Before : |
W. J. Bailhache, Esq., Bailiff, and Jurats Fisher and Nicolle |
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Between |
E (the father) |
Petitioner |
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And |
F (the mother) |
Respondent |
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IN THE MATTER OF A DISPUTE BETWEEN THE PARTIES IN RELATION TO EDUCATIONAL ISSUES REGARDING THE CHILDREN AND ANCILLARY MATTERS
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate JC. R. G. Davies for the Petitioner.
Advocate V. Myerson for the Respondent.
judgment
the bailiff:
1. The Respondent has made an application for a specific issue order pursuant to Article [10] of the Children (Jersey) Law 2002 ("the 2002 Law") in relation to three of the four children of the marriage, Ivy, aged 11, Nathan, aged 9 and Leon, aged 3. The other child, Alex is aged 7, and for convenience we cover him within the scope of this judgment. As is clear from the skeleton arguments, the matters in dispute between the parties over the education issues are both as to the affordability of boarding school education in England and whether it was in the best interests of the children respectively that such orders be made. At a directions hearing on 14th December, 2015, the Court ordered that there should be a conjoined final hearing in respect of ancillary matters and children matters, and that JFCAS should file a full welfare report concerning residence, contact and education of the children. The Court also ordered that if either party disagreed with the recommendations in the JFCAS report, they should file a statement setting out their reasons for disagreeing and any counter-proposals by 12th February, 2016.
2. The Court has had the advantage of a full report prepared by Mr Chris Langford, the JFCAS officer, dated 4th February, 2016, and Mr Langford was also examined and cross-examined by counsel before us.
3. Ivy is 11 years old. She attended School 1, and at the age of 9 was sent to School 2. The parents disagree as to the reason why she was sent there. The mother says it was because they had resolved that she would be sent to a boarding school. The father says that it was because they wanted to ensure that a boarding school option was available. As to what was agreed between the parents at the time, our suspicion is that probably nothing was agreed although the mother thought that it had. The father conceded in his evidence that he had been a workaholic and focussed on his business, which in many ways he regretted. He accepted that the mother was the primary carer. He accepted that before his separation from the mother, he could and should have put more into his family relationships and he agreed it was unsurprising that the children's relationships with their mother was stronger than it was with him. He agreed that he had a volatile relationship with Ivy, but it was not a bad one. He wanted to help her develop proper values for her adulthood, but he agreed that he possibly needed to think harder about the way in which the messages ought to be delivered. In particular in relation to Ivy, he was frightened that she would disappear from his life if she was sent away to school. Although he agreed his bond with her was not as strong as it might be, he thought that it could improve given time and he was very anxious to give it that time.
4. He agreed in his evidence that he had not focussed sufficiently on Ivy's needs when the decision was taken to move her from School 1 to School 2. That decision was implemented by a letter to School 1 shortly before the separation of the parties. He said his mind was "all over the place".
5. Although the letter to School 1 suggests that the reason for the move to School 2 was merely to ensure that there was the option of sending Ivy to boarding school, our view is that the only proper conclusion to draw is that at that time there was an expectation that she should go to boarding school. Otherwise there was frankly no purpose in the move. One does not disrupt a child's schooling by moving schools without a purpose and it is certainly not good parenting to do so. If she was to be removed from her group of friends at School 1, where she was doing well, then it must have been, in our view, because there was an underlying assumption that education at School 2 would form the basis for sending her away at the age of 13, or indeed earlier if that were to be appropriate.
6. Nathan, aged 9, is currently attending School 3. He was due to move from that school to School 2 in September last year, having attended an induction course at School 2 in March 2014. There was some dispute between the mother and the father as to whether the move would have taken place in September 2014 or September 2015, but, notwithstanding a letter from the school obtained by the father recently, we think that the intention was that Nathan should have moved in September 2015. That would be consistent with the move which his sister had made, and consistent with the difficulties of otherwise having had to give immediate notice in March/April 2014 that his education at School 3 would come to an end in the July. At all events, Nathan did not move to School 2 in September 2015, because there was the ongoing disagreement between the parents as to future education arrangements. He is doing well at School 3. He is clearly an intelligent boy.
7. Alex, aged 7, attends School 2. He went there at the age of 4, and he is also doing well. The parents agree that they entered him for School 2 because he is a sensitive child and it was thought by the parents, rightly or wrongly, that the smaller class size would enable School 2 to offer him a more nurturing schooling than would be available elsewhere. Although there had been a suggestion at one point that he would move to School 3 at the age of 7, he did not do so in the light of the mother's objections, which were based on her desire to see him remain at the same school as his elder sister and brother. Given that the natural time for him to move to School 3, if he were to do so, would be either aged 7 or aged 11, the parties have agreed that he should remain at School 2 until the age of 11 when he would move to School 3. The mother and the father both agree that he seems to be, by temperament, a child who would be better suited to be educated in Jersey. His cognitive ability test (CAT) score is well above the national average and there ought not to be any difficulty in his passing the relevant examination to enter School 4 at the age of 11.
