England and Wales Family Court Decisions (other Judges)

Case No: FD13P01649

IN THE WEST LONDON FAMILY COURT

 

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF A (4) AND B (2)

See also:
X (Number 4: Religious Differences: Shared Care) [2019] EWFC B81 (11 September 2019)
X (Number 3 : Division of Religious Festivals) [2016] EWFC B91 (12 October 2016)
X (Number 2 : Orthodox Schools) [2015] EWFC B237 (9 May 2015)

 

Date: 4 November 2014

 

Before:

 

HER HONOUR JUDGE ROWE QC

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BETWEEN:-

 

 

 

 

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For father: Frances Orchover (counsel) instructed direct access
For mother: Elizabeth Coleman (counsel) instructed by Guile Nicholas Solicitors
Children not represented

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JUDGMENT

 

The Application

1.       I am asked to decide two issues:

 

a.        how much time these two young children should spend with their father. As part of these arrangements I am asked to consider the extent to which the father should be expected to replicate the regime of care the children receive with their mother when they spend time with him; and

 

b.       which primary schools the children should attend. There has been some evidence about secondary schools, but the children are only 4 and 2. Whilst I am asked to consider each of the children's educational life path when deciding the issue of primary education, it is far too early for me to impose a decision about which secondary schools they should attend.

 

2.       A is nearly 5 and B is two. The children live with their mother in a Yiddish speaking home. Currently they spend time with their father on a frequent regular visiting basis for 8 hours on alternate Sundays and, in the intervening week, for three hours after school on alternate Thursdays; their father speaks Yiddish and English. A speaks Yiddish and has a little English. B speaks only Yiddish at the moment.

 

3.       A attends T, a mainstream Jewish Orthodox school close to the mother's home. B is attending a crèche attached to B School where the mother works and where B can move when she reaches school age.

 

4.       The background to the case is set out in my judgment dated 2 July 2014 dealing with interim issues. In short the case concerns two devoted and loving parents who now live their lives in fundamentally different ways. Their challenge is to help their children to navigate a path between these two ways of life and to maintain a close and loving relationship with both of their parents.

Position of the parties

Time with the father

5.       The father wishes to spend as much time as possible with the children. Specifically he would like the children to spend alternate weekends with him, starting in good time for the Sabbath on Friday, and for them to visit him on either Friday (in summer) or Saturday (in winter) over the intervening weekend. He would like the children to share their time equally between the parents during each holiday. He is ready and willing to respect the children's primary way of life when they are with him, however he is not prepared to commit himself to replicating the exact life that they lead with their mother.

 

6.       The mother agrees that the children should spend time with the father, but she opposes the children staying overnight with the father. She does not trust the father's willingness and ability to support the children's primary way of life and as a result she fears that they will find the visits confusing, difficult, and undermining of their position in her community on their return. She proposes that the children should spend five and a half hours with their father every Sunday, starting at 1pm after A has attended Sunday morning school. Observance of the Sabbath is a central and joyful part of the children's life with her, and she wishes them to be with her for every Sabbath. She considers that the father should respect this, given that he has left the community to live a secular life when the children are not with him, and therefore that for him personally the Sabbath has no particular significance..

 

7.       Ms Ionescu, the CAFCASS Officer, recommends that A should start spending overnight with his father on alternate weekends. She does not support B staying overnight at this stage as she is younger, but considers that this should start closer to the time B is 5 years old. She considers it essential that the children spend frequent regular time with the father, with whom the children are completely relaxed, happy and well cared for. She emphasises the responsibility of each of the parents to support the children's time with the other.

 

 

Schools

8.       The father is driven by two factors. Firstly he is deeply concerned that if the children remain in their current schools then as an outsider who has left the community, he will be excluded from meaningful participation in their school lives. Secondly he wishes the children to aspire to tertiary education and professional careers that they would be unlikely to achieve if they remain on their current education path where girls tend to remain at home to care for the home and children, and the boys take posts within the community.

 

9.       He wishes both children to attend the S primary school. This is a local mixed Jewish school, rated "good" by Ofsted, where teaching is mainly in English with some Hebrew. Children educated at S primary school go on to excellent aspirational secondary schools in both the state and private sector, and then on to University. His second choice of school is the L boys' primary school for A and L girls' primary school for B. These are also local schools, well established within the Chasidic community. The girls' school is rated "good" by Ofsted while Ofsted rated the boys' school as "requires improvement". Both schools are now partially state funded, which the father believes will make the schools more accessible to him.

 

10.   The mother wishes the children to follow the same career and life choices of herself, the children's wider family, the father until he left, and others within her community. She does not accept that the current schools, her preferred schools, do or will exclude the father from appropriate involvement in the children's school lives. She has however considered the evidence of the Cafcass officer, and has concluded that she could support A moving to the Y boys' primary school and B attending the Y girls' primary school from age 3. Ofsted has assessed each school as "good".

