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Eleven plus and Spycatcher

 

 

This one is a little outside our normal remit, but it covers Education, and hence children, and it is a bit unusual. In fact, even though it is a question about the legal implications of leaking exam questions it would actually make a perfect legal exam question – which I’m sort of leaking in advance of anyone actually doing it.

 

Matalia v Warwickshire County Council 2017

http://www.bailii.org/ew/cases/EWCA/Civ/2017/991.html

 

Mr Matalia owned a website. I’m not sure what else he was doing on the website, but one of the things that he did in 2013 was post some information about the contents of the 11 plus exam being used in Warwickshire after it had taken place.

He was able to learn what the contents were by making some enquiries of children who had sat the exam (I believe his nephew was one of said children)

So what? What earthly use is knowing the contents of an exam AFTER the event? That’s like someone running up to you with a hot tip for the Grand National and telling you that Red Rum won it three times in the Seventies. It’s not inaccurate, but it isn’t useful.

Well, except that not everyone who sits the 11 plus exam in Warwickshire does so at the same time  (which I personally think is something of a flaw in the security of their system, which Mr Matalia has exposed). There are three separate examination sitting dates, all using the same paper. So if you are taking the test on the third of those sitting dates and you know what is in the test because someone who was in sitting date one tells you, you have an advantage.

(Assuming there’s a grade curve, rather than a hard pass mark, it is utterly disdvantageous to people who sat the exam on the first date to help out people sitting later on, and actually if it were me, I’d tell them the questions were largely about the role of crocodiles in Egyptian mythology so they’d crash and burn, but that’s by the by)

 

Here’s what went onto Mr Matalia’s website

 

 

“A. Comprehension regarding Lemurs in Madagascar. Around 2 pages of text and perhaps 20 questions. Easy enough to finish.

A. Longer maths. 4 long questions with subsections (perhaps 15 minutes).

i) A question relating to luggage dimensions and time differences: London and Hong Kong.

ii) Cinema tickets, time calculations and prices.

iii) Prices of items in a sale, including original prices. E.g price was £4.85 after a 75% discount. What was the original price?

iv) Swimming suggestions – swimming lengths in a certain time. Required conversions and ratio/proportion knowledge.

Some questions were difficult and many may not complete the questions.

B. Synonyms (words included thrifty, frugal, insolent). Enough time to complete the questions.”

 

  • The relevant test included a comprehension question on a passage concerning lemurs in Madagascar with a total of 23 questions. The “Matching Words” section required candidates to give “thrifty” as a synonym for “frugal”. The judge found that the section on the website headed “Longer maths” also “contained truth”. He referred to an email dated 10 September 2013 in which the University told the Council that there were “4 maths Qs (6 marks) where day 2 candidates may be at an advantage – although the exact Qs are not revealed”.

 

 

It doesn’t sound as though Mr Matalia’s nephew was some sort of super-spy, taking detailed notes of the exam questions as part of a well designed scheme, but rather that those were just the bits he happened to remember when asked about them.  I mean, knowing that the Comprehension question was based on an article about lemurs doesn’t help you in the slightest. It isn’t going to be beneficial to cram the Wikipedia entry on lemurs to give you an edge. Also ‘cinema tickets, time calculations and prices’  is, when you boil it down ‘some questions involving maths’ – which I think most children sitting an Eleven Plus exam would probably anticipate.

But a visitor to the site who would be sitting the exam on one of the two later sitting dates would gain a slight edge (and on at least the thrifty/frugal question would pick up a free mark)

The Council asked Mr Matalia to take the exam spoilers down.  He refused and the Council applied for an injunction. They asked him to take the spoilers down before the trial. He refused.

 

Before the trial, Mr Matalia refused to give any undertakings, saying in an email to the Council that, quite apart from expecting to win, “it is financially advantageous for me to go to trial and the publicity and media details will be invaluable for my sites.” He also stated that he understood that “there is a surprise waiting for [the Council] for this year’s 11+ exams. I won’t spoil the fun….I did not ask for help, have no involvement, direct or indirect and no contact numbers. I understand the content on my site last year will be insignificant in comparison.”

