England and Wales Family Court Decisions (other Judges)

CASE NO ZW16P00641

IN THE WEST LONDON FAMILY COURT

SITTING AT BARNET

 

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF A AND B

See also:
X (Number 4: Religious Differences: Shared Care) [2019] EWFC B81 (11 September 2019)
X (Number 2 : Orthodox Schools) [2015] EWFC B237 (9 May 2015)
X (Number 1 : Religious Differences : Schools) [2014] EWFC B230 (4 November 2014)

Date: 12 October 2016

 

Before:

 

HER HONOUR JUDGE ROWE QC

_________________

 

BETWEEN:-

 

 

 

 

_________________

 

For father – Jessica Bernstein (counsel) instructed direct access by the father
For mother – Ruth Kirby (counsel) instructed by Guile Nicholas Solicitors
For children: Richard O Sullivan (counsel) instructed by Creightons Solicitors

_________________

 

JUDGMENT

 

Application

 

1. Two loving parents of two very young children continue to struggle with the arrangements for their children's care. In this, my third substantive judgment in this case, I determine the father's application to enforce my orders of November 2014 and July 2015 and the mother's application to prevent the father from spending any Sabbath with the children and from spending any festival day with the children save for Yom Kippur and Shavuot and intermediate days of Pesach and Succot when the mother is in England rather than Israel.

 

2. Before I turn to the issues in dispute, I wish to highlight the positive aspects of this case. Despite the difficulties to which I refer below, the children see their father every week, they stay overnight with him on alternate weekends and they spend extended periods with him during the limited school holidays. They recently travelled abroad with the father for two weeks to spend time in the extended paternal family. Currently therefore these children continue to benefit from a close, deep and loving relationship with both parents. It is essential for their emotional development throughout their lives that this continues to be the case.

 

 

History

 

3. For the history of this case I refer to my judgments of November 2014 and July 2015.

 

4. In summary the whole family lived a Satmar Ultra-Orthodox Jewish life until early 2013 when the father decided to leave the community. This was a seismic event for the family. The father continued thereafter to follow his Jewish faith but at least for a time he did not practise within a settled Jewish religious community. The court had, at previous hearings, to contend with the mother's distress and fear of the children being exposed to an alien way of life on the one hand, and the father's impatience at having to continue to follow the Satmar way of life during his time with the children on the other hand. Such were the complexities of the case that by the time of the second substantive hearing in mid 2015 I had joined the children as parties to the proceedings and the Guardian had secured the assistance of Dr Asen, Child and Adolescent Psychiatrist.

 

5. Thus far the father has never proposed that the children move from the primary care of their mother. At times the mother has proposed a cessation of contact, citing alleged failures by the father to meet the expectations of his religious adherence when with the children. The issues I have dealt with in previous judgments have therefore concerned the nature, frequency and duration of the children's time with their father, the expectations on both parents given the need to help the children move between two different worlds, and the identity of the children's schools. Some issues have proved harder to resolve than others.

 

6. The position by the conclusion of my second judgment in the summer of 2015 was that

 

1. The children were to continue to live with their mother;

 

2. They were to continue to see their father

 

                                                              i.       For alternate weekends to include the Sabbath period;

                                                            ii.       For Sunday contact for 3 hours on the intervening weekends during term time;

                                                          iii.       For half of the school holidays;

                                                          iv.       Including periods during the Jewish religious festivals.

 

The position since July 2015

 

7. The parties agree that the children have been with their father for the weekends, the Sunday visits and for extended periods during the school holidays as envisaged. The parties also agree that the children have never yet spent a Festival day (as opposed to the non Festival days during Festival periods) with their father. The mother's case is that she misunderstood the provisions of the previous order, given an element of unresolved inconsistency between the contents of my judgment and the provisions of the order as drafted at the end of the hearing.

 

8. On 31 May 2016 the father issued an application to enforce the provision of the order requiring the mother to make the children available for Festival days.

