(Revised)
LORD JUSTICE GLIDEWELL: This is an appeal against an order made by His Honour Judge Malcolm Ward in Shrewsbury County Court on 4th June 1990 by which he ordered that the care and control of the child of the family, Lisa Jayne Cheshire, should be vested in the respondent, Mrs. Deborah Mary Cheshire, the mother, with reasonable access to the appellant, Mr. Philip John Cheshire (the father).
The father and mother were married on 23rd April 1983 and lived together in Shrewsbury. Lisa was born on 24th September 1983 and is thus now nearly seven years of age.
The parents only lived together until December 1984 when the father moved to live at his mother's home in Shrewsbury, leaving the mother with Lisa in the matrimonial home. In March 1985 the father issued a petition for a divorce which the mother did not contest. The proposal in the petition was that the parties should have joint custody of Lisa, the mother retaining care and control and the father having reasonable access to the child. in 1986 the mother started a relationship with another man who created difficulties over the father having access to Lisa. A decree nisi was pronounced on 28th April 1987. After discussion between the parents, the difficulties over access were resolved. Lisa continued to live with her mother who put an end to her relationship with the other man and the father had access to the child each weekend.
Early in 1988, the mother took employment as a Prison Officer. This started with a training course which lasted eleven weeks during which, by agreement, Lisa was in the care and control of her father. When her training was completed, the mother was Posted to Eccleshall in Staffordshire and Lisa went to live with her there. By consent, an order was made on 20th June 1988 that Lisa should, until further order, remain in the custody of her mother with her father having reasonable access. Lisa started school in Eccleshall in September 1988.
The divorce decree was made absolute, and the father remarried in July 1988. He and his wife now live in a two-bedroomed maisonette in Shrewsbury.
Whilst the mother was a Prison Officer at Eccleshall she had a lesbian relationship with another woman officer. Then, according to what she told the father, she fell in love with a prisoner, Ms. Jane McLachlan, who was serving a sentence of 12 months' imprisonment for unlawful wounding and theft. In April 1989 the mother suddenly resigned from the Prison Service and went to Blackpool, taking Lisa with her. In June 1989, Ms. McLachlan was released from prison and joined the mother in Blackpool. The mother got a job and obtained the tenancy of a small flat and she, Ms. McLachlan, and Lisa lived together there. Lisa started school in Blackpool, having missed most of the summer term at school.
On 20th October 1989, Lisa went to stay with her father and stepmother in Shrewsbury for her half-term holiday. Whilst she was there, the mother and Ms. McLachlan were evicted from their accommodation. The mother therefore asked the father to keep Lisa with him for a short time, which he agreed to do. Whilst Lisa was staying with him and his wife, the father came to the conclusion that it would be better for the child to remain with them permanently. He therefore made application for the custody of Lisa to be vested in him. On 22nd November 1989, Mr. Registrar Freeman made an interim order that the father should have care and control of Lisa.
The matter then came before Judge Malcolm Ward on 4th June loan He had before him two affidavits sworn by the father and two by the mother, and a welfare officer's report, which did not contain any firm recommendation. The father and his second wife, the mother and Ms McLachlan, gave evidence before the judge.
In his report, the welfare officer, Mr. Fogarty, commented, as did the judge in his judgment, that both parents were trying to do what they believed to be best for Lisa's welfare, that they both had a loving relationship with the child, and that she was happy in both homes. This is very much to their credit.
The two households are, as I understand it, as they were at the time of the hearing before the judge. The mother occupies a one-bedroomed flat in Blackpool with Ms. McLachlan. They normally sleep in the same bed but when Lisa is with them she sleeps in the bedroom and the two women sleep on a bed-settee in the living room. The mother has a full-time job as Assistant Manageress of a shop, and Ms. McLachlan has a part-time job. They hope to be able to buy a larger flat in time. The father and his wife have a modern two-bedroomed maisonette in Shrewsbury so when she is with them, Lisa has her own bedroom. Both Mr. and Mrs. Cheshire work, but Mrs. Cheshire who is a state-enrolled nurse, works on differing day shifts so either she or the father is often able to take Lisa to, and collect her from, school. When his is not possible, Lisa is cared for by a friend who has young children of her own. Mr. and Mrs. Cheshire have no children, but would like to start a family. Lisa has been at school in Shrewsbury since November 1989. Both the father's mother, and mother's father, and other members of their respective families live in Shrewsbury.
