RE H (A MINOR: CUSTODY) Court of Appeal O'Connor LJ and Sir Roualeyn Cumming-Bruce 6 June 1989
Custody Order giving care and control of young child to paternal uncle and aunt - No complaints about mother's capacity of care - Whether order plainly wrong in all the circumstances.
The father and mother were married in 1979 in India. The father was English and the mother Indian. They lived in England and had a son. The marriage was unhappy and in 1984 on a visit to India, the wife refused to return to England and remained in India with the boy. The father was employed as an airline agent and was able to visit his son on a number of occasions. In 1986 the child returned to England with his father after the parents decided that it would be in his interests to
be educated in England. The father promised to provide the mother with progress reports and tapes and pictures of the child. The child was placed in the care of his paternal uncle and his family and in due course was sent to school. The father failed to keep his promise to the mother. She came to England to see her son. Access was given to the mother by the father until January 1987 when he arbitrarily stopped access. The mother obtained access under a court order and started divorce proceedings. The paternal uncle and aunt sought care and control. The judge heard evidence from the parties and had welfare and school reports. He found that the mother was a warm and loving person and had much love to offer her son. He also found that the boy in his present background had changed from a shy, difficult and backward boy into a normal schoolboy. He concluded that it was in the boy's best interests to remain where he was for the foreseeable future with access to the mother. The mother appealed.
Held - dismissing the appeal - in custody cases relating to young children, although it was well recognised as a matter of human nature (i.e. not as a principle of law) that the natural mother would usually be the right person to have the care and control of a young child, however, given the unusual circumstances of the present case, where the child had been subjected, almost from birth, to a series of changes in his home background and since the judge had conducted the balancing act meticulously, there were no grounds for holding that the judge, in reaching his conclusion, had been plainly wrong.
Case referred to in judgment
G v G (Minors: Custody Appeal) [19851 FLR 894;  1 WLR 647;  2 All ER 225, HL
APPEAL from an order of Judge White in the Wandsworth County Court.
Jane Walker for the appellant;
Gayle Hallon for the respondent.
O’Connor LJ: This is an appeal by the mother of C against an order made by Judge White on 28 November 1988 giving the care and control of C to the interveners who are his paternal uncle and aunt. The case was a difficult one and a very unusual one, and the matter starts with the marriage back in October 1979. At that time the mother was 18 and she was in India at her house in Kanpur. The husband, Mr H who is employed by British Airways as a customer agent, was a great friend of a man named Mr R who was living in England and he was fascinated with India and Indians and he decided that he would like an Indian wife. Mr R fixed the introduction so that he went out to India, because he could travel freely on his airline pass, and he duly married the girl. He brought her back to England to live with his parents. The judge found that the marriage was doomed from the start. It was not consummated for many, many months and there was trouble. However, in the end a boy was conceived and born in May 1981. A matrimonial home was acquired, but the marriage was unhappy, and in January 1984 the mother and father, taking the little boy with them, visited her home in India and she refused to come back, so she and the boy stayed in India from January 1984. The husband was able to visit, again using his freedom to travel, and he saw his son on a number of occasions.
By March 1986, by which time the little boy was nearly 5, the husband was on a visit to India and a decision was taken between the parents that the interests of the
child were that he should be educated in England. At that time he was living with his mother and his grandmother. The grandfather had died. There were only the two women in a very small house in a town some 200 miles from Delhi. That was the decision which was mutually taken, wrench though it was for the mother for her little boy to go off with his father to England. It seems that the intention was that he would in fact be cared for by the grandparents, because it was obvious that the father could not work and look after a pre-school child.
Three weeks after returning to England that plan was varied because there was living nearby the father's elder brother S, who was also a customer agent employed by a different airline, with his wife and daughter who was of the same age as C, and he had a fully balanced on-going family home with the wife at home (who unfortunately could bear no more children for reasons which are not important to us), and the family decided what seemed obvious that C should move in to S's family. At that stage, and not surprisingly, he was backward, his English was indifferent, he had a hearing defect, and he had been separated from his mother who had cared for him since birth. So it is not surprising that the little boy took time to adjust to his new environment which had been decided upon for him by his parents. The intention that he should start school in the summer term of 1986 did not come off, because he really was not in a fit condition to start school until September 1986, which he did.
