Re F. (A Minor) (Wardship: Appeal)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAMP,LORD JUSTICE BROWNE,LORD JUSTICE BRIDGE |
| Judgment Date | 14 November 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J1114-1 |
| Date | 14 November 1975 |
| Court | Court of Appeal (Civil Division) |
[1975] EWCA Civ J1114-1
Lord Justice Stamp
Lord Justice Browne
Lord Justice Bridge
In The Supreme Court of Judicature
Court of Appeal
On Appeal from Mr Justice Bagnall
Mr G. W. Glossop (instructed by Messrs Lucas, Styring & Appleby, Sheffield) appeared on behalf of the Appellant.
Mr J. J. Davies (instructed by Messrs Clifford Watts, Compton & Co., agents for Messrs Dibb & Clegg with Maude & Spark, Barnsley) appeared on behalf of the Respondent.
This is an appeal from an order of Mr. Justice Bagnall made on the 15th May last in wardship proceeding giving the care and control of Sharon Ivy Foster to the Plaintiff who is the child's maternal grandmother.
The child's parents were married on the 12th December, 1964, her mother then being 19 and her father about the same ago. She herself was born on the 6th June, 1966. Her home was at 10, Hunt Street, Hoyland Common near Barnsley in Yorkshire, Her mother's parents, the Plaintiff, whom I will call "the grandmother", and her husband live in the neighbourhood.
Five years ago in the middle of 1970 when Sharon was about four years of age, her father met a young woman, who is now the child's stepmother, whom the judge conveniently referred to as June. June was then about 18. She had had her first sexual experience when she was 16. The judge described her as somewhat promiscuous in that regard. She confessed to having had sexual intercourse with five other men between the age of 16 and 18. Sharon's mother, having formed the opinion that her father was committing adultery with June, made it plain to him on the 10th December, 1970, that she thought he should leave the home. This he did and went to live with June in a flat nearby, "Shortly afterwards", remarked the judge in the course of his judgment, "on the 4th January, 1971, came the culmination of a discreditable incident in the father's life. Having been charged with the offences of attempted rape and indecent assault, he pleaded guilty to the latter and lesser offence; that plea was accepted; the more serious charge was not pursued. He was duly convicted by the magistrates and fined £75 with an alternative of six months' imprisonment". The judge remarked in referring to this incident that he was not there to try that episode which had already been dealt with.
In August, 1971, that is to say not much more than four years ago, the father returned to the home and in September, 1971, he insisted on the mother and the child leaving the house in what the judge described as "circumstances which made it impossible both physically and otherwise for them to return". They went to live with the grandmother. The judge in recounting the history ofthe matter continued thus: "This episode was the start of a dispute between the father and the mother as to the rights in and over the matrimonial home which I think was ultimately disposed of by the father retaining the home and the mother having substantially the whole of the furniture, That was effectively the end of the marriage, and apart from the obvious allegation of adultery the mother also alleged, and the father has admitted, that from time to time he offered violence to her. I am, of course, not trying here the matrimonial dispute and I am conscious that it is very seldom if ever that the disruption of a marriage can be attributed solely to one of the parties, a state of affairs sometimes summarised in the aphorism 'happily married men do not go off with other women'. I am content to assume that in this, as in the majority of marriages, there were faults on both sides. I am only concerned with that aspect of the case in so far as it sheds light on the character and temperament of those persons with whom I am concerned".
In matrimonial proceedings before the justices in July, 1971, Sharon's mother obtained an order committing Sharon's custody to her and an order on her father for him to pay £2 per week for Sharon's maintenance and £1 per week for the mother. At that time the father's income was modest and the mother presented a petition for divorce. It was not contested and on the 20th December, 1971, a decree nisi was pronounced. It was made absolute on the 29th December, 1972, the mother retaining custody of Sharon.
The mother had two married sisters living in the neighbourhood, one of whom is a Mrs. Hall.