 

Without trying to be unkind, and avoiding any feelings about whether eleven plus exams are a good thing, bad thing, indifferent thing, it does feel from the outside something of an unusual thing for a grown man to do, to post spoilers about an exam to be undertaken by eleven year olds.  I really don’t know what else was going on his website, or how that content fitted into the general scope of the site…  (It would make more sense to me if he were publishing the full questions and answers and charging for access. I don’t really understand the motivation here. It doesn’t seem like a political protest against grammar schools or trying to subvert the system, nor does it actually seem like a monetarised plan. I guess it was simply for the lulz)

 

 

Anyway, the Council got their injunction, banning Mr Matalia from posting on his website any information about Eleven Plus examinations in 2013, 2014 or 2015.  This was Mr Matalia’s appeal.

 

The case was decided on the principle of ‘breach of confidence’  – this has three limbs

 

 

  • three limbs of the test to establish a breach of confidence set out by Megarry J in Coco v A.N. Clark (Engineers) Ltd [1969] RPC 41 was satisfied. It is Mr Matalia’s case that none was satisfied.
  • The test formulated by Megarry J at p.47 of the report, and subsequently approved and applied many times, is:

 

“In my judgment, three elements are normally required, if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, M.R. in the Saltman case on page 215, must “have the necessary quality of confidence about it”. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”

 

Mr Matalia argued at his appeal (and I think it is a decent lawyer argument, though I suspect any normal human being would reject it immediately) – how can the information in an exam paper handed out to 1,600 children have a ‘quality of confidence’ about it? And when the paper was handed out to his nephew, how was there an obligation of confidence imported to him? Of course children talk about exams after they’ve taken them. And these days, they probably do so on social media, thus publishing their conversations.  With that in mind, how can the exam papers have that ‘necessary quality of confidence’?

He doesn’t argue, though it seems blindingly obvious to me – why don’t Warwickshire do their 11 plus exams all on the same day, then they don’t have to worry about this?

 

 

  • Ground 2 is as follows:

 

“2. The judge erred in concluding that the Appellant had committed a breach of confidence, given that

2.1 the relevant information which the Appellant had published on his website (“the Information”) was (as was accepted by the Judge, in paragraph 35 of his judgment (“the judgment”)) communicated to him by one or more pupils who themselves were under no duty of confidence in relation to the Information;

2.2 the Information was, in the context (see paragraph 34 of the Judgment, and paragraph 2.4 below), trivial;

2.3 the Information concerned a test about which the deviser of the test (Durham University) said to the Respondent (only 3 days after the 11+ examination from which the Information was believed by the Appellant to be drawn)

2.3.1 “the testing process as a whole would not seem to have been compromised” and

2.3.2 “If there are issues [i.e there was a possibility of late sitters having any “particular advantage” where the Respondent “had concerns”, the Respondent had] the option of excluding these questions from the results”;

2.4 the Respondent had written to the Appellant in April 2011 that

“it would be very very difficult for a child to remember any of the questions in enough detail to pass on to children who are yet to take the test in order for that child to be at any significant advantage” (see paragraph 34 of the judgment);

2.5 websites other than that of the Appellant had revealed and continued to reveal similar information about the content of the 11+ examinations set by the Respondent;

2.6 there was evidence before the Court that persons who acted (for financial reward) as tutors for the 11+ examinations set by the Respondent appeared surreptitiously to use information comparable to the Information in preparing their tutees to take the 11+ examinations administered by the Respondent (see paragraph 6 of the Appellant’s witness statement of 8 December 2014); and

2.7 there was evidence before the Court that children who had taken the 11+ examinations were giving to their friends and relatives who were about to sit the same examination at a later date information which was at least comparable to the Information (see also paragraph 6 of the Appellant’s witness statement of 8 December 2014).”

 

  • Apart from sub-paragraph 2.1 of Ground 2, which clearly relates to the second limb of Megarry J’s test, the other sub-paragraphs appear to relate both to whether the information disclosed by Mr Matalia on his website had the necessary quality of confidentiality about it (limb 1) and to whether its disclosure was to the detriment of the Council (limb 3). As to the other part of limb 3, that the disclosure was unauthorised, it is clear that neither the Council nor any other person authorised the disclosure.

