C v. C

Family law - custody hearing regarding children on divorce of parents - observations on procedure when custody disputed.

While each case will depend on its own facts and it will not always be necessary for the judge to hear oral evidence, in the instant case since custody was disputed and since the judge was contemplating taking the custody of a boy of nearly 15 years of age away from his father and giving it to his mother; he should not have done so without talking to the parents, notwithstanding the view taken by the solicitors then representing the parties.

IN THE COURT OF APPEAL

_______________

J U D G M E N T

_______________

Fuad, V.-P.:

1. This is an appeal, by leave; by a husband against the Order dated 5th January 1988 of His Honour Judge Lee, inter alia, giving custody of one of his sons, a child of his marriage with the mother, to his wife.

2. The parties were married in 1957. They had eight children, born between the years 1960 and 1978 - four sons and four daughters. The only child with which this appeal is concerned is a boy ("C.H.C.") who was born on 8th September 1973 and thus is approaching his 15th birthday.

3. The wife filed a petition for divorce on 24th June 1986 averring that the marriage had broken down irretrievably on the grounds of her husband's unreasonable behaviour. She was granted a decree nisi on l8th May 1987.

4. The parties could not agree as to the arrangements for their four minor children, two daughters born respectively in 1970 and 1978, C.H.C. and a son born in 1974.

5. When the matter came before the judge, he had before him a full report prepared by an Assistant Social Work Officer of the Social Welfare Department. He recommended that custody of the two girls be given to the mother and that custody of C.H.C. and his younger brother be given to the father.

6. At the outset of the hearing, the father indicated to the judge that he would not seek custody of the two girls. The father is not challenging the custody order relating to the youngest boy. The parties were represented by solicitors and unusually, perhaps, neither party wished to cross-examine the other on their affirmations, to call evidence, or to put questions to the Social Work offices will have more to say about the procedure adopted later which was a matter we raised with counsel.

7. In his careful judgment, the judge noted that what was so unusual a feature in this case was that the whole family lived in adjoining flats. The wife was the registered tenant of two Public Housing units. She lived in one with seven of the eight children. It was a self-contained flat of about 40 square metres with a monthly rental of $555. The husband lived in the adjoining flat with the boy C.H.C. which was identical in size, facilities and rental to the other.  Thus the family was in daily contact and C.H.C. spent time in his mother's flat to see his brothers and sisters, to have occasional meals, to do his washing and to play with his younger brother.

8. The judge interviewed the boy C.H.C. as to his feelings and he said that there was not much difference between his mother and his father - he got on well with both of them. When asked to express a preference, if he could, he said he preferred to be with his father. The judge stated that he could give no reasons for his preference save to say "I have got used to it."

9. The judge remarked that further questioning of C.H.C. as to his daily routine, his school work, homework, leisure time and holidays in an effort to find out any grounds there might be for his preference had been startlingly revealing for, instead of showing any care by his father, a picture of disinterest bordering on neglect had emerged.

10. His father worked from 12 noon to 10 p.m., six days a week. The father only prepared about half the evening meals and C.H.C. did not have breakfast at home, in contrast to his brother. It was his elder sister who bought most of his clothes. For advice and help over his homework he went to his sisters and brothers, and his leisure time was unsupervised. C.H.C. was given no pocket money and there were no activities in which his father took part.

11. The judge commented that although C.H.C.'s preference had been expressed in far from positive terms, this was not due to any lack of articulation on his part for he was quite capable on other topics. It seemed clear to the judge that his preference was merely for the status quo as "he was used to it", which could hardly be regarded as an enthusiastic response. The judge's view was that the luxury the boy enjoyed in terms of space in contrast to the space available for his seven brothers and sisters influenced his preference.

12. The judge concluded that the father's attitude indicated that he wanted the custody of the two boys not so much for the sake of their welfare, but because, as he told the welfare officer, "he held the traditional idea of a preference for boys." the father was in low-paid employment and was subsidised by his eldest son and daughter who gave him about $300 per month for his and C.H.C.'s support. The judge felt that he did not seem concerned that he and C.H.C. occupied his flat while eight of his family lived in the other. The judge thought that this indicated a lack of concern for the other children's welfare. He noted that it had been said that the wife's motive in seeking custody of the four children was suspect because she wanted both flats, as she had told the welfare Officer, but the same could be said of the father because custody of both the boys would assure him of one of the units. The judge expressed the view that a mother's wish to have more room for her crowded family to improve their welfare could not validly be criticised.

