Re W (A Minor) (Residence Order)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE,LORD JUSTICE WAITE |
| Judgment Date | 05 April 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0405-4 |
| Docket Number | Case No: 93/0168/F |
| Court | Court of Appeal (Civil Division) |
| Date | 05 April 1993 |
[1993] EWCA Civ J0405-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
The Law Courts,
Strand,
Royal Courts of Justice
(His Honour Judge O'Malley)
Before: Lord Justice Balcombe and Lord Justice Waite
Case No: 93/0168/F
MR I PEDDIE, QC and MISS J BOND (Instructed by Messrs Stephens & Scown, Exeter) appeared on behalf of the First and Second Appellant Intervenors
MR R ALFORD (instructed by Messrs Crosse & Crosse, Exeter and Messrs John Zukowski & Co., Exeter) appeared on behalf of the First and Second Respondents
(As Approved)
This is an appeal by the maternal grandparents from an order made by His Honour Judge O'Malley, sitting in the Exeter County Court on 12th January 1993, whereby in proceedings concerned with the residence of a seven year old boy, whom I will call Ben, the judge decided that he should reside with his father rather than with the maternal grandparents, with whom he had been residing for the previous three years, or thereabouts.
Ben was born on 20th March 1986, so that he is now seven, although he was not quite seven at the time of the hearing before the judge. At the time of his birth his parents were not married, but they married on 28th June 1986. Ben, in the first year or so of his life, lived with his parents, but they separated in May 1987, when the mother formed a relationship with a Mr Jack Brown. The mother and Ben continued to live in what had been the matrimonial home.
In June 1987, the mother and Ben went to live with Jack Brown, and shortly afterwards the father issued divorce proceedings. In January 1988, an order was made in those proceedings giving joint custody of Ben to his parents, but with care and control of Ben to the mother with reasonable access to the father. Decree absolute followed. In June 1988, the mother stopped access between the father and Ben, and he, in due course, issued an application for defined access.
Then the father married a Mrs Hawkins, the mother of three boys —Michael, David and Alan —who lived with her, and have since lived with her and Ben's father. Those boys are now aged 13, 12 and 11. The mother and Ben then moved to Princetown. I should say something about the geography here, because this is a Devon case. Whereas the father and Mrs Hawkins now live in Exeter, the maternal grandparents live at Princetown, which I suppose everybody knows is on the edge of Dartmoor. The maternal grandfather's job as a forester is very much concerned with the moor.
The mother then formed a liaison with somebody else. She has since had two daughters, and although she wishes to maintain some degree of contact with Ben, it is right that I should say that the mother has never really been a contender for Ben's care and no-one has ever looked upon it as a realistic possibility that the mother would have care of Ben. She has had various problems of her own into which I need not go, but she would like to maintain contact with Ben through the maternal grandparents. In fact, she left Ben with them in September 1989.
That prompted the father, who was not, I think, consulted about that, to issue an application to vary the earlier custody order so he could have care and control of Ben. The grandparents were given leave to intervene in the father's application and apply for custody themselves and the position became stabilised in that Ben remained with the grandparents and the father had access. At the time that Ben went to the grandparents, it was clear that he was a very disturbed little boy. It has been said he was emotionally deprived; he had been lacking in stimulation. He had certain physical problems —a hair lip and cleft palate —and altogether he was a very disturbed little boy, who would wake in the night, and who was looking for affection.
It must be said straightaway that the grandparents have obviously worked wonders with Ben. The court Welfare Officer's report so indicates, as does the school report. From being a disturbed little boy he has become a settled and happy little boy. It is much to the grandparents' credit that they encouraged Ben, initially against his wishes, to see his father regularly, not merely by persuading him, but also physically by providing practical arrangements for his transport and so on.
Ben started attending the local primary school in January 1991. He has settled down very well there. His first day there sounds as though it was fairly traumatic, but he settled there very well and that indicates to me, as indeed it did to the court Welfare Officer, and I think, rightly, to the judge, that the grandparents' care of Ben has been nothing but beneficial for him and he has now developed into a happy and stable little boy.
Initially, the father had accepted that he could not have Ben to come to live with himself and his new wife because there was the mother in the house as well, which meant there was a shortage of space. However, she has since moved out. The father then brought back before the court his application for residence with Ben, and it was that application that came before Judge O'Malley on 12th January of this year.
There were two Welfare Officer's reports by Mr Fellows, the Court Welfare Officer. One, the earlier one, which really dealt with the position back in July 1990 refers to the matters that I have mentioned previously, namely Ben's physical defects and also his delay in development, and shows how well he had been settled with his grandparents, even then. The second welfare report also exhibits an extremely favourable report from the school headmaster. The second report is dated 9th December 1992, therefore just about a month before the hearing before the judge, saying that Ben had developed extremely well. The welfare officer says this: (I am reading from paragraph 8 on page 92)
"In all my three contacts with Ben he made it unequivocally clear that he enjoyed all parts of his life as it is. He likes frequent visits to his father's home, but he definitely wishes to carry on living with his grandparents as at present."
He then he goes on to give his recommendation. He says this:
"It is clear that Ben wishes for his life to continue as at present. In my opinion, both homes have a lot to offer him. However, a permanent transition to his father's home has some imponderable risks attached. He would become the fourth boy in the pecking order of age, rather than an only child. He would find his own personal space severely restricted in the home. He would change schools, leaving a small institution, where he is well-known and liked. Not long ago, this was a timid, uncertain and unsettled lad. A change might take place smoothly, but all change is uncomfortable and this one would mean considerable adjustments on Ben's part."
His conclusion in paragraph 11:
"It would seem there are no great advantages to be obtained from a change of residence, and considerable psychological risks. It is recommended that the status quo be maintained."
The judge was, therefore, faced with fairly positive recommendations from the Court Welfare Officer, Ben's own wishes as expressed to the Court Welfare Officer and the position of the status quo. However, of course, there was the position of the contestants, not between Ben's parents —not his mother on the one side and his father on the other —but it was between his father on the one side and his maternal grandparents on the other.
The maternal grandparents are not, by some standards, elderly people at all; they are in their late forties. Therefore, the age gap, which sometimes becomes very material in this type of case, between them and the child is not so significant.
So far as the father's household is concerned, the picture presented is of an urban council house, as opposed to the rural situation of the grandparents. Ben, of course, was the only child in his grandparents' household, but in his father's house he would be the youngest of four. There was the father, his wife, Ben's stepmother, and her three boys, whom I have already mentioned. The picture presented by them in their statements —them being the father and his wife —to the court was of a happy household; that both father and mother at that time went out to work as contract cleaners. The boys were all at school. They welcomed Ben when he came to stay with them, he enjoyed them.
The father in his statement indicated, and this is a statement made in September 1992, not long before the hearing, that because of certain physical health problems he was planning to stop working and would be available whole time to look after Ben and his stepbrothers; his wife would be the breadwinner of the family. By the time the case came before the judge that situation had changed. The father was, in his oral evidence, indicating that he would be going out to work and that his wife would be staying back to look after the children.
In any event, the picture presented to the judge was of two homes, both of which had advantages and possible disadvantages to offer to Ben. I have already mentioned the status quo argument, the possible risk there was to changing Ben's home, and all these matters were before the judge, although it is fair to say that the change of heart that the father and the stepmother had in relation to their proposed working arrangements was not, as I understand it, relied upon to any significant degree in the argument before the judge as to what course he should take.
The judge came to give his judgment. He described the matter as a difficult decision. He pointed out that the grandparents had brought up Ben for the last three and a half years and stated that...
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