 

Ground 2.1: chain of confidentiality

 

  • Mr Matalia submits that because he received the information from one or more pupils who were themselves under no duty of confidence in relation to it, he was not himself under any obligation of confidence and was free to publish it as he saw fit. He submits that the candidates were free to disclose the contents of the test and could therefore transmit the contents to others without any duty of confidentiality being imposed on the recipients.
  • Although Lewison LJ subsequently clarified that he gave permission to appeal on the entirety of Ground 2, he focussed on this issue in his reasons:

 

“1. Although the evidence is not entirely clear, it seems to be the case that the pupils taking the test were not told that it was confidential or that they should not discuss the contents of the test with others.

2. If that factual premise is correct then it is arguable that the judge was wrong to find that all three limbs of the test in Coco v Clark were satisfied.”

 

  • Despite this, Mr Bragiel’s skeleton argument made very little of Ground 2.1. He made even less of it in his oral submissions and, in answer to a question from Lindblom LJ, accepted that the issue was whether the information was confidential in nature and whether Mr Matalia realised or should have realised that it was confidential. However, in a note sent to the court after the hearing, Mr Bragiel stated that he had not abandoned reliance on the fact that the children taking the test were not told that the test was confidential or that they should not discuss it with others. He said this was the fundamental factor relied on and was relevant to each of the three limbs of Megarry L’s test.

 

This is the nub of it – if the nephew wasn’t told, or it wasn’t written on the exam papers ‘this is confidential’ or ‘you must not talk to other people about what is in this test’ or words to that effect, was the test in Coco v Clark satisfied?

 

This is, however, where we get into law exam territory – literally.  The reference that the Court of Appeal give here is in relation to the Spycatcher trial (a case where a former employee of UK Security Services wrote a book about his experiences, published it in Australia and it was serialised by the Sunday Times with excerpts appearing in other newspapers) and the SPECIFIC reference is

. But it is well settled that a duty of confidence may arise in equity independently of such cases; and I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers – where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by.”

 

Come on, how meta is that? A law case about exam papers is decided by reference to a law case that was giving a hypothetical scenario beloved of law teachers.

 

The Court of Appeal liked this so much that they went back to it

 

It seems highly improbable that a 10 or 11-year old child would be prohibited from discussing the test with their parents, but that gets Mr Matalia nowhere. First, it does not follow that candidates owe no duty of confidentiality. If the Council became aware that a candidate was proposing to publish questions on social media, I do not see why it could not take steps to restrain it, assuming that the candidate knew that there were to be further sittings of the test. If, by virtue of their age, the candidates were not susceptible to injunctive relief, communication by them would be analogous to the example given by Lord Goff in Attorney General v Guardian Newspapers Ltd (No 2) of the confidential document being wafted into the street by an electric fan and picked up by a passer-by.

 

Secondly, and in any event, it does not follow that because a child can tell his or her parents about questions in the test they have taken, the parents are free to publish that information, knowing that other candidates are yet to take the test. The communication is made by the child in very particular circumstances, as part of the child-parent relationship. Given the confidential character of the information, as will or should be apparent to the parents, it would in my judgment be entirely consistent with principle to impose the duty of confidentiality on the parents, and quite contrary to principle to treat the parents as free to publish the information as they saw fit.

 

The appeal was refused and the onward secrecy of Warwickshire’s Eleven Plus exams is secured. Hooray. (or Boo, depending on how you feel politically about grammar schools)

 

(Dragging us back to family law, I’ve written before about how just like Rorschach tests, many of the psychometric tests applied by psychologists in assessment of parents aren’t available online – to stop people deciding in advance how to answer them, or being coached. So I guess this would apply to an enterprising parent who photographed the test paper and tried to publish it. Don’t do that, obviously. That would be a breach of confidence, and you would be made to take it down.)

 

And just to make us all feel super thick, here’s an O Level Geometry paper from 1957.

 

Belinda blinked. How on earth was she supposed to answer these questions?

 

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Ultra Orthodox or Orthodox – which is best? Only one way to find out…

 

The case of Re G (Children) 2012 has attracted quite a bit of press attention, and it touches on some interesting issues; particularly on the role of the Courts in determining religious disputes and how deeply the Court will roll up its sleeves and plunge arms into those murky waters.

