Re K. (A Minor) (Ward: Care and Control)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE FOX,MR JUSTICE WAITE |
| Judgment Date | 23 November 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J1123-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/1205 |
| Date | 23 November 1989 |
[1989] EWCA Civ J1123-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORWICH DISTRICT REGISTRY
(HIS HONOUR JUDGE HYAM)
Royal Courts of Justice,
Lord Justice Fox
Mr Justice Waite
89/1205
88 WG 2247
MR T. TOWNSHEND (instructed by Messrs. Overbury Steward & Eaton, Solicitors, Norwich) appeared on behalf of the Appellant.
MR T. McLOUGHLIN (instructed by Messrs. Daynes Hill & Perks, Solicitors, Norwich) appeared on behalf of the Respondent.
This is an appeal by the father from a decision of Judge Hyam sitting as a Judge of the Family Division, giving care and control of a boy "R" born on 4th March 1985 to Mr and Mrs. E, the plaintiffs in the proceedings.
The father began to live with the mother and "R" at the beginning of 1985. They lived at various addresses and for various periods until the mother obtained a Council house in Canterbury Place, Norwich in January 1987. Thereafter the father and the mother lived together at that address until about the Spring of 1988, when the father obtained work in London as a carpenter. That employment continued until September 1988 or thereabouts. The mother was having psychological problems at that time, so the father gave up his London job after a discussion with the mother's psychiatric social worker and returned to Norwich.
The mother and father resumed living together at Canterbury Place, but the relationship between them was stormy throughout.
The mother sought medical advice as to her condition in November 1987; she became a day patient in a psychiatric clinic from 18th December 1987 until 16th February 1988, and again from 25th February 1988 to some time in November 1988. The mother was in fact an in-patient in the clinic for periods amounting to five months or so.
In September 1988 the father proposed marriage to the mother, but she refused, saying that she wished to wait until her health was better.
On 23rd November 1988 the mother took her own life, and immediately on that day "R" went to live with the plaintiff and her husband, Mr and Mrs E—the plaintiff being a half-sister of the mother. He has lived there ever since.
At this point I would mention that the father is about 23 years of age, and Mr and Mrs E. are about 27 years of age. In 1977 Mr and Mrs E. emigrated to New Zealand, intending to stay there, but in the event they were not happy and returned to this country in 1988. They apparently have no intention of returning to New Zealand or of leaving this country. They have continued to live in Norwich.
The father has seen "R" regularly at the weekends and also on Wednesday evenings. On 22nd December 1988 the father made the present application for care and control of "R".
The approach of the Judge to this matter was as follows: He stated the rival contentions that the father asserts that he, as the natural father, is the best person to bring up "R". The Judge quoted the observations of Lord Templeman in Re K.D. (A Minor) (1988) 1 F.L.R. 577 at 578, to which I shall refer later in this judgment.
His view was supported by the Welfare Officer who, in the course of his evidence, said that there was no compelling reason for taking "R" away from his natural father.
Both the Welfare Officer and Mr Alison, the psychiatric social worker who attended the mother, thought that the father Would be a satisfactory parent and would rise to the occasion.
The argument put forward the other way was this, that the overriding consideration was the welfare of the child, all considerations must be weighed and the course to be followed is that which is in the best interests of the child's welfare. Mr and Mrs E. have a comfortable and stable household with two children, a daughter born in May 1985 and a son born in January 1987. Mr Alison said that Mr and Mrs E. have done a marvellous job with "R" and they have provided him with a stability which he had not known before.
On the other hand it is accepted that the father is a man of ability who has been continuously, in work. The Judge said that nobody spoke ill of him; however in evidence the Judge considered that on one or two occasions the father had not been entirely candid—there were two occasions when he left "R" by himself for a short time when looking after him, but the Judge did not regard those occasions as of great significance in the final determination of this case. In addition, the Judge considered and completely rejected allegations that the father had kicked "R".
As regards Mrs E., the Judge formed the view that she was an excellent mother, having sympathy and understanding necessary in order to cope with children. The Judge regarded Mr E as being a very mature, wise and scrupulous man whose answers in the witness box were given with care. So in general the Judge was impressed with both Mr and Mrs E., and considered they would provide an excellent home not only for their own children but for "R" if they were so allowed. He said that "R" had "blossomed" in their care.
How ever, he accepted that no real criticism could be made against the care given to "R" by his father and by "R's" paternal grandmother during the periods of access which the father has had since "R" had been with Mr and Mrs E. Indeed, the father's capacity to provide satisfactory care arrangements for "R" is dependent to some extent upon the back-up and help which will be provided by his parents and in particular by his mother. It is not in doubt that, subject to one matter to which I will come in due course, that help will be forthcoming, but the Judge in fact did exhibit reservation concerning the longterm commitment of the paternal grandmother.
Next the Judge considered the intention of the father in relation to the request for care and control before proceedings were commenced, but that is a matter which did not form any significant part of the argument before the Court and therefore I do not propose to consider it further.
The Judge felt to some extent that the father's desire to be given care and control was a matter which arose late in the day, but nothing turns on that, because it was accepted that even if true it was understandable because at the material time the father had only just emerged from the shock which he suffered—as did all the family—from the death of the mother.
The father's proposal is that "R" should live with him in Canterbury Place; that the paternal grandmother should collect "R" at 7.30 in the morning and take him to school. As the father works flexible hours he would be able to collect "R" from school at 4.30 and look after him for the rest of the evening. There would be school playschemes to provide occupation for "R" in the holidays, and in addition there would be access to the home of Mr and Mrs E and to the maternal grandparents, so it is clear satisfactory arrangements could be made.
By these arrangements the Judge said that a good deal of daily care would fall on the paternal grandmother, but he had some doubts as to her long-term commitment. However, he did not explain the basis for his doubts, but referred to what he called the strand of evidence which he thought gave support to that view, namely that when "R" was with his father and grandmother, and the father went to the lavatory, "R" always followed him, which the Judge said might suggest some lack of ease with the grandmother. But as the Judge said, it is a strand of evidence only, and for my part I am not convinced that any weight can be placed upon it as indicating, so far as the grandmother is concerned, the boy's relationship with her is uncertain from "R's" point of view.
However, the Judge was clear that the care offered by Mr and Mrs E was superior to that offered by the father and his parents by taking into consideration their characters, their personalities, their ages and the fact that Mrs E is the half-sister of "R's" mother
The Judge accepted that as against the advantage of being brought up with a normal young family in what he regarded as an exceptionally good home, must be set the advantage of fostering the natural relationship which exists between the father and son—particularly where, as here, the mother has died so...
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