 

9. On 28 June 2016 the mother issued an application to vary the terms of the order (a) proposing that the children see their father every weekend for one overnight but always excluding the Sabbath, and (b) providing for the children to spend all Festival days with their mother. The mother's case is that the father has shown a disregard for the rules of the Sabbath, by allowing the children to see and do things forbidden to them - and which the father knew full well was forbidden to them - such as seeing electronic devices, pressing switches and riding their bikes. Further she says that he has allowed the children to eat non kosher food, and he has refused to wear the kippah at all times when the children are with him. The Festivals do not matter to the father now, says the mother, and therefore he will not follow the rites and practices of the Festivals if the children are with him. She says both that the father's actions place the children at risk of criticism and exclusion within their community and that in any event the children will miss out fundamentally on the full Satmar experience of Sabbath and Festival days if they are not with her.

 

Issues at the hearing, and position of the parties

 

10. In relation to the cross allegations of breach, the father invites the court to find that the mother is in breach of the court orders by failing to make the children available to him for any Festival days. The mother invites the court to find that the father has acted in the ways alleged by the mother (who says these are allegations actually made to her by the children) and to direct him henceforth to comply with the relevant religious rules.

 

11. The parents have reached agreement about the shorter Festivals. The children will spend Yom Kippur and Shavuot with their father, and Rosh Hashanah and Purim with their mother. The father wishes the children to share their time equally between the parents in the Festival periods of Pesach (11 days) and Succot (10 days) sharing both the Festival and the intermediate days equally. The mother proposes that all Festival days are spent with her but that the children spend the non Festival days with the father.

 

12. The mother continues to propose and the father resists a variation preventing the children from ever spending the Sabbath with him. The father has not actively pursued an enforcement order against the mother.

 

13. The Guardian's position is that

 

1. The weekend arrangements should continue unchanged;

 

2. The children should be able to spend religious Festival days equally with both parents.

 

14. The Guardian has not taken a lead on issues of breach. In broad terms however, her conclusions are that it is not helpful to focus on breach proceedings against the mother, however as it emerged during the hearing that the mother had never been given Yiddish translations of the court's judgments or orders that position should be rectified urgently. The Guardian found the father to be more settled than a year ago, spending time as part of an Orthodox Community that has helped him come to terms with his life changes since 2013. She concludes that if on occasion he has not followed the strict Satmar rules this has happened far less than it has in the past.

 

15. The Guardian commended mediation to the parties who find communication difficult. Each parent expresses a preparedness to attend mediation, however they cannot agree the identity of a mediator. The mother would be content to continue to use Dr Asen but the father would not. That is unfortunate as Dr Asen offers an opportunity that is probably unique namely the chance of mediation by an experienced consultant child and adolescent psychiatrist. I would ask the father to reconsider his position in relation to Dr Asen. Going forward good communication will be essential, and it is something the parents find intensely difficult. Without assistance on the issue of communication, for obvious reasons from a person outside the Satmar community, the risk of a breakdown in arrangements for the children increases. That must be avoided at all costs.

 

16. The Guardian warns that in the event of further litigation she would be bound to consider applying for an order under s91(14) CA 1989 preventing further applications without leave of the court. She is deeply concerned - as am I - about the impact of continued litigation on these children.

 

The hearing

 

17. I read the relevant documents. As the Guardian was only available on the first day, I took the evidence in chief of each parent and then heard the Guardian. On the following day I heard cross examination of the parents. As before, the mother gave her evidence in Yiddish with the assistance of her consistent interpreter. All parties were represented, a contrast to 2015 when the father was constrained by financial factors and appeared in this difficult case in person. I have been greatly assisted by the experience and expertise of all three advocates.

 

18. The parties returned on a subsequent day to present their submissions, delivered in writing and supplemented orally. I am very grateful to Miss Kirby for producing a draft order with provision on an "either/or" basis on the issues in dispute. That means that the parties are unlikely to need further court time on the detail of the order.

