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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> JZ v FZ  EWHC 750 (Fam) (14 March 2017)
Cite as:  EWHC 750 (Fam)
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On appeal from the Family Court at Barnet
IN THE MATTER OF THE CHILDREN ACT 1989
IN THE MATTER OF IZ
IN THE MATTER OF IZ
Royal Courts of Justice
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HARRY NOSWORTHY (instructed by Brethertons LLP) appeared on behalf of the Defendant.
Crown Copyright ©
MR. JUSTICE BAKER:
"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."
"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."
"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."
(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."
"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."
"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."
"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."
"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."