Ainsbury v Millington
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE CROOM-JOHNSON |
| Judgment Date | 08 August 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0808-2 |
| Docket Number | 85/0508 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 August 1985 |
[1985] EWCA Civ J0808-2
Lord Justice Dillon
Lord Justice Croom-Johnson
85/0508
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BASINGSTOKE COUNTY COURT
(HIS HONOUR JUDGE GALPIN)
Royal Courts of Justice
MISS L.F. OLIVER, instructed by Messrs Church Adams Tatham & Co. (Agents for Messrs Snow & Bispham of Basingstoke), appeared for the Appellant (Plaintiff).
MR N.A WOOD, instructed by Messrs Brain & Brain (Basingstoke), appeared for the Respondent (Defendant).
This is an appeal by the applicant, Mrs Susan Ainsbury, against a decision of His Honour Judge Galpin given in the Basingstoke County Court on 24th July of this year. The judge then refused to hear the applicant's application for an interlocutory injunction to exclude the respondent, Mr Derek Millington, from a property, No. 24 Marlowe Close, Popley, near Basingstoke, because the judge held that he had no jurisdiction to entertain that application. The question was decided by the judge entirely on the preliminary issue of jurisdiction, and it is upon that issue (which I do not find at all an easy one) that the appeal comes before this court today.
The background facts can be stated fairly shortly. The applicant is herself only 17 years of age. The respondent is 21. They had a relationship, without marriage, as a result of which their child was born on 19th December 1983, Samantha Louise Millington; so she is now a little over a year and a half old. They obtained in their joint names a tenancy of the property No. 24 Marlowe Close, which was a council house. However, in the first half of 1984 the respondent was arrested on a charge of burglary in which apparently the applicant's brother was also involved. He was remanded in custody, and in or about September 1984 he was sentenced to a term of 18 months imprisonment or youth custody. On his arrest the cohabitation between the applicant and himself ceased, and in his absence in prison the applicant married someone else, a Mr Ainsbury, by whom we are told she is now pregnant. Mr Ainsbury had no other home available for himself and the applicant, and so he moved in to No. 24 Marlowe Close, living there with the applicant and the child Samantha Millington.
At the beginning of July of this year the respondent was released from prison. A day or two later there seems to have been something of a row at No. 24 Marlowe Close. The upshot was that, after it had been pointed out that Mr Ainsbury had no tenancy of that property, he left and the applicant left with him, taking Samantha with her. They went to the applicant's mother's home, which according to the evidence provides overcrowded and unsatisfactory conditions, and the respondent was left in sole possession of No. 24 Marlowe Close.
Having consulted lawyers, the applicant on 18th July issued these proceedings in the Basingstoke County Court. They are brought in the matter of the Guardianship of Minors Act 1971 and the Guardianship Act 1973, and in the matter of Samantha Louise Millington. The applicant applied in the proceedings to be granted custody, care and control of Samantha; for an injunction restraining the respondent from assaulting, molesting or communicating with the applicant; and also for an order that the respondent vacate No. 24 Marlowe Close and do permit the applicant and Samantha to return thereto, and that the respondent do not return to No. 24 Marlowe Close until further order. The applicant of course envisages and requires that, on the respondent vacating No. 24 Marlowe Close and when she herself returns there, her husband, Mr Ainsbury, will come to live with her there.
The judge made an order granting the applicant interim custody of Samantha and directed that the respondent have daily access and staying access to be agreed. He also directed a court welfare officer's report to be prepared, but he declined the application for an ouster order because he held that he had no jurisdiction to grant that relief.
There seems to be no doubt that ouster orders were granted without great consideration of the jurisdictional right to grant them in many cases before the decision of the House of Lords in Richards v. Richards, reported in 1984 Appeal Cases, 174. The whole question of jusidiction was, however, carefully considered by their Lordships in Richards v. Richards. What was particularly held in that case, as I understand it, was that, as between husband and wife, the making of an ouster order excluding one or other of the parties from the matrimonial home could only be justified under what is now the Matrimonial Homes Act 1983 or the Domestic Violence and Matrimonial Proceedings Act 1976. Those statutes provided complete codes in themselves covering what was to be taken into account in such applications. Those statutes are not available to the applicant in the present case because she and the respondent have never been married, and for many months now they have not been living together with each other in the same household as husband and wife. But Bichards v. Richards, as I read their Lordships' speeches, went further than that. It is pointed out that, where a specific statutory provision such as is in the Matrimonial Homes Act is not available and a party seeking an injunction has to rely on what is now section 37 of the Supreme Court Act 1981 (which empowers the court to grant an injunction in all cases in which it appears to the court to be just and convenient and which is applicable in the county court by virtue of section 38 of the County Courts Act) the court can only grant the injunction if it...
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