Re G (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Sir Stephen Sedley,Lord Justice Maurice Kay |
| Judgment Date | 04 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1233 |
| Docket Number | Case No: B4/2012/2077 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 October 2012 |
[2012] EWCA Civ 1233
Lord Justice Maurice Kay
Lord Justice Munby
and
Sir Stephen Sedley
Case No: B4/2012/2077
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
HIS HONOUR JUDGE COPLEY
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Eleanor Platt QC and Miss Joy Brereton (instructed by Bindmans LLP) for the appellant (father)
Miss Joanne Ecob (instructed by Williams & Co) for the respondent (mother)
Hearing date : 7 September 2012
This is a father's appeal from a judgment and order of His Honour Judge Copley sitting in Willesden County Court on 27 July 2012. Judge Copley was hearing proceedings brought under Part II of the Children Act 1989 by the mother of five children: three girls, aged respectively 11, 8 and 5, and two boys, aged respectively not quite 10 and 3. For the reasons set out in his judgment, Judge Copley made a residence order in favour of the mother. His order provided for the father to have extensive contact. He directed that the children were, with effect from the new term starting in September 2012, to attend the schools proposed by the mother rather than those proposed by the father: in the case of the eldest girl, the A school, in the case of the four other children, the B school. Hitherto, the three girls have been attending the C school and the elder boy the D school.
Before us neither parent has challenged the living arrangements for the five children as settled by Judge Copley; they had in fact been agreed save for various aspects of the father's contact. There are two issues. First, the father says that Judge Copley should have made an order for shared residence. Second, and on any view of much greater importance in the circumstances of the case, the father says that Judge Copley was wrong to accept the mother's proposals for the children's education.
Background
Both the mother and the father come from families which have for many generations been part of the Chassidic (Hasidic) or Chareidi community of ultra orthodox Jews. They were married in 2000. It was an arranged marriage. According to the mother it was not a happy marriage. Matters came to a head in October 2010 when the father, at the mother's request, left the family home. It is clear that the marriage has irretrievably broken down.
These are matters which I must explore in more detail in due course when I come to examine the evidence before Judge Copley, but it is not in dispute that, as explained to Judge Copley by Dayan Friedman, in the Chareidi community the Torah—the Pentateuch—governs every aspect of a person's life: food, dress, education, speech, communal responsibility, respect for elders, religious education, culture and heritage. As Judge Copley said, they are a very religious people, to the extent that the practice of their religion—observance might be a better expression—becomes a way of life. Outwardly visible manifestations of the community's observance include, for men, beards and long hair at the sides—peyos—and the wearing of the kippah; and, for women, covering the hair in public, frequently by wearing a wig, and the wearing of modest dress. Importantly for present purposes, the children of the Chareidi community attend single sex schools. Indeed, according to the father's evidence, mixed gender schools are strictly forbidden according to the leading Hallachic authorities of our generation.
It is common ground that the Chareidi community is at one end of the spectrum of observance of those who consider themselves to be Orthodox Jews. The mother, although she no longer considers herself to be a member of the Chareidi community, and no longer wishes to adhere to all the observances of the community, still considers herself to be an Orthodox Jew. She observes, and ensures that the children when they are with her observe, what she considers to be an Orthodox Jewish life, albeit one at the other spectrum of observance of those who consider themselves to be Orthodox Jews. For instance, she observes the Sabbath (perhaps less strictly than would be thought necessary in the Chareidi community) and keeps what she considers a Kosher house. There may be some in the Chareidi community who consider that the mother is no longer observing an Orthodox Jewish life, but that is not a matter which it would be proper for the court to explore nor, so far as we are concerned, does anything turn on the resolution of this essentially doctrinal or theological issue. The father for his part ensures that the children, when they are with him, adhere to all the observances of the Chareidi community, as the entire family did before the parents' separation.
The difference between the mother's style of observance and that of the father is exemplified in certain of the materials before Judge Copley. A letter from the Principal of the school describes the B school as:
"a Modern Orthodox school. No boy at the school has peyos. All the children come from homes where television is taken for granted. The school is coeducational in its teaching. Aside from lessons, boys and girls participate equally in most activities."
The father, in a witness statement dated 4 April 2012, having described the strict rules of Kosher observed by the Chareidi community, continues:
"It is therefore unlikely that our children would be able to eat in the homes of the children who attend [the B school] if there is any doubt that food served there is kosher. Indeed, I would consider it my duty to prohibit my children from going to the homes of children from [the B school or the A school]. The same difficulties would arise with attending parties with children from those schools…I would be willing to invite those children to my home provided I am certain that they are not a negative influence, for example talking about TV programmes, movies or the internet."
He adds:
"…ultra orthodox parents will not allow their children to socialise and mix with children attending non religious schools as children who are raised in a less orthodox or secular environment will be exposed to television and different social values. Chareidi children are not allowed to watch television and, in the main, they come from homes where there is no access to the internet or social network such as Facebook and Twitter. Strict Chareidi parents will not allow their children to mix with children who are using the internet or watching television for fear that their own children will become corrupted."
There is a dispute, which we are in no position to decide and which there is no need for us to resolve, as to whether the mother has been ostracised by the Chareidi community. What, sadly, is clear is that she has become estranged from her own family because of her apparent rejection of Chareidi observance. So have the children, who no longer have contact with their maternal grandparents, aunts, uncles and cousins. The father is concerned that, for the reasons explained in the passages from his statement which I have referred to, they may also lose contact with their cousins on the paternal side.
The hearing before Judge Copley
The hearing before Judge Copley was spread over three days. He heard evidence from the mother and father and read and heard evidence from various other witnesses. He had a report dated 17 January 2012, and an addendum report dated 12 March 2012, from a CAFCASS officer, Mrs Angela Adams, each prepared in accordance with section 7 of the 1989 Act. He was provided with detailed written submissions, both on the facts and on the law, by Miss Eleanor Platt QC and Miss Joy Brereton on behalf of the father and by Miss Joanne Ecob on behalf of the mother.
The appeal
The father's application for permission to appeal filed on 10 August 2012 was initially considered on the papers by Hughes LJ. By an order dated 23 August 2012 he adjourned the father's application to the full court, with the appeal to follow in the event of permission being granted. In his reasons he said "If the only issue were shared or single residence I would refuse permission."
The appeal came on for hearing before us on 7 September 2012. Before us, as before Judge Copley, the father was represented by Miss Platt and Miss Brereton, the mother by Miss Ecob. We heard full argument on both points. At the end of the hearing we announced that we had decided to refuse the father permission to appeal on the shared residence issue and that although we gave him permission to appeal on the education issue we had decided to dismiss his appeal. We said that our reasons would be delivered in writing in due course. This we now do.
A preliminary point: shared residence
Judge Copley had the benefit of written submissions from counsel which included detailed reference to the relevant authorities on shared residence, including the recent summary of the relevant principles by Black LJ in T v T (shared residence) [2010] EWCA Civ 1366, [2011] 1 FCR 267, [25]-[27]. His judgment on the point was brief and expressed in terms referential to the recommendations in the CAFCASS report. Miss Platt submitted that it was at least arguable that Judge Copley had misapplied the law, that his judgment was inadequately reasoned, and that his decision was plainly wrong. I do not agree.
As Lord Hoffmann explained in Piglowska v Piglowski [1999] 1 WLR 1360, 1372, "reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account." It is therefore of itself neither here nor there that Judge Copley did not...
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