Now it had been part of the bargain that the husband was to bring the little boy to India during the summer holiday and that he would provide tapes and pictures, but he did none of those things. He visited India himself but he did not take the child.
The child began school in September 1986. He had to receive extra and intensive tuition in English and that lasted for a year. In December 1986 Mr and Mrs R were visiting India and went to see the mother, and they reported (according to her) that C was not very happy, which is not surprising as he was trying to settle down in a new environment, and the mother decided that she would come back to England with them. She returned in December 1986 and she has lived with the R family ever since in their house in Twickenham. She made contact of course with the father and after some difficulty she had access to the child on some six or eight occasions until January 1987.
There then took place a misadventure in that she had got the little boy on a day of access and she was supposed to return him to S's house but Mr R was tired or otherwise not available to take the boy home and she rang up and said she could not return him and that he would come back the next day. That led to a considerable row between the H family and her, and the father, very improperly, cut off access and said 'no more of it'.
At the other end the mother had engaged the services of solicitors in order to deal with access to her child and also to mount a divorce petition, but for whatever reason no application came before the court until October 1987; so she did not see the boy from January until October 1987. As soon as the matter came to court access was ordered and the evidence is that it has been complied with. There have been some hiccups in it because S and his wife with their own child have taken C on various holidays in different parts of the world, making use of his travel facilities as an airline employee. But in fact access has worked all right, and the divorce has gone through, and the question then really was before the judge: what was he to do by November 1988?
By that time he had a welfare report from the welfare officer; he had a report from the headmistress of the school where C had been since September 1986 - that is for some 2 years - and he had a difficult balancing act to do, because here was the natural mother asking for the care and control of her child, and the judge found that she had warmth and love to offer to her son. There were no complaints about her capacity as a mother. She had looked after the child for 5 years, and the evidence was that there was accommodation available for her. Mr R had another house in Brentford which he was prepared to rent to her until he converted it into two flats (because he is a builder) and give her one of them to rent. So she was in a position to look after the child.
But, as I have said, against that the little boy had developed. He was in a family. He had got a little girl living in the house who regarded him as her brother. The boy himself told the welfare officer that he thought of her as his cousin, which is what she really is, and there was this difficult problem because it is well recognised that the natural person to have the care and control of a little child is the mother of the child, and it might well be that in certain circumstances if I had been trying this case I might have come to a different conclusion to that to which the judge came, but that is not the function of this court. The hearing lasted over 2 days. The mother and the father gave evidence; the interveners gave evidence; the Rs were there. There was affidavit evidence from all these people. He saw and heard them and he came to the conclusion that in the interests of C, which of course is the paramount matter, he should stay where he was and be in the care and control of S and his wife and continue his schooling where he was.
The main ground of the appeal put forward by Miss Walker, who has said everything possible on behalf of the mother, is that the judge misdirected himself in that he paid far too much importance or laid much too much importance on the fact that the mother would be a single parent, and indeed in the course of his judgment he referred to this on more occasions than one. But for my part I am not satisfied that that criticism is well justified. The passages normally occurred when, for one reason or another, the judge was contrasting the alternatives which were available for C according to whether he ordered that he should remain where he was or that he should move to the care and control of his mother. He did the balancing act meticulously. He had got the whole of the family back-ground carefully marshalled in his judgment and he said:
'I now come to C's future having outlined the situation he finds himself in and the unusual circumstances which have led up to it. The dispute is on his future care and control. I have found this a difficult and worrying decision. Should C be left with the family into which he has settled well in the last 21 years or should he now be placed with his mother allowing her to resume the care which she reluctantly conceded in March 1986 in his best interests?'