 

11.   The mother strongly opposes the children attending the S school, both because it is a mixed school and because it is attended by very few children from the Chasidic community. The fact that the school is mixed is fundamentally unacceptable to the mother and her community, and the fact that very few Chasidic children attend will make the experience of attending S too difficult for the children.

 

12.   Ms Ionescu is troubled about the possible marginalisation of the father and, by way of example, feels that the possibility has been confirmed by her difficulty in securing information from A's current school. Equally, she is concerned that were the children to attend a school whose atmosphere and teaching contrasted too much with their daily lives with their mother, then their mother would find it difficult to support them there and the children themselves would experience differences too great for them to process and manage.

 

13.   Ms Ionescu has had a fairly short time - over the school summer holidays - to investigate the options for the children, however she did advocate a move for both. She concluded that A should attend Y, and that B should attend L.

 

 

 

The relevant history

14.   For this I refer back to my Judgment of 2 July 2014, in particular paragraphs 1, 2, 11 to 18, and 23 to 24 where I refer to the cataclysmic impact on each member of the family of the father's decision to leave the community. The father is now living the life of his choice, but that choice has come at the cost of disappointment and disapproval not just from the mother and her family but also from the father's own wider family. Currently he is struggling to rebuild his relationship with his father who lives in Israel. The community now struggles to see the father as Jewish. The mother remains within her community and has the support of her family and friends and of the father's wider family. While both parents married and started their family within the community, however, she now has to support the children going regularly to a home and life fundamentally different to her own as a result of the unilateral choice of the father.

 

15.   Little has changed factually since I gave the first Judgment in July 2014. Since July the father has had unsupervised time with the children on alternate Sundays for 8 hours and on alternate Thursdays for 3 hours. There have been two fairly recent occasions on which sessions have been missed as a result of the mother's arrangements, and securing alternate opportunities to replace the missed sessions has taken the father some time. The father's case is that the mother is quite rigid about adherence to the letter of the order and about the way in which the father should live during the children's visits. The mother's case is that she continues to want the children to have a good relationship with the father.

 

16.   At the hearing in July I discharged the injunctive orders limiting the father's ability to move freely within the area of the children's home. The orders had been made without notice following very limited allegations, and there has been no suggestion of any difficulty in this regard since July.

 

This hearing

17.   The evidence in the case took two full days, on 6 and 7 October. Counsel wished to present written submissions and speak to them orally for which I allowed an adjournment to 20 October when both counsel were available. I reserved judgment, because I already had a full list on 20 October and for the balance of that week.

 

18.   I have read the relevant documents. I heard evidence from Ms Ionescu, from the father and from the mother. The father is almost fluent in and gave evidence in English. The mother does have some English, but gave evidence in Yiddish, supported by an interpreter.

 

The law

19.   I must have the children's welfare as my paramount consideration. I must apply the relevant provisions of the welfare checklist pursuant to s1(3) Children Act 1989. I must have in mind at all times the importance for the children of maintaining a close and loving relationship with both of their parents.

 

20.   Given similarities in the factual matrix, I am directed to the case of Re G [2012] EWCA Civ 1233 particularly on the issue of schooling. Guidance in that case from Munby LJ, as he then was, is as applicable to this case as to the case of Re G, and that guidance I apply in full. Munby LJ observed, inter alia,

 

"[16] Education is, in the circumstances of this case, of transcendental importance not merely to the father, the mother and the children but also to the Chareidi community and, for reasons I will come to, the larger society of which it forms a part.

[17] Any issue about a child's education is always, of its nature, important. In the circumstances of this case it is, however, an issue about far more than education. Nor is it just an issue about "lifestyle choice", in the sense in which that label is attached to disputes about relocation, whether to a different part of the country or from one country to another, or in the sense in which one talks, for instance, about a Bohemian or hippy lifestyle. Not is it just an issue about religion, as that expression might be perceived from some points of view.

[18] For the nominal Anglican, whose sporadic attendances at church may be as much a matter of social convention as religious belief, religion may in large part be something left behind at the church door. Even for the devout Christian attempting to live their life in accordance with Christ's teaching there is likely to be some degree of distinction between the secular and the divine, between matters quotidian and matters religious. But there are other communities, and we are here concerned with such a community, for whom the distinction is, at root, meaningless, for whom every aspect of their lives, every aspect of their being, of who and what they are, is governed by a body of what the outsider might characterise as purely religious law. That is so of the devout Muslim, every aspect of whose being and existence is governed by the Quran and the Sharia. It is so also of the ultra-orthodox Jew, every aspect of whose being and existence is governed by the Torah and the Talmud.

