RE H (Minors) (Access)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE FOX,LORD JUSTICE BALCOMBE,SIR ROUALEYN CUMMING-BRUCE |
| Judgment Date | 04 July 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0704-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0670 |
| Date | 04 July 1991 |
[1991] EWCA Civ J0704-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NOTTINGHAM COUNTY COURT
(HIS HONOUR JUDGE HEALD)
Royal Courts of Justice,
Lord Justice Fox
Lord Justice Balcombe
Sir Roualeyn Cumming-Bruce
91/0670
No. 1989 D. Q99QA
MISS M. MORGAN (instructed by Messrs. Pictons, Solicitors, Milton Keynes) appeared on behalf of the Appellant (Father).
MISS S. COOPER (instructed by Messrs. Maclaren Warner, Solicitors, Nottingham) appeared on behalf of the Respondent (Mother).
I will ask Lord Justice Balcombe to give the first judgment.
This is a father's appeal from an order of His Honour Judge Heald, sitting at the Nottingham County Court on 19th February this year, whereby he dismissed the father's application for access to his two daughters.
The parties married on 29th September 1980. There are two children of the family, "H—r" born on 1st February 1984—so she is now seven years old, and "H—y" born on 5th March 1986, so she is now five. The parties separated in June 1987 when the mother left the matrimonial home, which was then at Maidstone, and with the two children went to live with her parents in Worcester Park, Surrey.
The father had regular access to the children, which included staying access, until November 1987, when the mother stopped further access.
Before His Honour Judge Young the mother's case (which the Judge accepted) was that in the course of one of the access visits the father said something which distressed "H—r", namely that she might come to live with him, and it was for that reason that the mother stopped access. At that stage the father did not make any application to the court for access to be restored.
The mother commenced divorce proceedings in November 1987, and in May 1988 the mother and the children moved to Nottingham, to set up home with Mr Wright, with whom the the mother and the two children live to this day. They have two children of their own—a girl born in August 1989 and a boy born in December 1990.
In March 1989 the father, then acting in person, made an application for access and his parents (the paternal grandparents) applied for leave to intervene so that they too could make an application for access to the two children. On 26th May 1989 they were granted leave to intervene, and subsequently a Welfare Report was ordered which was prepared and dated 12th October 1989. Decree Nisi was pronounced on 11th August 1989 and Decree Absolute on 7th June 1990.
The access application made by the father and the paternal grandparents was heard at Nottingham on 24th May 1990, when His Honour Judge Young ordered that there should be no order for access. On that occasion also the father acted in person. The Judge gave custody care and control of the two girls to the mother, which in fact the father had never opposed.
On 23rd January 1991 the father applied to vary Judge Young's order refusing him access, and that application came before Judge Heald on 19th February of this year, when he dismissed the application. The father now appeals to this Court.
An initial point taken before Judge Heald was that it was only some nine months since Judge Young had refused the father's application for access and as there had been no material change of circumstances since that date, the Judge should not entertain the father's application. However, the Judge refused to deal with the matter on that basis. He said that he had decided to re-try the matter on the merits because "…I did not know quite on what basis His Honour Judge Young had come to the decision to which he came".
Miss Cooper, who appears for the mother before this Court (as she did below) took as her opening point that the appeal should be dismissed because, among other things, the Judge below should, in any event, have dismissed the father's application because the application was made only nine months after his previous application and there had been no change in circumstances. But of course, that was not the basis upon which Judge Heald dealt with the matter and upon which this appeal is made.
Further, if in fact Judge Heald had refused to entertain the application it is possible (and I put it no higher) there may well have been an application for leave to appeal out of time against Judge Young's order. In any event, it cannot be a basis for resisting this appeal that Judge Heald should have dealt with the matter on a different basis.
I turn now to the major question which arises on this appeal, namely whether Judge Heald applied the wrong principles or was plainly wrong in refusing to grant the father's application for access to his two daughters. I put the matter in that way bearing in mind the House of Lords decision in G. v. G. (1985) 1 WLR 647 which says that this Court, as an appellate court, cannot interfere with the decision made by the judge in the court below in custody matters where he has a discretion, unless he has applied wrong principles or has reached conclusions which are plainly wrong.
Miss Morgan, for the appellant father, "began her submissions by referring the Court to the well known case of M v.M (1973)2 All ER 81, the Head note of which reads:
"No court should deprive a child of access to either parent unless it was wholly satisfied that it was in the interest soft hat child that access should cease, and that was a conclusion at which the court should be extremely slow to arrive. Access was to be regarded as a basic right of the child rather than a basic right of the parent. Save in exceptional circumstances to deprive a parent of access was to deprive a child of an important contribution to his emotional and material growing up in the long term."
Before I proceed to the judgment of Wrangham J. it is right to point out that this was an appeal from a hearing before Justices which had taken place on 1st June 1972 whereas access had ceased in June 1971; therefore a year had passed before the matter came before the Justices.
At page 85 Wrangham J. said this:
"It seems to me that the only way which one can really reconcile S v. S and P with the cases that followed, C v. C and still more B v. B, is to say that what Willmer L.J. meant was that the companionship of a parent is in any ordinary circumstances of such immense value to the child that there is a basic right in him to such companionship. I for my part would prefer to call it a basic right in the child rather than a basic right in the parent. That only means this, that no court should deprive a child of access to either parent unless it is wholly satisfied that it is in the interests of that child that access should cease, and that is a conclusion at which a court should be extremely slow to arrive. It is not without significance that Edmund Davies L.J. in B v. B said:
'For a court to deprive a good parent completely of access to his child is to make a dreadful order. That is what has been done here, and the...
To continue reading
Request your trial
- Re D (A Minor) (Contact: Mother's Hostility)
- Re A (Contact: Domestic Violence)
- Gan Koo Kea v Gan Shiow Lih
-
Fiona Ann Grant Or White V. James Lawrence White (ap)
...English courts and can be seen, for instance, in the statement by Latey J. which Balcombe L.J. endorsed in In re H (Minors)(Access) [1992] 1 F.L.R. 148 at p. 151 A. [15]In Sanderson Lord Hope deprecated the use of the term "presumption" to describe an assumption or general principle of this......
-
Future Uncertainty as a Challenge to Law’s Programmes: The Dilemma of Parental Disputes
...Kaganas, and C. Piper, ‘Divorce and Domestic Violence’ in S. Day Sclater and C. Piper (eds), note 6above.14 The leading cases are Re H [1992] 1 FLR 148 and Re O [1995] 2 FLR 124.The Modern Law Review [Vol. 63526 ßThe Modern Law Review Limited interpretation of such research, provided compel......