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EG v JG [2013] EW Misc 21 (CC)

Application by mother for a specific issue order in respect of the choice of secondary schools for the four youngest children of Jewish parents. Order granted that the children attend schools of the mother's choosing.

This case concerned an application for a specific issue order in respect of the choice of secondary schools for the four youngest children of Jewish parents.  The issue before the court was which parent should be responsible for making the application for secondary schools and deciding the choice of schools. In 2012, the Court of Appeal had rejected the father's application to appeal against a shared residence order and an order that the children attend schools proposed by their mother: See Re G [2012] EWCA Civ 1233.

The mother and father come from families of the Chassidic (Hasidic) or Chareidi community of ultra-orthodox Jews.   The mother had petitioned for divorce. A major reason for the parties' marriage breakdown was that the mother no longer wished to follow the strict tenets of that community.   She remains an orthodox Jew but wished for a way of living for herself and the children which allowed greater diversity of educational, personal and economic opportunity than would be likely within the Chareidi community.   The mother's own parents and siblings are no longer in contact with her.

Following the proceedings in 2012, the mother took the view that she was responsible for the future choice of schools for the children. The father disagreed with her choices, but both parents were proposing that the children should attend state funded schools.

The matter was heard by HHJ Million. The judge was not in a position to decide which particular school ZG or the other children should attend as the parents were still at the selection stage. Therefore, the court could only decide which schools should be on the application form, and in which order. 
It was the mother's strong wish that the children all have a more "liberal" co-educational schooling, and go to the same Jewish secondary school, if possible.   The father viewed his choice as a reasonable compromise, where children from both "modern orthodox" and "orthodox" families attend.   The father used those adjectives in preference to the Judge's use of "orthodox" and "ultra-orthodox" respectively.

There was some urgency as the eldest child ZG, is due to start secondary school in September 2014. ZG had told his father that he wanted to attend the school of his father's choice.

The mother sought an immediate decision about the issue. The father argued that the decision should be delayed until a report from CAFCASS or an independent social worker was available about the elder child's wishes and feelings. The representatives for both parents accepted that there was no significant difference in the educational standards between the mother's first choice and the father's first choice for ZG.

Taking into account ZG's wishes, the judge decided that he should not be asked directly about the choices available.

Finding that it was in the best interests of the children to go to schools of their mother's choice, and to make a final decision in respect of all the children, the Judge concluded:

"...a delay to obtain a further report about the children's wishes and feelings carries practical risks of damaging the choices for ZG in the schools application process (as already described).   Even if it did not (and it does not in respect of the younger 3 children) it would be merely to repeat the exercise carried out last year.   It would draw the children again into the conflicts between the parents.   In any event ZG and the younger children are not in a position to be able to weigh up and decide the complex factors involved in their long-term welfare interests.   These are decisions for adults and, where the adults do not agree, for the court to decide."

HHJ Million relied on the report prepared by CAFCASS for the proceedings in 2012.

Finally, the judge was critical of the father for spending a considerable amount of money on litigation whilst making minimal contribution towards the maintenance of the parties' five children, which he found was a "grossly disproportionate misdirection of the father's available financial resources".  Whilst HHJ Million did not make an order for costs, he warned that any further similar application would carry the risk of the court intervening through such an order.

Summary by Katy Chokowry, barrister, 1 King's Bench Walk.
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Case No: WI13P00931
IN THE WILLESDEN COUNTY COURT

Sitting at
9 Acton Lane
Harlesden
London
NW10 8SB
Date: 1 December 2013

Before:

HIS HONOUR JUDGE MILLION
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BETWEEN:

EG Applicant

- and -

JG  Respondent
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Ms F Orchover (counsel) appeared on behalf of the Applicant mother (instructed by Goodman Ray solicitors)
Mr D Bedingfield (counsel) appeared on behalf of the Respondent father (instructed by Guile Nicholas solicitors)

Hearing on 25 November 2013
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JUDGMENT (Anonymised)
His Honour Judge Million:
 

Introduction
1. This is a mother's application under section 8 of the Children Act 1989 for a specific issue order about the choice of secondary schools for the 4 youngest children of a Jewish family.   This is the second time in 2 years that the issue of religious upbringing and schooling for the children of this family has had to be decided by the courts.

