Renate Charlotte Fischer (Petitioner) Peter Frank Hermann Fischer (Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE HARMAN,LORD JUSTICE DIPLOCK |
| Judgment Date | 20 December 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J1220-2 |
| Court | Court of Appeal |
| Docket Number | 1965. No. 11015 |
| Date | 20 December 1966 |
[1966] EWCA Civ J1220-2
In The Supreme Court of Judicature
Court of Appeal
Civil Division.
Appeal from Order of STIRLING J. dated 2nd December, 1966.
Revised.
Lord Justice Willmer,
Lord Justice Harman and
Lord Justice Diplock.
THE APPELLANT (Respondent) appeared in person.
Mr LOUIS J. BELCOURT (instructed by Messrs Somers & Laity, Ealing) appeared on behalf of the Respondent (Petitioner).
This is an appeal from an order made by Mr Justice Stirling in chambers on the 2nd December 1966 in relation to three children of parents who have been divorced. The question to be decided is whether the children's mother, who obtained a decree of divorce on the ground of her husband's cruelty, should be allowed to take these children permanently out of the jurisdiction to reside with her in Germany.
Both parents are of German origin, and both are German nationals. They were married in Germany in 1951. They came to this country in 1956 when the father, who is a journalist, obtained an appointment with the British Broadcasting Corporation. They established a matrimonial home in the London area, and the learned judge, Mr Justice Stirling, who also tried the divorce suit, satisfied himself that the father had acquired a domicile of choicein this country. The three children with whom we are concerned are a girl now fourteen years of age, a boy of twelve and a second girl of ten, all of whom were born in Germany.
The mother's petition for divorce was presented in October 1964 at a time when the parties were still living in the matrimonial home. Rather unfortunately, I think, they continued to live in the same house until shortly before the trial of the suit took place in June 1965. There is no doubt that during the months which elapsed between the date of the petition and the trial of the suit there was a good deal of friction and quarrelling between the parties. In the course of this it became clear that all three children were taking sides with their mother, and all three became extremely hostile to their father. It was part of the father's case at the trial that this was due to deliberate and conscious effort on the part of the mother, who did her best, he alleged, to alienate the children from their father. That suggestion, however, was decisively rejected by Mr Justice Stirling on the trial of the suit, and when an appeal was brought to this court from his judgment we did not feel justified in interfering with the learned judge's finding in that respect. I may perhaps quote a few sentences from what I said myself. Having referred to the husband's allegation that the wife had deliberately set out to poison the minds of the children, I went on to say: "That, of course, is a very unpleasant charge. It is a charge which the learned judge might well have accepted as proved. For there is no doubt that there was a sudden change in the attitude of the children in the autumn of 1964, and that this change followed close upon a period when the wife had taken the children away for a holiday away from the husband. It would have been very easy for the judge to draw the inference that the wife had indeed set out to poison the minds of the children against their father. But in point of fact the learned judge did not draw that inference. He came to the conclusion that the wife had not been guilty of any such behaviour. After all, it may well be thought to be the almost inevitable consequence of a dispute like this between husband and wife that thechildren of the marriage will take sides with one party against the other"; and I said that the matter was very much one for the learned judge, who saw the parties, and that we could not interfere with his finding.
At the conclusion of his judgment on the trial of the divorce suit the judge expressed the view that the father ought to be accorded generous facilities for access to the children, so as to give him a chance of re-establishing his relations with them. But in point of fact nothing significant appears to have been done; and when the matter came before us on appeal (which was not until July of the present year) the father had not in fact seen any of his children for over a year. In those circumstances we, too, expressed the view that facilities for access should be afforded to the father.
Following that expression of view application was in fact made in August last to the Vacation Court. An order was then made by Mr Justice Cusack that the father should have access to the children, in the first instance individually, to be followed, if successful, by access to all three of them together. Following that order the father did in fact have access to the youngest child, who was sent to see him. Of the three she was, I think, the least affected by hostility towards her father. He made a note of what took place when the child came to see him. I think it is clear that the child was somewhat difficult, and no one pretends that the period of access to this child was an unqualified success, but at least the father did have access to this particular child. The next child that he saw was the boy, who was also sent to see his father, but unhappily this attempt to afford access ended in something of a fiasco; the boy behaved in a thoroughly truculent and rude manners and simply refused to go with his father. The result was something in the nature of a scene in the street, which at least attracted the attention of some bystanders. In effect the father never really had access at all, for the reason that the boy simply refused to have anything to do with him. Since then I gather there have been no further attempts to give the father access to hischildren. I think that it is probably recognised by both parties that some different arrangement would have to be made if the father is to have the least chance of recapturing the affection of his children.
I have related that history because it constitutes the context in which the application is now made by the mother to remove the children to Germany. The result of that, if it takes place, must be, to say the least of it, that it will become even more difficult for the father to obtain such access to his children as will enable him to make friends with them again. The immediate cause of the mother's application lies in the fact of her father's death in Germany, which took place in September of this year. It appears that he left his estate, which includes a house near Bremen where he had been residing, equally between the mother of these children and her brother. I am bound to say that the exact position In German law with regard to the mother's father's estate is rather obscure. But at least the house exists. It appears to be a substantial house, which was occupied by...
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