J and Another v C and Others (1969)

All England Law Reports/1969/Volume 1 /J and Another v C and Others – [1969] 1 All ER 788

 

[1969] 1 All ER 788

 

J and Another v C and Others

 

 

HOUSE OF LORDS 

LORD GUEST, LORD MACDERMOTT, LORD UPJOHN, LORD DONOVAN AND LORD PEARSON

9, 10, 11, 12, 16, 17, 18 DECEMBER 1968, 19 FEBRUARY 1969

Infant – Guardianship of Infants Acts – Custody – Welfare of infant as first and paramount consideration – Parents – Right of parents to custody subordinate to welfare of infant – Order for custody and adoption order contrasted – No consideration of comity arising out of nationality of parents – Guardianship of Infants Act 1925(15 & 16 Geo 5 c 45), s 1.

 

In May 1958, the infant was born in England to Spanish parents who had arrived in England a few months previously; the infant’s father had been a low-paid labourer in Spain who had come to England to improve his position; both parents were Roman Catholics. When the infant, a boy, was four days old he was taken into the home of foster parents since his mother was suffering from tuberculosis. The foster mother could speak Spanish fluently. She and the foster father had a family of six children including one, P, of much the same age as the infant. The foster parents were Protestants. Shortly afterwards the relevant local authority took the infant into care under s 1 of the Children Act 1948. The mother recovered and after a period of convalescence the infant was, in March 1959, discharged from care and returned to live with his parents. After about a year the parents returned to Spain, taking the infant with them. The infant was unwell whilst in Spain, and the mother asked the foster parents to have him back. He returned in July 1961, after a period of 17 months in Spain, and it was apparent that his health had deteriorated noticeably. He quickly settled down in the foster parents’ home and recovered his health. This was not regarded as a permanent arrangement and the parents were expected to return to England at a later date. On the application of the foster parents, the infant was taken into care by the relevant local authority in October 1961. In 1963, the infant was sent by the foster parents to school with P. In July 1963, the foster mother wrote to the parents a tactless and unfortunate letter in which she explained how English the infant had become and the advantages which he was enjoying. In October, the mother wrote to the local authority’s children’s officer who informed the foster parents that the parents had asked for the retrun of the infant. The foster parents served notice of intention to apply for an adoption order. The local authority thereupon commenced proceedings to make the infant a ward of court and to obtain directions as to his custody, care and control. An order was made in July 1965 by Ungoed-Thomas J, that the foster parents should, until further order, have care and control of the infant and that the infant be brought up as a Roman Catholic. Later, when the time came for the infant and P to go to boarding school, P won a place at a Church of England choir school. The infant was unable to win a place at a Roman Catholic choir school but was offered a place at a Church of England school. In consequence, in January 1967, the foster parents applied that he be brought up in the Church of England. In the following May, the parents applied for care and control of the infant. By the time of the application, the parents had a modern home and would have been able to send the infant to a modern and well-equipped day school. The mother’s health had been fully restored and the father was earning a steady income. Ungoed-Thomas J, found that the infant and P were close friends; the infant had become very English in his ways; and the infant’s prospects in life would be substantially better if he remained in this country than if he were returned to Spain. In particular, he found that there were inherent dangers to the infant’s attempting to adjust to life in Spain since his parents would be unable to cope with the problems of adjustment or consequential maladjustment and suffering. Accordingly, he held that, having regard

[1969] 1 All ER 788 at  789

 

to the paramount consideration of the infant’s welfare, it would be undesirable and wrong to return the infant to his parents, even though for these purposes the parents were deemed unimpeachable. He made no order on either of the applications, thus in effect continuing in force the order of 1965. The Court of Appeal upheld the order of 1965, and the parents appealed to the House of Lords.

 

Held – The judge having applied the right principles in the exercise of his discretion, the appeal would be dismissed, because–

 

(i) whatever may have been the position in law before the passing of the Guardianship of Infants Act 1925, by s 1 (Section 1 is set out at p 808, letters e and f, post) of that Act the first and paramount consideration in custody matters was the welfare of the infant; and the latter part of that section did not call for, or imply, any constriction on the natural meaning of the first part so as to limit its application to disputes between parents (see p 808, letter i, p 809, letter f, p 820, letter d, p 820, letter i, to p 821, letter b, p 832, letter h, and p 835, letters c and h, post).

 

Ward v Laverty ([1924] All ER Rep 319), and dictum of Eve J, in Re Thain, Thain v Taylor ([1926] Ch at p 684, approved.