So the judge set the problem fairly and squarely for consideration. He then dealt with the advantages of family life on the one side and of the natural care and affection which the mother was able to offer. He really found that there was no complaint to be made of either family; that they were both suitable and caring and loving for C. He pointed out that the mother was a warmer hearted person. This is no criticism of Mrs H, the aunt: she was perhaps made of tougher material, but no
criticism was made of her care or affection for the little boy. The judge painted out that S really filled the father's role because although the father visits from time to time (when I say from time to time, this was three or four times a week whenever he could), effectively C has been handed over to S and his wife, and the judge pointed out that in the family background he is changing from the shy, difficult and backward boy that he was when he left India into a normal schoolboy in England, and he had the report from the headmistress that it would be very disruptive for him to have a further change in his life.
That has to be taken into context because the headmistress had never seen the mother - no doubt because of the access difficulties. He then dealt with the mother's side of the matter, pointing out where she was living and what accommodation was available to her. He said:
'She has a warm personality and as the welfare officer notes: "Seems to be a mother with much love to give to her son" . . . C is plainly happy to be with his mother but I am sure also likes being with the interveners. At different times he has indicated that he would like to be with one or other: in both home settings difficulty has been encountered on occasions in getting him to go or return to one or other.'
Miss Walker has pointed out that in so far as he is recorded as expressing a preference for the interveners, that comes from their evidence and that of the father; whereas to the welfare officer the little boy said that he would like to live with his mother. The judge had all these matters in mind. He said:
'Overall I am sure that it is in his present family setting that he will have the fullest, most stable and most secure base upon which to develop in the coming years . . .. After giving this matter considerable anxious
thought I have come to the conclusion that it is in C's best interest to remain where he is for the foreseeable future with generous access to his mother.'
That part of his judgment is criticised as saying that the judge has balanced the material welfare of the child against the love and care which the mother is able to give, and that that is really not a true balance to draw. For my part, I do not think that the judge was doing anything of the sort. He was bound to point out what the merits were of living in two different places and I am satisfied that he had in no way overlooked the ordinary position that one would expect the child to live with his mother and be brought up by her. But, as I have said, these were exceptional circumstances. He said:
'I . . . was not . . . wholly satisfied that the petitioner's plans were entirely realistic - that is to say offered a sufficiently secure future upon which the court could act. That she is capable of running a home is clear
- she has been doing this for the Rs - but I underline the hesitation expressed by the welfare officer which I am sure is well based. She said: "I wonder whether she understands the difficulties she may face as a single parent, particularly when she is so far from the rest of her family". I myself was troubled by the change of plans that has taken place, by the fact that she has not lived or managed on her own for any length of time in this country and loyal though the Rs are to her I was left with a doubt as to just how much support she could count on from them in the long term.'
Later, he said:
I am quite sure that the interveners will provide a better base for C's development and future. I have, in coming to this conclusion, had very much in mind that C will be left with a potential conflict in loyalties but that would remain whatever the order I made. It is implicit in his situation. It can only be relieved by sensitive handling by all the adults involved in his life. In this context I indicate that I was impressed by S's assurance that he would not keep C if he thought he really wanted to go to his mother as he grew older.'
Effectively in these cases where the judge, who is charged with the task of making a decision which in the nature of things is a very difficult one to make, comes to his conclusion, it is not for this court to interfere with that conclusion, unless it can be shown that it is plainly wrong. As I have said earlier in this judgment, I myself might have come to a different conclusion: I know not, not having seen or heard the parties. But I can find no grounds for saying, despite the able argument put forward by Miss Walker, that the judge has come to a conclusion which is plainly wrong, and for those reasons I would dismiss this appeal.
SIR ROUALEYN CUMMING-BRUCE: I agree. Miss Walker in her able submission started from the position that it is a familiar approach in these courts that one parent or the other if available should be preferred as the party with care and control to outsiders or other members of the extended family. Different epithets have been used in different cases. I think it is about 20 years since it was put in this court that there must be overwhelming reasons for substituting for a natural parent any other alternative method of care and control. That has been emphasised consistently throughout the last 20 years, together with what is not a principle but a matter of observation of human nature in the case of the upbringing of children of tender years, that given the normal commitment of a father to support the family, the mother, for practical and emotional reasons, is usually the right person to bring up her children. So Miss Walker was on strong ground in reminding us of those considerations. But as O'Connor LJ has said, the key to this case is that the judge recognised that he was dealing with a very unusual situation. This child had been subjected almost from birth to a series of alterations in his background. When he had been living in India with his mother she decided to stay in India when the father was returning to England.
