by Peter Murphy
This was something Wesley always said to parties in custody cases, but in this case, even as he made the request, he had little confidence that it would have any effect.
‘There remains the question of interim custody,’ the judge added. ‘Is there anything either of you would like to add before I give judgement on that matter? Bearing in mind that I have read the affidavits, but as yet have heard no evidence beyond the affidavits.’
‘Nothing from me,’ Harriet said.
‘No, thank you, my Lord,’ Jess added.
‘Very well.’
Bernard Wesley donned his reading glasses and arranged his papers in front of him on the bench.
9
‘This is the husband’s application for custody of two children, aged seven and five. I stress that the judgment I give today is an interim judgment, and the parties should not assume that the ultimate result will be the same. I have read the detailed affidavits submitted by both parties, in which they set out their positions at some length. There is a considerable conflict of evidence between them, and I think it will be necessary for me to hear evidence from the parties, and perhaps from other witnesses. I have also decided to order a welfare officer’s report, as both counsel agree this would be appropriate. The welfare officer, Mrs Wendy Cameron, is now present in court, and she will hear what I am about to say.
‘The parties, Henry and Susan Lang, are now both 32 years of age. They were married on 9 June 1962. Their elder daughter, Marianne, was born on 8 October 1963, and their younger, Stephanie, on 4 February 1966. At first, all seems to have been well, and the marriage was reasonably happy. They had little money to begin with, but that does not seem to have caused any serious problems between them. They lived initially in a flat in the Dalston area. Mr Lang, I think both parties agree, is a hard-working and ambitious man, a mechanic by trade, and he quickly set about improving their fortunes. While many men in his position might have been content with a job as a mechanic, earning the standard wage, Mr Lang aimed higher.
‘After gaining some experience with a well-known garage in Chelsea, he set up his own business, Mercury Mechanics, in King Henry’s Walk in Islington, not far from the family home. The business is not the usual kind of garage that accepts almost any vehicle. Instead, it specialises in the repair and maintenance of high-end vehicles, expensive and unusual cars, including imported vehicles. Mr Lang quickly earned a reputation for providing a good, reliable service, and he began to be in demand by the owners of vehicles of that kind in London, and indeed, beyond. Not surprisingly, the business has done well. He now employs three mechanics, in addition to working in the business each day himself. I have been shown the accounts for the past five years, and it is clear that Mr Lang has become, if not rich, certainly quite prosperous. The family was able to move to a much larger and nicer flat in Alwyne Road, in Canonbury, again not too far from Mr Lang’s business address.
‘One might have thought that Mr Lang’s success would have been good news for the whole family, but it appears that the long hours he was working to achieve it took their toll on the relationship between the parties. Because this is one of the main areas of contention, and I shall be hearing a good deal of evidence about it, I will say little about it today. But it is clear from the affidavits that the long hours of work caused a good deal of trouble between them. Mrs Lang says she felt ignored, being left at home all day with the children – at any rate until they were old enough to go to school – while her husband spent all day, and many evenings, at the garage. Mr Lang agrees that he was working long hours, but says that it was necessary to develop the business, and that the whole family, including his wife, benefitted from his success. They both agree that there were loud arguments between them, with both parties shouting. Mrs Lang says that the arguments turned violent, that he slapped her face on some occasions, and told her to shut up. Mr Lang strenuously denies that, and insists that he never hit her.
‘In February of this year, Mrs Lang left the matrimonial home and moved into a flat of her own in Pimlico, taking the children with her. It was in response to this that Mr Lang brought his suit for divorce, and has made this application for custody of the children. Putting it simply, he says that Mrs Lang is no longer a parent who can be trusted with the custody of young children. He says that she started going out at night long before she left the matrimonial home, that she regularly came home drunk at 1 or 2 o’clock in the morning; and that she had friends, both male and female, whom Mr Lang thought unsuitable for a parent with young children. He says that she sometimes left the children unattended at home. Finally, he says, she started taking drugs and associating with drug users and dealers. Mrs Lang denies that. She admits that she started going out in the evenings with friends, but she insists that the children were always safe, with a reliable child-minder. After she left the matrimonial home, she always left the children with her parents if she was going out for the evening. She says that she never came home drunk, and she denies taking illegal drugs.
‘These allegations are clearly of the greatest possible importance. They are bound to affect my decision about which of these parents should have custody of the children, and about the nature of the access which should be granted to the other parent. But they are not the only matters to consider. I need to know in far greater detail what living arrangements are proposed for the children by both parents, particularly what child-care arrangements they propose to make. I need to be satisfied that they will be safe, and I need to know what plans there are for their education. I shall, of course, also have to satisfy myself that the financial arrangements the parties propose to make are suitable.
