The Court made the decision for the children to attend an intermediate against their clear wishes. The children wanted to attend a religious school but their father did not share their beliefs and the Court was concerned about the relationship between the children and their father deteriorating further if the children attended a religious school.
- This case involved a dispute between the parents as to the intermediate school the two eldest children were going to attend.
- The parents had been married for 10 years and had separated 9 years prior to the hearing.
- Care of Children proceedings were first filed in 2011 and a Parenting Order was made giving the father care of the children from Friday until Tuesday each alternate week and from Tuesday until Wednesday every other week, so 5 nights every fortnight.
- That Parenting Order was in place until later 2018 when the mother obtained an Interim parenting Order for the children to be in her day-to-day care and have supervised contact with their father for 3-5 hours a week.
- Around the same time the father applied to the Court to determine the dispute between the parents about the children’s schooling. His without notice application was declined and the application was transferred to the standard track, the Duty Judge noting it was a decision that needed to be made jointly, or failing that by the Court after consideration of all relevant matters.
- The father wanted the children to attend school 2 (2.6km from the mother’s home) and then a separate high school while the mother wanted the children to attend school 1 (13.6km from the mother’s home) for both intermediate and high school.
- The mother’s preference for school 1 was that the children would benefit from attending a school which has a religious core. The mother, her husband and the children were Christian and attended church. While the parties were together the father also attended and was involved in the church.
- The mother’s evidence was the children’s views aligned with those of the church and that the children had raised the possibility of attending school 1 after visiting the school for music lessons.
- Other benefits of school 1 were that the school provided excellent academic education, including the Cambridge Education Programme and arts and music programmes; the children would not have to move to attend high school; the school had a smaller roll and smaller class sizes than school 2; and that the three children would attend school together, which provided the advantage of only one school pickup and drop off.
- The father fundamentally opposed the children attending a religious school. He acknowledged their involvement in the church and that their faith and religious beliefs were important to them, but he did not share those beliefs which had had an impact on their relationship with them.
- The children had expressed their disappointment that their father did not want them believing in Jesus and admitted it had affected how they felt about their father.
- However, the Court considered the father was minimising his involvement and support of the church during the relationship to bolster his case for the children to attend a non-religious school.
- One of the child’s views were that they wanted to attend school 1. Even though most of their friends were going to school 2, they said they would prefer school 1 because it was a Christian school (he emphasised religion was very important), and it would not require a change for secondary school. He was particularly upset by the conflict and his father.
- The other child’s views in favour of school 1 was even stronger. For him there was no other choice, and he would be upset if he was made to go to school 2. For him religion was a big part of his views.
Relevant legal principles
- Section 15 of the Care of Children Act 2004 defines guardianship as being all duties, powers, rights, and responsibilities that a parent of a child has in relation to the upbringing of a child.
- Section 16 provides an extended definition including where are how a child is to be educated.
- In making guardianship decisions the Act requires guardians should act jointly, in particular by consulting wherever practicable with the aim of securing an agreement.
- When guardians cannot agree an application can be filed under section 46R of the Act. Under that provision the Court will have consideration of the welfare and best interests of the child and in doing so will take into account the child’s views.
- There is no presumption that the wishes of the parent who has the role of day-to-day care should have greater weight than those of another guardian.
- The Judge considered the principles in section 5 concluding:
- There were no safety issues.
- There was no disagreement that the children’s care, development and upbringing, although the Judge notes if the children attended school 1 the father may not feel as welcome or comfortable as he would at school 2.
- Regardless of which school the children attended there would be continuity of care.
- The children’s identities (including, without limitation, their culture, language and religious denomination and practice) could be preserved and strengthened no matter what school they were educated at. The Judge acknowledged that their religious observance will be advanced if they attend school 1, but noted it would not be adversely impacted if they do not attend that school, as they could continue to observe and practice their religion in their mother’s home and through their involvement in the church.
- The Judge raised concern about the impact attending school 1 would have on the relationship with the father as given the divergence in the parent’s views about their children’s observance of their religion, the may feel unable, unwelcome or uncomfortable to participate in the school and/or school community activities because he does not share the faith and belief system of the children and the school, and that the children themselves may feel uncomfortable having their father attend such events or activities, knowing that he does not have the same beliefs that they do and having an awareness, potentially, that their teachers, leaders at school and their peers may also be aware of this.
- Because of the already vulnerable relationship between the father and the children the Judge considered this was a real risk.The Judge also considered the impact on the relationship if a decision was made against the children’s expressed views noting the children may feel aggrieved. However, the Judge considered that risk could be managed by a counsellor. The Judge concluded there was a greater risk to the relationship if the children attended school 1.
- The decision was that the children should attend school 2 due to the risk of the relationship between the father and children deteriorating further and the father being alienated from their lives, or from a significant area of their life.