R. v R. (Child: Surname)

Court of Appeal (Civil Division) 
30^th June, 1^st July 1977

Before (the judges sitting on the bench)

• Lord Justice Stamp 
• Lord Justice Ormrod 

Counsel (the barristers representing the parties)

• Michael Evans Q.C. and Roger Garfield for the husband (the Appellant)
• Anthony Temple for the wife (the Respondent)

Judgment

Lord Justice Stamp —

This is, in my view, a hopeless appeal, in which Mr Evans has said all that could possibly be said on behalf of the husband’s claim.  The appeal is an appeal from an order of Bush J. made on 16^th June, 1977, whereby the custody of the child C., who was born on 12^th December, 1970, and is the youngest of four children of the parties to the marriage between the father and mother, was committed to his mother.  His age is 6½.

It is convenient, I think, to state at the outset that the other three children were at the time of the hearing before the judge and had been for some time in the custody of the mother under an order of the court made on 14^th April, 1976, an order made immediately after the granting of the decree nisi in the case.

The father, who was then married, met the mother in 1963.  They commenced living together in 1965 after the mother had become pregnant.  In March 1965 a girl was born — she is now 12; in July 1966 a boy was born — he is now 10; and on 16^th December, 1967, the mother and father married, the father’s marriage having in the meantime been dissolved.  On 24^th April, 1969, another girl was born, now aged 8, and then along came C., on 12^th December, 1970.

Bush J. found that by March 1974 the marriage had broken down.  While the husband was a serving soldier in Northern Ireland with his unit, the mother committed adultery with another serving soldier, Sergeant W., and she is now living with Sergeant W.  Having discovered the adultery, the father was not pleased and beat her up on more than one occasion, to the extent that she suffered personal injuries.

There is, as I understand it, some disagreement as to the details of the subsequent events, which do not, I think, matter much, but the findings of the judge were these.  On 8^th July, 1974, the mother left the matrimonial home, which was the married quarters at Mill Hill, and the children were divided, the two eldest went to the father’s sister and the two youngest to the grandparents in South Wales.  The mother agreed to the children going to the relatives, but she thought all the children were going to the grandparents in Wales and would not, therefore, be split up.  However, that was not possible.  The mother was unable to provide accommodation herself for the children, because she was setting up with Sergeant W. and could not obtain married quarters at that time.  She could not continue to live with the father, and was under pressure to leave the married quarters where she had been.

The father was most anxious to get the children together, so the judge found, and he bought himself out of the Army, and in October 1974 was living in a council house in Glamorgan with all four children.  His sister lived nearby and assisted with the care of the children, particularly when the father was at work.  Then in July they moved to another council house in the Rhondda and they were joined by Mrs G., and she had a young boy.  Then there was a further move in April 1976, when the father moved to another address in the Rhondda.

The judge found that for a period of almost two years the mother, who was living in a bedsitter with Sergeant W., saw the children only twice, namely, once in 1974 and once in 1975.  I understand on each occasion it was about Christmas time.  The judge found that although the mother might have kept away from the children because she feared violence, he did not think that that would have of itself deterred her from seeing the children, and he found that what she really feared was a continuation of rows in front of the children, and also the judge thought a feeling of helplessness at not being able to offer the children a home herself discouraged her from visiting them.

On 11^th June, 1975, the mother presented a petition for divorce based on unreasonable conduct.  The father filed an answer and sought a decree on the ground of adultery, but eventually the mother’s petition went undefended on 14^th April, 1976, when she was granted a decree nisi on the ground of the father’s conduct.  At the same time — immediately thereafter, I suppose — Judge Stockdale decided that all four children should remain in the care and control of the mother, and he directed a welfare officer’s report.  The reason that order was made was because, so the judge found, about a week earlier, on 8^th April, the father had arrived at short notice, at the flat where the mother and Sergeant W. were living, in order to deliver to the wife all the children.  The reason for this was that Mrs G. was pregnant of a child (subsequently born in July 1976) and simply could not face the prospect of coping with the four children as well as her own young child while she was pregnant.  The three elder children remained with the mother thereafter and have remained with her down to this day.  C., the boy with whom we are concerned, on the other hand, was disturbed, and he was returned to South Wales to his father and lived with and still was living with his father and Mrs G. at the time the matter came before Bush J.  The Army authorities had at some time granted the mother and Sergeant W. married quarters, and the three elder children are, as the judge found, and I quote his words, “living with their mother and [W.] in delightful surroundings at [an army camp] in Dorset.”

[Lord Justice Stamp referred to other matters that the judge took into account to decide whether the father or the mother should be granted custody of C., and carried on with his judgment.]  The judge found regarding Sergeant W. that he was extremely fond of the children, had made financial sacrifices to assist in their upbringing as far as he could, was a very solid type — I quote the words of the judge — “and very slow to anger.”  The judge was satisfied that Sergeant W. would always be ready to remind the children that he was not their real father, but their real father was alive and well and very fond of them.  The judge thought he would make it a point of honour to ensure that any of the children that were with him continued to remember and respect the father.

I think it is convenient to mention that the point was made by Mr Evans in the course of his submissions in this court that the judge might not have been aware at that point or had it present to his mind at that point in his judgment that the three elder children were now in the camp, where they are known officially by the surname of W., and it was suggested that this rather tended to counter the judge’s findings that Sergeant W. would always be ready to remind the children that he was not their real father, and a good deal of play was made by Mr Evans regarding this change in the way the children are known in the camp.  I am bound to say I do not think that the fact that the three elder children are known as W. now in the camp really signifies anything as regards the characters of Sergeant W. and the mother.  I think that too much attention is paid to these matters of names of children, the names by which they are known, on some occasions at least, and it must be most convenient that they should be known as W. in the camp in which they are being brought up where Sergeant W. is the head of the family.