[19] I therefore agree entirely with what Hughes LJ said when adjourning the matter to the full court. The issue, he said, is:

"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."

[35] Religion - whatever the particular believer's faith - is not the business of government or of the secular courts, though the courts will, of course, pay every respect to the individual's or family's religious principles. Article 9 of the ECHR, after all, demands no less. The starting point of the common law is thus respect for an individual's religious principles, coupled with an essentially neutral view of religious beliefs and a benevolent tolerance of cultural and religious diversity.

[36] It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect so long as they are "legally and socially acceptable" and not "immoral or socially obnoxious".

[38] "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."

[43] Some manifestations of religious practice may be regulated if contrary to a child's welfare. Although a parent's views and wishes as to the child's religious upbringing are of great importance, and will always be seriously regarded by the court, just as the court will always pay great attention to the wishes of a child old enough to express sensible views on the subject of religion, even if not old enough to take a mature decision, they will be given effect to by the court only if and so far as and in such manner as is in accordance with the child's best interests. In matters of religion, as in all other aspects of a child's upbringing, the interests of the child are the paramount consideration."

[45] Religious belief is no more determinative of whether a parent is acting unreasonably than it is of whether something is in a child's best interests...Everything must depend upon the facts and the context."

[80] [What is the task of the ordinary reasonable parent?] First we must recognise that equality of opportunity is a fundamental value of our society...Second we foster, encourage and facilitate aspiration..Third our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead - what kind of person they want to be - and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximise the child's opportunities in every sphere of life as they enter adulthood. And the corollary of this, where the decision has been devolved to a "judicial parent", is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child's ability to make such decisions n the future."

Overview

21.   The parents are both intelligent and articulate. The father spoke eloquently about his reasons for leaving the community, his struggle to adapt and to acquire a sufficient secular education to be able to build a professional career. He spoke of the cost of his choice - in particular of the difficulties of rebuilding a relationship with his father. He spoke of his concern at being openly rejected by the mother's community. He described how the community no longer see him as Jewish, how children at A's school now laugh at him because of his secular appearance, and he described his difficulties in securing information from the Y school which is being suggested for A. He told me of the Community Newsletter circulated earlier this year in which, printed across the page, were the words (translated as) "pray to keep [these] children in Jewish hands". This meant "keep the children out of the father's hands". He explained that after his first day of evidence, and before he returned to the witness box, his father rang him from Israel and criticised at length and in detail the father's case presented in evidence on the first day. The paternal grandfather plainly knew everything the father had said within hours of his having said it.

 

22.   The father spoke lovingly of the children, and at length of how he plans to support them when they are with him, and to prevent them being exposed to differences too great for them to process.

 

23.   The mother also spoke eloquently and firmly. I am quite satisfied that she was at no disadvantage by giving her evidence in another language. Sometimes the process of giving evidence through an interpreter creates a barrier between the witness and the court, but in this case the mother spoke to me directly and passionately, especially when describing the Sabbath within her home. She glowed with joy when describing this weekly occasion step by step. The mother denies involvement in the community newsletter and said that she tried to have the prayer removed from it. She did accept that she had spoken to the father's mother on the evening after he had started his evidence, but she denied trying to influence the father to change his position. She struggled to describe the father as Jewish. She returned repeatedly to the one occasion earlier in the year when the children were allowed to watch television citing this as evidence that the father cannot be trusted to support the children as he suggests he will. She cannot understand why the children should spend time with the father over the Sabbath in particular when it has such intense significance in her home and none in the father's.

 

24.   I accept that the father genuinely intends to support the children, to lead an Orthodox Jewish life when they are with him, and - as advocated by Ms Ionescu - to maintain a lifestyle as close as possible to the mother's during the children's visits, while slowly introducing new experiences so that it is not difficult for them to adapt. He accepts the advice that he must leave the more different things until the children are older and more able to understand and manage them. It was unfortunate that the children watched television so early in the resumption of their contact with their father, both because this is an experience they do not have at home and because it was an experience that was bound to upset and worry the mother when she heard about it from the children as she was inevitably going to do. The father has given two accounts of how this happened, and I am not entirely sure of the sequence of events. It is possible, as the mother suspects, that at that point he had less understanding of the possible impact of this on the children and on contact. The father was unwise to allow this to happen; it was a mistake. As Ms Ionescu said, mistakes happen and must be dealt with proportionately.

 

25.   I accept that the father now understands very clearly the need to be more careful and sensitive. I accept this both because of the father's impressive and thoughtful evidence, and because there has been no suggestion of a repeat incident despite the frequency and duration of the children's visits to him since. The children will inevitably be exposed to a different way of living when they are with their father. He does understand, now, that if he takes the process too quickly or insensitively, then the children will find the transition difficult and confusing, and they may well suffer an adverse reaction from others within the community in which they live for the majority of their lives. He is clear that this is the last thing he wants. Indeed I accept his evidence that if the children wish to remain within the community he will support them in that.

