Belton v Belton
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,MRS JUSTICE BUTLER-SLOSS |
| Judgment Date | 02 February 1987 |
| Neutral Citation | [1987] EWCA Civ J0202-5 |
| Judgment citation (vLex) | [1987] EWCA Civ J0202-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 February 1987 |
| Docket Number | 88/0059,87/0176 |
[1987] EWCA Civ J0202-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF HIS HONOUR JUDGE HEAD
SITTING AS A DEPUTY HIGH COURT JUDGE
Royal Courts of Justice
Lord Justice Purchas
Mrs Justice Butler-Sloss
88/0059
MR J.M.A. DE BURGOS, instructed by Messrs Carpenter Costerton & Co. (Wallington), appeared for the Appellant (Petitioner).
MISS A.E. HUSSEY, instructed by Messrs Brand & Co. (Sutton), appeared for the Respondent (Respondent).
This is an appeal from an order of His Honour Judge Head sitting as a deputy High Court judge on 15th August 1986. The order made by the learned judge concerned a child of the family of a marriage now dissolved, to whom I shall refer as Danielle. The appeal is brought by the petitioner, Lianne Belton, as she then was (to whom I shall refer as "the mother"). The respondent to the appeal is Paul James Andrew Belton ("the father"). The order was made on an application by the mother for leave to take Danielle out of the jurisdiction of the court, and the effect of the order was to adjourn that application from the date of 15th August 1986 to the sitting of the learned judge (who was sitting as a deputy High Court judge) expected to be in December 1988. This was an adjournment of nearly 18 months' duration.
The short history of the marriage relevant to this appeal is as follows. The mother, who had previously been married (that marriage having been dissolved) but at the time still only 20 years of age, was married to the father on 22nd July 1983, the father being some six years older and then a bachelor. Danielle was born on 21st January 1984. The marriage did not last very long. On 8th August 1984 the father left the matrimonial home. The mother filed a petition, dated 12th November 1984, which was not defended. It alleged misbehaviour on the part of the father so that, in the event of the marriage having wholly broken down, it was unreasonable for the mother to be expected to continue to live with the father. Without going into details, which are not necessary for this appeal, the conduct alleged against the father, which he did not see fit to dispute, was based upon the effect of drink and lack of attention and co-operation in the family, particularly when the mother was pregnant and after Danielle's birth. Having said that, however, I am anxious at once to record that, for the purposes of this appeal and particularly in relation to the father's feelings for Danielle, nothing adverse is to be said against him or his family in the genuineness of their anxiety to keep contact with Danielle and to ensure, as they see it, her best interests.
Completing the history, a decree nisi was pronounced on 3rd April 1985 when Danielle was placed in the joint custody of the mother and father, care and control being awarded to the mother with access to the father. The decree was made absolute on 7th June 1985. Thereafter the mother met a man called Everson who was employed in England at the time by the Saab Motor Company and was, as the learned judge found, in good employment. He is a New Zealander and his family live, generally speaking, in New Zealand. The mother and Everson at the time of the hearing before the judge had announced their intention to marry (a date had in fact been fixed, 13th September 1986) and, furthermore, their intention after marriage to remove to the stepfather's (I shall refer to him as that) country of origin and there set up their home. So it was that an application dated 29th May 1986 was made by the mother, which is the subject-matter of this appeal.
These cases are always anxious and difficult cases for all parties involved. Hardship cannot be avoided to one or more of the parties. As I have already indicated, there is no criticism of the father or his family in their wish to keep contact with Danielle, and that was the basis of the father's case before the judge. At the same time, Miss Hussey confirms (and indeed it is clear from what does not appear in the judgment) that no suggestion has been made that has found any favour or force to the effect that the decision of the step-father and the mother to remove to New Zealand and there to make their home and their future was other than a perfectly genuine decision.
Two more Events have taken place since the hearing of the matter by the judge: the marriage was celebrated as planned, and, although it is only over a period of the last few weeks, the mother now believes that she is pregnant as a result of her union to the stepfather.
Before turning to the details of this appeal, I wish to make a general announcement, which I do after consulting with the President of the Family Division. In adjourning the case, as he did, the judge reserved the matter to himself. Clearly there occur from time to time cases involving special and intricate problems where it is important to reserve a case, so that the judge hearing the matter on subsequent occasions is acquainted with any unusual features. There are no such features present here. Again, if my recollection serves me correctly (and my Lady may well confirm it), as a matter of practice those in charge of the listing of matters in the Family Division do, where it is reasonably possible with convenience, list subsequent hearings of the same case before the same judge; but to make a formal reservation of a case is a different matter, and the judges regularly appointed to the Family Division in my experience, when they see fit to reserve cases to themselves, usually add the qualifying words "if available". This is for obvious reasons. More particularly, with great respect to the learned judge who I acknowledge does sit regularly as a deputy High Court judge, in the case of a deputy High Court judge, to make a rigid order reserving a case to himself is undesirable unless absolutely necessary, because it might well involve administrative difficulties and unnecessary delays which would not be justified where the special aspects of the matter are absent. Particularly in the case of a long adjournment such as that ordered by the learned deputy judge in this case, should a deputy High Court judge avoid a reservation to himself if at all possible. The reasons are obvious. Apart from the ordinary administrative reasons, the learned deputy judge cannot be sure of his commitments in the future because of the very nature of his appointment as a deputy High Court judge ad hoc in the Family Division.
Now to the merits of this case. Danielle at the time was about 18 months old. When the father left the home she was some 8 months old. That does not mean to say that contact between the father and a child of that age is not important, and contact was maintained in the form of visiting access—occasionally alternate weeks on Saturday and Sunday. The learned judge was very concerned with maintaining and fostering the contact between Danielle and her father. In the normal cases it is recognised in these courts that it is to the paramount interest of the child of a broken marriage that the damage which always ensues should be mitigated so far as possible by keeping contact with both parents. Nothing I say in this judgment should detract from that basic principle which the learned judge acknowledged. He found himself, however, as the court does in these cases, with an insoluble problem, or nearly insoluble. In considering the future contact or bond between Danielle and her father and her father's family, particularly the paternal grandmother (and also with the maternal grandmother) he realised that, if the application were granted in the immediate term, that is, in the next few years probably, such bonds as might be formed between Danielle and her father and the extended family would be tenuous at least. I read from page 2 of his judgment on this aspect of his approach, letter H:
"One is looking at the question that this child is entitled to have a life-long relationship with both of her parents, and that that relationship should be realistic and fruitful, if it is possible to bring it about. Therefore, it is quite clear to me that unless there is some overriding reason why I should do otherwise, it is very, very important that Danielle should remain in this country until immediately before she faces compulsory education at the age of five—I am instructed by counsel that the age of five is the relevant age in New Zealand and, of course, it is here." A little later on, considering Danielle, he said (at page 3, letter H):
"If she passes those two or three years with no actual physical contact with her father"—those two years, I interpose, are the years between the date of the hearing and the reaching of the age of five by Danielle—"her two grand-mothers and her cousins, then, however many cards and presents she gets, they will tend to be just names rather than real personalities. Whereas, once she reaches an age at which she can travel herself and can travel to people whom she has known well for those intervening years, links will be formed which it would not be afterwards possible easily to break."
In those two passages the learned judge sets out what he considers to be the paramount considerations which should determine the application before him. He did not appear to have considered the effect of keeping the mother and stepfather (on the assumption not then established before the judge but now established that they married) and Danielle in a condition of suspense as to their long-term future and of withdrawing from them their decision to go to New Zealand. The judge has not considered the stress, tensions and anxiety which...
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