S. (B. D.) v S. (D. J.) (Children: Care and Control)
| Jurisdiction | England & Wales |
| Judgment Date | 21 October 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J1021-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 October 1975 |
[1975] EWCA Civ J1021-1
Lord Justice Stamp
Lord Justice Ormrod
Sir John Oennycuick
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The Family Division (Mr. Justice Hollings)
MR.C.S. WELCHMAN (instructed by Messrs. W.H. Davies and Co., agents for Messrs. Arnold Davies and Co.) appeared on behalf of the Appellant.
MR.J.HAINES (Instructed by Messrs. J. Tickle and Co., agents for Messrs. Yearwood & Griffiths) appeared on behalf of the Respondent.
I will ask Lord Justice Ormrod to give the first judgment.
This is an appeal by the mother from a judgment of Mr. Justice Hollings by which he transferred the custody of two children of the marriage, a boy called Allen aged eight and a girl called Deborah aged six, from the mother's custody to the father's custody. The mother now appeals, contending first that the learned judge applied the wrong principles in arriving at his decision, and in any event that his decision was wrong.
The facts can be stated fairly shortly. The father and mother were married in October, 1965. Allen was boar in June, 1967 and Deborah in June, 1969. At the time when the case came before the Court the father was aged thirty-five and the mother was aged twenty-eight. The marriage in fact had lasted for rather less than ten years because they finally separated in 1974. It had been an unhappy marriage on any view. In September, 1971 the wife left her husband suddenly, talking Deborah, who of course then was only a small child, with her and leaving the boy, who was also a small child, and went away with another man with whom she committed adultery. The father of course was placed in great difficulty with this small boy to look after and he took the boy to his mother at Bexhill-on-Sea and carried on with his work - he was an engineer at that time. The family had been living at Basingstoke so he had to commute between Bexhill and Basingstoko at weekends in order to carry on his work. He made those arrangements because he had no alternative at all. Three months later, in December, 1971, the wife came back with the little girl and they set up house together at Whitchurch in Hampshire as an attempt at reconciliation. The father left the boy with his mother atBexhill and went regularly to see him on his own. He showed some reluctance to bring the boy back home and in the circumstances that may well have been understandable.
Eventually, however, the whole family was reunited again and an attempt was made to re-establish this marriage. But it is clear from the evidence that it was never a success and was never really a marriage at all after that break in September. 1971.
The nest crisis occurred in the early part of 1974 when the wife embarked upon another quite brief adulterous association with some other man. That seems to have lasted between October and Christmas, 1973 and it came to a head with a row in March, 1974 when she made what has been described as a suicide attempt by cutting her wrists. I think in effect she succeeded in drawing a little blood on her wrists and no more. Then in April. 1974, she having at this time become interested in the Salvation Army, she met Mr. Faulds, who was himself interested in the Salvation Army. He was much older than she, being fifty-four and something like twenty-six years older than she. He had recently become widowed very soon after they met and he became friendly with this family. In April the wife had clearly formed an association - It is said not an adulterous one at that stage - with Mr. Faulds. The father realizing the position found It was impossible and on the 7th June, 1974, he left home and went to live with his mother at Bexhill, he agreeing at that time - and he really had no alternative - that the children should stay with his wife. They had at that time the advantage of a council house in Basingstoke and the children were going to ordinary schools. Mr. Faulds had a bungalow in the neighbourhood also and very shortly after the husband left - or maybe just before - the mother went and livedwith Mr. Faulds. She is now married to him. She was married to him on the 22nd March, 1975, the father having filed a petition in November, 1974 on the ground of adultery.
On the 31st May, 1977 the father himself remarried a Iady called Mrs. Longhurst who lives and works in Bexhill and who her self had been divorced and has a. little girl aged eight in her care.
The matter, so far as the children are concerned, seems to have run along relatively easily, the father seeing the children more or less as he wanted to, until the question of the mother's remarriage to Mr. Faulds came to his knowledge. He seems to have been, and one can understand it, rather upset by this decision. Mr. Faulds was a much older man and perhaps represented to the father something of a threat in one way or another. At any rate he took exception to this and began to take active steps to obtain custody of these two children. It is true that he had asked for custody in his petition.
About the same time Mr. Faulds and Mrs. Sayers took a decision which has had a considerable effect on this family. The decision was that Mr. Faulds should retire from his occupation as an engineer in Basingstoke and that they should sell the bungalow and move to Tregaron in mid-Wales. It is said to be quite close to Lampeter. It is a very small country town in mid-Wales which is a difficult place to get at - comparatively speaking. This immediately created from the point of view of the father two difficulties. The first was that the distance made access difficult for him, indeed almost impossible except on a very organized footing; and secondly It meant that the children had been taken completely away from the area in which they had grown up and in which he still had friends so that they were isolated from him and his connections from the timethey went to live in Wales. Mr. Fanlds apparently bought two cottages and a plot of land in Tregaron and he is at the moment involved in reconstructing these cottages and renovating them and hopes to build himself later a bungalow on the piece of land he has bought. He is not working at the moment though he hopes later to get same work, although Tregaron could not be regarded as a very hopeful place for an engineer to get employment. All in all the reasons given for moving to Tregaron by Mr. Faulde and the mother were not very specific and the learned Judge took the view and I will come back to this later that one of the motives behind the move to Tregaron was to get the children as far away as possible from the father.
The matter originally came on before a County Court Judge but it was perfectly clear from the father's affidavit that issues relating to conduct of the parties were going to be raised and consequently the case was referred by the County court Judge to a High Court Judge and so it came on before Mr. justice Boilings. Mr. Haines, who appears here before us as he did at the hearing before the learned Judge, has said that the main issue that was before the learned Judge was that the mother was too unstable a person to be entrusted with the care of these children. Instability is now one of the fashionable words round which custody oases tend to rotate.
The learned Judge had before him affidavits from the parties and from other people and he heard oral evidence from both the father and the mother and their respective spouses, and from the father's mother, and heard also the welfare officer orally. He came to the conclusion that the children should be transferred to the care of the father in Bexhill, the situation there being that he had married Mrs. Longhurst. she had a flat which was much too small to accommodate them. Theyhave now sold her flat and are In the process of acquiring a three bed roomed house in Bexhill to make a hope, hopefully for themselves, Mrs. Sayers' (as she now is} child and the two children of this marriage.
The learned Judge in his judgment having recited the facts as I have set out came to the kernel of the matter towards the end of the judgment when he said this, "Now, I have to consider the welfare of these two children. That consideration is the paramount, but not the only, consideration. In deciding matters of custody, I have to have regard especially to the welfare of the children, but I am also bound or entitled to have regard to the views of the in impeachable, or comparatively unimpeachable, parent. and I am bound to have some regard to the essential justice of the case., and he then went on to comment on the wife's adultery.
The second limb of the judgment follows almost Immediately in which he says this "In the circumstances to which I have already referred, the mother has elected to go with her new husband to a part of the world where the children are in strange country - true, nice open country but still a strange part of the world - to start a new life. I have already referred to the difficulties of access caused by the distance and the remoteness of the place where they live. It is hardly just, one might think, that the unimpeachable father of these children should be put in the position of being cut off from them In this way. Then he added that in view of the welfare officer's statement that the one occasion when access had taken place by the father to the children at Faster of this year the result had been very seriously upsetting to them, it led him to think that if the children remained living with the mother and Mr. Faulds the father would, be effectively cut off from thechildren for some time. It is right to say at this stage that there had been an exceedingly unpleasant incident at the Severn Bridge service area on the M.4 when the father, pursuant to the arrangements which...
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