SIR STEPHEN SEDLEY
|Re G (Children)|
Miss Joanne Ecob (instructed by Williams & Co) for the respondent (mother)
Hearing date : 7 September 2012
Crown Copyright ©
Lord Justice Munby :
"a Modern Orthodox school. No boy at the school has peyos. All the children come from homes where television is taken for granted. The school is coeducational in its teaching. Aside from lessons, boys and girls participate equally in most activities."
The father, in a witness statement dated 4 April 2012, having described the strict rules of Kosher observed by the Chareidi community, continues:
"It is therefore unlikely that our children would be able to eat in the homes of the children who attend [the B school] if there is any doubt that food served there is kosher. Indeed, I would consider it my duty to prohibit my children from going to the homes of children from [the B school or the A school]. The same difficulties would arise with attending parties with children from those schools I would be willing to invite those children to my home provided I am certain that they are not a negative influence, for example talking about TV programmes, movies or the internet."
" ultra orthodox parents will not allow their children to socialise and mix with children attending non religious schools as children who are raised in a less orthodox or secular environment will be exposed to television and different social values. Chareidi children are not allowed to watch television and, in the main, they come from homes where there is no access to the internet or social network such as Facebook and Twitter. Strict Chareidi parents will not allow their children to mix with children who are using the internet or watching television for fear that their own children will become corrupted."
The hearing before Judge Copley
A preliminary point: shared residence
"But there are many cases which involve value judgments on which there are no such generally held views. The present case is a good example. Which should be given priority? The wife's desire to continue to live in the matrimonial home or the husband's desire to return to England and establish himself here ? In answering that question, what weight should be given to the history of the marriage and the respective contributions of the parties to the family assets? These are value judgments on which reasonable people may differ. Since judges are also people, this means that some degree of diversity in their application of values is inevitable and, within limits, an acceptable price to pay for the flexibility of the discretion conferred by the Act The appellate court must be willing to permit a degree of pluralism in these matters."
The importance of the education issue
"not simply a matter of choice of school but a much more fundamental one of way of life. 'Lifestyle' scarcely does the issue justice. It is a matter of the rules for living."
The approach of the court
"When a court determines any question with respect to the upbringing of a child the child's welfare shall be the court's paramount consideration."
"Whereas Parliament by the Sex Disqualification (Removal) Act, 1919, and various other enactments, has sought to establish equality in law between the sexes, and it is expedient that this principle should obtain with respect to the guardianship of infants and the rights and responsibilities conferred thereby:"
The second limb of section 1 was in the following terms:
"the court shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, is superior to that of the mother, or the claim of the mother is superior to that of the father."
"the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems."
That was said in the context of contact but it surely has a wider resonance. How far into the future the judge must peer and with modern life expectancy a judge dealing with a young child today may be looking to the 22nd century will depend upon the context and the nature of the issue. If the dispute is about whether the child should go on a school trip the judge will be concerned primarily with the present rather than the future. If the question is whether a teenager should be sterilised the judge will have to think a very long way ahead indeed.
"The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded."
Those words are as true today as a century ago. Evaluating a child's best interests involves a welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, religious, cultural, emotional and welfare considerations. Everything that conduces to a child's welfare and happiness or relates to the child's development and present and future life as a human being, including the child's familial, educational and social environment, and the child's social, cultural, ethnic and religious community, is potentially relevant and has, where appropriate, to be taken into account. The judge must adopt a holistic approach. As Thorpe LJ once remarked (In re S (Adult Patient: Sterilisation)  Fam 15, 30), "it would be undesirable and probably impossible to set bounds to what is relevant to a welfare determination."
"the law and practice in relation to infants have developed, are developing and must, and no doubt will, continue to develop by reflecting and adopting the changing views, as the years go by, of reasonable men and women, the parents of children, on the proper treatment and methods of bringing up children; for after all that is the model which the judge must emulate for he must act as the judicial reasonable parent."
"1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
The protection of Article 9 is qualified in two ways. In the first place, the Convention protects only religions and philosophies which are "worthy of respect in a 'democratic society' and are not incompatible with human dignity": see Campbell and Cosans v United Kingdom (No 2) (1982) 4 EHRR 293, . I mention the point only for completeness; it plainly does not arise in this case, because the parents' beliefs are in each case clearly worthy of respect. Secondly, whilst religious belief and thought are (subject to that overriding qualification) given absolute protection by Article 9(1), the "manifestation" of one's religion in "worship, teaching, practice and observance" is subject to the qualifications referred to in Article 9(2).
"The State's duty of neutrality and impartiality is incompatible with any power on the State's part to assess the legitimacy of religious beliefs."
" society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done."
