M (Minors)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVANS,LORD JUSTICE MORRITT,LORD JUSTICE HUTCHISON,Order |
| Judgment Date | 29 August 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0829-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No CCFMI 95/1143/F |
| Date | 29 August 1995 |
[1995] EWCA Civ J0829-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
CIVIL DIVISION
Appeal of Respondent from Order of Mrs Assistant Recorder Wilson
Before: Lord Justice Evans Lord Justice Morritt Lord Justice Hutchison
No CCFMI 95/1143/F
MISS C NICHOLES (Instructed by Messrs Darlington & Parkinson of London) appeared on behalf of the Appellant.
MR J DIXON (Instructed by Messrs Leport & Co of Banbury) appeared on behalf of the Respondent.
(As Approved)
This is a most unfortunate case. It concerns the welfare of two young children, B, now aged 6 1/2 years, and S, aged 5 years and 9 months. Their parents lived together from 1987 to 1990. They were never married. The mother comes from West London, the father from Banbury in Oxfordshire. They lived together in North Wales at Blaenau Ffestiniog. It seems that the mother has relations there although her mother lives in London. When the parents separated the mother moved back to London with the children. They lived with her mother for a time and then she had her own council flat. She had an association thereafter with a man named David Clinton. A child Thomas was born to her in March 1994 of which he is the father. In 1990 the father served a prison sentence for the offence of burglary. Upon his release he moved back to Banbury. He has since married. He and his wife have 3 young children and their home is there. The two children therefore have lived with their mother since 1990. There has been much dispute between the parents and much litigation about contact arrangements throughout that period. These matters came to a head in July 1994. At that time proceedings were pending in the Brentford County Court before His Honour Judge Marcus Edward who had heard one stage of the proceedings in May 1994. At about that time the mother stated her intention of moving back with the children to Blaenau Ffestiniog where they would stay with her family and they would propose to make their home there. It seems, whether coincidentally or not, the mother's relationship with David Clinton had either broken up or become less close than before at about that time, following the birth of the child Thomas.
On 15th July 1994 the father collected the children from North Wales for their first weekend staying with him in Banbury. There was much evidence about what occurred at the time of the handover. It is clear that there was some dispute at that time. What the father heard from the children during the course of that weekend led to him making his first application that they should reside with him rather than with their mother. He issued his residence application on 8th August. It is an appeal from the court's decision on that application which comes before us today. What he had heard from the children, according to his evidence, was that the mother's family, or the people with whom she was associating, were using drugs in the presence of the children. It was also suggested that the mother had other men friends, what are called sometimes multiple male friends. On neither occasion is it suggested that she was promiscuous although it is right to say that the evidence, so far as we have seen it, does not justify any weight to be given to that particular allegation. It is further suggested that by the time of the hearing in June 1995 David Clinton had been spending at least some time with the mother and children in North Wales, and in the course of those visits he had either hit or smacked Samantha in particular.
The father's application was transferred to the Birmingham County Court and there was a 3-day hearing before Mrs Assistant Recorder Wilson on 28th until 30th June 1995. The court welfare officer had been instructed in September 1994 to make her report which is dated the 13th February 1995.
During the intervening period the children had attended school in Blaenau Ffestiniog and they were on their way to becoming bi-lingual because the teaching at the school is largely in Welsh although arrangements were made for their lack of familiarity with that language.
In summary, the welfare officer's report set out details of a number of visits and meetings which had taken place. It set out the relevant background information and expressed the welfare officer's understanding of the views of the two parents respectively. She had also spoken to the two children. In that context it is right to quote these passages first from the welfare officer's comments on a visit that she had paid to the father's home when the children were there on 3rd February:
"B and S appeared happy and content in their father's home and played well with their brothers J and J. S helped to feed the 2 month old baby ….. "
and so on.
With regard to the home visit on 9th February with the mother of the two children, she said this:
"B and S were chatty and completely at ease in their mother's company. The mother was careful not to discuss any contentious issues in their presence. They behaved well and responded to her instructions."
The welfare officer, after recording a visit to the head teacher at the school, considered the welfare checklist. In relation to item (b), the physical, emotional and educational needs of the children, she said this:
"The children's physical and educational needs were to be adequately met with either parent."
With regard to emotional needs she said:
"I suspect that the children are emotionally upset at the time of contact because of past experiences and should both parents behave properly at handover as they did in my presence and contact arrangements kept to this should lessen in time."
Her views under (c) were that the likely effect on them of any change in their circumstances were these:
"A change in circumstances would mean residing with father and having contact with mother. There is nothing to suggest that this would be better for S and B and I suspect that they would miss their mother and young brother very much because she has always been their main carer."
In connection with paragraph (d) she said this:
"S and B are two young children who have had to adapt to several changes in their lives and have only fairly recently started to enjoy having contact with their father. They barely had time to settle to one routine before another is implemented. These children need time to settle to one routine and start to trust and enjoy the arrangements made between their parents.
(e) Any harm which the children have suffered or at risk of suffering: there is no evidence that the children have been harmed or at risk of harm, but I suspect that they have been deeply affected by the conflict between their parents."
In relation to paragraph (f) —the capability of the parents -
"[The father] is a caring parent who clearly loves all of his children and interacts with them well. He strongly feels that his role as a father is being undermined and is determined not to let this happen. It seems however that his wishes for his children can at times overshadow his sensitivity towards their needs and feelings. The mother is also a caring, loving parent who attends to her children's needs in an understanding way. She has a close relationship with her children and supported and encouraged the children well at the brief observed contact sessions. There are times however when her anger at their father overshadows her ability to look objectively at her children's needs, e.g., with regard to the changing of names."
That is a reference to something which happened at the children's school. The welfare officer's conclusion was this:
"S and B are two young children who have endured considerable disruption in their lives and would benefit from a period of stability. I do not feel it would be necessarily better for the children to reside with their father and this further disruption could do them emotional harm. They do have a good relationship with their father and both parents should ensure this continues and contact takes place as smoothly as possible."
There was a reference to arrangements for telephone contact.
The judge heard the mother, the father, David Clinton and other witnesses. She decided that the children should live with their father. She was influenced mainly by fears that the mother had exposed the children to the risks inherent in the use of drugs. The judge expressly found the mother's evidence unsatisfactory on this aspect of the case and found that the mother had lied to her when she had said that she had never lived with David Clinton. David Clinton in his evidence had contradicted the mother about that.
It was undoubtedly a hard order for the court to make, as it often is in cases of this sort, but the legal position for the purposes of the present appeal is clear. The Court of Appeal cannot, should not and will not interfere unless the order was "plainly wrong". That is a short statement of the legal situation in the light of the House of Lords' decision in G v G [1985] 1 WLR 647. Miss Nicholes referred us to that authority and invited us to follow that approach. She accepts that it is the burden of her appeal that the learned judge's order in this case was plainly wrong. It is a corollary of the rule that the decision must be plainly wrong if it is to be reversed in this court, that the Court of Appeal must seek to take an overall view and cannot be expected to enter into the minutiae of the evidence even if there are discrepancies unless, by so doing, the appellant can demonstrate that the conclusion was plainly wrong. In her oral submissions, notice of appeal and skeleton argument Miss Nicholes has concentrated...
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