From the time of the final separation in September, 1971, when Sharon was just over five, until March, 1973, when she was six-and-a-half, Sharon and her mother lived with the grandmother. During this period it was diagnosed that Sharon's mother was suffering from cancer and for two years she was from time to time in hospital. Nevertheless, as I understand it, the mother in March, 1973, obtained a flat quite near the home of Mrs. Hall. During the periods when hermother was in hospital Sharon was with her grandmother. Tragically for Sharon her mother died on the 7th March, 1974, at her grand mother's home having been discharged from hospital a week earlier.
During that week Sharon stayed with her mother's sister, Mrs. Hall, She was then a little short of eight years old.
About 11 days later after making preliminary overtures Sharon's father came to Mrs. Hall's house and removed her to his home. He had by then been married to June for nearly a year and he and June had had a daughter Shelley then two years old. During the period from the time he turned mother and child out of the house down to the time of the mother's death the father had, so the judge found, seen Sharon, in the sense of spending time with her, comparatively infrequently and the judge went on as follows: "He bought her some clothes and I think other presents. He continued to pay for her maintenance only the £2 a week ordered by the justices, though as will appear his financial situation had significantly improved since the date on which the relevant order was made, I must, however, bear in mind that there were undoubtedly difficulties in the way of the father maintaining contact with Sharon and in particular in visiting her at the home of either the mother or the Plaintiff or Mrs. Hall. It perhaps does not need to be stated that he was plainly unwelcome in each of those establishments, I am, however, satisfied that the account he gave in his affidavit of the frequency of his contact with Sharon during that period was exaggerated. Until then Sharon had treated the Plaintiff's home as in all respects the equivalent of her own home. She thereafter started to treat the father's home as her home". Whatever the reason why her father had seen little of her during the three years then last past, to have removed her so soon after the heartbreaking death of her mother to a home presided over by him and a stepmother whom she can hardly have known was, so I would have thought, at least unthoughtful; the judge does not in terms advert to this in his judgment but it may have been one of the incidents which fortified his opinion regarding the father's suitability to bring up his daughter.
With commendable speed the grandmother issued an Originating Summons on the 4th April, 1974, asking for Sharon to be made a ward of court and seeking her care and control. As the result of an ex parte, and then an inter partes interlocutory application, an order was made, the effect of which was that pending the hearing of the Originating Summons Sharon was to stay with her father but to enjoy regular and frequent, but not staying access with the grandmother, and a welfare report was ordered.
It is a deplorable fact that the Originating Summons issued on the 4th April, 1974, did not come on for hearing until May, 1975. This delay had an important impact in considering what would be for her benefit in the future.
It is at this point that I should, I think, set out verbatim the judge's further findings and the reasons which he gave for coming to the conclusion that he did: a conclusion, if I read those reasons correctly, based primarily on his assessment of the characters of the grandmother, the father and Mrs. June Foster.
The judgment proceeds as follows: "Sharon started to attend, and she still attends, school at Hoyland Common Junior School which is only a few minutes walk from the father's home, and she has visited the Plaintiff for the day on substantially every Sunday. It is to the father's credit that lie was at all times anxious that that close relationship between Sharon and the Plaintiff should be continued and did everything in his power to see that it worked smoothly. On the other hand the Plaintiff has throughout shown a singleminded determination to reverse the status now existing and to bring Sharon back under her roof to be brought up by her. Leaving aside occasions on which she may well have found it to fit in with her other arrangements to move in the vicinity of the father's home to see how things were going, she kept in the form of letters ultimately sent to her solicitor, and from which to some extent when giving her evidence she refreshed her memory, a running account of all the visits paid by Sharon to her in almost inconceivable detail. From her evidence it is plain that those recordscontained criticisms of matters of detail in the father's upbringing of Sharon, but I say at once I am satisfied that there is nothing in those criticisms. Apart from that, the Plaintiff, and I think so far as it is relevant Mrs. Hall also, have not shrunk from making promises to Sharon of advantages that might accrue to her if indeed in the end she returned to live with the Plaintiff. There is therefore on that aspect of the case a marked contrast between the attitude of the Plaintiff and that...
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