Re A (A Minor) (Custody)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE RALPH GIBSON |
| Judgment Date | 19 April 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0419-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0382 |
| Date | 19 April 1991 |
[1991] EWCA Civ J0419-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
STOCKPORT DISTRICT REGISTRY
(MR C.J. HOLLAND, Q.C., SITTING AS A DEPUTY HIGH COURT JUDGE)
Royal Courts of Justice
Lord Justice Glidewell
Lord Justice Ralph Gibson
Lord Justice Butler-Sloss
91/0382
MR CHARLES BLOOM, Q.C., instructed by Messrs Jones, Maidment, Wilson (Manchester), appeared for the Appellant (Respondent).
MR JOHN A. PHILLIPS, instructed by Messrs Vickers Jones Wood & Co. (Stockport, Cheshire), appeared for the Respondent (Petitioner).
We order that no details may be published in any medium which will in any way identify the child concerned or any of the children.
I will ask Lord Justice Butler-Sloss to give the first judgment.
This is an appeal by the father from the decision of Mr Christopher Holland, Q.C., sitting as a deputy High Court judge, made on 14th September 1990 after either a five or a six day hearing. He was asked to make orders as to custody of the three youngest children of the family and this appeal from his order concerns the youngest, a girl K aged six. After a careful and comprehensive judgment the deputy High Court judge awarded the custody of K to the mother. We have been asked to consider additional evidence which we have done after hearing argument on the facts before the judge and having come to the conclusion that in the interests of the child we should look at all the information which we have been asked to see. I shall, however, first consider the position as it was before the judge at the hearing in accordance with the decision Of this court in M. v. M. [1987] 2 F.L.R. 146.
The relevant facts are that the parents, who are both in their forties, were married on 25th November 1967 and lived together for over 20 years. During that period the wife gave birth to six children—J, a boy now 20 and living away from home; R, a boy 18 and living with the father; L, a boy born on 3rd October 1973 and living with the father; C, a girl born on 9th January 1979 and living with the mother; H, a boy born on 30th July 1981 living with the father, and K, the subject of the appeal born on 24th August 1984 and at present living with the father. The judge found that both the father and the mother were caring parents and the marriage appeared to be happy until 1987. Since 1981 the parents were assisted in the house and in the care of the children by a Mrs G, a full time daily housekeeper.
The mother developed an interest in the occult and the paranormal and both parents in September 1987 enrolled in a night school course in para-psychology. There they met another couple, a Mr and Mrs M, with whom they became friends, and the mother and Mr M developed a relationship which for some time they kept secret. In August 1989 the M marriage was dissolved and their two children went to their mother with access to Mr M. The judge found, which is now in dispute, that there were no problems between Mr and Mrs M over their children.
The parents separated after a violent scene on 21st October 1989, the scene being witnessed by C, and the mother left with C. The judge found that she would have liked to have taken the two youngest children, but it was impractical for her to do so. There was another violent scene on 31st October and there has subsequently been great bitterness between the parents and also between the father and Mr M, spilling over into difficulties over access and in the mother telephoning the children. The judge found that the father was very much affected by the breakdown of the marriage, and during the latter part of 1989 and early 1990 he showed considerable signs of strain which manifested themselves in arbitrary and irrational behaviour. He undoubtedly created difficulties for the mother in seeing the children who were living with him.
Various interim orders were made recognising the status quo and arranging defined access. The mother undertook that the children living with the father would not at that time come into contact with Mr M.
A particular and continuing difficulty in this case has been the effect of the separation of the parents on C. The judge found that she is a sensitive and emotional child. She has, with one exception, when she went on holiday to the United States with her brothers and sister and the father, refused to see her father or to co-operate with any access arrangements to him. This has proved a deep-seated and at one time intractable problem which may now at last since the hearing and with specialised help be on the brink of improvement. There was therefore no defined order for access in respect of C at the time of the hearing and the judge devoted a great deal of time to considering her problems.
At the time of the hearing there were custody applications in respect of four children, but it was agreed that L at 16 did not require an order. The judge ordered that C should be in the custody of the mother, an inevitable order in the circumstances. H's future home was in dispute, but the mother realistically recognised in her evidence that he wished to stay with his father (and no doubt with his elder brothers) and the judge paid tribute to her approach in awarding custody of H to his father. There is no appeal to this court in respect of either C or H. But their positions and that of the whole family is of course relevant to the appeal in respect of K.
Another issue which took up much time at the hearing was the extent of the interest of the mother and Mr M in the occult and whether there were any sinister aspects to this interest. The father alleged that their involvement in the occult rendered the mother unfit to have care of any of the children, including C. It is unnecessary on appeal to explore this issue, since the judge found that the mother and Mr M had ceased to be actively concerned in such matters, that the children were not at risk, and that it was not a reason to deprive the mother of the care of C. That finding is not appealed. But the allegation forms part of the background and has to be taken into account as part of the circumstances.
The position of the parties at the time of the hearing was as follows. The father was living in the former matrimonial home with four of the six children. The eldest son was living on his own, but in regular touch with all the family. The father had considerably reduced his hours of work and was caring for the younger children assisted by the housekeeper, who had looked after H and K since birth, and by a girlfriend. There was, however, no suggestion as to the remarriage of the father.
The mother had had several changes of accommodation, but was eventually settled at that time in a three-bedroomed house where she was living with C. She has in fact now moved again. Mr M stayed in the house several nights a week and took his children to stay at access weekends. The relationship of the mother and Mr M was a stable one and they were considering marriage.
The independent evidence before the court was that of a clincial psychologist brought in by the general practitioner to help with C. She expressed firm views also on H and K. There was also a report from a court welfare officer before the judge, who unfortunately through illness was unable to give evidence.
As I have already said, the problems of C took up a considerable part of the hearing and of the judgment. There were also certain difficulties about H, including a minor injury on the forehead sustained during a visit to his mother which was unexplained and subsequently he was somewhat reluctant to attend access visits, for a period at least.
The clinical psychologist recommended that H remained with his father. There were no such difficulties with regard to K, who was described by the judge as a "markedly bright, happy and independent child", less affected by the tensions than the older children. The judge said that there was an acute balance of arguments. He set out the status quo argument:
"K…has been at [the former matrimonial home] throughout. There, she is plainly well cared for in an atmosphere that does include a caring feminine influence, provided by Mrs. G…[the housekeeper], and to a lesser extent by [the girlfriend]. There, she has the company of her nine-year old brother; that is the next youngest child—a child just three years older than her. Given that status quo, the question is rhetorically posed, and it is a forceful one: Why move her? Secondly, whilst it is conceded that she and C…are of the same sex and must have some interests in common, there is an age gap in effective terms and that age gap is likely, in practice, to widen as C…proceeds through puberty and matures. Thirdly, it is said that there have been no significant problems with regard to access; [from father to mother] and that state of affairs contrasts so markedly with the position as it has prevailed with C."
The judge then considered the position of C with regard to her father, the "malaise" as it was called, and the risk that it might affect K's approach to access if she went to live with her sister.
The judge referred to the view of the clinical psychologist that "the rule of thumb in these affairs, which has developed over the years through practice, is that one does not lightly interfere with the status quo if it is working well." She recommended that K also should remain with her father.
The father also relied upon K moving into a household with Mr M. The particular reasons for objection to Mr M were rejected by the judge, but it still left the necessity...
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