Re S (A Minor) (Custody)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE McCOWAN |
| Judgment Date | 07 June 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0607-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/0494 |
| Date | 07 June 1990 |
[1990] EWCA Civ J0607-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE JOHNSON)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Butler-Sloss
Lord Justice McCowan
90/0494
MR. S. HANCOX (instructed by Messrs. White & Bowker, Eastleigh, Hants.) appeared for the Appellant.
MR. C. CRITCHLOW (instructed by Messrs. Knight & Co., Eastleigh, Hants.) appeared for the Respondent.
I will ask Lord Justice Butler-Sloss to deliver the first judgment.
This is an appeal from an order of Johnson J. on 26th March of this year, allowing an appeal from the Domestic Court at Eastleigh at a hearing on 15th December of last year, when the Domestic Court awarded the custody of a small child to the father, and Johnson J., in allowing the appeal, changed the order to custody to the mother.
It was, in essence, an application under the Guardianship of Minors Act 1971 in respect of a little girl called Holly, born on 19th October 1988. The mother is 20 and the father is 23. They lived together for about two years. They never married and they separated in July 1989, about nine months after the birth of Holly. The separation occurred by reason of the mother walking out and leaving the child with the father. Her departure and her subsequent failure to be in touch with the father and the child was a matter of criticism by the Justices and a matter to which they referred in their reasons. She had recently had a miscarriage and was, according to her, in a state of depression and had been, again according to her and to some extent accepted by the father, assaulted by him at the time that she was leaving.
After the mother left, the father looked after Holly with the assistance of his family, and the extent of the assistance of his family was also a matter in dispute before the Justices.
The matter first came before the Justices on 19th October 1989, and there was an interim custody order to the father and access to the mother. There was a further hearing on 30th November 1989 for a further interim order until the hearing on 15th December when the substantive order for custody was made to the father.
There were two court welfare officers' reports, the first on 23rd November and the second on 12th December, the second supplemental report being provided by the welfare officer immediately prior to the substantive hearing since there had been the adjournment on 30th November.
The recommendation of the court welfare officer in each report and in the evidence before the Justices was that the child should go to the mother. She particularly raised two matters of concern. One was in respect of the physical care of the child, who had sustained at one stage quite a serious case of nappy rash, and, secondly, as to whether or not the father was himself going to care for the child or whether he was going to leave the care of the child principally to the rest of his family, and there were allegations made about him spending more time in the public house than with his child.
The court welfare officer gave evidence and said to the Justices in evidence that, apart from the two reservations in respect of the nappy rash and who would care for the child, she took the view that it was more or less equal between them and she said that it was a very difficult decision to make. The Justices in their reasons expressed a number of reservations about the mother. In giving their reasons, they explained why they departed from the recommendations of the welfare report, and they took the point that there is no set rule that young children should always be with their mothers. They preferred the father to the mother.
Johnson J. took the view that the Justices were plainly wrong and that they had not properly set out the reasons for their decision. He said at page 11 of the bundle:
"There are two courses of action open to me in that situation. I could, of course, refer the matter back to be heard by a different panel of Justices but in my view the matter is so plain that it is possible for me to make an Order having regard to the facts as I know them and as were found by the Justices. I have no hesitation in concluding that Holly's best interests would be best safeguarded if she were in the care and control of her Mother."
He considered that he should intervene, he allowed the appeal and ordered that the child should go to the mother.
An additional fact which certainly was not clear to me, despite the chronology with which we were provided, was that from 22nd February of this year, the child has in fact been living with the mother despite the order of the Eastleigh court. She failed to return the child after access and has retained the child until today. The Eastleigh Magistrates on 8th March confirmed their order for custody to the father, but took no action, no doubt because by that time there was an appeal to the judge, sitting as a Divisional Court, from their order and on 26th March of this year Johnson J. had awarded the custody to the mother.
The two issues that arise before this court are whether the judge was wrong to allow the appeal and, secondly, if he was right to allow the appeal, whether it was wrong to make an order and not to remit for a further hearing before another bench of the Eastleigh Domestic Panel.
In the matters submitted to this court Mr. Hancox for the appellant father has argued both issues, but has very realistically and practically accepted that, since the little girl has lived with the mother since February despite the order to the father in December,...
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