England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
On appeal from the Family Court at Barnet
No. ZW16P00852
IN THE MATTER OF THE CHILDREN ACT 1989

IN THE MATTER OF IZ
IN THE MATTER OF IZ

		2017/0037 Royal Courts of Justice
		14th March 2017

MR. JUSTICE BAKER:

1. This is an application for permission to appeal by a father against a child arrangements order and a specific issue order made by His Honour Judge Rylance, dated 10^th February 2017, in Children Act proceedings concerning his two children, "I" born in 2006 and therefore now aged 10 ½ and "Y" born in 2010, therefore now aged seven.
2. The respondent to the application is the boy's mother. Although the notice of appeal raised a number of complaints, the focus of the appeal, as argued before me, has been the specific issue order which concerned the choice of schools for the older boy, I. The judge's order provided that, when he leaves primary school at the end of this academic year, I should go to an Islamic school, which I shall refer to as "School A" as proposed by the mother. The father's preference is that he should go to a circular school which I shall refer to as "School B".
3. It is important to emphasises at the outset that this is not a re-hearing. I am not deciding this matter afresh as if I were hearing it as the judge at first instance. I am hearing an appeal against the judge's decision. An appeal will only succeed if the father satisfies me that Judge Rylance' decision was wrong or, alternatively, unjust, because of a procedural or other irregularity. Before the appeal proceeds, the father must obtain permission to appeal. That will only be granted when the court concludes that there is a real prospect of the appeal succeeding, or there is some other compelling reason for the appeal to proceed.
4. The background to the case, insofar as relevant to this appeal is as follows. The father is aged forty-four and works as a marketing director. The mother is aged forty-seven and works in planning. They married in 2004 and had the two boys as stated in 2006 and 2010. The mother is a Muslim and on the parties' marriage the father converted to Islam. The mother has an adult daughter by a previous relationship.
5. In 2012, the family immigrated to Australia. Whilst there, I was enrolled, for a time, in a fee-paying Islamic school. In 2013, the parties separated and was granted an Islamic divorce. In January 2015, the parties reached an agreement in respect of the children's arrangements, which was ratified by a court in Australia. It provided for the children to live with the mother and spend time with the father. It further provided that the mother and boys would return to the United Kingdom, which they duly did in March 2015. The father also returned to this country later that year.
6. In the agreed order of the Australian court, it was recited inter alia that:

"The children practice the Islamic faith so, during time with the father and his family, he will honour these beliefs ensuring only Halaal food is eaten, prayers are performed and days of religious significance are observed. If the children attend an Islamic school, then this falls under extra-curricular activities and homework is to be treated the same as school homework. This is an important part of the family's identity and must be nurtured."

7. On return to the UK, the children went to a primary school in London. The parties then began to discuss secondary education options. By this point, the father had renounced Islam. Discussions focussed on three schools, School A, the Islamic school to which I have referred, School B, the second school to which I have referred and a third school, School C, a state academy. In the , that third option fell away in the course of the negotiation in proceedings.
8. There was much discussion between the parties, and it seemed that both were looking objectively at all three options and discussed how the schools would meet the needs of the children – for example, issues such as the proximity of the school – and they discussed the possibility of moving closer to the schools and other issues, including, for example, how each school would deal with I's peanut allergy. There was much discussion about these issues between the parties via email.
9. It is clear that, at one point, the father was looking positively at School A as an option for A but as time went on, his view on this option changed. When the parties were unable to agree this issue, the mother in July 2016 filed an application for a specific issue order that I should attend School A. A fortnight later, the father filed an application for a child arrangements order in respect of both boys, seeking that time should be divided equally between the parents. The applications were consolidated and the case allocated to a s.9 circuit judge in North London and various directions given for hearing the applications.
10. In the interim, the existing child arrangements order made in Australia continued. Statements were filed by both parties and at a further directions hearing on 28^th October, Her Honour Judge Mayer ordered that a Cafcass officer file a s.7 report, reporting on the children's wishes and feelings in respect of the parties' proposals for schooling and the father's application for a child arrangements order.
11. That Cafcass report was filed on 7^th February 2017, shortly before the hearing before Judge Rylance. The officer reported that both boys wanted to see the father and that I was clear that he wanted to see more of his father.
12. The evidence which the Cafcass obtained about I's wishes and feelings regarding schooling, however, was limited. I told the Cafcass officer that he felt pressured by his upcoming exams for School A but did not expand on his views and seemed keen to avoid discussing it. The only indication of I's possible views obtained by the Cafcass officer was in a passing remark made by the mother, namely that, if I was not successful in his entrance exams and interview for School A, then her and I's first choice of school was School B as I had shown a preference for this school when he attended for a visit.
13. Although the Cafcass officer's instructions had been confined to establishing the children's wishes and feelings, she did make a number of other observations in the light of her inquiries and conversations with the parents. Particular attention was drawn at the hearing before me to the following observation made by the Cafcass officer in her report at para.21:

"It is unfortunate that the parties require the assistance of the court to make a fundamental parenting choice. The only issue that I noticed is that the mother may be entirely focussed on the children attending an Islamic school and there is a risk that she is failing to recognise the children's multi-heritage and encouraging them to explore this. The mother informed me that she would be able to afford the fees herself for I if he is successful at School A. However, if he is not successful, she would agree for I to attend School B as a first choice. It would be significant for both parties to be able to agree with this decision. However, in the light of I having had some involvement in the process at being at an age where he is able to express his views, it is important for his wishes and feelings to be considered and I would support I attending School B as a first option."

14. At the conclusion of her report, the Cafcass made the following recommendation:

"I would respectfully recommend that a child arrangements order for I and Y to live with their mother and to spend increased time with their mother. The order should state, 'and any other arrangements agreed by the parties'. This means the children initially having one overnight stay during the school week with the parties agreeing to gradually increasing to around two nights per week. I would hope the parties could come to an agreement before the next hearing, however, my view would be for I to attend School B which he showed a preference for and for Y to remain at his current primary school."

15. At the conclusion of the contested hearing, the judge made an order in the following terms:

"Recitals

(a) The father agrees to respect the children's religious upbringings.

(b) The mother agrees to notify the father once she receives confirmation as to whether I has secured a place at his secondary school.

It is ordered that

Child arrangements order

(1) the children I and Y shall live with their mother

(2) the mother shall make the children available to spend time with their father as follows;

during school term-time commencing February 2017,

(a) in week one,

(i) on Wednesday from after school to Thursday to school,

(ii) from Friday after school to Monday to school.

(b) In week two,

(i) on Wednesday from afterschool to Thursday to school

(ii) and thereafter from January 2018 when the children

(iii) commence the school term from Wednesday from after school to Friday to school.

During school holidays,

(a) for half of the children's school holidays including half-terms, on days to be agreed at the beginning of each school year,

(b) during the summer holiday this may be for a period of up to two weeks at a time,

(c) the children shall be with their mother during Islamic religious festivals which will constitute Eid. The parties agree that should these periods of time fall within the father's contact, this time of the father shall be made up.

(d) The children shall spend alternate Christmas, Christmas Eve through to Boxing Day with each parent. Mother to have Christmas with the children 2017.

(e) For the avoidance of doubt, the children shall spend the remainder of their time with their mother.

(3) There shall be such further or other child arrangements as may be agreed between the parties.

Specific issue order

(4) The child I shall attend School A if he secures a place. In the event that he does not, he shall attend School B or such other school as the Local Authority offers, commencing September 2017.

(5) There shall be no order as to costs."

