RE W (A MINOR) (RESIDENCE ORDER) Court of Appeal Lord Donaldson of Lymington MR and Balcombe LJ 19 May 1992
RE
W (A MINOR) (RESIDENCE ORDER) Court of Appeal
Lord
Donaldson of Lymington MR and Balcombe LJ
19 May 1992
Residence
order- Child Agreement made before birth - Subsequent to birth
child residing with father - Mother repenting agreement - Mother and
father signing a parental responsibility agreement Mother
applying for interim ex parte residence order - Father opposing
application - Judge preserving the status quo pending preparation of
welfare officer's report - Mother appealing - Whether 4-week-old baby
should normally be with its mother - Whether status quo should be
maintained pending outcome of the welfare officer's report
The
natural parents never married. The mother formed a relationship with
the father and became pregnant, but the relationship did not last.
The mother had a 3-year-old child from a previous marriage. An
agreement was reached by the parents that when the child was born it
would be cared for by the father and he employed a nanny for that
purpose. The day after the birth the mother left hospital in order to
care for her 3-year-old child. Two days after the birth, the child
was
collected from the hospital by the father and was looked after by
the nanny and himself. Three days after the birth, the mother signed
a parental responsibility agreement giving parental rights to the
father. The mother asserted that this was done under pressure. On or
before 5 May 1992 the mother wrote to the father stating that she
wished the child to live with her. The mother made an application to
the court for an interim cx parte residence order which was heard 40
days later. The mother indicated at the hearing that she wished to
commence breast-feeding, although she had not done so prior to the
hearing. The judge ordered that the status quo should be maintained
and that the child should remain with the father pending the outcome
of the court welfare officer's report which was ordered. The mother
appealed.
Held
- allowing the appeal -
(I) Although there was
no presumption of law that a child of any given age was better off
with one parent or the other, and although the only legal principle
involved was that the welfare of the child was the paramount
consideration, no court could be ignorant of what would be the
natural position if other things were equal. There was a rebuttable
presumption of fact that a baby's best interests were served by being
with its mother, although the situation might be different with older
children.
(2) The decision as to the child's placement should not
have been left until the final hearing. The pressure on the courts
and welfare services might not have enabled the case to have been
heard for a further 3 months. The party that had the child in the
meantime had an in-built advantage because when the case returned
before the court the status quo assumed an even greater importance
than originally. In those circumstances, the judge should have then
considered which was likely to be better for the child's welfare. The
child in question was less than 4 weeks old and her welfare required
that for the time being she should be with her mother.
(3)
Although there was a well-established principle that when inquiries
were being made in order to decide what were the best arrangements
for a child the status quo should not be disturbed, it was not really
possible to establish a status quo within a period of 3 weeks at the
beginning of the child's life.
Cases
referred to in judgment.
B
(A Minor) (Residence Order: Ex parte), Re [1992] 2 FLR 1, [1992] 3
WLR 113, CA
G v G (Minors: Custody Appeal) [1985] FLR 894, [1985]
1 WLR 647, [1985] 2 All ER 225, HL
H (A Minor) (Interim Custody),
Re [1991] 2 FLR 411, CA
APPEAL
from the order of Judge Main QC sitting in the Guildford County Court
Susan Matthews for the mother
Charles Scott for the father
BALCOMBE
L.J: This is an appeal from an order of his Honour Judge Main QC made
in the Guildford County Court 4 days ago on 15 May 1992. By his order
he declined to make any residence order in relation to a child, who
will be 4 weeks old in a day or two, and left her in effect in the
care of the child's father and a nanny, and dismissed the mother's
application for an interim residence order. From that order the
mother has appealed.
There
has been no formal evidence put in in this case and so the facts as I
set them out are taken from what has been said in various documents
and before the judge, and it may well be that when the evidence
finally comes to be properly taken there may be details which turn
out to be inaccurate. It matters not for this purpose.
The
mother has one child, a boy of 3, by a marriage which has now broken
up. She formed a relationship with the father and became pregnant by
him but the relationship did not last. She and the father agreed that
when the child was born he, the father, would care for the child and
in reliance upon that agreement the father has made arrangements,
including taking on a nanny as his employee to look after the child.