2. I must apply section 1 of the Children Act 1989 and the welfare checklist.   The paramount consideration is the welfare of each child.   In making my decisions I must act of the evidence I find reliable on the balance of probabilities.

3. The children are ZG a boy now aged 11; DG a girl now aged 9; SG, a girl now aged 6; and MG a boy now aged 4.   There is another child of the parties: a daughter LG, now 12, who is not the subject of these proceedings.

4. The mother is EG.   The father is JG.   They are married, but separated.   The mother has petitioned for divorce.   Both parents have parental responsibility for each of the children.

5. The essential factual background is not in dispute.   The parents were married in 2000 and separated in 2010, when the father left the former matrimonial home at the mother's request.   The children remained living with the mother.   The marriage has broken down irretrievably.   The mother and father come from families of the Chassidic (Hasidic) or Chareidi community of ultra-orthodox Jews.   A major reason for the marriage breakdown was that the mother no longer wished to follow the strict tenets of that community.   She remains an orthodox Jew but wished for a way of living for herself and the children which allowed greater diversity of educational, personal and economic opportunity than would be likely within the Chareidi community.   Her wish has come at a price.   Her own parents and siblings are no longer in contact with her.   They have been unable to accept the mother's entirely respectable but different way of life.

Background – the first set of proceedings
6. All 5 children were the subjects of contested proceedings about residence and schooling in 2011 and 2012.    On the 10 February 2011 the mother applied for residence, a defined contact order and a specific issue order to change the children's schools.   CAFCASS reports were directed.   A CAFCASS officer (Ms Angela Adams) reported twice on those issues, in reports dated 17 January 2012 and 12 March 2012.   The recommendations supported sole residence with the mother, a contact order and that the mother to be responsible for deciding on the children's schooling.

7. On 27 July 2012 His Honour Judge Copley decided that the children should reside with the mother, with contact, including staying contact, to the father.   He also granted an order which approved the mother's choice of secondary school for LG, and her choice of primary school for ZG, DG, SG and MG.   His order provided that: "Mother's application for the child LG to attend [Alpha school] and the other children to attend [Beta school] be granted".    The father appealed both the residence and specific issue orders, but the Court of Appeal upheld the decision in a judgment given on 4 October 2012: reported as Re G (Children) [2012] EWCA Civ 1233.

8. The eldest child, LG, therefore attends [Alpha school], and the 4 younger children attend [Beta school].   Both schools were the mother's choice.  
 
Background – the second set of proceedings
9. This second application was issued on 12 November 2013.   The issue that now arises is the choice of secondary schools for the younger 4 children.   The 2012 order did not deal expressly with that question.   The mother wishes to send the younger children to [Alpha school], the same school as LG, which happens to be in [Erehwshire].   She took the view that the intended result of the first set of proceedings was that she would be responsible for the choice of schools.   The father did not agree.   He wishes the younger children to go to a different school (or schools).  

10. Of particular urgency is the choice for ZG, the parties' elder son, who will be starting secondary school in September 2014.    The father wished ZG to go to [Gamma school] in the London Borough of [Rehtona].   On 28 July 2013 and 9 August 2013 the parents had exchanged emails in which they had set out their respective choices.

11. If ZG is to attend a state funded school, an application for his choice of schools must be finalised by 13 December 2013.   For the younger 3 children, it will be another year before a choice has to be made for DG, and longer still for SG and MG who are younger.   The issue for them is whether I should make a decision now or postpone it.