There came the moment which O'Connor LJ has described in which both parents agreed that it would be in the best interests of this boy in the long run to be brought up in England. They had, I think, education very much in mind. So the mother reluctantly relinquished her care and control of the boy. This little boy, I think then only 5, was brought by his father to England, which had by then become an unfamiliar environment and of course to unfamiliar personalities, and the solution that emerged as being the most sensible solution was that C should be brought up by his uncle S and his wife.
I cannot see that there is any criticism to be collected from the material of the way in which they set about their separate tasks. They rescued the boy from the emotional confusion that he was in. He is now reported as having overcome his original shyness, is making friends, and doing rather well at school. That is all a feather in the cap of S and his wife.
Two things have gone wrong. The first is that the father let the mother down, and badly let her down, because he did not stick to his proposal, which he had made when he persuaded her to give up care and control of the child, to bring the boy to India to see her and would also by using tapes enable her to have some sort of communication, giving her a picture of the child. That did not take place. No wonder she was very upset. Then her concern was increased by a report from her friends on a visit that the boy was unhappy, and so she took the decision to come here which, to the father and the Hs, came out of the blue. They did not reconcile themselves to the new situation at all well.
The father's behaviour in relation to facilitating access was, in my view, disastrous. It was very bad for the child and calculated reasonably to give the mother the greatest possible distress.
Having said all that, I am quite unable, in the unusual circumstances of this history, to fault this judgment in any way. It is said that the judge, on a proper reading of the judgment, emphasised far too much the import-ance of the practical advantages that S and his wife would have in bringing the boy up, compared to the situation which the mother on her own would be able to achieve, and certainly there are passages in the judgment in H which the judge observes on that factor. But I have no doubt at all that from the beginning to the end of this judgment the judge had in his mind that he was seeking for an answer to the problem that he posed himself which was (faced with the family decision to bring this boy to England and begin to accommodate him to life in this country), whether in the situation that has now emerged it is at present sensible for the mother to resume the care which she reluctantly conceded in March 1986; and the judge observes on different factors affecting the solution.
It is clear that the solution that he eventually arrived at found support in the reactions of the headmistress with the proposal to move the child at this juncture in the child's life, although that headmistress had not had the advantage of getting to know the mother.
The power of this court, as is explained in G v G (Minors: Custody Appeal)  FLR 894, to intervene in custody cases involving change of care and control is limited in the way that their Lordships' House explained, and in spite of the persuasive submission of Miss Walker I am quite unable to find any ground for holding that this judgment is flawed in such a way that it is practicable for this court to hold that the solution propounded by the judge was plainly wrong. I can find no misdirection.
I would, however, add this. The judge said that he was impressed by S's assurance that he would not keep C if he thought he really wanted to go to his mother as he grew older, and the judge in taking the course that he did felt that he could rely upon that assurance. What emerges in this child's future as time passes remains to be seen. The judge made what I would call a cautious access order designed to promote a continuing and strengthening relationship between mother and son, but doing it on a programme that would not so unsettle the child as to materially exacerbate the practical problems of S and his wife. It is of vital importance that a better relationship develops between the father's relations and the mother. It is absolutely essential that S, his wife and C's mother genuinely co-operate in making the access visits a success. I say nothing about the father's views or intentions as I am not impressed by the part that he has played so far, and the judge was relying on the assurance of S in the passage which I have read.
I agree that the appeal should be dismissed.
Appeal dismissed with costs. Order for costs not to be enforced without leave of the court. Order nisi against the Law Society. Legal aid taxation of the appellant's costs. Application for leave to appeal to the House of Lords refused.
Solicitors: Bond Lewis & Go. for the appellant;
Dale & Newbery, Staines, for the respondent.