26.   The mother will find it difficult to support this process. It is difficult for her both because of her own reaction to the father's decision to leave the Satmar world, and because of the universal views of those around her. She herself struggles to see the father as Jewish. I accept her evidence that she did not ask for the prayer referred to above to be included in the newsletter, however the fact of its inclusion without reference to her is informative about the strength of the community's interest in and views about the father, and about the readiness of the community to express those views openly. This is deeply troubling because this is the atmosphere and these are the views within which the children are being raised. At present they are too young to know of and to understand, but unless the mother can protect them from exposure to this negative community opinion about their father they will face a damaging conflict when trying to maintain a close positive relationship with him. I accept the mother's evidence that she did not ask the paternal grandfather to call the father and criticise him for the evidence he had given on the first day of the hearing but, once again, the evidence shows the extent to which the detail of this case is being circulated too widely, and again the readiness of the wider family to get involved in a way adverse to the father. These examples are illustrative of the difficulties inherent in the complex circumstances of the children's lives. Both parents are going to have to work hard to help their children.

 

Time with the father

Term time arrangements

27.   The children are too young to express their views or to understand the complexities referred to above. The evidence from observations of the children with their father, however, is that they are relaxed, happy and contented when they are with him. They wish to be with him and have a close and loving relationship with him.

 

28.   I will deal separately with the children's educational needs below. Their physical and emotional needs are the same as those of any young siblings. They need to be loved, to be well cared for and to be protected from conflict between those around them.

 

29.   Central to this case is the impact on the children of change, given that the children live within and are a much loved part of the mother's community. Ms Ionescu told me that the mother dislikes change, and thinks that change is bad for the children. In this case change is unavoidable. I accept Ms Ionescu's evidence that so long as both parents and children are properly prepared, the changes to which the children are exposed can be well managed. Both of the parents must be able to respect and understand the way the other lives their life. In that way the children will be able to benefit from exposure to two very different ways of life.

 

30.   If the parents fail in their task then I accept Ms Ionescu's evidence that the children will suffer a cognitive dissonance. They will be confused and anxious, which will be emotionally harmful to them.

 

31.   The father is, I find, well able to understand the risks to the children. He is and will be sensitive to their needs. He respects their place in the Satmar community and he understands how to recreate the important parts of the children's lives when they are with him. The mother is less able to understand and carry out her role in this process at present. She does not understand or respect the father's choices or his way of life. She does not want the children exposed to his way of life. I think she is angry at the conflict that the father has brought into her life, and she feels that he has betrayed the commitment he made to raise his family within the community. She sees nothing positive in the father's choice.

 

32.   The mother must reconsider her position, and try to understand that the father has made a choice that he is entitled to make for himself, and that he feels is right for him. She must do this because she must be able to support the children in the months and years to come in their relationship with their father. It is vital for the children to maintain and develop their relationship with both parents. The mother will be failing her children emotionally if she does not help them. She will cause her children immense pain if she allows them to think that their father has done something "wrong". I know that she loves them dearly and she does not want to fail them. If she cannot support the children then there is a risk over time that they will resent her and the community for this lack of support. If she can support the children then they will be able, without internal conflict, to embrace both their life within the community with the mother and their life when with their father. I hope and believe that she will do her best to provide this support for the children, because she wants what is best for them.

 

33.   I have no hesitation in concluding that the children must start staying overnight with their father. Ms Ionescu is plainly right when saying that overnight visits are of a different quality and importance to simple daytime visits. Children visit many people during the day. It is their parents with whom they go through their evening rituals, read, bath, and settle for the night. It is their parents who are there in the night if the children wake. It is their parents who they see when they wake. I can see no possible reason to deny these children that experience with their loving, attuned and emotionally responsive father. It is true that A would usually attend school on a Sunday morning, as would B in a few years time. I accept the evidence of Ms Ionescu, however, that you cannot say that a child should not have a relationship with their father because of a couple of hours of school on a Sunday. To miss Sunday school on alternate weeks is, she told me and I agree, a fair compromise to achieve a relationship with the father. I also conclude that a sensitive and child focused school will understand the reasons for and support this arrangement and help to ensure that the children do not miss out on any essential learning. The question is not whether the children should stay overnight with their father; it is only when and for how long.

 

34.   The father wishes both children to come for weekend visits together, starting immediately. Ms Ionescu recommends that A starts overnight visits immediately, for one night at first and then, after two or three sessions, for two nights. She thinks that B should wait until she is a little older - possibly even nearer 5 - before joining her brother. B is younger and Ms Ionescu has a concern about B leaving her primary carer overnight just yet. She does accept that this creates difficulties both in the weekend arrangements and also at holiday time. If B does not sleep over with her father then he cannot take the children away on holiday.