Both parties were, and are, agreed that whichever of them does not have control and care of Lisa should have reasonable access ho her. Between the time when Lisa went to stay with her father in October 1989 and the end of May 1990 (when the mother swore her second affidavit) the mother visited Lisa several times in Shrewsbury and Lisa stayed with her in Blackpool for one weekend. After the judge's order on 20th June, the parents very sensibly agreed that Lisa should remain in Shrewsbury until the end of the school term. She is now "on holiday" with her mother in Blackpool. Whether she returns to Shrewsbury and to the school she has been attending there of course depends on the order we make on this appeal.
In his judgment the judge said of the mother's lesbian
relationship with Ms. McLachlan
"The child of course is well short of a full understanding of the facts of life such as to appreciate the present situation but has certainly noticed not surprisingly the sort of loving relationship between her mother and Ms. McLachlan which makes her ask the innocent child's question 'are they going to be married'? Sooner or later she is going to understand the full ramifications of the situation, and as it seems to me she's going to come to understand that whatever the outcome of this hearing, because it is accepted that there is a close bond between her and her mother and a close bond between her and her father. if she lives with her mother the situation will be one she will observe at close quarters the bulk of the time, but if she lives with her father she's going to have it drawn regularly to her attention, and one way or another to have to come to terms with it. Of course the permanency of the relationship is a matter which no one can tell. The mother and Ms. McLachlan see it as a permanent relationship, but nothing in life is guaranteed to remain permanent. The same applies of course to the relationship between her father and his new wife."
It is I think desirable that I should set out in full the
reasoning by which he reached his decision.
"So I am faced, apart from the question of the lesbian relationship? with a not unfamiliar sort of balancing act between competing parents with on the one side a father living in a classic husband and wife relationship, a loving father and a perfectly adequate stepmother with whom the child gets on well and with whom there are no signs of the sort of friction which with feeling Deborah Cheshire speaks of having regard to her step parentage. On the other side a relationship with a mother who has always been until October last year the principal figure in her life. (That's not in any way to criticise the father but there are differences between a mother's relationship with a child and a father's relationship with a child) and until last October the mother's relationship was a strong and constant one and one which isn't criticised at all. Now adding to the balancing act is the question of whether there are features in the lesbian relationship between the mother and Ms. McLachlan which play any, and if so any significant, part so as to bring the balance down on the other side. It's not an easy case and I have come to my conclusion not without hesitation, but in the end as it seems to me the question of the lesbian relationship is one which is there anyway, and the child is going to have to cope with anyway. I don't think there can be much difference in the speed with which that problem will come to the child's consciousness; whichever decision I make. It seems to be being accepted that it would come to the child's consciousness sooner if she's living with mother. I wonder about that. Secondly I can't see that there is going to be a great deal of difference between the way in which she will be assisted in tackling that because if she is living with father she will spend the bulk of her time in a household where lesbian relationship is not seen favourably and therefore there's a balance of easing ? in accepting the problem in living with mother, but I don't think that's a great feature to put into the balance. If I were being asked here to choose between a child being brought up wholly ignorant to lesbian relationships and untouched on the one hand, and on the other hand in heterosexual relationships, it seems to me there might be an appreciable balance one way in favour of what unlike Mr. Fogarty I do see as 'the normal', but in the end I have come to the conclusion that the most important factor in this case, and one which is not outweighed by the advantages the other way is the strong bond, and the one which until October last was almost untampered with, between the child and her mother. On balance I come to the conclusion that she is better living with her mother and I award care and control to her with reasonable access which I have every confidence will be sorted out by the parties in the co-operative way they have been able to work hitherto."
