Pearson v Franklin (Parental Home: Ouster)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,MR. JUSTICE THORPE |
| Judgment Date | 19 November 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J1119-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 November 1993 |
| Docket Number | CCFMI 93/1118/F |
[1993] EWCA Civ J1119-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
(His Honour Judge Marcus Edwards)
Before: Lord Justice Nourse and Mr. Justice Thorpe
CCFMI 93/1118/F
MISS ROSINA HARE QC (instructed by Messrs Leslie Oliver & Co. of Ealing, London W5) appeared on behalf of the Appellant
MR. PAUL COLERIDGE QC and MR. GILES POWELL (instructed by Bruce Weir Webber & Co. of Chiswick) appeared on behalf of the Respondent
In this case an unmarried mother
seeks an order excluding the father of their two young children from the home where they formerly lived together and of which they are the joint tenants under a tenancy granted by a housing association. The parties being unmarried and separated for some months and there having been no violence, neither the Matrimonial Homes Act 1983 nor the Domestic Violence and Matrimonial Proceedings Act 1976 is applicable. Instead the mother claims to be entitled to the relief sought by way of a specific issue order under Section 8 of the Children Act 1989; alternatively, by way of an injunction granted under the general jurisdiction of the court.
The parties met in 1988 or 1989 and their relationship started in December 1990. In April 1991 the mother became pregnant and in July of that year she moved in to live with the father in the studio flat in Acton of which he then had a tenancy granted by a housing association. On 29 January 1992 twins, a boy and a girl, were born to them. They will soon be two years old. In July of that year the family moved to a brand new two bedroom house with a garden at another address in Acton, of which the housing association had granted the parents a joint tenancy. Early in September 1992 the mother left the home and took the twins to her parents' house, where they have lived ever since. The father has continued to live in the home. It is plain that the relationship has irretrievably broken down.
On 17 March 1993 the mother applied in the Brentford County Court for a specific issue order that she:
"be allowed to reside with the children of the family at [the home] of which I am a joint tenant with the [father] but specifically in the absence of the [father]".
The father applied for a defined contact order. The applications came on for an effective hearing before His Honour Judge Marcus Edwards on 19 July 1993. Having heard the evidence of the parties and submissions from counsel on each side, the learned judge refused to grant the relief sought by the mother, holding that he had no power to do so in the circumstances of the case. He made a defined contact order in favour of the father. The mother now appeals against the judge's refusal to grant the order sought by her. By her notice of appeal she seeks an order that:
"the [father] do vacate [the home] and allow the [mother] to return there to live with the two children of the parties in the absence of the [father]".
The material facts found by the judge were as follows. He observed that there were no allegations on either side of violence; that there were arguments, serious at times; that the mother had said that the father behaved aggressively and that he probably did, though not excessively so. Having stated that it was plain that, despite subsequent efforts at reconciliation, the relationship had broken down permanently and that there was no prospect of the mother and father living together again, the judge continued:
"It will, in my judgment, be wholly contrary to the interests of the children to expect the mother to go back to live with the father after this long period of time in the circumstances of this case. There would be bound to be serious rows and possibly something even worse."
The judge recorded that there was no dispute that the twins should reside with the mother. He said that the present accommodation for the father in the home was plainly more than satisfactory. If he were to leave, he would have to rent somewhere, probably for a lot more than the £52 per week which he now pays. Having referred to the father's occupation as a driver earning £165 per week net, out of which he paid £30 per week maintenance for the twins, the judge said:
"The present accommodation for the mother is wholly unsatisfactory. Her parents have a four-bedroom house, with two reception rooms, kitchen, dining room and bathroom. Both her parents live there, together with her teenage sister. The mother is in a bedroom with bed and two cots for the twins. It is very cramped. All her belongings are there, mostly in 'umpteen black bags'. It is plainly very hard work for the mother there. She can get no housing benefit, because she lives with her family. She lives on £40 per week income support, with £30 per week from the father, and £69 per month child benefit. The Council refuse to re-house her, because she is a joint tenant in respect of [the home]. It is obvious that the property would be a far more suitable place for her and the children."
In this court the mother has been represented by Miss Rosina Hare QC and the father by Mr. Paul Coleridge QC and Mr. Giles Powell, none of whom appeared in the court below.
The basis of Miss Hare's argument that the order sought by the mother can be granted by way of a specific issue order is the paramountcy of the children's welfare under section 1(1)(a) of the Children Act and the mother's sole parental responsibility for them under section 2(2)(a), neither of which is in dispute. By section 8(1):
"'a specific issue order' means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child."
By section 3(1):
"In this Act 'parental responsibility' means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property."
In reference to these provisions, the children's welfare being our paramount consideration, Miss Hare submits that the real question with which we are concerned is where, in their best interests, the children should live; that that is just as much a specific question that has arisen in connection with the mother's duties and responsibilities in relation to the children as, for example, the question where they should in due course go to school; and that the relief the mother seeks is therefore of a kind which may properly be made the subject of a specific issue order. Miss Hare submits that this is not a straightforward ouster application; the ouster would only be a consequence of an order made in the best interests of the children.
These submissions must be rejected. It is correct to say, on the facts found by the judge, that it is in the children's best interests that they should return to live in the home with the mother in the absence of the father. It is also correct to say that, in a case where the order would not interfere with a right of occupation, the question where a child should live, for example in flat A or house B, will usually be suitable for determination on an application for a specific issue order. But that cannot be so where a right of occupation would be interfered with. However you were to dress it up, for whatever reason it was made, it would in substance be an ouster order. Such orders having become very familiar to Parliament by 1989, it cannot have been intended that they should be capable of being made under the guise of specific issue orders. The judge's decision of this question was entirely correct.
Alternatively, Miss Hare argues that the mother is entitled to an injunction under the inherent jurisdiction of the court or, if it is something different, the jurisdiction conferred by Section 37 of the...
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