12. The matter came before me on the mother's without notice application on 11 November 2013, which I adjourned to be heard on notice on 21 November 2013, with a time estimate of 1 hour.   Both parents were then represented.   After extensive discussions in court, and investigations by phone by the parents' lawyers to the schools admissions team at the London Borough of [Rehtona], I fixed the hearing urgently on 25 November 2013, with a time estimate of 1 day.   This required me to make special arrangements with the court list manager.

13. Before me on 25 November 2013, experienced counsel, instructed through solicitors, legally represented both parties.   Both parents submitted written statements and other letters and materials.   Neither counsel wished to ask the mother or father any questions and both agreed that the hearing could be dealt with on submissions.   Ms Orchover for the mother asked me to make an immediate decision about all 4 children.   Mr Bedingfield for the father asked me to delay making a decision about ZG until I had received a report about ZG's wishes and feelings, either from CAFCASS or from an independent social worker if a CAFCASS report could not be achieved in time.   Mr Bedingfield submitted that it was unnecessary to make any decision about the younger 3 children, until such time as choices about their secondary schooling had to be made.

The schools admission system
14. The process of obtaining a school offer in the state sector is an application through the local authority specifying the choices in order of preference.   The actual offer of a school place would come later.   [Alpha school] is a state funded Jewish school in [Erehwshire].    But a place at the school is applied for through the children's local borough (in this case the London Borough of [Rehtona]).   For ZG, it may be possible to change the order of preferences up until January or February 2014 but the timing for any such changes is uncertain.

15. The process of application and offer is summarised briefly in an email dated 22 November 2013 from the Deputy Admissions Team Manager at the London Borough of [Rehtona]:

"The school admissions co-ordinated process exists to ensure fairness, such that each child has only one of the highest preference.   We are working towards a deadline of 13 Dec 2013 for any changes to applications.   Around Jan/Feb 2014, schools will be ranking the children on their list and securing school places from the start of Feb 2014.   We may have a situation where more than one school is able to offer a place.   If this happens, we would offer the higher preference school.   For this reason it is important that by this time we have a revised preference order, either mutually consented to by the parents or through a Specific Order from the court.   Parents will be sent offer letters on 3 Mar 2014."

16. The result of the parents' disagreement was that both had submitted separate applications to the London Borough of [Rehtona] in respect of ZG's schooling.   The father nominated [Gamma school] (only), also a state funded Jewish school.   The mother nominated [Alpha school] and 2 other state funded Jewish schools.   The mother first became aware of the father's application when the local authority notified her in November 2013 that it had received 2 different applications (one from the father and one from the mother) but required just one.   The mother therefore applied to the court for an urgent determination of the question.

17. Currently the London Borough of [Rehtona] admissions team have resolved the problem of the 2 applications by treating the 2 applications as one, adding [Gamma school] as a fourth choice, after the 3 choices made by the mother.   The mother is not content with [Gamma] being one of the choices of schools.   The father is not content with the mother's choices.   The possibility might arise that ZG would receive 2 offers – one from [Alpha] and the other from [Gamma].    From the description of the process in the email from the admissions team, concurrent offers from 2 schools seem unlikely, because according to the email the formal offer made through the team is of the first preference school.    But the possibility of further dispute at the 'offer' stage of the process sufficiently exercised both parents that both Mr Bedingfield and Ms Orchover made submissions to cover this possibility.

Discussion
18. The issue for me is more properly expressed as: which parent should be responsible for making the application for secondary schools and deciding the choice of schools?   Both parents propose that the children are to attend state funded schools, but neither has yet been given any offer of a place at any particular state funded school.   Currently, a decision about secondary schooling for ZG is urgent.   If required, further time could be allowed for the decisions about secondary schooling for DG, SG and MG.

19. The email (which I have quoted) from the schools admission team at the London Borough of [Rehtona] indicated some informal willingness to manage some delay in aspects of the application process for ZG, if it were necessary for the court's decision process.   But they could not speak for [Erehwshire], within whose area [Alpha school] was situated.   Despite attempts, the parents' lawyers were unable to obtain any view from [Erehwshire County Council] about whether any delay would be tolerated.    I considered that a delay in my decision for ZG may jeopardise his chance of a potential place at [Alpha school], which was the mother's first preference, and therefore in his interests I should not delay my decision for him.

