Three judgments have been published recently about a series of custody proceedings between a separated couple from the ultra-Orthodox Satmar sect: X (Number 1: Religious Differences: Schools)  EWFC B230; X (Number 2: Orthodox Schools)  EWFC B237; and X (Number 3: Division of Religious Festivals)  EWFC B91. Though they do not establish any new legal principle, they are a stark illustration of the difficulties inherent in the work of the Family Courts.
The situation was set out very briefly by HHJ Rowe in X (Number 1). In 2014, The boy, A, was nearly five and the girl, B, was two. Their parents were separated but not divorced.
Possibly the crux of the matter was that, having left the Satmar community, the father had had to contend with the disapproval not only from the mother and her family but also from his own wider family: “Currently he is struggling to rebuild his relationship with his father who lives in Israel. The community now struggles to see the father as Jewish” [No 1: 14].
The children lived with their mother in a Yiddish-speaking home (the mother gave her evidence in Yiddish, supported by an interpreter). Their father speaks Yiddish and English: in 2014, A spoke Yiddish and had a little English, while B spoke only Yiddish. The children spent eight hours with their father on alternate Sundays and, in the intervening week, three hours after school on alternate Thursdays. A attended a mainstream Orthodox Jewish school close to the mother’s home: B attended a crèche attached to another school where the mother worked and where B could move when she reached school age:
“In short, the case concerns two devoted and loving parents who now live their lives in fundamentally different ways. Their challenge is to help their children to navigate a path between these two ways of life and to maintain a close and loving relationship with both of their parents” [No 1: 4].
Ms Ionescu, the CAFCASS Officer, considered it essential that the children should spend frequent regular time with the father, lest he be marginalised [No 1: 7 & 12]
In her first judgment, HHJ Rowe directed that:
- A should immediately move to spending one night with his father on alternate weekends while B’s visits remained daytime only;
- from the beginning of January 2015, B should join her brother so that both children spend one night with their father on alternate weekends;
- from April 2015, after Passover, both children will start to spend two consecutive nights with their father on alternate weekends and the two-night visits should start on Friday afternoon, to allow the children to spend the whole Shabbat with their father; and
- the children should continue to spend time with their father for three hours on the intervening Thursday afternoon [No 1: 35].
In making her order, HHJ Rowe noted that the mother was opposed to the children spending Shabbat with their father because, in her view, the festival meant nothing to him. She was, however, quite satisfied, that the father would “provide the children with an Orthodox Sabbath on their weekends spent with him”; and
“if the children never spend the Sabbath or any of the Jewish religious festivals with their father, then they will receive a stark message about him: that he is no part of their Jewish life; in short, that he is not really Jewish and therefore he is not really important. This is the very opinion – the very damaging opinion – currently held by the community and which poses a real risk to the children’s sense of their father’s importance and of his place in their lives. It is an opinion that the mother herself must work hard to soften if she is to raise two emotionally healthy children” [No 1: 37].
In the first of the three judgments, the Court ordered that A should attend Y school (the mother’s choice) and B should attend L school (the father’s choice): the recommendations of Ms Ionescu [No 1: 60]. Subsequently, it became apparent that neither of the schools identified the judgment had places for the children and the matter came back to court.
At the second hearing, HHJ Rowe came to “the clear conclusion that A and B should both attend the Satmar schools” [No 2: 60].
Alleged inappropriate behaviour by the father
By the time of the second hearing, the mother had asserted, inter alia, that the father had talked inappropriately to the children about sex and human reproduction, had talked to A about the theory of evolution, “the belief in which is heretical in the Satmar world” [No 2: 2] and had combed A’s curls on the Sabbath visit despite knowing that this was impermissible [No 2: 28].
The second judgment
In her second judgment, HHJ Rowe ordered, inter alia, that:
- A and B should both attend the Satmar schools rather than the L schools, on the grounds that “these children would find it very difficult indeed to live in Satmar and attend L schools” and they needed to feel embedded rather than marginalised within the community in which they spend the majority of their lives. Moreover, it was the mother who would have daily contact with the school, “morning and afternoon six days a week” and there was no objective evidence supporting the father’s distrust of the Ofsted reports on the Satmar schools or his conviction that secular studies were not offered [No 2: 97].
- “If the father is straining against Orthodox life, then the risk that he will speak unwisely to the children will remain. Whilst L [school] is likely to be more forgiving of the father than Satmar should the children repeat inappropriate secular information, it has no current loyalty towards either of these parents. Satmar has shown itself, albeit not this particular school, to be sufficiently supportive of the mother and children to make some allowance for these children given their predicament. That loyalty is of value to the children in this difficult family arrangement [No 2: 97].
