N (A Child) (Instruction of Expert)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Dingemans,Lady Justice King |
| Judgment Date | 06 December 2022 |
| Neutral Citation | [2022] EWCA Civ 1588 |
| Docket Number | Case No: Case No: CA-2022-001689 |
| Court | Court of Appeal (Civil Division) |
| Year | 2022 |
[2022] EWCA Civ 1588
Lady Justice King
Lord Justice Baker
and
Lord Justice Dingemans
Case No: Case No: CA-2022-001689
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT WATFORD
His Honour Judge Richard Clarke
CASE NO: WD22P00095
Royal Courts of Justice
Strand, London, WC2A 2LL
Christopher Hames KC and Kitty Broger-Bareham (instructed by PS Law LLP) for the Appellant father
Mark Twomey KC, Alexander Laing and Srishti Suresh (instructed by Dawson Cornwell) for the Respondent mother
Hearing date: 26 October 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 am on 6 December 2022.
This is an appeal against a case management order in private law proceedings under the Children Act 1989 relating to a boy, (“A”), now aged 8. The order under appeal permitted the parties to instruct a named independent social worker to carry out an assessment to assist the court to determine issues relating to child arrangements and education. The expert named in the order is a woman. The appellant father proposes that the assessment should be carried out by a male social worker. He asserts that the order permitting the instruction of a female social worker is an infringement of his human rights.
Background
The parents were both raised as members of the Hassidic Haredi Orthodox Jewish community, the father in the United States of America, the mother in England. In 2013, they underwent an arranged marriage in Jerusalem and thereafter lived together in Israel. In November 2014, the mother gave birth to A.
In her statement filed in these proceedings, the mother gives a description of life in the community in Israel and the father's strict religious observances. It is her case that she found her life with the father intolerable. Her description of the father's conduct includes examples of his discomfort in the presence of women, including in some contexts the mother herself.
In February 2016, the parties separated. In March 2017, a separation agreement was finalised and approved by the Jerusalem District Rabbinical Court. Under clause 10 of the agreement, the parties agreed that the mother “shall have permanent custody of the boy” and that she “may reside in Israel or overseas, at her sole choice”. The agreement contained detailed provisions for contact, including overnight staying and holiday contact, defined in different terms depending on whether the mother and A lived in Israel or in another country. Under clause 16, the parties agreed:
“The parents may only take the boy to places acceptable to the Hassidic community, and which are suitable to the education institutions where he learns.”
Clause 21A provided:
“Both parents shall decide in the matter of the educational institutions of the boy, and all educational matters and the care of the boy shall be with the cooperation of both parties through [rabbis named in the agreement].”
In October 2018, the mother and A returned to this country where initially they lived in the Hassidic Haredi community in North London. After the move to England, A had regular telephone contact with his father, and also had direct contact on occasions when the father visited this country, and also in the United States. Following the outbreak of the COVID pandemic in February 2020, however, direct contact was interrupted and the parties were unable to agree arrangements due to international travel restrictions, save for three nights during Chanukah in 2020 where A spent time with the father in America.
After arriving in London, A initially attended an ultra-Orthodox Jewish school, with close links to the Hassidic Haredi community. In the Autumn 2019, however, the mother, without informing the father, moved to another area of North London with a substantial Jewish population but fewer connections with the Hassidic Haredi community. At that point, the mother informed the rabbi identified as a mediator in the separation agreement that she wished to move A to another ultra-Orthodox school, hereafter called “Y School”. According to the father, he did not agree with this proposal but the mother proceeded to move A to Y School without his consent.
In Summer 2021, the mother and A moved home again, to an area just outside London. According to the father, he was not given notice of this move. He contends that the area does not comply with clause 16 of the separation agreement. The mother proposed that A should move school again to a different school closer to their current home.
On 27 January 2022, the father applied for child arrangements and prohibited steps orders under s.8 of the Children Act 1989, seeking a defined order for contact, including staying contact, and an order preventing the mother from changing A's school. On 10 February 2022, HHJ Vavrecka made an interim prohibited steps order preventing the mother moving A from Y School until further order.
On 23 February 2022, the mother filed a C2 notice of application seeking a specific issue order that she be given permission to transfer A from Y School to the school closer to her current home. On the following day, Judge Vavrecka extended the prohibited steps order and gave case management directions in respect of the cross-applications.
On 23 March 2022, in accordance with the Child Arrangements Programme in Practice Direction 12B, a Cafcass Family Court Adviser, Ms Natasha Marek, sent a “safeguarding” letter to the court, copied to the parties. She recounted telephone conversations she had had with each of the parties in which they had summarised their respective cases. Her note of her conversation with the mother recorded that:
“she felt that all aspects of her life had been controlled …. She identifies that she experienced domestic abuse in the form of religious control and believes [the father's] application is motivated by this same desire to control. Her experiences in Israel had been traumatic and she sought therapeutic support after.”
The Cafcass officer recommended that there be a further assessment by way of a report under s.7 of the Children Act 1989 to be completed by Cafcass addressing whether either party posed a risk to A; the impact of the concerns raised about domestic abuse and mental health; recommendations for arrangements for A to be able to spend time with his father; the impact of a change of school on A in terms of his emotional wellbeing and identity; A's wishes and feelings, and any other matter considered relevant to A's welfare.
On 25 March 2022, the father filed an application under Part 25 of the Family Procedure Rules seeking the court's approval for the appointment of an independent social worker to carry out an assessment. The expert identified in the application was Ms Sue Leifer, whose curriculum vitae attached to the application stated that she had experience working with families from many ethnicities “including the Charedi community”. The application proposed that Ms Leifer “undertake a s.7 assessment” in the course of which she should address the following questions:
“(a) If either party poses a risk to A, particularly in the context of the concerns raised in relation to domestic abuse and mental health
(b) Where A should live
(c) When A should ‘spend time with’ his Father and how this can be increased over time
(d) Whether A should have holiday contact with [his father] in Israel and/or other international destinations
(e) Whether A should continue to attend Y School
(f) The impact of any change of school on A's emotional well being
(g) Whether the Mother is able to positively assist A in developing an understanding of his Haredi background and culture
(h) Please obtain A's wishes and feelings on relevant issues.
(i) Please comment on any other issues which are within your area of expertise.”
On the same day, 25 March, both parties filed statements in accordance with the case management directions. In his statement, the father expressed the view that the mother was seeking to distance A from the Haredi community and that, whilst she was entitled to choose for herself not to live within that tradition, he was concerned that her choices were impacting on A's emotional stability and his ability to experience fully Haredi religious traditions and culture. He contended that A should continue to attend Y School and set out his proposals for contact, including staying contact in Israel. In her statement, the mother described how she had found it impossible to live with the father and to comply with his religious observances and the limitations on her life which he imposed, describing their marriage as “unbearable through the constant set of restrictions set by [the father].” She said that she was very supportive of A having a good relationship with his father but was opposed to staying contact in Israel or anywhere else outside the jurisdiction of England and Wales at this stage. She set out her reasons for wishing to move A to a new school, and provided details of two schools, one local to her current home and one where she worked, both Orthodox Jewish establishments which included children from the Haredi community but also children from the broader orthodox way of life which the mother herself now wishes to follow.
On 29 March, a further case management hearing took place before District Judge Moses. In a position statement filed for the hearing, the father's then counsel, Ms Doushka Krish, stated that:
“Father considers that it is essential that a comprehensive section 7 welfare assessment is undertaken by an independent social worker who has expertise in undertaking assessments within the orthodox Jewish community.”
She submitted that...
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