England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 December 2005

The Hon. Mr Justice Sumner :

Introduction

1. I am concerned for 7 year old JM who was born on 29 January 1997. His parents were married in the mid 1990s. J is their only son. The father, Mr M is a chorister at L Cathedral. The mother, M is Hungarian by origin. She has an older child, E, born on 31 May 1993. The parents both live in the Cardiff area.
2. I have been involved in proceedings between the parents since at least July 2001. There have been hearings several times a year since my original involvement. Nearly all the hearings have been before me.
3. The father has acted since July 2001 in person. At that hearing both parties were represented by leading counsel and a lengthy agreement was worked out which it was hoped would govern the future contact. The mother has been represented principally by Mr Paul Hopkins of counsel.
4. The applications which have been made over the years have covered a variety of topics. The father has been restrained by a s.91.14 order not to commence proceedings without leave of the court. Such is the antipathy between the parties that almost every point that could arise on the original contact order has been litigated.
5. The father has also sought residence of J. It was more in an attempt to resolve what he saw as the difficulties created by the mother and her failure to keep to the proper construction of the original contact order. He has not ultimately pursued it.
6. At a hearing before me in July 2004 a thorough and careful cross-examination by Mr Hopkins caused the father to accept that he had been misreading the original order and been wrong to insist on an alternative explanation. For a time it heralded a more benign period in this long history.
7. Broadly speaking the father sees J alternate weekends for 2 nights. He has longer staying contact at Christmas, Easter and in the summer, fitted in around the time that the mother spends in Hungary at that time of year.

Present issue

8. At a directions hearing before me on 21 October 2005 there were 4 issues which arose for determination. Firstly, the question was whether Dr Gay, a child psychiatrist, should be re-engaged to draw a report. Secondly, the precise details of half-term holidays was in dispute. Thirdly, the father said that because of the mother's behaviour he had lost a weekend of contact to J which he said should be made up. Finally, and the subject of this application, the father wished to take J to a voice trial at the Cathedral School, L.

Hearing on 21 October 2005

9. On that occasion I heard oral submissions from the father and from Mr Hopkins. The father wished J to attend the voice test. If he was successful then he might be awarded a scholarship which would enable him to attend the school, which is fee paying.
10. The fee paying element is a matter of contention. Though it has never arisen before me as an issue to decide, the question of money has surfaced from time to time. I am not clear about the father's employment, nor his interest in the property where he lives. What is common ground is that he is not making a direct contribution for J's support. He says that this is the result of an examination of his means by CSA.
11. The mother who was a dentist in Hungary is seeking to re-qualify. In the meantime she is on income support. She has to look after herself, her daughter and J. She would strongly wish the father to contribute towards J. She is therefore very upset that the father should contemplate a move to a fee paying school.
12. The father accepts that even if J were to be awarded a scholarship, the mother is strongly opposed to him moving school. On 21 October I directed that the father should have permission to take J to the Cathedral School for a voice trial.
13. I made it clear that this was for a limited purpose only. It was so that if the father upon further consideration wished to make an application for J to attend the school, an essential prerequisite, namely the award of a scholarship, had been accomplished. I set out my reasons shortly at the time though I now do not have a note of them.
14. The father wrote to me by a letter of 21 November 2005 which was forwarded to me in Newcastle. He said that he had written to the headmaster of the Cathedral School enclosing a copy of my order. On 7^th November he was informed that the voice trial would take place on 18 November 2005. He immediately provided the mother's solicitors with the details.
15. He said that the solicitor informed him that the mother was adamant that she did not want the voice trial to proceed. This was of course in breach of my direction. The net result was that his present school refused to release him for the voice test because of a letter from the mother preventing this.
16. I was returning to Cardiff for 2 days on 24 and 25 November. A further directions hearing was accordingly arranged.

