In Court
| Published date | 01 September 1991 |
| Date | 01 September 1991 |
| DOI | 10.1177/026455059103800318 |
| Subject Matter | Articles |
150
IN
COURT
Disputed
Residence
of
Young
Children
In
disputed
custody
of
a
daughter
aged
6,
who
had
been
living
with
her
father
and 3
older
brothers
in
the
matrimonial
home
since
parental
separation
eleven
months
previously,
the
judge
granted
custody
to
her
mother,
on
the
basis
(among
other
factors)
that
it
was
’natural’
for
the
mother
to
have
custody
of
a
girl
of
that
age.
Allowing
the
father’s
appeal,
the
Court
of
Appeal
concluded
that
the
decision
was
’fatally
flawed’.
Whereas
it
might
be
natural
for
young
children
to
be
with
mothers,
this
was
a
con-
sideration
but
not
a
presumption.
An
unbroken
relationship
between
mother
and
child
would
be
very
difficult
to
displace,
unless
the
mother
was
un-
suitable
to
care
for
the
child
but,
where
they
had
been
separated,
there
was
no
starting
point
that
the
mother
was
to
be
preferred
unless
there
was
a
preponderance
of
evidence
to
the
con-
trary.
The
child’s
sex
should
not
be
put
in
the
balance
unless
there
were
recognisable
difficulties
which
had
oc-
curred,
or
were
likely
to
occur.
Nor
was
she
in
the
category
of
’very
young
children’.
The
fact
that
the
mother’s
ability
to
function
happily
would
be
jeopardised
without
custody
was
ir-
relevant
to
the
welfare
of
the
child.
As
the
available
evidence
suggested
that
the
girl
was
settled
in
her
home
with
her
father
and
had
grown
accustomed
to
the
loss
of
her
mother
on
a
day-to-
day
basis,
the
status
quo
had
great
force.
RE
AJustice
of tbe
Peace
July
20
1991.
Prisoners’
Rights
Set-Back
Reviewing
the
Court
of
Appeal’s
judgements,
reported
in
this
column
in
June
and
September
1990,
the
House
of
Lords
has
ruled
that
the
concept
of
’residual
liberty’
as
a
species
of
freedom
of
movement
within
a
prison,
enjoyed
as
a
legal
right
by
prisoners,
is
’quite
illusory’.
Prisoners
are
at
all
times
lawfully
restrained
within
defined
bounds
and
so
cannot
sue
for
false
im-
prisonment.
If
the
conditions
of
other-
wise
lawful
detention
are
truly
intolerable,
contrary
to
the
custodian’s
duty
of
care,
the
law
ought
to
be
capable
of
providing
a
remedy
direct-
ly
related
to
those
conditions
without
characterising
the
detention
itself
as
unlawful.
R
v
DEPUTY
GOVERNOR
OF
PARKHURST
PRISON
e.’x
parte
HAGUE,
WELDON v
HOME
SECRETARY
The
Guar-
dian
31
July
1991.
’So
Serious’
in
Retrospect
A
19-year-old
youth
with
one
previous
conviction
as
a
juvenile
leading
to
a
conditional
discharge
was
given
160
hours
CSO
for
attempted
dwelling
house
burglary.
On
his
failure
to
comply
(only
39
hours
in
over
12
months)
and
after
a
probation
report
that
he
was
unlikely
to
comply
with
either
CS
or
probation,
the
order
was
revoked
and
he
was
given
3
months
YOI.
On
his
appeal
on
grounds
that,
as
he
was
previously
given
a
non-
custodial
sentence,
the
offence
could
not
now
be
considered
’so
serious
that
a
non-custodial
sentence
cannot
be
justified’,
the
Court
of
Appeal
held
that
the
question
of
seriousness
could
be
considered
afresh
in
breach
proceed-
ings,
despite
the
previous
sentencer’s
decision,
and
that
the
attempted
burglary
did
so
qualify
him
for
custody
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