20. I am not in a position to decide which particular school ZG or the other children should attend.   At this point, the admissions process enables the parents and the court to decide only which schools should be on the application form, and in which order.   I accept that if the application shows [Alpha school] as the first choice there is a good likelihood that a place at that school would be offered to ZG.   His sister is already attending there, and I understand that would be a supporting consideration in any decision by the school.   But there is no guarantee of an offer.

21. Equally, I accept that if the [Gamma school] were put as first choice there would also be a good chance that a place would be offered there for ZG.   In his statement the father suggests that the school has offered ZG a place.   This is inaccurate, but he exhibited to his statement supportive letters both from [Gamma school] and ZG's current Jewish primary school) and which indicate a likely offer.

22. Whilst I am not in a position to make a choice between any of the schools which were mentioned during the hearing, I found it instructive to consider the way the parents approached the choices they might have.   On behalf of their clients, counsel accepted that there was no significant difference in the educational standards of the 2 schools which were the mother and father's first choices.

23. The mother's strong preference was for all 5 children to go to the same co-educational school.   During the course of the hearing Mr Bedingfield told me that if the father had the choice, all 4 of the younger children would go to [Gamma school].   That would of course separate the education of LG from the 4 other siblings.  

24. There were differences in the religious observances and practices in the 2 schools.   [Alpha school] reflects a more liberal Jewish tradition.   It is a co-educational school where apparently boys and girls share classes and activities together.   [Gamma school] is more orthodox, but is not an "ultra-orthodox" school.   However, boys and girls are taught separately, in different buildings on 2 geographically different sites.   [Gamma school] is effectively 2 single sex schools under one administration.   The 2 younger girls and the 2 boys would be separately educated.    On the father's proposals, there would be more separation in the family of the boys from the girls, as well as the 2 younger girls from their elder sister.

25. It is not unusual for different children of the same family to go to different schools.   But it is the mother's strong wish that the children all have a more "liberal" co-educational schooling, and go to the same Jewish secondary school, if possible.   The father views his choice as a reasonable compromise, where children from both "modern orthodox" and "orthodox" families attend.   The father uses those adjectives in preference to my use of "orthodox" and "ultra-orthodox" respectively.

26. I use the adjectives "liberal", "orthodox" and "ultra-orthodox" as simple shorthand to indicate the differences. My shorthand should not be misunderstood or misrepresented as any approval or disapproval of the culture of the various schools or systems of beliefs.

27. There would be some differences in the practical arrangements for ZG to get to the 2 schools.    The father's choice is nearer to the mother's home, but ZG would need to use public transport or be driven by car to the school (which the father offers to do).   The mother's choice is geographically further, but it runs its own school bus service, which LG already uses.   ZG could travel at the same time, with her.  

The wishes and feelings of the children
28. Another factor in the father's case was that ZG had told him that he would like to go to [Gamma school].   It appears that a number of ZG's current school friends would be likely to go there too.   I think it likely that ZG is aware of his father's preference also.   Through counsel, the mother told me that between the 2 hearings on 21 and 25 November 2013 ZG had told his mother that he wished to go to [Gamma school].   The mother had been careful previously not to ask ZG directly about his wishes about schools.   The mother's opinion was that ZG's recently expressed view was evidence of the pressures from the father's side.   Mr Bedingfield submitted that it was wrong for the court to ignore ZG's wishes and feelings.

29. I do take into account ZG's expressed wishes.   The question for me is the extent to which they should be given prominence.   I remind myself that in section 1(3) of the Children Act 1989 the passage about wishes and feelings is qualified by the words "considered in the light of his age and understanding", and it is only one of the 6 express factors to be taken into account.   As the Court of Appeal made clear, the issues in this case are complex and not ones of education alone.   I found it helpful to consider the way in which Ms Adams (the CAFCASS officer) had dealt with these very similar matters in her second report of March 2012.   She had been asked specifically to deal with the wishes and feelings of the children about schools.   At that time LG was included in the proceedings.   I quote some extensive passages from that report.

