H. v H. and C
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DANCKWERTS,LORD JUSTICE FENTON ATKINSON |
| Judgment Date | 15 November 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J1115-3 |
| Docket Number | No. of Matter 583/1967 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 November 1968 |
[1968] EWCA Civ J1115-3
In The Supreme Court of Judicature
Court of Appeal
On Appeal From the Reading County Court (Divorce)
Revised
Lord Justice Danckwerts
Lord Justice Salmon and
Lord Justice Fenton Atkinson
Mr. JOHN ELLESON (instructed by Kingsford, Dorman & Co., Solicitors, London, agents for Messrs. Knight & Maudesley, Solicitors. Maidenhead) appeared on behalf of the Petitioner (Appellant).
Mr. E.R. MOULTON-BARRETT (instructed by Dixon, Ward & Co., Solicitors, Richmond) appeared on behalf of the Respondent (Respondent)
This is a case which concerns a little boy called Mark Edward Hills, who is now aged three years nine months; he was horn on the 23rd January, 1965. The marriage of the parents took place on the 22nd March, 1959; they lived at Wokingham in the county of Berks. Apparently the marriage was not entirely happy and the wife left the husband in May, 1966, leaving the little child behind. She left for the purpose of going to a man other than her husband; she came back in five weeks and again she left on the 10th March, 1967. again leaving the child behind and leaving her husband to make arrangements for the proper care of the child while he was at work.
This the husband did; he was able to arrange for the child to be looked after from Monday to Friday by a lady called Mrs. Brant, who also lived in Wokingham nearby. He left the child with her in the morning, picked him up in the evening and apparently cared for him very successfully. He also had the child at weekends.
The wife left her husband in order to go and live with the co-respondent. As a result of that, there has been a divorce; the decree nisi is dated 2nd October, 1968 and will apparently be made absolute either at the end of this year or in January, 1969.
The father has formed a friendship with a young lady who already has a little girl of her own, two years of age it is their intention to get married as soon as possible. The mother of course is living with the co-respondent and it is only recently that proceedings have been started in that marriage by his wife.
To my mind the striking thing about this case is that the mother has not had anything to do with the child, for a considerable period. She has not visited the child at Wokingham for a long time and the child appears to be happywith his father, and getting on well with the assistance of the lady I have mentioned.
However, the learned County Court Judge directed that the child should go to his mother; indeed, he was prepared to direct that the child should go to her the very same evening, namely the date of the Judge's order, 6th November of this yar. I cannot imagine anything more upsetting to a child than to he suddenly carried away from a home that he has got used to, to Wootton Bassett which is an hour and a half's Journey away.
In addition it seems to me that the learned Judge dealt with the case in a rather unfortunate manner; he apparently read the affidavits to himself and then counsel addressed him with arguments about the order he should make. He never saw either of the parents at all; he decided the case simply upon the written evidence contained in the affidavits — although of course there was also the report of a welfare officer.
To me that seems to be a very unfortunate course to have taken. It was impossible to Judge the character of the mother, or the father for that matter, as the learned Judge never saw either of those parties personally. In a case of this sort the character and the appearance of the respective parents is very often a decisive matter.
To my mind it is quite clear that the child should not be removed from his present home with his father; therefore I would allow the appeal and order that the father should have the care and control as well as the custody of this child until further order.
I think this is a proper case...
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