Mr. Jamieson, for the father, seeks to persuade us that the judge wrongly placed weight on the difference between a mother's relationship and a father's relationship with a young child. I do not regard this as a valid criticism. In my view the judge was basing his decision on the close and loving relationship between this young girl and her mother, with whom she lived for the first six years of her life. Obviously this is an important factor, and one which the judge was perfectly entitled to regard as a matter of weight.
This, however, is a subsidiary argument. Mr. Jamieson's main argument relates to the lesbian relationship in which the mother is living. He submits that the judge gave no, or wholly inadequate, weight to this relationship and its effect upon Lisa if she returns to live permanently with her mother. Having posed the question whether the features in the mother's lesbian relationship played any, and if so any significant, part in the balancing exercise, the judge concluded that they did not, because in his view those features will be present just as much if Lisa stays with her mother and Ms. McLachlan from time to time as if she lived with them permanently. In reaching this conclusion, submits Mr. Jamieson, the judge was clearly wrong.
Mr. Evans, for the mother, reminds us that the proper approach for this court to adopt is to be found in the well-known decision of the House of Lords in G. v. G. (1985) 1 WLR 647. He submits that the judge has taken into account all the relevant factors. Applying the principles set out in G. v. G., it is not Proper for this court to consider whether he gave the various factors correct weights in the balancing exercise.
It is of course correct that in G. v. G. Lord Fraser of Tullybelton, in a speech with which all their Lordships agreed, said that this court may only interfere with the exercise of the ' doe's discretion in relation to the custody of a child if it is satisfied that the judge was "plainly wrong". It must be remembered, however, that after quoting the judgment from which those words were taken, given by Asquith L.J. in Bellenden (formerly Satterthwaite) v. Satterthwaite (1948) 1 AER 343, Lord
Fraser said:
"Nevertheless, there will be some cases in which the Court of Appeal decided that the judge of first instance has come to the wrong conclusion. In such cases it is the duty of the Court of Appeal to substitute its own decision for that of the judge."
Lord Fraser thereafter quoted with approval passages from
the judgments of Browne L.J. and Bridge L.J. in In re F (a Minor) (1976) Fam. 238, preferring their approach to that adopted by Stamp L.J. Bridge L.J. expressed the view that the factors in favour of awarding both custody and care and control of the child to her father outweighed those which had led the judge in the court below to reach the opposite conclusion. Bridge L.J., in the passage quoted by Lord Fraser (from p.266 of the report) then
said:
"Can this conclusion prevail or is there some rule of law which bars it? The judge was exercising a discretion. He saw and heard the witnesses. It is impossible to say that he considered any irrelevant matter, left out of account any relevant matter, erred in law, or applied any wrong principle. On the view I take, his error was in the balancing exercise. He either gave too little weight to the factors favourable, or too much weight to the factors adverse to the father's claim that he should retain care and control of the child.
The general principle is clear. If this were a discretion not depending on the judge having seen and heard the witnesses, an error in the balancing exercise, if I may adopt that phrase for short, would entitle the appellate court to reverse his decision: Evans v. Bartlan (1937) AC 473: Charles Osenton & Co. v. Johnston (1942) AC 130 and Ward v. James (1966) 1 QB 273. The reason for a practical limitation on the scope of that principle where the discretion exercised depends on seeing and hearing witnesses is obvious. The appellate court cannot interfere if it lacks the essential material on which the balancing exercise depended. But the importance of seeing and hearing witnesses may vary very greatly according to the circumstances of individual cases. If in any discretion case concerning children the appellate court can clearly detect that a conclusion, which is neither dependent on nor justified by the trial judge's advantage in seeing and hearing witnesses, is vitiated by an error in the balancing exercise, I should be very reluctant to hold that it is powerless to interfere.
"The full and careful analysis of the authorities in the judgment of Browne L.J. demonstrates, I think, that the power of the court is not so limited."
Applying these principles, it is my clear view in agreement with Mr. Jamieson's submission, that with all respect to the judge, the conclusion at which he arrived in relation to the effect on Lisa of her mother's lesbian relationship was plainly wrong. I have reached this conclusion for the following reasons.