"Religious belief is no more determinative of whether a parent is acting reasonably than it is of whether something is in a child's best interests. Whilst the court will no doubt be slow to conclude that a parent faithfully striving to follow the teachings of one of the great religions of the world is acting unreasonably, there is nothing to prevent the court coming to that conclusion in an appropriate case. Everything must depend upon the facts and the context. In this, as in so many other areas of family law, context is everything."
"We live in a tolerant society. There is no reason at all why the mother should not espouse the beliefs and practice of Jehovah's Witnesses. It is conceded that there is nothing immoral or socially obnoxious in the beliefs and practice of this sect. Indeed, I would echo the words of Stamp LJ in T v T (1974) 4 Fam Law 190 in which he said this of the Jehovah's Witnesses and what he said is, indeed, borne out by such evidence as we have in this case:
"Many families bring up their children as Jehovah's Witnesses and the children are good members of the community, although perhaps a little isolated from other children in certain respects. They are different but the same thing could be said of Presbyterians, Catholics and indeed any other religious faith."
It is as reasonable on the part of the mother that she should wish to teach her children the beliefs and practice of the Jehovah's Witnesses as it is reasonable on the part of the father that they should not be taught those practices and beliefs.
It is not for this court, in society as at present constituted, to pass any judgment on the beliefs of the mother or on the beliefs of the father. It is sufficient for this court that it should recognize that each is entitled to his or her own beliefs and way of life, and that the two opposing ways of life considered in this case are both socially acceptable and certainly consistent with a decent and respectable life. What follows from that? It follows, in my judgment, that there is a great risk, merely because we are dealing with an unpopular minority sect, in overplaying the dangers to the welfare of these children inherent in the possibility that they may follow their mother and become Jehovah's Witnesses. Of course, most of us like to play games on Saturdays, to go out to children's parties and to have a quiet Sunday some of us will go to church, and some of us will not. This appears to be the normal and happy, even though somewhat materialistic, way of life, accepted by the majority of people in our society. It does not follow, however, that it is wrong, or contrary to the welfare of children, that life should be in a narrower sphere, subject to a stricter religious discipline, and without the parties on birthdays and Christmas that seem so important to the rest of us. These are factors that must be considered, but I think it is essential in a case of this sort to appreciate that the mother's teaching, once it is accepted as reasonable, is teaching that has got to be considered against the whole background of the case and not as in itself so full of danger for the children that it alone could justify making an order which otherwise the court would not make."
" when one has, as we have here, two good parents, indeed, two unimpeachable parents, each of them following very different ways of life, which have led to the matrimonial breakdown, it does not follow that, because one parent's way of life is more acceptable to most of us, it is contrary to the welfare of the children that they should adopt the way of life of the other parent that is acceptable only to a minority, and a tiny minority at that."
"It seems to me that when one has, as in this case, such a conflict, all that the court can do is to look at the detail of the whole circumstances of the parents and determine where lies the true interest of the children."
He had earlier (at 247) commented that:
"There can be little doubt that one's development as an adult is determined to a substantial extent by the conditions of childhood. This makes it imperative in the long term that conditions in childhood should be acceptable to the children."
"It is no part of the court's function to comment upon the tenets, doctrines or rules of any particular section of society provided that these are legally and socially acceptable."
However, he continued:
"The impact of the tenets, doctrines and rules of a society upon a child's future welfare must be one of the relevant circumstances to be taken into account by the court when applying the provisions of s 1 of the Children Act 1989. The provisions of that section do not alter in their impact from one case to another and they are to be applied to the tests set out in accordance with the generally accepted standards of society, bearing in mind that the paramount objective of the exercise is promoting the child's welfare, not only in the immediate, but also in the medium and long-term future during his or her minority."
Having then quoted from Scarman LJ's judgment in Re T, Purchas LJ continued (at 172):
"That authority merely supports the fact that it is against the normal standards of society that the provisions of the Act must be applied. A further reference to this approach is to be found in the judgments of this court, in a different context admittedly to the present consideration, in the case of C v C (A Minor) (Custody: Appeal)  1 FLR 223 in the judgment of Balcombe LJ, where emphasis is made in the context of a lesbian relationship that it is the generally accepted standards that are to be applied when judging the welfare of the child."
"Career-wise and education-wise the opportunities which they would not have under the Chareidi education system".
She said that the father, going through the Chareidi system, does not have the skills and educational background to go out and get a job. She said a lot of boys end up getting married without having the skills to support their families. The father, she said, falls into that category. She said:
"As a mother, I feel that I would be failing my children if I did not give them the opportunity to access education, to go university if they want to, so that when they are older they can support themselves and their families."
"Women mainly stay at home and make it a safe and happy place."
"The prime responsibility of the woman is to look after the house and look after the children."