13. The judge said that when all the circumstances were taken into account he was convinced that the father had little to contribute to C.H.C.'s long term welfare. Not only was he not in fact supporting himself and the boy, but he was not providing substantial guidance as a father should. The judge said that he recognised the importance of a father figure for a boy of C.H.C.'s age, but considered that what little the father was providing could continue with proper access.

14. As the judge saw it, a change of custody would not really upset the status quo because the boy was on good terms with his mother and his brothers and sisters and was well integrated with members of his family living next door. A change for him would mean a change of a bed from one room into another; and a chance to have regular meals - and no doubt a better balanced family diet than a mere boy of 14 would prepare. The change would mean closer supervision by those who presently had a close interest in him to the extent that they helped pay for his living expenses, bought his clothes and helped with his homework. The judge remarked that if the father really cared for C.H.C.'s welfare, instead of his own, he could take an interest in the boy's leisure activities on his one day off each week or in the evenings.

15. After considering what was best for the other boy, the judge said that he had concluded that the principle of maintaining the status quo (all other things being equal) and the principle of giving considerable weight to a child's wishes should be departed from had little significance in this case. He was fully satisfied that the father had completely failed to show that the long term welfare of the two boys would best be served if they were in his custody. He felt that the reasons he had outlined were sufficient to override those principles in addition, a custody order in favour of the mother would serve to keep the family together, who were all on good terms.

16. The judge gave full reasons, into which it is not necessary to go, why, on the review which he conducted on 12th February 1988, he was inclined to adhere to his original decision.

17. The affirmation of the wife (dated 7th August 1987) which was before the judge explained the family circumstances, but dealt mainly with her financial situation. It was of no assistance whatever to the decision the judge had to make about the custody of C.H.C., although she did ask for C.H.C.'s custody (and that of the three other youngest children). The husband's affirmation was also of no help as it did not address any of the issues relevant to the custody hearing. It was perhaps because neither party had said why custody should be granted to one and not the other that the respective solicitors did not wish to question them on their affirmations.

18. All the judge did have to help him was the Social investigation Report to which I have already referred, and his interview with C.H.C. The Report noted that C.H.C. was used to living with his father. He was a rather quiet and shy boy but his attachment to his father could be observed, and he had said he would prefer to live with his father. C.H.C. and his younger brother "had an intimate tie" with each other. The Social Work officer expressed the opinion that both father and mother were able to take care of the children in terms of home management and finance, although there was room for improvement on both sides. As regards C.H.C., the officer suggested that he and his younger brother would be better cared for by their father whose paternal figure was essential to their social and psychological development. As we have seen, he recommended that custody of the two boys be given to the father (and of the two girls to the mother) "taking into consideration the respective capability of each party concerned and the attachment of each child-in-question".

19. As the judge's careful note shows, C.H.C. told him that he had been living with his father since 1983 or 1984. He was, as he modestly put it, "quite good" at school - in fact he was top of his form. He hoped to become an interior designer. His father prepared his meals except breakfast which he had at school. About once a month he had meals with the rest of his family. His father worked as an usher in a cinema - from 12 noon to 10 p.m., six days a week. His brothers and sisters helped him with his homework. There was not much difference between his mother and his father; he got on well with them both. Sometimes his mother and sometimes his father washed his clothes. He shared a large bed with his father. He would come home from school and do his homework. His father pre-cooked his evening meals for him, which he heated up.

20. The boy added "I prefer to live with father - I [have got] used to it. He is better to me." His father sometimes, but not often took him out to the cinema, once every two months or so when their holidays coincided, and sometimes to meals out. He said that during his own holidays, he either went out alone or with his friends. His father saw his school reports and went to the school if required to do so. He explained that during the last summer holidays he had watched TV at home, played with his younger sisters and brother, sometimes sharing meals with them. He also went out with his school friends, played ping pong and rode bicycles. His only complaint seemed to be that he was never given any pocket money.

