J. and Another
v.
C. and Others
Lord Pearson
Lord Guest
Lord MacDermott
Lord Upjohn
Lord Donovan
Lord Guest
MY LORDS,
The infant in these wardship proceedings is a Spanish national aged 10 1/2
years, whose parents are Spanish nationals resident in Spain. Ungoed-Thomas
J. awarded the care and control of the infant to a British married couple
residing in Britain and the Court of Appeal unanimously affirmed his decision.
The custody of infants being a discretionary matter this House could only
interfere with the exercise of the judge’s discretion if they were satisfied that
he had, in exercising his discretion, applied some wrong principle or had failed
to apply the correct principles. Indeed, counsel for the Appellant parents
conceded that if the courts below had applied the correct principles to their
decision, he would not be able to ask for their decision to be reversed. He
maintained that they had not applied the correct principles.
The facts have been so fully set out in the very careful judgment of the
trial judge and by Harman L.J. in the Court of Appeal that for the purpose
of this Opinion it is only necessary to outline them.
The story began in the autumn of 1957 when the infant’s parents came to
Britain from Madrid for the purpose of bettering their financial position by
entering domestic service. The father was at that time a very lowly paid
worker living in poor housing conditions in Madrid. They are both of the
Roman Catholic faith. They left behind a daughter then aged four who lived
with the maternal grandmother. The mother became pregnant shortly after
their arrival in Britain and the infant was born in hospital on 8th May, 1958.
As the mother was found to be suffering from tuberculosis and had to remain
in hospital for some considerable time a home was found for the infant through
the kind offices of a married couple who have been called the ” foster
parents “. The infant was taken care of, from the age of four days, by them in
their house in Northamptonshire while the mother remained in hospital.
The foster parents had been both previously married and between them have
four children by their previous marriages and now have two by their own
marriage. The infant continued to remain with the foster parents until the
mother was discharged from hospital in April 1959. The infant’s father
remained in employment near the foster parents’ house and visited the infant
from time to time. The infant thereafter rejoined his parents who had
obtained employment in Surrey. The foster parents had also moved to Surrey.
The infant remained with his parents at Caterham for about ten months: the
foster mother assisted the mother in looking after the infant and the parents
kept in touch with the foster parents’ family. In February, 1960, the mother
again became pregnant. As she was afraid of having another baby in this
country she and her husband went back to Madrid taking the infant with
them.
During the infant’s stay in Madrid in the summer of 1960 his parents lived
in what has been described as little better than a ” hovel”. The father was
still a lowly paid worker and the family lived in what were virtually slum
conditions. In the summer heat of Madrid the infant’s health rapidly
deteriorated due to malnutrition and the local conditions which did not suit
him. He only remained in Madrid with his parents for 17 months. In
July, 1961, he returned to Britain to stay with the foster parents. This move
was made at the specific request of the parents who, through the intermediary
of a Spanish maid of the foster parents, Maria, conveyed their request to the
foster parents. This request was made on the ground of the infant’s health.
On his return to this country the infant’s health rapidly improved and he has
continued thereafter to enjoy good health. He has not lived with his parents
since July, 1961, and has continued to live with his foster parents ever since.
2
The parents were content at this time to leave the infant with the foster
parents. There was some suggestion that the parents should return to
England to take up domestic service, so that the infant could be with them,
and the foster parents in fact made some arrangements to this end. But
these arrangements came to nothing. In the winter of 1961 the parents went
to Hamburg with the idea of further bettering their financial position in
order to be able to obtain a house of their own in Madrid in more salubrious
surroundings. They had left their elder daughter with the maternal grand-
mother in Madrid and they remained in Hamburg until the early part of
1963. In February, 1963, the grandmother died and this necessitated the
parents’ return to Madrid, first the mother and latterly the father.
Up to this point of time the parents had evinced no wish to the foster
parents to have the infant back with them in Madrid, apart from a suggestion
for a holiday. But in July, 1963, the foster mother wrote to the mother
what has been described as a tactless and most unfortunate letter. In this
letter she described how the infant had become integrated with their family;
he had gone to an English school and he had grown up an English boy with
English habits, and that it would be most disturbing for him to have to return
to live with his parents in Madrid. She also made critical remarks about the
infant’s father. This letter produced the not unexpected reaction from the
mother who, after some previous correspondence, wrote on 25th September,
1963, to the Surrey County Council, in whose official care the infant was,
asking for the infant’s return. The Local Authority did not act with con-
spicuous consistency or good sense. After appearing to agree to the mother’s
request they subsequently, after receipt of a letter from the foster parents
expressing their point of view, resolved, upon the advice of counsel, to apply
to the Chancery Division to have the infant made a ward of court, which was
done on 16th December, 1963.
The proceedings took some considerable time to reach the judge and the
parents were unfortunately led to believe by a letter from the Surrey County
Council that they would be represented by counsel at the hearing who would
state their case for them. For this reason the parents only lodged written
representations, which had been prepared for them by a Spanish lawyer.
These, however, did express their wish for the infant’s return. Affidavits
were lodged by various other parties. After a hearing on 22nd July, 1965,
Ungoed-Thomas J. ordered that the infant remain a ward of court, that
the care and control be committed to the foster parents, that the infant be
brought up in the Roman Catholic faith and in the knowledge and recogni-
tion of his parents and in knowledge of the Spanish language.
Two years were to elapse before the final stage of the proceedings took
place before the same judge. This stage had been initiated by the parents’
summons—asking that they should have the care and control of the infant.
This was made on 10th May, 1967. An application was also made by the
foster parents that the infant be brought up in the Protestant faith. This
request for a change in the boy’s religious upbringing was prompted by a
desire on the foster parents’ part that he should enter a choir school so
as to avoid expense. The most convenient school was a Protestant school.
The Official Solicitor also entered the proceedings, having been appointed
next friend. On this occasion the judge heard evidence from all the parties
and his judgment was given on 31st July, 1967. No order was made on
either application and his order was dated 20th September, 1967. Owing
to various delays, for which none of the parties is responsible, the Court
of Appeal hearing did not take place until 5th July, 1968, and the order
of the Court of Appeal dismissing the appeal was made on 30th July, 1968.
In retrospect it is unfortunate that at the first hearing in 1963 before the
judge the full facts were not before him. It is apparent that at that stage
he was uncertain of the ability of the mother, on the ground of her health,
to look after the child and he was not sure in his own mind that the parents
genuinely desired the infant’s return. It may be that if more expedition had
been exercised by the parties in bringing the case to trial and the full facts
had been known at the time, the judge’s decision might well have been
different in 1963. In 1963 when the parents first asked for the infant’s
3
return he was only five years old and he had only been parted from his
parents for a matter of two years. Even in 1965 he was only seven years
old, but by the time of the second hearing he was nine and a half and
he is now ten and a half years old. He has been at school in England since
January, 1963. He has not seen his parents since 1961, when he was three,
and apart from a matter of twenty seven months he has been living con-
tinually in the home of the foster parents with their family. There is no
doubt, as the learned judge found, that the infant lives in happy surroundings
in a united and well integrated family. The mixed families have made it
particularly easy for him to become integrated. He speaks English and
only pidgin Spanish. He is especially friendly with Piers the child of the
marriage of the foster parents who is only a little younger than him.
It is right at this stage to say that the house in which the parents now
live in Madrid is entirely suitable for the reception of the infant. It contains
three bedrooms and is in a modern block of flats in quite different
surroundings from the previous home. The father is in good steady employ-
ment at a weekly wage of about £18 and the mother’s health has been
completely restored.
The reason which has impelled the judge to take the unusual step of
taking the care and control from the parents and giving it to strangers
is that, in his view, the risk of plunging this boy of ten and a half years
into a Spanish family, where he has not seen his parents since he was aged
three and into a foreign country, would be too great to take and that the
adjustment necessary might well permanently injure the infant’s health
at the impressionable age at which he has arrived. The judge has regarded
the infant’s welfare as the paramount consideration and he has decided
that this demands that he should remain with his foster parents.
Counsel for the Appellants accepted that he could not ask the House
to overrule ‘the discretion which has been exercised by the trial judge
unless he could show that it had been exercised upon some wrong principle.
This concession could not have been withheld. It is not for this House
to retry the case on the facts. The Appellants argued that there were three
grounds upon which it could be said that the judge’s decision had been
exercised upon a wrong principle.
Although this is not the order in which counsel presented his arguments
for the Appellants, I will first deal with the proposition that as the effect of
the judge’s order was a de facto adoption order he ought not to have
made it. Under sections 4 and 5 of the Adoption Act, 1958, no order
for the adoption of a child can be made without the consent of the
parents. The result of the order giving the care and control of this infant
to the foster parents has, it is said, the effect of adoption because it is
accepted that it is unlikely that, although the order is until further orders,
the child will return to his parents in Madrid at any rate until he leaves
school. There are, however, substantial differences between an adoption
order and the order giving care and control to the foster parents. The
most important difference is that an adoption order is permanent, while
this order can be varied at any time. In any case if the infant’s welfare
demands the order, the Judge is entitled to make the order, albeit its
effect bears certain similarities to an adoption order. I do not think
there is any substance in this argument.
I turn next to what is the most important submission. It is argued
that united parents are prima facie entitled to the custody of their infant
children and that the Court of Chancery as representing the Queen as
parens patriae will only deprive them of the care and control of their infant
children if they are unfitted by character, conduct or position in life to
have this control and that in the case of what has been described as an
unimpeachable parent the court must, unless in the very exceptional case,
give the care and control to the parent.
This argument for the Appellants necessitates a review of the authorities
since 1848 when In re Fynn (1848) 2 De G. and Sm. 457 was decided.
4
This was a case in which a father was held disentitled to the custody of his
infant children on account of his conduct. Knight Bruce V.C., at page
474, said:
” The acknowledged rights of a father with respect to the custody
” and guardianship of his infant children are conferred by the law, it
” may be with a view to the performance by him of duties towards the
” children, and, in a sense, on condition of performing those duties ;
” but there is great difficulty in closely defining them. It is substantially
” impossible to ascertain or watch over their full performance ; nor
” could a Court of justice usefully attempt it. A man may be in
” narrow circumstances ; he may be negligent; injudicious and faulty
” as the father of minors ; he may be a person from whom the discreet,
” the intelligent and the well-disposed, exercising a private judgment,
” would wish his children to be, for their sakes and his own. removed ;
” he may be all this without rendering himself liable to judicial
” interference, and in the main it is for obvious reasons well that it
” should be so. Before this jurisdiction can be called into action
” between them il must be satisfied, not only that it has the means of
” acting safely and efficiently, but also that the father has so conducted
” himself, or has shewn himself to be a person of such a description,
” or is placed in such a position, as to render it not merely better for
” the children, but essential to their safety or to their welfare, in
” some very serious and important respect, that his rights should be
” treated as lost or suspended—should be superseded or interfered
” with. If the word ‘ essential’ is too strong an expression, it is
” not much too strong.”
The principle upon which the Chancery Courts acts is expressed by
the Lord Chancellor, Lord Cranworth, in Hope v Hope 4 De G.M & G. 328
ai pages 344 and 345 :
” The jurisdiction of this Court, which is entrusted to the holder of
” the Great Seal as the representative of the Crown, with regard to the
” custody of infants rests upon this ground, that it is the interest of
” the State and of the Sovereign that children should be properly
” brought up and educated ; and according to the principle of our law,
” the Sovereign, as parens patriae, is bound to look to the maintenance
” and education (as far as it has the means of judging) of all his
” subjects.”
After an interval of some years there followed In re Agar-Ellis (1883)
24 Ch.D 317 where strong expressions as to the father’s rights as to his
child are to be found. Brett M.R. said: “The Court could not interfere
“… except in the umost need and in the most extreme case “. Later he
says that the Court has no right to interfere with the sacred right of
a father over his children (quoting Bacon V.C. in Re Plomley 474 L.T.
(N.S.) 284). Cotton L.J. at page 333 says that the only cases where the
Court will interfere with the rights of a father over children are where
he has shown by his conduct that he is extremely unfit in any respect to
exercise his parental authority and duties as a father. Earlier in his
judgment he had spoken of the Court interfering with ” the discretion
” of the father “. Bowen L.J. at page 337 speaks of the right of family
life being sacred, and refers to Kindersley V.C. in In re Curtis 28
L.J.(Ch.)458 with approval. This passage in the latter case at page 459-460
reads as follows:
” This Court does not exercise the jurisdiction in merely considering
” whether it would be for the benefit of the children that their custody
” should be with the father or with the mother, or with some other
” relative, or with strangers, simply because, upon the whole, it would
” be most for the benefit of the children that there should be that
” custody. I repudiate all such jurisdiction as belonging to this
” Court. If such a jurisdiction existed, I suspect that the peace of
” half the families in this country would be disturbed by applications
” shewing, or attempting to shew, what, I am afraid, might be shewn
5
” in at great many cases, that it was most for the interest of the
” children that they should be removed from the custody both of the
” father and of the mother; but happily there is no such jurisdiction.
