Re B. (an Infant)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE HARMAN,LORD JUSTICE DONOVAN |
| Judgment Date | 20 December 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J1220-2 |
| Court | Court of Appeal |
| Date | 20 December 1960 |
[1960] EWCA Civ J1220-2
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Lord Evershed)
Lord Justice Harman and
Lord Justice Donovan
MR R. D. LYMBERY (instructed by Messrs Peacock & Goddard, Agents for Messrs Hill & Parks, Norwich) appeared as Counsel for the Appellant.
MR ARTHUR JAMES, Q.C. and MR CHARLES McCULLOUGH (instructed by Messrs Jaques & Co., Agents for Messrs R.A. Young & Pearce, Nottingham) appeared as Counsel for the Respondent.
: This case, I must say, has caused me the greatest possible anxiety, a statement which is applicable to most cases concerning young children. But I have in the end come to the conclusion that it was not right to interfere with the conclusion at which the Magistrates arrived. The learned Judge, Mr Justice Peyeuick, I think based himself on this preposition, that there was or is a rule to be found in the language which he cited from Mr Justice Roxburgh's Judgment in In re S, a rule, that is, that children of a tender age should remain with their mother. And it was the view of the learned Judge that the Magistrates should he taken as having erred in law because there was no ground established on the evidence for departing from that so-called rule.
I would like to say that for my part I do not believe that in these cases there is any such thing as a rule. Every case must plainly be determined upon the particular circumstances affecting that case; though it is of course, true to say that as a matter of human sense a young child is better with its mother and needs a mother's care. In this case unhappily the mother left the father and has been unwilling to return. We do not know, and I think it perhaps is regrettable that we do not know, about the circumstances which destroyed the marriage. It has been objected that the Magistrates had no foundation for what was the basis of their conclusion, namely, that the mother was not as reliable a person in this respect as was the father — in the language which the Justices used, that the mother would always put her own interests first, meaning, I suppose, before those of the child. I agree with the argument for the mother, that if the evidence is fully recorded in the note there does seem very little to support that view. And I confess that I am deeply sympathetic with the mother. But it is the fact that the Magistrates saw these two parents. It appears to be a case in which on any view the boy when a little older might well have been transferred to the father and it is now also the fast that the boy has been with the father since July, so that returning to his mother would be another break which might create a feeling of insecurity and instability in the child. I also confess that had I been trying this case at first instance my impression certainly strongly is, with all respect to the Magistrates, that I should not at this stage have taken the child from the mother.
But these matters are essentially matters for the discretion properly exercised of the tribunal that tries the case, sees the witnesses, and so on, and once you discard the idea that there is some rigid rule, I have (and I repeat what I said at the beginning) reached in the end the conclusion that the Court of Chancery should not have interfered with the Magistrates' decision. The difficulty of the case, for me at any rate, has been much enhanced by the circumstance that my brother Donovan takes a different view and I need not say how greatly I respect his opinion in these matters. That fact has I think this relevance. None of these orders is in any sense permanent. If the occasion should arise which would justify it, there would be nothing to prevent the mother hereafter from making another application on the ground that the child was not really happy and getting sufficient benefit from living with the father, and they would no doubt bear in mind that this Court was not in the end agreed upon the conclusion of this appeal.
I do not propose to go further into it because I think elaboration does nobody any good. I have come to the conclusion, after much anxiety, that in all the circumstances in a case of this kind it was not right for the learned Judge to interfere with the conclusion which the Magistrates had formed, and I would, therefore, restore the Magistrates' Order.
I too feel that the Judge had no right to substitute his discretion for that of the Magistrates'. I have sat many years in the Chancery Division trying these particularly individual kind of cases and have always supposed and had reason to believe that the trial judge's decision in an infancy case is the exercise of a discretionary jurisdiction with which another Court ought only in the rarest circumstances to interfere. The learned Judge thought that the Magistrates had Misdirected themselves because they said some such words as "other things being equal". He was of opinion that the father and the mother did not start on equal terms and he...
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