Re M. (Infants)

We need not trouble you, Mr Picardo.

This is an appeal My a father from a judgment of Mr Justice Goff given on the 24th May 1967 relating to the care and control of two small girls, now nine and seven years old respectively. The parents of these two girls have unhappily separated, and we are informed that divorce proceedings between them are already under way, although the case has not yet come on for trial. In the meantime the mother brought the present proceedings in thechancery Division asking for custody, cape and control, in pursuance of the Guardianship of Infants Acts.

The learned judge heard oral evidence from both parties, and indeed from all the persons immediately concerned with the children, which extended over a one two days. In the end he came to the conclusion that he would not make any order for custody of the children, but that the mother should have the care and control of them.

I do not want to delve too far into the history of the relations between the parents, because that will no doubt have to be fully Investigated in the forthcoming divorce proceedings. They were, however, married in 1954 and lived together until early In January 1966. It appears that they were reasonably happy until about the year 1963, but then, or somewhere about that time, the father introduced into the house an acquaintance of his from work, who came there as a lodger. I will refer to him as "Mr A". Unhappily that led to an association between the mother and Mr A., and there is no doubt that they developed an affection for each other. In the meantime the two parents started quarrelling with each other, and eventually Mr A., whose presence was one of the bones of contention, was ordered by the father to leave. That resulted in the mother also leaving shortly afterwards. In due course she went to live with Mr A., and she is still living with him, admittedly in adultery.

The two children were left by the mother in the home, and it is a matter for comment (which the learned judge has fully taken into consideration) that she left completely without notice and without making any provision for looking after the two children after she left. It appears, however, that her own mother promptly came to the rescue and looked after these two girls for the time being. Since then the father has obtained the services of another woman as housekeeper; and again, perhaps not surprisingly, that has resulted in an association between the father and this other woman, and they are now living together in adultery as man and wife.

The mother appears to have taken no steps in relation to the children for a period of some months, but in about May 1966 she took out a summons before the magistrates under the Guardianship of Infants Acts, but unfortunately she appears to have stapled in the wrong court, and those proceedings proved to be abortive. She then had to start proceedings in the appropriate court, which I understand was in the court at Excels. When those proceedings came on for hearing they were adjourned by the magistrates in order to enable a welfare officer's report to be obtained. After that was obtained the matter again came before the magistrates in October 1966 and they then decided that, having regard to the nature of the dispute, the case was one which would be more properly dealt with in the High Court. In those circumstances the mother started the present proceedings in January of this year.

As I have said, divorce proceedings had already been instituted between the parties. The father started them by filing a petition for divorce on the ground of the mother's adultery with Mr A. The mother has filed an answer in which she cross-prays for divorce on the ground of cruelty on the part of the husband, and also on the ground of his adultery with the housekeeper, to whom I will refer as "Mrs M". That is as far as the divorce proceedings have got.

When the matter came on before the High Court a further welfare officer's report was obtained so that the learned judge had the benefit (if it was a benefit) of having two welfare officers' reports before him, one made in October 1966 and the other to the spring of 1967. I raise the question whether it was of benefit to him because it appears from reading the two reports that the two welfare officers did not altogether take the same view of the parties

The matrimonial home where the children were left was in Ecoles. The mother had gone to live with Mr A. in Cadishead which I understand is acme two or three miles from Ecoles. The children have up to date resided with the father to what had been the matrimonial home. The result of the learned judge's order, if it stands,must be that the children will have to move from Eccles to Cadishead, and that in turn will no doubt involve a change of school. That, of course, is a highly relevant matter to consider.

The problem of the children's education is further complicated by the fact that the mother is a Roman Catholic, and is most desirous of bringing up the children in the Roman Catholic faith. The father, although nominally a member of the Church of England, does not, I understand, effectively practise any religion at all, and he has registered some degree of objection to the children being brought up in the Roman Catholic faith. They do up to the present time attend a Roman Catholic school, but the father has foreshadowed that, if he obtains an order for their care and control he may quite probably wish to have them transferred at the age of eleven to a non-denominational school for their secondary education. There is, therefore, a...