JZ v FZ

On an appeal concerning a child’s schooling, the appellate court must not rehear the welfare decision. Permission requires a real prospect that the decision was wrong, or another compelling reason. A first-instance judge’s choice between schools falls within the welfare discretion where all relevant factors have been considered. The fact that one school has a religious ethos does not make it impermissible. The court must assess the child’s welfare, including the effect of the choice on each parent’s role and the child’s future opportunities. The absence of an express recital of every item in the welfare checklist does not demonstrate error where the judge was plainly aware of the paramountcy principle and relevant circumstances.

The father appealed against a child arrangements order and specific issue order made by the Family Court at Barnet on 10 February 2017. The orders provided for the children to live with their mother and spend increasing time with their father. They also directed that the older child should attend an Islamic school, if he obtained a place, or otherwise a different school.

The father argued that the school decision failed to reflect the child’s welfare, gave excessive weight to his earlier acceptance of the Islamic school, and failed to address the risk that he would be marginalised from the child’s education. He also raised human rights concerns, but accepted that the child’s welfare was paramount. The central issue was whether there was a real prospect that the first-instance decision was wrong or unjust because of procedural irregularity.

1. Permission and appellate approach. Permission to appeal was refused. The application was not a rehearing. The father had to show a real prospect that the decision was wrong, or that it was unjust because of a procedural or other irregularity. The decision on the timing of increased contact was also plainly within the first-instance judge’s discretion.
2. School choice and welfare. The first-instance judge had been entitled to choose the school which best served the child’s welfare. The judge had considered the schools’ academic and pastoral qualities, the child’s circumstances, the parties’ positions, the child’s lack of a clearly expressed independent preference, and the possibility that the father would feel marginalised.
3. The judge was entitled to conclude that the father would not be marginalised if he made constructive use of the increased contact time. The father’s earlier acceptance of the school and the child’s efforts to obtain a place were legitimate considerations. The conclusion was within the ambit of the judge’s discretion.
4. The principles stated by the Court of Appeal in Re G [2012] EWCA Civ 1233 did not imply that a religious school could not be selected where that choice was in accordance with the child’s best interests. The judgment was not inconsistent with those principles.
5. The judge was plainly aware of the paramountcy principle and relevant welfare considerations. The failure to set out expressly each factor in the Children Act 1989 welfare checklist did not establish an error of law. The decision therefore stood.

• High Court (Family Division): Permission to appeal from the Family Court at Barnet was refused. The child arrangements and specific issue orders therefore remained in force.
• Family Court at Barnet: His Honour Judge Rylance made orders on 10 February 2017 concerning the children’s arrangements and directed that the older child attend the selected Islamic school if he secured a place.