Re B (A Minor) (Custody: Evidence)
| Jurisdiction | England & Wales |
| Judgment Date | 1990 |
| Date | 1990 |
| Court | Court of Appeal (Civil Division) |
255
CA
[1990] FCR 440
Re B (A Minor) (Custody: Evidence)
COURT OF APPEAL
5 SEPEMBER 1989
PURCHAS AND PARKER, L JJ
Children – custody – order made by one Judge on specific findings of fact – subsequent application to vary heard by another Judge – second Judge arriving at different findings of fact on issues adjudicated upon by first Judge – Judge not entitled to go behind previous findings of fact.
Evidence – findings of fact made by one Judge – order as to custody of children made on basis of those findings of fact – subsequent hearing 16 months later by another Judge – parent seeking variation of custody order – second Judge arriving at different findings of fact on issues adjudicated upon by first Judge – Judge not entitled to go behind previous findings of fact.
The parties were married in 1975. There were two children of the family: a girl born in February 1976 and a boy born in Sepember 1979. The marriage was unhappy and in Sepember 1986 the mother went to live with another man at a house only a few hundred yards from the matrimonial home. The children remained with the father. In February 1987 a decree nisi in divorce was granted in undefended proceedings. In August 1987 Judge Singer heard cross applications by both parents seeking an ouster injunction against the other. The Judge ordered that the mother vacate the matrimonial home and not return there until the final hearing of outstanding matters relating to the custody of the children and transfer of property. The Judge also ordered that in the interim the father should have the custody, care and control of the children and that the mother should have defined access.
Notwithstanding that order, the mother returned to the matrimonial home in September 1987. After a short period she left again. On this occasion the girl went with her and they went to live at the other man's house a few hundred yards away.
The full custody hearing took place before Judge Hammond in January 1988. The Judge found that the motive for the mother's return to the matrimonial home in Sepember 1987 was to attempt to persuade the two children to leave the father so she could not only obtain custody of the children but also possession of the matrimonial home for herself, her boy friend, and the children. The Judge found that the mother had been successful so far as the girl was concerned. That child had been manipulated by the mother and refused to live with the father. After hearing the evidence, including that of a court welfare officer, the Judge stated that the best interests of both children would be met if they were in the custody of the father. However, he found that because of the girl's attitude he could not order custody of both children to the father. The Judge, recognizing the desirability of keeping brothers and sisters together, held
[1990] FCR 440 at 441
that if it had been practical in the interests of the children he would have ordered custody of both to the father; but because of the girl's attitude he could not make such an order. He therefore ordered that the custody of the girl be given to the mother and custody of the boy be given to the father. As the parents were living close to each other the children saw each other frequently during the week and each child spent alternate weekends at each address so they were together each weekend but alternately with one parent or the other.
In February 1988, a few weeks after Judge Hammond had made the order there was a serious incident when the mother took the girl to see the father. Both parents were at fault and the father treated the girl in an unjustifiable way. As a result of that incident, the girl refused to go on any further access visits to the father.
In April 1988 the mother, her boy friend, and the girl moved to a house which was three or four miles from the matrimonial home. As a result, the children did not see each other informally during the week and, as the girl would not go to see the father, the only effective access was when the boy went to the mother every alternate weekend.
Access was problematic owing to the continued hostility between the parents. However, by January 1989 satisfactory access arrangements in respect of the boy were agreed through the good offices of the parents' solicitors. These new arrangements were confirmed by Judge Blackburn in January 1989.
On the application of the mother the matter came before Judge Blackburn again in April 1989. The Judge heard full evidence from the parents and received reports and evidence from the welfare officer. The welfare officer reported that the boy was still preoccupied by the conflict between his parents and that the boy was coping with this by editing what he said in front of them. The welfare officer did not recommend a variation in the order as to custody.
In the course of his judgment, Judge Blackburn stated that Judge Hammond's order of January 1988 was made on the basis, at least partly, that the children lived within a hundred yards of each other and therefore saw each other informally almost daily. So that, when the mother moved in April 1988, that order was really ineffective and certain bases for it had altered very considerably. Judge Blackburn then referred to the mother's return to the matrimonial home in Sepember 1987 and said that it was possible that the girl was persuaded by the mother to sever her relationship with the father but that it would have been wholly against the weight of the evidence placed before him (in April 1989) to find that it was a probability that the mother had subverted the girl against the father.
Having regard to the totality of the evidence, the Judge varied the order and granted custody of the boy to the mother with access to the father.
The father appealed.
Held – allowing the appeal: The findings of Judge Blackburn as to the basis of Judge Hammond's order and the findings of Judge Blackburn in relation to the events in September 1987 amounted to the using of subsequent events to qualify and even discredit the findings of fact made by Judge Hammond. A Judge who heard an issue determined between the parties fully litigated, upon which there had been a judicial determination, was not entitled to go behind and reverse such finding: see per Lord Maugham, LC in New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1 cited in Rowe v Rowe [1980] Fam 47. Whilst it would have been open to Judge Blackburn to reach an assessment relating to the care of the boy which differed from the view of Judge Hammond, he could only do this after acknowledging the established facts found by Judge Hammond. Judge Hammond's findings about the mother's motives in 1987 was an important criterion in assessing the mother's evidence in 1989 that she had not influenced the girl. The mother's conduct in Sepember 1987, even reinforced by her evidence in 1989 denying that she had enticed the girl away (which should be treated as false having regard to Judge Hammond's findings), did not disqualify the mother for ever afterwards as being a custodial parent. However, in the circumstances, Judge
[1990] FCR 440 at 442
Blackburn had erred in principle in his approach to the judgment of Judge Hammond to the extent that it must have affected his approach in reaching his decision. The matter would be transferred to the High Court for a rehearing by a High Court Judge.
AppealAppeal from His Honour Judge Blackburn sitting at Oldham county court.
Hugh Bennett, QC and Richard Vardon for the father.
Janet Smith, QC and Mio Paul Sylvester for the mother.
LORD JUSTICE PURCHAS.This is an appeal by the father of two children against an order of His Honour Judge Blackburn made on 14 April 1989 varying an order previously made in respect of the same children by His Honour Judge Hammond on 28 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 are a girl born on 10 February 1976 and a boy born on 18 Sepember 1979.
It is necessary to set out in some detail the events which bring this appeal before the court. The parties were married on 1 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 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 Sepember 1986 the mother formed a relationship with a Mr G. 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 18 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 G 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 a 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 10 November 1986, the mother filed a petition seeking the dissolution of the marriage under s 1(2)(b) of the Matrimonial Causes Act...
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