Hurst v Hurst
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,MR. JUSTICE WATERHOUSE,LORD JUSTICE DUNN |
| Judgment Date | 11 June 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0611-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 June 1981 |
| Docket Number | 81/0342 |
[1981] EWCA Civ J0611-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE KINGSTON COUNTY COURT
(His Honour Judge Baker)
Royal Courts of Justice
Lord Justice Ormrod
Lord Justice Dunn
and
Mr. Justice Waterhouse
81/0342
MISS JANE HOYAL (instructed by Messrs Khambati & Company, solicitors, Southall) appeared on behalf of the Appellant (Petitioner).
MR. RICHARD P. VAIN (instructed by Messrs Stephen Martin & Son, solicitors, Surrey) appeared on behalf of the Respondent (Respondent).
I will ask Mr. Justice Waterhouse to give the first judgment.
This is an appeal from an order made by his Honour Judge Baker on 5th May of this year, sitting in the Kingston County Court.
By his order he directed that the child of the parties to this appeal, namely, Amrita Jane, born on 28th October 1973, should remain in the joint custody of both parents but that her care and control should remain with the mother. He continued also a supervision order in favour of the South West London Probation and After Care Service and made an agreed order that there should be no access by the father to the child until further order, or agreement by the parties.
The present appeal relates only to the joint custody order. The mother says that the judge should have made a sole custody order in her favour. The first order for joint custody was made by the same judge on 25th November 1980 and the hearing on 5th May 1981 was of an application by the mother for variation of that previous custody order.
The brief history of the matter is that the mother is of Sikh parentage and the father is an Englishman, who is a teacher. The parties married in 1969 and subsequently parted in April 1979, when the mother went to live with the maternal grandparents, who live in the same road, taking the child with her. A petition on the ground of behaviour followed from the mother and the divorce proceeded undefended, a decree nisi being pronounced on 8th February 1980.
Although the relationship between Amrita and her father appears to have been reasonably straight forward until the parting, access by the father to her virtually ceased after the Easter holiday in 1979. The father then made an application for custody and access in the autumn of 1979 but it was not heard until November 1980. The reasons for the cessation of access were fully investigated by the court welfare officer, who presented his report in August 1980 with an addendum in May 1981. Before the original report her was able to observe access between the daughter and her father on two occasions in July 1980; and, in the light of those two periods of access and his discussion with the daughter, he was able to summarise her views about the matter as follows:
"In regard to meeting her father it is quite true that she said to me that she did not want to do so, when I asked. She did not give specific reasons for this and I felt it likely that she had simply absorbed some of the feelings of the adults around her and had, perhaps, also overheard unfavourable comments made about him in her presence. This is not at all unusual in this kind of situation as children are usually quick to pick up and reflect the feelings of those close to them."
There followed a suggestion in the report from the welfare officer that a joint custody order might be considered, and he urged strongly that access by the father should be encouraged. It was on this footing that, in November 1980, the learned judge made an order for reasonable access to the father in addition to the joint custody order. The portents then were that the mother would assist in trying to encourage access and there was no appeal at that stage from the joint custody order.
There were difficulties about access after the November...
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