Re W. (an Infant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE UPJOHN,LORD JUSTICE DAVIES |
| Judgment Date | 23 July 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0723-1 |
| Date | 23 July 1963 |
| Court | Court of Appeal |
[1963] EWCA Civ J0723-1
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Pennycuick
Lord Justice Ormerod
Lord Justice Upjohn and
Lord Justice Davies
MR DONAL HERROD (instructed by Messrs Smiles & Co., Agents for Messrs Marklands, Leeds) appeared as Counsel for the Appellant.
MR J. A. FINLAY (instructed by Messrs Stafford Clark & Co., Agents for Messrs Simpson Curtis & Co., Leeds) appeared as Counsel for the Respondent.
This appeal in the first place was from an order of the Stipendiary Magistrate at Leeds made on the 13th July, 1962, on a summons and cross summons by a father and mother under the Guardianship of Infants Act. He made an order for the custody of the infant to the father with appropriate access and also for the mother to have the care and control of the child. There was an appeal from that order to Mr Justice Pennycuick in chambers and he reserved the matter to open Court in order to deliver Judgment. He held that the learned Stipendiary Magistrate had no jurisdiction to make the order and remitted the case for a rehearing. The appeal comes to this Court from the decision of Mr Justice Pennycuick.
The facts which are material are very short. The parties were married on the 12th July, 1960. At that time the mother was a widow with one son. The infant in question was the only child of the marriage and was born on the 2nd April, 1961. Unfortunately towards the end of 1961 differences arose between the parties and they separated early in 1962. When they separated the mother continued to live at the matrimonial home, which was in St. Anne's Road, Leeds, and the father went to live with his parents in Huddersfield. The father was anxious to have the child. I think it is appropriate to say at this stage that there is nothing in the evidence to justify anyone finding, and indeed there was no finding, that either party was unfit to have the care and control of the child. On the 30th March, 1962, the mother issued a summons under the Guardianship of Infants Act, and on the 12th April, 1962, the father issued a cross summons. Both the summonses came on for hearing before the Stipendiary Magistrate of Leeds on the 3rd April and 5th July, 1962, and it was at the hearing on the 19th July, 1962, that he delivered the Judgment in question. The matters of fact which the learned Stipendiary Magistrate felt he should take into account were that the child was only nine months old, much too young then to leave hismother. On the other fiend, the father was anxious to have a say in the upbringing of the child. He himself had been educated at a public school and was anxious that his son should go to the same school and he wished to have some certainty about the future in order that he could make appropriate arrangements and plan ahead. It was with this in mind that the learned Stipendiary Magistrate came to the conclusion that in the circumstances he should make the order which he did make, giving the custody to the father which would give him the right at least to have a say in the future education and upbringing of the child but to make an order that for the time being the child could not be removed from the care and control of the mother
There was an appeal by the mother to the learned Judge who allowed the appeal and held that the Stipendiary Magistrate had no jurisdiction to make such an order. Against that decision the father has appealed. He is, so far as I understand, willing that the care and control of the child, at least for the time being, should remain with the mother but he is anxious to have the custody, or as it has been described from time to time by the authorities, legal custody, in order that he may have some feeling of certainty to make his plans for the future
The jurisdiction to make orders of this kind derives from the Guardianship of Infants Acts from 1886 to 1925, a jurisdiction originally vested in the High Court and then also vested in the County Court, and by section 7 of the Guardianship of Infants Act of 1925 vested in the Magistrate's Court subject to certain limitations set out in the statute in question. The original jurisdiction of the Court stems from Section 5 of the Guardianship of Infants Act 1886, which provides as follows: "The Court may, upon the application of the mother of any infant (who may apply without next friend) make such order as it may think fit regarding the custody of such infant and the right of access thereto of either parent, having regardto the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary or discharge such order on the application of either parent or, after the death of either parent, of any guardian under this Act, and in every case may make such order respecting the costs of the mother and the liability of the father for the same or otherwise as to costs as it may think just".
On the face of it the wording of that section is wide, but from it the Court derives its authority to make orders of this kind. There is, of course, the common law right of the father to have the custody of a child, which necessarily existed before the Act of Parliament in question wan passed. It is to be noted that apart altogether from the Guardianship of Infants Acts, the Chancery Division, in view of its inherent jurisdiction with regard to wards of court, took charge of those wards and made a variety of orders such as seemed necessary and appropriate in the circumstances of each particular case. The effect of those orders was that from time to time the right of custody was, as it were, divided into various parts, as has become fairly common practice at the present time. In the Probate, Divorce and Admiralty Division there is a statutory power to make orders for custody and indeed it is from that statutory power that the right of the Probate, Divorce and Admiralty Division to make any order for custody stems. The statutory power now is set out in Section 26, sub-section (1) of the Matrimonial Causes Act of 1950, which provides as follows: "In any proceedings for divorce or nullity of marriage or judicial separation, the court may from time to time, either before or by or after the final decree, make such provision as appears just with respect to the custody, maintenance and education of the children, the marriage of whose parents is the subject of the proceedings, or, if it thinks fit, direct proper proceedings to be taken for placing the children under the protection of the Court". Itwill be noted that the material words there are "make such provision as appears just with respect to the custody, maintenance and education of the children", rather different from the words set out in Section 5 of the Guardianship of Infants Act. There can be no doubt that it has become common practice in the Probate, Divorce and Admiralty Division for orders for custody to be made on the basis that actual custody goes to one parent with a condition that the child shall not be taken out of the care and control of the other parent without the leave of the Court. That has been described as an entirely realistic order by Lord Denning in the case of Wakeham v. Wakeham (1954, 1 All England Reports, p. 434). The learned Judge, however, has taken the view in this case that the jurisdiction which is given to the Courts by Section 5 of the Act of 1886 is limited in its application to questions of custody and of access, access being one of the matters which is specifically mentioned, "Custody" means the whole of the custody and the Court cannot concern itself with dividing up in any way the custody which should be vested in one parent or the other, as the case may be, or attaching conditions to an order of custody which would in practice have the same effect. The learned Judge in his Judgment said this at page 8 of the transcripts "It seems to me that the word 'custody' in this context naturally denotes rights and duties in relation to an infant regarded as an indivisible whole, that is to say, the charge of the infant's person coupled with the right to determine the manner of its upbringing. The word is used in the sense known to the common law. In 1886 the notion of divided custody would I think have been relatively unfamiliar and if the intention of the Act had been to confer on the Court jurisdiction to divide up custody between more than one person, one would have expected to find quite different language. The words of Section 35 of the Matrimonial Causes Act, 1857, would have afforded a precedent. It will be observed that, if there were jurisdiction to dividecustody at all, there would be no logical reason for stopping at the simple division between what are now called 'legal custody' and 'care and control' respectively. The jurisdiction would extend to such matters as residence and education and thus would approximate in many respects to that exercised by this Division under its inherent jurisdiction. The construction which I have put upon Section 5 is, I think, confirmed by the circumstance that the jurisdiction under the Act is exercisable not only by the High Court but also by the County Courts, subsequently extended to the Magistrates' Courts. One would rather expect that jurisdiction to be a relatively summary matter and not to cover the more elaborate orders sometimes made in this Division. On this point see too In re E, an infant, Mr Justice Roxburgh at p. 26, in 1956, 1 Chancery Divisions: 'Therefore 1 do not think that it is a mere accident that the powers conferred under the Guardianship of Infants Acts are less extensive than the powers which the Chancery Division of the High Court of Justice enjoys by virtue of its inherent jurisdiction over infants'".
That is the view which the learned Judge has taken, but it is to be...
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