Re O. (Infants)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE KARMINSKI |
| Judgment Date | 19 January 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0119-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 January 1971 |
[1971] EWCA Civ J0119-3
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Davies,
Lord Justice Edmund Davies and
Lord Justice Karminski.
MR D. H. MERVYN DAVIES, Q. C. and MR JOHN MUMMERY, (instructed by Messrs. Gregory Rowcliffe & Co.) appeared on behalf of the Appellant (Respondent Father).
MR DESMOND TRENNER, (instructed by Messrs. Lovell Son & Pitfield) appeared on behalf of the Respondent (Appellant Mother).
we need trouble you Mr. Trenner. This is an appeal from a judgment of Mr. Justice Stamp given on the 5th November of last year on an appeal from the Portsmouth justices who on the 23rd June had before them a summons by the mother for custody of three young children, aged 7, 5 and 3, under the Guardianship of Infants Act and gave the custody of the children not to the applicant mother, but to the father. From that judgment the mother appealed, and Mr. Justice Stamp was not satisfied that the justices had come to a right conclusion; he felt unable to decide the matter himself on the material before him and ordered a re-hearing.
From that judgment of Mr. Justice Stamp's the father appeals, and Mr. Mervyn Davies, who has said everything that can be said for the father, really made two submissions to the court. He said, first, that the learned Judge was wrong in Interfering with what he called the discretion of the magistrates; and, secondly, he submitted that if the learned Judge was entitled in the circumstances to set aside the decision of the magistrates, he ought to have disposed of the matter then and there himself instead of ordering a fresh hearing.
I must go a little into the history and the facts of the matter, but I wish to emphasise that, as I have come to the clear conclusion that the learned Judge was right on both points, and that his order for a re-hearing should stand, anything that I say about the facts must not be taken as indicating any concluded view on any point, since that might hamper the proper conduct of the re-bearing.
The parties were married on the 3rd November, 1962, the father (as I shall continue to call him) being then 27 and the mother 17. I have said that these three children, a boy and twogirls, were at the time of the hearing aged 7, 5 and The matrimonial home was at Bargess Hill, and the father was employed at a bank in London. In 1970 matters obviously were not going well between the parties. The wife left with the children for a short period in February of that year. But she was speedily reconciled with the father and she went for a short holiday to an aunt at Warrington: during that period the children were with the father's parents who live at Eastbourne. The reconciliation lasted only a very short time Indeed. I need not go into the details of the final "blow up" (if I may call It that), but eventually, on the 13th March, soon after the reconciliation, the mother left again with the children and went to her parents who kept a public house called the George and Dragon at Portsmouth. She subsequently took out her summons In June of last year, and it was heard on the 23rd of that month.
As I have already said, I do not want to go in any detail into the facts and findings. The justices gave written reasons for their decision which are set out on page 2 of the transcript of the learned Judge's judgment. It is not necessary for me to read them in any detail. The learned Judge said this: "In my judgment these findings do not justify the conclusion that custody ought to have been committed to the father. It is a strong thing to move little children and especially little girls, and one of these children is a very little girl, from the care of their mother."
Then the learned Judge considered some of the reasons which the magistrates gave for their decision and expressed his views about them. The first, with which of course no-one can quarrel, is the passage that I have already read. There is no rule that little children should be with their mother, any more than there is a rule that boys approaching adolescence should be with theirfather; it depends on what is proper in each individual case. But obviously the care and supervision that a mother who is not out at work can give to little children is a very important factor in all these custody cases.
The learned Judge then said that one of the reasons given by the magistrates was that the mother on the evidence had shown a lack of care in the running of the house. But he points out that they made no finding that she was incapable of looking after the children, and especially that there was no finding that she had ever neglected them, though in that context the magistrates point to the admitted fact that for a short time in 1969 she had some sort of affair or liaison with another man, the nature and extent of which we do not know.
Then, said the learned Judge, the justices said that the father was more likely to provide a stable and happy background for these children, and that they would be better with him because the mother had left on the two occasions that I have mentioned, in February for a short time, and then permanently in March. But the fact that she left on those two occasions consequent upon domestic difficulties does not show at all that if she were given the custody of the children she would not be able to provide a stable and happy background.
As I have already pointed out, the learned Judge said that the magistrates' findings in his view did not justify the custody order that was then made. He went on to say this: "I was particularly referred at some length to the voluminous notes of the evidence given before the Magistrates and if I were disposed to substitute my own discretion for theirs, I would, on a reading of the papers come to a different conclusion." Then, after making a quotation from a judgment of Lord Justice Salmon withregard to the desirability of a court which is deciding the destination of children to see and hear the parents, he said: "Nor do I think it would be right, on the facts of this case, to substitute ay own discretion for that of the magistrates without having the advantage of a welfare officer's report." So one sees that the learned Judge in this case was on two occasions using this phrase about the magistrates' discretion and "substituting my own discretion", which is on the lines of the argument that I have already Indicated has been put before the court by learned counsel for the father.
One might add to the comments made by the learned Judge on the magistrates' reasons that perhaps during the evidence, at any rate, though possibly not in their reasons, too much attention appears to have been given to the circumstances of the wife's departure. I should have thought, as there was no suggestion In this case that she had committed adultery or misbehaved in any way of that kind, that her departure should have been taken as a fact, and that fact being established, the destination of the children in the existing circumstances should have been decided upon. One might also comment on the fact that in their reason the magistrates say: "We accepted the views of both parents that the environment of a public house was not the best place for young children, although we know that the wife had made successful efforts to find alternative accommodation for them." That is perhaps a somewhat curious reason to support the magistrates' decision. It is true, as I have said, that when the mother left on the 13th March she did go to the public house which was managed by her parents. But that was only a temporary matter, and it was conceded that she had arranged to rent the house of her sister-in-law at Cosham and that she was intending to move intothat house in the same week as that in which the case was heard before the magistrates. No comparison was made apparently between the accommodation available in the sister-in-law's house, which...
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