K. v K. (Minors: Property Transfer)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,MR JUSTICE THORPE |
| Judgment Date | 11 February 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0211-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0097 |
| Date | 11 February 1992 |
[1992] EWCA Civ J0211-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ST. HELENS COUNTY COURT
(HIS HONOUR JUDGE LYNCH)
Royal Courts of Justice
Lord Justice Nourse
and
Mr Justice Thorpe
92/0097
MR TIMOTHY KING, Q.C., and MR ANTHONY HAYDEN, instructed by Messrs Parkers (St. Helens), appeared for the Appellant (Applicant).
MR DAVID HARRIS, Q.C., and MISS JACQUELINE WALL, instructed by Messrs Haygarth Jones and Lea (St. Helens), appeared for the Respondent (Respondent).
This is an appeal from an order made by His Honour Judge Lynch on 13th September 1991 in proceedings in the St. Helens County Court under the Guardianship of Minors Act 1971 as amended, whereby, pursuant to section 11B(2)(d) of the Act, he ordered the father of four young children to transfer to their mother "for the benefit of the children" his interest in a joint tenancy of the council house in which the family has lived since November 1989. The father now appeals to this court, contending, first, that that provision only confers jurisdiction to make an order which is for the financial benefit of a child; secondly and in any event that, in making the order, the judge erred in principle.
The mother and the father first met in 1982 when they were living in a YMCA hostel. A relationship developed between them and on 29th June 1984 a son, now aged seven and a half, was born to them. They began living together in 1985. On 7th March 1986 twin boys were born to them. They will be six next month. On 24th April 1989 a fourth child, a girl, was born to them. She will be three in April. Until November 1989 the father was the sole tenant of the council accommodation in which they lived. But in November 1989, shortly after the birth of the fourth child, they moved into another council property, No. 51a Derby Drive, Rainford, Merseyside, a large house with four bedrooms and a garden in a good part of St. Helens. The father and the mother became the joint tenants of that property. The family are all still living in that house.
After they had been living there for about a year, the mother took all four children away from the home to a friend's house in Wiltshire. Shortly afterwards, on 9th November 1990, the father made an application to the County Court. On 15 thNovember His Honour Judge Davies made a joint interim custody order, with care and control of the children to the father. He also ordered that a court welfare officer's report be prepared. The mother then returned with the children to No. 51a Derby Drive.
On 26th February 1991 the court welfare officer's report was produced. In paragraph 27 we find:
"This is a most difficult and complex case in which most of the professionals who are known to this family can only refer to the parents as being totally devoted to their children, and despite their differences in their relationship in the past to each other."
Paragraph 28:
"Certainly had this couple been married it is doubtful on the current presentation of relationships whether they would have been divorced."
Paragraph 29:
"Their relationship does not appear to be intolerable, and certainly my observations and contacts within the home only confirm this. On the occasion when I visited at tea-time the picture presented was difficult to believe in view of the issues before the Court currently. Perhaps if their future relationship is so difficult for them to resolve, then they should stay together and if possible draw up a voluntary contract of their expectations of each other in relation to their children."
The report recommended that consideration be given to a split custody order in accordance with section 11A of the 1971 Act. It is said, correctly, that that report is inevitably out of date. Indeed, the mother claims that it was in February 1991 that the relationship between her and the father came finally to an end.
In June 1991 there was a two-day hearing before Judge Lynch. On 10th June the judge made an order granting custody, care and control of the children to the mother with reasonable access to the father to include staying access. Paragraph 3 of the order provided that there should be liberty to apply to deal with the question of the father's accommodation.
It is quite clear that the judge, the mother and those on her side assumed that as a result of that order the father would move out of the family home. However, that did not happen and, when the matter was restored to him on 10th July, Judge Lynch "ordered" the mother to file an ouster application under the Domestic Violence and Matrimonial Proceedings Act 1976. That application came before His Honour Judge Hamilton on 26th July, when he expressed the view that an application under the 1976 Act might not be appropriate, no doubt because it had not been suggested that the father had offered any violence to the mother. In any event he adjourned the case for a contested hearing. Following Judge Hamilton's remarks, on 2nd August the mother issued a further application, this time under section 11B of the 1971 Act, requesting a transfer into her sole name of the tenancy of No. 51a Derby Drive. Both applications came before His Honour Judge Marshall Evans, Q.C., on 9th August. He ordered them to be heard by Judge Lynch on 13th September. He also requested the court welfare officer to provide an addendum to the report of 27th February 1991. I should state here that the court welfare officer who had produced the original report had been unable, through illness, to attend the two-day custody hearing in June.
On 11th September an additional welfare report was provided by another welfare officer. Two days later, on 13th September, the matter came on before Judge Lynch. The hearing lasted for about three hours. At the end of it the judge made the order which is now appealed against.
At this stage I will read a number of extracts from the judgment which Judge Lynch delivered on 10th June. Having referred to the affidavit evidence which was before him, to the court welfare officer's report and to the family, he said:
"For some considerable time the problems have been very serious between the parties. It is not a complex case although difficult. I have heard from the father and the mother and I have to assess the parties' capabilities. I also have to assess what is in the best interests of the children. There is no doubt in this case that both the mother and the father love the children dearly and that the children in turn love both parties."
A little later, having referred to the mother's departure with the children for Wiltshire in November 1990, the judge continued:
"She was desperately unhappy and what she was really doing was trying to get away from the position she was in. There is no suggestion of any violence in this case. I agree entirely with the Court Welfare Officer's report in her assessment of the mother and father. The mother is a quiet, shy woman who is unsure of herself, whereas the father is a very dominant personality who is determined to get his own way and usually does. This is a great problem in this case. There is a difference in the parties' ages in this case. I note also that the mother had had a very unhappy background."
I interpolate to say that at the time of that hearing the father was aged 40 and the mother 26. The judge went on to consider who should have custody, care and control. He concluded by saying that he had no hesitation in granting it to the mother. His judgment ended as follows:
"There should be generous access to include staying access when the Respondent has found reasonable accommodation.
The difficulty here is that if he leaves in the short term, his possible position is prejudiced. However, I give liberty to the father to apply in fourteen days to deal with the question of his accommodation. If he comes back I shall require chapter and verse of what efforts have been made by him to secure his accommodation."
That demonstrates the judge's expectation that the father would within a short time leave the family home. The effect of the judge's order was to make the mother the custodial parent.
I now turn to the hearing on 13th September, when Judge Lynch, in addition to the previous evidence and his wide knowledge of the case, had further affidavits before him. The first was one sworn by the mother on 17th July in support of her application under the 1976 Act, in which she said that the situation between herself and the father had continued to deteriorate. Then there was an affidavit sworn on 24th July by the father in answer, in which, towards the end, he said:
"I have been advised that if I simply sign the tenancy into the Applicant's sole name without obtaining suitable alternative Local Authority accommodation I will be treated as having voluntarily given up my tenancy and will consequently be disqualified for a period of two years from holding a further Local Authority tenancy. I have also been informed that if I voluntarily relinquish my present tenancy without another one to go to I may also lose my Benefits under the Housing Act 1980 relating to the Right to Buy Scheme. I have in my own right 9 years tenancy with the Local Authority and this would enable me to qualify for a high percentage discount when considering purchasing Council property. I do not wish to lose this right."
There was also another affidavit by the mother sworn on 2 nd August in support of her application under section 11B of the 1971 Act. I read part of paragraph 2 and paragraph 3:
"I do not believe that [the father] will take any action which will result in...
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