 

35.   It is clear from my judgment thus far that I have gained enormous help in this difficult case from the evidence of the CAFCASS officer. I have accepted her evidence about the value of overnight contact. I do, however, conclude that both children should start spending time overnight with their father at more or less the same time. To reflect Ms Ionescu's reservations about including B in these arrangements, I conclude that

 

a.        A should immediately move to spending one night with his father on alternate weekends while B's visits remain daytime only. The single night should take place from Saturday afternoon [from sunset] until Sunday afternoon. B will join her brother from Sunday morning;

 

b.       From the beginning of January 2015, B should join her brother so that both children spend one night with their father on alternate weekends;

 

c.        From April, after the Passover festival, both children will start to spend two consecutive nights with their father on alternate weekends. By then B will be 3. The two night visits should start on Friday afternoon, at a time that allows the children to spend the whole of the Sabbath with their father;

 

d.       The children will continue to spend time with their father for 3 hours on the intervening Thursday afternoon. This visit should not be at the weekend, as the children should have a clear weekend with their mother as they will soon be spending some or all of the other weekend with their father.

 

36.   My reasons for including B in the overnight contact sooner than recommended by Ms Ionescu are that:-

 

a.        I am not satisfied of the reasoning behind a general prohibition on children staying overnight with the non resident parent until they are 5. I can certainly find none in the available body of case law;

 

b.       To the extent that there is such a general rule, then the rule must yield to the needs of the particular children, to the ability of the particular parent to meet the needs of younger children, and to the court's confidence in the non resident parent in the particular case to identify if the children are finding the extended visits too difficult;

 

c.        This father is a sensitive, attuned, hands on father with whom both of the children are completely at ease. I accept the father's evidence that if he sees any sign that B wants to be with her mother then he will facilitate that, and wait to resume the overnight visits;

 

d.       These children are a close sibling group. They are used to being together, and for any siblings that will be more important given the separation of the parents, and given also the additional complexities in this case. I accept the father's point that the children would find it difficult to understand why they are not together, though I see benefit for B in her brother going for a few visits as set out above so that as the elder child, he has "paved the way";

 

e.        Exclusion of B would create practical difficulties each weekend of contact - with A going, B staying, and the father then returning to collect B. This could be unsettling for the children as well as intrusive into the father's plans for them. Further and at least as significantly, exclusion would prevent the children from spending extended periods of time with their father during the holidays for some years;

 

f.        The order I plan to make does make allowance for B's younger age both by postponing her overnight visits for 4 or 5 sessions, giving her the reassurance of seeing her brother return from enjoyable visits, and by deferring the move from one night to two nights for both children for a period of some months while B gets used to the new arrangements.

 

37.   The other key issue I have had to consider is the mother's case that the children should never spend the Sabbath with their father. Her reasoning is that the Sabbath is of fundamental importance in her home - it is the pivotal time of the week - whereas to the father personally it means nothing. Put simply, the mother asks why should the children be deprived of the chance to be part of this joyful event each week? I have already referred in this judgment to the immensely powerful evidence the mother gave about the way in which the Sabbath is observed in her home. I completely accept her evidence of the significance of the Sabbath to her and to the children. I accept that this is an experience that the children will lose each fortnight if I make the order sought by the father. Standing back and looking at the evidence in the case as a whole, however, I conclude that this loss for the children is significantly outweighed by their need for a father who is involved in their lives in a full and meaningful way. The father will, I am quite satisfied, provide the children with an Orthodox Sabbath on their weekends spent with him. If the children never spend the Sabbath or any of the Jewish religious festivals with their father, then they will receive a stark message about him: that he is no part of their Jewish life; in short, that he is not really Jewish and therefore he is not really important. This is the very opinion - the very damaging opinion - currently held by the community and which poses a real risk to the children's sense of their father's importance and of his place in their lives. It is an opinion that the mother herself must work hard to soften if she is to raise two emotionally healthy children.

 

Holiday arrangements

 

38.   The father wishes to spend extended periods of time with the children in the holidays, with the aim of sharing the children's holidays equally with the mother. It follows from the fact that the mother opposes any overnight visits that she opposes the children spending extended periods with their father during the holidays.

 

39.   There was very little evidence about holidays. Ms Ionescu said only that her usual recommendation would be for the longer holidays to be shared and the shorter holidays to be alternated, however in this case there was a greater need for caution and it may be necessary to take increased holiday periods at a slower pace and with consideration of the religious festivals when arrangements are made. In written submissions, the father simply asks for an equal share of the holidays, and the mother makes no submissions at all about holidays with the father. It is difficult for me to be prescriptive given the limited evidence on the point. I do not even have any detail of the children's holiday dates, though I shall assume that the chosen schools follow the general pattern of terms dates in secular schools. Having said that, I do not want there to be outstanding issues requiring further litigation. These proceedings do need to end. I will therefore make some provision for holidays.