” I need not cite cases upon this subject, but I will refer to one which
” has not been mentioned, with reference to the interference with a
” father’s authority and parental rights as regards his children. I
” mean the case of Re Fynn, and I cite it merely for the purpose of
” shewing how the learned judge who decided that case (the present
” Lord Justice Knight Bruce, then Vice Chancellor) expressed what
” was the ground of the jurisdiction, the manner of exercising, and
” the principles on which the Court does exercise, that jurisdiction.”
Cotton L.J. continues at page 337:
” Those are as to the rights of family life. Then we must regard
” the benefit of the infant; but then it must be remembered that if
” the words ‘ benefit of the infant’ are used in any but the accurate
” sense it would be a fallacious test to apply to the way the Court
” exercises its jurisdiction over the infant by way of interference with
” the father. It is not the benefit to the infant as conceived by the
” Court, but it must be the benefit to the infant having regard to the
” natural law which points out that the father knows far better as a
” rule what is good for his children than a Court of Justice can.”
Up to this point the rights of the father appear to have been predominant
and he would only be disentitled to these rights if he had by his conduct
shown himself unfit to exercise them. The welfare of the infant appears
to have been a subsidiary consideration. However, in 1886 the Guardian-
ship of Infants Act was passed which, by section 1, provided that on the
death of the father of an infant the mother was to be the guardian and
section 5 entitled the mother to apply to the Court who might make such
order as they thought fit as to custody ” having regard to the welfare of
” the infant” and to the conduct of the parents and to the wishes as well
of the mother as of the father. The mother is thus given equal rights
with the father and the welfare of the infant is for the first time enshrined
in statute and given a preferential position. By sections 1 and 2 of the
Custody of Children Act, 1891, it was provided that the Court will interfere
with the rights of the parents in the interests of the welfare of the child.
In In re McGrath (Infants) [1893] 1 Ch. 143 Lindley L.J. delivering the
judgment of the Court said at page 148:
” The dominant matter for the consideration of the Court is the
” welfare of the child. But the welfare of a child is not to be
” measured by money only, nor by physical comfort only. The word
” welfare must be taken in its widest sense. The moral and religious
” welfare of the child must be considered as well as its physical well-
” being. Nor can the ties of affection be disregarded.”
It will be seen that welfare of the child is becoming as important a con-
sideration as the rights of the parents.
In The Queen v. Gyngall [1893] 2 Q.B. 232 a mother was refused the
custody of an infant aged 15. Lord Esher M.R., after saying that at
common law a parent had as against other persons generally an absolute
right to the custody of the child unless he or she had forfeited it by certain
sorts of misconduct, proceeded at page 239 to explain the paternal juris-
diction of the Chancery Court which was exercised in the interests of the
welfare of the infant. He thereafter quoted with approval the observations
of Lindley L.J. in McGrath above referred to, as does A. L. Smith L.J. at
page 253.
At the turn of the century a more enlightened view appears to have
been taken, at any rate in Ireland, in regard to the parents’ rights. In re
O’Hara [1900] 2 I.R. 232 Lord Ashbourne C. said at page 239:
” I rest my judgment on the broad ground that the mother is entitled
” to the custody of the child; and there is nothing in her conduct,
” her character, or her present position to induce any Court to take
” away her child from her.”
6
But FitzGibbon L.J. stated at page 239:
” The following principles appear to be settled:—1, At Common
” Law, the parent has an absolute right to the custody of a child of
” tender years, unless he or she has forfeited it by certain sorts of mis-
” conduct; 2, Chancery, when a separate tribunal, possessed a jurisdiction
” different from that of the Queen’s Bench, and essentially parental, in
” the exercise of which the main consideration was the welfare of the
” child, and the Court did what, on consideration of all the circum-
” stances, it was judicially satisfied that a wise parent, acting for the
” true interests of the child, would or ought to do, even though the
” natural parent desired and had the Common Law right to do other-
” wise, and had not been guilty of misconduct; 3, The Judicature Act
” has made it the duty of every Division of the High Court to exercise
” the Chancery jurisdiction ; 4, In exercising the jurisdiction to control
” or to ignore the parental right the Court must act cautiously, not as
” if it were a private person acting with regard to his own child, and
” acting in opposition to the parent only when judicially satisfied that
” the welfare of the child requires that the parental right should be
” suspended or superseded.”
Those principles he took from the judgments of Lord Esher M.R. and
Kay L.J. in Gyngall’s case (sup.cit) (see also Holmes L.J. at page 250) and
later in his judgment he said at page 241:
” The Court, acting as a wise parent, is not bound to sacrifice the
” child’s welfare to the fetish of parental authority, by forcing it from
” a happy and comfortable home to share the fortunes of a parent,
” however innocent, who cannot keep a roof over its head, or provide
” it with the necessaries of life.”
Holmes L.J. at 251, after saying that previous to the Judicature Act a parent
was held at common law to have, as against strangers, an absolute right to
the custody of his or her child of tender years unless he or she had forfeited
it by certain kinds of misconduct, continued :
” The Court of Chancery, from time immemorial, has exercised
” another and distinguishable jurisdiction—a jurisdiction resting on the
” paternal authority of the Crown, by virtue of which it can supersede
” the natural guardianship of a parent, and can place a child in such
” custody as seems most calculated to promote its welfare.”
and at page 253 :
” No doubt, the period during which a child has been in the care of
” the stranger is always an important element in considering what is best
” for the child’s welfare. If a boy has been brought up from infancy
” by a person who has won his love and confidence, who is training
” him to earn his livelihood, and separation from whom would break
” up all the associations of his life, no Court ought to sanction in his
” case a change of custody.”
” Welfare of a child ” said Holmes L.J. at page 254, means ” welfare in its
” widest sense “.
There is a remarkable dearth of authority after the beginning of the
twentieth century until 1926. In 1925 the Guardianship of Infants Act
was passed. It is around section 1 of this Act that some of the controversy
in the present case has centered. Section 1 is in the following terms:
” Where in any proceeding before any court (whether or not a court
” within the meaning of the Guardianship of Infants Act. 1886) the
” custody or upbringing of an infant, or the administration of any pro-
” perty belonging to or held on trust for an infant, or the application of
” the income thereof, is in question, the court, in deciding that question,
” shall regard the welfare of the infant as the first and paramount con-
” sideration, and shall not take into consideration whether from any
” other point of view the claim of the father, or any right at common
” law possessed by the father, in respect of such custody, upbringing,
” administration or application is superior to that of the mother, or the
” claim of the mother is superior to that of the father.”
7
The Appellants’ counsel argued that the first limb of the section was limited
to questions in regard to the custody of infants between parents inter se
and had no application to questions between parents and strangers. He relied
upon the second limb of the section and on the preamble which is in the
following terms:
” Whereas Parliament by the Sex Disqualification (Removal) Act,
” 1919, and various other enactments, has sought to establish equality
” in law between the sexes, and it is expedient that this principle should
” obtain with respect to the guardianship of infants and the rights and
” responsibilities conferred thereby: ‘”
He argued that in regard to disputes between parents and strangers the
previous law still prevailed and that apart from the limited category of cir-
cumstances outlined in Fynn in which a father was deprived of his rights to
custody the wishes of the parents must prevail.
I have these comments to make on this submission. First, in my view
the law administered by the Chancery Court as representing the Queen as
parens patriae never required that the father’s wishes should prevail over
the welfare of the infant. The dominant consideration has always been the
welfare of the infant. This can be demonstrated by a reference to the Irish
case in the House of Lords of Ward v. Laverty [1925] A.C.101 a case decided
before the 1925 Act in Northern Ireland where—the 1925 Act never applied.
Viscount Cave’s opinion is at page 108 where he states:
” The law in these cases is well settled, and, indeed, is not contested
” by the learned counsel who argued the case before this House. On the
” question of the religion in which a young child is to be brought up,
” the wishes of the father of the child are to be considered ; and, if there
” is no other matter to be taken into account, then, according to the
” practice of our Courts, the wishes of the father prevail. But that rule
” is subject to this condition, that the wishes of the father only prevail
” if they are not displaced by considerations relating to the welfare of
” the children themselves. It is the welfare of the children, which,
” according to rules which are now well accepted, forms the paramount
” considerations in these cases. Some of the earlier judgments contain
” sentences in which perhaps greater stress is laid upon the father’s
” wishes than would be placed upon them now ; but in the more recent
” decisions, and especially since the passing of the Guardianship of
” Infants Act, 1886, section 5 of which Act shows the modern feeling
” in these matters, the greater stress is laid upon the welfare and happiness
” of the children. It is, of course, still true, as the learned counsel who
” argued the case quite properly said, that a sufficient case must be made
” for going contrary to the father’s wishes; but, if such a case is made,
” then the Courts have no hesitation in deciding upon the whole facts
” of the case.”
The other noble Lords concurred in this opinion. It is clear to me that
even prior to the 1925 Act the paramount consideration in regard to the
custody of infants was the infant’s welfare. The father’s wishes were to be
considered but only as one of the factors as bearing on the child’s welfare.
The father had no ” right” as such to the care and control of his infant
children. The absence of authority in the intervening years between 1900
and 1925 may have been due to the fact that the change in the climate of
social conditions was taking place gradually and its influence on the Courts
was almost imperceptible and was taking place in the chambers of the
Chancery Courts. But whatever may have been the state of the law prior
to the 1925 Act section 1 of that Act set any doubts at rest and made it
perfectly clear that the first and paramount consideration was the welfare
of the infant. I do not agree with the Appellants’ construction of section 1.
It is, in my view, of universal application and is not limited in its application
to questions as between parents. The preamble of an Act cannot control the
ambit of sections of an Act (see Attorney-General v. Prince Ernest Augustus
of Hanover [1957] A.C. 436 per Viscount Simonds: “Assistance may be
” obtained from the preamble to a statute in ascertaining the meaning of the
” relevant enacting part, since words derive their colour and content from
8
” their context. But the preamble is not to affect the meaning otherwise
” ascribable to the enacting part unless there be a compelling reason and it
” is not a compelling reason that the enacting words go further than the
” preamble indicated.”)
This view of the law is confirmed by the cases, apart from one exception,
which followed the passing of the 1925 Act. The first is In re Thain
[1926] Ch. 676 in which occurs the classic passage of Eve J. at page 684:
” As I said at the commencement of my judgment, I am satisfied
” that the child will be as happy and well cared for in the one home
” as the other, and inasmuch as the rule laid down for my guidance
” in the exercise of this responsible jurisdiction does not state that the
” welfare of the infant is to be the sole consideration but the paramount
” consideration, it necessarily contemplates the existence of other condi-
” tions, and amongst these the wishes of an unimpeachable parent
” undoubtedly stand first. It is my duty therefore to order the delivery
” up of this child to her father.”
The Court of Appeal consisting of Lord Hanworth M.R., Warrington and
Sargant L.JJ., approved of the judgment.
Shortly after this there next occurred the case of In re Carroll [1931]
1 K.B.317 which I have found a difficult case. The headnote reads:
” Save as regards the respective claims of married parents as against
” one another, there has been no change of attitude on the part of the
” Legislature between the years 1891 and 1926 in respect of the wishes
” of the parents with regard to the custody of infant children. Not-
” withstanding that the Guardianship of Infants Act, 1925, has provided
” that the welfare of the infant is the first and paramount consideration
” for the Court in deciding a question with respect to the custody or
” upbringing of the infant, nevertheless the Court cannot, in the case
” of a child too young to have any views of its own, disregard the
” desire of its only parent unless that parent has so neglected his or her
” duty as no longer to deserve consideration.”
The Court of Appeal reversed a judgment of the Divisional Court which
had given the custody of an infant of two years to an Adoption Society.
Scrutton L.J. at page 337 said :
” The Lord Chief Justice was apparently of opinion that there had
” been a change of thought and attitude in the last forty years towards
” the problem we have been considering. Except that the mother’s
” wishes have been put on an equality with the father I can see
” no such change. The Act of 1886 seems to me similar to the Act of
1925, except that the equality of the parents is made more pronounced.”
Slesser L.J. at the outset of his judgment refers to the parent as ” guardian by
” nature and nurture ” and refers to the mother’s wishes as being primarily
to be considered. At page 355 in his judgment, referring to the Guardianship
of Infants Act, 1925, he said:
‘ This statute, however, in my view, has confined itself to questions
” as between the rights of father and mother which I have already
” outlined—problems which cannot arise in the case of an illegitimate
” child, and when we consider the whole history of the matter as I have
” endeavoured to do, it is difficult to see how that Act can affect
” the principles laid down in Barnardo v. McHugh or how it can be
” said from a consideration of that statute that there has been a
” development of thought between 1891 and 1926, as was stated by the
” Lord Chief Justice in the Divisional Court.”