8. Leon is aged 3. He currently attends the School 11, and the parties are agreed that it would be desirable for him to attend School 2's Pre-Preparatory School in September. Attending the same school as Alex would be desirable for both him and Alex. It is otherwise too early to tell what would be in his best interests generally as far as education is concerned. The mother considers that he should remain at School 2 until he is 11 when the matter should be reassessed. The father contends that he should leave School 2 for School 3 when aged 7, because he would then join his brother.
9. It would be apparent therefore that the arguments are surrounding Ivy, Nathan and to a lesser extent Leon. The real argument is as to whether there should be a boarding school education, which we note was not in the family culture on either side, or education in Jersey. In the course of that argument, both parents have accused the other of inconsistency, and both parents have made some very good points in support of their particular view. We should note that the argument was one of general principle in relation to boarding school education - no particular school had been identified by the mother either for Ivy or for Nathan, although she had been with Ivy to School 5 and indeed the father had registered Ivy with both that school and School 6. The mother had also identified as possible schools for co-educational purposes School 7 and School 8, although neither she nor Ivy nor Nathan have been round any of those other schools.
10. Arguments about education have probably existed as long as education itself. Whether children should switch schools for secondary education at 10, 11 or 14; whether the Baccalaureate is better or worse than A levels; whether learning Latin should be compulsory; whether education should be a state obligation, and not left to parents to select private schooling; whether children should attend school as day pupils or whether they should go to a boarding school. Although one can clearly say that some forms of education do not work very well, there is no real consensus on the advantages of boarding school as opposed to day school. The reality is that boarding school suits some children and not others. Even if the boarding school may be very compatible with a child's character, one can say that as a general proposition,(not set out in relation to this family) it may be that other circumstances surrounding the child, whether the splitting up of the parental relationship or the death of a sibling or some other personal circumstance, may make it undesirable for that particular child at that particular time to be sent away to school. One of the difficulties which parents who have the ability to choose have to face is that one can never tell whether one choice or another will necessarily be the right one.
11. It is against this background that the Court is faced with a difficult decision to make in relation to the education of the four children of these parents. The father is very anxious that the children should attend as day pupils in Jersey until they are 16 when he thinks they are old enough to make an informed choice as to whether they should go away to boarding school for the last two years of their secondary education. The mother considers that the parties had always agreed that the children would be educated privately at boarding school if financial circumstances permitted and that it is particularly in the interests of Ivy that she should go to boarding school at the age of 13. The mother considers that it will absolutely suit Ivy's character that she does so. Both parents are agreed that their third child, Alex, should not be considered for boarding school education at the moment, although the mother accepts that things may change. The fourth child, Leon, is aged three and therefore it is too early to tell either what he might want or what might suit him.
12. What we can and should say, especially as the children may possibly read this judgment at some point, is that we have no doubt that the disagreement between the parents arises because there are genuine differences as to what is in the best interests of their children. It is obvious that the breakup of the marriage has left both parents scarred in their dealings with each other, which is not at all unusual, but we do not get the sense that the disagreement about the education of the children is something which has arisen because they want to hurt each other - it is simply that they disagree as to what is best for the children, and their relationship having broken down, there is no easy way of resolving that disagreement. We think that there is no doubt that they have different views about the affordability of boarding school education but financial considerations were not considered in connection with this application.
13. With that introduction, we think it would be helpful to set out the principles which we think should guide the Court in selecting the education option for children when the parents are not agreed and apply for a specific issue order.
14. The starting point is that the 2002 Law requires us, in taking any decision of this kind, to have regard to the best interests of the child. The interests of the child are paramount. That is so in relation to each child of the marriage. It would be wrong, for example, to decide, if that were to be the decision that because the third child Alex would be rightly educated as a day pupil, then it follows that his three siblings must also have any doubts resolved in favour of being day pupils. They are all entitled to be treated individually too. Of course, however, the best interests of the child will include a number of considerations. Education must be looked at in the round, but it includes academic results and a Court should certainly have regard to providing the child with the best education suitable for him or her. It is not just a matter of academic prowess either. Some schools have a range of facilities to enable a child with sporting ability to develop those skills whereas others do not; some schools concentrate on the arts where they provide an excellent basis for drama, music, painting, pottery or the like. Some schools concentrate on the individual, whereas others concentrate on a team focus. Selecting a particular school for a particular child involves consideration of all these factors, as all parents know.
