Spindlow v Spindlow
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAMP,LORD JUSTICE ORMROD,LORD JUSTICE LAWTON |
| Judgment Date | 16 May 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0516-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 May 1978 |
[1978] EWCA Civ J0516-3
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
From: Judge Stock (Basingstoke County Court)
Lord Justice Stamp
Lord Justice Lawton and
Lord Justice Ormrod
MR. R. GORDON (instructed by Messrs. Lamb, Brooks & Bullock, Basingstoke appeared on behalf of the Appellant (Respondent)
MR. RICHARD CRABB (instructed by Messrs. Morris & Hodges, Basingstoke) appeared on behalf of the Respondent (Applicant).
I will ask Lord Justice Ormrod to deliver the first judgment.
This is an appeal from an Order which was made by his Honour Judge Stock on 14 April of this year at Basingstoke County Court under the Domestic Violence and Matrimonial Proceedings Act 1976. Under his Order, he ordered the Appellant, Mr. Spindlow, to leave what had been the Joint home of himself and a lady known as Mrs. Spindler and two children at No.1 Renoir Close, Basingstoke. The learned judge had an affidavit before him of Mrs Spindler and heard oral evidence fromMr Spindlow and Mrs Spindlow, and he gave a fairly detailed judgment. He concluded, first, that it was a difficult case; and he noted it was a case in which there had not been any considerable physical violence. There was one occasion when Mr Spindlow pushed Mrs Spindlow on to a settee. The judge also said it was alleged that he shouted at her and said he would smack the child Nicola, who was a child of Mrs Spindlow aged four, I think, and not of Mr. Spindlow. The learned judge did not think he had shown any violence or shown ill will to that child. It was said, also, he was an extremely jealous man. The judge thought that that allegation had been exaggerated to some extent, but Mr Spindlow himself agreed that he was a jealous character.
On 18 March Mrs Spindlow left, with the children, to live with friends in very congested conditions, which could not possibly continue for any length of time. She and her two children were sharing one room in a friend's house, and the house obviously was over-crowded in those circumstances. It is true that Mr Spindlow himself had no immediately alternative accommodation. It is possible he might have been able to stay with his mother for a time, or find other temporary accommodation.
Mrs Spindlow took the line that she was not on any account prepared to return to live with Mr Spindlow again, nor was she prepared to go back to the house if he were in it. She said, rather than that she would go to the local authority and put the children into care. The learned judge thought that she meant it. He said:
"I have to consider the effect if I do not make the order. Either the children will be put in care or she will go back to 1 Renoir Close in spite of what is said.
"Although the respondent is in my view not guilty of any great violence, I think, if she did go back, the pressures of life are extremely serious and make a severe impact on these children. I do not think it is practicable for these four to live under one roof. They agree the relationship is at an end. She says he shouts at the children; I think that is exaggerated.
"If the children lived under these conditions tension would immediately build up and do them harm.
"A very difficult case - if the respondent is net excluded either the children would be put in care - not in their interest - or alternatively an attempt would be made to resume cohabitation with a separate existence.
"I do not think that in practice living separate lives" -that is, in the same house -
-"would work. It would only do the children harm. Mr. Spindlow suggests that they should come back and live separately. This would not be permitted physically and Mrs. Spindlow is not prepared to try".
He then pointed out again that this was not a case of a battered wife or battered children. In the circumstances he regarded it as in the interests of the children that he should make an order excluding Mr Spindlow from the house, and he thought that the most fair, just, reasonable and practicable solution he could come to.
The short facts are these. These parties started to live together in October 1976. Mrs Spindlow has one child by her former marriage called Nicola, who was born in October 1974, and has another child by Mr Spindlow who was born on 5 January 1977. As a result of their forming a family consisting of themselves and Nicola they were allotted, by the Council, this house 1, Renoir Close. It is perfectly obvious that the basis upon which the Council allotted them this accommodation was that they had one child, and another was on the way. For whatever reason, in March of this year the relationship between them came to an end. Therefore the problem arises as to what is to be done so far as living arrangements are concerned in the new situation. Mr Gordon, who has said everything that could be said on behalf of the Appellant in this case, has argued that this is not the class of case which was contemplated by Parliament when it passed the Domestic Violence and Matrimonial Proceedings Act 1976, sect. 1. That is the section, which has been the subject of a great deal of litigation, which finally reached the House of Lords in Davis v. Johnson (1978 2 WLR 553). But before going to the report of that case in the House of Lords it is as well to look at the Act itself. In the first place Mr Gordon relies on the short title of the Act, where the word "Violence" appears, but as was pointed out by Lord Justice Lawton in argument, the long title does not contain any reference to violence at all. When one comes to look at the two sections, sects.1 and 2, one finds that sect.1 gives the County Court an unfettered discretion to grant an injunction containing one or more of the following provisions:
(a) a provision restraining the other party to the marriage from molesting the applicant;(b) a provision restraining the other party from molesting a child living with the applicant;
(c) a provision excluding the other party from the matrimonial home or a part of the matrimonial home or from a specified area in which the matrimonial home is included", and it is para.(c) that is relevant to this case.
Then subsect.2 provides:
"(2) Subsect.1 above shall apply to a man and a woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage and any reference to the matrimonial home shall be construed accordingly".
Then when one looks at sect.2, which deals with the attachment to an injunction of a power of arrest, one finds, at the end of subsect.1, that that subsection is qualified by the words:
-"if he" - that is, the judge - "is satisfied that the other party has caused actual bodily harm to the applicant or, as the case may be, to the child concerned and considers that he is likely to do so again".
So that sect.2 is expressly qualified by a reference to violence. Sect.1 is not so qualified. So that it would be, on ordinary principles, surprising if it were right to construe sect.1 as if it, too, were subject to a similar qualification in relation to violence. That is the substantial point on which Mr. Gordon has to rely in support of this appeal: he has to say that sect.1 should be read as though it were subject to some qualifying words importing violence, or some adverse conduct of that kind.
He supports his argument by reference to the speeches in Davis v. Johnson. It is true that there are passages, particularly in Lord Salmond's speech, which indicate that in Lord Salmond's view violence is an essential factor in the jurisdiction under this Act; but the other speeches contain very little to support that, and it is essential to bear in mind that their Lordships were not considering the limits of the jurisdiction of the County Court to make an order excluding one party from the home. They were concerned with "quite other things, and the fact that various observations were made by way of illustration of the sort of things that might or might not lead to an order under sect. I does not conclude the matter at all. This is the first time since Davis v. Johnson that this court has had to interpret the section in the light of that decision of the House of Lords, but without, of course, being bound by the dicta that appear there.
One thing that is plain, in my judgment, as a result of Davis v. Johnson,...
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Richards v Richards
...is being invoked. An illustration of the danger of ignoring the statute law can be found in the way in which the Court of Appeal, in Spindlow v. Spindlow [1979] Fam. 52, handled an application under section 1 of the Domestic Violence Act. It must be unlikely that the section, though it off......
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...of the 1976 Act without proof of violence or serious molestation, as put forward by Lord Meston, seems to me unsustainable. In Spindlow (1979) Fam. 52, this court (Stamp, Lawton and Ormrod LJJ) rejected an argument substantially to that effect based upon passages in the speeches of their Lo......
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