16. In fact, as emerges from the judgment which has been transcribed for the purposes of this appeal, the child arrangements order had been broadly agreed. The only contested issue seemingly being when precisely the father's increased contact should start. Prior to the hearing, contact with the father had been taking place on four nights per fortnight but under the order it rises immediately to five nights per fortnight and then to six nights per fortnight from January 2018. The father had argued for an earlier increase than the order made by the judge.
17. The principle issue of the hearing had been the choice of school. The judge observed in his judgment that,

"The court is not here to make – as opposed to encourage – compromise. It has to choose which school best suits the interests of a child or children. Having said that, (1) what school best suits a child is not necessarily to be judged only by its religious ethos, its academic attainments or its standard of care, albeit that all those will be in the mix. What really matters is what suits the child. Only his parents, acting constructively, can judge that. The court is in no position to do so. (2) The important aspect of the choice of a school is that both parents are able to accept it. Both are and will be fully involved with the schooling of their children. Both must be and must by the children be seen to be supportive of the school which they attend."

18. He noted that all three schools had good academic records and provide good pastoral care. The judge noted that School A was a boys only Islamic school adding, "There is nothing that can or should be said against it on that account. It is Ofsted inspected and highly rated".
19. By the time of the hearing, I had passed the entrance exam of School A and was awaiting an interview. As for the children's wishes, the judge noted that I had expressed no preference to the Cafcass officer and that as a result he had no independent evidence of I's wishes. He noted that I had been stressed by the entrance exam but according to the mother had subsequently been excited that he passed. It was her case to the court that I had expressed a preference for School A.
20. The judge then summarised the parties' respective cases as follows at paras.28 -30 of the judgment:

"28. The mother's case is that she prefers School A not because it is Islamic but because in all aspects it is the best school. It is significantly better, she says, than School B academically. It is better equipped to deal, if necessary, with I's serious peanut allergy. It will promote the children's Islamic identity. The journey is much easier for I, including also his ability to meet up with Y after school.

29. The father objects to School A because he says the mother has preferred it on the grounds that it is Islamic rather than because of its education. He is being marginalised from the children's lives by their Islamic faith, he says. If the school further promotes that faith, he will marginalised from the child and in due course, the children's schooling. His preference is therefore is for a secular school.

30. The father's case, too, is that the children will be growing up in two different households. The mother's is one that follows the Muslim faith and the boy's faith can and will be promoted there. The father's home is, in effect, a secular one and the school should not be one which will be a marked contrast to the boys' experience at his home.

31. The father initially accepted School A as a first choice in theory and thus both parents moved to its catchment area. The father more recently moved away to another part of London. The father had also visited School A and supported that as first choice in practice. He then changed his mind."

21. The judge then set out his conclusion in these words at paras.35-end:

"35. If I were here to compromise, I would of course prefer School B. However, that is not my role, even if that would provide a school which is at least half acceptable to both parents with the advantages that that may bring.

36. The most important pointers to the right decision which is in I's welfare interests are, in my judgment:

(i) That both parents thought at one time that School A was the right school for this child. I do not consider that the father, if he manages his time constructively, would need to have any fear that he will be marginalised by a choice which he once preferred.

(ii) If I now say that I cannot go to the school that he has worked hard to get to, it may not just be disappointment to him, but might lead him to think, 'Why should I work hard to achieve something and then have it taken from me?' Impressions at this age can sometimes be long-lasting ones, and therefore harmful.

37. In all the circumstances, I consider that I should go to School A. It would be much better, in order to show support for that school, that the father shares or contributes to the cost, but if he will not or cannot, the mother will have to pay. If I does not achieve a place at School A, he will go to School B."