15. The best interests of the child also include the emotional considerations that go with the choice of school. Although it would be wrong, as indicated above, to conclude that because Alex was to be educated locally it must follow that the other three should be educated locally, it would not be wrong to take into account when considering Ivy's education that if she were to be educated at a boarding school and her three siblings educated locally, that might have an emotional impact upon her in a number of ways. She might feel guilty that she had the advantage of a boarding school education, as she perceived it, where her siblings did not. She might feel deprived that her siblings enjoyed an upbringing at home whereas she had been sent away. Both parents rather took the view that they should treat all four children the same, and, subject to the particular needs of each child, it seems to us that that is a not unfair starting point because it pays proper attention to the need for consensus in the family which is in the interests of each of the four children.
16. In his evidence before us, the father made it very clear that he was particularly concerned that in the circumstances of the divorce of the parents, he might lose his relationship with his daughter if she were to go away to school at the age of 13. For the avoidance of doubt, to the extent that he was expressing a concern that he would suffer a loss, that is not of relevance to the decision we have to make notwithstanding his right to respect for his private and family life under the European Convention, because we have to take our decision on the basis of the best interests of the child. However, it is right to take into account that in their growing up, children generally benefit from relationships with both parents, and to the extent that the father was saying, as in part he was, that it was in Ivy's best interests that he should have a relationship with her, we agree that that is an important consideration.
17. There are some other principles which appear to us to be important. It is well known that young children benefit from having a routine. Of course, all routines must not be completely inflexible, but as a general principle, children like to know where they are. They feel safe and secure when there is an established pattern to their lives. As far as school is concerned, it is helpful for children to have certainty as to their schooling. Those of us who have had the experience of boarding school education, whether directly or through our children, recognise that there is an advantage in children knowing from an early age that they will be going to boarding school so that it is not sprung upon them at three months' notice when they are aged 13 or 11 as the case may be. It may be helpful even if not essential, to know the precise school from an early stage, but it is certainly useful to identify the school by the time the child is in sight of the entrance examination. Furthermore, once the decision has been taken, subject to any requirement for flexibility because it has clearly proved to be the wrong decision, in general terms it is better that the child knows that the decision has been taken and that his or her parents will stick with it. There is nothing very remarkable in any of these statements, but they bear repetition.
18. One of the arguments put before us related to the need to secure the attachment of the father to his children and implied within that was the contention that boarding school operates as a threat to such an attachment. We would like to make it clear that we do not think it is appropriate or indeed possible to generalise in such a way. For many children, attending at boarding school has had no impact whatsoever on their attachment to their parents. Equally it can be said that for many children, staying in the family home has not improved the attachment which they have to their parents. Of course there is some link between time spent with the child and the attachment between parent and child, but by the time the child has attained the age of 13 years, the time consideration is likely to carry less significance. Time spent between parent and teenager is likely to lead to greater familiarity, but it is not necessarily going to lead to greater attachment.
19. We now turn to the application in relation to these four children.
20. It appears to us that it is only in the last three or four years that the question of boarding school education has become a real possibility for these children, simply because the father's financial position was not sufficiently established before then when he could realistically contemplate such a course. That is not to say we reject the mother's evidence that the parties always had in mind the possibility of boarding schools for their children - they may well have done, but it was not a matter to be actively considered until the last three or four years. What is the consequence of this? It is that there has not been a consistent message to these children from their early years that a boarding school education was for them. They have not had a consistent message to that effect, and even during the last three or four years, there has been a lack of consistent messages to them from their parents because the mother has undoubtedly spoken with them about boarding schools whereas they have been aware that their father has not been in favour of that option. These are not conclusive considerations. In one sense, they are eschewing a consideration which might otherwise be relevant - if the children had had the consistent message that they would be going to boarding school, it would be of more consequence if the Court were to make an order that took them in a different direction.
21. The next general consideration is the absence of identification of a particular school. The evidence before us was that Ivy has been around School 5, which she liked, and indeed she told the JFCAS officer that this was where she wanted to go. She said:-
"I want to stay at School 2 until I am 13 and then go the School 5 in September 2017. I went to the School 1 taster day. It wasn't very good. ... School 2 prepares you for boarding school to prepare for exams and later hours. I know it will be hard at the start but I will have a really good time and make some strong friendships."
