B v T (Custody)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUSTILL,LORD JUSTICE BALCOMBE |
| Judgment Date | 07 November 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1107-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0909 |
| Date | 07 November 1988 |
[1988] EWCA Civ J1107-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
DIVISIONAL COURT
Royal Courts of Justice,
Lord Justice Mustill
Lord Justice Balcombe
88/0909
No. of Matter: 4134 of 1988.
MR A. RADEVSKY (instructed by Messrs. Gregory Rowcliffe, Agents for Messrs. Haden-Stretton, Slater-Miller) appeared on behalf of the Appellant (Father).
MR R. McCARTHY (instructed by Messrs. Challiner & Roberts) appeared on behalf of the Respondent (Mother).
This case concerns a mother and father umarried and now separated, and two children, a boy "D" aged 3 years and 4 months, and a girl "T" aged 1 year 10 months. The parties began to live together during January 1984. For rather short of three years the father went out to work, and was only able to help with the household duties and with the raising of the children in his spare time—although he did his best.
During October 1987 he fell out of work, and thereafter he undoubtedly did a great deal in looking after the children. On 21st January 1988 there was a quarrel and the mother left, taking "T" with her. Three weeks later she launched an application in the Warley Magistrates Court for custody of the boy "D". The father replied with a cross-application for the custody of both children.
The initial hearing in February 1988 was adjourned. An application for interim custody of "D" on the part of the mother was dismissed, and the Court ordered a Welfare Report to be prepared.
The matter came back before the Justices on 6th May 1988. Evidence was taken from the mother, the father, the father's sister and some neighbours. A written welfare report was read, but the Welfare Officer did not attend in person. At the conclusion of the hearing the Justices ordered that the father should have the custody of both children, with reasonable access to the mother. The mother appealed, and the case came before Sir Stephen Brown, President, sitting as a single judge of the Divisional Court. The learned President allowed the appeal and awarded the custody of both children to the mother. The father in his turn now appeals.
On the hearing of the application to the Divisional Court certain complaints were advanced on behalf of the mother about the way in which the matter had been conducted by the Justices. These came to nothing, and have not been pursued before us. Inevitably, the findings of fact made by the Justices, and the account of their thought processes, which are all contained in what I regard as clear and careful reasons for their decision, were analysed in detail and were set against the evidence on which they were said to be founded. The same course was, perfectly properly, taken in this Court.
Nevertheless, I think it unnecessary, and indeed undesirable that we should enter into these matters in detail. It is sufficient that we should state the general nature of the basic propositions advanced on behalf of the mother before the Divisional Court, namely that the Justices had adopted too narrow a focus and had not paid any regard, or at any rate had not paid sufficient regard, to the principles which should have guided them when deciding whether the children should live with their father.
In particular it is said that they did not properly address the question whether the little girl, "T",(15 months old when the Justices heard the case) should be taken from her mother with whom she had been for the whole of her short life.
The learned President accepted this basic proposition advanced on behalf of the then appellant, in passages from his judgment which I quote:
"The major criticism which is addressed to the Justices' reasons is that they do not appear to have given any weight at all to the fact that the little girl in particular, who was only 15 or 16 months old at the time of the hearing, had never been away from her mother's care. They did not give weight to the part which mothers play in the lives of very young children. They do not refer to that. Of course, they approached the case, quite properly, upon the basis that, as a legal consideration, both parties have an equivalent legal right to seek the custody of the child. But it is complained of by Counsel for the mother that the Justices did not recognise the considerations expressed by Ormrod L.J. in D. v. M. (1983) F.L.R. 33, at page 41, just above letter C:
'It is generally accepted by those who are professionally concerned with children that, particularly in the early years, continuity of care is a most important part of a child's sense of security and that disruption of established bonds is to be avoided whenever it is possible to do so. Where, as in this case, a child of two years of age has been brought up without interruption by the mother, it should not be removed from her care unless there are strong countervailing reasons for doing so. This is not only the professional view, it is commonly accepted in all walks of life'."
Then, further in his judgment, the learned President said this:
"All in all, the argument for the appellant is that, notwithstanding the effect of the leading case of G. v. G. which, of course, emphasises the importance of the discretion of the tribunal which has to decide these matters, there is a fundamental flaw in the decision in this case. Mr McCarthy argues that nowhere did the Justices...
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