Blackstock v Blackstock
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE SLADE |
| Judgment Date | 29 November 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1129-9 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/1118 |
| Date | 29 November 1990 |
[1990] EWCA Civ J1129-9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVORCE REGISTRY
(HIS HONOUR JUDGE MICHAEL COOK)
Royal Courts of Justice
Lord Justice Slade
and
Lord Justice Butler-Sloss
90/1118
No. FI 0861 190(F)
MISS A. GIBBARD (instructed by Messrs. Harman Garfinkel & Co., Solicitors, London, N4 2AA) appeared on behalf of the Petitioner (Appellant).
MR. EDWARD CROSS (instructed by Messrs. Clifford Watts Compton, Solicitors, London, N7) appeared on behalf of the Respondent (Respondent).
This is an appeal by the wife from the order of His Honour Judge Cook on 8th June, 1990, refusing to order the husband to vacate the matrimonial home.
The husband and wife were married on 6th December, 1985. She already had two children: Natasha, now nearly 13, and Peter-Gay, now 9. The wife gave birth to a third child, Shantel, by the husband, born on 18th December, 1988. The judge said in his judgment that:
"Both agree that throughout this marriage there has been a history of arguments which have at times escalated into violence but……each denies that they have been guilty of any violence and claims merely to have been the recipient of violence."
The judge did not find whether one of them, and, if so, which, was to blame or whether both of them were to blame for any of these occasions. However, an incident occurred on 17th May, 1990, which was quite out of proportion to earlier violence and which the judge described as "horrendous". The judge said:
"On 17th May these two parties inflicted on each other injuries of such severity that they were both detained in hospital and underwent surgery for injuries from which they are still suffering today. They each put the blame for the incident on the other, and each claims that they were merely defending themselves from the violence of the other."
The wife sustained a fracture of the shaft of the ulna of the right forearm. The husband suffered scalding and a broken cheekbone with pinning through the nose. The judge found that:
"On the evidence that I have heard, I am not able to say whether the blame for this incident lies more with one party or with the other; or, if it were the fault of one party, which that party was."
The wife left with the three children after the incident and did not return, and has refused to do so while the husband remains. She applied under the provisions of s.9 and s.1 (3) of the Matrimonial Homes Act, 1983, for what is popularly called an "ouster order" so that she and the three children might return to the matrimonial home.
The relevant section of the Act is s.1 (3), which states:
"…..the court may make such order as it thinks just and reasonable having regard to the conduct of the spouses in relation to each other and otherwise, to their respective needs and financial resources, to the needs of any children and to all the circumstances of the case."
At the hearing on 8th June, the judge considered the criteria laid down by s.1 (3) and said:
"Certainly as far as the conduct of the spouses is concerned, in view of my finding, or lack of finding, that certainly would not justify the making of an ouster order in respect of the husband."
He accepted that the children were living in unsatisfactory accommodation but found that they were in no danger from the husband and did not need any protection from him if they were living under the same roof.
The husband offered an undertaking not to molest the wife and the judge considered whether it was
"reasonable for this wife to say she is not prepared to return, even if protected with a non-molestation undertaking."
He was not satisfied that this was a marriage in which there has been a long history of violence, and said:
"I hope the horrendous nature of the incident on 17th May may have brought the parties to their senses; but I am satisfied that the wife, whether her fears are justified or not, can be protected by a non-molestation undertaking by the husband."
The main issue in this appeal has been the consequences of the high level of violence on 17th May and whether in itself it was sufficient to justify the wife remaining away. This question has caused me some concern, bearing in mind not only the wife but also the children. Although in the house, they fortunately were not witnesses of the 17th May incident. But if they were to return with their mother, was the risk factor such that, irrespective of where the fault might lie, it was reasonable for the wife with the children not to return?
Mr. Cross, for the husband, in his admirable submissions to the court has submitted, in my view correctly, that we cannot ignore the source of the violence and that, in the absence of any finding, the husband has not been found to be culpable. It would have been very helpful to this court as it would, I suspect, have been salutary for the parties, if the nettle had been grasped by the judge and some indication of culpability in connection with the events of 17th May had been attempted. The conduct of the spouses was in this case highlymaterial. Difficult a task though it may be, in previous decisions cited to us, findings have been made by trial judges as to the conduct of the spouses. Alternatively, as Mr. Cross pointed out, the judge might have said that the wife applicant had not discharged the burden of proving that the husband was in any way to blame for the final incident. By inference it would appear that that is the conclusion of the judge, but it is not entirely...
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