 

19. I apologise that I have been delayed in producing this judgment.

The law

 

20. I must continue to have the welfare of these two young children as my paramount consideration. I must have regard to the welfare checklist. I must have at the forefront of my mind the importance for these children of maintaining a close loving relationship with both of their parents.

 

21. I remind myself once again of the words of Munby LJ as he then was in the case of Re G [2012] EWCA Civ 1233 detailed in paragraph 20 of my 2014 Judgment.

 

22. The test for making a finding of fact is the balance of probabilities.

 

Overview [3]

 

23. I have now heard each parent give evidence at length on three occasions, in 2014, 2015 and now 2016. I refer to my overview of the case and assessment of the parents at paragraphs 21 to 26 of my 2014 Judgment. I refer to paragraph 27 of my 2015 Judgment [overview revisited] and to paragraph 31 of that judgment on issues of credibility.

 

Previous overviews

 

24. In 2014 I accepted that the father, a loving, thoughtful and plainly intelligent man, was committed to supporting the children in their Satmar lives. I commented that

 

"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 [exposure to TV] 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 in the community in which they live for the majority of their lives. He is clear that that 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."

 

25. In 2015 I was rather more critical of the father who, to be fair, had to contend with the daunting task of presenting his case in person when the mother continued to be represented in court by her counsel, solicitor and interpreter. At paragraph 27 of my judgment I said this

 

"..I have less confidence than I did in November in the father's ability to stop himself from exposing the children to different experiences, experiences which he values and wishes to share with the children but which carry the risks of confusion and difficulty that I identified in my [2014] judgment."

 

26. I found that on a relatively limited number of occasions the father has been careless, unwise or actually disappointing (in relation to showing the children TV) in his resistance to providing some aspects of Satmar life for the children.

 

27. Turning to the mother, in 2014 I noted that she would find it difficult to support the children's time with their father and I noted that she struggled to see the father as Jewish given that he decided to leave the community. I noted the community stance against the father. I accepted that the mother had not instigated the community prayer against him being included in the newsletter, but I went on to observe that

 

"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."

 

28. I concluded by saying

 

"65. However hard the father works to honour this commitment, the children will inevitably see and hear things when they are with him that they would not and should not hear within Satmar. That is unavoidable. Whilst he must help them make sense of such matters in a protective and supportive way, the mother must equally understand that this will happen. She must not rush to blame the father when such matters arise. If the children say something to her which worries her then she must not presume that the father himself has acted inappropriately...She must speak to the father to find out what has really happened

 

29. On credibility I said this in 2015

 

"31...I find that both parents are essentially honest witnesses, however the evidence of each is affected by a profound fear of the loss of their children to the influence of the other. The father fears the weight of the community against him, and the consequent loss of the children into the community, and the mother fears the impact on the children of exposure to the outside secular, fundamentally different, world which might influence the children away from Satmar and from her. The result is that both parents are riven with suspicion and hostility which gives rise to a degree of misinterpretation of things that happen, and a profound lack of tryst. This dynamic impacts, at times on the evidence of both parents."

 

2016

 

30. My overall impression of the mother remains the same. She has not changed. Her fears remain the same. Her suspicion of the father remains the same. Her distrust of the father's case and his assertion that he is settling into life in an Orthodox community and way of life was striking when set against written evidence of members of that community and against the mother's own admission that she has no knowledge of that community herself. She said that she could arrange to visit the father's community and I consider it would be immensely helpful for the children if that could be arranged. Surely some awareness by the mother of the father's way of life would help to alleviate the suspicions and uncertainties that continue to motivate her. It seemed that she was looking for evidence to confirm her worst suspicions, and whilst the father has been dismissive when she has tried to raise things with him on occasion I did gain the clear impression that the mother has been making the very presumptions that I cautioned against in 2015.