 

40.   The children should spend extended periods of time with their father during the holidays. I accept the evidence of Ms Ionescu that the evolution of longer periods of time should be taken a little more slowly in this case.

 

41.   The order I intend to make will include the following provision which counsel should encapsulate into an order:-

 

a.        In every half term between now and the end of 2015, the children will spend a full day with their father during the week, on a Thursday unless otherwise agreed, between 9 and 5.

 

b.       During the December/January holiday 2014/2015, when A is still spending the period of one (Saturday) night with the father, then there will be an additional day visit for both children on the Monday following the Sunday. This means that A will go to his father on the Saturday afternoon and spend the night. B will join them on Sunday for the day. Both children will return to the mother that evening, but will spend the following day with their father from 9 until 5. In this way, both children will spend two successive days with their father before B joins the overnight contact in January 2015;

 

c.        There will be no additional holiday time added to the arrangements over the Spring 2015 long holiday, because this is when the weekend visits will increase to two consecutive nights. That will be change enough;

 

d.       In the summer holidays 2015, the children should spend one period of 3 successive nights with their father in the first half of the holidays, and one whole week with their father in the second half of the holidays. In the absence of agreement, these periods will take place in the first and the last week of the school summer holidays;

 

e.        Starting with the December/ January holiday 2015/2016, the main holidays will be shared equally between the parents and the shorter holidays alternated as recommended by Ms Ionescu. In the absence of agreement, the children will spend the first half of each of the shared holidays with the father and the second half with the mother;

 

f.        When the children are with the father for periods of at least a week, the father may take the children abroad for holidays on provision of the details in good time to the mother;

 

g.       The mother, as the children's primary carer, may take the children abroad during the holidays for periods up to 28 days so long as (a) the children have the prescribed time with their father, and (b) she provides the details in good time to the father.

 

 

Preamble/ agreement

 

42.   Turning to the wider context of these arrangements, the mother wishes the father to agree, in a formal preamble or as a series of detailed conditions, to replicate the children's life with her when they are with him. She wishes this to include keeping a Kosher kitchen in accordance with Satmar requirements, and keeping to the rules of A's school. The father has always offered an agreement to respect the children's primary lifestyle but he has been reluctant to accede to a stringent list of requirements that he views as unrealistic and unreasonable.

 

43.   I am confident, having heard the evidence, that the father is very well aware of the task ahead of him and of the approach he needs to take. I am confident that he will accept the advice of Ms Ionescu and that he will avoid any abrupt exposure of the children to any experience that will cause them difficulty on their return to their mother. To reassure the mother, it would be helpful for the father formally to agree at least to paragraphs [B22] (a) (Kosher food) (c) (not to speak negatively about the community or maternal family), (d) (to wear the kippah when he comes to Stamford Hill), and to be sensitive to the children's religion and culture.

 

44.   With one exception, it is not appropriate to go beyond these expressions of intent in a court order, and it is not necessary in this case given my assessment of the father. The one exception relates to food. I am told that A is refusing to eat while he is with the father. Plainly this is a problem that must be overcome as it presents a real difficulty when A starts to spend longer with his father. On this issue, it seems to me that at least for 6 months the father should adhere to the stricter Kosher rules followed in the mother's home. There can be no question of these child arrangements failing because A or B refuse to eat.

 

Schools

45.   Since neither parent advocates that the children should remain at or attend the schools previously chosen, I need spend little time on those schools in this judgment. I must express my concern, however, at the difficulties experienced by Ms Ionescu in trying to obtain information from A's school, and also about the fact that the school does not send information about the children to the father. I observe that the school to which B was to go is only registered for girls aged 5 to 6 years, the staff are not fully qualified teachers and the last Ofsted report graded the school "satisfactory". The children are all, or almost all, from the ultra-orthodox Jewish Satmar community.

 

46.   The father no longer proposes the H primary school about which I heard quite a lot of evidence. The school is some distance from the children's home and, on reflection, the father has sensibly decided that this is an unrealistic option for that if no other reason. The father's first choice of school is, as I have already said, S.

 

47.   I have reached the clear conclusion that the children should not attend the S school. Like Ms Ionescu, if it was the mother who had left the community and who wished the children to attend a less orthodox school my choice would probably have been S. S is a good school (Ofsted graded) located fairly close to the children's home. The school appears to achieve a thoughtful balance between secular and religious studies. It encourages educational aspiration in its pupils. Pupils come from a variety of backgrounds to attend the school which is reasonably local to the children's home.