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1233.html

 

 

The thrust of the case is fairly simple – the parents separated. The mother diverted from her previous religious beliefs, which were ‘ultra-orthodox’ Jewish specifically Chareidi  and now described herself as ‘orthodox’. The father remained of the ‘ultra-orthodox’ Chareidi faith.

 

They could not resolve between themselves which school their children would be attending  (the youngest child was 3, so for him it was an issue for the future).     The father wanted the children to attend a Chareidi school, and the mother a Modern Orthodox school.

 

The Court was therefore faced with a Specific Issue Order application, arising within an application for a Residence order.   It was very clear from the evidence that it was not a simple narrow ‘which school is better’ approach, but that the selection of the school would effectively be a determination of whether the children would have an ‘orthodox’ or ‘ultra orthodox’ way of life.  It was central to the children’s lives in a way that it would not necessarily be where the religious principles were so intertwined with educational provision.

 

[Given that orthodox means ‘true belief’ or ‘having the right opinion’  loosely, being orthodox is good, and perhaps etymologically speaking being  ‘ultra orthodox’ is either better, or a tautology]

 

The judgment in the Court of Appeal would be a very good start for distilling the essential principles of how the Court is to approach matters of religious difference.

 

It is not the place of the Court to weigh one religion against the other, not to comment or criticise religious practices (although they are entitled to look at the impact of those practices on the child), and all religions are entitled to equal respect as long as they are legally and socially acceptable.  The Court would have a view on religious practices such as forced marriage or female circumcision on that basis.

 

  1. Religion – whatever the particular believer’s faith – is not the business of government or of the secular courts, though the courts will, of course, pay every respect to the individual’s or family’s religious principles. Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, after all, demands no less. The starting point of the common law is thus respect for an individual’s religious principles, coupled with an essentially neutral view of religious beliefs and a benevolent tolerance of cultural and religious diversity.
  1. It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, so long as they are “legally and socially acceptable” (Purchas LJ in Re R (A Minor) (Residence: Religion) [1993] 2 FLR 163, 171) and not “immoral or socially obnoxious” (Scarman LJ in Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239, 244) or “pernicious” (Latey J in Re B and G (Minors) (Custody) [1985] FLR 134, 157, referring to scientology).
  1. The Strasbourg jurisprudence is to the same effect. Article 9 of the European Convention provides as follows:

“1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The protection of Article 9 is qualified in two ways. In the first place, the Convention protects only religions and philosophies which are “worthy of respect in a ‘democratic society’ and are not incompatible with human dignity”: see Campbell and Cosans v United Kingdom (No 2) (1982) 4 EHRR 293, [36]. I mention the point only for completeness; it plainly does not arise in this case, because the parents’ beliefs are in each case clearly worthy of respect. Secondly, whilst religious belief and thought are (subject to that overriding qualification) given absolute protection by Article 9(1), the “manifestation” of one’s religion in “worship, teaching, practice and observance” is subject to the qualifications referred to in Article 9(2).

  1. The important point for present purposes is that the Convention forbids the State to determine the validity of religious beliefs and in that respect imposes on the State a duty of what the Strasbourg court has called neutrality and impartiality: see, for example, Moscow Branch of the Salvation Army v Russia(2007) 44 EHRR 46, [58], where the court said that:

“The State’s duty of neutrality and impartiality … is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs.”

  1. Within limits the law – our family law – will tolerate things which society as a whole may find undesirable. A child’s best interests have to be assessed by reference to general community standards, making due allowance for the entitlement of people, within the limits of what is permissible in accordance with those standards, to entertain very divergent views about the religious, moral, social and secular objectives they wish to pursue for themselves and for their children. We have moreover to have regard to the realities of the human condition, described by Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, [50]:

“… society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

  1. Where precisely the limits are to be drawn is often a matter of controversy. There is no ‘bright-line’ test that the law can set. The infinite variety of the human condition precludes arbitrary definition.
  1. Some things are nevertheless beyond the pale: forced marriages (always to be distinguished of course from arranged marriages to which the parties consent), female genital mutilation and so-called, if grotesquely misnamed, ‘honour-based’ domestic violence. Plainly, as I wish to emphasise, we are not here in that territory.
  1. Some aspects of even mainstream religious belief may fall foul of public policy. A recent striking example is Westminster City Council v C and others [2008] EWCA Civ 198, [2009] Fam 11, where this court held on grounds of public policy that a ‘marriage’ valid under both Sharia law and the lex loci celebrationis, despite the manifest incapacity of one of the parties, was not entitled to recognition in English law. Again, I emphasise, we are not here in that territory.
  1. Some manifestations of religious practice may be regulated if contrary to a child’s welfare. Although a parent’s views and wishes as to the child’s religious upbringing are of great importance, and will always be seriously regarded by the court, just as the court will always pay great attention to the wishes of a child old enough to be able to express sensible views on the subject of religion, even if not old enough to take a mature decision, they will be given effect to by the court only if and so far as and in such manner as is in accordance with the child’s best interests. In matters of religion, as in all other aspects of a child’s upbringing, the interests of the child are the paramount consideration.
  1. There are many examples of the working out of these principles in the family courts. Sometimes, as in the cases involving blood transfusions for the children of Jehovah’s Witnesses, the issue is literally one of life or death (using those words in the secular sense). The tenets and faith of Jehovah’s Witnesses will not prevent the court ordering a child to receive a blood transfusion, even though both the parents and the child vehemently object: see, for example, Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386.
  1. But the clash between a parent’s religious beliefs and a loved child’s welfare may arise in many other contexts. Consider, for example, the wrenchingly sad case of Re S; Newcastle City Council v Z [2005] EWHC 1490 (Fam), [2007] 1 FLR 861, where the question was whether, within the meaning of section 16(2)(b) of the Adoption Act 1976, a mother was unreasonably withholding her consent to the adoption of her son on the basis of religious beliefs that were reasonable and genuinely held. I adjudged that she was. As I said [56]:

“Religious belief is no more determinative of whether a parent is acting reasonably than it is of whether something is in a child’s best interests. Whilst the court will no doubt be slow to conclude that a parent faithfully striving to follow the teachings of one of the great religions of the world is acting unreasonably, there is nothing to prevent the court coming to that conclusion in an appropriate case. Everything must depend upon the facts and the context. In this, as in so many other areas of family law, context is everything.”

  1. Often issues of this kind arise, as in the present case, following the breakdown of the parental relationship in a situation where the parents have different religious beliefs or follow different religious observances. Examples to which we were referred are Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678, affirmed Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571, where there was a dispute between a Muslim father and a Christian mother as to the circumcision of their 5-year old son, and Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam), [2005] 1 FLR 236, where a similar dispute arose between a Muslim mother and a Hindu (Jain) father. We were also taken, and appropriately in some detail, to Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239, where custody was in dispute between a father who was a member of the Church of England and a mother who was a Jehovah’s Witness, and to Re R (A Minor) (Residence: Religion) [1993] 2 FLR 163, where residence and contact were in issue because the father was a member of the Exclusive Brethren.
  1. None of this is at all controversial but it requires to be clearly understood because it is the essential legal landscape against which the issue in the present case falls to be determined.
  1. In the present context I can do no better than to set out what Scarman LJ (as he then was) said in Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239, 244-245, in a passage understandably much relied upon by Miss Platt. It is a long passage but it demands citation in full as a powerful and compelling statement of principle by one of the greatest and most socially sensitive judges of his generation. He was speaking in 1975, although for some reason the case was not reported until 1981, but his words remain as true today as then:

“We live in a tolerant society. There is no reason at all why the mother should not espouse the beliefs and practice of Jehovah’s Witnesses. It is conceded that there is nothing immoral or socially obnoxious in the beliefs and practice of this sect. Indeed, I would echo the words of Stamp LJ in T v T (1974) 4 Fam Law 190 in which he said this of the Jehovah’s Witnesses – and what he said is, indeed, borne out by such evidence as we have in this case:

“Many families bring up their children as Jehovah’s Witnesses and the children are good members of the community, although perhaps a little isolated from other children in certain respects. They are different but the same thing could be said of Presbyterians, Catholics and indeed any other religious faith.”

It is as reasonable on the part of the mother that she should wish to teach her children the beliefs and practice of the Jehovah’s Witnesses as it is reasonable on the part of the father that they should not be taught those practices and beliefs.

