“Dear Sam” – High Court judge delivers judgment in the form of a letter

Dispute about where a child should live after divorce

August 21, 2017

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In this blog, Family Law in Partnership associate Carla Ditz looks at the recent decision of Mr Justice Jackson in Re A (Letter to a Young Person) [2017] EWFC 48 in which he delivered his judgment in the form of a letter to a 14 year old boy.

The case concerned an application by the father for the relocation of his son (‘Sam’), aged 14 to Scandinavia so that he could live with his father. The father’s application was opposed by the mother and step-father. Ultimately, permission to remove Sam from the jurisdiction was refused, as was permission for Sam to apply for citizenship. At the time the judgment was delivered, Sam was on a school trip. The judgment was read to the parents by the Judge in the form of a letter (save for 4 introductory paragraphs). The letter was then given to Sam’s solicitor for him to see once he returned from his school trip.

The letter dated 13th July 2017 was published on 26th July 2017. Please click here for a link to the judgment(http://www.bailii.org/ew/cases/EWFC/HCJ/2017/48.html)

The Judgment

Mr Justice Jackson starts his very personal letter to Sam by saying, ‘This case is about you and your future, so I am writing this letter as a way of giving my decision to you and to your parents.’ He then explains the law in straightforward terms, namely that the Children Act 1989, section 1 states that the child’s welfare is the Court’s paramount consideration.

At paragraph 2, the Judge states that ‘I believe that your feelings are that you love everyone in your family very much, just as they love you. The fact that your parents don’t agree is naturally very stressful for you, and indeed for them.’  The Judge acknowledges at paragraph 11 that, ‘There needs to be an end to proceedings of this sort. They have been extremely stressful for everyone. This is the fifth case there has been about you and, unless something pretty extraordinary happens, it should be the last.’ The Judge also went one step further and made an order under section 91(14) Children Act 1989 to restrict any future applications being made with respect to Sam until after his GCSEs. Permission would instead first need to be obtained from the Designated Family Judge.

What is apparent in this judgment is the weight afforded to Sam’s own views and the impression Sam gave to the Judge during the case. At paragraph 3, he states, ‘You are of an age where your views carry a lot of weight with me, and I consider them in the light of your understanding of what has made things as they are. As to that, I don’t think anyone of your age in your situation could understand it better than you do, but nor could they fully understand the influences that you are under and the effect that has on you.’ The Judge does however have reservations about the particular influence of Sam’s father on him and at paragraphs 4 and 5, he notes ‘All fathers influence their sons, but your father goes a lot further than that….So I have a view on the question of whether the idea of these proceedings comes from you or from your dad. My view is that you brought the proceedings mainly as a way of showing your dad how much you love him. It was mainly to meet his needs, and not yours.’ He concludes, ‘I respect your views, but I don’t take them at face value because I think they are significantly formed by your loyalty to your father.’

What is evident is that the Judge had little confidence that the father had developed a plan of how he and Sam would live in Scandinavia. No evidence had been produced by the father about housing, schooling, contact arrangements with family and friends in England or employment opportunities. Such evidence is fundamental in such an application.

The Voice of the Child

In this case, Sam himself briefly gave evidence at the start of the hearing at his request. So as to avoid the need for direct questioning on behalf of both parents, the parents were instead asked to prepare 5 questions which were then directed to Sam by the Judge. The Judge observed in his judgment that Sam felt confident that he had got his point of view across.

The way in which Mr Justice Jackson has delivered his judgment in this case resonates with the current sentiment surrounding the voice of the child. The notion that children in family law proceedings are not being ‘heard’ has long been discussed and debated.  Young people are increasingly feeling that their opinions and feelings are not being heard nor taken into account in proceedings which concern them and the popular view is that more opportunity should be given to children (where appropriate of course) to express themselves in some manner in proceedings which concern them. It is not uncommon therefore for children to now meet with Judges privately for example so as to express their concerns and feelings about the particular situation they find themselves in. In many circumstances, it will not of course be appropriate for children to become involved in proceedings and each case must be individually assessed to conclude whether it would cause more harm than good.

The Future?

What Mr Justice Jackson has done in this case is made his judgment more accessible and comprehensible for the child for whom the decision is life changing. Some might question however whether the judgment actually contains enough detail. Also, one might ask whether a son needs to be told by a Judge that his father has a ‘manipulative side’, that he behaves in a ‘self-centred’ manner and that ultimately he exerts undue influence over him? It is undeniably a concern how Sam would digest this information and how he would ultimately feel having heard it.

It remains to be seen if more judges in children cases will follow suit in the manner in which judgments are delivered. This recent decision presents a persuasive argument for delivering judgments using simple, concise language and even addressing the child in the form of a letter so as to ensure that children understand what is being said, how a decision has been reached and crucially, acknowledging that their voice has been heard where relevant.

At Family Law in Partnership we encourage parents to place their children at the heart of their decision making process on divorce or separation. Take a look at our website, Parenting Issues and Child Support, and find out more about our specialist Parenting After Parting  workshops. For advice and assistance, please contact any of our expert family and divorce lawyers E: hello@flip.co.uk or T: 020 7420 5000.