Riley v Riley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE NOURSE |
| Judgment Date | 19 May 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0519-1 |
| Docket Number | 86/0450 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 1986 |
[1986] EWCA Civ J0519-1
Lord Justice May
and
Lord Justice Nourse
86/0450
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NOTTINGHAM COUNTY COURT
(Mr. Recorder Appleby, Q.C.)
Royal Courts of Justice
MRS. VIVIEN BUCHANAN (instructed by Messrs Clayton, Mott & Son, Nottingham) appeared on behalf of the Appellant/Applicant.
MISS VICTORIA HODGES (instructed by Messrs Hawley & Rodgers, Nottingham) appeared on behalf of the Respondent/Respondent.
This is an appeal from an order of Mr. Recorder Appleby Q.C. dated 7th March 1986 in the Nottingham County Court. The learned Recorder had before him an application by the party (to whom I shall hereafter refer as "the mother") for an order to vary an earlier order of 23rd January 1984 which granted custody of the child Jasmine, who was born on 21st September 1977, jointly to her and to the child's father so that she might be granted sole custody of the child, with reasonable access to the father. The learned Recorder dismissed that application and it is from that dismissal that the mother now appeals.
The facts of the case can be dealt with shortly. The mother and father were married on 29th March 1979 and as I have said, Jasmine was born to them some 18 months before. Unfortunately the marriage did not prosper and after divorce proceedings a decree absolute was made on 30th March 1984. The mother in her proposals for the future of the child at the time of the divorce proceedings suggested the arrangement which was the subject of the order of 23rd January 1984 and that was approved by His Honour Judge Heald, who was dealing with the divorce proceedings. Judge Heald, by the relevant certificate, declared that he was satisfied that the proposals for Jasmine were satisfactory.
What was proposed, and what has been the situation ever since the parties separated, now some five years or more, is that Jasmine, now rising nine years, has spent one week with her mother and one week with her father. The two homes, we are told, are about a mile apart and Jasmine attends a school which is somewhere between the two homes.
The mother said in her evidence before the learned Recorder that she has been finding the situation more and more difficult and that it was for that reason that she felt the time had come for the order to be varied so that Jasmine could be based with her, but of course to have reasonable access to her father.
Let it be said at the outset that, as the learned Recorder found, both parents are intelligent and sensible and they highly impressed the learned Recorder. If there were any choice to be made between the approach of either, the learned Recorder felt that that of the mother had perhaps the greater balance, but it is quite clear that he did not think that any substantial reliance could be placed upon that.
In his judgment the learned Recorder expressed the view that, had he been looking at the matter de novo, he would not have made the order bringing about the situation which has in fact obtained for the last five years. He said that he had grave doubts about the case when it came before him, and that it was not necessarily in the best interests of the child to continue with the present arrangements, and he in effect invited the aggrieved party to bring the matter before this court. Nevertheless, although he did have grave doubts, he thought that the present arrangement should continue. The Court Welfare Officer was of the view that the arrangements were satisfactory. There was "no evidence of any risk to the child's welfare", and he ended his judgment in this way: "Although I have great reservations I do not think it is right for this Court to alter the situation where the arrangements have been satisfactory to date and where the Welfare Officer makes no clear recommendation".
Mrs. Buchanan, who has appeared for the appellant mother, accepts that the decision of the learned Recorder below was made in the exercise of his discretion and that accordingly on general principles, particularly those most recently set out in the well-known decision of their Lordships' House in G v. G [1985] 1 WLR 647 this court...
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