Despite the vast change over the past 30 years or so in the attitudes of our society generally to the institution of marriage, to sexual morality, and to homosexual relationships, I regard it as axiomatic that the ideal environment for the upbringing of a child is the home of loving, caring and sensible parents, her father and her mother. When the marriage between father and mother is at an end, that ideal cannot be attained. When the court is called upon to decide which of two possible alternatives is then preferable for the child's welfare, its task is to choose the alternative which comes closest to that ideal.
Even taking account of the changes of attitude to which I nave referred, a lesbian relationship between two adult women is an unusual background in which to bring up a child. I think that the mother herself recognises this, because the judge recorded her saving that she was sensitive to the problems that could rise and did not flaunt the sexual nature of her relationship.
The judge had no evidence, and thus we have none, about the effect on a young child of learning the nature of a lesbian relationship and of her friends learning about it. Nevertheless it seems that the judge accepted, and it is certainly my view, that it is undesirable that this child should learn or understand at an early age the nature of her mother's relationship. The judge seems to have thought that she was just as likely to acquire this knowledge and understanding if living with her father and stepmother and staying from time to time with her mother as she would if she lived permanently with her mother. In this respect, I think the judge was plainly wrong.
Moreover, he seems to have disregarded the effect on Lisa of her school friends learning of the relationship. If or when they do, she is bound to be asked questions which may well cause her distress or embarrassment. If she is at school in Shrewsbury, living in a heterosexual household, it is much less likely that she will be exposed to this.
These are factors to which, as I have said, the judge gave no weight. He struck the balance as if there were no lesbian relationship. if there had not been, his decision could not be faulted. But his disregard of these factors was in my judgment a plain error.
I make it clear that I am not saying that the fact that a other is living in a lesbian relationship is conclusive, or that disqualifies her from ever having the care and control of her child. A court may well decide that a sensitive, loving lesbian relationship is a more satisfactory environment for a child than less sensitive or loving alternative. But that the nature of t-he relationship is an important factor to be put into the balance seems to me to be clear.
For this reason I would allow the appeal and set aside the judge's order. There remains the question what order this court should make. Although I am very conscious that it is desirable that a final decision in this matter should be made as soon as possible, I nevertheless consider that the proper course is for us to order a rehearing, at which the judge can decide afresh the proper weight to give to all the factors, including those to which I have referred.
There are in addition two other factors, to which Judge Malcolm Ward did not refer in his judgment, but which I consider relevant. The first is Ms. McLachlan's conviction for violence, which must be a matter of some concern. The second is that Lisa was only at school in Blackpool for about six weeks, but has since been at school in Shrewsbury for almost a full year. It may be that neither factor should be given much weight, but they are both relevant.
I also consider it desirable that the Official Solicitor should be invited to act as guardian ad litem to Lisa, and to consider as a matter of urgency whether to obtain and call at the rehearing appropriate expert evidence relating to the problem which arises in this case.
I would therefore allow the appeal and set aside the judge's order. I propose that we should order as follows:
1. The custody of Lisa to be vested in the father and mother jointly.
2 The father's application, which is in effect for the care and control of Lisa, to be reheard before a judge of the Family Division.
3. Pending the decision at that hearing, interim care and control of Lisa to be vested in her father, with reasonable access for her mother.
4. The Official Solicitor to be invited to act as guardian ad litem. if he agrees, Lisa to be added as an additional Respondent. The Official Solicitor to be asked to consider whether to call on Lisa's behalf appropriate expert evidence.
5. The rehearing to be expedited so far as practicable.
LORD JUSTICE BALCOMBE: I have had the advantage of reading in draft the judgment of Glidewell L.J. I agree with him that this appeal should be allowed and with the order which he proposes, but as we are differing from the judge below and in view of the difficult and sensitive matters with which this case is concerned I add some words of my own.
Where a judge is called upon to adjudicate in a dispute between parties his (or her) duty is to apply the law. In some cases the law is in dispute; in this case it is clear and is laid down by s.1 of the Guardianship of Minors Act 1971:
"Where in any proceedings before any court.... the legal custody or upbringing of a child.... is in question, the court, in deciding that question, shall regard the welfare of the child as the first and paramount consideration."