 

Re Fynn ((1848), 2 De G & Sm 457), Re O’Hara ([1900] 2 IR 232), and dictum of Danckwerts LJ, in Re Adoption Application No 41/61 ([1962] 3 All ER at p 560), considered.

 

Re Carroll (No 2) ([1930] All ER rep 192) disapproved.

 

(ii) since there were substantial differences between an adoption order and an order giving care and control of an infant, it could not validly be argued that the judge’s order was in effect an adoption order which, by reason of lack of parental consent, he would not have had jurisdiction to make (see p 805, letter a, p 824, letter b, p 828, letter a and p 835, letter h, post).

 

(iii) although the existence of an order of a foreign court would not in itself prevent an English court from making an order with regard to the welfare of the infant, since no order had been made by a Spanish court no consideration of comity would prevent the court from exercising its jurisdiction (see p 812, letter e, p 824, letter c, p 828, letter h, and p 835, letter h, post).

 

Re B’s Settlement, B v B ([1940] Ch 54) approved.

 

Appeal dismissed.

 

Notes

 

As to the rights of the mother and father to custody, see 21 Halsbury’s Laws (3rd Edn) 191-197, paras 425-432; and for cases on the subject, see 28 Digest (Repl) 610-612, 1172-1197.

 

For the Guardianship of Infants Act 1925, s 1, see 12 Halsbury’s Statutes (2nd Edn) 955.

 

Cases referred to in judgment

 

A and B (infants), Re [1897] 1 Ch 786, 66 LJCh 592, 28 Digest (Repl) 624, 1264.

 

Adoption Application No 41/61, Re [1962] 3 All ER 553, [1963] Ch 315, [1962] 3 WLR 997, 126 JP 511, Digest (Cont Vol A) 929, 1346a.

 

Adoption Application No 41/61 (No 2), Re [1963] 2 All ER 1082, [1964] Ch 48, [1963] 3 WLR 357, 127 JP 440, Digest (Cont Vol A) 930, 1350f.

 

Agar-Ellis, Re, Agar-Ellis v Lascelles (1883), 24 ChD 317, 53 LJCh 10, 50 LT 161, 16 Digest (Repl) 283, 533.

 

A-G v HRH Prince Ernest Augustus of Hanover [1957] 1 All ER 49, [1957]  AC 436, [1957] 2 WLR 1, 2 Digest (Repl) 210, 257.

 

B’s Settlement, Re, B v B [1940] Ch 54, 109 LJCh 20, 28 Digest (Repl) 657, 1518.

[1969] 1 All ER 788 at  790

 

Barnardo v McHugh [1891] AC 388, [1891-94] All ER Rep 825, 61 LJQB 721, 65 LT 423, 55 JP 628, affg, sub nom R v Barnardo, Jones’ case, [1891] 1 QB 194, 3 Digest (Repl) 434, 280.

 

C (M A) (an infant), Re [1966] 1 All ER 838, [1966] 1 WLR 653, 130 JP at p 226, Digest (Cont Vol B) 51, 269d.

 

Carroll (No 2), Re [1931] 1 KB 317, [1930] All ER Rep 192, 100 LJKB 113, 144 LT 383, 95 JP 25, 3 Digest (Repl) 437, 304.

 

Clarke-Jervoise v Scutt [1920] 1 Ch 382, 89 LJCh 218, 122 LT 581, 2 Digest (Repl) 53, 278.

 

Curtis, Re (1859), 28 LJCh 458, 23 JP 708, sub nom Curtis v Curtis, 34 LTOS 10, 28 Digest (Repl) 619, 1231.

 

D (infants), Re [1943] 2 All ER 411, [1943] Ch 305, 112 LJCh 235, 169 LT 313, 28 Digest (Repl) 657, 1519.

 

De Manneville v De Manneville (1804), 10 Ves 52, 32 ER 762, 28 Digest (Repl) 711, 2195.

 

E (an infant), Re [1967] 2 All ER 881, sub nom Re E (D) (infant) [1967] Ch 761, [1967] 2 WLR 1370, Digest (Repl) Supp.

 

Fynn, Re (1848), 2 De G & Sm 457, 12 LTOS 143, 64 ER 205, 28 Digest (Repl) 618, 1221.

 

H (infants), Re [1966] 1 All ER 886, [1966] 1 WLR 381, Digest (Cont Vol B) 132, 1185b.

 

Hope v Hope (1854), 4 De GM & G 328, [1843-60] All ER Rep 441, 23 LJCh 682, 24 LTOS 29, 43 ER 534, 27 Digest (Repl) 500, 4437.

