Re J (Minors)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE,LORD JUSTICE LEGGATT |
| Judgment Date | 22 July 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0722-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0723 |
| Date | 22 July 1992 |
[1992] EWCA Civ J0722-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANSFIELD COUNTY COURT
DEPUTY CIRCUIT JUDGE COULSON
(IN CHAMBERS)
Royal Courts of Justice
Lord Justice Balcombe
and
Lord Justice Leggatt
92/0723
NO. CCFMI/92/0561/F90D0069
MR. VALENTINE Le GRICE (instructed by Messrs Blakesley Rice MacDonald, Chesterfield) appeared on behalf of the Appellant (Petitioner).
MR. RICHARD TOOMBS (instructed by Messrs Durlings, Gillingham) appeared on behalf of the Respondent (Respondent).
This is an appeal by the mother of three children from the order of Deputy Judge Coulson given in the Mansfield County Court on 3rd April 1992 whereby he directed that the three children should continue to reside with their father but that the mother was to have contact basically of one week staying with her during the Christmas holidays, one week staying with her during the Easter holidays, three weeks staying with her during the summer holidays, and five days during the summer school half-term and five days during either the spring or the autumn school half-term. He also gave certain other directions as to the detail of the contact.
The marriage between the parents took place on 18th August 1984. There were three children of the marriage, all girls, Roxanne born on 2nd December 1983, who is now therefore eight and a half years old; Rebecca born on 19th March 1985, who is now aged seven; and Rachel born on 27th March 1986, who is now six.
On 6th January 1988 the father, at the mother's request, left the matrimonial home, which was then in Bolsover, in Derbyshire, and went to live in Kent. In July 1988 the mother started to cohabit with a Mr. Paul Harvey. In February 1989 the matrimonial home was sold. The mother moved to Chesterfield and, after a short period in rented accommodation, she bought a house in April 1989 which was in a poor state of repair. She, the three girls, and Mr. Harvey moved into it. Some time during the middle of 1989 the father started to cohabit with a Miss Rosemary Walters. The mother then had a child by Mr. Harvey, a boy called Jason, who was born on 1st April 1990. The mother's pregnancy with Jason, and the continuing difficulties relating to the accommodation, caused her to send the three girls to live with the father in Gillingham, Kent. The father and Miss Walters took the girls on but on the basis, which was not unreasonable, that this was to be a permanent arrangement. So, on 13th May 1990, the girls went to live with their father and Miss Walters in Kent. They have lived there ever since and they are well settled.
Unfortunately, access by the girls to their mother caused a number of problems. There was a break in access, during which time the girls did not see their mother between 1st September 1990 and 24th August 1991. Various orders were made, there were court welfare reports and, eventually, in the late summer of 1991, access by the girls to their mother was resumed but the father says that the girls were in fact unsettled by that access.
It is necessary to note at this point that the court welfare officer who was concerned in the preparation of these reports was a Mr. Holloway of the Kent Divorce Court Welfare Service. I need not go into the intermediate details but I can take up the story with Mr. Holloway's supplemental report of 13th January 1992, which is at page 177 of the court bundle. In the conclusion of that report Mr. Holloway said:
"Currently there is no contention between the parties over the issue of care and control or access. The fundamental disagreement between the [mother] and [father] lies in the frequency of access over which this service has no statutory obligation to resolve for them. Although there are apparent unresolved feelings of animosity between the parties it is hoped that they will not allow these to prevent them from arriving at an amicable decision regarding access and neither to allow their differences to overshadow the importance of the happiness and stability and security of these three young children".
Following the receipt of that report, on 4th February 1992 the mother's solicitors wrote a letter to the father's solicitors in the following terms:
"We have had the opportunity to consider the Court Welfare Officer's addendum to his report. We have discussed it with our Client. We are pleased to inform you that our Client is prepared to agree to an order committing custody of all three children to your Client. As will be apparent to you from previous correspondence and Affidavit that has been an enormously hard decision for her to reach. It is a decision she reaches with much sadness. It is her hope that in time the custody arrangements will change. For the moment, however, our Client accepts that she must content herself with only seeing the children at periodic intervals".
To that letter the father's solicitors replied on 18th February 1992:
"Our Clients have endeavoured to provide a stable family environment for the children and succeeded in doing this until your Client once again became involved with the children. Our Clients were prepared to encourage such contact and to do all that they felt to be reasonable to assist such contact. However, this has led to a breakdown in the happy family environment which they have previously nurtured. The situation is now that our Clients foresee only three options:—
1. There being no further contact between the children and your Client.
2. Your Client enjoying access as follows:—
Staying access for one week at Christmas and one week at Easter with two weeks staying access during the Summer Holidays. Any further access to be in Kent by prior arrangements with our Client. Your Client to make the travel arrangements without assistance from our Client.
3. If either of the above are not acceptable your Client may apply to the Court to seek the full time care and control of the children but such an application will be opposed.
In view of the problems with access experienced by our Clients our Clients would prefer any further access to be supervised.
Our Clients wish to retain care of the children and will ask the Court to decide which of these options is in the childrens best interest. Our Clients regard the resumption of access on the part of your Client as being a disaster to the home life of the children".
The letter goes on to give details of the degree to which the father and Miss Walters assert that the children have been unsettled by access.
As a result of that letter, the mother's solicitors, on 26th February, wrote to the court welfare officer as follows:—
"…We have today heard from the Listing Officer that the hearing is to take place before Deputy Judge Coulson…on Friday the 20th of March at 10.30 a.m. We wish Mr. Holloway to attend.
Having considered with [the mother] the contents of [the father's solicitors'] letter of the 18th February she has now decided that she wishes to apply for custody of the children herself. We appreciate that your report does not deal directly with that issue. However, your involvement in this case has been considerable and we therefore trust that you will feel able to express a view on this at the hearing".
So the position then was this. The mother had decided, in view of the attitude taken up by the father, that she was no longer content to leave the custody of the children with the father but was herself applying for custody. I should say that, although I am using the terms "custody" and "access", because those are the terms which have been used, it may be more appropriate to talk about "residence" and "contact", but it matters not for this purpose. The mother, further, wanted the attendance of Mr. Holloway, the court welfare officer, at the hearing which was taking place in Mansfield on 20th March.
The Kent Divorce Court Welfare Service, in effect, replied to the mother's letter by a letter from the senior court welfare officer, Mr. Dingley, of 3rd March, sent to the Chesterfield County Court, with copies to the respective solicitors of the mother and the father. In that letter he says that Mr. Holloway has passed to him the letter from the mother's solicitor asking that Mr. Holloway be required to attend at that hearing. He sets out the details of what Mr. Holloway had previously done, and then says:
"Although actual care and control was not an issue during the enquiry, Mr. Holloway's report does I think provide sufficient information to assist the Judge in deciding whether or not the transfer of day to day care from father to mother would be in the children's interests".
He then says that because of the distance and the very heavy demands on the Kent Divorce Court Welfare Service that it really would be most inconvenient for Mr. Holloway to attend, and asks that the letter be shown to Deputy Judge Coulson for consideration by the deputy judge in deciding whether or not Mr. Holloway's attendance was necessary.
What happened after that can best be seen from a transcript of what took place at the first hearing before Deputy Judge Coulson on Friday, 20th March. By then it had come to the notice of the mother's solicitors that Mr. Holloway was not going to be present at the...
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