B v B (Custody of Child)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,MRS JUSTICE HEILBRON |
| Judgment Date | 05 December 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J1205-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 83/0491 |
| Date | 05 December 1983 |
[1983] EWCA Civ J1205-1
IN THE SUPREME COURT OF JUDICATURE
(COURT OF APPEAL
(CIVIL DIVISION)
From: Judge Rice
(Southend County Court)
Royal Courts of Justice,
The President
(Sir John Arnold)
and
Mrs Justice Heilbron
83/0491
MISS C.O. RENTON (instructed by Messrs Gregson Owles & Roach, Southend-on-Sea) appeared on behalf of the Appellant (Respondent) (Mother).
MISS A.E. SPEARMAN (instructed by Messrs Jefferies, Southend-on-Sea) appeared on behalf of the Respondent (Petitioner) (Father).
I will ask Mrs Justice Heilbron to deliver the first judgment in this case.
This is an appeal against the decision of his Honour Judge Rice whereby on 6 May of this year he dismissed the mother's application for custody of the only child of the marriage, P.M., who was born on 27 November 1980 and so is now just three years of age. The appellant seeks the discharge of a consent order made by the Southend Magistrates on 10 December 1981 giving custody to the respondent father and custody to be awarded to the mother instead.
The history is quite short. Indeed, it was quite a short marriage for the parties were married on 28 April 1979. The mother met the co-respondent, Mr K., in August 1981, and a month later, in October 1981, she left the matrimonial home without the child, who was then 11 months old. The child was left in the father's care. There is considerable evidence—and, indeed, there are her own admissions—that for some months before October she had been out from time to time and that the father had looked after this young baby. By December of that year she was committing adultery with the co-respondent, with whom she was by then living. They moved twice since they first set up home together, but they are now living in a rented flat which to all intents and purposes is well decorated.
A petition was brought by the husband on 7 May last year, alleging adultery by the mother with Mr K., and he obtained a decree nisi on 4 February of this year. The decree was made absolute on 14 June. The mother made an application for custody on 24 June.
The learned judge heard the parties and had before him two welfare reports and he also heard the evidence of the welfare officer. In addition there were a number of affidavits from friends and neighbours of both parties, each testifying to the capabilities of the two parents. There was, in fact, one affidavit from the mother's adoptive father, who was rather critical of her care of the baby when she was at home. As I understand it she does not dispute that she was not what anyone would describe as a very good mother. It is said, on her behalf, that she has matured and has now become responsible.
There is no doubt that both parties love this child, and that he not only likes but is attached to his mother and likes Mr K. The quality of his attachment to his father, however, is very strong, and it is to be expected that it should be so, because from a bare recital of the dates and facts to which I have referred it is quite obvious that this child has really had no one else to bring him up except his father, he has known no other home than the former matrimonial home, and there is no doubt, on the evidence—and the judge so found—that the father was a very responsible and caring young man. Although the father had had a job which took him away from the house all day (except on Fridays and, of course, Sundays) he made very careful arrangements to see that his son did not suffer in any way from his absence at work. In the first place he arranged for his mother and sister, Mrs U., to look after the child, but when his mother unfortunately died his sister continued to look after P.M. when the father was unable so to do. He took his son the three or four miles to Mrs U.'s house. She is a very competent and caring mother, with three young children of her own, and no one could find fault with her care of P.M. Not only that but she apparently used her good offices to assuage the bitterness that so often occurs in cases of this kind, so that, as we are now told, access is working very well and the bitterness has, to a large extent, subsided between former husband and wife.
That the father had to use the services of Mrs U. was a matter of some concern to the welfare officer as well as to the learned judge, because it meant that the child had to be taken to her early in the day and brought home by his father on his return from work. Nevertheless even at that period this child went home to his own bed seven nights a week, was put to bed by his father, bathed, fed, looked after and cared for in a way which has not been criticised by anyone.
The learned judge, on those facts, found that the father was a responsible and satisfactory parent. The situation was not ideal (it never is ideal when a marriage breaks up in these circumstances), but he had no doubt that Mr and Mrs U. were eminently suitable people to look after P.M. while his father was at work, that P.M. fitted in well with the family; and that, even in those circumstances, he was receiving better attention and more love than he would have been if his father were to put him in a day nursery while he was at work. The situation at that stage was such that the judge came to the conclusion that although the mother would be a competent mother there was no tangible evidence to that effect, and he said:
"The boy sees the father as the significant person in his life and goes to his father's house every night to sleep and the father is there to comfort him".
That...
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