She emphasised that she was not making any value judgment about the options for the children, but simply reaching decisions in the children’s best interests, given the fundamentally different choices that their parents have made for themselves. Moreover:
“Each parent must exercise patience. Both must exercise understanding. Neither must rush to think the worst of the other. In particular neither should rush to request a review of the arrangements put in place by the court. Neither must unilaterally change those arrangements” [No 2: 98].
The third judgment
By the time of the third judgment, the children had never spent a Festival day (as opposed to the non-Festival days during Festival periods) with their father. On 31 May, the father issued an application to enforce the provision of the order requiring the mother to make the children available for Festival days, while on 28 June 2016 the mother applied to vary the terms of the order (a) proposing that the children see their father every weekend for one overnight but always excluding the Sabbath, and (b) providing for the children to spend all Festival days with her. The mother’s case was that the father had shown a disregard for the rules of the Sabbath, had allowed the children to eat non-kosher food and had refused to wear the kippah at all times when the children were with him. In short, she accused him of not caring about the Festivals [No 3: 7, 8 & 9]. The Guardian’s position was that the weekend arrangements should continue unchanged and that the children should be able to spend Festival days equally with both parents [No 3: 13].
Her Honour’s overall impression of the mother remained the same: “She has not changed. Her fears remain the same. Her suspicion of the father remains the same.” Moreover, “it seemed that she was looking for evidence to confirm her worst suspicions, and … I did gain the clear impression that the mother has been making the very presumptions that I cautioned against in 2015 [No 3: 30]. Her overall impression of the father, on the other hand, “was of a man far calmer and more at peace with himself that he was in the quite fraught proceedings of 2015.” He was a member of one local Jewish community and had links with another and celebrated Shabbat whether the children were with him or not. He had also made peace with his own father [No 3: 31]
The mother accused the father of various breaches of Jewish law [No 3: 36]. HHJ Eady accepted that there had probably been occasional deviations from the Satmar rules, but put these down to carelessness rather than any intention deliberately to flout the rules.
HHJ Eady concluded that the mother’s case to vary the previous order had not been made out [No 3: 45]. She further concluded that the term-time arrangements should continue as at present and that the children should spend equal time with each parent, both Festival and intervening days, for both Pesach and Succot [No 3: 47].
Publication and identification of the parties
HHJ Eady concluded her third judgment by addressing the issue of publication, noting the ongoing debate about the extent to which children’s private details should be published:
“I am conscious that recently young people have themselves expressed concern about this, and about how easy it is to identify children even from anonymised judgments. I accept that those within the mother’s community will be able to identify these children from the details of the case. I also find, however, that those within the community already know who the children are and know the essence of their situation. I have had evidence to that effect and I expressed concern about it in my 2015 judgment” [No 3: 65].
She concluded that the three judgments should be published. Those within the children’s community already knew who they were and those outside it would be unable to identify them from the judgments: “The facts are sufficiently complex and unusual to give rise to a legitimate public interest in the publication of my judgments” [No 3: 66].
“Further, I conclude that it will be helpful rather than harmful to the children for those in their mother’s community to understand the care and respect that the court has brought to this case. Crucially, publication will convey the court’s evaluation of the fundamental importance to these children of a full continuing relationship with both parents. These children will continue to move between two worlds and in doing so they will continue to live a different experience to the other children within their mother’s community. These children need the community to help their mother to support them in that journey. A and B need the community to understand that they will inevitably have these different experiences in their lives with their father and to be accepting rather than rejecting as a consequence. They need the community to recognise and acknowledge the importance of their father’s role in their lives” [No 3: 67].
Postscript: the Get
One issue that bedevilled the early proceedings was the father’s failure to give the mother a Get [a bill of divorce]. The mother contended that his refusal demonstrated that the father had been unreasonable and was likely to be unreasonable in relation to the conditions of contact. The father said that there had been practical problems in arranging the Get [No 1: 63]. HHJ Rowe rejected his contention:
“I find that the father decided not to give the mother the Get because he was afraid that once he and the mother were divorced he would find it even harder to remain part of the lives of the children” [No 1: 64].
Her Honour was reluctant “to be too critical of the father for this” [No 1: 65] but felt that it was now time for him to issue the Get “so that she can move on … and consider a further relationship” [No 1: 66]. By the time of the second judgment he had complied [No 2: 18].