The judge went on to say that he found the relationship between the mother and Sergeant W. was very strong indeed, and he regarded it as a stronger relationship than that between the father and Mrs G., and was satisfied that C. could be very happy living with his mother and Sergeant W. and his brother and sisters.  Taking a long-term view, of course, that is a very important finding.  On the other hand, the judge recognised that in the short-term, as one must, the changeover would be very traumatic indeed.  As the mother recognised, there was a risk, said the judge, that C. would have psychological problems similar to those experienced by the older boy at one time when he left his mother.  [Lord Justice Stamp referred to Bush J.’s judgment dealing with C.'s relationship with his parents and the reports of a welfare officer and the headmistress of C.’s school, and carried on with his judgment.]  Then the judge came to answer the vital question whether to leave things as they are where the boy is being brought up well and is apparently happy or whether there should be a change because of the importance of children of one family being brought up together.  He pointed out that in the short-term the answer would be to leave him where he is, but the judge, looking at the long-term, which it is necessary to look at, came to the conclusion that in years to come, if C. was brought up separately from his brother and sisters, he would resent the different treatment that he would of necessity receive by being brought up in a different family.

Having heard the witneses and read a number of welfare officers’ reports, the judge came down on the side of his mother.  In doing so it appears to me that, in the course of his very careful judgment, and a judgment which was far from unsympathetic to the father, he has taken into account all that could properly be said in support of the father’s claim.  I find it quite impossible to say that he, who had all the advantages which we have not got, came to a wrong conclusion; in fact, I think it was probably the right conclusion.  One could certainly not be satisfied that it was a wrong conclusion.

I perhaps might add this, that following the judge’s order, the judge having ordered C. to be handed over on 23^rd June, the matter came before this court on an application for a stay of the order, which was refused.  On the following day a senior probation officer of the local county council visited the mother’s home and saw C., who seemed quite content and to be playing with his toys most of the time the probation officer was in the house.  The probation officer, in a letter written on 28^th June, remarked that on that occasion he tended to be boisterous and rather excitable, but “I would not say that he showed any sign of disturbance.  He appears to be quite content to be in the company of his mother.”  Then the probation officer went on to say:

“He commenced at … school yesterday and I telephoned the headmaster of that school … today.  The headmaster then asked [C.'s] form teacher for a report on [C.'s] behaviour, without telling him the reason for this.  The form teacher reported back as follows: ‘[C.] has settled down very well and is responsive.  His reading ability appears to be good and he is well adjusted for his age.  No signs of disturbance in the classroom.’”

That is somewhat reassuring, I think, of course, suggesting perhaps that the judge’s fears as to the immediate effect of the transfer may have been exaggerated, but, as I have said, I find it quite impossible to accept that the judge came to the wrong conclusion, and I would dismiss the appeal.

Lord Justice Ormrod —

I have come to exactly the same conclusion and do not wish to add anything at all to what Stamp L.J. has said, except this.  There has been in this case a great deal of litigation and there may be some danger that litigation will become chronic in this family, and I am very anxious to discourage it, if I can.  Mr Evans drew attention in the course of his submissions to this name problem, and that, of course, is now a pregnant problem, or could be.  All I want to say about it is this.  It may be — I say no more than that — that rule 92(8) of the Matrimonial Causes (Amendment) Rules 1974  has been drawn in a wider sense than the draftsman intended.  I remember that at the time it was directed to preventing parents with custody br care and control orders changing children’s names by deed poll or by some other formal means, but, unfortunately, it now seems to be causing a great deal of trouble and difficulty to school authorities and to children, and the very last thing that any rule of this court is intended to do is to embarrass children.  It should not be beyond our capacity as adults to cope with the problem of dealing with children who naturally do not want to be picked out and distinguished by their friends and known by a surname other than their mother’s, if they are thinking about it at all.  It is very embarrassing for school authorities and indeed to the court if efforts have to be made to stop a little girl signing her name “W.” when it really is “R.”  We are in danger of losing our sense of proportion.  All one can say in this particular case is that one can quite understand the situation, which is not at all unusual, and I just hope that no one is going to make a point about this name business; in other words, to treat it as a symbol of something which it is not.  There is nothing in this case that suggests that the mother or Sergeant W. want to make a takeover bid for this family from the father and turn these children into their own children; nothing at all.  Therefore, I hope that it can be treated as Mr Garfield in his exchanges with the judge below observed, “This is a peripheral matter.”  I would endorse that strongly.

Lord Justice Stamp —

I have to add a postscript to my judgment and I hope this will be reported.  It is the duty of solicitors preparing cases for an appeal to consult, if they do not know them, the provisions of R.S.C., Order 59, r. 9(1) and the notes in The Supreme Court Practice (1976) relative to that rule appear to have been wholly ignored in preparing documents relevant to the issues on this appeal.  We have before us three bundles containing respectively 80, 55, and 144 pages.  Most, perhaps all, of the 80 page bundle, headed “Pleadings, Orders and Welfare Officers reports” might, I suppose, have been required for the purposes of this appeal, and I have no quarrel with that bundle having been prepared for the purposes of the appeal.  The other two bundles appear to me not to be “relevant” — and I am quoting the word in rule 9(1)(i) — to the issues on this appeal, and in directing legal aid taxation on both sides, this court also orders that the attention of the taxing master be directed to the remarks which I have made.

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Orders of the court

Appeal dismissed.
No order for costs.
Legal aid taxation.