‘I cannot decide all this today. I shall, therefore, adjourn this application pending the welfare officer’s report. The question is: what to do in the interim period? It is not an easy question. But I am persuaded, just, that the best course would be to keep disruption to a minimum. The children have already been uprooted once, when their mother moved them from Islington to Pimlico. It seems to me to be in their best interests not to uproot them again without good reason, when the court’s ultimate decision cannot be foreseen. For that reason, I will award interim custody of both children to Mrs Lang, but Mr Lang is to have access to the children every other weekend. I hope the parties can make their own sensible arrangements about the times at which the children can be picked up and returned. I am sure their counsel and solicitors will give them appropriate advice about that. If they are unable to agree, a further application can be made, and I will decide for them, but I very much hope that they will be able to work it out for themselves. I stress again, the more they can reach agreement without the intervention of the court, the better it must be for the children.’
10
‘I knew the judge would be against me,’ Henry said quietly. They had settled down to a coffee in the crypt café in the Royal Courts of Justice.
‘He’s not against you, Henry,’ Jess replied. ‘All he decided today is where to place the children for a few weeks until we get the welfare officer’s report. They were already with Susan. It does make sense to leave them where they are for now. But you heard what the judge said. That doesn’t mean anything in terms of the ultimate decision. It’s going to be very different when we come back for the full hearing.’
‘Yeah, but now she’s got six or eight weeks to clean up her act, hasn’t she? She will be in every night, drinking lemonade and playing Monopoly with them, won’t she? She will be putting on the full-time mother act, especially when the welfare officer comes to visit.’
‘It’s too late for that, Henry,’ Geoff Bourne replied, shaking his head. ‘We already have evidence of what she’s been getting up to. Even her friends are concerned about her behaviour. I am very close to verifying that two of the men she has been seen with have previous convictions for supplying hard drugs. It’s not going to work.’
‘The children will tell the welfare officer the truth,’ Jess
added, ‘and I think her parents will tell the welfare officer the truth. She will have to call them as witnesses, and I don’t think they’re going to lie for her to an officer of the court.’
‘What you have to do between now and the final hearing,’ Geoff said, ‘is to make sure you can account for every moment in the children’s lives when they are back with you. How are you going to get them to school? How are you going to get them home from school? How late at night are you going to work? And so on. You know the kind of thing. We’ve talked about it.’
Henry drained his coffee cup slowly.
‘I can’t help the fact that I have to work hard,’ he said. ‘Some people would even give me some credit for it.’
‘Bernard Wesley will give you credit for it,’ Jess reassured him. ‘Believe me, I know the man. He is in favour of hard work, and he will want to reward it. All you have to do is show him how you’re going to take care of the children.’
Henry shrugged. ‘My parents live too far away to help regularly,’ he said. ‘My sister will help. She could collect them from school and stay with them until I get home.’
‘The judge would prefer a professional arrangement,’ Jess replied. ‘Your sister has a life. She’s not going to be on call the whole time. It’s not as though you can’t afford to pay someone. You work hard and you earn good money. Make your money work for you.’
He nodded. ‘All right. I can do that.’ He glanced at his watch. ‘Talking of work,’ he said, ‘I have to be running along.’
‘That’s fine, Henry,’ Geoff replied. ‘Just keep in close touch.’
Henry shook hands with Geoff and Jess in turn, and seemed to be on the point of leaving, when he sat down again abruptly.
‘You know what really hurts me about all this? It’s not that she complains about my working all the time. I understand that, in a way. I’m sure there were times when she was lonely. I didn’t do it deliberately to hurt her. It was just that I was trying to make a good life for us, and that’s what it took. I could have dealt with it better. I know that now. But what hurts me is that she doesn’t even want the children. They’re just pawns in the game to her. She wants to get whatever she can out of our marriage, and if she has to use Marianne and Stephanie as bargaining counters to do that, she will.’
‘That doesn’t necessarily mean she doesn’t want them,’ Jess said.
‘She’s told me she doesn’t want them,’ Henry replied.
Jess and Geoff exchanged glances.
‘When did she say that?’ Jess asked.
‘Lots of times, when she came home at God knows what time of the morning, half cut. She would say that she was much happier before she had children, and they just got in the way of her having a good time. She said she was too young to be a mother. She told me a lot of things, believe me: what a mistake it had been marrying me; what a sad little life I led being a mere mechanic; how much more interesting the people were that she was meeting on her nights out; even how much better than me the men were in bed –’
‘Henry…’ Jess began.
‘But you know what? I don’t care about that now. If she wants to screw around and throw her life away on drugs and all the rest of it, there’s nothing I can do about it. If she wants to insult me, there’s nothing I can do about that either. But she is not going to take my children down with her. I won’t allow that. I won’t allow it.’
He looked directly at Jess.
‘Do you think the judge understands that?’
‘Absolutely, yes, I think he is very capable of understanding it. He was a very successful Silk in family cases long before he became a judge. He has a lot of experience at seeing through people. So, yes, I do think he will understand it.’
‘I can’t take risks with my children,’ Henry said.
‘I’m not asking you to take risks,’ Jess replied. ‘I’m asking you to trust the process and the people involved.’ She took his hand. ‘Henry, listen, there are never any guarantees. But I have a good feeling about your case. I know Geoff does, too.’
‘Absolutely,’ Geoff said at once.
