Re L. (Infants)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE RUSSELL |
| Judgment Date | 06 June 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0606-3 |
| Court | Court of Appeal |
[1962] EWCA Civ J0606-3
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Plowman
The Master of The Rolls
(Lord Denning)
Lord Justice Hrrman and
Lord Justice Russell
MR R. B. GIBSON (instructed by Messrs Titmuss, Sainer & Webb) appeared as Counsel for the Appellant.
MR J. MONCKTON (instructed by Messrs Cole & Matthews) appeared as Counsel for the Respondent.
We need not trouble you, Mr Gibson.
In this case the father is aged 32 and the mother is 31. It concerns two children, daughters aged just six and four years. Unfortunately, the father and mother have separated and the matter comes before this Court to say which of them should have the care and control of these two little girls. Mr Justice Plowman has given a decision in iavour of the mother. The father appeals to this Court.
The facts are these. The father and mother married in 1955. They are both comfortably off. The wife, indeed, was able from her own resources to provide the matrimonial home. They lived in 1958 in Albermarle Road, Beckenham. In the same road there was another young married couple who had children of much the same age, and the two young couples became very friendly. In 1959 they spent their holidays together. Then unfortunately the mother in this case formed an attachment for the husband of the other woman. She told her husband in August 1960 she had had an affair with this other man. She did not say then that she had committed adultery but she did later. Her husband was ready to forgive her and did forgive her; indeed, attempts were made, unsuccessfully, to find a house somewhere else where she would not be subjected to the temptation of meeting the other man. Then in July1961 this little family, the father, mother and the two girls, went by themselves for their holiday to Westward Ho. Whilst on that holiday the father intercepted a letter from the mother to the other man. From, that letter and from other evidence, it is plain that the mother had made a plan with the other man, a plan by which she was going to take a flat a few miles away, take the children with her and then see the other man as much as she wished. The question was put to her: "See him as much as you wanted and as much as you needed" and she said: "Yes". Now she realises that the Courts would not permit her to bring the children into contact with the other man.So she now says that, if she gets the care and control, she would not let the children see the other man or let them be in touch with him. She was asked: "So that your change of attitude is one not of heart but of expediency in the face of those proceedings? (A) Well, I did not realise that everybody would want to be so very difficult about things". She carried out the plan as arranged. She went to the other place which she had found, taking her children with her, and that she did on the l6th August, 1961. The children went first, she packed up her things and when her husband came back, she quite frankly told him that she was going and she went. Two days later, on the 18th August, the husband by a stratagem retook the children. He, with his mother, went to the house where his wife and children were, and whilst the wife was out of the room making coffee, the husband's mother went off with the children in a car and so got them back. They have been with the father ever since, seeing the mother, of course, from time to time by arrangement. I think for a time they were with the grandparents on both sides, a fortnight with his parents and a fortnight with hers. But latterly they have been with the father.
The mother took out a summons before the Magistrates asking for the custody of the children for herself. The father in reply took out a summons in the Chancery Division to make the little girls wards of court, wanting the care and control to be given to him, and that is how the matter has come before the Court
Now the father is a man against whom no word can be spoken as to his conduct towards his wife or towards the children. His wife has left him and has gone to another man - I do not say she is actually living with him but she has gone from home, because of her interest in another man, without any justification whatever. Her husband is still ready to forgive her and take her back; he still says he wishes her to go back to the home where he and the two children are; he wishes her to come back and for them to be reconciled and bring up the children together.He has had to change his house because the other one belonged to his wife. He has another house which is quite suitable for the family. His sister, a young woman aged 28, who is unmarried, is looking after the children there, and they have a Swiss girl to help in the house, He gets back in the evening from his work and does what he can for the girls and at the week-end. He says: "I am looking after my children as best I can; they are good arrangements for them and I would like to have the continued care and control of them, hoping perhaps against hope that my wife, their mother, will come back and share the home with them". The wife says: "I cannot go back but it is best for the children to be with me", and so she says: "They must come from the father to me".
The Judge, Mr Justice Plowman, expressed his view of the case in these words: in my view, the care and affection, that the children I am quite sure are getting now both from their father and their aunt, who is looking after them, is really no substitute for the love and affection which small girls of that age will, I am quite sure, get from their mother. While one must have the greatest sympathy for the father in a case of this sort, where it was the mother who was the cause of breaking his home up because she left him and took the children with her, and where I do not find anything in the father's conduct which compels me to call for a censure, of course it is my duty to put any considerations of that sort on one side and simply to look at this thing from the point of view of what is best for these two children, and, as I have already said, I take the view that what is best for them at present is to go back and live with their mother". Of course, the discretion of a Judge who has seen the parties in a case of this kind is very important, but when I read that passage, it seems to me that he has fallen into error: for, whilst a Judge is right to give great weight to the welfare of the children, and indeed to make it, as the statutesays, the first and paramount consideration, he must nevertheless remember that whilst it is the paramount consideration, it is not the sole consideration. In this case whilst no doubt the mother is a good mother in one sense of the word, in that she looks after the children well, giving them love and, as far as she can, security, one must remember that to be a good mother involves not only looking after the children but making and keeping a home for them with their father bringing up the two children in the love and security of the home with both parents. In so far as she herself by her conduct broke up that home, she is not a good mother.
Now what is to be done? I realise that as a general rule it is better for little girls to be brought up by their Mother, but nevertheless if they are to be given to the mother now, I can see no chance of reconciliation, whereas if they remain with their father, there may be some hope, even if it is only a faint hope, that she will return for the sake of the children themselves: and if only that would happen, their welfare would be ensured in the best way of all. But even if there were no chance of the mother returning at all, I do not think that she should on that account be entitled to take the children from their father who has done no wrong. It would be an exceedingly bad example if it; were thought that a mother could go off with another man and then claim as of right to say: "Oh well, they are my two little girls and I...
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