He went on to say that, in the Chareidi community, daughters were educated to be responsible mothers and not to go to university. He accepted that the schools that the father proposes do not participate in university entrance. His response to Miss Ecob's suggestion that career opportunities were limited was, "Could be." When asked for a "Yes" or "No" answer, he said that girls could take Open University. When asked if that was rare, he replied, "Let's say it's not frequent." Re-examined by Miss Platt, he said that seminaries give higher education; that boys go to Talmudic college, which does not have secular education. He referred to opportunities in America and Israel.
"The lifestyle would not conform to our ethos".
She said, "The girls could go to Open University, or go to Israel." When it was put to her that girls from the Chareidi community had less opportunities, she said "Possibly."
The CAFCASS report
"The children are part of a Chassidic Jewish Community. Their mother wishes for her children to grow up in a different, more modern, Jewish community more in line with the sort of lifestyle she wishes to embrace since her separation.
The children are part of families that have been Chassidic for many generations. Changes to their religious life will represent changes in relationships with grandparents, aunts and uncles and cousins. Changes in their religious education will have a profound effect upon their Jewish religion and thus upon every aspect of their lifestyle and the beliefs in which they are raised."
She added in paragraph 25:
"[Mother] also feels that her three daughters will have more opportunity to make decisions about their life and relationships in a more modern community, to pursue a higher education and career opportunities that will enhance their economic well being in later life. She feels there would be pressure on them to marry young and start a family at a young age. Her own experience of choosing to end an unhappy relationship within that community has influenced her in this respect. Given that this is a way of life that has changed little for many generations, I am of the view that there may be some weight in these assertions."
"The school issue is, in my assessment, not a question of the quality of the educational establishment as all those cited appear to offer a good overall education. The issue appears to be that the choice of school will determine the future religious life and the cultural upbringing of [the children]. [Father] wishes for the children to remain in the religious community to which they now belong and to which their families for generations have belonged.
If the children were to go to the schools of [father's] choosing, I think there is a high risk that their relationship with their mother would become problematic. It would cause emotional confusion for them to depend upon their mother for love and care, yet have her choices presented as undesirable, and maybe feel that they should not listen to her.
Conversely, if the children go to a school of [mother's] choosing, there will be considerable losses also. I do not doubt that their relationships within their current community and with the family would change, including with their father, and may even be lost in some instances. Already they are estranged from their maternal grandparents as a result of choices made by [mother]. There will also be losses in relation to tradition and religious heritage.
Whilst it is evident that either decision regarding schooling will result in losses, I have viewed this dilemma as one where I have tried to assess in which situation the children will have the most choices about relationship with both parents in the future, and the most choice about how they wish to live in the future.
It is evident that relationships can be jeopardised within the Chassidic community when a decision is taken to live in an alternative way. I am concerned that the children would have difficulty making a decision to embrace their mother's lifestyle when they are older as they would be fearful of leaving behind everything they had grown up with, which it undoubtedly would entail.
On the other hand, within the sort of community their mother proposes, they would be able to return to their religious roots when older. They can continue to participate in religious activities when with their father, supported by their mother. The community which they would become a part of is more likely to be accepting of difference.
I also think that there is some merit in the observation that a more accepting community composed of children from a variety of backgrounds will make it easier for the children to adjust to being children of a separated family
I think it more likely that the children will achieve greater economic success if they are given aspirations in relation to careers that exist outside the Jewish community.
Whilst bearing in mind the losses in each possible outcome, I have come to the conclusion that it is in the children's best interests to reside with their mother and to move to schools of her choosing. I think it will be easier for them to make the transition at a younger age, when children are often more adaptable in terms of peer groups."
"I decide the case, not on any view of mine as to the beliefs of the parents, but by considering all the circumstances and all the evidence to determine where lie the interests of the children."
"Miss Platt QC and Miss Brereton remind me of Mrs Adams' evidence, that the educational issue is not a question of the quality of the educational establishment. I disagree. Whilst, of course, a change of schooling in this case would involve a change of lifestyle, the whole basis of this case and the mother's stated motives for wanting to change schools is for the purpose of giving the children the best education and therefore employment opportunities."
A little later he continued:
"I, of course, have regard to the evidence of the Children and Family Reporter and her recommendations; and in this case, and quite independently apart from the incidents to which I have referred in relation to the quality of the education available at the respective establishments proposed by mother and father I agree with her views and recommendations.
I am in no doubt at all that, not only is the mother motivated by the best intentions, but that the schools to which she wishes to send them will provide infinitely superior opportunities for these children to gain a much fuller and wider education, not only at secondary level but also at tertiary level should they choose that the father's own evidence and that of his witnesses bears this out -- and thereafter they will have much greater job opportunities. Accordingly, and, as I say, independently and for the reasons that I have given, I see no reason to depart from Mrs. Adams' recommendations in relation to schooling, residence and contact."
"MISS BRERETON: I know that your Honour has focused very much on the educational opportunities, but this case, as you would have gleaned from the documents and the way this case was conducted, is not just, with respect about the education.
