More 'Dear Sam' letters?

Re A (Letter to a Young Person) [2017] EWFC 48 concerned an application by the father for the relocation of his son (“Sam”), aged 14, to Scandinavia. 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 the boy to apply for citizenship.

The judgment was read to the parents by Mr Justice Jackson in the form of a letter (save for four introductory paragraphs). The letter was then given to Sam’s solicitor for him to see once he returned from a school trip.

Jackson J starts his 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 section 1 of the Children Act 1989 states that the child’s welfare is the court’s paramount consideration.

At paragraph 2, he states, “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.” And he 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 then went one step further and made an order under section 91(14) of the 1989 Act 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 he gave to the judge during the case. At paragraph 3, Jackson J 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 influence of Sam’s father on him. 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.

Voice of the child

In this case, Sam briefly gave evidence at 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 five questions which were then directed to Sam by the judge, who observed in his judgment that the boy felt confident he had got his point of view across.

The way in which Jackson J delivered his judgment resonates with the current sentiment surrounding the voice of the child. The notion that children are not being “heard” has long been debated. Young people are increasingly feeling that their opinions and feelings are not being 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.

It is not uncommon for children to now meet with judges privately to express their concerns and feelings about the situation they find themselves in. In many circumstances, it will not 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 Jackson J has done is to make his judgment more accessible and comprehensible for the child for whom the decision is life changing. Some might question whether the judgment actually contains enough detail. One might also ask whether a son needs to be told that his father has a “manipulative side”, that he behaves in a “self-centered” manner, and that 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 will follow suit. This decision presents a persuasive argument for delivering judgments using simple, concise language and even addressing the child in the form of a letter to ensure they understand what is being said, how a decision has been reached, and, crucially, that their voice has been heard.

Carla Ditz is an associate at Family Law in Partnership