The child was born on 21 April 1992. Within a day or two of the
child's birth the mother repented of the decision she had made and
decided that she wished to care for the child herself. However, again
within a day or two, I think 3 days after the child was born, the
mother signed a parental responsibility agreement giving the father
parental rights without which, or without an order, he would have had
no such rights as he was not married to the mother; but nevertheless
the mother signed that agreement. She asserts that it was done under
pressure. It matters not for the present purpose because, as I said,
it gives him no more than he would have had had he been the child's
legitimate father.
The
mother left hospital the day after the child's birth to go back and
look after her 3 year old, and 2 days later the father took the child
from the hospital and she is now in the home which the father has,
being looked after by himself and the nanny. The mother, as I have
said, repented of her decision and fairly quickly
tried to
communicate with the father to tell him of her change of heart. Again
there are disputes between the parties as to the precise difficulties
each had in contacting the other, but at any rate no later than 5 May
1992, there having been some attempted telephone conversations before
then, the mother wrote a letter to the father making it clear that
she had decided that she would like the child, R, to come and live
with her. She had already then taken legal advice.
Matters
then moved fairly quickly. The case came first on an ex parte basis
before his Honour Judge Main on 14 May 1992 when he made an order
that R be brought to the court on Friday, 15 May 1992 at 10 am when
the matter would be heard and the child was to be placed with the
mother by noon on Friday, 15 May 1992. At one stage there was some
dispute as to whether he had power to make that order. Having regard
to the decision of this court in Re B (A Minor) (Residence Order' Ex
parte) [19921 2 FLR 1, it is clear that he had power to make an
interim cx parte residence order and the only question is whether or
not the order which he made was correctly labeled, being headed
'Specific Issue Order'. It matters not now because Mr Scott, for the
father, very properly, having had an opportunity to see the judgments
in Re B (A Minor) (Residence Order: Ex Parte), accepted that, subject
only to the point about the label, the judge had the power to make
the order he did. In any event the matter came back before the judge
on the following day and he was faced with what was obviously a
difficult case at the end of a very crowded list. One knows the great
difficulties with which judges in the county court dealing with this
type of case are faced when the list is so full.
He
took the view, and it is best expressed in a short note which he has
signed, that he should preserve the status quo whilst inquiries were
made by the court welfare officer. I think I should read from his
note, because in fairness to this very experienced judge, since I
have come to the view that he was, within the guide-lines of G v G
(Minors) (Custody Appeal) [1985) FLR 894, plainly wrong, it is only
fair to him to give such reasons as he has put down; and these are cx
post facto reasons because he did not have the time or the
opportunity to give a proper judgment. Having referred to the status
quo, he said:
‘Sometimes there is
grave doubt about the safety of the child in that environment and the
court may have to hear evidence before making a decision; sometimes
there may be compelling reasons (eg the view of an older child) why a
change of home should be approved before inquiries are complete.
This case presented as
a case where because the age of the child the initial reaction might
well be that the child was in the wrong home. The basic reason for
the child being in that home appeared to be mother's agreement,
although the reality of that agreement and the reasons for her
apparent change of mind would need investigation in the course of
inquiries. I took the view that pending inquiries it would be wrong
for the court to order a change of home unless there were some other
significant fact.’
Then
comes para 4 of his note:
'The issue of
breast-feeding was capable of being such a fact.'
I
should say that the mother had indicated a wish to start
breast-feeding the child. He goes on to
say:
'If mother had been
breast-feeding in hospital between 25 and 30 April 1992 I would have
regarded that as very significant and after hearing further argument
and perhaps evidence might have ordered the change of home requested.
However it was common ground that mother had not done so.
Some other significant
fact could well emerge in the course of the welfare officer's
inquiries and if so I did not want any party or the welfare officer
to be in any doubt as to the desirability of the court being informed
immediately.'
Then
he refers to the question of the jurisdiction point which I need not
consider further.
