High Court judge hands down judgment in a letter to a child

11 / 08 / 2017

The Honourable Mr Justice Peter Jackson in the High Court (Family Division) recently took an unusual step by delivering judgment by way of a letter to a child.

The case (Re A (Letter to a Young Person)(Rev 1) [2017] EWFC 48) concerned a 14-year-old boy, who lived with his mother and stepfather. For the purposes of the judgment, Mr Justice Jackson called the boy Sam, although that is not his real name. Sam’s father wanted to take him to live in a Scandinavian country, and Sam wanted to go with his father. The initial application for leave was made by Sam, but was subsequently taken over by his father. Sam’s mother and stepfather, as well as an experienced Cafcass officer, refused to give their permission for Sam to live in Scandinavia. Mr Justice Jackson decided that he would hear from Sam himself, but Sam should not be questioned directly by either of his parents. After hearing Sam’s evidence, Mr Justice Jackson heard evidence from the three parents and the Cafcass officer.

In relocation cases, the court must consider the application in accordance with the welfare of the child. In particular, the court must consider the following circumstances under s1(3) of the Children Act 1989:

a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

b) his physical, emotional and educational needs;

c) the likely effect on him of any change in his circumstances;

d) his age, sex, background and any characteristics of his which the court considers relevant;

e) any harm which he has suffered or is at risk of suffering;

f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

g) the range of powers available to the court under this Act in the proceedings in question.

In the judgment Mr Justice Jackson considers the above circumstances, but has taken an unusual step by handing down judgment by way of a direct letter to Sam. The letter is written in a way that a 14 year old would understand. Mr Justice Jackson sought permission from Sam, his mother and stepfather, and from the Cafcass officer, to publish the letter, which was freely given. Sam’s father refused permission to publicise the letter, but he gave no reasons for his refusal. The letter has since been published.

Mr Justice Jackson put it plainly to Sam that there were four questions he had to consider in his case, which were as follows:

  1.  should [Sam] go and live in Scandinavia? 
  2.  should [Sam] become a citizen there? 
  3. if all [of Sam’s] parents are living in England, should [he] spend more time with [his] dad? 
  4. if [Sam’s] dad goes to Scandinavia, and [Sam] stays [in England], how often should [Sam] see him?

It was decided that Sam’s father could not take him to live in Scandinavia. The reasons for the court’s decision are given in the letter itself.

Mr Justice Jackson has been applauded for his sensitive approach to the case. It can be difficult for a child to understand a court’s decision when judgment is given in the usual way, written in legal language. In the majority of cases, a child would not even read a court’s judgment.

One other difficulty following court decisions in cases like this is that a child may hear different accounts from either parent as to why permission was refused. A direct letter from the judge to the child avoids the problem that a child is told one story from one parent and a different story by the other parent.

Although there has been some criticism as to whether it was appropriate for Sam to read the court’s criticism of his father, the court would have to ensure that, if a letter to a child is prepared, then it is written in a sensitive way to ensure that child’s relationship with either of his parents is not damaged.

It will be interesting to see whether the Family Court adopts this approach going forwards in all children cases.

A full copy of Mr Justice Jackson’s letter can be found at Case: Re A (Letter to a Young Person) (Rev 1) [2017] EWFC 48, 26 July 2017 (Bailii).