Re H (A Minor) (Custody: Interim Care and Control)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 21 December 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1221-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/1143 |
| Date | 21 December 1990 |
[1990] EWCA Civ J1221-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BIRMINGHAM DISTRICT REGISTRY
(SITTING AT STAFFORD)
(MR JUSTICE SCOTT BAKER)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Butler-Sloss
90/1143
MR ANDREW SHARPE, instructed by Messrs Reece Davis Wood Wild & Co. (Birmingham), appeared for the Appellant (Defendant).
MISS L.A. FINDLAY, instructed by Messrs Blair Allison & Co. (Birmingham), appeared for the Respondents (Plaintiffs).
I will ask Lord Justice Butler-Sloss to deliver the first judgment.
This is an appeal from the decision and order of Mr Justice Scott Baker given yesterday in Stafford. It is the latest in a series of decisions in relation to a little girl called Laura, born on 3rd December 1981. It is a very sad case. It arises from the death of Laura's mother on 13th November and a bitter dispute between the maternal grandparents and the father as to who should have the future care and control of this little girl, who was made a ward of court more or less immediately after the death of the mother, the mother having made a will by which she appointed her second husband, the stepfather, and the grandmother to be testamentary guardians and excluded the father from the control of the child.
The parents were married in 1979. As I said, Laura was born in 1981. The marriage came to an end in 1984 and at that stage Laura remained with her mother. However, after an access visit in 1985 Laura was retained by the father and remained with him until 12th June 1986, when an order was made that the custody of Laura should go to the mother. From that date Laura lived with her mother and her stepfather till the death of her mother. She had a great deal of contact with the maternal grandmother and a week before the mother died Laura was taken to her grandmother's home so that she would be spared the last few days of her mother's life and the very sad result of the death.
In the wardship proceedings an issue arose as to whether there was even jurisdiction for wardship to be heard. His Honour Judge Gosling on 7th December decided the issue of wardship in favour of the wardship continuing—quite rightly, in my view—and did not thereafter go on to hear evidence as to which of the competing parties should care for the child pending the longer time that would be needed for a welfare officer's report and proper investigation as to the long-term home of this little girl, who is now nine.
In the absence of hearing any evidence Judge Gosling decided, influenced no doubt by the decision in Re K (a minor) ( ward: care and control) [1990] 3 All E.R. 795 that the father was the natural parent to have the child, and handed the child over. On 18th December—that is to say, Tuesday of this week—the Court of Appeal decided that Judge Gosling was wrong to make that order without hearing any evidence relating to the welfare of the child. The matter went back therefore, this time to a High Court judge, Mr Justice Scott Baker, as I said, yesterday.
Mr Justice Scott Baker decided that the case should be heard by Mr Justice Douglas Brown in March, that there should be a welfare officer's report and that in the meantime the little girl should live with her grandmother. This decision of his is appealed as a matter of great urgency to this court today.
Mr Sharpe has advanced every argument that could be thought of in favour of his submissions that Mr Justice Scott Baker was wrong in principle and therefore came within the exceptions to the general rule that you do not interfere with the exercise of discretion of a judge and, as he has recognised in his notice of appeal, the specific matter that it is most unusual to interfere with an interim order. He says that the judge is plainly wrong because, in the absence of a compelling reason, the natural parent should have the child. Therefore the grandparents do not have, in effect, any standing.
In my judgment, that is taking the decision in Re K too far and reading it too rigidly. Re K has, as every case must have, the welfare of the child as paramount. It sets out that the correct test is "whether the welfare of the child positively demands that the natural parent's normal role in the care and upbringing of the child should be displaced"—in this case—"by the foster parents rather than who would provide the better home for the child". The principle was expressed rather neatly by Mr Justice Waite at page 800, where he says:
"The principle is that the court in wardship will not act in opposition to a natural parent unless judicially satisfied that the child's welfare requires that the parental rights should be suspended or superseded."
Mr...
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