He refers with apparent approval to In re Fynn (sup cit) and speaks of ” the
” mother’s right ” Finally, on page 362, he expresses himself, after criticis-
ing the judgment of the Lord Chief Justice in the Divisional Court, in these
words:
” As I have already indicated, I am of opinion first, that as regards the
” authorities, the cases of Barnardo v. McHugh and Gyngall have as
” binding an effect as they had when they were delivered and, secondly,
” that for the reasons I have already given, neither of the statutes cited
9
” by the learned judge has modified the considerations of immemorial
” right of parents by nature and nurture which we have here to regard.
” I have already expressed by view as to the latter statute of 1925,
” that it is dealing merely with the respective rights of the father and
” mother, and I would only add that, if there be any ambiguity in the
” language, so that we are entitled to look at the preamble; that pre-
” amble in terms states: ‘ Whereas Parliament by the Sex Disqualifica-
” ‘ tion (Removal) Act, 1919, and various other enactments, has sought
” ‘ to establish equality in law between the sexes, and it is expedient
” ‘ that this principle should obtain with respect to the guardianship
” ‘ of infants and the rights and responsibilities conferred thereby ‘.”
If these observations of Scrutton and Slesser L.JJ. formed part of the
decision, then I consider the case was wrongly decided. If, on the other
hand, the observations did not form part of the judgment then they went far
beyond what was necessary for the decision and they are, in my view, not
well founded.
If these observations had been followed in subsequent years the clock
might well have been put back. But we find a fairly consistent line of
authority after 1931 which coincides with the view of Viscount Cave in
Ward v. Laverty (sup cit). Morton J. in In re B’s Settlement v. Collins
[1940] Ch. 54 said that whatever may have been the position before the
1925 Act, the Court is always bound, in dealing with questions of custody, to
consider first the welfare of the infant and to treat it as the paramount
consideration.
Coming to more recent times Danckwerts L.J. in In re Adoption Applica-
tion 41/61 [1963] 1 Ch. 315, at page 328 disposed of the view held by Penny-
cuick J. in an unreported case, that the 1925 Act only applied in relation
to questions as between parents relying as he did in In re Thain and In re
Carroll. The Lord Justice dealt very fully with the history of the Chancery
jurisdiction and concluded that the Guardianship of Infants Act, 1925,
” introduced no change in the law ” except so far as the claims of the
mother were concerned. He very clearly and accurately stated the position
at page 329 when he said:
” But I would respectfully point out that there can only be one ‘ first
” ‘ and paramount consideration ‘, and other considerations must be
” subordinate. The mere desire of a parent to have his child must be
” subordinate to the consideration of the welfare of the child, and
” can be effective only if it coincides with the welfare of the child.
” Consequently, it cannot be correct to talk of the pre-eminent position
” of parents, or of their exclusive right to the custody of their children,
” when the future welfare of those children is being considered by the
” court.”
I forbear to quote the numerous other authorities to which we were referred
which are all to the same effect on this question.
Upon this examination of the authorities I am satisfied that the conten-
tion for the Appellants as to the principles which the learned judge ought
to have applied is not well founded.
In arriving at his decision the learned judge accepted as a general proposi-
tion that it is for the child’s welfare to be in the custody of unimpeachable
parents and this was a matter he weighed in coming to his decision. He
declined, quite rightly, in my view, to accept this as a general rule invariably
and automatically. It would, in my view, be undesirable in any case that
the judge’s discretion in wardship proceedings should be limited in this way.
This would be to put the Chancery Judge in a strait jacket and would prevent
him fulfilling his duty under section 1 of the Guardianship of Infants Act,
1925, which is to have regard to the infant’s welfare as the first and para-
mount consideration. The judge referred with approval to the observations
of Danckwerts L.J. in In re Adoption Application 41/16 (sup cit) already
quoted and, in my view, he correctly applied those principles in arriving at
his judgment.
10
The final argument for the Appellants had special reference to the Spanish
nationality of the infant and his parents. While it was accepted that the
English Court of Chancery has jurisdiction over foreign infants resident
in this country, it was argued that in the interests of ” comity ” the Court
ought not to exercise that jurisdiction after united foreign parents have
requested the return of their child who had only been temporarily sent to
this country. An alternative argument was presented to the effect that if the
Courts do exercise jurisdiction it should be limited to consideration whether
the child has parents whose rights are recognised by our law.
In my view, these arguments are wholly misconceived. The law on comity
is stated by Dicey, Conflict of Laws (8th edition) rule 52 at page 397:
” A custody order made by a foreign court does not prevent the court
” from making such custody orders in England in respect of the infant
” as having regard to his welfare, it thinks fit.”
(see also Cheshire, Private International Law (7th edition) page 387). The
basis of the doctrine of comity is that there has been an order by a foreign
court and that the English Court will be constrained on the ground of
comity to do nothing to conflict with that court’s order. But there is no
case reported where ” comity ” has operated in the case of a foreign national
where there has been no order of a foreign court. Even then, a custody order
by a foreign court will not prevent an English Court from making a custody
order having regard to the welfare of the infant (see In re B’s Settlement (sup
cit)). National status is merely one of the factors which the judge in exercis-
ing his discretion will take into consideration. This the learned judge has
done and there is, in my view, no ground for criticism of his judgment in this
respect.
The learned judge had before him the evidence of a psychiatrist, Dr. Gough,
who had examined the infant on at least two occasions and expressed the
opinion that the chances of the infant’s successful adjustment in Spain with
his own family were in the circumstances slight and if it were not achieved
there would be the greatest damage to the child’s emotional stability and
happiness. The judge stated that he would have arrived at the same conclu-
sion apart from the evidence of Dr. Gough. It is indeed a matter of inference
which the judge apart from medical advice, could draw for himself from the
whole circumstances.
A factor which influenced the judge was that the readjustment of the
infant into the Spanish family would require great sympathy and understand-
ing on the part of his parents. He thought that the mother would be helpful
and loving. He was, however, doubtful about the father’s capacity to help in
the adjustment process which might be long and difficult. Letters which the
father wrote to the foster mother relating to a matter unrelated to this case
gave the impression of crudity and boorishness. The evidence before the
judge confirmed this impression. In these circumstances the judge was
impelled to the conclusion:
” It is with regret that I must state that it appears clear to me that
” the parents would be quite unable to cope with the problems of adjust-
” ment or with consequential maladjustment and suffering and that the
” father’s character would inflame the difficulties.”
He felt that he could not take the risk of returning the boy to his parents
in Spain.
I find it quite impossible to say that there was no evidence upon which
the learned judge could reach this conclusion or that he was not entitled to
exercise his discretion in refusing to send the infant back to Spain.
I would dismiss the appeal.
Lord Macdermott
my lords,
The infant respondent is now a boy of ten who has lived in England con-
tinuously since July, 1961, with the other Respondents, a solicitor and his
wife whom I shall refer to as the foster parents. The Appellants are the
11
boy’s natural parents, a married couple of Spanish nationality who have their
home in Madrid. The issue throughout the litigation has been as to the boy’s
future custody, the rival claimants being, on the one hand, the foster parents
with whom the boy has been living and, on the other, the natural parents.
In 1965, and again in 1967, Ungoed-Thomas J. found in favour of the foster
parents on this issue. The parents having appealed, the Court of Appeal
dismissed their appeal and they now ask your Lordships to reverse this
decision and to grant them the custody care and control of the boy, with
liberty to remove him out of the jurisdiction.
The course of the dispute and certain aspects of the evidence present a
story which is involved and at times rather confused ; but whether this needs
to be traced in detail depends on the answer to be given to a question of law
which stands on the threshold of the case and to which I turn at once.
Mr. Alexander for the appellants conceded that if the Courts below had
applied the right principles of law in reaching the decision appealed from
he could not succeed in asking your Lordships to disturb that decision. The
substance of his main argument may be stated shortly. All parties were agreed
that the Courts had jurisdiction and a duty to interfere with the natural right
of parents to have the care control and custody of their child if the welfare
of the child required and the law permitted that course to be taken. But
there agreement ended. For the Appellants it was submitted that the Court
were in law bound to presume that the welfare of the child was best served by
allowing him to live with his parents unless it was shown that it was not
for his welfare to do so because of their conduct, character or station in life.
Mr. Waite for the boy and Mrs. Puxon for the foster parents submitted
on the other hand, that there was no such presumption of law, that the
paramount and governing consideration was the welfare of the child and
that the claim of natural parents, although often of great weight and cogency
and often conclusive, had to be regarded in conjunction with all other relevant
factors, and had to yield if, in the end, the welfare of the child so required.
The question of law under discussion is therefore whether there now is such
a preumption as that contended for by the Appellants, or whether the correct
process of adjudication is, instead, to consider all material aspects of the case,
including the claims of the parents, and then to decide in the exercise of a
judicial discretion what is best for the welfare of the child. I have already
mentioned Mr. Alexander’s concession as to the position if his argument does
not prevail. I may add here that if it does prevail the appeal, in my opinion,
is bound to succeed since (a) the evidence shows no defects of character
or conduct on the part of the parents sufficient to disentitle them to custody,
and (b) their position in life has so improved as to be no longer capable in
itself of constituting an answer to their claim.
Before the Judicature Act of 1873, the Common Law Courts recognised
an almost absolute right in the father to the custody of his child and assumed
no discretionary power to interfere with such custody except in very extreme
cases. As Lord Campbell said in R. v. Clarke. 7 El. & Bl. 186 at 198;
119 E.R. 1217 at 1221: ” There is an admitted qualification on the right of
” the father or guardian, if he be grossly immoral, or if he wishes to have the
” child for any unlawful purpose.” It would seem, however, that the case
had to be bad indeed before the Common Law Courts would intervene.
With a father claiming custody, the welfare of the child as a test in itself was
generally without relevance.
The Court of Chancery exercised a wider and more benevolent discretion,
but in this equity usually followed the law to the extent of accepting that
the discretion to interfere was limited to certain types of case. This appears
very clearly from the decision of Sir James Knight Bruce in the Vice-
Chancellor’s Court in In re Fynn, [1848] 2 De G. & Sm. 457; 64 E.R. 205,
a decision on which Mr. Alexander placed strong reliance. There the father’s
conduct left so much to be desired that the Vice-Chancellor had no hesitation
in saying that as a private person—i.e. not as a judge sitting in Court—he
would have interfered with the father’s power. But as a judge he had to
12
regard the limits of his Court’s jurisdiction; and this is how, at p. 474,
E.R. 212, he described those limits:
” But there may and must be many cases of conduct, many cases of
” family differences, family difficulties, and family misfortunes, in which,
” though interposition would be for the interest and advantage of minor
” children, Courts of Justice have not the means of interfering usefully,
” or, if they have the means, ought not to interfere ; and the jurisdiction
” to which the present petition is addressed is one that, infinitely various
” as are the possible circumstances in which it is applicable, is yet
” restricted, and I believe wisely restricted, by certain principles and
” rules from which there can with propriety be in its exercise no
” departure.”
And then a little later the Vice-Chancellor continued—
” Before this jurisdiction can be called into action between them it
” must be satisfied, not only that it has the means of acting safely and
” efficiently, but also that the father has so conducted himself, or has
” shewn himself to be a person of such a description, or is placed in
” such a position, as to render it not merely better for the children, but
” essential to their safety or to their welfare, in some very serious and
” important respect, that his rights should be treated as lost or suspended
” —should be superseded or interfered with. If the word ‘ essential’
” is too strong an expression, it is not much too strong.”
If such be still the law the Appellants’ case would stand high; but the
course of both authority and legislation during the 120 years which have
elapsed since Fynn’s case shows a change in the law, and the question is
how far that change has gone.
The authorities are not consistent and the way along which they have
moved towards a broader discretion, under the impact of changing social
conditions and the weight of opinion, has many twists and turns. In these
circumstances no useful purpose would be served by an exhaustive citation.
A few examples will suffice to indicate the trend which, it may be observed,
was probably fashioned to a considerable degree by unreported cases heard
mostly in Chambers.
