Dicocco v Milne
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD |
| Judgment Date | 08 July 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0708-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 82/0317 |
| Date | 08 July 1982 |
[1982] EWCA Civ J0708-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE DIVISIONAL COURT
(The President and Mr. Justice Sheldon)
Royal Courts of Justice
Lord Justice Ormrod
Lord Justice Dunn
and
Sir Sebag Shaw
82/0317
1059/82
MR. G. F. TATTERSALL (instructed by Messrs Waterhouse & Co., solicitors, London; agents for Messrs Anthony Clarke & Co., solicitors, Manchester) appeared on behalf of the Appellant (Respondent/Appellant).
MR. D.N. BERKLEY (instructed by Messrs Barnet & Barnet, solicitors, London; agents for Messrs Rowlands & Co., solicitors, Manchester) appeared on behalf of the Respondent (Applicant/ Respondent).
The judgment which I am about to read is the judgment of the court, giving the reasons for our decision which we gave at the end of the hearing.
Sir Sebag Shaw cannot be here this morning because he is engaged in another court. He has, of course, read and approved the judgment.
This is an appeal by the mother, with the leave of this court, from a decision of the Divisional Court of the Family Division (the President Sir John Arnold and Mr. Justice Sheldon) given on 6th April 1982. That court dismissed the mother's appeal from an order made by Trafford Metropolitan Magistrates' Court on 13th January 1982, by which they transferred the custody of a child, called Stuart, who was born on 23rd January 1980 and was, therefore, not quite two years of age, from the mother to the father.
The history of the matter is as follows. Stuart is the illegitimate child of Miss Dicocco (her surname was changed when her mother married Mr. Dicocco) and Mr. Milne. The parties met in 1978 when she was 16 years of age and he was 19. She became pregnant by Mr. Milne in 1979 and gave birth to the child in January 1980 when she was about 18 years old. She is now about 20 and he is about 24. He was employed in a well-known social club at Stretford. After the birth the mother and baby lived with her mother, Mrs. Dicocco, and her brothers and sisters. The father saw the child frequently at this stage and their relationship was quite good, although he made it clear before the child was born that he was not ready to marry and had suggested an abortion. They never lived together at any time, but the association continued until December 1980, when it broke down completely. The father began an association about this time with a Mrs. Craven, a married woman of about his own age with a young son, Shaun. She and her husband had separated and she was working in the same social club. They began to live together, and are still living together. The father made voluntary payments to the mother in respect of the child from April 1980 onwards.
Following the breakdown of her relationship with the father, the mother became acutely depressed and, in January 1981, took an overdose of tablets, and was admitted to hospital for a short time.
In March 1981 a fire occurred at her parents' home where she and the child were living, which meant that the family had to be rehoused, and the mother was allotted a council flat for herself and the baby. She is still occupying this flat, which is very close to her mother's home. Shortly afterwards the child had an accident in Mrs. Dicocco's new house. This house had a coal fire and while the mother was out of the room for a few moments the child fell into the grate and burned the palms of his hands, necessitating for a time frequent attendance at the hospital for dressings. The burns cleared up completely within quite a short time.
In May 1981 an affiliation order was made against the father and he was ordered to pay the mother £8 per week. At the same time, an order was made giving the mother custody of the child, either by consent or without opposition by the father. The father continued to see the child regularly without any objection by the mother. This included a holiday in Wales of one or two weeks.
In August 1981, for reasons which do not appear at all clearly from the notes of evidence, the father issued a complaint under the Guardianship of Minors Act 1971 in the Trafford Magistrates' Court, asking for a variation of the order made in May 1981, to give him the custody of the child. A welfare report was ordered and was made by Mr. Bolchover on 10th November 1981. The matter came on for hearing before the justices on 13th January 1982.
The alternative proposals for the future of this child were as follows. The father proposed that he should come to live with him and Mrs. Craven in their two-bedroom council flat in Stretford and her child Shaun, who is a little older than Stuart. The child had frequently visited this home, knew Mrs. Craven well, and got on well with Shaun. The father complained that the mother was inadequate, and gave evidence that Stuart was often dirty or unwashed and frequently smelt of urine. He also suggested that the child was backward in speech compared with Shaun. However, it was clear from the evidence that both he and Mrs. Craven were in full-time employment and that the child would have to be looked after by some third party for five days a week. The proposal was that Stuart and Shaun should be looked after by a registered child minder (who was already looking after Shaun) on three days a week, and on the other two by Mrs. Craven's mother.
The mother proposed that the existing arrangements should continue. She was not in work and was available all day to look after Stuart. Her social security payments enabled her to live with Stuart in her flat which was simply, but adequately furnished, and she-was able to live, frugally, on the money she was getting from social security. She spent most of her time during the day at her mother's home with Stuart, where there was a family of six of her brothers and sisters, aged 4, 6, 8, 9, 13 and 14. Her mother helped her with washing, cooking etc. She also has three other sisters living in the neighbourhood who helped her with baby sitting in the evening if she went out.
The welfare officer described Stuart as a "normal boisterous inquisitive toddler" who related well to his father and his mother, and got on well with both Mrs. Craven's Shaun and his uncle aged 4 called Anthony. The mother said she had no difficulty coping with Stuart. He had had the usual childhood illnesses. There was ample support from the mother's large and close family.
The welfare officer's conclusion was summarised in these words:
"Both Mr. Milne and Miss Dicocco can offer Stuart love and security, and under the present circumstances I would consider that Stuart's present sense of security should not be jeopardised. I would respectfully suggest that Miss Dicocco retain custody of Stuart, and Mr. Milne continue to enjoy access as defined at this court in May 1981".
The Health Visitor, an important witness in a case like this, was subpoenoed to attend court by the husband's solicitors, attended court but was not called as a witness and allowed to go. This was unfortunate because all that was known of her views was contained in a paragraph in the welfare report, which reads thus:
"The Health Visitor concerned with Stuart stated that Miss Dicocco is an adequate mother, although her standards of hygiene could be improved. Stuart definitely does not lack love, but perhaps needs more appropriate stimulation and attention. Miss Dicocco appears anxious to provide a home for Stuart, but at the same time wishes to enjoy her own life. In pursuit of this, she is prone to mix with what the Health Visitor believes to be the 'wrong' sort of person."
On that material the magistrates decided to transfer the custody of Stuart to the father, a decision which, on the face of it, is surprising. Moreover, they omitted to deal with the question of access by the mother. In their reasons they describe this as an 'oversight', but it is and was an extremely important matter. If a child of this age is to be removed from the mother's care it is essential that adequate arrangements are made to preserve the child's links with the mother.
In their reasons the justices said that they placed greater reliance on the evidence called on behalf of the father than on that called for the mother. They were much impressed by the father and were satisfied that regular contact between the father and the son had forged a bond between...
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