21. With very great respect, I do not read this evidence as revealing "a picture of disinterest bordering on neglect". It may be that the father's long and "unsocial" hours made it difficult for him to spend as much time with his son as he would have wished but that is a very different thing. I would mention here that I think that the judge may have misunderstood what the boy was meaning when he said. "Half of the time I have to do the cooking myself." In context I think it more likely that he was saying that sometimes his father "sneaked back" home to cook (that is to say heat up) one of the meals which he regularly pre-cooked.

22. On the only evidence before him, in my judgment, the judge placed too little weight on the boy's own wishes. This was not a case in which it could be said that it appeared that the wishes of his father had been instilled into him so that he was merely reflecting his wishes. Nor do I see that his expressed wish to remain with his father was plainly contrary to his long term interests. He seemed to be a mature and well-adjusted boy, doing very well at school. Moreover, he had been living with his father for several years and there was no apparent reason why he should be moved, albeit from one little flat to the next.

23. As I have already mentioned, the judge commented upon the fact that when "pressed for possible reasons" as to why he preferred to live with his father rather than his mother he had been unable to give any, other that to say that he had become accustomed to it. In my judgment, it is not always easy for even an articulate and intelligent boy of 14 to answer such a question. In my view his answer did not detract from the force of his stated wishes and, as we know, he did say that his father was "better" to him. I would add that the fact that the father "held the traditional idea of preference for boys" was no indication that he did not also want the custody of his son for the sake of his welfare. Nor, since he was not asked about the matter, do I think that the judge was being quite fair to the father when he expressed the view that he lacked concern for the other children's welfare, since they had to live in a much more crowded quarter than did the father and C.H.C. There is no evidence that he was ever asked to accommodate more of his family.

24. I now turn to the procedure adopted by the judge at the request of the solicitors acting for the parties. I will refer first to the unreported decision of this Court in Tang Lau Wai Chun v. Tang Fung Fat, Civil Appeal No. 142 of 1985 (27th March 1986) where Cons, V.-P. giving the leading judgment, said:

"Firstly, although custody was contested the Judge did not hear evidence by either parent or by their mothers, one of whom would, whichever way the case went, be entrusted with a great deal of responsibility in bringing up the child. There is ample English authority; so well known that we need not refer to it, that where custody is contested, it is highly desirable, and at times essential, that the Court should hear such evidence."

25. I will now refer to some of the cases Cons; V.-P. must have had in mind. In H. v. H. and C. [1969] 1 W.L.R. 208, Danckwerts L.J. made the following comments at p.209:

"    In addition it seems to me that the judge dealt with the case in a rather unfortunate manner; he apparently read the affidavits to himself and then counsel addressed him with arguments about the order he should make. He never saw either of the parents at all; he decided the case simply upon the written evidence contained in the affidavits - although of course there was also the report of a welfare officer.

    To me that seems to be a very unfortunate course to have taken.  It was impossible to judge the character of the mother, or the father for that matter, as the judge never saw either of those parties personally. In a case of this sort the character and the appearance of the respective parents is very often a decisive matter.''

And at p.210, Salmon L.J. said:

" All we have here, and all the judge had, are affidavits - cold print. There is not anything even in the welfare officer's report as to the quality, or as to any view the officer had formed as to the quality, of this woman as a mother.

    I am bound to say that in circumstances such as these it is desirable that the judge, who after all is dealing with the future of a small child, than which nothing can be more important, should see the parties himself, not for the purpose of trying to ascertain who is to blame for the marriage breaking up (which, as I have said, is quite unimportant) but so that he may form a view of the personality and character of the man or the woman as a father or mother and assess how their personality and character are likely to affect the child. I hope that in similar cases that practice will be followed in future. It is very often adopted now and it really ought to be the universal practice unless the welfare officer's report is completely clear on this topic and there is no challenge on one side or the other.

    It is quite common to have a case where the wife is saying: 'I agree that the father is an excellent mother.' In such a case it is not so important for the court to see the parties; but in a case like this it is highly desirable that it sould do so.''