In In re Agar-Ellis, [1883] 24 Ch. D. 317, the Court of Appeal did not,
either in its reasoning or its decision, demonstrate any appreciable enlarge-
ment in the attitude of the law. This appears from the following excerpts, at
pp. 337 and 338, from the judgment of Bowen L.J.: —
” Then we must regard the benefit of the infant; but then it must
” be remembered that if the words ‘ benefit of the infant’ are used in
” any but the accurate sense it would be a fallacious test to apply to the
” way the Court exercises its jurisdiction over the infant by way of
” interference with the father. It is not the benefit to the infant as
” conceived by the Court, but it must be the benefit to the infant having
” regard to the natural law which points out that the father knows
” far better as a rule what is good for his children than a Court of
” Justice can.”
And again:
” But still the father has the natural authority. Except in cases of
” immorality, or where he is clearly not exercising a discretion at all,
” but a wicked or cruel caprice, or where he is endeavouring to withdraw
” from the protection of the Court, which is entrusted with such protec-
” tion by law, the custody of the infant, as a rule this Court does not
” and cannot interfere, because it cannot do so successfully, or I should
” rather say because it cannot do so with the certainty that its doing
” so would not be attended with far greater injury both to the infant
” itself and also to general social life.”
And finally:
” As soon as it becomes obvious that the rights of the family are
” being abused to the detriment of the interests of the infant, then the
” father shews that he is no longer the natural guardian—that he has
13
” become an unnatural guardian—that he has perverted the ties of
” nature for the purpose of injustice and cruelty. When that case arrives
” the Court will not stay its hand; but until that case arrives it is not
” mere disagreement with the view taken by the father of his rights
” and the interests of his infant that can justify the Court in
” interfering.”
In re McGrath (Infants), [1893] 1 Ch. 143, concerned the children of
parents who were both dead, and the question of custody turned on the
religion in which they should be brought up. The application was for
a change of guardianship and the judgment of the Court of Appeal, which
was delivered by Lindley L.J., is significant in the importance now attached
to the question of welfare. Thus, at p. 148, we find this:
” The duty of the Court is, in our judgment, to leave the child alone,
” unless the Court is satisfied that it is for the welfare of the child that
” some other course should be taken. The dominant matter for the
” consideration of the Court is the welfare of the child. But the welfare
” of a child is not to be measured by money only, nor by physical com-
” fort only. The word welfare must be taken in its widest sense. The
” moral and religious welfare of the child must be considered as well
” as its physical well-being. Nor can the ties of affection be
” disregarded.”
Then, the same year, there is Reg. v. Gyngall, [1893] 2 Q.B. 232. There the
question was whether a widowed mother should have the custody of her
daughter, a girl of fifteen, who was in the charge of a lady who kept a home
at Weymouth. The proceedings had been instituted by the mother’s appli-
cation for a habeas corpus and they exemplify the assumption by the Queen’s
Bench Division, under section 25(10) of the Judicature Act, 1873, of the
former Chancery jurisdiction in relation to the custody of infants. But it
is on the present issue that the judgements of the Court of Appeal are of
outstanding importance. They agreed, affirming the Courts below, that the
mother should not be given custody, and they undoubtedly enlarge the views
as to jurisdiction expressed in In re Fynn by Knight Bruce V.C. The mother’s
conduct was not impugned and the submission advanced on her behalf was
based on her parental rights as fortified by sections 2 and 4 of the Guardian-
ship of Infants Act, 1886. Except in cases of misconduct or desertion or
abandonment of the parental right, the argument continued, the Court could
not ” interfere with the rights of the parent or consider either what the wishes
” of the child may be, or what they may think to be most for its benefit”.
Lord Esher M.R. approached the judgement of Knight Bruce V.C. in In re
Fynn with respectful caution, but there can, I think, be no doubt that he
and the other members of the Court were not content to adopt the strictly
circumscribed view of the Vice-Chancellor on the question of jurisdiction, and
that they thought that much greater emphasis should be laid on the welfare of
the child. In this connection I may leave the following excerpts from the
judgments to speak for themselves, and in view of the nature of the issue
which your Lordships have been called upon to decide, I feel no need to
apologise for the length of my quotations.
After a reference to what Lindley L.J. had said in In re McGrath, Lord
Esher (at page 243) proceeded thus—
” The Court has to consider, therefore, the whole of the circumstances
” of the case, the position of the parent, the position of the child, the
” age of the child, the religion of the child so far as it can be said to
” have any religion, and the happiness of the child. Prima facie it
” would not be for the welfare of a child to be taken away from its
” natural parent and given over to other people who have not that
” natural relation to it. Every wise man would say that, generally
” speaking, the best place for a child is with its parent. If a child is
” brought up, as one may say, from its mother’s lap in one form of
” religion, it would not, I should say, be for its happiness and welfare
” that a stranger should take it away in order to alter its religious views.
” Again, it cannot be merely because the parent is poor and the person
14
” who seeks to have the possession of the child as against the parent is
” rich, that, without regard to any other consideration, to the natural
” rights and feelings of the parent, or the feelings and views that have
” been introduced into the heart and mind of the child, the child ought
” to be taken away from its parent merely because its pecuniary position
” will be thereby bettered. No wise man would entertain such sugges-
” tions as these. As Lindley, L.J., well pointed out in the case of In re
“ McGrath, it is the welfare of the child in the largest sense of the term
” that is to be considered. In the present case I proceed on the footing
” that the mother has not been guilty of any misconduct that would,
” as between her and other people, derogate from her natural right.
” The Court has to consider what is for the welfare of the child and for
” her happiness, what her prospects are if not interfered with, the fact
” that in a short time she will be able to choose for herself, and what
” her position will be if taken by the mother to live with her.”
Then, at page 248, Kay L.J., after referring to what Lord Eldon L.C. had
observed in De Manneville v. De Manneville, [1804] 10 Ves. 52; 32 E.R.
762, said:
” This statement of the jurisdiction shews that, arising as it does from
” the power of the Crown delegated to the Court of Chancery, it is
” essentially a parental jurisdiction, and that description of it involves
” that the main consideration to be acted upon in its exercise is the
” benefit or welfare of the child. Again, the term ‘ welfare ‘ in this
” connection must be read in its largest possible sense, that is to say,
” as meaning that every circumstance must be taken into consideration,
” and the Court must do what under the circumstances a wise parent
” acting for the true interests of the child would or ought to do. It is
” impossible to give a closer definition of the duty of the Court in the
” exercise of this jurisdiction.”
Later, at page 252, Kay L.J. after reviewing the facts added this :
” I cannot doubt that the Court has jurisdiction in this case to enable
” it to say that under the circumstances it would not be wise or for the
” interest of the child, but would be contrary to the interest and wel-
” fare of the child, to assist the mother in carrying out what she desires.
” For these reasons I think that this is a case in which, though no kind
” of aspersion can be cast on the character of the mother, we must,
” acting for the true welfare of the child, decline to assist the mother.”
A. L. Smith L.J. at the conclusion of a short concurring judgment came
back to the test which had guided the other members of the Court. He said,
at page 253:
” Considering her age, and the short time she can be kept away from
” the institution where she is being happily brought up, and wishes to
” remain, I think that, if we compelled her to leave, and handed her
” over to her mother, we should not be acting for the true ‘ welfare’
” of the child in the large sense in which the term was used by
” Lindley, L.J., in his judgment in the case of In re McGrath, to
” which I was a party.”
That brings me to the case of In re O’Hara, [1900] 2 Ir.R. 232, a decision
of the Irish Court of Appeal (Lord Ashbourne C, Fitzgibbon and Holmes
L.JJ.). There a girl of eleven was restored to the custody of her mother
who, having previously given the child into the custody of a former
employer, had re-married and wished to have her daughter with her in her
new home. Fitzgibbon L.J. summarised the relevant principles under four
heads. The last of these, derived as were the others, from Gyngall’s case,
is stated thus at p. 240:
” 4, In exercising the jurisdiction to control or to ignore the parental
” right the Court must act cautiously, not as if it were a private
” person acting with regard to his own child, and acting in opposition
” to the parent only when judicially satisfied that the welfare of the
” child requires that the parental right should be suspended or super-
” seded.”
15
That accords with what I may call the welfare test, but in a later
passage on pp. 240-241, Fitzgibbon L.J. went on to say:
” It appears to me that misconduct, or unmindfulness of parental duty,
” or inability to provide for the welfare of the child, must be shown
” before the natural right can be displaced. Where a parent is of
” blameless life, and is able and willing to provide for the child’s
” material and moral necessities, in the rank and position to which
” the child by birth belongs—i.e., the rank and position of the parent—
” the Court is, in my opinion, judicially bound to act on what is equally
” a law of nature and of society, and to hold (in the words of Lord
” Esher) that’ the best place for a child is with its parents.”
In that passage Fitzgibbon L.J. appears to be harking back to the earlier
and more restrictive view of the jurisdiction, but I do not think this was
the intention for the next paragraph of his judgment is in these terms:
” Of course I do not speak of exceptional cases—of which this,
” fortunately, is not one—where special disturbing elements exist, which
” involve the risk of moral or material injury to the child, such as the
” disturbance of religious convictions or of settled affections, or the
” endurance of hardship or destitution with a parent, as contrasted with
” solid advantages offered elsewhere. The Court, acting as a wise
” parent, is not bound to sacrifice the child’s welfare to the fetish of
” parental authority, by forcing it from a happy and comfortable home
” to share the fortunes of a parent, however innocent, who cannot
” keep a roof over its head, or provide it with the necessaries of life.”
Read together, these paragraphs of the judgment do not seem to me to
modify or detract from the fourth of the principles enunciated by the learned
Lord Justice and which I have quoted above. It is true that Lord Ashbourne
C. stated, at p. 239, that he rested his judgment
“… on the broad ground that the mother is entitled to the custody
” of the child ; and there is nothing in her conduct, her character, or
” her present position to induce any Court to take away her child from
” her.”
This reads like a return to the language of In re Fynn, but when the
judgments are considered fully I think the view of the Court, or at any
rate that of the Lords Justices, was clearly to affirm the welfare test
as an ultimate criterion.
In Ward v. Laverty, [1925] A.C. 101, this House affirmed an order of
the Court of Appeal in Northern Ireland that three young children should
remain in the custody in which they were being brought up as Presbyterians.
Both parents were dead but the father had by his will directed that the
children should be brought up in the Roman Catholic faith and the change
of custody sought was to enable this to be done. The appeal was heard
and decided in May, 1924. Viscount Cave, who expressed the views of the
House, stated the law in these terms at p. 108—
” Now, my Lords, upon those facts the question is what ought to be
” done as regards these children? The law in these cases is well
” settled, and, indeed, is not contested by the learned counsel who
” argued the case before this House. On the question of the religion
” in which a young child is to be brought up, the wishes of the father
” of the child are to be considered ; and, if there is no other matter
” to be taken into account, then, according to the practice of our Courts,
” the wishes of the father prevail. But that rule is subject to this
” condition, that the wishes of the father only prevail if they are not
” displaced by considerations relating to the welfare of the children
” themselves. It is the welfare of the children, which, according to rules
” which are now well accepted, forms the paramount considerations in
” these cases. Some of the earlier judgments contain sentences in
” which perhaps greater stress is laid upon the father’s wishes than
” would be placed upon them now ; but in the more recent decisions, and
” especially since the passing of the Guardianship of Infants Act, 1886,
16
” s. 5 of which Act shows the modern feeling in these matters, the
” greater stress is laid upon the welfare and happiness of the children.
” It is, of course, still true, as the learned counsel who argued the case
” quite properly said, that a sufficient case must be made for going
” contrary to the father’s wishes; but, if such a case is made, then the
” Courts have no hesitation in deciding upon the whole facts of the
” case.”
This passage while marking a substantial qualification of the father’s
common law rights is not expressly directed to the claim of one or both
parents for custody. But Viscount Cave spoke in general terms, and it is
notorious that custody and religious upbringing are frequently inter-woven
issues. These considerations and the reference to section 5 of the Act of
1886 indicate, to my mind, that the passage quoted was intended to extend
to a parent’s claim for custody.
At this point it will be convenient to note some of the legislative changes
which occurred during the period covered by the authorities I have men-
tioned, for Parliament as well as the Courts had been responding to what
Viscount Cave described as ” the modern feeling in these matters.” By the
Custody of Infants Act, 1839 (Talfourd’s Act), the mother of an infant in
the sole custody or control of the father was enabled to obtain from the
Court of Chancery an order for access and, until the child was of the age
of 7, an order for custody. This measure was replaced by the Custody of
infants Act, 1873, which (a) in effect granted the same form of relief but
with the age limit 16 instead of 7 ; and (b) enacted that an agreement in a
separation deed providing for a transfer of custody from the father to the
mother should not be invalid on that ground alone ; but this later provision
was made subject to the proviso that the Court should not enforce such an
agreement if of opinion that it would not be for the benefit of the infant to do
so. The Guardianship of Infants Act, 1886, carried reform a stage further.
