Caffell v Caffell
| Jurisdiction | England & Wales |
| Judge | ORD JUSTICE ORMROD,ORD JUSTICE WALLER,LORD JUSTICE EVELEIGH,LORD JUSTICE ORMROD |
| Judgment Date | 17 April 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0417-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 April 1980 |
[1980] EWCA Civ J0417-4
Lord Justice Ormrod
Lord Justice Waller and
Lord Justice Eveleigh
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(On appeal from Order of His Honour Judge Counsell
Hitchin Country Court.
Mr NICHOLAS DAVIDSON (instructed by Messrs Gregory, Rowcliffe & Co., Agents for Messrs Wynter Davies & Lee, Hertford) appeared on behalf of the Appellant (Mother).
Mr JAMES THOM (instructed by Messrs Edward Oliver & Bellis, Waltham Cross, Herts.) appeared on behalf of the Respondent (Father).
Lord Justice Waller will give the first judgment in this case.
This is an appeal against the decision of Judge Counsell sitting at Hitchin County Court in a very much delayed application relating to the custody of the two children of the marriage; Tina, who is now 10, and Ross, a boy, who is now 7. Their mother had left the home with the two children something over a year before the application was being heard. There was a petition by her for dissolution of the marriage either at the end of 1978 or early 1979. An interim application was made by the father in February 1979 in relation to the custody of the two children. His application which he then made was for Joint custody. The children were with their mother in Bishop's Stortford, living with their mother, who was then living with Mr Turner. For reasons which it is unnecessary to go into, that application was not heard for a very long time. A request was made by the Court for a report, and the report was not actually produced until the 12th December 1979. Application was then made by the mother in January, and the hearing took place on the 25th February before the Judge, as I have mentioned.
The Judge's Order was that the mother should have care and control and the father should have the custody. The reason why he made that Order-was because the relations between the father and Mr Turner were such that whenever they met – and Mr Davidson has drawn attention to an occasion just before the hearing – either threats were issued or, on an occasion which Mr Davidson has drawn attention to, the father was calling Mr Turner a bastard in a car.
The Judge saw the difficulties that arose in relations between the parties. He hoped that they were going to settle down and become more reasonable. The Welfare Officer had givenup trying to help them to make access arrangements and left it to the Court or the parties to make arrangements which were fixed and which could not be complained against, and the Judge was left with the problem as to what Order he should make. He appeared to contemplate that the Order was going to be an interim Order and that there would be a further application to him and that he would at some stage make a final Order. He appeared to contemplate that, before doing so, he would wish to see the children. But, in effect, the form of the Order which he made did not contain the word "interim" and therefore it appears to have been a final Order. The Judge had taken the view that to make the Order as he did would provide the children with the continuing care which they had always...
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