26. In P. v. P. (1969) 113 Sol. Jo. 999, Lord Denning's remarks upon the same point (with which Winn and Cross LL.J. agreed) are reported in these terms:

"On the whole it was a case in which the court should not interfere with the judge's views. But his lordship wished to indorse what has been said recently about the desirability of a judge who had to decide matters of custody and care and control seeing all the persons concerned. The judge in the present case had the probation officers reports but did not see the father, mother, aunt, or the other people concerned. In such a case a judge could often form an opinion not only about character but about how relationships might develop as time went on. It was a pity that the judge did not see all concerned. It should be done whenever possible in future. But that was not enough to justify sending the case back. The appeal should be dismissed."

27. W. v. W. (1971) 115 Sol. Jo. 367 was an extreme case. There, the father took out a summons for custody. The father and mother each swore a brief affidavit giving very little information about the boy's education, accommodation, or arrangements proposed for his care. There were two welfare officers reports. Neither welfare officer had seen the other parent or could compare the accommodation of the parents and their proposed arrangements for the care of the child. No oral evidence was given at the hearing which lasted 15 minutes and which consisted of the judge reading the papers and hearing arguments by solicitors. Davies L.J. (with whose judgment Sachs and Stamp L.JJ. concurred) is reported to have said:

"... that he had no hesitation in holding that the hearing was wholly unsatisfactory. It was imperative that judges dealing with the future of children should be extremely careful to ensure that they were fully informed on all matters relating to the child's welfare. That could not be achieved in a disputed custody case without seeing and hearing both parents and any other persons whom they proposed should help care for the child. Only in that way could there be a proper assessment of them suitability to act as custodians of the child. Furthermore, a welfare officer should interview both parents and see their home conditions; so that he could compare them. There would be a retrial....."

28. In E. v. E. (1969) 113 Sol. Jo. 721, the father, by affidavit raised the issue of the mother being a fit and proper person to have the children; and the mother, also by affidavit raised an issue regarding the fitness of a neighbour whom the father proposed would be the custodian while he was at work. No oral evidence was heard. The report states that Salmon L.J. (with whom Cross L.J. agreed) said:

"..... that the order was unfortunate; .... An issue of outstanding importance having been raised, namely, whether the mother was a fit and proper person to look after the children, it could and should have been decided before any order was made. Such issues could not possibly be decided on affidavit evidence alone; they could be decided only by hearing oral evidence of the mother, father and neighbour. No attempt had been made to decide the issues of fitness, and the appeal should be allowed.''

29. I would here express my appreciation to counsel who, after we had raised the question of the procedure adopted at the hearing, referred these authorities to us.

30. Each case will depend on its own facts and it will not always be necessary for the judge to hear oral evidence. But in the instant case since custody was disputed and since the judge was obviously contemplating taking the custody of C.H.C. away from the father and giving it to the mother, in my judgment he should not have taken this drastic step without talking to the parents, notwithstanding the view taken by the solicitors then representing the parties. A judge bears a heavy responsibility in matters of custody, particularly where it is contested. Although the judge dealt with the case with anxious care, I do not think he should have made the order he did. The Social Work Officer interviewed the parents and the boy in their own language, and he did not think that C.H.C.'s welfare (which was the first and paramount consideration) required him to leave his father of course the final decision is for the Court but in my respectful view, there was no material before the judge in the parents' affirmations or in what C.H.C. told him that justified his order. The boy seems perfectly happy with his father and, we are told, five months after the order was made, and despite it, he is still living with him. I think it would not be in the boy's interests to require him to live with his mother.

31. I would mention that I have carefully considered whether a re-hearing should be ordered, but have come to the conclusion that both the justice of the case and the boy's welfare demand that he be left where he is.

32. I would, therefore, allow the father's appeal and grant him custody of C.H.C., with access to the mother.

Rhind, J.:

33. I agree that the appeal should be allowed and with the order proposed.

Macdougall, J.:

34. I agree with the reasons given by my Lord the Vice-President. I too would allow this appeal and agrant the father custody of C.H.C. with access to the mother.

Fuad, V.-P.:

35. In handing this judgment down, although both parties are legally aided, we make a formal order nisi that the Respondent pay the Appellant's costs of the appeal. We do not disturb the judge's order as to costs below.  We direct Legal Aid taxation in respect of the costs of the appeal and of each party's own costs.