 

Johnstone v Beattie (1843), 10 Cl & Fin 42, [1843-60] All ER Rep 576, 1 LTOS 250, 8 ER 657, affg, sub nom Beattie v Johnstone (1841), 1 Ph 17, 28 Digest (Repl) 655, 1504.

 

McGrath (infants), Re [1893] 1 Ch 143, 62 LJCh 208, 67 LT 636, 28 Digest (Repl) 644, 1373.

 

McKee v McKee [1951] 1 All ER 942, [1951] AC 352, 28 Digest (Repl) 614, 1218.

 

Official Solicitor v K [1962] 3 All ER 1000, [1963] Ch 381, [1962] 3 WLR 1517, rvsd HL [1963] 3 All ER 191, [1965] AC 201, [1963] 3 WLR 408, Digest (Cont Vol A) 933, 2149b.

 

O’Hara, Re [1900] 2 IR 232, 28 Digest (Repl) 612, * 528.

 

Plomley, Re, Vidler v Collyer (1882), 47 LT 283, on appeal, 47 LT 284, 28 Digest (Repl) 706, 2148.

 

R v Clarke, Re Race (1857), 7 E & B 186, 26 LJQB 169, 28 LTOS 250, 252, 21 JPJo 53, 119 ER 1217, 28 Digest (Repl) 628, 1305.

 

R v Gyngall [1893] 2 QB 232, sub nom Re Gyngall, 62 LJQB 559, 57 JP 773, sub nom R v Gyngall, Re Hausherr (otherwise Austen), 69 LT 481.

 

R v New (1904), 20 TLR 583, 3 Digest (Repl) 383, 225.

 

Stuart v Bute (Marquis), Stuart v Moore (1861), 9 HL Cas 440, [1843-60] All ER Rep 595, 4 LT 382, 11 ER 799, 28 Digest (Repl) 708, 2167.

 

Thain, Re, Thain v Taylor [1926] Ch 676, [1926] All ER Rep 384, 95 LJCh 292, 135 LT 99, 28 Digest (Repl) 614, 1214.

 

Ward v Laverty [1925] AC 101, [1924] All ER Rep 319, 94 LJPC 17, 131 LT 614, 28 Digest (Repl) 642, 1359.

 

Appeal

 

This was an appeal from the Court of Appeal dismissing an appeal from a decision of Ungoed-Thomas J, of 31 July 1967, in which he had refused to make an order on applications by the parents and the foster parents of an infant and by which he, in effect, continued in force an order made by him dated 22 July 1965. By the order of 22 July 1965, Ungoed-Thomas J, ordered that the infant should remain a ward of court during his minority or until further order and that until further order the care and control of the infant be committed

[1969] 1 All ER 788 at  791

 

to the foster parents. He further ordered that the infant be brought up in the Roman Catholic religion and in the knowledge of his parents and in the knowledge of the English language. Reasonable access to the infant whenever the parents, or either of them, were in England was granted. On 25 January 1967, the foster parents applied, inter alia, that the infant might thenceforth be brought up in the faith of the Church of England. By summons dated 10 May 1967, the parents applied that custody, care and control of the infant might be granted to them and that they might take the infant out of the jurisdiction so as to reside with them in Spain. The applications were considered by Ungoed-Thomas J, who delivered the following judgment on 31 July 1967.

 

19 February 1969. The following opinions were delivered.

 

 

 

Ungoed-Thomas J.

 

There are two applications before me with regard to the infant, a boy of nine years, who is a ward of court, (i) of 25 January 1967, amended on 23 February, by those who have care and control of him, his former foster parents; their application is that he be brought up in the Church of England instead of as a Roman Catholic; and (ii) of 10 May, by his parents, that care and control should go to the mother. It is common ground that if care and control should go to the mother no question arises about the religion. In those circumstances the parents’ application, though second in time, has been treated as the primary application. The boy was born in this country, of Spanish parents; he is British by birth and also a Spanish national.

 

In July 1965, I made an order about the infant, then aged seven, on the application of the Surrey County Council. Unfortunately, the parents were not before me, and were not represented, but I had the advantage of their representation in writing, and counsel for the county council was scrupulous to urge every possible argument in their favour. It was decided that the foster parents, who had care of the infant as foster parents under s 1 of the Children Act 1948, under the aegis of the county council, should have care and control of him.

