B. v W. (Wardship: Appeal)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Diplock,Viscount Dilhorne,Lord Edmund-Davies,Lord Keith of Kinkel,Lord Scarman |
| Judgment Date | 05 April 1979 |
| Judgment citation (vLex) | [1979] UKHL J0405-1 |
| Date | 05 April 1979 |
| Court | House of Lords |
[1979] UKHL J0405-1
House of Lords
Lord Diplock
Viscount Dilhorne
Lord Edmund-Davies
Lord Keith of Kinkel
Lord Scarman
Upon Report from the Appellate Committee to whom was referred the Cause Bain against Woods and others, That the Committee had heard Counsel on Wednesday the 28th day of February last upon the Petition and Appeal of Andrew James Bain of Hadlow Cottage, Dormans Park near East Grinstead, Sussex praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 16th day of February 1978 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Margaret Patricia Woods and Carl Trevor Woods and Kirsten Melissa Woods (minors) by the Official Solicitor their Guardian ad litem lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 16th day of February 1978 complained of in the said Appeal be, and the same is hereby, Set Aside and that the Order of Mrs. Justice Lane of the 6th February 1978 be, and the same is hereby Restored: And it is further Ordered, That there be no Order as to Costs in this House save that the second Respondent's Costs be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Family Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.
My Lords,
In cases dealing with the custody of children an appellate court ought to be particularly chary of exercising its power to interfere with the way in which a judge of the Family Division of the High Court has exercised his or her discretion. I agree with your Lordships, whose speeches I have had the opportunity of reading in advance, that in the instant case there was no material before the Court of Appeal which could justify it in varying the order of Mrs. Justice Lane, or castigating the conduct of the children's grandfather which that very experienced judge, before whom he had given evidence, had deliberately and wisely refrained from criticising.
I would allow the appeal and restore the order of Mrs. Justice Lane. However, since circumstances have changed since the date of her order, the matter should now go back to a judge of the Family Division for further consideration in the light of those changes.
My Lords,
On the 16th February 1978 the Court of Appeal (Stamp, Ormrod and Bridge L.JJ) varied an order made by Elizabeth Lane J. ten days earlier in proceedings relating to two wards of court, the other members of the court agreeing with the judgment delivered by Ormrod L.J.
From this decision an Appeal Committee of this House (Lords Wilberforce, Salmon and Fraser of Tullybelton) gave leave to appeal on the 27th April 1978.
The questions now to be determined are whether the Court of Appeal was entitled to interfere with the exercise of discretion by Elizabeth Lane J. and, if they were, whether they were right to alter her order as they did.
In view of a number of observations made by Ormrod L.J. in the course of his judgment on which I feel I have no alternative but to comment, I find it necessary to go in some detail into the history of this case.
The appellant and his wife are the grandparents of the two wards of court, one a boy of 14 years of age and the other a girl of 7. They are the children of the appellant's daughter and her husband.
The appellant has built up a successful business and is now a wealthy man. He and his wife live in Sussex. His daughter married in July 1963 a man from whom she obtained a divorce on the 14th September 1977 on the ground that she could not reasonably be expected to live with him and the marriage had broken down irretrievably.
His daughter had not been happy at home before she married or at school. After leaving school she worked for a time in her father's business. She did not enjoy that. On three occasions during her youth she left home and was brought back by the police. When 19 she received a sentence of imprisonment for housebreaking, which she thought was the direct result of her home life. Her husband was a man of limited education from farm working stock.
The appellant has a strong personality and there is no doubt that he strenuously seeks to secure that in matters affecting his children and his grandchildren his views prevail. His daughter, it is said, has "an assertive personality". She resents his domination and his interference with the upbringing of her children and regards him as seeking to gain control over the upbringing of her children, and in particular over that of her son.
After their marriage in 1963, the daughter's husband had many changes of employment, working as a semi-skilled mechanic, a milkman, a driver, on a farm, in timber felling and in his father-in-law's business. These changes of employment meant a series of moves for his family. In 1970 he bought a house in Burgess Hill. The appellant says that he lent him £1,500 towards the purchase price. In 1973 the daughter had a breakdown and was for some months an inpatient in a mental hospital. In that year the appellant arranged for his grandson to go to a boarding school. The boy's parents acquiesced in this. During the school holidays the boy spent a good deal of time with his grandparents. The appellant paid the school fees.
In the course of his judgment Ormrod L.J. said that the husband was
"a man who has never been able to hold down a job for any length of time but has changed jobs and homes and moved about in a very incompetent way, one could say, although one does not know what pressures have been put on him and his wife by the grandfather."
The husband says that he only left one job for another to increase his income or because transport became difficult. He left employment as a driver for a brick company he says at the appellant's request and was then employed by the appellant. He hurt his back timber felling after he had left the appellant's employment and the appellant then sought to set him up in the vacuum cleaning business and that when that failed, the appellant again employed him.
Apart from his leaving one employment at the request of the appellant, I see nothing in the papers before us, which were before the Court of Appeal, to suggest that his frequent changes of employment should be attributed to pressures put on him or his wife by the appellant.
In 1974 the house in Burgess Hill was sold and the daughter and her husband went to South Wales leaving their children with the grandparents. The daughter and her husband then found a shop and house to rent in Corby, Northamptonshire. The appellant says that he helped his son-in-law to the extent of £1,500 in this venture. They left Corby in February 1976 and then with their children lived with the appellant and his wife until August 1976. They then went away with their children. They decided to take their son away from the boarding school which he had attended for about three years, the daughter saying that they decided to do so as he was not doing well there and was unhappy. The appellant says that he was told this only after his daughter had asked him for a loan of £600 and he had refused it.
The appellant thought that it was undesirable that his grandson's education should be interrupted. No doubt he hoped that in due course his grandson would succeed him in the management of his business and that was one reason why he was prepared to pay for his grandson's education.
It was because he believed that the boy should remain at the school that at his instance on the 9th September 1976 his grandchildren were made wards of court. He sought an order that the boy should return to the school for at any rate the next term.
At the beginning of his judgment Ormrod L.J. said
"Whenever grandparents find it necessary to make their grandchildren wards of court and to make their own son or daughter a defendant, the situation is one which could scarcely be more difficult or more disadvantageous for the children; litigation between parents and their children is a very unfavourable situation".
While I entirely agree that litigation between parents and their children is most distasteful and seldom justifiable, if by this passage it was intended to suggest that in this case and in other cases grandparents should not make their grandhildren wards of court, it is a suggestion with which I feel bound to disagree. Where there is serious conflict between grandparents and their children and they are unable to agree as to what will be in the best interests of the grandchildren, the only way to secure a satisfactory solution may be to take that course. I cannot agree that in those circumstances if the children are made wards of court, the situation could scarcely be more disadvantageous for them. In the present case I am not prepared to conclude that that course was not taken for the best of motives or to conclude that the parents' desire to take their son away from his school was not also genuinely thought by them to be in his interests.
The Lord Justice said that the appellant's reaction to the decision to take the boy away from the school was:
"a violent one (perhaps it would be more correct to say, a vehement one); he proceeded to take out an...
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G v G (Minors: Custody Appeal)
...is possible. The principle was stated in this House by my noble and learned friend Lord Scarman in B. v. W. (Wardship: Appeal) [1979] 1 W.L.R. 1041, where, after mentioning the course open to the Court of Appeal if it was minded to reverse or vary a custody order he said, at p. 1055: "But ......
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