This provision will, when the relevant provisions of the Children Act 1989 are brought into force, be replaced by s.1(1) of that Act, which provides that when a court determines any question with respect to the upbringing of a child, the child's welfare shall be the court's paramount consideration. In relation to the issues with which this case is concerned it does not seem to me that that amendment will make any material difference, although the checklist of relevant factors contained in s.1(3) of the 1989 Act, to which the court is directed to have regard, makes explicit what is now implicit in the "welfare" test.
It is apparent that views will frequently differ as to
what the welfare of the child requires in a particular case. The judge is thus faced with having to make a decision without the benefit of any guidelines save such as may be prescribed by decided cases. One thing is however clear: in making a decision on welfare the judge should not be influenced by subjective considerations. To take an example: the issue may be whether the child is to be brought up in the faith of religion A or in that of religion B. The judge may be a member of religion A, and a firm believer in its tenets: nevertheless he must try to ensure that his personal beliefs do not affect his judicial function in deciding where the child's welfare lies.
Nevertheless, although the judge may not allow his subjective views to affect his decision on what the child's welfare requires, he cannot abdicate responsibility merely because the issue is a sensitive one on which differing views are held. What standards then should he apply if he is not to apply his own subjective views?
In my judgment he should start on the basis that the moral standards which are generally accepted in the society in which the child lives are more likely than not to promote his or her welfare. As society is now less homogeneous than it was one hundred or even fifty years ago, those standards may differ between different communities, and the judge may in appropriate cases be invited to receive evidence as to the standards accepted in a particular community, but in default of such evidence and where, as here, the child does not come from a particular ethnic minority, the judge is entitled, and indeed bound, to apply his or her own experience in determining what are the accepted standards.
With those preliminary observations, I turn to what should be the judicial approach when faced with the problem with which the judge was faced in this case: to which of two parents should the care and control of a 6½ year old girl be given, where both parents clearly love and are loved by the child, both can give the child good physical care, but the father who has remarried lives with his new wife, while the mother has formed a lesbian relationship with another woman? Of course, the fact that the mother has a lesbian partner is not of itself a reason for denying the mother the care and control of her daughter; the question is: in conducting the balancing exercise what weight should the judge give to the fact that, if care and control is given to the mother, the child's home will be the mother's home, with all that that involves? I agree with Glidewell L.J. that in those circumstances the judge can only start with the approach that in our society it is still the norm that children are brought up in a home with a father, mother and siblings (if any) and, other things being equal, such an upbringing is most likely to be conducive to their welfare. If, because the parents are divorced, such an upbringing is no longer possible, then a very material factor in considering where the child's welfare lies is which of the competing parents can offer the nearest approach to that norm. In the present case it is clearly the father.
If the judge had adopted that approach and had then come to the conclusion that the advantages of the child being with the mother outweighed all other relevant factors, this court could not have interfered with his decision - see G. v. G. [1985] 1 WLR 647. So I turn to consider whether the judge did indeed adopt that approach.
The judge's approach can be seen from the following Passages from his judgment:
"So I'm faced, apart from the question of the lesbian relationship, with a not unfamiliar sort of balancing act between competing parents with on the one side a father living in a classic husband and wife relationship a loving father and a perfectly adequate stepmother with whom the child gets on well.... On the other side a relationship with a mother who has always been until October last year the principal figure in her life. (That's not in any way to criticise the father but there are differences between a mother's relationship with a child and a father's relationship with a child) and until last October the mother's relationship was a strong and constant one and one which isn't criticised at all."