 

The judgment emphasised that that order was until further order be made, and that it was open to the parents to come back and seek a variation from this court at any time. The order for care and control was made subject to directions which were accepted by the foster parents as being fair and beneficial to the infant, and which were designed to meet the concern of the parents. They provided that the infant should be brought up in the Roman Catholic religion, in the knowledge and recognition of his parents, and in knowledge of the Spanish language; that the parents should have all reasonable access to the infant whenever they, or either of them, should be in England; and that the council, by its officers, should also have such access. It was further ordered that the infant be joined in the proceedings, and that a guardian ad litem be appointed for him, to look after his interests; and in due course the official solicitor was appointed, whose sole concern it is to see to the interests of the infant. A letter was sent from the court to the parents, explaining the position to them and telling them that they could apply for any change in that order which they might want. In view of the course which this case has taken, I am afraid I must review the history in some detail.

 

The father was a low-paid labourer in Spain, and in November 1957, he and the mother came to England to improve their position. To do so the father signed a certificate that he had no children, because, as he said, it was worth telling this untruth to better himself. The parents left behind with her grandmother a small daughter of four, though they contemplated that they might stay in this country for several years. In the event, however, their stay, as the father said, was “cut short”. In May 1958, the infant with whom we are concerned, was born in hospital in Northamptonshire, and the mother suffered from tuberculosis. The foster mother, who could speak Spanish fluently, and did a good deal to help Spaniards in this country, was called in to interpret. To avoid the baby going to an institution in the south of England, and to please the mother, the foster parents took him into their home when he was four days old; and in June 1958, the

[1969] 1 All ER 788 at  792

 

Northamptonshire County Council took him into care under s 1 of the Children Act 1948. In November 1958, the foster parents went to Surrey. They took the infant with them, and the Surrey County Council then acted as agents for the Northamptonshire County Council in relation to the infant. Until February 1959, the mother was convalescent, and then the foster parents had the parents to stay with them for two or three weeks, and they found them a job in Surrey. So in March 1959 the infant was discharged from the care of the Northamptonshire County Council and lived with his parents.

 

For about a year the parents, and the infant, remained in Surrey, and kept in constant touch with the foster parents. The mother was still delicate and not allowed to lift the baby, and the foster mother helped the parents a good deal, was in constant touch with the mother, and very frequently had the infant at her home to look after him for her. It is not surprising, in those circumstances, that the mother and the foster mother–as the foster mother said in evidence–got to know each other well, as woman to woman, and that the mother confided in her. In a year the mother was going to have another baby, and, though there is evidence that the mother was in fear of going back to Spain, there is also evidence that she was nervous about having another birth in this country. The foster parents took the parents to the station, and helped them all they could, and so it was that the parents’ contemplated stay in England was cut short. As far as anyone could foresee, the relationship between the parents and the foster parents was substantially at an end, and the infant would settle with his parents in Spain. But the infant was only in Spain for 17 months. On 9 July 1961, when he was three years and two months old, the parents sent him back to the foster parents in England.

 

In May the foster parents’ Spanish maid, M, who was friendly with the parents, and with the infant, had gone for a holiday in Spain. On her return she said that the infant was unwell and that the mother asked if it were possible for him to return to the foster parents. The foster parents did not wish to have the responsibility of having him back, but when the request was repeated they agreed. The foster mother’s daughter had seen the infant in Spain, in June 1960, and said she saw him sitting alone, hugging his child’s tricycle, which he had in England, and “utterly listless, dejected and miserable”. The parents say that he could not stand the Madrid heat and that he lost his appetite, but they deny that he was pining for England. Their former employer in England, Mrs C, said that on his return he was “in a pathetic state, weak on his legs and flabby; he dragged his right leg and preferred to sit rather than run or walk”. Mrs V, who lived near the foster parents over the period 1958 to 1962, said that he had a “waxen complexion”–which the mother denied before me–“and looked like a shrunken old man”, and that he was “completely apathetic”. There is no doubt at all that the infant was in good condition when he went to Spain, and that he returned 17 months later in a somewhat heart-rending condition. He settled down immediately and most happily with the foster parents, he completely recovered, and he has been with them and has been flourishing ever since.

 

The parents say that the arrangement was that the infant should come to England for three months, but I am satisfied that is not correct, though I can well understand how it might, later, have come to be so claimed by the parents. The infant was sent to England to escape the Madrid heat, and to recover his health, and the Madrid heat would improve towards the end of three months. But I accept that there was an idea, as the father himself said, that the parents might join him in England, and, as the foster mother said, that “feelers had been put out” about the father getting a job in England. No definite time for the infant’s stay in England was mentioned, though nobody contemplated his being with the foster parents permanently. A definite proposal that the parents should come to England came later, through M, and in fact the foster parents found for them a job at a school, similar to the job that they had in Northamptonshire.