Section 2 made a mother who survived the father the guardian of her infant
child either alone or jointly with a guardian appointed by the father or the
Court; section 3 conferred upon the mother powers of appointing a guardian
in certain cases; and section 5 empowered the Court upon the application
of the mother of the infant to
“… make such order as it may think fit regarding the custody
” of such infant and the right of access thereto of either parent, having
” regard to the welfare of the infant, and to the conduct of the parents,
” and to the wishes as well of the mother as of the father, . . .”
The Custody of Children Act, 1891, granted the Courts further powers
relating to the custody of children. By section 1 where the parent of a child
applies for a writ or order for the production of the child, the Court may
decline to issue the writ or make the order if ” of opinion that the parent
” has abandoned or deserted the child, or that he has otherwise so conducted
” himself that the Court should refuse to enforce his right to the custody
” of the child.” Then, under section 3, where a parent has abandoned or
deserted his child or allowed the child to be brought up in certain circum-
stances satisfying the Court that the parent was unmindful of his parental
duties, the Court
“… shall not make an order for the delivery of the child to the
” parent, unless the parent has satisfied the Court that, having regard to
” the welfare of the child, he is a fit person to have the custody of the
” child.”
I have referred to these statutes because, as in the case of the authorities,
they record an increasing qualification of common law rights and the
growing acceptance of the welfare of the infant as a criterion. In this way,
and like the trend of the cases, they serve to introduce the enactment which
has been so closely canvassed on the issue of law under discussion. It is
section 1 of the Guardianship of Infants Act, 1925, which was passed in the
year following the decision in Ward v. Laverty. This section follows a pre-
amble which runs thus: —
” Whereas Parliament by the Sex Disqualification (Removal) Act,
” 1919, and various other enactments, has sought to establish equality in
17
” law between the sexes, and it is expedient that this principle should
” obtain with respect to the guardianship of infants and the rights and
” responsibilities conferred thereby: “
The section itself reads:
” 1. Where in any proceeding before any court (whether or not a court
” within the meaning of the Guardianship of Infants Act, 1886) the
” custody or upbringing of an infant, or the administration of any
” property belonging to or held on trust for an infant, or the application
” of the income thereof, is in question, the court, in deciding that
” question, shall regard the welfare of the infant as the first and para-
” mount consideration, and shall not take into consideration whether
” from any other point of view the claim of the father, or any right at
” common law possessed by the father, in respect of such custody,
” upbringing, administration or application is superior to that of the
” mother, or the claim of the mother is superior to that of the father.”
The part of this section referring to ” the first and paramount consideration ”
has been spoken of as declaratory of the existing law. See In re Thain, [1926]
Ch. 676, per Lord Hanworth M.R. at 689 and Sargant L.J. at 691 ; and
McKee v. McKee, [1951] AC 352, per Lord Simonds at 366. There have
been different views about this, but whether the proposition is wholly accurate
or not, the true construction of the section itself has to be considered as a
matter of prime importance.
Two questions arise here. First, is the section to be read as referring only
to disputes between the parents of the child? In In re Carroll, [1931] 1 K.B.
317, Slesser L.J. appears to have approved such an interpretation for he
said, at p. 355, ” This statute, however, in my view, has confined itself to
” questions as between the rights of father and mother which I have already
” outlined—factors which cannot arise in the case of an illegitimate child….”
Now, the latter part of the section is directed to equalising the legal rights or
claims of the parents, and the preamble speaks only of achieving an equality
between the sexes in relation to the guardianship of infants. But these
considerations, do not, in my opinion, suffice to constrict the natural meaning
of the first part of the section. The latter part beginning with the words
” shall not take into consideration …” does not call for or imply any such
constriction for it does not necessarily apply to all the possible disputes which
the earlier part is capable of embracing ; and as for the preamble, it could
only be used to restrict the applicability of the earlier part of the section if
that part were ambiguous. See Attorney-General v. Prince Ernest Augustus
of Hanover, [1957] A.C. 436, per Viscount Simonds at 463. Having read
the whole statute, I cannot find this important earlier part to be other than
clear and unambiguous. On the contrary, its wording seems to be deliberately
wide and general. It relates to any proceedings before any Court, and as Eve
J. said in Clarke-Jervoise v. Scutt, [1920] 1 Ch. 382 at 388—” ‘ Any ‘ is a word
” with a very wide meaning, and prima facie the use of it excludes limitation.”
Thus read the section would apply to cases, such as the present, between
parents and strangers. This construction finds further support in the follow-
ing considerations. In the first place, since (as the statutes and authorities
already mentioned by way of background show) welfare was being regarded
increasingly as a general criterion which was not limited to custody disputes
between parents, it would be more than strange if the earlier part of section
1 were meant to apply only to that single type of dispute. Secondly, the
questions for decision which are expressly mentioned—custody, upbringing,
administration of property belonging to or held in trust for the infant, and
the application of the income thereof—are of a kind to suggest the involve-
ment not only of parents but of others such as guardians or trustees. And
thirdly, there is nothing in the rest of the Act to require a limited construction
of section 1. Section 6, indeed, would seem to point the other way for it
provides for the settlement by the Court of differences between joint guardians
affecting the welfare of an infant and there is no apparent reason for con-
fining this relief to differences between parents or for taking proceedings
therefor out of the ambit of section 1. For these reasons I would hold that
the present proceedings are proceedings within that section.
18
The second question of construction is as to the scope and meaning of the
words “… shall regard the welfare of the infant as the first and paramount
consideration.” Reading these words in their ordinary significance, and
relating them to the various classes of proceedings which the section has
already mentioned, it seems to me that they must mean more than that
the child’s welfare is to be treated as the top item in a list of items relevant
to the matter in question. I think they connote a process whereby when all the
relevant facts, relationships, claims and wishes of parents, risks, choices and
other circumstances are taken into account and weighed, the course to be
followed will be that which is most in the interests of the child’s welfare as
that term has now to be understood. That is the first consideration because
it is of first importance and the paramount consideration because it rules upon
or determines the course to be followed. It remains to see how this ” first
” view “, as I may call it, stands in the light of authority.
In In re Thain (supra) Eve J. had to determine, shortly after the Act of
1925, came into operation, the proper custody of a girl of seven. The
father’s wife had died soon after the child’s birth and the father then
accepted the offer of his wife’s sister and her husband to take charge of the
infant and bring her up with their own children. That was in 1919.
In 1925 the father, having re-married and improved his position in life and
obtained a suitable home, asked to have his daughter back but this request
had been refused. Eve J. awarded custody to the father and the Court of
Appeal held that he had applied the correct principles of law and refused
to interfere with the manner in which he had exercised his discretion. The
head-note is so worded as to suggest that as the father was an unimpeachable
parent his parental right stood first and an order had to be made in his
favour. On its face this, if a true reflection of the ratio, is against the first
view I have formed on the wording of section 1. In my opinion, however,
the head-note is misleading in this respect. The true ratio is contained in
the last paragraph of Eve J.’s judgment, at p. 684, which reads thus:
” As I said at the commencement of my judgment, I am satisfied that
” the child will be as happy and well cared for in the one home as the
” other, and inasmuch as the rule laid down for my guidance in the
” exercise of this responsible jurisdiction does not stale that the welfare
” of the infant is to be the sole consideration but the paramount
” consideration, it necessarily contemplates the existence of other condi-
” tions, and amongst these the wishes of an unimpeachable parent
” undoubtedly stand first. It is my duty therefore to order the delivery
” up of this child to her father.”
I appreciate that the reporter may have experienced some difficulty in
epitomising this passage, but viewed in relation to the facts of the case
I think there can be little doubt that Eve J. was neither ignoring the welfare
of the child nor the terms of section 1 of the Act of 1925. He was not
putting the wishes of the father above the welfare of the child. Having found
that the child would be as happy and well cared for in one home as the
other, he must have been satisfied that her welfare would be best provided
for by respecting the wishes of the unimpeachable father and giving her
custody to him. That was the view taken by the Court of Appeal and the
view which has been generally accepted since. I therefore see nothing
in In re Thain to conflict with my first view of the meaning of section J.
In re Carroll (supra) raises more difficulty. There the question was whether
an illegitimate baby girl should stay with a young couple wanting to adopt
her who had been found by a Protestant Adoption Society at the request of
her mother. If she had stayed with the adopters she would have been brought
up a Protestant. The mother, however, after changing her mind on more
than one occasion, came to the conclusion that she wanted the child to go
to another Society where she would be brought up a Roman Catholic.
Charles J. and a Divisional Court refused to accede to the mother’s wishes.
It is clear from the judgement of Lord Hewart C.J., speaking for the
Divisional Court, that that Court took the view that section 1 of the Act
of 1925 applied and that, while the wishes of the mother must be considered,
the welfare of the child was best served by not complying with her
wishes. The Court of Appeal (Scrutton, Greer and Slessor L.JJ.) reversed
19
this decision, Greer L.J. dissenting. The merits of this ruling are not now
in point, but the principles of law as accepted by the majority of the
Court are. Scrutton and Slesser L.JJ. did not regard the Act of 1925 as
really affecting the matter and took the view that the mother’s wishes were
dominant and decisive. At page 335 Scrutton L.J. said:
” In the present case unless the mother is of so bad a character that
” her wishes as to religion and education may be disregarded, a con-
” tention which was expressly disclaimed by Sir Thomas Inskip, in my
” view the mother has a legal right to require that the child shall be
” brought up in her religion in which the child has been baptized.”
Then, at page 336, he added when speaking of the Court:
” But in my opinion it has this duty, where the character of the parent
” is not attacked, to give effect to the views as to religious education of
” the parent of a child too young to have intelligent views of its own.
” The responsibility for religious views is that of the parent, not of the
” Court. The Court should not sanction any proposal excellent in itself
” which does not give effect to the parent’s views on education religious
” and secular.”
And later, at page 337, he observed:
” The Lord Chief Justice was apparently of opinion that there had
” been a change of thought and attitude in the last forty years towards
” the problem we have been considering. Except that the mother’s
” wishes have been put on an equality with the father I can see no such
” change. The Act of 1886 seems to me similar to the Act of 1925,
” except that the equality of the parents is made more pronounced. We
” were not referred to any authority, and I have found none, where in
” the case of a young child the Court has disregarded the views of the
” only parent, except where that parent has. so neglected his or her
” duty as to cease to deserve consideration, …”
Towards the conclusion of his dissenting judgment Grcer L.J., referring
to the judgment of Lord Hewart C.J., said at page 348:
” It was said in the argument that the judgment of the Divisional
” Court delivered by the Lord Chief Justice was based on a miscon-
” struction of the Guardianship of Infants Act, 1925. I do not think
” this is a justifiable criticism. In my opinion all that the judgment
” was intended to convey was that actually the attitude of public opinion
” and the Courts towards the powers of a parent over his children had
” become modified, and that nowadays less importance was attached
” to the rights of, and the wishes of, the parent, and more importance
” was attached to the welfare of the child, and the Act of 1925 was
” pointed to as an illustration of the modification in one instance of
” what at Common Law were the strict rights of a male parent. As the
” Lord Chief Justice says: ‘ There seems to have been between … 1891
” ‘ and 1926 a certain development of thought in this matter’.”
Slesser L.J. seems to have been prepared to base his view in favour of the
mother on the judgments in Gyngall and O’Hara, but if I read his own judg-
ment aright he, as well as Scrutton L.J., regarded the mother as having a
prevailing right which was not affected by section 1 of the Act of 1925.
My Lords, if the principles of law on which In re Carroll appears to have
been decided by the majority of the Court of Appeal are sound they cannot
but conflict with the meaning my first view would ascribe to the language of
section 1. But in my opinion this decision can no longer be taken as
authoritative. It disregarded the relevance of section 1 and looked on the
rights of the mother as absolute rather than qualified in the sense that they
only became effectual if in accord with the best interests of the child’s
welfare. And further—and whatever may be said of the decision on the
merits—its approach to the problem seems hard to reconcile with that which
commended itself to your Lordships’ House in Ward v. Laverty (supra).
20
The effect of section 1 of the Act of 1925 was again considered in the Court
of Appeal in In re Adoption Application 41/61, [1963] Ch. 315, and there
Danckwerts L.J., at page 329, had this to say on the subject:
“… I would respectfully point out that there can only be one
” ‘ first and paramount consideration ‘, and other considerations must be
” subordinate. The mere desire of a parent to have his child must be
” subordinate to the consideration of the welfare of the child, and can
” be effective only if it coincides with the welfare of the child. Con-
” sequently, it cannot be correct to talk of the pre-eminent position of
” parents, or of their exclusive right to the custody of their children,
” when the future welfare of those children is being considered by the
” court.”