He then turns to the issue of the mother's lesbian
relationship in the following passage:-
"Now adding to the balancing act is the question of whether there are features in the lesbian relationship between the mother and Miss McLachlan which play any, and if so any significant, part so as to bring the balance down on the other side. It's not an easy case and I have come to my conclusion not without hesitation, but in the end as it seems to me the question of the lesbian relationship is one which is there anyway, and the child is going to have to cope with anyway. I don't think there can be much difference in the speed with which that problem will come to the child's consciousness; whichever decision I make. It seems to be being accepted that it would come to the child's consciousness sooner if she's living with mother. I wonder about that. Secondly, I can't see that there is going to be a great deal of difference between the way in which she will spend the bulk of her time in a household where lesbian relationship is not seen favourably, and if with mother one where it is seen favourably and therefore there's a balance of easing? in accepting the problem in living with mother, but I don't think that's a great feature to put into the balance. If I were being asked here to choose between a child being brought up wholly ignorant to lesbian relationships and untouched on the one hand, and on the other hand in heterosexual relationships, it seems to me there might be an appreciable balance one way in favour of what unlike Mr. Fogarty [the Court Welfare Officer] I do see as 'the normal', but in the end I have come to the conclusion that the most important factor in this case, and one which is not outweighed by the advantages the other way is the strong bond, and one which until October last was almost untampered with, between the child and her mother."
It is not just a matter of words when the judge questions
whether there are features [my emphasis] in the lesbian
relationship" which should affect his decision; the whole tenor of the passage makes it clear that the judge was not bringing into the balance the existence of the lesbian relationship, because of his view that, as the child was in any event going to have at least access, and visiting access, to the mother, the existence of the lesbian relationship was not a factor to which he gave any significant weight. In my judgment this was an error on his part. Accepting that the child would not in any event be ignorant of the mother's lesbian relationship with Ms. McLachlan, the question which the judge had to consider was: in which home would the child's welfare best be advanced? If her home was to be with the father it would be a normal home by the standards of our society; that would not be the case if her home were with the mother. Further, he gave no consideration to the effect that having her home with the mother might have on the child. Since there was no expert evidence before him, the judge could not properly speculate on what effect this might have on the child's own sexual development, but he gave no consideration to the problems that coming from a home of this nature might cause to the child from the reactions of her contemporaries at school: problems which the mother herself recognised in her evidence although she dismissed them by saying "If she [the child] understands she will cope."
The judge also appeared to give no weight at all to the fact that Ms. McLachlan (the mother's partner) has served a prison sentence for a crime of violence. This has nothing to do with the sexual nature of the mother's relationship with Ms. McLachlan; it would be just as relevant if the mother had re-married a man with a similar record. The judge may have thought that this factor carried little weight, but it is surprising that he made no mention of it. He did not even make any reference to Ms. McLachlan's personality and characteristics, notwithstanding the important place she fills in the home to which he committed the child.
In the end, like my Lord, I am satisfied that the judge did not apply the right approach in exercising his undoubted discretion in this case and that in accordance with the principles laid down by the House of Lords in G. v. G. (supra) this court is entitled to interfere with his decision. Accordingly I agree that the appeal should be allowed and the order below set aside.
However, it does not automatically follow from this that we should award care and control to the father with reasonable access to the mother. It is perfectly possible that a judge who takes into account the existence of the mother's lesbian relationship with Ms. McLachlan - and not merely its features -as well as the other matters to which I have referred in the course of this judgment, may come to the conclusion that the child's welfare may best be advanced by giving care and control to the mother. This court does not have the advantage of seeing and assessing the various persons concerned. In view of the difficulty and sensitivity of the issues in this case, I agree that the case should be brought up into the High Court and remitted for a rehearing to a judge of the Family Division. The Official Solicitor should be invited to act as guardian ad litem of the child and, if he agrees, the child added as an additional respondent; he has great experience in difficult child cases and if he thinks the judge would be assisted by appropriate
expert evidence will be able to instruct such an expert to give evidence for the child. The Official Solicitor may well take the view that, in the particular circumstances of this case and in the interests of expedition, his role could be limited to the provision of appropriate expert evidence.
In the hope of avoiding misunderstanding I summarise the
effect of this judgment as follows. The fact that the mother has a lesbian relationship with Ms. McLachlan does not of itself render her unfit to have the care and control of her child. It is, however, an important factor to be taken into account in deciding which of the alternative homes which the parents can offer the child is most likely to advance her welfare.
The judge did not give proper consideration to this factor. That is why I would allow this appeal and order a re-hearing.
(Order: Appeal allowed; matter to be reheard before a judge or the Family Division; legal aid taxation, both parties).