Although
there is undoubtedly no presumption of law that a child of any given
age is better off with one parent or the other, and although the only
legal principle involved is that the welfare of the child is the
paramount consideration, no court can be ignorant of what would be
the natural position if other things were equal. It hardly requires
saying that a baby of under 4 weeks old would normally be with his or
her natural mother. The reason why the baby was not with the natural
mother in this case I have already explained. But, as I put to Mr
Scott in the course of his submissions before us, there seems to me
quite a close analogy here with the case of a young mother who had
decided to put a baby out for adoption and repents of the decision
within a day or two of the birth of the child. It would, I think, be
almost common ground in those circumstances for thc baby to go back
to the mother if the decision was made within a matter of a day or
even a week or so. Here the position is not that of a baby being
placed with prospective adopters; it is the child's natural father
who has in the circumstances I have mentioned, acquired parental
rights and has de facto control of the child. Nevertheless, it seems
to me that the welfare of this 4-week-old baby, giving consideration
to all the various factors which I have tried to mention, would
normally require it to be with the mother. Having said that, it seems
to me that by leaving the decision until the full hearing the judge
really made his mistake, because owing to the pressure on the courts
and on the welfare services - we have been told that the welfare
report would take a minimum of 8 weeks, possibly 10 - with the best
will in the world this case could not be heard before another 3
months or thereabouts: we are talking about the end of July/beginning
of August 1992. So whichever party has the care of the child in the
meantime inevitably has an in-built advantage because by the time the
case comes back before the court the status quo will have assumed
even greater importance than it does already.
It
seems to me, having that in mind, the judge should have then
considered in those circumstances which is likely to be more for the
child's welfare. It seemed to me that the strongest point that Mr
Scott made on behalf of the father was that the mother had already
made one change of mind and it could be disastrous for the child's
welfare if there were a further change of mind in the future. Miss
Matthews accepted that one could not be certain of what would happen,
but on the other hand the steps taken by the mother in the last week
or so indicate her present state of purpose.
I
appreciate fully that one side or the other is inevitably going to be
disappointed by the decision here; I am afraid that always happens.
But giving the matter the best consideration I can and having regard
to the fact I come back to it because this seems to be the most
significant factor in this case - that we are here concerned with yet
4 weeks old, that child's welfare requires that for the time being
she should be with her mother.
For
that reason I would allow this appeal and substitute for the order
made by the judge an interim residence order in favour of the mother.
Undoubtedly there should be proper and frequent contact with the
father. At this stage I think it would be perhaps premature for me to
indicate the degree and amount of such contact. If the parties are
able to agree it, all well and good; if not, subject to anything my
Lord may suggest, I would have thought that the matter could be
mentioned to this court again in the next half an hour or so, so that
the court, in the absence of agreement, could itself express a view
as to the frequency and type of contact in the interim.
For
the reasons that I have endeavoured to give, I would allow this
appeal and make the order I have indicated.
LORD
DONALDSON OF LYMINGTON MR: I agree. At the risk of being told by
academics hereafter that my views are contrary to well-established
authority I think that there is a rebuttable presumption of fact that
the best interests of a baby are served by being with its mother and
I stress the word 'baby' - When we are moving on to whatever age it
may be appropriate to describe the baby as having become a child,
different considerations may well apply. But, as far as babies are
concerned, the starting-point is, I think, that it should be with its
mother. That is not to say that it is not a rebuttable presumption.
There are many mothers whose circumstances are such that the
presumption would be rebutted; but that is not this case.
I
say one other thing. The judge relied upon another principle which is
very well-established and is very sensible: which is that when
inquiries are being made, in order to decide what are the best
arrangements to make for a child, the status quo should not be
disturbed, to avoid the possibility, as Butler-Sloss LJ put it in Re
H (A Minor) (Interim Custody) ~1991~ 2 FLR 411 at p 414F, of the
child being treated as a package or, in more military terms, in order
that there should be no order followed by counter-order leading
ultimately to total disorder. All that I understand and it is
well-established, but it does seem to me that the judge erred when he
talked about 'preserving a status quo' which had existed merely for 3
weeks at the very beginning of this child's life. In that context, it
is not really possible to establish a status quo within so short a
period. That is what we are establishing now.
Appeal
allowed. Substitute order below for an interim residence order for
the mother with reasonable contact for the father. Contact to take
place in the mother’s home one night a week and one week day a
week. No order as to Costs save for legal aid taxation for appellant.
Application for leave to appeal to the House of Lords refused.
Solicitors:
The names of instructing solicitors. are omitted in the interest of
preserving anonymity for the parties.