22. However, in the evidence which we heard from the mother, she confirmed that she thought School 5 was not the right school for Ivy, and that this reflected Ivy's view as well. In our view this is important. It is not good enough to make an order that boarding school education is appropriate without knowing which boarding school is involved. The mother's contention was that if the Court made this order, she and the father would try to agree on an appropriate school, and if they could not agree, the father could choose. We understand why she would make this offer, which we think was intended to persuade the father that he would have a real say in the school which his daughter attended, but nonetheless it does not seem to us to be appropriate - many boarding schools in the United Kingdom have a high level of weekly boarders, and many are physically empty of a high percentage of their pupils at weekends. That may work very well for those who live relatively close by the school, but for a child going from Jersey, that is a quite different kettle of fish. This emphasises how it is not a question of approving a boarding school in the abstract. No parent would do that and it does not seem to us that the Court should be asked to do it either.
23. The next factor we take into consideration is that all these children are bright children and we are sympathetic to the view that, as bright children they should do well in all environments. There is no indication that these children would be adversely impacted by going to School 4 or School 1 as the case might be. In her submissions, Advocate Myerson contended that the boarding school education was not just about academia. It was not just a question that the children who went away to school might or might not do better than those who stayed in the Island - it was a different school experience. We agree with that, but that does not make it necessarily a better school experience or for that matter a worse school experience. It is different, and for each child, as far as one can, one has to make an assessment of what is in the best interests of that child, having regard to his or her place in the family as a whole.
24. We turn therefore to Ivy against the background of these comments. In our view Ivy's knowledge of what she wants is not sufficiently reliable for us to take it substantially into account. We do not have any doubt that she thinks she wants to go to a boarding school and that she will be disappointed when she is informed that this is not going to happen at present. We recognise that she is an independent young lady, and from that perspective will be well suited to a boarding school education. At the same time, much has gone on in her young life over the last few years. It seems to us to be important to keep the family close together, and there is an advantage to her in living in the same home as her siblings. There is also an advantage in having readier accessibility to her father. This is not to gainsay what we have said earlier in this connection. Accessibility will not necessarily mean a greater attachment - but in our judgment, the father is more likely to give the commitment he needs to give if Ivy is at school in Jersey. He has a new partner whom he has told us he intends to marry, and with whom he intends to start a new family. The mother tells us that Ivy already feels somewhat isolated from time to time, even though she has a very good relationship with the father's new partner. These relationships are never there to be taken for granted. Despite what the father says, we think the mother not unfairly points to where his priorities lie in his choice of attending his partner's brother's wedding outside the Island on a weekend where there is a special event occurring in Jersey in his daughter's life. We say this not necessarily to criticise his choice but to emphasise that difficult choices do come up where there are two families to be considered. We think that education in Jersey for Ivy will minimise the possible difficulties for the future, and that that will be to her benefit.
25. It is not at all ideal that Ivy should have moved schools to School 2 two years ago. Nonetheless the mother has not satisfied us on the balance of probabilities that it is to Ivy's advantage that she attends boarding school in England, and having regard to all the matters we have set out and in particular to the assessment of the JFCAS officer, indeed we think the balance of advantage is that she should complete education in Jersey, subject to the possibility of attending at a boarding school for sixth form education which the father agrees may be appropriate if that is what she wants when the time comes.
26. We turn now to Nathan. As indicated above, Nathan attends School 3. He has made good progress there, and there are no issues with his behaviour. He has a determined and conscientious attitude and he wants to do well. He has some maturity and his head teacher comments that "he should be very proud of all that he has achieved this year". He is aware that it was intended that he should be attending School 2 and he has told the JFCAS officer that while he enjoys being at School 3 and he has a lot of friends there who will go on to School 4, he wanted to go to boarding school. Like his sister he has an unrealistic idea of how often he would see his parents - he seems to think he would see them every two weekends and in addition if the school was near that of his cousins he could go to see them. He thought that Ivy was thinking of an all-girls school at School 5 and he noted that school had discos with School 9. We are informed that he is the diplomat of the four children, and he seems well able to cope with most issues he has to deal with. He expressed the wish to the JFCAS officer that he wanted to be an actor. We are informed that in Mr Langford's opinion Nathan will achieve his full potential whichever school he attends, be this a boarding school in the UK, School 3A or School 10.
27. We note that in the discussions as to the schooling arrangements for the children, there came a point last week when the mother was prepared to contemplate that Nathan might stay in Jersey until reaching the sixth form age. That is significant, not because we or she are bound by that in any way at all but simply because it tends to support the view expressed by Mr Langford that Nathan is likely to achieve his full potential wherever he goes to school. The father made great play through his counsel of the suggestion that any of the children might attend boarding school in England at the age of 16 for the last two years of their schooling at secondary level. We note that he is willing to pay for such schooling, and we agree of course that this would be a possibility. However we have approached the matter of schooling on the basis that a change of school at the age of 16 is not always easy to manage, and the circumstances have to be just right if it is to be successful. We have not assumed any high degree of probability that such a change will take place, recognising of course that it might.