22. On 24^th February, the father filed a notice of appeal against the judge's decision. The application for permission to appeal was immediately referred to me on paper under the usual procedure. It was plain to me that this required urgent determination because the place at School B would only be held open by the Local Authority until 15^th March. I therefore decided to list the matter for a hearing of the application for permission to appeal with appeal to follow if permission granted. I made that decision, notwithstanding the fact that the transcript of the judgment was not yet available. Although the father was at that stage acting in person, he had referred to some notes of the judge's decision in the paperwork he supplied to the court. I gave directions to facilitate this hearing including the filing of skeleton arguments and a bundle. These directions have all been complied with to the letter by the parties. As a result, the hearing took place yesterday and I am able to give this judgment today, 14^th March, less than three weeks after the notice of appeal was filed but crucially before the offer of the place at School B would have to be accepted if that is the outcome of this appeal.
23. The mother re-instructed counsel who represented her before Judge Rylance, Mr. Nosworthy, and he prepared a skeleton argument responding to the grounds which the father, then acting in person, had put forward with his notice of appeal. Then at a relatively late stage, Mr. Samuel, who had represented the father in the court below, was re-instructed and he has prepared a skeleton argument that reshapes and refocuses the father's case in an extremely helpful way. In saying that, I mean no disrespect to the father or as to the arguments he put forward in his paperwork originally filed in support of his appeal. Inevitably, Mr. Samuel's document focuses on the core issues in this case and does so in a way that I have found extremely helpful and furthermore, in a way that I am satisfied has not caused any disadvantage to the mother or her counsel.
24. Although the father had raised a number of criticism or concerns about the child arrangements order, Mr. Samuel concentrated his arguments on the judge's decision on the schooling issue. Two new pieces of evidence were introduced. First, it has been confirmed that I has been offered a place at School A. In his skeleton argument and in his oral arguments, Mr. Samuel described this as a "conditional offer" but importantly the conditions are not conditions that must be met before I is admitted to school but rather conditions the school requires him to meet once he is there. This is commonly found in school offers and does not, in my view, undermine the offer which I has received.
25. Secondly, I's offer of a place at School B has been confirmed and there is evidence which I have admitted that he was pleased at this news shouting, "Yes" at the top of his voice and punching the air.
26. In his written argument before the court and its oral submissions to me, Mr. Samuel focusses on the following principal issues – first, that the school decision has not been made in accordance with I's best interest and, secondly, that the order also infringes the father's human rights. In discussion over this latter point however, Mr. Samuel accepted that, of course, it is I's welfare that is the court's paramount consideration at all times.
27. Mr. Samuel stressed that the father did not oppose the children being brought up as Muslims. Understandably, given the terms of the recital in the earlier court order made in Australia, the father has, as agreed, taken the children to madrassas for religious education, at least until recently. It is his core case however, that school represent neutral ground for the boys. All schools in London will have Muslim children whose religious faith can be accommodated. The father's case is that I could therefore be brought up within his religious faith without attending an Islamic school.
28. Mr. Samuel submitted that the judge's reasoning concerning the two factors identified in the judgment in para.36 was defective. First, he submitted that the judge had attached too much weight to the father's earlier acceptance of School A when, in fact, that was only expressed as part of the discussion which took place over a period of time and had certainly changed by the time of the hearing after he carried out further investigations. The judge, submits Mr. Samuel, had failed to appreciate the depth of the father's views as they now are and how difficult it would be for the father to support him at school and also how difficult it would be for him to play an active role in I's education, a point to which the judge earlier in his judgment had attached some importance.
29. Secondly, Mr. Samuel contended that the judge's approach to I's wishes was flawed. He had wrongly attached weight to concern about I being disappointed about being deprived an opportunity to attend School A after having worked so hard to get there.
30. As to this latter point, it seems plain in my judgment that the judge was fully aware of the lack of any clear independent view about I's wishes. That explains, in my view, his short treatment of the Cafcass officer's evidence. In addition to her report, the officer had given oral evidence. It is notable that in her oral evidence she resiled, to some extent, from the comment in her report which I have quoted above, about the mother being over-focussed on the religious aspect of education.
31. Mr. Nosworthy on the mother's behalf took the Cafcass officer in cross-examination to a detailed schedule which the mother had prepared analysing the arguments for and against the various options in which religion features as only one aspect. Cross-examined by Mr. Nosworthy, the Cafcass officer accepted that the mother's approach to education was entirely child-focussed. Although Mr. Samuel sought in his questioning of the Cafcass officer to restore her to her former position, he did not, in my judgment, really succeed in doing so.
32. In the circumstances, this does not seem to me to be a serious criticism of the judge. The judge did not explain in a detailed way why he was not following the recommendation of the Cafcass officer. She was not asked to make a recommendation as to education and her comment about the mother's focus on religion was one from which she retreated to a considerable extent in the course of her evidence. I did not express wishes about his education to her, which is notable given the clarity of his express wishes about seeing more of his father.
33. Drawing these threads together and having regard to the other submissions made by Mr. Samuel in the light of the responses by Mr. Nosworthy, it seems to me that the key issue in this case concerns the judge's treatment of the risk of the father's marginalisation. In essence, the judge found that the father had changed his mind about School A because he feared that, if I went there, he would be marginalised. The judge's conclusion, having heard the evidence, was that the father would not be marginalised if he took advantage of the extended contact time which he would be having under the order the judge was making. Mr. Nosworthy submitted that this was a decision the judge was entitled to come to, having considered all of the evidence.
34. In his submission, Mr. Samuel cited a passage from the decision of the Court of Appeal in Re G [2012] EWCA Civ 1233 at para.80:

"First we must recognise that equality of opportunity is a fundamental value of our society. Equality as between different communities, social groupings and creeds and equality as between men and women, boys and girls. Secondly, we foster, encourage and facilitate aspiration, both aspiration as a virtue in itself and to the extent that it is practicable and reasonable to the child's own aspirations. Far too many lives in our community are blighted even today by lack of expiration. Third, our objective must be to bring the child to adulthood in such a way 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 as 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 in future."

35. There is some disagreement between counsel as to whether the judge was actively referred to this passage but in my judgment, the important point is that there is no basis on which it can properly be said that his decision is inconsistent with the principles set out by the Court of Appeal. I do not read anything in the words quoted above as indicating the Court of Appeal was of the view that religious schools in general, or Islamic schools in particular, were not to be preferred in all the circumstances if in accordance with the best interests of a child.
36. Despite Mr. Samuel's articulate submissions, I am unable to accept his case that there is any real prospect of an appeal court concluding the judge's decision was wrong. I am entirely satisfied that this experienced judge was fully aware, at all times, of the paramountcy principle and that he had all the relevant factors in mind, notwithstanding that fact that he did not spell out, in terms, the factors in the s.1(3) welfare checklist.
37. I see no reason to doubt that the judge was aware of the father's real concern that he would be marginalised if the children went to an Islamic school. In my judgment, his conclusion the father would not be marginalised, is one that he was entitled to reach having heard the parents and considered all the evidence.
38. In short, the judge's decision on this issue was within the ambit of his discretion and cannot be said to be wrong. There is no real prospect of an appeal succeeding.
39. In the course of argument, Mr. Samuels sought briefly to raise the father's concerns about the starting date for the increase of his contact to six evenings per fortnight. That decision, that it should start in January 2018 as opposed to July 2017 as advocated by the father, was manifestly within the discretion of the judge and unappealable.
40. In all the circumstances, therefore, permission to appeal against the judge's decision is refused.
41. I conclude by repeating what I said towards the end of the hearing yesterday. I and his brother Y are lucky to have two parents who care so deeply about their welfare. The boys have diverse backgrounds which contribute to their identity. Although the judge's decision about schooling must, in my judgment, stand for the reasons I have explained, the father's role in their lives is absolutely crucial and the mother must do whatever she can to foster it. I urge the parties to do everything possible to avoid returning to court on any issue in the future and try to resolve further disagreements without recourse to litigation, if at all possible.
42. The decision about I's education is now taken and the parents must work together that I thrives and succeeds at his new school.