Re K. (Minors) (Children: Care and Control)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAMP,LORD JUSTICE ORMROD |
| Judgment Date | 02 November 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J1102-4 |
| Docket Number | No: 334 of 1976 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 November 1976 |
In the Matter of Jonathan Mark Kemp and Rachel Marle Kemp (Minors) and in the Matter of the Law Reporm (Miscellaneous Provisions) Act 1949
And in the Matter of the Guardianship of Minors Act 1971 and 1973
[1976] EWCA Civ J1102-4
Lord Justice Stamp
Lord Justice Ormrod
and
Sir John Pennycuick
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice Family Division
(Mr. Justice Reeve)
MRS. MARGARET PUXON and MISS SUSAN OWEN-ESPLEY (instructed by Messrs. Stunt & Son, Solicitors, Chelmsford) appeared on behalf of the Plaintiff (Appellant).
MR. R. SEARS Q.C. and MR. J. DEVAUX (instructed by Messrs. Frost, Madams & Co., Solicitors, Chelmsford) appeared on behalf of the Defendant (Respondent).
In this case we are concerned with two children, Jonathan aged 5½and Rachel, who is a little over 2½. The children are wards of court, having become so on an application made by their father on l4th May of this year.
The father appeals against an order of Mr. Justice Reeve, made in the wardship proceedings on 11th August last, committing the care and control of both children to their mother and ordering their father reasonable access, including staying access.
Before turning to the facts of the case, I would make some introductory observations. In the first place the law which is to be applied is not in doubt. It is that the welfare of the children is, in the words of the statute, the first and paramount consideration. It was stated with clarity and precision by Lord MacDermott in the case of ( J. & another v. C. & another 1970) Appeal Cases at page 668, in a passage in his speech which should be in the mind of every judge who tries an infant case, and which was indeed in the mind of Mr. Justice Reeve in the instant case.
Lord MacDermott-said at page 710 of the report: "The second question of construction is as to the scope and meaning of the words shall regard the welfare of the infant as the first and paramount consideration'. Reading these words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term isnow to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed".
Applying the law so stated, this court in S v. S. the judgment in which was delivered on 21st October 1975, held that the earlier case of Re L. ( 1962) 1 Weekly Law Reports, page 886, where this court appears to have balanced the welfare of the child against the wishes of an unimpeachable parent or the justice of the case as between the parties, was no longer to be regarded as good law. I think it is a most unfortunate fact that S v. S has never been reported in the Law Reports, as it should have been, with the result that we have more than once, notwithstanding that case, had Re L cited to us as being still of binding authority.
The second thing I would say at the outset is, I think, also implicit in the law as stated in J v. C in the passage to which I have referred; it is that although one may of course be assisted by the wisdom of remarks made in earlier cases, the circumstances in infant cases and the personalities of the parties concerned being infinitely variable, the conclusions of the court as to the course which should be followed in one case are of little assistance in guiding one to the course which ought to be followed in another case.
Thirdly I would emphasise that where a judge has seen the parties concerned, has had the assistance of a good welfare officer's report and has correctly applied the law, an appellate court ought not to disturb his decision unless it appears that he has failed to take into account something which he ought to have taken into account or has taken into account something which he ought not to have taken into account, or the appellate court is satisfied that his decision was wrong; it is not enoughthat a judge of the appellate court should think, on reading the papers, that he himself would on the whole have come to a different conclusion. With those preliminary remarks, I turn to set out the facts of this case.
The parents were married on 12th' July 1969. The father was then 26; he was then studying to become, and is now, an Anglican clergyman, a curate in a parish in a large town in East Anglia. The mother was 21. She was a teacher, a teacher of religion and busying herself with work in the church. Jonathan was born on 1st June 1971. IN August 1973 the father, who had by-then been ordained, took up a position as a curate, which he now holds. Rachel was born on 13th March 1974. The father took up his duties in the parish. The judge found that the mother entered wholeheartedly into the parish duties that are normally undertaken by a clergyman's wife and that she joined in all church activities willingly and happily.
This brought her into contact with a young man who has been referred to as Martin and who was one of the senior members of the Parish Church Youth Group, The father thought well of him and for the first year the father was, according to his own evidence, grooming him for the leadership of the group. Martin is now aged about 25 and has not married. He is employed by a very well-known commercial concern, I think; in the same town, earning nearly £ 3f000 a year.
The mother's evidence was that on the sexual side relations with the father were not wholly satisfactory, and he conceded that in that regard something was left to be desired. She also complains, with what truth I know not, that because the father was engrossed in the affairs of the parish he did not devote himself to her and the children as much as she would have liked.
However that may be, the mother came to see a good deal of Martin and so did the children.
The father, in an affidavit sworn on l4th May last in support of his application for care and control, describes the development of the association between the mother and Martin as he saw it. He noticed, in about January 1975, that apart from their activities in connection with the parish, the mother and Martin were seeing a good deal of each other, going out together. The father appears to have demurred, but not to the extent of taking strong objection. Then later, she told him that she loved Martin, Still the father, trying as he says to apply Christian charity, and also being fond of Martin, took the line that this was not unreasonable, provided, as he put it, that she loved him more than Martin, He did not at this stage suspect an adulterous affair.
However, Martin came more and more on the scene, the two of them going out together at night. Other people began to talk, and in September 1975 the mother told the father (and I quote his words) "that she was so much in love with Martin that she was no longer in love with me, and she was only staying because of the children".
The father, who had described the mother's feelings for Martin and her love of him, which, not later than March 1975 had become an adulterous association, as 'an infatuation1'. He would forgive her and would have her back as his wife, and was not persuaded that the relationship with Martin was a steady one, As I understand it, that is still his attitude.
Because of his beliefs, he would not in any event divorce her; so that she and Martin, if the affair continues, face the prospect of five years together before they can be married.
In March of this year the mother confessed that she had "been committing adultery with Martin, and said that she was going to live with him. An attempt in April to effect a reconciliation, during which Martin and the mother did not meet for a short period, was unsuccessful, and the adulterous association with Martin was resumed. Since then the mother has been going out regularly with Martin in the late evenings.
Although the mother intended to leave the father, she was most unwilling to do so without taking the children with her. The evidence of a notebook in which she made notes during the period of the attempted reconciliation shows that she was torn in two; that her mind was in a turmoil, not only "because of the children but also because for her, as for the father, marriage had been for "as long as they both should live", and she held the Anglican tenets. The judge held that these notes were hysterical; I am not sure that I agree with that description of an attempt to describe her heart searchings, doubts and deepest thoughts, and an attempt by her to analyse her feelings; but I accept, as the judge found, that the notes show that young Jonathan at least was affected by the desperately unhappy situation between his parents.
On 3rd May last the mother made an application to the Magistrates' Court for custody under the Guardianship of Infants Acts, in order that she should have the right to take the children with her when she went to live with Martin. These proceedings were however stultified by the wardship application. As I have indicated, the mother, on account of her anxiety not to leave the children was, at the time of the hearing before the learned judge, still in the matrimonial home, and because there had been a stay of execution of the judge's order,...
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...(1961), 35 A.L.J.R. 251 (Aust. H.C.), refd to. [para. 11]. J. v. C., [1970] A.C. 668 (H.L.), refd to. [para. 12]. K. (Minors), Re, [1977] 1 All E.R. 647 (C.A.), refd to. [para. King v. Mr. and Mrs. B., [1985] 1 S.C.R. 87; 57 N.R. 17; 58 A.R. 275; 44 R.F.L.(2d) 113; [1985] 3 W.W.R. 1; 16 D.L......