JUDGE COPLEY: I thought I had made it plain in the course of my judgment that I entirely accept that it affects the whole way of life.
MISS BRERETON: Your Honour, the trouble is this order does actually affect the whole way of life.
JUDGE COPLEY: Yes. Of course it does.
JUDGE COPLEY: But I have made it plain I thought, Miss Brereton, that it follows as night follows day that and as I think I said at the outset that a change in the schooling amounts to a change in the way of life. I entirely accept that.
MISS BRERETON: But your Honour has, with respect, has focused on the educational opportunities for the future.
JUDGE COPLEY: Yes. Well that is the basis of it.
MISS BRERETON: And we say that that is under-estimating, or attaching insufficient weight, to the fact that their way of life will create educational opportunities of a different nature, that the opportunities will be there; and that is not the reason to change these children's school.
JUDGE COPLEY: Well, I have found that, on the evidence that was being presented to me, even by the father and the witnesses that he called, that the opportunities for the children in their present system will not be what they are if they go to the schools that the mother proposes.
MISS BRERETON: Your Honour, I accept that. But our position is that you attach too much weight to those educational opportunities as ----
JUDGE COPLEY: That is the whole basis of the ----
MISS BRERETON: -- opposed to the fundamental change that will be required for these children, and that the court has attached insufficient weight to the changes that these children will need to make in terms of a change of the way of life.
JUDGE COPLEY: Yes. Thank you very much, Miss Brereton."
"As I have indicated, it has been clear to me throughout that a change of the schooling will mean to a very large extent a change of the children's way of life not entirely, because they will still maintain contact with the father and will be taken by him on the weekends that he has them, to the synagogue. And the case is looking at the best interests of the children, and I, like the CAFCASS officer, Mrs Adams, am entirely satisfied that it is in the best interests of these children to have the much fuller more rounded and much more extensive education that is available to them at the schools that the mother proposes than if they were to go to those that the father proposes. It seems to me to be clear beyond peradventure that it must be in their best interests for them to be given those opportunities and notwithstanding the change of lifestyle that will necessarily follow to some extent. "
The father's case
i) attached too much weight to the potential educational opportunities for the children if they were educated outside the Chareidi school system, was plainly wrong to give "any" weight to his view that the children would achieve greater economic success if they were to have a career outside the Jewish community, and attached too much weight to financial considerations;
ii) failed to give sufficient weight to the significant effect that the proposed changes of school would have on the children's lifestyle, religious upbringing and emotional welfare;
iii) failed to take into account the fact that the parents had followed the Chareidi way of life throughout the marriage and had agreed to educate their children in accordance with the principles of Chareidi Judaism;
iv) failed to consider the fact that the mother's choice of lifestyle and school was motivated, so it is said, by her wish to change her own lifestyle rather than the welfare needs of the children; and
v) failed to recognise the importance of the outcome of any decision not merely for the children but also for the Chareidi community as a whole.
This was elaborated by Miss Platt and Miss Brereton in their skeleton argument and by Miss Platt in her oral submissions.
The mother's response
"Whilst it is evident that either decision regarding schooling will result in losses, I have viewed this dilemma as one where I have tried to assess in which situation the children will have the most choices about relationship with both parents in the future, and the most choice about how they wish to live in the future."
"the schools to which she wishes to send them will provide infinitely superior opportunities for these children to gain a much fuller and wider education, not only at secondary level but also at tertiary level should they choose that the father's own evidence and that of his witnesses bears this out and thereafter they will have much greater job opportunities",
just as he was entitled to accept Mrs Adams' view that it was:
"more likely that the children will achieve greater economic success if they are given aspirations in relation to careers that exist outside the Jewish community."
"If the children were to go to the schools of [father's] choosing, I think there is a high risk that their relationship with their mother would become problematic Conversely, if the children go to a school of [mother's] choosing, there will be considerable losses also I also think that there is some merit in the observation that a more accepting community composed of children from a variety of backgrounds will make it easier for the children to adjust to being children of a separated family I think it will be easier for them to make the transition at a younger age, when children are often more adaptable in terms of peer groups."
In relation to this Mrs Adams made a particularly powerful point:
"It would cause emotional confusion for them to depend upon their mother for love and care, yet have her choices presented as undesirable, and maybe feel that they should not listen to her."
In my judgment, Judge Copley was plainly entitled to proceed on this basis.
"I am concerned that the children would have difficulty making a decision to embrace their mother's lifestyle when they are older as they would be fearful of leaving behind everything they had grown up with On the other hand, within the sort of community their mother proposes, they would be able to return to their religious roots when older."
Again, in my judgment, Judge Copley was plainly entitled to proceed on this basis.
Sir Stephen Sedley :
Lord Justice Maurice Kay :