‘We have a good case and we have the right judge. I really believe the judge is going to come down on our side. You just have to be patient. I know eight weeks seems like an eternity now, but in the context of your life with the children, it’s a very short time.’
They shook hands again, and Henry made his way towards the exit. He stopped just before turning the corner and going out of their sight.
‘Thank you. Thank you both, for all you’ve done for me,’ he said. ‘You’re the best. I know that. You’ve helped me more than I can ever tell you.’
11
Wednesday 28 April 1971, late afternoon
Harriet Fisk knocked on Aubrey Smith-Gurney’s door and poked her head inside his room without waiting for an invitation. She had just returned from the Reading County Court after a gruelling day. Merlin, the senior clerk to chambers, had told her that Aubrey was in his room reading a morass of papers in preparation for a banking case in the High Court, and was not to be disturbed. Harriet had smiled to herself and made her way to Aubrey’s room anyway.
‘May I exercise my right to pick my former pupil-master’s brains?’
Aubrey looked up from the huge stack of papers before him on his desk. He was a genial, portly man, and was second in seniority in the chambers headed by Gareth Morgan-Davies QC at Two Wessex Buildings in the Middle Temple. When Harriet had been his pupil, some nine years earlier, he had had a mixed range of work doing family and civil cases, often in the County Courts. But his career had since taken off in the wake of two major successes. He had recently taken Silk, and now enjoyed a high-powered High Court commercial practice which kept him frantically busy. But he always had time for Harriet.
As her pupil-master, he had mentored her and paved the way for her to be taken on as the first female member of chambers. At the time, it had been a contentious decision, which had divided chambers. Bernard Wesley had been head of chambers then. Harriet had good credentials. She was bright; she already had some of her own clients; and her father was the Master of the Cambridge College both Aubrey and Bernard Wesley had attended. Even so, it had been a hard battle and, to this day, Aubrey was convinced he did not know the full extent of the political manoeuvres Bernard had resorted to in order to ensure that Harriet became a member of chambers. But whatever they were, they had succeeded, and he and Harriet had been close ever since. To her, his door would always be open.
‘Of course, Harriet. Come in. You look as though you’ve had a hard day.’
She smiled and took a seat in one of the two armchairs in front of Aubrey’s desk.
‘Does it show? I’m not surprised. I’ve spent all day in Reading, trying to teach His Honour Judge Filby the basics of the law of nuisance, while pretending not to notice how rude he was being to me just for being a woman.’
Aubrey nodded.
‘That man is a disgrace to the bench. I don’t know how he gets away with it. Reading is not exactly the other end of the earth, is it? You would think it would be close enough for the Lord Chancellor to take some interest in what goes on there, wouldn’t you? You could report him.’
She shook her head.
‘I could, but my instructing solicitors are a local firm and they have to get on with him. I did tell him to bugger off in a very indirect way he probably didn’t even understand.’
Aubrey laughed.
‘Oh, he understood, I promise you. John Filby has many faults, but he’s a bright man. He hides it well, but he will have understood, and in fairness, he will respect you for it. It’s not personal. He’s rude to everyone. He was rude to everyone when he was at the Bar, and that’s something that doesn’t change just because they make you a judge.’
There was a knock on the door. Alan, the junior clerk, entered bearing a tray with two cups of tea.
‘Merlin thought you could both use a cup, sir,’ he grinned, setting the tray down carefully on a rare empty space on Aubrey’s desk.
‘He was absolutely right, Alan. Thank you.’
Aubrey waited for Alan to leave.
Harriet sipped her tea gratefully.
‘Are you sure you have time? That looks like quite a pile of paper on your desk.’
He shook his head. ‘It can wait. Actually, I’m not staying late this evening. I’m going to a party.’
She laughed.
‘That’s pushing the boat out for you, Aubrey, isn’t it? I have never thought of you as a party-goer.’
‘It’s true; I’m not usually. But this is not just any party. It’s just been announced that a great chum of mine is going up to the High Court bench, and they are giving him a bit of a shindig in chambers this evening.’
‘Really? Who’s that?’
‘Conrad Rainer, commercial Silk. Do you know him?’
‘By reputation, of course. I’ve never met him personally. I’m impressed that he should be a chum of yours, Aubrey. The word is, he’s something of a playboy when he’s not working.’
He laughed. ‘He does have that reputation, and it’s fully merited. I’ve known Conrad all my life. We were at school together, and then at Cambridge; though he wasn’t at your father’s college: he’s a St John’s man. Anyway, how can I help? Is it about your case at Reading?’
12
‘No. Actually, it’s a custody case I have coming up in front of Bernard. I know you don’t soil your hands with that kind of work now that you live in the exalted world of banking –’
He laughed.
‘I still retain a distant memory of it. What’s the problem?’
‘Well, I’ve got the wife. There are two children, aged seven and five, who are with her at the moment. Bernard has given her interim custody, but only because they are with her, and he’s made it clear that the final result may be different. He’s ordered a welfare officer’s report.’