 

48.   The issue of the children's schools is, however, about far more than the quality of the education assessed on an objective basis. As in the case of Re G, the issue is about so much more. I accept the evidence of Ms Ionescu that for A and B, the first consideration has to be given to their school experience remaining as close as possible to their life outside school. The children must be able to make friendships within their community and to have a religious education that their community will accept. S is simply too modern a school for these children. The school is mixed, which is anathema for the mother's community. Only a small number of Chasidic children attend the school. The large majority of the children will not wear peyos. The school does not observe all of the Jewish religious festivals, and the children would be expected to attend school during those periods. There is limited time allocated to religious studies. Many of the pupils will have regular exposure to television and the internet.

 

49.   I have already referred to Ms Ionescu's advice to the father, that he must take the children's exposure to new experiences at a gentle and sensitive pace. If he tries to go too fast, then the children will suffer harm in the way already described in this judgment. The same advice must apply to the children's schooling. S is a world away from the everyday lives of these two very young children. They would be likely to find the experience very difficult and very confusing, and there is a very real risk that they would no longer be welcome friends and playmates to other children within the community from which they would come and to which they would return each day. Their mother would find it difficult if not impossible to support the children at the school.

 

50.   I turn to consider the relatively limited remaining options for A and B. The CAFCASS officer gave me as much help as possible in the regard, but said that she had had a quite limited opportunity to assess the different schools, had been unable to view many schools because of the summer holiday closures, and that she had been flooded with a number of Ofsted reports, especially by the father. Both counsel expressed concern that there was not a more structured body of evidence about the options. I expressed my own concern that in a case where both sides are represented by experienced solicitors and where the issue was defined months ago the parties had not worked together to produce a more structured and manageable body of material to assist Ms Ionescu and the court. Nonetheless both parents wish me to reach a decision on the basis of the evidence available to me.

 

51.   For A, the options are Y (the mother's choice) or L (the father's choice).

 

52.   Y is a mainstream Charedi (Orthodox) Jewish religious school, established for many years. All pupils are Orthodox, however the school serves a relatively wide spectrum of Jewish cultural backgrounds, Chassidic and non-Chassidic, Sephardi and Ashkenazi. The boy's school, for boys aged 4 to 11, was inspected by Ofsted at the end of 2010 and graded as good, with some outstanding features. The school teaches religious studies in the morning and secular studies in the afternoon. Boys who go on to the senior school take their GCSEs by the end of Year 10 before going on to Yeshivos, Talmudical colleges. The mother supports A attending this school, which is the recommendation of Ms Ionescu.

 

53.   The father's concern about Y is that the school is "under the auspices of the Charedi rabbinate", that the school will exclude the father because he has left the community, and that pupils do not progress to A levels or tertiary education.

 

54.   L Boys' School has an element of state funding and support from its local authority Learning Trust which give the CAFCASS Officer - and the father - more confidence that the school will engage with both parents. Ms Ionescu would have approved this school for A but for the 2014 Ofsted Report grading the education here as "requires improvement". The father points out that since the school became voluntary aided in 2012 it has made progress.

 

55.   Each of these schools will provide A with an experience sufficiently congruent with their upbringing to allow him to settle without any significant difficulty. Y is assessed as providing a significantly higher quality of education while L is required, given the element of state funding, to ensure that it cooperates openly and transparently with each parent.

 

56.   I conclude that A should attend the Y boys' school, as recommended by Ms Ionescu. The school has a greater balance between religious and secular studies than the school A currently attends, and this in turn should add to the congruence between A's school life and his home life moving between his parents. It is of fundamental importance that the school involves each parent in A's life on an equal footing. I accept that the father doubts whether this will happen, but I take Ms Ionescu's point that the father has a fresh start in his relationship with this school and that he should make the most of that opportunity. I accept that L has the advantage of greater state involvement with the requirement of transparency that brings to its dealings with parents, however the school has a significantly poorer Ofsted grade than Y in the most recent report available, and I consider that the greater transparency should not come at the price of the quality of education. Indeed the father himself places great store on the quality of his children's education.

 

57.   I do place weight on the wishes of the mother, A's primary carer. In this case those wishes should not be determinative, because the mother is so plainly struggling with the idea of the children's lives changing in any way and with the idea of the father's place in their lives. These issues are too closely interlinked with the decision about schooling to allow her wishes to assume determinative weight. Having said that, the fact that she is able to support this school should help A with the move from a school in which he is already settled.