"LG
7. LG, nearly 11, clearly enjoys school and learning.   She has close friends and a wider social network.   She likes bible study in particular, and she like current affairs and debating.   She enjoys PE and currently plays netball outside of school.

8. Discussion about school naturally led to the fact that LG has a change of school coming up.   She told me she wants to go to [Delta school].   Some of her friends were going there and she liked it when she visited.   She talked about two other schools that were the usual choice for girls from her current school.

9. I said that there are many schools in London, and asked if she knew of any other schools.   She said she knew of [Alpha school] because her mum had put them down on the form, and they had talked about them.   A girl she plays netball with goes to [Alpha school].

10. I asked her how these schools were different.   She said they were mixed and not so Fromm.   I asked what that meant, and she said less religious.

11. On a scale of 0-10 of how big her worries were about changing schools, she said 6.   She described the worry as a mixture of wanting to stay the same; wanting to go to a less Jewish school, and thinking you should stick with what you know.   She said her dad thought you should stick with what you know, but she was not sure if her mum did.

Analysis
12. LG is attuned to the conflicting desires of her parents in relation to her education.   She needs certainty as to what will happen and have support in coping with change.

13. I would expect her to express a preference for a school that is familiar and where she knows other girls.   However, she is clearly weighing up the prospect of change and is being supported by her mother in this.

Her confidence and her ability to articulate her feelings bode well for her ability to cope with change.

ZG
14. ZG is nine.   He was very positive about his experience of school.   He likes it, he is good at maths, and he likes science and history too.   He has good friends and a teacher who makes them laugh with his jokes.   He said what makes a good school is good teachers.   He likes PE and is good at sport.   That was all he wished to tell me about his school.

Analysis
15. ZG is a confident boy who seems to enjoy many aspects of school and learning.   I did not think it appropriate to directly ask ZG about whether or not he wants to go to a different school.   It would over involve him in the conflict, and it is my view that his parents should give him information about changes in his life, at a pace that is appropriate for his age, once a decision has been made.   This issue cannot be reduced to what ZG says he wants to do.

16. Again, I would expect ZG to choose to stay the same if asked.   He is not able to consider the complex issues it raises about his relationships with his parents and make a decision accordingly.

DG
17. DG, seven, likes her school and her friends.   She has lots of friends, including three girls who are triplets.   She is worried about English but is now getting some help.   She is a fast runner, and thinks that school is very interesting and very nice.   She finds Hebrew tests hard.

Analysis
Again, a confident happy child.   As with ZG, I did not think it appropriate to talk to DG about changing schools, as I would not expect her response to provide the basis for this decision for the same reasons outline above.

Overall Summary and Analysis
18. The decision about how the long terms needs of LG, ZG and DG can be met must be made by adults who are fully appraised of all the issues, in this case complex issues about religion and community and tradition, not a result as what the children say they want.   In this way, their wishes and feelings would be outweighed by considerations about protecting them from emotional harm in the long term.   This harm would result from them remaining in a community where their mother is not accepted, and the ensuing tensions this would bring.

19. It is my view that participating in their mother's lifestyle will give them the greatest chance of enjoying healthy relationships with both parents, crucial to children coping with the emotional effects of parental separation.   Please see my report dated 18/01/12 for a full assessment of these issues.

20. I do not change my recommendation that it is in the best interests of the children that they go to schools of the mother's choosing."

