Tom v M and F [2024] EWFC 313 (B)

Tom v M and F [2024] EWFC 313 (B), before His Honour Judge Muzaffer.

Tom, aged 13, applied for permission to make an application that he live with his Father and to move Schools.

There had been a long history of litigation with cases in 2013, 2015 and 2016 resulting in roughly equal division of Tom’s time between his Mother and Father. In 2019 in further litigation Tom, who was then 10, had stated that he wanted to live with his Father and to move schools. The Court however felt Tom should continue to spend broadly equal time with his Parents and remain at his then school.

Further litigation took place in 2022 around which Secondary School Tom should attend, and again, Tom expressed a wish to live with his Father, which was considered. The Court however ordered Tom attend the School preferred by his Mother and following this decision being made the Parents agreed the previous arrangement (sharing time broadly equally), should continue.

Within this application Tom filed a Statement expressing unhappiness living with his Mother and to live with Father, spending instead just alternate weekends and a few hours on a weekday evening with his Mother. Tom also wished to attend the Secondary School which had been put forward previously by his Father. Tom stated he did not feel his wishes had been taken into account previously.

Tom’s Solicitor filed a Statement indicating in her opinion Tom had sufficient understanding to make the application. This was not agreed by the Mother, who felt if the application was refused things would be ok with a little time. Tom’s Father supported the application whilst the Guardian did not, being worried what it would do to the relationship between Tom and his Mother.

The Court considered Tom’s understanding and found that he lacked sufficient understanding to make the application as he:

1.  Did not understand the long term impact of what he wants on the relationship that he has with both his mother and Anna (his sister).
2.  Was unable to put forward clear reasons as to why there needs to be such a significant change to both the time he spends with his parents and his schooling;
3.  Did not understand the extent of harm and upset that he might be caused through being in a court battle with his mum and dad.

In light of the lengthy history of litigation the Court then made an order pursuant to s91(14) (preventing further applications without permission of the Court) until Tom turns 16.

Interesting legal points to note are (judgment paragraph numbers in [square brackets]):

1.  That Tom was appointed a r16.4 Guardian, but the Court exercised its discretion to exclude Tom from the hearing pursuant to FPR r.12.14(3) and r.27.4(1) [24-25];
2.  That the only relevant Practice Direction as to allocation of such matters is 30 years old, Practice Direction (Applications by Children: Leave) [1993] 1 WLR 313, and this suggests High Court allocation, such that the matter was in fact re-issued in the High Court and then released [29-30];
3.  That an application by a child is exempt from the requirement for attendance at a MIAM, however there was discussion of potential mediation in any event [31-32];
4.  Whilst a Court may only grant permission to apply pursuant to s10(8) if it is satisfied a child has sufficient understanding, even if they do, there is still a discretion for the Court [38-39];
5. There is a helpful survey of the authorities as to assessing whether a child has sufficient understanding [41-45] and addressing ‘all the circumstances in the case, including the prospects of success’ [46-47] and the Court then framed it’s analysis of Tom’s understanding utilising the decision of Williams J in CS v SBH & Others [2019] EWHC 634 (Fam) at paragraph 65) [82-107];
6.  The Court considered the need for expert evidence as to Tom by way eg of Psychological Assessment [51-54], noted [53] that ‘per In Re C (A Child) (Child Ability to Instruct Solicitor), it is typically a matter for the solicitor whether a child has the ability to instruct, and expert evidence is not usually required’, and further in in the judgment the Judge noted [64] the Family Justice Council guidance in April 2022, ‘Guidance on Assessing Childs Competence to Instruct a Solicitor’.

Tom v M and F [2024] EWFC 313 (B) judgment

Case note by Mark Chaloner.

13th Nov 2024

Mark Chaloner

Call 2002