When that case went back to Wilberforce J. (as he then was) he had to
consider the import of the words from section l(\)(b) of the Adoption Act,
1958—” that the order if made shall be for the welfare of the infant”—and
what he said will be found in In re Adoption Application 41/61 (No. 2)
[1964] Ch. 48 at 53. The passage reads:
” The section, apart from a particular direction given in subsection
” (2), does not prescribe what matters have to be considered in this
” connection, so that it would seem to me that the court must take into
” account all the merits and demerits of the alternative proposals as they
” seem likely to bear upon the child’s welfare: not limiting itself to
” purely material factors, but considering, as they may bear upon the
” welfare of the infant, such matters as the natural ties of blood and
” family relationship. The tie (if such is shown to exist) between
” the child and his natural father (or any other relative) may properly
” be regarded in this connection, not on the basis that the person con-
” cerned has a claim which has a right to have satisfied, but, if at all, and
” to the extent that, the conclusion can be drawn that the child will
” benefit from the recognition of this tie.”
Now that passage was not directed to section 1 of the Act of 1925, but
it seems to me to be an apt description of the sort of process which section
I enjoins, for it, too, calls for an enquiry as to what will be for the infant’s
welfare. If such is the true nature of the enquiry, it goes far to confirm
my first view of the construction to be placed on the words “… the
” Court shall regard the welfare of the infant as the first and paramount
” consideration ” ; and that means an end of any presumption of law respect-
ing parental rights and wishes so far as the test of welfare is concerned.
The attention of your Lordships was also drawn to the decision of this
House in In re K. (Infants), [1965] A.C. 201. I do not think what was said
in that appeal offers much guidance on the present issue. It is true that the
judgment of Knight Bruce V.C. in In re Fynn was cited as a leading autho-
rity, but what was in question was the nature of wardship proceedings and the
opinions expressed were not intended to bear on the issue now before your
Lordships.
Mr. Alexander, for the Appellants, supported his main submission with
two further points which, without disrespect to his full and careful argument,
may be regarded as subsidiary and dealt with briefly. The first was based
on the requirement, now provided for by sections 4 and 5 of the Adoption
Act, 1958, which makes the consent of the parents a condition precedent
to the granting of an adoption order. The wardship jurisdiction, it was sub-
mitted, ought not to be exercised so as to create a de facto adoption against
the wishes of unimpeachable parents when no legal adoption order could
have been made without their consent. The short and, as I see it, sufficient
answer to this is that, however alike they may be in their apparent affect,
wardship orders as to custody and adoption orders are so different in concept,
nature and legal consequences that one cannot validly argue from either
of these jurisdictions to the other. The second of these supporting points
was, in essence, a plea for comity. As we have here no order of a
foreign Court this plea is not really open. It is plain from such authorities
as In re B’s Settlement, [1940] Ch. 54, and McKee v. McKee, [1951] AC 352,
21
that the existence of such an order will not oust the jurisdiction or preclude
the application of section 1 of the Act of 1925; and it is no less plain that
where there is such an order its relevant provisions should be carefully
assessed and taken into account, and that, foreign order or no foreign order,
the law of foreign home may have to be examined if relevant to the
welfare of the child should he be returned there. But these considerations
do not affect the present issue and this point, like the first, does nothing, in
my opinion, to advance the Appellants’ case.
For these reasons I conclude that my first view construction of section
1 should stand, and that the Appellants’ proposition of law is ill-founded
and must fail. The consequences of this present little difficulty, but before
coming to them I would add in summary form certain views and comments
on the ground surveyed in the hope that they may serve to restrict misunder-
standing in this difficult field. These may be enumerated as follows: —
-
-
-
Section 1 of the Act of 1925 applies to disputes not only between
parents, but between parents and strangers and strangers and strangers. -
In applying section 1, the rights and wishes of parents, whether unim-
peachable or otherwise, must be assessed and weighed in their bearing on the
welfare of the child in conjunction with all other factors relevant to that
issue. -
While there is now no rule of law that the rights and wishes of unim-
peachable parents must prevail over other considerations, such rights and
wishes, recognised as they are by nature and society, can be capable of
ministering to the total welfare of the child in a special way, and must
therefore preponderate in many cases. The parental rights, however,
remain qualified and not absolute for the purposes of the investigation, the
broad nature of which is still as described in the fourth of the principles
enunciated by Fitzgibbon L.J. at p. 240 in In re O’Hara (supra). -
Some of the authorities convey the impression that the upset caused
to a child by a change of custody is transient and a matter of small
importance. For all I know that may have been true in the cases contain-
ing dicta to that effect. But I think a growing experience has shown that
it is not always so and that serious harm even to young children may, on
occasion, be caused by such a change. I do not suggest that the difficulties
of this subject can be resolved by purely theoretical considerations, or that
they need to be left entirely to expert opinion. But a child’s future happi-
ness and sense of security are always important factors and the effects of
a. change of custody will often be worthy of the close and anxious atten-
tion which they undoubtedly received in this case.
-
-
The conclusions I have reached on the Appellants’ proposition of law
make it unnecessary to enter upon a review of the facts and circumstances
which are material here. When the evidence and the judgments are
examined the result is only to confirm the propriety of Mr. Alexander’s
concession. The learned Judge applied the appropriate principles of law
and I can find no ground for interfering with the manner in which he
exercised his discretion.
On these grounds I am of opinion that the appeal fails and should be
dismissed.
Lord Upjohn
MY LORDS,
This appeal is concerned with wardship proceedings affecting the future
custody, care and control of the infant, who was born on the 18th May,
1958.
The Appellants are his lawful and natural parents who are nationals of
and resident in Spain.
The first Respondent is the infant himself who appears by the Official
Solicitor, and the second and third Respondents are the foster parents (for
such they were originally) in whose custody, care and control the infant
is at present.
22
The whole issue in the case is whether the infant should remain with
the foster parents or should be returned to the parents in Spain.
Ungoed-Thomas J. in proceedings of some complexity has held that the
infant should remain with the foster parents until further order and in
this decision he has been upheld by the Court of Appeal (Harman, Salmon
and Winn L.J.) The learned judge’s order is attacked by the Appellants
on the ground that he acted upon wrong principles in reaching his decision;
if, contrary to their submission, he acted on the right principles then the
Appellants concede that they cannot submit that he wrongly exercised
his discretion. So I can be brief in my recital of the relevant facts and
surrounding circumstances which have been very fully dealt with by
Ungoed-Thomas J. in his judgments in 1965 and 1967 and by Harman LJ.
in the Court of Appeal.
In the autumn of 1957 the parents, who had lived in somewhat uncom-
fortable conditions in a poor part of Madrid, came over to England to
better their circumstances, and they entered into domestic service in
Northamptonshire. They spoke virtually no English and when the infant
was born in hospital the foster mother (as she was to become), a fluent
Spanish speaker, then living with her husband and family in the same
county, where the husband carried on a practice as a solicitor, was called in
to help. The mother was found to be suffering from some infectious
ailment so could not look after the infant. Though having no connection
whatever with the parents, the foster mother, out of the kindness of her
heart (and she already had a large young family to look after), took the
infant and looked after it when it was four days old. She and her husband
were formally appointed foster parents under section 1 of the Children’s
Act, 1948, by the Northamptonshire County Council. In November, 1958,
the foster parents moved to Oxted in the County of Surrey with their
family and the infant, and the husband carried on his practice there.
In March, 1959, the infant was returned to his parents who had moved
to nearby Caterham where the foster parents found them some employ-
ment, but the parents returned with the infant to Spain in 1960 and all
connection with the foster parents seemed at an end though, naturally
enough, the mother and foster mother had got to know one another very
well in the meantime.
It appears that in the summer of 1961 the infant was poorly and suffer-
ing from the heat of the Spanish summer and by arrangement, though the
foster parents were reluctant to accept the responsibility, the infant was
returned to them in July, 1961. As the learned judge held, this was to be
a temporary visit though of indefinite duration. In October, 1961, the
foster parents were again appointed foster parents, this time by the Surrey
County Council.
At this time the plan was that the parents would come over to England
to some employment which the foster parents were going to find for them;
but, for whatever reason, this did not materialise.
In the winter of 1961/62 the parents went to Hamburg, again to improve
their position. While there the foster mother offered to pay for the mother
to pay a visit to her son, but for some reason, unexplained, this never took
place. In February, 1963, the mother’s mother, who had been looking after
her other children in Madrid, died, so the mother had to return there to
look after them. The father returned to Spain in September, 1963.
Since then the material circumstances of the parents have greatly changed
for the better. The father is now in a secure position being in permanent
employment as a bricklayer with a substantial firm where he has an
exemplary character and should, in due course, receive promotion. The
family are now living in good accommodation ; as the learned judge said
in his judgment in 1967 “they now have a house in a modern housing
” estate with their own independant piece of garden and five rooms “, and
the local school to which the infant would go if he returns to Spain is
modern and well equipped.
23
In the summer of 1963 there was some correspondence between the foster
parents and the parents and between the parents and the children’s officer
of the County Council, which culminated in a demand in September, 1963,
by the mother for the return of the infant. This terminated the jurisdiction
of the County Council (under the Childrens Act, see section 1(3)) who
requested the foster parents to return the child. They countered by issuing
a notice under section 3(2) of the Adoption Act, 1958, of an intention to
apply for an adoption order, and the County Council replied by issuing
a Summons on 6th December, 1963, asking that the infant might be a ward
of Court and seeking directions as to his custody, care and control. The
parents and foster parents were Respondents to this Summons. So far
as I know, no proceedings were taken to adopt the infant, perhaps because
of the obviously unsurmountable difficulty of obtaining parental consent.
There followed protracted proceedings.
Unhappily there were long delays in filing evidence, but the Summons
ultimately came before Ungoed Thomas J. in July, 1965. There was a full
hearing before him on affidavit evidence, but the parents were not represented
at the hearing. However, the judge had before him a lengthy written state-
ment on behalf of the parents by a Spanish lawyer, and counsel for the
County Council, as the judge said, ” put forward all the arguments on behalf
” of the parents “.
On the 22nd July, 1965, the learned judge delivered judgment and ordered
that the care and control of the infant be committed to the foster parents
until further order but that he be brought up in the Roman Catholic religion,
his parents being of that faith. He further directed that the infant should
be brought up in the knowledge and recognition of his parents and they were
to have all reasonable access to the infant when they or either of them should
be in England. The parents were informed of that decision by the Master.
There the matter remained (save that in 1966, on the application of the
County Council, they ceased to be parties and the infant was made plaintiff
in their place) until January, 1967, when the foster parents issued a Summons
asking that the infant might henceforth be brought up in the faith of the
Church of England. My Lords, it is, as I think, a sad commentary upon
the attitude of some members of the Protestant and Roman Catholic faiths,
that in so many of the reported cases over the last hundred years the real
contest has been as to the religious upbringing of the infant and orders
have been made with scant regard to the true welfare of the infant; and I
shall have to mention some of them at a later stage of this Opinion. But
in this case, as I understand it, the application was based not on any doctrinal
bias in favour of one faith rather than the other but upon the difficulty
as a practical matter of obtaining suitable general education as well as
religious instruction in the Roman Catholic faith for an infant who comes
from an otherwise Protestant family (as the foster parents are) and it was
solely for the benefit of his general education that the change was proposed
to be made.
This, however, brought matters to a head, and on the 10th May, 1967, the
parents issued a Summons asking for custody, care and control of the
infant.
This Summons together with the foster parents’ Summons of January,
1967, came before the learned judge in July, 1967, and lasted for several
days. The parents, the foster parents, a psychiatrist and others were examined
and cross-examined on their affidavits and, on 31st July, he delivered a
very full and detailed judgment giving his reasons for refusing to make any
order on either Summons, so that his order of 22nd July, 1965, remained in
force.
The parents appealed from this order, but on 5th July, 1968, the Court
of Appeal dismissed it from which dismissal your Lordships gave leave to
appeal.
The parents attack the order of Ungoed-Thomas J. upon the footing that
he erred in principle in refusing to order a return of the infant to his lawful
24
and natural parents in Spain but concede that if he exercised his jurisdiction
upon the right principles they cannot challenge his exercise of the discretion
vested in him.
So this case is concerned with a conflict between, on the one hand, the
natural and lawful parents and. on the other hand, foster parents who are
strangers in blood and in law, though they have de facto had care and con-
trol of the infant for all of his now 10 1/2 years of life except for the period of
March, 1959, to July, 1961.
