Matrimonial – dispute between the parties regarding education
issues for the children and ancillary matters.
[2016]JRC076
Royal Court
(Family)
1 April 2016
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Before :
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W. J. Bailhache, Esq., Bailiff, and Jurats
Fisher and Nicolle
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Between
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E (the father)
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Petitioner
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And
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F (the mother)
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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.