Re W (Wardship: Discharge: Publicity)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE,LORD JUSTICE WAITE,LORD JUSTICE HOBHOUSE |
| Judgment Date | 08 March 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0308-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 March 1995 |
[1995] EWCA Civ J0308-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
(Miss M Hogg Qc (Sitting as Deputy High Court Judge)
Before: Lord Justice Balcombe Lord Justice Waite -and- Lord Justice Hobhouse
MS J HOYAL (Instructed by Moss Beachley & Mullen, London W1H 1HA) appeared on behalf of the Appellant/Plaintiff.
MS M COVER (Instructed by Darlington & Parkinson, Ealing, London W5 1QX) appeared on behalf of the Respondent/1st Defendant.
MR R SPON-SMITH (Instructed by the Official Solicitor to the Supreme Court, London WC2A 1DD.
Wednesday, 8th March 1995
These appeals relate to the wardship of four brothers: P aged 15, PE aged 13, B aged 11 1/2 and M aged 10. They are the sons of R W, now in his early fifties, and his wife L, who is forty. She is by profession a school teacher; the father has had a variety of occupations but has had no regular work since 1985 and has for long been much concerned with the physical care of the boys. The marriage was in difficulty by April 1990, when the mother bought the house next door to the matrimonial home and moved into it with the four boys. During 1991 PE began to sleep in his father's home; he has been described by Connell, J., who heard the main wardship matter over five days in November 1992 as "a determined and independent young man who has believed for some time that his mother is prejudiced against him."
On 5 December 1991 the mother left her house, together with the four boys, and went to live in a women's refuge. She alleged that the reason for this move was that the father had assaulted her. She had not told the father of her intention to move, nor did she tell him where she had taken the boys. There followed cross ex parte applications by the parents: the mother in the county court for a non-molestation injunction, to be followed by divorce proceedings; the father in the High Court in wardship, for an injunction to restrain the mother from taking the children out of the jurisdiction and to return them to their former home. It is not now necessary to describe in detail the exact progress of the subsequent court proceedings. For present purposes it is sufficient to say that the father's wardship action became the forum for the determination of the issues concerning the boys and that by early January 1992 the mother (still living in the women's refuge) had interim care and control of the boys with supervised visiting access to the father. The Official Solicitor was then appointed guardian ad litem of the boys. By April 1992 all four boys who had previously been reluctant to make a choice between their parents, were expressing a clear preference to live with the father, and their behaviour with their mother was becoming out of her control. During the summer of 1992 they all, either together or in different combinations, ran away from the mother to the father, on a number of occasions, and were all (but in particular the elder two) alleging that the mother had assaulted them. By the end of August 1992 it had become plain that the mother could not manage the boys, and on 27 August 1992 the district judge made an order by consent to the effect that the boys should stay with the father but with access to the mother. However even access to the mother did not work, as by then the boys were saying that they did not wish to see her.
This was the position when the matter came before Connell, J. in November 1992. I now set out certain passages from his judgment of 12 November 1992:
"In the course of the hearing and at the request of all parties I saw the children myself. I saw them individually. Each told me in clear terms that he wished to live with his father. Each complained about the mother in one way or another; their suggestions varied and included complaints that she had been violent to them; that she might kidnap them and take them to Canada; that she had lied to them; and that she was unfair to PE. None was enthusiastic about access, although each agreed that he would do his best to make access work if I directed that there should be access….. there can be no doubt but that the views of these children are a most important feature in this case.
The father says that care and control of the children should be committed to him and that once this decision has been taken, he believes that it will be easier to persuade the children towards contact with their mother……
It would, I think, be fair to describe the father's background as 'unusual'. It is certainly the case that he is particularly interested in individual rights and by what he sees as justice and it is clear that he is well used to challenging authority…..
I also accept the welfare officer's observation that this is a loving father who is devoted to his children. That said, there are features of the father's personality and conduct that cause me significant concern…..
This father, in my judgment, has fanned the flames of these children's concerns rather than playing them down and trying to persuade the children to think of the future and not the past. He has been so anxious to obtain care and control of them and to have been seen to have prevailed over this mother that he has allowed himself to be carried away by the contest and he has not lent his heart to praising the mother, or to seeking to retain or to restore good relations between her and the children.
Next, in my judgment, this father is far too prepared to challenge everyone and anyone who might be seen as a rival to him in his wish to direct and control the young lives of his sons…..
The result of this father's conduct is that these boys express strong and clear wishes. I accept that they are their true wishes at this time, but the fact is that their complaints against their mother are significantly exaggerated, have been over-investigated and discussed and have brought about a situation as between mother and sons which is certainly not in the best interests of the boys….."
The judge then referred to the fact that Dr. Boothroyd-Brooks, the psychiatrist instructed by the Official Solicitor, had described the mother as "the weak mother". The judge continued:-
"I concur with that description, but only to this extent: she has been shown to be less obdurate and less aggressive than this father and to be quite unable to control these four boys if her wishes do not coincide with theirs…..
The mother's counsel says that the children are likely to suffer significant harm if they continue living with their father and continue to be brought up with his prejudices and ideology uppermost in their minds. I agree that there is a risk of this happening, but in my judgment the harm that would be caused to these children by moving any of them at the present time from their father's home would be much greater than the harm that they are likely to suffer if they continue living with the father. This may not always be the case. It is vital that better relations between the mother and the children are restored. The father has the main role to play in this. He must tell the children firmly and forcefully, where necessary, that they must look to the future and not harp on the past. He must try to cure them of the 'yes, but….' syndrome by which they are presently beset. He must teach them to respect not criticise their mother. He must insist that contact takes place in accordance with my orders and should the matter be restored to me I will judge him as a parent in large measure on the success or otherwise of such contact. If it does not work other courses of action might have to be pursued.
In the light of those observations, it is apparent that in my judgment the best interests of these four boys would be served by committing their care and control to the father. that is the order that I propose to make.
I pass then to consider the question of contact. I was very pleased to hear yesterday of some improvement in the attitude of the boys to their mother, apparently immediately after they had seen me. In addition, I was very pleased to hear that the father had told the boys that they must behave better towards their mother. It is in my view important that advantage should be taken of what may only be some marginal improvement, but nonetheless any improvement in the relationship between the boys and their mother is to be welcomed….."
The Order that the judge made was to continue the wardship, to give care and control of the boys to the father, to make detailed provision for access by the mother and to direct a review in June 1993 unless otherwise agreed. Connell, J. reserved the matter to himself if available. He also made a family assistance order under section 16(4) of the Children Act 1989.
Unfortunately matters proceeded far from smoothly. In January 1993 the mother discovered that the father was using his home, which was also the home of the boys, as a "refuge for men". She applied for an injunction and on 29 January 1993, before Booth, J., the father gave an undertaking to the court not to use his house as a refuge for men, or for any similar purpose, at any time when the property was occupied by the boys as their home.
In April 1993 the father, without notice to anyone, changed the boys' school. On 4 May 1993 he was ordered by Connell, J. to return the boys to their original school; that did not happen. However on 12 May 1993 there was a consent order that the boys should remain at their new school. They are still there.
Also on 12 May 1993 all four boys made applications to terminate the appointment of the Official Solicitor as their guardian ad litem and...
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