28. In our view, the evidence which we have heard does not suggest that it is necessary for Nathan to attend a boarding school in England to achieve his full educational potential. We also think that many of the comments which we have made in relation to Ivy's relationships with her family have some resonance in connection with Nathan as well. Once again, although the matter is not an easy one, we consider that the mother has not proved her case on the balance of probabilities that it is in Nathan's best interests that he go away to school. We have once more placed some reliance on the views of the only independent witness before us, the JFCAS officer. This is to some degree inevitable because of course we have no personal knowledge of Nathan ourselves. We recognise and appreciate the mother's concern that Mr Langford has had only a reasonably short period of time with each of the children individually for the purposes of conducting his report but we nonetheless feel able to place reliance upon it.
29. As far as Alex is concerned, the parties agree that he should stay at School 2 until reaching the age of 11, and subject to passing the entrance examination, should then go to School 4. That seems to fit his requirements, and the matter does not need further consideration by us. The JFCAS officer reports that Alex enjoys being at the same school as his sister and no doubt will be pleased at the prospect of his brother Leon going to his school in September. He will also presumably feel pleased to join his older brother at School 4 in due course. Like his siblings he may well have been affected by his parents' separation and the consequent uncertainty which arises in his different relationships with his parents, but there seems no reason at all not to endorse the parties' proposals in relation to his education - quite the reverse, as they seem to us to be appropriate.
30. Leon is currently 3½ years old and the JFCAS officer reported that as a result of his age, it was not really possible to ascertain his wishes and feelings through a direct interview. However, he was noted as interacting with each parent without hesitation and he seems to have an affectionate relationship with his siblings. Both parents feel that he is physically and emotionally well. The only difference in the parties' positions in relation to Leon was that whilst they agreed he should go to School 2 in September, the mother wished to hold out the prospect of boarding school education and considered he should remain at School 2 until he was 11, whereas the father considered he should move to School 3 at the age of 7, subject to passing any entrance examination, which would coincide with Alex's move to School 4. In our view, the reasons why it is appropriate for the other children to remain in Jersey for their education apply equally to Leon, and if he goes to School 3 at the age of 7, he will be joining the year group which, subject to passing the examinations, will take him through to the end of his days at School 4. Friendships formed at the outset can be extremely important to children through their school education, and there seems to us to be no reason to keep Leon at School 2 until he is 11.
31. As a consequence of the refusal of the mother's application for a specific issues order, our understanding of the arrangements for the education of the children is as follows:-
(i) Ivy will go to School 1 in September and continue there at least until her 16th birthday. There will be close consideration with her as to whether she wants to move schools for the last two years of her secondary education, and if she does and is accepted by the relevant boarding school in England, the father will agree to pay for the educational and travel costs of her going to such a school.
(ii) Nathan will stay at School 3 and subject to passing the entrance examination will go on to School 4. Like his sister Ivy, he will have the opportunity of his last two years of secondary schooling at a boarding school in England, and the father has agreed to cover the fees and costs associated with any such attendance. Indeed the father's undertakings in this respect apply also to Alex and Leon.
(iii) Alex will go to School 3 at the age of 11 and on to School 4, subject to passing the entrance examinations.
(iv) Leon will go to School 2 in September and will stay there until he reaches the age of 7 when he will go to School 3, and subject to passing the entrance examination onwards to School 4.
32. In setting out these arrangements for the children's future schooling, we add that we think it is desirable that they should know what that schooling is likely to be. Nonetheless, no arrangements for children are ever completely inflexible. If there should be a material change of circumstances then, like any other arrangements ancillary on divorce, the arrangements in relation to the children can be revisited. That is not to say that such revisiting is encouraged, and indeed it is not because children need to know where they are. It is merely a recognition that no arrangements of this kind are writ in stone to the extent that they cannot under any circumstances be changed.
33. We recognise this has been a difficult journey for the mother and for the father. Indeed it has not been an easy task for the Court. It is difficult enough for parents to make the right choices of school for their children, and they know them well. How much more difficult it is for a Court. We have placed some reliance on the JFCAS officer Mr Langford, but we have also listened carefully to the mother and to the father and reviewed the documentation which we have been shown, and on balance we are satisfied that the conclusions which we have reached are in the best interests of each of the children.
Authorities
Children (Jersey) Law 2002.