Stephenson v Stephenson
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE WOOD |
| Judgment Date | 12 April 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0412-3 |
| Docket Number | 84/0172 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 April 1984 |
[1984] EWCA Civ J0412-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(HIS HONOUR JUDGE JOHN EDWARDS)
Royal Courts of Justice
Lord Justice Fox
Mr. Justice Wood
84/0172
MR. Q. J. IWI (Instructed by Messrs. Appleby, Hope & Matthews, Normanby, Cleveland) appeared for the Appellant Father.
MR. R. G. WOOD (Instructed by Messrs. McGoldrick & Co.) appeared for the Respondent Mother.
This is the judgment of the court. This is an appeal from the order of His Honour Judge Edwards given on 27th January this year when he was dealing with the custody and the future of a little girl, Sarah, born on 15th February 1981. The petitioner in the divorce proceedings is her mother and the respondent is her father. By his order the learned judge gave interim care and control of Sarah to her mother, the petitioner, and granted reasonable access to her father. We shall refer to them hereafter as "mother" and "father". The father now appeals to this court asking that the decision of the learned judge should be reversed and that care and control should be granted to him. Although the order was declared to be an interim order, in fact it was, as is agreed by all, a decision which was a final decision for the future of this little girl.
The father now lives in a house in Middlesbrough which we will call "the Middlesbrough house". It is a three-bedroomed house owned by his parents who live a short distance away. He is aged 27 and is living there with a lady to whom we will refer as "Miss K.", now aged 23, whom he wishes to marry as soon as the decree absolute has been granted in this suit. The mother, who is aged 23, now lives with a "Mr. W." aged 25, in a two-bedroomed council flat in Lewisham, London. The mother's parents and some of Mr. W.'s family are still in Middlesbrough.
The basic chronology of this case can be stated quite shortly. The mother and father were married on 3rd March 1979 and thereafter lived at the Middlesbrough house. Sarah was born, as we have said, on 16th February 1981. On 25th September 1981, when Sarah was seven months old, the mother left home, leaving Sarah with her father. For some two weeks her father looked after Sarah by himself, taking time off from work, but thereafter, from about mid-October, she was looked after by his married sister who lived nearby. In about November 1981 the mother moved to London and, in the New Year, took up with Mr. W. In March 1982 Miss K. moved into the matrimonial home in Middlesbrough, giving up her full-time employment and thereafter looking after Sarah "as her mother". This she did until 16th December 1983. During that period the mother had access to Sarah on some four to six occasions in all.
On 5th December 1982 the mother gave birth to a son, Peter, of whom Mr. W. is the father, and Peter lives with them in Lewisham.
During the spring and summer of 1983 correspondence took place between the solicitors acting for the mother and the father in divorce proceedings initiated by the mother, as a result of which an agreement was reached as to financial matters and, more importantly, as to the custody, care and control of Sarah. We do not think that we need read the correspondence because the agreement about Sarah is summarised in a draft consent order which was sent by the mother's solicitors to the father's solicitors and endorsed by them with their consent.
That document reads as follows:-
"An Order by consent that:
(i) Care and custody of the child of the family, Sarah Jane Stephenson, be granted to the petitioner and respondent and that care and control of the said child be granted to the respondent;
(ii) The petitioner to have reasonable access to the said child, such access to include staying access of four weeks in each year to consist of one period of a fortnight and two separate periods of one week each;
(iii) There be no Order as to costs save that there be Legal Aid taxation of the petitioner's costs and of the the Respondent's costs."
That consent order has never been presented to the Registry and the order has not been drawn up. The father naturally looks upon the existence of that order as extremely important in Sarah's future.
On Thursday 15th December 1983 the mother telephoned, seeking access to Sarah on the following day. This was agreed, and on Friday 16th at 10.00 a.m. Sarah was handed over for access. It was arranged that at 5.30 p.m. that evening the father should pick her up from the same address. He arrived to find that Sarah and her mother were absent. They were still absent at about 10 o'clock that night and eventually the police traced them to London.
