B. (M.) v B. (R) (Note)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE WINN,LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 30 May 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0530-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 May 1968 |
[1968] EWCA Civ J0530-2
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Lord Justice Willmer,
Lord Justice Winn and
Lord Justice Edmund Davies
Mr RICHARD TUCKER (instructed by Messrs J.C.H. Bowdler & Sons, Shrewsbury) appeared on behalf of the Appellant (father).
Mr PETER NORTHCOTE (instructed by Mr David Harris, Shrewsbury) appeared on behalf of the Respondent (mother).
This is an appeal from on Order made by His Honour Judge Burrell sitting at Shrewsbury on the 6th of this month, relating to the custody of a small girl called Amanda, who is now 7½ years old, and whose parents have, unhappily, been divorced. The learned Judge had before him a considerable number of affidavits. He also heard oral evidence, not only from both the parents, but also from a number of other witnesses. Furthermore, he had the advantage of an admirable report from the Court Welfare Officer. He came to "the conclusion, in the event, that custody should be awarded to the mother; and the father now appeals to this Court.
Let me say at once that I regard the case as one of great difficulty and anxiety. I have no doubt the learned Judge also found it a difficult case. It seems to me that the arguments in favour of the one side and the other are very evenly balanced. There is a good deal to be said in favour of either side's view. I recognise that I am speaking in the presence of both the parents, and in those circumstances I think it right to say that I am well aware that, whatever decision we come to, it is bound to cause grave disappointment, and no doubt acute distress, to one or other of the parents. But I hope they will both understand that the Court is not concerned so much with the feelings of the parents. What we have to consider, and what is the paramount consideration for us, is the welfare of the child. When I speak of the welfare of the child, I should like to make it clear that what I mean is the long-term welfare of the child.
I can deal I hope shortly with the material facts of the case. The father is now 36 years of age. The mother is 26 years of age. They were married on the 4th May, 1960, and Amanda was born on the 1st November of that year. They lived together at the father's farm (the father being a farmer) in a Shropshire village not far from Shrewsbury until April, 1964, when the mother left the father, taking Amanda with her.she went to live for the time being with her own mother, also in Shropshire. In August of 1964 Amanda was returned to the father's home, and has resided there ever since. The father has living with him his own mother, a lady who is said to be 59 years of age, and who, during the past four years, has naturally taken a major part in the upbringing of the child.
Following the return of Amanda to her father, there were proceedings before the Justices in November, 1964, when an Order was made committing the custody of Amanda to the father. In January, 1965, the mother presented a petition for divorce on the ground of alleged cruelty on the part of the husband. The husband's Answer denied the charge of cruelty and contained a cross-prayer for divorce against the mother on the ground of adultery. In the event, neither of those allegations was ever the subject of judicial determination; for by the time when the divorce case came on for hearing in June of 1967 a period of three years had already elapsed since the separation between the parents. In those circumstances the father was granted leave to file a supplemental petition alleging desertion. That was not defended by the mother; so that the father obtained a decree on that ground. The decree was made absolute on the 19th September, 1967.
On the 4th October, 1967, the mother was married to her present husband. She had in the meantime, in August 1966, given birth to a son called David, who I understand it is common ground is the son of her present husband. She and her husband, who is a Solicitor, have now set up home in another Shropshire village. I understand there is a distance of something like 25 miles between the home of the father, where Amanda lives, and the home of the mother.
Having established herself with her new husband in this new home, the mother applied to the High Court for anOrder for custody of Amanda' There was a cross-application by the father, who also asked for an Order of the High Court for custody in his favour. That is how the matter came before the learned Judge.
It appears that, so far as material considerations are concerned, there is little (if anything) to choose between the homes of the respective parents. The father, as I have said, is a farmer and lives in a comfortable farmhouse, where there is plenty of room for Amanda, where she has lived for practically the whole of her life and where she is undoubtedly happy. The mother's home, on the other hand, is a detached house with a garden, and again with plenty of room to accommodate Amanda.
There were a good many factual disputes between the parties, as is not uncommon in these cases, and some of them at least were ventilated in the course of the oral evidence given before the learned Judge.
The learned Judge gave several reasons for coming to his conclusion in favour of the mother. He said that it was important, in his view, that Amanda should grow up in a. household where the truth was respected. Having seen the respective parents, the learned Judge expressed the view that the mother was the more truthful of the two parents. He also gave effect to what is generally recognised to be ordinarily in the best interests of a small child, especially a girl, namely, that such a child should normally and preferably be brought up by his or her mother.
Against that, however, various arguments are to be set. Amanda has lived practically all her life in her present home. She is happy there. She has all her roots there. She attends the local school. She is well known in the village. She has made friends. She is considered to be very well settled, and a happy and contented child.
It is said by the mother, who has had frequent access to Amanda, and of whom Amanda herself is very fond, that the father over-indulges Amanda, almost (if not quite) to the point of spoiling her. That is a criticism which I think does obtain some support from the report of the Welfare Officer. Nevertheless, it remains true to say that to take Amanda away from her present surroundings, where she is happy, where she is devoted to her father, would necessarily have a disturbing effect. Amanda, for her part, has made no secret of the fact that she would like to stay where she is. She is apparently very interested in the animals on the farm. She is particularly interested in the ponies which the father is breeding. One of them in particular is regarded as her pony, which she frequently rides. It may very well be that one of the...
To continue reading
Request your trial
-
A v R
...where this will exacerbate feelings between two parents, or more generally between relations, to the ultimate detriment of the child: see B (M) v B (R) (Note) [1968] 1 WLR 1182, 1185 per Willmer LJ; Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317, 1319 per Wilson J. (Once a......
-
Re T (Children) (Costs)
...this will exacerbate feelings between two parents, or more generally between relations, to the ultimate detriment of the child: see B (M) v B (R) (Note) [1968] 1 WLR 1182, 1185 per Willmer LJ; Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317, 1319 per Wilson J. (Once again t......
-
F v B
...have on L. He submitted that this would ensure that the best evidence concerning the welfare of L is put before the Court and relied upon B(M) v. B(R) [1968] 3 All E.R. 170 at page 173 c. The application was opposed by Ms. Thomas, Counsel appearing for F. 8 I refused the application upon a......
-
K v K and Another (Legal aid: Costs)
...Supreme Court Act 1981, s 51(1). Cases referred to in judgment:B (Infants), In Re [1965] 1 WLR 946; [1965] 2 All ER 651. B (M) v B (R) [1968] 1 WLR 1182; [1968] 3 All ER G (Minors), In Re [1982] 1 WLR 438; [1982] 2 All ER 32. Gojkovic v Gojkovic (No 2) [1991] FCR 913; [1992] Fam 40; [1991] ......