25 November 2005

17. At a short hearing Mr Hopkins, with beguiling advocacy, submitted that it would be right for me to re-visit the decision I had made on 25 October. I am by no means clear that I was correct to permit him to do this. The issue had been short and clear. An opportunity had been provided for the mother's objections to be set out. I had ruled on the point. Furthermore, Mr Hopkins told me that the mother accepted advice concerning an appeal from my direction of 25 October and no such appeal was issued.
18. The fact that there were some additional documents and that the mother may not have understood potential financial repercussions was not in my judgment sufficient to warrant a reconsideration. However, in the event that this might not prove correct, I consider shortly the matters that Mr Hopkins raised. I do so because he asked me to put in writing the short decision I made on that second occasion.
19. I was shown copy of a letter from the mother to J's present headmistress and her reply. In that the mother said that J did not wish to become a choir boy, she could not in all conscience force him to go. She felt she had to protect him from unnecessary emotional harm and anxiety and make a stand for him to uphold his rights since the court had failed to do that for him.
20. The headmistress responded. She stated that J had not wanted to go to the voice trial. He did not want to be in the choir. He did not want to go to another school. He said he wanted to stay with his friends and not do lots of singing.
21. Mr Hopkins also raised the question that should the father be unable to make all the payments, the mother could be liable. I am satisfied that these arguments are ones to be considered and given due weight if the father makes an application for J to change schools.
22. The mother also said in Mr Hopkins' written submission that she was "frankly irritated that the father contemplates substantial expenditure ……….when he continues to pay no child support to CSA". Again this is something to be considered if the father makes his application.
23. Mr Hopkins went further in his submissions. His point was that this application was part of the father's agenda to change residence and he was seeking to undermine J's position with his mother. It should not be permitted, it was an outrage. The mother's agitation, which no doubt informed the submission, was evident in court.
24. I have to make my decision based on J's welfare which is my paramount consideration. I am aware that the father is a committed chorister himself. In the past there have been disputes about whether he should or should not continue to take J to service and rehearsals to the extent that he has.
25. Whatever the merits of a change of school may be, I am in no doubt that the father wishes sincerely to give J a chance to attend if he can afford it and the court approves. The high standing of the Cathedral School has not been questioned.
26. It may well be that on a full consideration, even if the father could support the cost involved, J's best interests would not be served by such a change. The headmistress' report shows some of the points that would arise in opposition to any application the father might make.
27. In my judgment the mother's response to this application has been disproportionate. There is no present application for a change of residence order. I do not see that one voice test, even if it were to cause J some initial minor apprehension, can be regarded in any way as undermining or threatening to his placement with his mother. It is however essential if the father wishes to pursue his claim.
28. I am quite satisfied that it is right and in J's best interests for the father, if he wishes, to make an application for a change of school. It may turn out to have little merit, it could on the other hand be for J's advantage. I have not heard full argument on this.
29. I am clear however that the mother should not be permitted to prevent the application being made by refusing one voice test. This would deprive the father of an opportunity to make an application on which he holds strong views. The potential upset to J of taking one short voice test would be small. The potential disadvantage to the father's application and the ability of the court to adjudicate between rival positions would be very considerable.
30. Accordingly I refused the renewed application if in fact it was right to consider at all. My order remains.
31. I understand it is only this term that the test can be held. Mr Hopkins asked me to give my reasons. I have done so, so far as I can recall events as I am without a full bundle of papers before me. The father may well wish to consider whether to pursue an application for change of school even if the scholarship is awarded. But that is for him to decide.
32. I shall make a direction as against the mother that she permit the father to take J from his present school for the purpose of a voice test at the Cathedral School. I shall further direct that the mother shall not seek to prevent the present school releasing J from school for the purpose of attendance at the voice trial. I trust I shall not have to grant a penal notice.
33. I make the following direction:

"1) The Respondent mother shall make J available for a voice trial at the Cathedral School at the time and on the occasion fixed by the Cathedral School, the Applicant father's notification of this being deemed good notice of the said voice trial.

2) The Respondent shall take no steps to stop J attending the said voice trial whether by informing the present school or by any other means.

3) This order will be deemed to be served upon receipt by the Respondent solicitors of this document by email. It will come into effect in respect of any notice given by the father after 2.00pm on Friday 2 December."