Re C (Minors) (Access)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE,MR JUSTICE HOLLINGS |
| Judgment Date | 28 January 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0128-1 |
| Date | 28 January 1985 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 85/0022 |
[1985] EWCA Civ J0128-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(FAMILY DIVISION)
Royal Courts of Justice
Lord Justice Cumming-Bruce
Mr Justice Hollings
85/0022
MR N.A.J.G.MOSTYN, instructed by Messrs. Coulson & Coulson, appeared for the Appellant (Respondent).
MRS W.V.FISHER-GORDON, instructed by Messrs. Walter Stein & Grover, appeared for the Respondent (Petitioner).
This is an appeal by a father against the decision of His Honour Judge Vick who made an order that there should be no access by the father to his two children.
The first ground of appeal is that the learned judge failed to consider adequately the father's proposal for access, namely that supervised interim access should occur for a limited period, with the matter being restored to the court at the end of the expiration of the term for consideration of the benefit, if any, of such access to the children.
The second ground of appeal is that the learned judge failed to take properly into account the welfare officer's observations that the initial reaction of the children to the idea of access was positive.
The third ground is that the judge's finding that the resumption of access would be harmful to the children was made in the absence of any reliable or independent evidence to justify the same.
The fourth ground is that the judge placed excessive emphasis on the access history in circumstances where no defined access had been previously ordered by the court.
Mr Mostyn, at the opening of the appeal, told us, and I accept, that the profession, and in particular those members of the profession who frequently deal with family problems, are puzzled and confused, because they take the view that some observations of mine at the end of my judgment in Clark Hunt v Newcombe, reported in 1983 4 Family Law Reports 482 at page 486 were inconsistent with the views expressed by Lord Justice Ormrod giving the judgment of this court in D v M reported in 1982 3 Weekly Law Reports 891. In particular, some of the Bar take the view that what I said in the last paragraph of my judgment in the Clark Hunt case was an affirmation of the view expressed earlier by Lord Justice Stamp in 1976 in Re F. I have succeeded in giving the impression, therefore, through the inelegance or infelicity of my language, that I was trying in Clark Hunt v Newcombe to resuscitate Lord Justice Stamp's view of the law in preference to the law as expounded by Lord Justice Davies in Re O and by this court in the judgment of the court given by Lord Justice Ormrod in D v M.
Shortly after Clark Hunt v Newcombe was reported in the Family Law Reports, I was presiding in this court in a children's case when I was told what Mr Mostyn has just told us again. I then said that I heard with surprise that I was thought to have expressed a view that was inconsistent with the statement of the law by this court in D v M. I remember that I then went on to say that on all the many occasions on which I had had the privilege of sitting with Lord Justice Ormrod in this court, neither of us had ever been aware that I was taking a different view to the view which Lord Justice Ormrod had expressed in D v M and had applied on many other occasions when I was sitting with him.
That comment on what I had said in Clark Hunt v Newcombe evidently was not reported, and naturally the uncertainty to which I gave rise has continued. Let it now be set at rest. I take the view that a decision in a case concerning custody or access, that is to say an exercise of discretion by the trial judge in a children's case should be varied if and only if this court is satisfied that the judge was plainly wrong, unless what I call the Wednesbury principles themselves apply.
Very nice attention has been given to the precise formulation of the situations in which this court will interfere. Lord Wright used these words in Evans v Bartram: "The Court of Appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the court is satisfied that he was wrong." I have always taken the view that the court cannot be clearly satisfied that the judge was wrong unless the court is satisfied that the judge was plainly wrong. I was surprised and slightly alarmed when, some two years ago, my attention was drawn to an article by an academic writer who suggested that it was quite different for this court to be clearly satisfied that the judge was wrong as compared to this court being satisfied that the judge was plainly wrong.
With all respect to that academic author, I thought that that argument illustrated a real risk that semantic distinctions irrelevant to common sense were beginning to be discovered by the sort of analysis of sentences in judgments which is much more appropriate to an exercise in applied logic at a University than to the quite different exercise of deciding how to express reasonably precisely standards of proof in this court in contested litigation.
I hope by those words that any uncertainty for which I may have been responsible may now be set at rest.
Therefore, applying the test, has Mr Mostyn on behalf of the appellant satisfied the court that the judge was plainly wrong when he decided to make an order of no access by the father to his two children? I examine the judge's reasons and the criticism made in the course of those reasons. The vital passage in the judge's ratio is this: "Bearing in mind the ages of the children and in particular (the little girl), I am quite satisfied that far more harm would be done to her now than good if access were to be resumed." It is implicit in the order that the judge made that he was taking the view that the proposition applied to the little boy, though perhaps not so forcefully as in the case of the little girl.
Mr Mostyn founded his submission on a series of propositions as follows. These children know who their father is. They have not had contact with him for three years. When he was having access, which does not seem to have heen defined access, it certainly was not a success. But the father has grown up. He has stopped living with Mrs B in circumstances about which, apparently, he and Mrs B tell different stories. Shortly after parting from Mrs B, he settled into the home of the lady with whom he is...
To continue reading
Request your trial
-
Stockhausen (Donohue Montgomery) v Valda Willis
...individual case before it to determine what is in the best interest of the child, including the suitability od supervised access. 29In Re C (MinorsHAccess) [1985] FLR 804 , the English Court of Appeal dismissed an appeal by a father who had, at first instance, been denied access on the bas......