 

31. My overall impression of the father was of a man far calmer and more at peace with himself that he was in the quite fraught proceedings of 2015. Then he seemed quite rootless, he had a strident air that was no longer apparent over the three days I saw and heard him in court. He was at odds with his family. By contrast now he is a member of one local Jewish Community and has links with another. He celebrates Sabbath with other families in the community on occasions whether the children are with him or not. He and the children celebrate together with those families. Centrally, the father has made peace with his father. He told me about the trip to Jerusalem this summer and spoke movingly of how he, his father and A studied together in a way which the father thought had helped A to harmonise his mother's and father's worlds. He will happily return for visits when he has enough money to be able to do so.

 

32. My overall assessment of the credibility of the parents remains unchanged.

 

Findings

 

33. I look first at the finding sought against the mother. The mother identified inconsistency between my judgment and the drafted order - and internally within different parts of the order - as the reason for non compliance. She says she never seen either my judgments or my orders in Yiddish, but it is plain from her own emails that she exhibits that even without translated documents she was aware of what I had said in my 2015 judgment, namely that the majority of the Festivals should be spent with her; it follows that I intended a minority to be spent with the father. Whilst I agree that the inconsistency is there and needed resolving, I conclude that the way to resolve it was plainly not by refusing any Festival contact whatsoever, and on balance I find that in her heart the mother knew that. I commented previously on the mother's difficulty in seeing the father as still Jewish, and I conclude that she continues to struggle with this issue, which explains her reluctance on this issue.

 

34. What is essential now is clarity. I will direct that my three Judgments and this order are translated into Yiddish for the mother. Both parents must comply with this order. I am very pleased that the mother has already agreed that the children will spend two Festivals with their father.

 

35. I turn to the findings sought against the father. In 2015 when I was also asked to make findings against the father, I noted procedural deficiencies namely an absence of a schedule of findings and an absence from the mother's first statement of detail about the findings sought. The position is similar in 2016. There is no schedule of findings. The mother gave quite generalised oral evidence that the children have made many allegations which she does not particularise in her written statement. The father has accepted some limited allegations and explained them. The majority he denies. Not only is the procedural preparation the same as in 2015 but the allegations themselves are largely a repeat of previous allegations.

 

36. The mother has said that she is merely reporting what the children have said to her. She reports them telling her

 

1. Of riding their bikes on the Sabbath in October 2015;
2. Of A being shown an electronic device, including in a locked room during the visit to Jerusalem;
3. Of the father letting them watch TV including on the Sabbath;
4. Of the father letting B press a traffic light button on the Sabbath;
5. Of the father letting the children eat non-kosher food;
6. Of the father taking off his kippah on Sundays, and once in Stamford Hill - seen on that occasion by a friend of the mother's.

 

The mother also said that the children are sad when they go to the father on the Sabbath, which she relies on to support her case that the father and his friends are not observant.

 

37. The father accepts some of the allegations and denies others. He accepts that on one occasion he allowed the children to ride bikes in a park he thought was eruv in circumstances he thought were permitted. He accepts that despite his request to the contrary, the children of friends showed A an electronic device on one occasion. He accepts that he does not wear the kippah other than on the Sabbath or when he visits Stamford Hill, but says that he will do so to help the children; that is helpful. He denies the other and more general allegations and he denies ever taking A into a locked room during the trip to Jerusalem.

 

38. I find that there have probably been occasional deviations from the Satmar rules for reasons including mistakes and occasional carelessness of the father or others, however I do not find that the father has deliberately or intentionally flouted the expectations on him or, in any event, that these have been either frequent or generalised. My reasons are as follows.

 

39. I have set out above my assessment that the father is calm, and much more settled now than he was 18 months ago in an observant Jewish community with observant Jewish friends. I gained the clear impression that he was more at ease with the need to introduce any changes only at the children's pace. He obviously valued the chance to pray with his father and to pray and study with his father and with A.

 

40. I accept the written supporting evidence of his friends that the father shares Sabbath meals and activities with them when the children are with him and that these are observant occasions. I find that he would not do something as fundamental to any observant Jew as to give these children non-kosher food.

