Davis v Johnson
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,THE PRESIDENT,LORD JUSTICE GOFF,LORD JUSTICE SHAW,LORD JUSTICE CUMMING-BRUCE |
| Judgment Date | 28 November 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J1128-4 |
| Docket Number | No. 7709629 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 November 1977 |
[1977] EWCA Civ J1128-4
The Master of The Rolls (Lord Denning)
Ths Right Honourable The President (Sir George Baker)
Lord Justice Goff
Lord Justice Shaw and
Lord Justice Cumming-Bruce
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Brentford County Court
In the Matter of The Domestic Violence Act
(His Honour Judge Bernard Lewis)
MR. J. COMYN, Q.C. and MISS PARKER (instructed by Messrs, Darlington and Parkinson, Solicitors, London) appeared on behalf of the Appellant.
MR. J. JACKSON, Q.C. and MR. D. McINTYRE (instructed by Messrs. Rose & Birn, Solicitors, London) appeared on behalf of the Respondend.
"Battered wives" is a telling phrase. It was invented so as to call the attention of the public to an evil. Few were aware of it. It arose when a woman suffered serious or repeated physical injury from the man with whom she lived. She might be a wife properly married to her husband: or she might only be a woman called, in modern terms, a "common law wife". No such woman was known to the common law, but it means a woman who is living with a man in the same household as if she were his wife. She is to be distinguished from a "mistress" where the relationship may be casual, impermanent, and secret.
To go back for a few centuries, by the old common law a husband was allowed to beat his wife so long as he did it with a stick no bigger than his thumb. He was able, Blackstone says, to give his wife "moderate correction". But Blackstone goes on to tell us that by his time this power of correction began to be doubted: "yet the lower rank of people, who were always fond of the old common law, still claim and exert their antient privilege", see Hlackstone£s Commentaries I 445.
Those days are long past. "Battered wives" are now a matter of public concern. The House of Commons in 1975 set up a Select Committee of its members to report on Violence in Marriage. This committee heard much evidence on the problem. They presented a report calling for steps to be taken urgently to protect women who were subjected to violence. These steps included legislation. This took place and is now to be found in the Domestic Violence Act 1976. This Act came into force in June of this year 1977. Soon afterwards many a woman sought the aid of the county courts for protection under the Act. At first the judges granted injunctions against the man, ordering him out of the house. They followed the very words of the Act. But in two cases the man appealed to this court. In each case his appeal was allowed. Itwas held by two divisions of this court that the County Court judges had not the power to grant these injunctions. So the "battered wife" was without the expected redress. The two decisions aroused consternation. Protests were made in responsible quarters. It was said that Parliament had clearly intended that these women should be protected: and that this court had flouted the intention of Parliament. So much concern was expressed that we have called together a full court - a court of all the talents - to review those two decisions: and, if satisfied they were erroneous, to correct them. It is said, however, that we cannot do this. That we are hound by those two decisions: and that wives are to continue to be beaten until the day comes when the House of Lords gives a ruling. So we have two matters of importance to consider: First, were the two decisions erroneous? Second, if they were, can they be corrected by the full court? But before doing so, I mast state the facts of our present case.
THE FACTS
Both the man and the woman are of West Indian origin. The woman is Jennifer Davis. She is now only 21. The man is Nehemiah Johnson. He is twice her age. They have a baby girl who is now aged 2½. The woman put her own name down on the local council's waiting list for a flat. Eventually, it was granted at 13 Nisbet House, Homerton High Road, Hackney. But at the mail's request, it was put in the joint names of the man and the woman. I regret to say that whilst they were there the man beat her frequently. The judge said there were two instances "of extreme violence of a horrifying nature". On one occasion the man threatened her with a screwdriver. He said he would kill her and dump her in the river. He kept a chopper under the bed and threatened to chop her body up and put it into the deep freeze. She was so frightenedthat she fled with the child to a battered wives refuge. It was the one run by Mrs. Pizzey, which has already figured in the Law Reports (1977) 1 Weekly Law Reports 58. It is grossly overcrowded. The conditions there are said to be deplorable. Nothing could be worse for this battered wife and child - or any other battered wife for that matter - than to have to take refuge there. It would be much better for her to go back to her flat, if she could do so, without being subjected to violence,
On the 18th October, 1977 she applied to the county court for relief under the new Act. She asked to be allowed to go back to the flat and for the man to be excluded from it. The judge made an order on the 10th October, 1977 in her favour. He ordered the man to vacate the flat, and he obeyed it. He wont out, and the woman and child went back. But after those two decisions of the Court of Appeal, that order was withdrawn. So the man went in again and the woman went back to the battered wives refuge. She now appeals to this court asking that the original order of the deputy county court judge be restored; and the man be ordered to vacate the flat so that she can return thereto.
