Clarke-Hunt v Newcombe
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE,MRS. JUSTICE BUTLER-SLOSS |
| Judgment Date | 19 October 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J1019-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 October 1982 |
| Docket Number | 82/0779 |
[1982] EWCA Civ J1019-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE DUDLEY COUNTY COURT
(His Honour Judge Davison)
Royal Courts of Justice
Lord Justice Cumming-Bruce
and
Mrs. Justice Butler-Sloss
82/0779
77 D 0232
MR. SIMON LEVENE (instructed by Messrs Curwen Jessopp & James, solicitors, Royston) appeared on behalf of the Appellant (Respondent).
MR. MICHAEL M. CLARKSON (instructed by Messrs Louis Spragg & Co., solicitors, Dudley) appeared on behalf of the Respondent (Petitioner).
I will ask Mrs. Justice Butler-Sloss to give the first judgment.
This is an appeal from an order of His Honour Judge Davison, made on 8th July this year in the Dudley County Court, whereby he varied an earlier order and granted the custody of two children to the mother; Paul, born on 21st May 1968 who is now 14, and John, born on 14th August 1970 who is now 12.
The parties were married on 17th August 1963 and they parted at Christmas 1974 when the mother left and the children remained with their father, the children having remained with their father until the order of His Honour Judge Davison on 8th July this year.
There were originally proceedings in the magistrates' court whereby the father was given custody. The mother made an unsuccessful attempt in 1978 to obtain a variation by getting custody from the county court. There was in fact an order of the county court for custody by the father on 27th July 1978 and a decree absolute of divorce on 31st July 1978.
During this period the father was in the Army. He became a sergeant. The mother was living with another man whom she married in May 1979. She now lives with her husband in Dudley, whereas the father lives with the two children in Bassingbourn, Cambridgeshire.
For many years the father was assisted in the care of the children by his mother, but sadly she became ill with a terminal illness and died during last year, so that, at the time of the hearing before the circuit judge, the children were in the sole care of the father, but it is right to say they had been in his care since the parting of the parents.
The learned judge had this advantage, he having heard the case in 1978 and having confirmed the status quo that the children at that time should remain with their father, with the knowledge that the mother had never abandoned her desire that the children should return to her. In 1978 the learned judge had a wealth of welfare reports. This was added to in 1982 by a long, careful welfare report from Mr. Andrews. Mr. Andrews was not called to give evidence and it is clear, to some extent at least, that the learned judge relied upon this report, which was not disputed in any major matter.
The case for the mother was that, during the year 1981, the children had made it plain that they wished to live with her and her husband, and it was as a result of that expressed wish of the children that she made the application for a variation of custody. The father accepted that the mother had made her application not out of spite but in what she deemed to be in the best interests of the children, and it was clear to the learned judge that, during the year 1981 and to the date of the hearing, the younger boy, John, was adamant in his view that he wished to live with his mother and her husband. Paul, older by two years, was less decided. It seems clear that at one stage in 1981 he supported the view of his younger brother. There was an unhappy incident when the mother, at the request of the children, gave details about the breakdown of the marriage. As my Lord has said, that showed at the very least a lack of insight, because it included severe criticism of the father. When the boys went back to father, after one of the fairly rare periods of access during 1981, Paul, having discussed it with his father, was then, according to the report of the latest welfare officer, shown all the papers for the last five or six years, as a result of which Paul, who had said that he wanted to go to mother, has since then changed his view and said that he would rather stay with father.
The learned judge, therefore, was faced with a very difficult decision to make; the firm resolve of a 12 year old boy, who had expressed over a period well in excess of a year, that he wished to go to his mother. The view of the elder boy had changed after these unfortunate occurrences; first, that he wanted to go to his mother and, secondly, that he would prefer to stay with his father: but no information to show that Paul was as determined in his desire to stay with his father as John was to go to his mother.
The learned judge had had the reports over the years and the evidence of the father, the mother and the mother's husband. The welfare officer dealt with some of the problems of access in great detail and took the view that father had been unco-operative and indeed in one instance somewhat childish, and that access had not worked well. There were certain problems about telephone communications, and so on. None of those was of great importance, set beside the problem as to where the boys should live.
The welfare officer saw both boys on one visit, but formed a clear impression, and at page 90 of the bundle, dealing with both boys the welfare officer said:
"So far as the younger boy John is concerned he was quite unequivocal in that he wants to go and live with the Petitioner. He cannot give detailed explanation as to why but as is not uncommon with 11 year old children it is just something he knows he wants and in my opinion it is no less important for all that. I think he feels...
To continue reading
Request your trial
-
G v G (Minors: Custody Appeal)
...it will leave his decision undisturbed. The limited role of the Court of Appeal in such cases was explained by Cumming-Bruce L.J. in Clarke-Hunt v. Newcombe (1982) 4 F.L.R. 482, where he said, at p. 486: "There was not really a right solution; there were two alternative wrong solutions. The......
-
Re BM (Care Orders)
...it is possible that I might have reached a different decision. That, however, is not the test. As Cumming-Bruce LJ put it in Clarke-Hunt v Newcombe (1983) 4 FLR 482 and 486 (also cited with approval in G v G): There was not really a right solution; there were two alternative wrong solutions......
-
Re W (Children)
...and thus plainly wrong. 81 Furthermore, it seems to me that I should remind myself of the wise words of Cumming-Bruce LJ in Clarke-Hunt v Newcombe (1982) 4 FLR 482, at 486, which are cited with approval by Lord Fraser G v G [1985] 1 WLR 647: - Whether I would have decided it the same way i......
-
Manchester City Council v (1) G (2) E (by The Official Solicitor) (3) F
...here in G v G [1985] 1 WLR 647 territory, and we think it sufficient to remind ourselves of the wise words of Cumming Bruce LJ in Clarke-Hunt v Newcombe (1982) 4 FLR 482, cited in G v G in which the Lord Justice said: — “There was not really a right solution; there were two alternative wron......