The father at once consulted solicitors and an application dated 19th December 1983 was made for the return of Sarah to her father in Middlesbrough. This application was heard on 20th December 1983 by His Honour Judge Edwards and he ordered the return of Sarah to her father. By way of concession on an ex parte application the father agreed that Sarah could stay with her mother over Christmas; the learned judge accepted this and ordered that Sarah should be returned by 12 noon on 3rd January 1984. He further directed that thereafter she should remain in the interim care and control of her father until further order.
Sarah was not in fact handed over and an application was made and heard inter partes on 14th January this year before the same learned judge, when evidence was adduced that a doctor—a general practitioner in Lewisham—had indicated that Sarah should not be moved from Lewisham until she had been seen by a paediatrician. This advice was given upon the basis that Sarah was being neglected and had suffered physical harm at the hands of her father and Miss K. Despite misgivings, the learned judge allowed Sarah to stay in London although at that time he was inclined to think (rightly in our view) that she ought to have gone straight back to Middlesbrough. He says this in his judgment at page 5:
"I bowed to that view with misgivings, being inclined to think that Sara ought to have gone straight back to Middlesbrough with her father…"
Let us deal at once with the allegations that were being made on 14th January 1984. On Thursday 15th December 1983, Sarah had taken a tumble when out of the house and had fallen and bruised her face, and possibly damaged her teeth. The father and Miss K. had very properly called in the General Practitioner and evidence was adduced that nothing was seriously awry and that this was a fall which children can have from time to time. The mother alleged that, when she saw Sarah, her clothes were in rags and that she was suffering physically. She did not take her to a doctor in Middlesbrough but came to London and took her to the evening surgery at Lewisham. This was at about 5.30 p.m. and it was at that time that Sarah was due to have been handed back to her father in Middlesbrough, which seems to indicate that the mother must have left Middlesbrough by about mid-day. Sarah was subsequently seen in London by a paediatrician and all the evidence was before the learned judge, who disposed of the matter and found that there was no criticism of the father or Miss K. He says this at page 5 of his judgment, and we quote:
"…father, and for that matter Karen Watson, are totally absolved from any blame in regard to the injury or the rash that Sara had. I reject the suggestion that Sara cowered away (which was the mother's evidence) at Karen Watson on the 16th. I think that was a misunderstanding. There is no reproach to father's side, in all this.
"On the other hand, now we see it all, there is quite an end to any lasting reproach against the mother. I think she acted probably wrongheadedly, but understandably, thinking that her child had possibly been deliberately injured, wrongly assessing in my view the child's clothing situation, and perhaps too readily thinking that the child was not getting on well with the surrogate mother, Karen Watson."
Thus, we are able to leave out of consideration any question of the medical issues. The learned judge did indicate that it was wrong for a mother to "kidnap her little daughter even for the best of motives." It is, nevertheless, true that the allegations made by the mother, including those concerning the clothes, were held to be wholly unfounded.
The learned judge in the present case was exercising a discretionary jurisdiction involving a minor, and this court will only interfere if it is satisfied that he has erred in principle and misdirected himself, for instance by taking into account some factor which he should not have taken into account or by failing to take into account some factor which he ought to have taken into account, or that he was plainly wrong.
Mr. Iwi for the appellant father has made a number of criticisms of the judgment in the court below. We need only refer to some of those criticisms as we are satisfied that the learned judge did misdirect himself and that it is open to this court to review the whole of the evidence and to exercise its own discretion in this matter.
In the first place, it is said that the learned judge failed to take into account the following matters which he ought to have taken into account:
(a) He failed to consider the totality of the circumstances at the home in Middlesbrough and restricted his consideration to the material advantages. At page 8C the learned judge says this when speaking of the welfare officer's evidence:
"…that he really prefers the Middlesbrough home on what one could fairly call I think material grounds. It is a better home. I quite see...
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