It is not for this court, in society as at present constituted, to pass any judgment on the beliefs of the mother or on the beliefs of the father. It is sufficient for this court that it should recognize that each is entitled to his or her own beliefs and way of life, and that the two opposing ways of life considered in this case are both socially acceptable and certainly consistent with a decent and respectable life. What follows from that? It follows, in my judgment, that there is a great risk, merely because we are dealing with an unpopular minority sect, in overplaying the dangers to the welfare of these children inherent in the possibility that they may follow their mother and become Jehovah’s Witnesses. Of course, most of us like to play games on Saturdays, to go out to children’s parties and to have a quiet Sunday – some of us will go to church, and some of us will not. This appears to be the normal and happy, even though somewhat materialistic, way of life, accepted by the majority of people in our society. It does not follow, however, that it is wrong, or contrary to the welfare of children, that life should be in a narrower sphere, subject to a stricter religious discipline, and without the parties on birthdays and Christmas that seem so important to the rest of us. These are factors that must be considered, but I think it is essential in a case of this sort to appreciate that the mother’s teaching, once it is accepted as reasonable, is teaching that has got to be considered against the whole background of the case and not as in itself so full of danger for the children that it alone could justify making an order which otherwise the court would not make.”

  1. How then is the court to decide in such a case? I quote again from Scarman LJ (at 248):

“… when one has, as we have here, two good parents, indeed, two unimpeachable parents, each of them following very different ways of life, which have led to the matrimonial breakdown, it does not follow that, because one parent’s way of life is more acceptable to most of us, it is contrary to the welfare of the children that they should adopt the way of life of the other parent that is acceptable only to a minority, and a tiny minority at that.”

 

 

 

 

So, in essence, both of the religious practices espoused by the parents were legal and legitimate and the Court had no basis for determining that one was in any way inferior or less proper than the other.  Equally, it was not right to consider that one was more socially common than the other, and to prefer the one which seemed to our eyes more usual.  Or even that one seemed more normal than the other to secular eyes.

 

How then, were the Court to resolve a problem between two parents, each with Parental Responsibility, and each with a valid and legitimate viewpoint and desire?

 

Lord Justice Munby goes on a digression here which was fascinating to a law geek like me; and explains exactly why the historical starting point in English law that it was for the father to decide what happens with his children is no longer how the Courts settle things.  [And an interesting side note for those who consider that mothers have the upper hand  in family courts – there’s 1925 statute law, still in force, to say otherwise. Whether that is followed, or indeed known, much I could not say]

 

  1. Time was when the solution to a case such as this would have been simple. The court would have declined to become involved and deferred to parental authority, that authority being of course exclusively the father’s. According to Sir William Balliol Brett MR, the court could not interfere with “the sacred right of a father over his own children.” A father had a legal right to control and direct the education and bringing up of his children, and the court would not interfere with him in the exercise of his paternal authority, unless by his gross moral turpitude he forfeited his rights or had by his conduct abdicated his paternal authority: In re Agar-Ellis, Agar-Ellis v Lascelles (1883) 24 ChD 317. That was, to quote the words of Lord Upjohn in J v C [1970] AC 668, 721, the dreadful case where the Court of Appeal permitted a monstrously unreasonable father to impose upon his daughter of 17 much unnecessary hardship in the name of his religious faith.
  1. The retreat from that high water mark of judicial abstention is traced in the speeches of the Law Lords in J v C and subsequently in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. The speech of Lord Scarman in the latter case demands particular attention. For present purposes there are two centrally important developments to be noted.
  1. The first was the eventual realisation that the child’s welfare as judicially determined is paramount. In 1924 Lord Cave LC could treat this as established principle: Ward v Laverty [1925] AC 101, 108. The principle was put on a statutory basis in section 1 of the Guardianship of Infants Act 1925. It has been part of our statute law ever since, now enshrined in section 1(a) of the Children Act 1989 which provides that:

“When a court determines any question with respect to … the upbringing of a child… the child’s welfare shall be the court’s paramount consideration.”