 

58.   I emphasise that my decision is based on the expectation that Y school will interact with both of these parents on an equal footing. The father must be consulted on any issue of importance, just as the mother is. The father must receive everything sent out from the school, just as the mother does. The father must be invited to events at the school just as the mother is. The father must be able to visit the school just as the mother is. He must be made welcome. Both parents have parental responsibility for A and the school has an obligation to engage with the father in the way described. I am not prepared to assume, untested, that the school will fail in this duty. If this open communication and engagement does not happen, however, then the decision as to which school A should attend will have to be revisited.

 

59.   For B the options are Y (the mother's choice) or L (the father's choice). The Ofsted assessment of the Y boys' school applies equally to the girls' school, while the recent Ofsted report grades the girls' secondary school as good. L girls' school is also graded as good. The L girls' school is also in part state funded with the consequences referred to above. Again, the pupils at both schools are exclusively from the Orthodox Community and both schools teach the same balance of secular and religious studies. Whilst the majority of the children at L speak English, the school is noted for focussing on those children who are at an early stage of speaking English and successfully promoting their equality of opportunity. Both schools will give B the congruence she will need to be able to settle and do well at school.

 

60.   The mother argues that it is better for both of the children to attend the same school and Ms Ionescu saw some force in that point, however it is clear that this was not a determining factor, as her recommendation was for A to attend Y and for B to attend L. The point has less force in any event as the children would not mix even if they did attend the associated boys and girls school. The mother argues that Ms Ionescu discounted Y for B as a result of a mistaken belief that the Y girls' school was graded "requires improvement"; however the CAFCASS report clearly specifies that this grading applied only to the nursery provision and that the boys' and girls' primary schools are both graded good. Further, Ms Ionescu was clear that it is the issue of transparency that is extremely important to her.

61.   I conclude that B should attend L, as recommended by Ms Ionescu. Whilst the mother prefers Y, L is required to achieve transparency with both of a pupil's parents as a result of the element of state funding. I have referred at length in this judgment to the reasons why the father might be excluded from or minimised in the children's lives and to the vital importance of ensuring that this does not happen. Given this risk I place significant weight on the transparency factor. Since both schools are graded good by Ofsted and are therefore able to provide education of equivalent quality, I conclude that the transparency factor is determinative in B's case. In relation to A's school I have expressed the hope and expectation that Y will engage positively with the father, and I would express the same hope in relation to the girls' school. However the involvement of the local education authority in the management of L does add to the court's confidence that this vital ingredient will be present in the relationship between L and both of B's parents.

 

62.   I have indicated in relation to A the reason why the mother's wishes are entitled to respect and consideration but are not determinative in this case. The mother does have more anxiety about B attending this school. It is however a good school with whom she too has the opportunity for the fresh start identified by Ms Ionescu. The mother must do her part for the children and support B at this school, just as the father must support A at Y.

 

 

 

 

 

The Get

 

63.   I am asked, particularly by the mother, to consider the father's failure to give her a Get. The mother relies on this failure as evidence that the father has been unreasonable, and in turn that he is likely to be unreasonable in relation to the conditions of contact. The father told me that there have been practical problems in arranging the Get, and also that members of the mother's community offered him a large sum of money to provide the mother with a Get, on the basis that he accepted certain terms in relation to the child arrangements and finances.

 

64.   I do not accept the father's evidence that practical problems prevented him giving the Get. I find that he decided not to give the mother the Get because he was afraid that once he and the mother were divorced he would find it even harder to remain part of the lives of the children.

 

65.   I find it difficult to be too critical of the father for this. As a result of his decision to leave, he has felt the weight of the community "against him", as the prayer in the newsletter exemplifies. He has been and remains in a lonely and difficult situation. He has used the court appropriately to resolve issues that the parties could not agree, but his own father has been deeply critical of him for doing so - just when the father felt that he and the grandfather had started to repair their relationship.

 

66.   I do think that it is important for the father now to give the mother the Get. The mother needs him to do so, so that she can move on in her life and consider a further relationship. If this issue is addressed, I hope that the mother will see that as very important evidence of the father's goodwill and of his commitment to work with her and to ensure that the arrangements work for the children. I hope and expect her similarly to work with the father.

 

The future

 

67.   These parents have both been through an incredibly difficult period. I hope they will be able to see the end to this litigation as the point at which to take stock and to find a better way to go forward. A and B are still very young children. They need both of their parents to play meaningful roles in their lives. They will need their parents to be able to work together at least for the next 16 years to ensure that the child arrangements go smoothly. Unless both of the parents acknowledge this and find a way to achieve it, then these children will suffer emotional harm.

 

 

Order

 

68.   I leave it to the parties to draft the order in this case. In the event of difficulty, then the parties shall, by 4pm on Monday 10 November, send me a draft order with the competing drafts side by side and I will confirm the final terms of the order.

 

69.   I would like the order to include provision that any further application is made to me if available.

 

 

 

HHJ Rowe QC

4 November 2014