30. Those opinions of the CAFCASS officer arrived at 18 months ago in respect of LG, ZG and DG  mirror almost all the factors present now in respect of ZG, DG, SG and (eventually) MG.   ZG is now at a similar age to LG then.   LG's well-articulated views then have strong echoes in the preference expressed now by ZG at a similar age.   What was central to Ms Adams' opinion in 2012 was her view (accepted by His Honour Judge Copley and the Court of Appeal) that the issues at stake were larger and more complex than a straightforward choice between schools.   It is worth recording that LG is now doing well at the school chosen for her by the mother.   Also the contact arrangements between the father and all the children have worked well. 

31. In her earlier report dated 18 January 2012 Ms Adams had said this (at paragraph 32):

"If the children were to go to the schools of the father's choosing, I think there is a high risk that their relationship with their mother would become problematic.   It would cause emotional confusion for them to depend upon their mother for love and care, yet have her choices presented as undesirable and maybe feel that they should not listen to her."

32. This opinion was given at a time when the father's choice of schools would have been ones which followed closely the Chareidi community way of life and teaching.   He has now moved his position to supporting schooling at an orthodox rather than ultra-orthodox school.   However, in my judgment, the analysis by Ms Adams of the difficulties is still a powerful one.

Conclusion and reasons
33. At the conclusion of the hearing on 25 November 2013 I announced my decision, with reasons to follow in this written judgment.   I decided that it is in the best interests of the children that they go to schools of the mother's choosing.

34. I decided that it is not in the interests of the children to delay a decision or to obtain any further report about the children's wishes.

35. A delay to obtain a further report about the children's wishes and feelings carries practical risks of damaging the choices for ZG in the schools application process (as already described).   Even if it did not (and it does not in respect of the younger 3 children) it would be merely to repeat the exercise carried out last year.   It would draw the children again into the conflicts between the parents.   In any event ZG and the younger children are not in a position to be able to weigh up and decide the complex factors involved in their long-term welfare interests.   These are decisions for adults and, where the adults do not agree, for the court to decide.   I accept that the reasoning that Ms Adams used last year in her 2 reports continues to apply.  I have all the relevant information I am likely to need to enable me to make a decision.

36. There was no criticism in the hearing before me of the care which the mother gives the children.   The residence order remains in her sole name.   The contact arrangements are working well.   The mother intends the children to continue to have a Jewish upbringing.   She wants them to attend Jewish schools, and offered her agreement to use her best endeavours to do so to be recited to any order that I made.    However, if (which seems unlikely) the children were not offered a place at one of her 3 preferences of Jewish schools, she would rather the other children went to a non-religious state school than to [Gamma school].   She obviously believes that in her situation (with the father, his family and all her family opposed to her) a "liberal" rather than "orthodox" education for each of the children would help her to foster an outlook in the children which keeps them open to choices and opportunities in the future.   I accept the mother's approach as a reasonable one in the circumstances.

37. Whilst there is no immediate need to make decisions about the secondary schooling for DG, SG and MG, it is not in the interests of the younger children to have an almost yearly round of disputes and inevitable litigation when they each reach the age at which those choices must be made.   It reopens disagreements, and it has a huge emotional, psychological and (not least) financial cost for the mother.

38. She is a working parent with the primary care of 5 children.   The financial cost of this litigation is significant.   The mother does not receive public funding, and pays the legal costs from her own pocket.   The father's legal costs are paid for by his community and (for the current application) by his parents.   I was told that the mother's costs for this application were about £6,000 including VAT.   The father's costs (paid by his parents) were about £5,000.    Yet he says he has no significant income or financial resources himself, and he therefore pays just £5 per week towards the maintenance of the 5 children (£1 a week each).   For this application alone, the mother has therefore had to pay legal costs equivalent to 23 years worth of the father's direct financial contribution of maintenance for the children.   The father's family has paid his legal costs in an amount equivalent to 19 years worth of his maintenance for the children.   

39. This is a grossly disproportionate misdirection of the father's available financial resources.   It is also a wearing down of the mother's resources.   I did not make a costs order on this occasion but, if these or similar disputes are continued, the court may have to intervene with costs orders in future to prevent further financial injustice to the mother.

His Honour Judge Million
1 December 2013

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