Whatever may be said as to the condition of the parents before they went
to Hamburg there is no dispute that now and at the time of the hearing in
1967 the parents are unimpeachable in the sense that they are not in any way
unfitted to have care and control of an infant; moreover, they now have a
perfectly suitable home and surroundings in which they are able and willing
to look after the infant and provide properly for his future. Counsel for the
parents in an interesting argument submits three propositions:
First, he says that although the Crown as parens patriae has a right and
duty to interfere with a parent’s natural right of custody and control if the
welfare of the child demands it, yet there is a strong presumption that the
welfare of a child is best served by his living with his parents. So strong
is this presumption that the Court (which, it is common ground, must act
judicially in the matter) must order that the child be with its parents unless
they fall within the category described in the words of Knight Bruce V.C.
(as he then was) in Re Fynn 2 dc G. & Sm., 457 at 474, That the Court . . .
” must be satisfied that the father has so conducted himself, or has
” shown himself to be a person of such a description, or is placed in such
” a position, as to render it not merely better for the children, but
” essential to their safety or to their welfare, in some very serious and
” important respect, that his rights should be treated as lost or suspended
” —should be superseded or interfered with. If the word ‘ essential’
” is too strong an expression, it is not much too strong.”
If that represents the law to-day, as counsel submits, it is not in doubt that
upon the facts of this case the Appellants must succeed, for their ” rights ”
cannot be treated as lost or superseded. Counsel puts the same point in a
rather different way: he submits that the presumption is really one of law,
so that in the case of parents not falling within the Re Fynn category the
Court must order the return of the child to its parents regardless of all other
circumstances affecting its welfare.
Secondly, he submits that in the circumstances of this case the Judge’s
order amounts in effect to an adoption order with only small differences, made
without the consent of the parents, and this would be unfair on the parents
and frustrate the intention of Parliament expressed in the Adoption Act,
1958, which makes the consent of the parents necessary unless it can be
shown that such consent has been unreasonably witheld.
Thirdly, he submits that, where the parents are of foreign nationality
residing in their native country, although the Courts here have jurisdiction
over foreign children resident here (for my part I ignore altogether the fact
that by the accident of his birth here the infant happens to be a British
subject) nevertheless, in the interests of comity between States, where an
infant has been sent here temporarily in the first place our Courts ought not
to assume jurisdiction in cases where there is no interparental dispute, but
should in response to the parents’ request hand back the infant to them.
If there is some dispute as to the custody of the infant as between the parents
and a third party then that is more properly dealt with by the Courts of the
place where the parents reside and to which they owe allegiance.
My Lords, as there seems to me to be no substance in counsel’s second
or third submissions I propose to deal with them shortly. As to the second
submission, that the judge’s order amounts to an adoption order, I must
confess I do not understand this argument. An adoption order, if made, is
the antithesis of an order made in wardship proceedings. In the former
case the rights and obligations of the true parents in relation to the infant
are extinguished and the adopted child stands in relation to the adopter
25
exclusively in the position of a child born to the adopter in wedlock (see
section 13 of the Adoption Act, 1958). The family ties with the true parents
are cut completely and for ever; the adopting parents stand for all purposes
in the position of the true parents. In the normal case after the adoption
the infant does not see or have any communication with his true parents;
indeed, again in the normal case, the true parents and the adopting parents
are and remain in total ignorance of one another’s identity and the infant,
if adopted as usual in earliest infancy, remains wholly ignorant of his true
parents.
How different is an order relating to custody. There is nothing permanent
about such an order; it can be varied at any time. There is no severance
of the infant’s ties with the true parents who remain the parents for all
purposes. If an order is made giving custody to a third party the only
parental duty thereby assumed (subject, of course, to the terms of the order)
is to bring up the infant as a good parent would while in his or her care.
At any time the custody of the infant may be recommitted by the Court in
the exercise of its discretion to the parents, and in the meantime the Court
may give directions as to access by the parents, and the order of July, 1965,
affords a very good example of this. At a later stage, too, when the infant
is of an age to express an opinion to which the judge would no doubt give
sympathetic consideration, the judge might, if he thought fit, and the infant
so desired, order his return to his parents in Spain and at the same time
the Judge might bring the wardship proceedings to an end.
As to the third proposition, this proceeds upon the footing that in the
case of foreign children temporarily resident here the Court should not
exercise its discretionary powers but hand them over to the parents of
foreign nationality resident abroad without more ado. I can well under-
stand that the Courts acting on behalf of the Crown might have disclaimed
any jurisdiction as parens patriae over the children of foreign nationals tem-
porarily residing here, but they have not done so; our Courts do assume a
parental jurisdiction over such children, and counsel for the Appellants
does not contend to the contrary in the face of such well-established authori-
ties as Hope v. Hope 4 De G.M. & G. 328 ; Johnstone v. Beattie 10 Cl. & F.
42 and Re. D. [1943] Ch. 305. That is really sufficient to dispose of the
point, for if the Court does exercise its powers over foreign children it
must go into the facts and hand over the children to the foreign parents
resident abroad only if in the proper exercise of its discretion it deems that
to be the proper course. No question of comity, as that word is ordinarily
understood in jurisprudence, arises in this case for there is no order of a
Spanish Court in existence and so nothing to guide the Courts of this
country. Our Courts have the plain duty to consider the application on its
merits before them.
But many authorities make it plain that, even if there were in existence
some order of a foreign court so that a question of ” comity ” arises, yet
in the case of custody of infants our Courts have an independent power
and duty to investigate the facts and make an order based on English
principles notwithstanding that foreign order. See (for example) Re B.
[1940] Ch. 63 and Mckee v. Mckee [1951] AC 352, though the Court will
pay proper regard to the order of the foreign court, Re E. [1967] Ch. 761.
But where there has been something in the nature of kidnapping, as it
is usually called, a Court in this country after investigating the facts may
decide that a foreign court which is already siezed of the matter is the
proper forum to decide all questions relating to the infant’s welfare (see
for example Re H. [1966] 1 W.L.R. 381).
At one stage of his argument counsel tried to convince your Lordships
that this was a case of constructive kidnapping, as he described it, because
the visit here was of a temporary nature but, with all respect, that was,
on the facts, a hopeless argument. My Lords, this point, too, seems to me
misconceived.
So I return to counsel’s first proposition.
My Lords, the whole question is whether in a case between parents, on
the one side, and strangers or more remote relatives of the infant, on the
26
other, the principle stated in Re Fynn (which I have quoted above) as to
the state of affairs to be established before the Court will interfere still
represents the law or, at all events, the practice to be followed by the Court
in infancy matters today.
It is quite clear that the jurisdiction of the Chancery Court exercised on
behalf of the Crown as parens patriae was quite independent of the common
law where the rights of the father over the custody, care and control of his
children were absolute unless by his misconduct he had wholly forfeited
those rights. The wife was a mere chattel and for all practical relevant
purposes her identity and, of course, her property merged in that of her
husband. But whereas equity had done much to protect the wife’s property
against the strictness of the common law by inventing such doctrines as
the separate use, and the restraint upon anticipation, yet in respect of infancy
matters, while recognising the dominant consideration of the welfare of the
child, in practice in the presence of the early Victorian pater familias, equity
too dutifully followed the law.
Thus in 1843 in Johnstone v. Beattie (supra) we find Lord Cottenham,
Lord Campbell and Lord Langdale (who had had much experience in the
Chancery Court) all pointing out that the benefit and interest of the infant
was the determinative consideration. Lord Campbell at page 122 said:
” The benefit of the infant which is the foundation of the jurisdiction
” must be the test of its right exercise “.
But the infant in that case was an orphan.
In 1861, in Crichton Stuart v. Bute 9 H.L.C. where again both parents
were dead, Lord Campbell approved of his words I have just quoted, and
Lord Cranworth at page 469 said:
” There is but one object which ought to be strictly in view and that
” is the interests of the infant.”
And to the same effect was Lord Chelmsford.
But Re Fynn followed in 1859 by Re Curtis 28 L.J. (N.S.) 458 continued
to dictate the law or practice before the Chancery Court would interfere
in the presence of the father.
But in the 1870’s and 1880’s the married woman was emerging from
her chattel existence by reason of the Married Women’s Property Acts and.
apart from religion, the tide began to turn against the power and authority
of the father, but only gradually, for in 1883 we find the case, which I can
only describe as dreadful, of Re Agar Ellis 24 Ch.D. 317 where the Court
of Appeal permitted a monstrously unreasonable father to impose upon his
daughter of seventeen much unnecessary hardship in the name of his religious
faith.
Brett M.R. plainly proceeded upon pure common law principles (for
reasons which he tried to explain ten years later in In re Gyngall [1893]
2 Q.B. 241) and Cotton and Brown L.JJ. in effect followed the principles
of In re Fynn and held that the father’s conduct was not such as to warrant
interference by the Court.
In 1886 the Guardianship of Infants Act made a notable departure from
the existing law by putting the rights of the mother on an equality with
those of the father in relation to the custody of infants, and the tide then
ran more strongly against the father. Thus, in Re McGrath [1893] 1 Ch. 143
it was stressed that the dominant matter for the consideration of the Court
was the welfare of the infants in its widest sense though that was, again,
a case of orphans.
There followed two cases in the Court of Appeal of some importance in
the development of the law and practice. In Re Gyngall (supra), where
the mother was a party but where the importance of the consideration of
the welfare of the child was emphasised though some lip service was paid
to Re Fynn, at page 253 A.L. Smith L.J. said:
” Considering her age, and the short time she can be kept away from
” the institution where she is being happily brought up, and wishes to
” remain, I think that, if we compelled her to leave, and handed
27
” her over to her mother, we should not be acting for the true ‘ welfare ‘
” of the child in the large sense in which the term was used by Lindley
” L.J. in his judgment in the case of In re McGrath to which I was
” a party.”
Then in Re A & B Infants [1897] 1 Ch. 786 the same Court stressed the
equality of the mother with the father, but Lindley L.J. pointed out (at
page 790) that it did not much if at all diminish the rights of fathers except
as to mothers. Lopes L.J. at page 792 said:
” Now, what has the learned judge to do when he is asked to exercise
” his discretion under this Act? I take it there are three things he
” must look at. He must look primarily, I am entitled to say, to the
” welfare of the infant, then to the conduct of the parents, and then
” take into consideration the wishes—not of the father, which, it is
” suggested to us, are paramount—’ as well of the mother as of the
” ‘ father’.”
That is the first mention which I have been able to find of the use in this
connection of the rather curious word ” paramount”.
These cases enabled FitzGibbon L.J. in Re O’Hara [1900] 2 I.R. 232
at page 234 to state four principles as well established of which I need
only quote the fourth:
” 4. In exercising the jurisdiction to control or to ignore the parental
” right the Court must act cautiously, not as if it were a private person
” acting with regard to his own child, and acting in opposition to the
” parent only when judicially satisfied that the welfare of the child
” requires that the parental right should be suspended or superseded.”
That was a very pale reflection of the earlier and robust doctrine of Re Fynn.
Lord Ashbourne C. and FitzGibbon L.J. himself, after expressing these
broad principles, then dealt with the facts on what I may call rather strict
old-fashioned lines, and for my part I much prefer the more modern
approach of Holmes L.J. in that case who examined the facts in detail
and then dealt with it in the exercise of his discretion. At page 253 he
rightly stressed the great importance of the period during which a child has
been in the case of a stranger in these words:
” No doubt the period during which a child has been in the care of
” the stranger is always an important element in considering what is
” best for the child’s welfare. If a boy has been brought up from
” infancy by a person who has won his love and confidence who is
” training him to earn his livelihood and separation from whom would
” break up all the associations of his life no Court ought to sanction
” in his case a change of custody.”
Of course he could not lay down, and I am sure did not intend to lay
down, any proposition of law in this respect; he only emphasised its
importance when exercising a judicial discretion in these matters.
But these authorities are valuable as shewing the gradual development
of the law and practice in relation to infants. They have developed, are
developing and must, and no doubt will, continue to develop by reflecting
and adopting the changing views, as the years go by, of reasonable men
and women, the parents of children, on the proper treatment and methods
of bringing up children; for after all that is the model which the judge
must emulate for as pointed out in Re Fynn he must act as the judicial
reasonable parent.
In spite of this development of the law, in Re New 20 T.L.R. 515 (another
dreadful case) the claims of a parent (in this case a mother of an illegitimate
child) based largely on religious grounds were, as late as 1904, allowed
to prevail so that a girl then aged 12 who had many years ago been
entrusted to admirable and fond foster parents was thrown into a religious
institution.
No later authority was tiled to your Lordships until the year 1925, but
it was fast being developed behind the closed doors of the Chancery
Division (the doors being closed to the public only in the best interests
of the infants themselves) and of this we have the best evidence in the two
28
cases I am about to mention; for let me remind your Lordships that Lord
Cave was called to the Bar in 1880 and practised in the Chancery Division
until he became a Law Lord in 1919, that Lord Warrington was a Chancery
judge from 1904 until 1915, Sargant L.J. from 1913 until 1923 and Eve J.
from 1907.