  1. The other equally important development was the dethroning of the father from his privileged position vis-à-vis the mother. The Guardianship of Infants Act 1886 marked an important step in that direction, but the 1925 Act put the matter beyond all argument. The preamble to the 1925 Act read as follows:

“Whereas Parliament by the Sex Disqualification (Removal) Act, 1919, and various other enactments, has sought to establish equality in law between the sexes, and it is expedient that this principle should obtain with respect to the guardianship of infants and the rights and responsibilities conferred thereby:”

The second limb of section 1 was in the following terms:

“the court … shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, … is superior to that of the mother, or the claim of the mother is superior to that of the father.”

  1. Ever since then, men and women, husbands and wives, fathers and mothers have come before the family courts, as they come today, on an exactly equal footing. The voice of the father carries no more weight because he is the father, nor does the mother’s because she is the mother. The weight to be attached to their views, if opposed, is to be determined on the basis of the merits or otherwise of the views being expressed, not on the basis of the gender of the person propounding them. The second limb of section 1 of the 1925 Act finds no place in section 1 of the 1989 Act, though it still appeared in section 1 of the Guardianship of Minors Act 1971, no doubt because by the late 1980s Parliament thought that it went without saying. And no doubt for that reason the true significance and importance of section 1 of the 1925 Act is sometimes forgotten. But it was, and remains, fundamental.

 

 

 

So, it was for the Court to determine what was in the children’s best interests (given that the parents could not agree and had asked the Court to resolve it – Munby LJ was at pains to make clear that this was not the State interfering uninvited with the parents religious arrangements and preferences, but that the Court had been asked to determine the dispute and could not decline to do so).   That’s quite a long route to decide that it is a welfare checklist issue, but it was necessary to take the route in this case, to clear out what was important and relevant and what perhaps only appeared to be.

 

The trial judge had heard evidence about the two schools and the two ways of life, and the impact on the children of following either educational course. In the end, he made the determination that the children would have better opportunities in life by attending the ‘Orthodox’ school as mother desired, rather than the ‘ultra-Orthodox’ school that father wished.

 

There was then an issue about whether that was too narrow a construction and whether the trial judge had placed far too much emphasis on the ‘pure’ educational component and not enough weight on the ‘entire way of life’ component.

 

 

The Court of Appeal dismissed the father’s appeal and did not feel that the Judge had been plainly wrong  (indeed, they indicate that they would have been likely to reach the same decision, had they heard the case in its entireity)

 

  1. In the first place, he had to take into account the present reality that, following the parental separation in October 2010, the children had not been following an exclusively Chareidi way of life. When with their mother they were inevitably exposed to her significantly less strict form of observance. So already, and in significant part, what the father would have wanted for his children, was simply not possible. But the father’s case was, of course, and correctly, that one must not overstate the significance of what had happened. If the children continued within the Chareidi educational system they would have less – very much less – exposure to the non-Chareidi way of life than if they were educated in the way the mother wanted. Judge Copley, as we have seen, was acutely aware of this reality.
  1. At this point a fundamental issue has to be grappled with. What in our society today, looking to the approach of parents generally in 2012, is the task of the ordinary reasonable parent? What is the task of a judge, acting as a ‘judicial reasonable parent’ and approaching things by reference to the views of reasonable parents on the proper treatment and methods of bringing up children? What are their aims and objectives? These are questions which, in the forensic forum, do not often need to be asked or answered. But in a case such as this they are perhaps unavoidable.
  1. In the conditions of current society there are, as it seems to me, three answers to this question. 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. Second, we foster, encourage and facilitate aspiration: both aspiration as a virtue in itself and, to the extent that it is practical and reasonable, the child’s own aspirations. Far too many lives in our community are blighted, even today, by lack of aspiration. Third, our objective must be to bring the child to adulthood in such a way that 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 so 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.
  1. The point arises in its most obvious and extreme form where the issue before the court is whether to require a teenager to submit against their wishes to life-saving medical treatment. There, as Nolan LJ once observed (In Re W. (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64, 94), the duty of the court is to ensure so far as it can that children survive to attain the age of 18 at which an individual is free to do with his life what he wishes. A poignant example is provided by the aftermath of Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386, where Ward J (as he then was) had required a 15¾ year old Jehovah’s Witness to have a blood transfusion despite his, and his parents’, vehemently expressed religious objections. A few years later, not long after he had attained his majority, E’s leukaemia returned. He refused a blood transfusion, going bravely to his death steadfast in his religious faith.
  1. But the point arises equally, if in less extreme form, in the kind of case with which we are here concerned. So, in my judgment, Judge Copley was entitled to proceed as he did, just as he was entitled to accept Miss Adams’ analysis. To repeat:

“Whilst it is evident that either decision regarding schooling will result in losses, I have viewed this dilemma as one where I have tried to assess in which situation the children will have the most choices about relationship with both parents in the future, and the most choice about how they wish to live in the future.”

  1. Applying that approach to the particular facts of the present case, and bearing in mind his acceptance of Mrs Adams’ analysis, it seems to me that there were four key strands in Judge Copley’s reasoning.
  1. The first focused on educational opportunity. Here the evidence was clear and the choice stark. Whatever may be the practice in relation to education down to the point when children takes GCSEs, it is clear that, even for boys, the educational options narrow drastically thereafter in the Chareidi system and that tertiary education as generally understood hardly features at all. Career opportunities for boys in professions such as medicine and the law are very limited indeed, for girls virtually non-existent. The contrast with the wider community could hardly be greater. It is hard to imagine how either law or medicine could operate today without the women who at every level and in such large numbers enjoy careers which they find fulfilling and from which society as a whole derives so much benefit. Take the law: when I was called to the Bar in 1971 there were 2,714 barristers in practice at the independent bar of whom only 167 (some 6%) were women; by 2011 there were 12,673 of whom 4,106 (some 32%) were women. That is a measure of just how far society has moved in the last 40 years. And that, in my judgment, is the kind of societal reality to which a family judge must have regard in a case such as this. It is, after all, the reality which is daily on display in our family courts. The present case, as it happens, is typical of many: all three counsel who appeared before us were women, so too were the two solicitors, and so too was the CAFCASS officer. Judge Copley, in my judgment, was plainly entitled to conclude, as he did, that:

“the schools to which she wishes to send them will provide infinitely superior opportunities for these children to gain a much fuller and wider education, not only at secondary level but also at tertiary level should they choose that – the father’s own evidence and that of his witnesses bears this out – and thereafter they will have much greater job opportunities”,

just as he was entitled to accept Mrs Adams’ view that it was:

“more likely that the children will achieve greater economic success if they are given aspirations in relation to careers that exist outside the Jewish community.”

  1. The second strand in Judge Copley’s reasoning was his acceptance of Mrs Adams’ analysis of the emotional impacts on the children:

“If the children were to go to the schools of [father’s] choosing, I think there is a high risk that their relationship with their mother would become problematic … Conversely, if the children go to a school of [mother’s] choosing, there will be considerable losses also … I also think that there is some merit in the observation that a more accepting community composed of children from a variety of backgrounds will make it easier for the children to adjust to being children of a separated family … I think it will be easier for them to make the transition at a younger age, when children are often more adaptable in terms of peer groups.”

In relation to this Mrs Adams made a particularly powerful point:

“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.”

In my judgment, Judge Copley was plainly entitled to proceed on this basis.

  1. The third strand in Judge Copley’s reasoning was his acceptance of a very important point made by Mrs Adams:

“I am concerned that the children would have difficulty making a decision to embrace their mother’s lifestyle when they are older as they would be fearful of leaving behind everything they had grown up with … On the other hand, within the sort of community their mother proposes, they would be able to return to their religious roots when older.”

Again, in my judgment, Judge Copley was plainly entitled to proceed on this basis.

  1. The fourth and final strand in Judge Copley’s reasoning was his view, shared with Mrs Adams, that on balance the children’s interests were best served by what the mother was proposing. He was, in my judgment, plainly entitled to come to that conclusion.
  1. It follows that the father’s appeal must in my judgment be dismissed. This court can interfere only if it can be shown that Judge Copley was plainly wrong. He was not. I would, however, go further. Far from being plainly wrong Judge Copley was, as it seems to me, in all probability right in the decision to which he came. I suspect that, had I been in his position, having heard all the evidence he heard, I would have come to precisely the same conclusion.