C v C (Custody of Child)
| Jurisdiction | England & Wales |
| Judgment Date | 1991 |
| Year | 1991 |
| Date | 1991 |
| Court | Court of Appeal (Civil Division) |
GLIDEWELL AND BALCOMBE, L JJ
Custody – child – parents divorced – child stays with mother – mother establishes lesbian relationship – father remarries – father seeks custody of child – Judge orders custody to mother disregarding mother's lesbian relationship – whether Judge's decision should be quashed.
The parents were married in April 1983. They had one child, a girl, who was born in Sepember 1983. The marriage broke down in December 1984. The father left. The child remained with the mother. The parents were subsequently divorced and the father remarried in 1988. An order was made that the child should remain in the custody of the mother and that the father should have reasonable access.
The mother became a prison officer and for a period in 1988 had a lesbian relationship with another woman officer. Then she fell in love with a woman prisoner who was serving a sentence for wounding and theft. In 1989 the mother resigned from the prison service. When the woman prisoner was released, she and the mother lived together and the child lived with them. In October 1989 the mother and her partner were evicted from their accommodation and, at the mother's request, the child stayed with the father and his wife. In November 1989 the father commenced proceedings for custody of the child and a registrar made an interim order giving care and control of the child to the father. The matter came before the Judge in June 1990. He received evidence and a welfare report which did not contain any firm recommendation. At that time the mother was occupying a one-bedroomed flat with her partner. The mother had a full-time job and her partner had a part-time job. The father and his wife lived in a two-bedroomed maisonette. Both the father and his wife were in full-time work. It was accepted that both parents were trying to do what was best for the child, that they both had a loving relationship with the child, and that she was happy in both homes. The Judge stated that, apart from the mother's lesbian relationship, he was faced with a not unfamiliar balancing act between parents. He concluded that the mother's lesbian relationship did not play any significant part in the balancing exercise. He therefore ordered that the care and control of the child should be vested in the mother, with reasonable access to the father.
The father appealed.
Held – allowing the appeal: Although in recent years there had been a vast change in the attitudes of society generally to the institution of marriage, to sexual morality, and to homosexual relationships, it was axiomatic that the ideal environment for the upbringing of a child was the home of loving, caring and sensible parents: the mother and father. If the parents
[1991] FCR 254 at 255
separated, that ideal could not be attained. When the court was called upon to decide which of two possible alternatives was preferable for the child's welfare, its task was to choose the alternative which came closest to that ideal. In this case it was clearly the home of the father. The Judge was wrong in deciding that he should strike the balance between the parents as if there was no lesbian relationship. Accepting that the child would not be ignorant of the mother's lesbian relationship, the question the Judge had to consider was in which home would the child's welfare be best advanced. If her home was to be with the father, it would be a normal home by the standards of society. The Judge gave no consideration to the problems that might arise from the reactions of the child's contemporaries if she were living with the mother. The fact that the mother was living in a lesbian relationship did not of itself render her unfit to have care and control of the child. A court might decide that a sensitive, loving lesbian relationship was a more satisfactory alternative for a child than a less sensitive or loving alternative. But it was an important factor to be taken into account in deciding which of the alternative homes the parents could offer the child was most likely to advance the child's welfare. The Judge did not give proper consideration to this factor. Therefore, the appeal would be allowed and the Judge's order set aside. The matter should be reheard by a Judge of the Family Division. Other relevant matters to be taken into account were the conviction for violence of the mother's partner and the fact that the child was only at school in the area where the mother lived for about six weeks but had been at school in the area where the father lived for about a year. These were relevant matters irrespective of the sexual nature of the mother's relationship with her partner. Pending the rehearing, interim care and control of the child would be vested in the father, with reasonable access to the mother. The Official Solicitor would be invited to act as guardian ad litem of the child and to consider whether to call appropriate expert evidence on the child's behalf.
AppealAppeal from His Honour Judge Malcolm Ward sitting at Shrewsbury county court.
Anthony Jamieson for the father.
John W Evans for the mother.
LORD JUSTICE GLIDEWELL.This is an appeal against an order made by His Honour Judge Malcolm Ward in Shrewsbury county court on 4 June 1990 by which he ordered that the care and control of the child of the family should be vested in the respondent mother, with reasonable access to the appellant father.
The father and mother were married on 23 April 1983 and lived together in Shrewsbury. The child was born on 24 Sepember 1983 and is thus now nearly seven years of age.
The parents only lived together until December 1984 when the father moved to live at his mother's home in Shrewsbury, leaving the mother with the child in the matrimonial home. In March 1985 the father issued a petition for a divorce which the mother did not contest. The proposal in the petition was that the parties should have joint custody of the child, the mother retaining care and control and the father having reasonable access to the child. In 1986 the mother started a relationship with another man who created difficulties over the father having access to the child. A decree nisi was pronounced on 29 April 1987. After discussion between the parents, the difficulties over access were resolved. The child continued to live with her mother who put an end to her relationship with the other man and the father had access to the child each weekend.
[1991] FCR 254 at 256
Early in 1988, the mother took employment as a prison officer. This started with a training course which lasted 11 weeks during which, by agreement, the child was in the care and control of her father. When her training was completed, the mother was posted to a women's prison and the child went to live with her there. By consent, an order was made on 20 June 1988 that the child should until further order, remain in the custody of her mother with her father having reasonable access. The child started school in the area in Sepember 1988.
The divorce decree was made absolute, and the father remarried in July 1988. He and his wife now live in a two-bedroomed maisonette in Shrewsbury.
Whilst the mother was a prison officer she had a lesbian relationship with another woman officer. Then, according to what she told the father, she fell in love with a prisoner, Miss M, who was serving a sentence of 12 months' imprisonment for unlawful wounding and theft. In April 1989 the mother suddenly resigned from the prison service and went to Blackpool, taking the child with her. In June 1989, Miss M was released from prison and joined the mother in Blackpool. The mother got a job and obtained the tenancy of a small flat and she, Miss M and the child lived together there. The child started school in Blackpool, having missed most of the summer term at school.
On 20 October 1989, the child went to stay with her father and step-mother in Shrewsbury...
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Re G (Children)
...is to be found in the judgments of this court, in a different context admittedly to the present consideration, in the case of C v C (A Minor) (Custody: Appeal) [1991] 1 FLR 223 in the judgment of Balcombe LJ, where emphasis is made in the context of a lesbian relationship that it is the gen......