So we find Lord Cave, L.C. in Ward v. Laverty [1925] A.C. 101 in your
Lordships’ House on appeal from Northern Ireland before the Guardianship
of Infants Act, 1925 (which in any event was destined never to apply there)
saying at page 108:
” It is the welfare of the children, which, according to rules which are
” now well accepted, forms the paramount considerations in these cases.
” Some of the earlier judgments contain sentences in which perhaps
” greater stress is laid upon the father’s wishes than would be placed
” upon them now ; but in the more recent decisions, and especially since
” the passing of the Guardianship of Infants Act, 1886, section 5 of
” which Act shows the modern feeling in these matters, the greater
” stress is laid upon the welfare and happiness of the children. It is, of
” course, still true, as the learned counsel who argued the case quite
” properly said, that a sufficient case must be made for going contrary
” to the father’s wishes; but, if such a case is made, then the Courts
” have no hesitation in deciding upon the whole facts of the case.”
While the infants were orphaned in that case his views were plainly intended
to be of general application.
Then, in Re Thain [1926] Ch. 671 Eve J. in the Court of first instance
and Lord Hanworth and Warrington and Sargant L.JJ. all explained the
law, apart altogether from the Guardianship of Infants Act, 1925. I take
the law as it had developed to be as stated by Eve J in this passage—
“… inasmuch as the rule laid down for my guidance in the exercise of
” this responsible jurisdiction does not state that the welfare of the infant
” is to be the sole consideration but the paramount consideration, it
” necessarily contemplates the existence of other conditions, and amongst
” these the wishes of an unimpeachable parent undoubtedly stand
” first “
That seems to me to dispose entirely of any idea that the principles of Re
Fynn remained, after this further development of the law. But during
argument it was suggested that the principles stated in that case were resur-
rected by something that I said in Re K. [1963] Ch. 381 and that Lord Devlin
said in that case on appeal [1965] A.C. 240. I protest at such misuse of
authority. That case was in nowise concerned with the principles upon
which as between parents and strangers a Court acts ; the observations of
Knight Bruce V.C. in Re Fynn were relevant to the entirely different question
whether in an infancy matter the proceedings were judicial or administrative.
My Lords, Eve J. said that among other considerations the wishes of an
unimpeachable parent undoubtedly stand first, and I believe, as I have said,
that represents the law. In a jurisdiction which can only be exercised by
the judge after full and anxious, but broad consideration of all the relevant
facts I do not want to split hairs with other judges who have expressed it a
little differently, but it seem to me that Danckwerts L.J. in In re Adoption
Application 41/61 [1963] Ch. 315 at page 329 and Wilberforce J. (as he
then was) in the same Application (No. 2) [1964] Ch. 48 hardly did justice
to the position of the natural parent(s). The natural parents have a strong
claim to have their wishes considered ; first and principally, no doubt,
because normally it is part of the paramount consideration of the welfare of
the infant that he should be with them but also because as the natural parents
they have themselves a strong claim to have their wishes considered as
normally the proper persons to have the upbringing of the child they have
brought into the world. It is not, however, a question of the onus being on
anyone to displace the wishes of the parents; it is a matter for the judge,
bearing in mind the rule as laid down by Eve J.
29
My Lords, the Guardianship of Infants Act, 1925, enshrined the view of
the Chancery Courts. Section 1 is in these terms:
” 1. Where in any proceeding before any court (whether or not a
” court within the meaning of the Guardianship of Infants Act, 1886)
” the custody or upbringing of an infant, or the administration of any
” property belonging to or held on trust for an infant, or the application
” of the income thereof, is in question, the court, in deciding that
” question, shall regard the welfare of the infant as the first and para-
” mount consideration, and shall not take into consideration, whether
” from any other point of view the claim of the father, or any right at
” common law possessed by the father, in respect of such custody,
” upbringing, administration or application is superior to that of the
” mother, or the claim of the mother is superior to that of the father.”
That Act now states the relevant law for all purposes.
It extended the Guardianship of Infants Act, 1886, in certain respects:
first, it applied the principles of that Act to all Courts; secondly it applied
the principles to all proceedings in every Court and that, in my opinion,
meant and meant quite plainly that while in Re A. and B. (supra) it had
been held that the 1886 Act virtually only applied between spouses, the
principle laid down in the 1925 Act applied wherever the custody of an
infant is in issue and whoever are the parties ; I can give it no other meaning
and the fact that this extension of the law was not expressed in the Long
Title as part of its objects is quite irrelevant, for in this case the construction
of the relevant section is clear and unambiguous. That Act, with all respect
to the Appellants’ argument, is finally conclusive that Re Fynn no longer
represents the law.
But in 1931, in deciding the case of Re Carroll [1931] 1 K.B. page 317
the Court of Appeal, Scrutton and Slesser, L.JJ. (Greer L.J. dissenting),
attempted to put back the clock 40 years. At first instance Charles J.
exercised his discretion and committed the custody of an illegitimate infant
to a couple who wanted to adopt her rather than put her into an institution
as the mother wanted. In the Divisional Court Hewart C.J., with whom
the other members of that Court agreed, said ” There seems to have been
” between these few years 1891 and 1926 a certain development of thought in
” this matter”, as, of course, there had been. Greer L.J., at page 348
agreed with him.
Unhappily Scrutton L.J. never even mentioned the leading case of Re
Thain of that same Court; he thought that A gar-Ellis and Re Curtis repre-
sented the law and he could see no change in the last 40 years. Slesser L.J.
mentioned Re Thain twice but not in a significant way. He reviewed Re
Gyngall and Re O’Hara and other cases but held, as Scrutton L.J. had
done, that the 1925 Act only applied between spouses and that in the case
of an illegitimate child it could not affect the principles laid down in
Barnardo v. McHugh [1891] A.C. 388, though that case in your Lordships’
House had done no more than state, as Lord Herschell said at page 398,
that the wishes of the parent should be followed unless detrimental to the
benefit of the child.
My Lords, in my opinion Re Carroll was wrongly decided and does not
represent the law or the practice today.
In the first place, it was wrong not to recognise the development of the
law and so to apply the Act of 1925 or the principles of Re Thain. Secondly,
I am unable to understand upon what principle the majority of the Court
reached the conclusion that Charles J. had wrongly exercised his discretion,
upon all the facts before him, for even forty years ago a Court could go
against the wishes of a mother, especially of an illegitimate child, if the
benefit of the child required it.
My Lords, having read and re-read the judgment of Ungoed-Thomas J. in
1967 it is clear he recognised in express terms the general principle that it is
for the child’s welfare to be in the custody of unimpeachable parents. He
heard and saw the parents, and he treated them, as I read his judgment, as
unimpeachable for the purposes of applying the law, but after the years of
estrangement he reached the conclusion ” that the parents would be quite
30
” unable to cope with the problems of adjustment or with consequential
” maladjustment and suffering and that the father’s character would inflame
” the difficulties “.
Then, after dealing with some criticism that had been made of some
medical evidence to which I shall return, he said—
” If, however, I had to rely upon my own conclusion apart from
” medical evidence, my decision in this case would be the same. If I
” thought there was a real prospect of adjustment in Spain, I would be
” in favour of his return there, but the evidence, and my impression
” of the witnesses, convince me that there is no such reasonable prospect
” at all. His return to Spain would in my view be disastrous for him
” at this stage. The prospect is altogether too dangerous. It is the
” prospect of ruining the child’s life. I simply cannot bring myself to
” return him “.
That finding has not been challenged and as in fact your Lordships have
been taken through much of the evidence I may say I should be very
surprised if it had been.
My Lords, that is sufficient to dispose of the appeal; the Judge in this
admittedly very difficult case applied the correct principles and having given
full weight to the strong claims of the unimpeachable natural parents
reached the conclusion that the paramount consideration, the welfare of the
child, demands his continued separation from his parents until further order;
they having full access when in this country.
While that disposes of the appeal I think it right to make some observa-
tions upon the discussion before your Lordships as to the value of the
evidence of psychiatrists on these applications.
There seem to me to be two completely different cases to be considered.
First, where the infant is under some treatment or requires some treatment
for some physical, neurological or psychological malady or condition. In
such cases medical evidence if accepted must weigh heavily with the Court.
Secondly, and this is the case before your Lordships, you have the case
of a happy and normal infant in no need of medical care and attention for
any malady or condition who is sent to a psychiatrist or other medical practi-
tioner for the sole purpose of calling the practitioner to give quite general
evidence upon the dangers of taking this, that or the other course in the
relevant proceedings.
My Lords, such evidence may be valuable if accepted but it can only be
as an element to support the general knowledge and experience of the judge
in infancy matters, and a judge, in exercising his discretion, should not
hesitate to take risks, as I said when in the Court of Appeal, and go against
such medical evidence if on a consideration of all the circumstances the
judge considers that the paramount welfare of the infant on the balance of
probabilities (for that must be the true test) points to a particular course as
being the proper one. By way of illustration I may remark that Ungoed-
Thomas J. had taken that very course in an earlier case Re C. [1966]
1 W.L.R. 653.
My Lords, for these reasons I would dismiss this appeal.
Lord Donovan
MY LORDS,
The Guardianship of Infants Act, 1925, enacts that in matters regarding
custody and upbringing, the welfare of the infant should be regarded by the
Courts as the first and paramount consideration.
This is a statutory provision which is almost refreshing in its clarity. But
the Appellant claims that it does not really mean what it clearly says.
Thus, the preamble to the Act refers to the desirability of establishing
equality in the law between sexes, and the expediency of establishing this
principle with respect to the guardianship of infants. Ergo, it is said, the
31
Act applies only where a father and mother are competing for custody and
upbringing.
But the preamble to an Act of Parliament does not always enumerate every
purpose of the Statute. It is by no means uncommon to find the enacting
part of the Act going beyond the bounds of the preamble; and reasons more
cogent than this are required to tailor the enacting part of the Statute so as
to make it fit the preamble.
This the Appellant agrees is true. He finds, however, the requisite reason
in this:—The Act of 1925 has been declared by some judges to enact no
new law. The Courts, they said, have always treated the welfare of the
infant as paramount. If this be so, I find some of the decisions strange.
Moreover, so the argument continues, the law which was merely given
declaratory expression by the Act, regarded it as being a paramount require-
ment for the welfare of the infant that it should remain with its natural
parents unless, being capable of caring for it, they had by their character
or conduct, forfeited their rights to its custody and upbringing. Accordingly
a provision to this effect should be read into the 1925 Act.
This claim led to a submission, no less interesting for being long, supported
by a copious citation of authority. For the reasons given by others of your
Lordships I find it unconvincing. It is incredible to me that Parliament
would pass such an enactment as section 1 of the 1925 Act if the position
were that it made no difference at all to the law as already expounded by
the judges. Or that it would not have incorporated a proviso preserving
the alleged ” rights ” of the natural parent if it had intended to preserve
them. I think the section means just what it says—no more and no less:
and although the claim of natural parents to the custody and upbringing
of their own children is obviously a most weighty factor to be taken into
consideration in deciding what is in the best interests of the infant, yet the
Legislature recognised that this might not always be the determining factor,
whether the parents were unimpeachable or not.
This is one such case. The boy was born here nearly eleven years ago
and has been with the foster parents ever since, with the exception of some
eighteen months in 1960 to 1961. He speaks little or no Spanish. He regards
the foster parents as his mother and father. He is happily integrated into
their family and is on terms of close comradeship with their young son. He
is about to commence his further education. If he is now sent to Madrid
against his will it is inevitable that he will begin making comparisons between
what he has come to, and what he has left behind: and a rankling sense
of injustice and depression may result which will not only hinder his
resettlement, but could easily prejudice his whole future. It is obvious that
this result could be avoided, if at all, only by the most patient and loving
understanding and sympathy on the part of his parents—particularly the
father. Mr. Justice Ungoed-Thomas’s assessment of the father, based not
only on the father’s letters to the foster mother, but on his personal observa-
tion of him and his answers in evidence, is that he lacks the safeguarding
qualities I have mentioned. The judge therefore refused to take the risk of
sending him back, and explained his decision in a judgment to the clarity
and the careful nature of which I desire to pay a respectful tribute.
I also would dismiss the appeal. This is not a case where parents are
being deprived for the time being of the custody and upbringing of their
son simply to pander to the wishes of foster parents who have grown to
love it. It is simply a case of the Courts obeying the command of Parliament
that the son’s welfare is to be the first and paramount consideration.
I agree with your Lordships in rejecting the other arguments of the
Appellant regarding adoption orders and comity.
Lord Pearson
MY LORDS,
I agree with the opinion of my noble and learned friend, Lord MacDermott,
and would therefore dismiss the appeal.
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