Lonslow v Hennig (formerly Lonslow)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE LLOYD,LORD JUSTICE NICHOLLS |
| Judgment Date | 15 April 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0415-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/0367 |
| Date | 15 April 1986 |
[1986] EWCA Civ J0415-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEICESTER DISTRICT REGISTRY
(HIS HONOUR JUDGE GEOFFREY JONES SITTING AS
A DEPUTY HIGH COURT JUDGE)
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Lloyd
Lord Justice Nicholls
86/0367
and
MR D.C. LEE, instructed by Messrs Beachcrofts (Agents for Messrs Lamb & Holmes of Kettering), appeared for the Appellant (Mother).
MISS K.H. BROWN, instructed by Messrs S.H. Poles (Leicester), appeared for the Respondent (Father).
JUDGMENT (Revised)
This appeal concerns two girls, Anneliese and Esther. It is an appeal by their mother, now Mrs Hennig, against a decision of His Honour Judge Geoffrey Jones sitting as a Deputy High Court Judge in the Leicester County Court on 18th February of this year. The respondent to the appeal is the girls' father, Mr Lonslow. In the course of his judgment the learned judge said that he had found it a very difficult and painful case and that his mind had moved back and forth on the matter. It is plain, both from the judgment and from the full notes of evidence, that the learned judge took a great deal of trouble over the case. In this court we have been greatly assisted by the arguments of counsel on each side, for which we are very grateful. It is indeed a difficult and painful case, because it is a case in which all the people concerned are decent, honest people doing, or seeking to do, what from their own point of view is reasonable.
The mother and the father of the children were married on 14th February 1970. Anneliese was born on 3rd June 1974, so she is now 11—nearly 12. Esther was born on 21st September 1975, so she is now 10. The mother and the father separated shortly after Esther's birth, and on 26th August 1976 there was an order of the magistrates, made by consent, awarding custody of both girls to the mother. Since then she has brought up the children and always had care and control of them.
The decree nisi was pronounced in May 1978, and the decree absolute on 11th July 1978, putting an end to the marriage.
On 4th May 1979 the mother married Mr Hennig who had been named as co-respondent in the divorce proceedings. In August 1980 a son, Christopher, was born of that marriage, and in March 1982 another son, Richard. Christopher and Richard, therefore, are now five and four and a half. The parents and Mr Hennig have arranged the affairs of the children hitherto sensibly and successfully. The girls have lived with their mother and Mr Hennig and, since they were born, the two Hennig boys as an integrated and happy family. But they have had staying access every other weekend and during the holidays to their father, and this has been very successful access. The evidence was that they kept clothes in the father's house, which fortunately is not far away from the Hennigs' house, so that in effect they have a second home there which they have enjoyed for many years. Furthermore, when they visit their father they see his parents, the paternal grandparents, of whom they are very fond. The judge said that it is a long, steady and profound relationship between the girls and their father and their grandparents.
The father is employed at a reasonable, but not very high, salary as a sales representative. Mr Hennig is employed by a different company, the Phillips Electrical Group, as a service engineer at a slightly higher salary. In the latter part of 1985 he and the mother considered their future, the future of the children, and perhaps particularly of their own boys, and the future in this country generally. The Hennigs decided that there were considerable advantages in emigrating to New Zealand. The Phillips Group have a company in that country which was prepared to offer employment to Mr Hennig as a service engineer in the first place at a salary similar to his present salary but in a country where money is thought to go further and where a good house can be obtained at a lower price than in this country. It is a prospect which excites the Hennigs, and one can see why; it is also a prospect which greatly dismays the father, because it would obviously put an end to his access at alternate weekends which has prevailed for so long and access during all the school holidays. What is suggested instead is that the girls should come back to see their father for eight weeks or so in their New Zealand summer holidays at Christmas, but the factor which has to be borne in mind in relation to that is the expense, because these parties are not in the social bracket that can make inter-continental trips at the drop of a hat.
The mother had to apply to the court for leave to take the children out of the jurisdiction to New Zealand, and this she did on 3rd December last year. The job offered by the Phillips Group for Mr Hennig was due to start in January of this year; that is now passed, but it is held open for Mr Hennig until June. The mother's application was originally started in the Leicester County Court as the appropriate court, but when it was opposed by the father it was transferred to the High Court. It came on for hearing before Judge Geoffrey Jones on 18th February of 1986. The order for transfer had included directions for an expedited welfare report, and a welfare report which sets out the history and circumstances of the parties was duly prepared and put before the court. The final paragraph of the report, which is dated 3rd February 1986, from Mr Drage, the divorce court welfare officer, says this:
"I gained the opinion that the children, subject of this report are happy, healthy and well integrated in the family. Their relationships with the Respondent and Co-respondent and their children seemed close and natural. Although I was not able to see the girls with their natural father, I was nevertheless informed by all the Parties, that they were happy in his company. I consider that the move to New Zealand, in itself, would not be detrimental to the girls' well-being, and possibly in the long term would be advantageous in view of the education and career prospects. Against this must be weighed the disadvantages of losing the regular contact with the Petitioner, who they love and whose company they enjoy."
There had been thorough investigation of the education prospects in New Zealand and of such matters as the standard of living and rate of unemployment in that country and the prospects of Mr Hennig in his new job. The court welfare officer of course did not presume to go further than I have indicated in his report; it was for the court to reach the decision on whether or not the children should go. The judge decided that they should not go. I shall have to come back to his reasons later. He dismissed, therefore, the mother's application, and that is the decision from which the mother brings the present appeal.
So far as the law is concerned, the first point is that the welfare of the children is the paramount consideration. The second point, as I see it, is that no two cases are precisely the same on their facts, and decisions on other facts in other cases provide really guidelines for the exercise by the court of its discretion in the particular case. The third important factor in this court, being an appellate court, is that this court does not have unfettered power to exercise its own discretion and to review the exercise of discretion by the judge in the court below. That is underlined by the recent decision, to which we have been referred of the House of Lords in G. v. G. [1985] 2 A.E.R. 225. In that case Lord Fraser of Tullybelton approved a passage in the judgment of Lord Justice Asquith in Bellenden v. Satterthwaite [1948] 1 A.E.R. 343 at 345, where Lord Justice Asquith said:
"It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere."
Although, however, previous decisions on the facts of other cases merely provide guidelines, there is a consistent line of guidance in a number of previous decisions of this court. The first to which we were referred is the case of P. v. P., [1970] 3 A.E.R. 679, and the passage generally cited (which was cited to the learned judge in the present case) is in the judgment of Lord Justice Sachs at page 662. He said this, and it is to much the same effect as that which Lord Justice Winn had said in the leading judgment:
"When a marriage breaks up, then a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may, as Winn L.J. has pointed out, produce considerable strains which would be unfair not only to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may...
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