 

41. The father knows what is at stake here. I find that he would not now deliberately cause problems for the children especially knowing that at the age of rising 7, A would be able to report such problems to his mother and others.

 

42. Whilst I accept the evidence that the children have talked and will continue to talk to their mother about their experiences with their father they need her to take into account - as I do in my analysis - their very young age, the lack of context for anything they say, and their understandable difficulty in comprehending and interpreting accurately anything they see when with their father that they do not see when with their mother. They need her to try to help them interpret new experiences and they need her to do so from a perspective of support and help rather than suspicion and adverse presumptions.

 

43. There is no report from any third party such as the children's schools that they have said anything of concern. If the children were really being exposed to inappropriate experiences especially with the frequency asserted by the mother then they would have said something to others outside the home, either intentionally or inadvertently, if only to their friends.

 

44. Finally, the mother did say that the children are sad when leaving her for Sabbath, however I find that that could just as easily be because they know she is sad as because they think their father will not look after them properly. Most telling is that when asked in cross examination whether she had needed to prepare the children to leave her for the two week holiday with the father she said "they don't need to be prepared. They are happy to go and they run to him". I find that if the father was being anywhere near as careless or dismissive about the children's way of life as the mother asserts, then they would be showing the signs because such behaviour would place them under very real pressure. In particular they would be unlikely, I find, to run to their father in the natural, happy, carefree way described by the mother.

 

Outcome

 

45. It follows from my findings that the mother's case to vary the last order because of breaches by the father is not made out.

 

46. The mother separately asks the court, as I understand it, to review the last order on the basis that the children simply do not have the full Satmar experience with the father either during the Sabbath or during Festivals. Further she points to my 2015 Judgment where I noted that the Festivals were less important to the father and therefore that the children should spend the majority of them with the mother.

 

47. I conclude that the termtime arrangements should continue as at present. I further conclude that the children should spend equal time with each parent, both Festival and intervening days, for both Pesach and Succot. My reasons are as follows.

 

48. I remain of the view that especially given the Satmar difficulty - and the mother's difficulty - in acknowledging that the father is still Jewish, it is vital for these children to see that he is. To that end they must spend important religious days with him just as with the mother. Both parents must be part of the fabric of the children's lives.

 

49. The rules applicable to the Sabbath and to Festival days apply to all Jews and therefore while the children's experiences with their father may feel different in detail to their Satmar experience, that will only enrich rather than harm them.

 

50. So far as the weekends are concerned I resolved that issue as recently as July 2015 and nothing in the evidence indicates a need to change the decision.

 

51. As to Festivals I see no continuing need to distinguish between the relative importances of the parents. The father is settled in a more observant life and I accept that it is now more important for him to spend the Festivals with the children that it appeared in 2015.

 

52. As yet the children have not been able to spend any Jewish Festival with their father. Now that this is to start it is important that they receive the clear message that their lives with each parent are equally important.

 

53. On a practical note, a simple division of each of the two longest Festivals between the parents will minimise the toing and froing for the children that would flow from the mother's alternative proposal.

 

Conclusion

 

54. I wish the parents well and I wish the children well. I hope and expect that litigation will now end. I do not wish to conclude on a negative note, however I feel duty bound to give both parents a clear message for the future.

 

55. The mother must understand that these children will always be living a life that is different from that of their peers, however sensitive and careful the father is to minimise the differences at this stage. Her task is to support them in understanding the differences rather than to be threatened by them. She must understand that cutting out the father is not an option that the court could support. She must further understand that it is in the children's interests to grow with an awareness of the lives of both of their parents.

 

56. The father must continue to be patient. He must continue to support the children. He must be ever vigilant to avoid carelessness. He knows the Satmar world intimately. Carelessness over its rules is at best disappointing and it is potentially emotionally harmful to the children. If the mother does raise an issue with him then he must not be dismissive of it. He has to understand how important it is to try to reassure the mother. He must respect her questions and give her a meaningful answer. If there is evidence that he is deliberately breaching Satmar rules and harming the children then the court would be highly critical of him.

