Re "B" (A Minor)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE PARKER |
| Judgment Date | 05 September 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0905-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/0859 |
| Date | 05 September 1989 |
[1989] EWCA Civ J0905-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OLDHAM COUNTY COURT
HIS HONOUR JUDGE BLACKBURN
Royal Courts of Justice
lord Justice Purchas
and
Lord Justice Parker
89/0859
No. 86 D 913
MR. H. BENNETT Q.C. and MR. RICHARD VARDON (instructed by Messrs Ponsonbys, Oldham) appeared on behalf of the Appellant (Respondent).
MISS JANET SMITH Q.C. and MR. M. P. SILVESTER (instructed by Messrs Richard Postle & Co., Oldham) appeared on behalf of the Respondent (Petitioner).
This is an appeal by the father of two children against an order of His Honour Judge Blackburn made on 14th April 1989 varying an order previously made in respect of the same children by His Honour Judge Hammond on 28th January 1988. The orders related to the custody of and access to the two children. The respondent to the appeal is their mother, and I shall refer to the parents as "the father" and "the mother" respectively.
The two children I shall refer to as "Naomi", born on 10th February 1976 and "Felix", born on 18th September 1979. In view of some doubt earlier in the lists of this court on previous occasions I would wish to take this opportunity immediately to remind the press that any reports of this judgment should not be phrased in terms which would enable the reader to identify the parties and the children involved.
It is necessary to set out in some detail the events which bring this appeal before the court. The parties were married on 1st May 1975. Although it lasted for over ten years, there is little doubt from what is said in the welfare reports and evidence filed by the parties that it was a troubled marriage from a very early date indeed. There are allegations made by the mother of violence against her by the father; the father has made allegations of laziness and lack of interest on the part of the mother. These issues have never been adjudicated upon and from a report made by the welfare officer, Mr. Thorley, to whom I shall have to refer later, it is clear that both parties agreed that the marriage had been unhappy for a long time before the final breakdown. A troublesome feature which continues is the persisting bitterness and tension between the parents.
In September 1986 the mother formed a relationship with a Mr. Gartside. He was a neighbour and a fellow frequenter of a local public house in which the father from time to time engaged in part time employment. On 18th September the mother left home. The children remained with the father. The mother did not go very far away because the house where she took up residence with Mr. Gartside was only a hundred yards away. The mother clearly was in informal contact with the children. But, more than this, she persistently interfered with the father, with his running of the matrimonial home in which he remained and where he was doing his best to care for the two children.
The father commenced proceedings in the magistrates' court seeking the custody of the two children under the Guardianship of Minors Acts. But, before this could be heard by the magistrates, on 10th November 1986, the mother filed a petition seeking the dissolution of the marriage under section 1(2)(b) of the Matrimonial Causes Act 1973, and claimed the custody of the two children. In the event of those proceedings being started, the magistrates' court's proceedings were stayed. The decree nisi was pronounced in undefended proceedings on 16th February on the mother's petition. But on 9th April 1987 (the mother, meanwhile remaining living about a hundred yards away with Mr. Gartside, as I have said), the father filed an application in the court complaining about interference and molestation by the mother of himself and the children. In May 1987, though she was continuing her association with Mr. Gartside, the mother returned to live at the matrimonial home for a short period. She said that it was at the father's invitation and, on another occasion, that she had returned to the home in order to ensure the welfare of the children as she was not satisfied as to the father's capacity to do this properly.
The father applied or renewed his application to the court. There were cross applications by the mother and the father, each of them seeking an ouster injunction against the other so as to obtain possession of the matrimonial home and further injunctions against molestation of the one upon the mother. The applications came before His Honour Judge Singer, who made an order on 3rd August 1987. He ordered that the mother should vacate the former matrimonial home forthwith and not return there until the final hearing of outstanding matters relating to custody and transfer of property. He also ordered that in the interim the father should have the custody, care and control of the two children and that the mother should have access, which he defined as: staying access each weekend from noon on Saturday until 5 p.m. on each Sunday. It was an order in the normal form as to alternate weekends, so that each weekend the two children were together. He also ordered a welfare officer's report to be prepared. The judge having made that order, to hold the ring as it were, the matter proceeded. It is important, however, to read into that order that on those disputed cross applications Judge Singer clearly preferred the father's case to that presented by the wife.
Notwithstanding that order, shortly afterwards, in early September 1987, the mother returned again to the matrimonial home. She said to the welfare officer that she was worried about the children, and again it was her case that she had been invited back by the father. This is an important incident in this case as matters have turned out. Notwithstanding the mother's account which I have just mentioned, when the case came again before him at the beginning of 1988 Judge Hammond made a finding that the real motive for the mother's return to the home was to persuade, if possible, both children to leave the father and go with her. The main object of that was that if she got the two children she would clearly have a strong case to support her application to oust the father from the matrimonial home. That then is the position Judge Hammond found existing in early September 1987. In the event, Naomi only left with the mother and made it quite clear that she would not live with the father. From the dates of birth, it will be remembered that Naomi is a young lady of comparatively advanced age for cases of this kind, she is now about 13.
I shall refer now to the contents of the report that was prepared by Mr. Thorley as a result of Judge Singer's order as a convenient way of reading into this judgment how things went progressed during the latter part of 1987. At page 41 of the bundle, in his report dated 8th November 1987, Mr. Thorley says this:
"As stated in the previous section, [the mother] returned to the family home in April/May of this year and again in August"—
I think that must mean September—
"after this court had ordered her to leave. Her motives in returning were, she said, to see the children regularly and to ensure their well-being. She was not confident that [the father] could attend to the latter. She acknowledges that by this time, the relationship between herself and [the father] was atrocious and openly so. Nevertheless, she is sure that her presence did benefit the children and also met with [the father's] compliance because he was then better able to make arrangements to look after the children".
Then, in dealing with the father, there is a passage with which the mother subsequently agreed in evidence, which reads as follows:
"Over the whole of the period since the separation, [the father] found Naomi's behaviour increasingly difficult. She overtly resented [the mother's] exclusion from home and clearly blamed [the father] for this. He tried to moderate her hostility, initially by giving her a lot of leeway in her behaviour, then latterly, by trying to confront her and making a stand on issues; neither approaches made the impact he desired. he was reluctant to allow Naomi's eventual departure from the family home but accepted it, at the time, as inevitable, he is unwilling to regard it as a permanent expression of Naomi's views and may continue to pursue his application for custody of her as well as Felix, whose behaviour has not created any significant problems for him".
Dealing with Naomi herself, and this is in November 1987, Mr. Thorley said:
"Naomi is much happier now that she is living with [the mother]; they clearly have a very warm and loving relationship. She would like Felix to be with them also and, ideally, for the three of them to have their own house. Mr. Gartside is not a significant figure in her hopes; her attitude towards him is more of indifference than antipathy. Irrespective of this, it is her intention to continue living with [the mother]".
Finally, in his conclusions, Mr. Thorley mentions the proximity of the two addresses, which were, of course, only a hundred yards apart, as I have already mentioned:
"The proximity of the two addresses is likely to make defined access arrangements appear arbitrary and incomprehensible to the children. However, given the nature of the relationship between [the mother and father], it is difficult to see them negotiating arrangements for reasonable access. Consequently, defined access will probably be a more workable solution".
On 29th January 1988 there was the full custody hearing before Judge Hammond. It took the whole of a Friday, and the learned judge deferred giving judgment until the following Monday morning. Having...
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