To my mind the Act is perfectly clear. Rejecting words that do not apply, section 1(1) says that "on an application by a party to a marriage a county court shall have jurisdiction to grant an injunction containing (c) a provision excluding the other party from the matrimonial home". Subsection (2) deals with our very case. It says: "Subsection (1) above shall apply to a man and a woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage"
No one, I would have thought, could possibly dispute that those plain words by themselves cover this very case. Theyauthorised the county court judge to grant an injunction excluding the man from this flat. So I turn to the reasoning of the two decisions of this court which have said the contrary. I must take each of their reasons in order, although it will take longer than I would have wished.
THE COMPARISON WITH THE HIGH COURT JURISDICTION
The judges in B. v. B. were much influenced by the opening and concluding words of section 1(1). For myself I think they add nothing and subtract nothing. But this is what they say: "Without prejudice to the jurisdiction of the High Court whether or not any other relief is sought in the proceedings".
In B. v. B. The judges seem to have thought that the High Court had little or no jurisdiction to exclude a husband from the matrimonial home. They said that if section 1(1) gave such jurisdiction to a county court, "then it produces the Quite astonishing result that the substantive law to he applied in the county court is different from the substantive law to be applied in the High Court". I am afraid that the judges sitting in B. v. B must have misunderstood the law as it is applied in the Family Division. They cannot have appreciated the extent of the jurisdiction of the High Court, It is clearly established that, whenever matrimonial proceedings are pending, the High Court can, at the instance of a battered wife, grant an injunction restraining the husband from entering the matrimonial home, and also excluding him from it, even though he is the owner or the tenant of it in his sole name or it is in joint names: see the cases of Silverstone v. Silverstone (1953) Probate 179, ( Jones v. Jones 1971 1 Weekly Law Reports 396 and Bassett v. Bassett (1975) Family Division 66. Nor is this power confined to cases where matrimonial proceedings are pending. It can he exercised before they arestarted and after they are finished. Thus, if a wife is urgently in need of protection, the High Court can grant an injunction to exclude the husband from the matrimonial home, even before matrimonial proceedings are started, so long as she undertakes to institute them in the rear future. And after decree absolute, the High Court can grant a like injunction if it is necessary in the interests of the children, even though the ex-husband is the proprietor of the house: see Stewart v. Stewart (1973) Family Division 21. And for myself I have never considered the power of the High Court to be limited to matrimonial proceedings, I venture to recall the principles stated in Bendall v. McWhirter (1952) 2 Queen's Bench at page 477 and Gurasz v. Gurasz (1970) Probate at page 16 which were quoted with approval in Jones v. Jones (1971) 1 Weekly Law Reports at pages 400-401. It was there held quite generally that the wife has a personal right to stay with the children in the matrimonial home: and if the husband's conduct is so outrageous as to make it impossible for them to live together, the High Court can order him to go out and leave her there, even though he is the owner or joint owner.
Seeing that the High Court has such an extensive jurisdiction, there is no reason whatever for limiting the jurisdiction conferred on the county court by section 3.(1). It gives every county court (not limited to divorce county courts) jurisdiction to exclude a husband whether or not matrimonial proceedings are pending: and without making it necessary to go through the technicality of adding a claim for damages.
INTERFERENCE WITH RIGHTS OF PROPERTY
The second reason given by the judges in B. v. B.was that section 1 should be so construed as not to...
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