W v W (Custody of Child)
| Jurisdiction | England & Wales |
| Judgment Date | 1988 |
| Date | 1988 |
| Court | Court of Appeal (Civil Division) |
PURCHAS, LJ AND SIR DENYS BUCKLEY
Child – custody – both parents seeking custody of child aged four – both parents working – paternal grandmother acting as child minder from shortly after child's birth – this arrangement unable to continue if mother given custody – welfare report recommending custody to mother – Judge minded not to follow recommendation in welfare report – no adequate reasons given – whether Judge justified in not following recommendation – whether Judge right not to allow welfare officers to be questioned – whether Judge had properly considered all the relevant facts.
The parties were married in June 1980. There was one child of the family, a boy, who was born in November 1983. Both parents were working. The matrimonial home was within a few minutes walk of the paternal grandmother's home and about a half-hour's walk of the maternal grandmother's home. After the child was born, the paternal grandmother looked after him while the parents were at work. The marriage broke down in 1987. The father used violence against the mother. On 23 August 1987 she left, taking the child with her, and went to the maternal grandmother's home. On 2 October 1987, the mother and child returned to the matrimonial home. Thereafter the parents led separate lives. The paternal grandmother acted as child-minder when the parents were at work. Divorce proceedings were commenced on 9 October and a decree nisi was pronounced on 27 November 1987. The mother sought orders that the father should not molest or assault her or the child and that he should vacate the matrimonial home. These were adjourned on undertakings from the father. Both parents sought custody of the child and a welfare report was requested. There were further separations in November 1987 and from January to March 1988 when the mother went to live with her parents, leaving the child with the father. During that period the child was looked after by the father and the paternal grandmother. There was substantial access, including staying access, to the mother. The custody applications were heard on 19 and 20 April 1988. Both parents proposed to continue working. If the father had care and control he proposed that the paternal grandmother would continue to look after the child while he was at work. If the mother had care and control, she had arranged for a child-minder to care for the child while she was at work. After the divorce proceedings were commenced, the father and members of his family showed hostility towards the wife, and there was evidence of acts causing harassment to the mother and the maternal grandmother such as fire engines, minicabs, and take-away meals arriving as a result of hoax calls. The welfare report, which was prepared by two welfare officers, stated that both parents were capable of giving the child a consistent and caring
[1988] FCR 640 at 641
upbringing and that the child related well to both parents. The report went on to give an assessment of both parents. So far as the father was concerned, the welfare officers found that he was capable of providing a good home but found him bitter about the situation and, with members of his family, showing hostility towards the mother. They expressed the opinion that implicit in his application for custody was the notion that as he was the "wronged" party, he deserved to be granted custody of the child as an issue of "justice". So far as the mother was concerned, the welfare report described her in ways which indicated that she was an estimable mother. No suggestions of hostility of the wrong kind of emotion were made against her. The views of the welfare officers were that she was capable of providing a satisfactory and well disciplined environment in which the child could be brought up. They stated in the report that the mother had expressed a greater understanding of the likely future needs of the child and that she had perhaps had a greater continuity, over the period of the child's life, for the nurturing and caring of him. They recommended that custody be given to the mother.
The Judge took the view that the harassment of the mother and the hostility shown by the father were the ordinary kinds of incidents which occurred on the breakdown of the marriage. He stated that the fundamental issue was whether the child was to be looked after by the paternal grandmother as she had looked after him on a daily basis since he was three months old and she and the boy were mutually fond of one another, or whether this relationship should be superseded by the child being cared for by a child-minder who was a virtual stranger to him. Although the welfare officers were in court, the Judge indicated that he would only be interested in hearing evidence from them if they had changed their minds. He allowed them to be called but only so that he could invite them to indicate whether they had anything to add to their reports. They had not, and the Judge refused to allow counsel to ask any questions. The Judge rejected the recommendation of the welfare officers and gave custody of the child to the father.
The mother appealed.
Held– allowing the appeal: In his judgment the Judge did not give adequate reasons for not accepting the recommendation of the welfare officers. In the course of his judgment, having noted that the welfare officers' opinion was that the mother would be a better custodian and provide a less emotionally charged atmosphere, the Judge said that he had had the advantage of seeing the father, who gave his evidence quietly and without any emotion. If that purported to deal with the recommendation it was wholly inadequate. If a court did not follow the recommendation of a welfare officer, it must follow the guidelines in Stephenson v Stephenson [1985] FLR 1140, and indicate in its judgment the reasons why it had not done so. These could take a number of forms. The court might assess the facts differently; it might reach a professional view of the impact of those facts upon the welfare of the child; it might have been given evidence of matters not available to the welfare officer; or the court may have observed attitudes and behaviour of the parties when they appeared before it which would cause it to differ. But it was to be doubted whether a Judge, however experienced, would be entitled to overrule the measured and careful assessments of the attitude of a party merely by observing his or her conduct during the course of the hearing. In this case the Judge had failed to give an adequately balanced view of his approach to the welfare report. Welfare officers were officers of the court, not witnesses, and whether they give evidence and submit themselves to cross-examination was a matter for the discretion of the Judge: Cadman v Cadman (1982) 3 FLR 275 and Stephenson v Stephenson (above). But where a Judge was minded to depart from the recommendation of the welfare officers, he should avail himself of their assistance if present in court and permit counsel to put questions to them to elucidate or develop other points. The Judge had given the impression that he was only interested in the welfare officers' evidence if it agreed with his preliminary view. This was not a proper exercise of his discretion. The Judge had not given proper weight to the evidence of the hostile incidents of the father. The
[1988] FCR 640 at 642
relevance of that evidence was that it supported the opinions of the welfare officers that the atmosphere in the home of the mother would be more beneficial in the long term to the child than that of the father. The Judge had overlooked the relevance of that evidence. The Judge had also erred in focusing almost exclusively upon the respective qualities of the paternal grandmother and the child-minder. The proper exercise in carrying out the balancing function was to look at the long term welfare of the child. Where was he to have his home? With whom would he normally spend the night-times and the holidays? To whom will he look as the custodian of his home? These matters had not been properly considered by the Judge. It was not, therefore, safe to allow the Judge's order to stand and there would be an order for a re-trial before a different Judge.
AppealAppeal from Mr Recorder Irwin, QC sitting at Hertford county court.
Kenneth Cameron for the mother.
Mark Piercey for the father.
LORD JUSTICE PURCHAS.This is an appeal by the mother from an order made by Mr Recorder Irwin, QC on 19 April 1988 in the Hertford county court. The order related to a child...
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