 

57. I urge these parents to work together, to improve communication and where appropriate to mediate. The father may not wish Dr Asen to help but if he thinks hard about that he may see that without the help of Dr Asen there is a real problem in solving issues that will continue to arise. He may appreciate that it is better to ask Dr Asen for help than to end up without anyone to mediate over issues that will continue to arise.

 

58. Finally in fairness to these parents I must make it clear now that if there are further problems in this case, the court may very reluctantly be forced to think more radically about arrangements for these children. At such a point the court would have to evaluate the parties' respective responsibility for such difficulties and also to evaluate which parent would be more able to support the children's relationship with the other parent over the short, medium and long term. Neither parent should make any assumptions as to the outcome of that exercise. The court would also be considering carefully the need to make an order restricting further applications. The difference between the parents' lives will endure throughout the children's childhoods and beyond, and the court can do nothing to take those differences away. Only the parents can and must find a way to parent their children and to navigate through those differences without repeated recourse to the court.

 

The Order

 

59. I will go separately through the order and delete or amend provisions where appropriate.

 

Bailli

 

60. The mother is keen for this and my previous two judgments to be placed on Bailli. The Guardian did not express a strong view. The father has a concern about the children being identified.

 

61. My starting point is the Practice Guidance dated 16 January 2014. These are judgments that may be published if I conclude that publication should be given, as a party has applied for an order permitting publication: Guidance paras 15 and 18.

 

62. In deciding whether and if so when to publish a judgment, I must have regard to all the circumstances, the rights under articles 6 and 8 ECHR, and the effect of publication in any current or potential criminal proceedings: Guidance para 19.

 

63. The mother submits that as the circumstances of this case and the issues addressed are relatively rare publication may benefit other judges who face similar issues but feel they have little guidance to which to refer. She submits that there is from time to time adverse publicity about the communities such as the Satmar so that there is a public interest in having access to a balanced judgment which looks objectively at the children's situation. She further submits that although even an anonymised judgment will undoubtedly allow the children to be identified, the community is already fully aware of the case and of the identity of the children. There is also, therefore, a community interest or benefit in allowing members of the community access to an objective analysis of the issues arising in this case to replace the uninformed or one sided understanding that they are likely to have at present.

 

64. The father is concerned about the children being identified.

 

65. I am very aware of the ongoing debate about the extent to which children's private details should be published. I am conscious that recently young people have themselves expressed concern about this, and about how easy it is to identify children even from anonymised judgments. I accept that those within the mother's community will be able to identify these children from the details of the case. I also find, however, that those within the community already know who the children are and know the essence of their situation. I have had evidence to that effect and I expressed concern about it in my 2015 judgment.

 

66. I conclude that the three judgments relating to this family should be published. Those within the children's community already know who they are, and those outside the community will be unable to identify them from these judgments. The facts are sufficiently complex and unusual to give rise to a legitimate public interest in the publication of my judgments.

 

67. Further I conclude that it will be helpful rather than harmful to the children for those in their mother's community to understand the care and respect that the court has brought to this case. Crucially, publication will convey the court's evaluation of the fundamental importance to these children of a full continuing relationship with both parents. These children will continue to move between two worlds and in doing so they will continue to live a different experience to the other children within their mother's community. These children need the community to help their mother to support them in that journey. A and B need the community to understand that they will inevitably have these different experiences in their lives with their father and to be accepting rather than rejecting as a consequence. They need the community to recognise and acknowledge the importance of their father's role in their lives.

 

68. I will look again at these 3 judgments and send out final proposed anonymised versions to the parties in case any party has final observations about the process of anonymisation.

 

Costs

 

69. I have made some albeit limited adverse findings against both parents. It is vital that there is no unnecessary damage to the parents' relationship as a result of these proceedings. I therefore conclude that the usual rule for costs in children cases will apply and there will be no order for costs. This, too, is less likely to be the outcome in the event of further litigation.

 

 

HHJ Rowe QC

12 October 2016