 

The foster parents were concerned about their responsibility for the infant and

[1969] 1 All ER 788 at  793

 

in August applied to the Surrey County Council to be appointed foster parents on the same footing as before, and for the resumption of financial assistance. Some degree of relief of responsibility rather than financial help was, I am satisfied, their main concern. The letter of application from the foster father did not mention that the infant had been in Spain and a county council report of an interview with the foster mother included the observation: “They [that is the parents] had left [the infant] with [the foster parents] once more.” It was suggested, on the basis of this omission in the letter and in the interview report, that there was some deliberate attempt to mislead the council. In fact the foster mother, as I accept, informed the welfare doctor of the infant’s time in Spain, and she said it was well known locally. I am completely satisfied that there was no intention whatsoever on the part of the foster parents to mislead the council. Indeed, their tendency, as we shall see, is to scrupulous forthrightness rather than the opposite.

 

It was a requirement of the county council that they should, in the circumstances, be provided with a certificate of the health of the mother, and it appears both from the foster father’s evidence and a consular letter of 15 September 1961, to the council’s children’s officer, that the council wrote for this direct to the British consul in Madrid. A consular official interviewed the mother and the consular letter stated: “[The mother], who certainly appeared to be ill, stated that although she missed her son greatly she did not feel capable of looking after him at the present time”, and it quoted a note from her doctor, that she “is suffering from tuberculosis and anaemia which obliges her to remain resting and observe the appropriate treatment for an indefinite period”. The mother said in evidence that she obtained that doctor’s certificate, but that it was not true that she was ill; that she told the doctor that she was not ill, and told him what the certificate was wanted for, and that she paid him for it. She also said that she told the British consul that she did not feel able to look after the infant, and she suggested that she appeared ill to the consul because her sister had died some few days before. The Surrey County Council took the infant into care on 22 October 1961.

 

The Ministry of Labour also required a certificate of the mother’s ill-health, if she were not preceding, or accompanying, the father to a job in England, and the foster father was cross-examined about this. I have no doubt that the foster parents would, as they say, have preferred to see the mother coming alone, or with the father, rather than the father coming alone; and that it was only because M told them that the mother was unwell that they applied for this certificate. The parents said that they were required to state that the mother would never come to England, and it was suggested, at any rate in correspondence, but disclaimed by their counsel, that the foster parents schemed to get the father over here alone, so that they should keep the infant. It was for those reasons, the parents said, that they did not come to England. They never gave any explanation at the time or any indication that they were not coming; and the foster parents, who had got them a job, had to bear the brunt of their employer’s annoyance. I am convinced that the mother was ill at this time. This provides a simple, credible explanation of all that happened. On her own evidence she was either making false statements to the consular official, and providing a false doctor’s certificate, or she was giving false evidence in the witness-box. I consider that it was her evidence before me that was false.

 

When the foster parents next heard of the parents they were, to the foster parents’ suprise, in Hamburg. This was in the winter of 1961-62. They went to Hamburg, as they had come to England, to improve their position. And, just as in 1957 they had left their only child in the grandmother’s care, so now they left their two children, aged eight and four, in her care in Madrid. It is clear from a letter from the father, of January 1963, and his explanation of it, that if the foster parents did not keep the infant he was to be sent, not to them in Hamburg but to Madrid. The mother’s evidence was that if the infant had been

[1969] 1 All ER 788 at  794

 

with them in Madrid they would not have gone to Hamburg, but I find it difficult to accept this. Their stay in Hamburg, as in England, was to be long and indefinite, but it, too, was cut short; in that case by the grandmother’s death in February 1963.

 

During their stay in Hamburg they did not visit the infant, although the foster mother offered to pay the mother’s fare for her to do so. It was stated that they could not do so, because they were bound to their employment for a year, and before that year ended the grandmother died. But it emerged that the mother went to Hamburg in November 1961, some appreciable time before the father; that she was with a Spanish family, and that after some little time she had about a week free before going into employment with the American consul; and it was after she went to the consul’s employment that the father went to Hamburg. There is no reasonable explanation why the mother did not visit the infant during this week which she had free; and both parents were over a year in employment in Hamburg. Though the employer knew about the infant, the mother said she never asked her employer if she could go to visit him. The mother did not reply to the invitation to come to England at the foster parents’ expense, and the foster mother’s evidence was that the father replied, through M, that he would not let her come, because “[the foster mother] then wears the trousers”. The father appears to have understood that there was some suggestion of the infant visting Hamburg. It might have arisen out of the mother’s note on the back of a Christmas Card, to the effect that it would be nice if the infant could visit them, but the father’s observation in his letter of January, to the foster parents, was “Tell him not to bother making this so silly journey. This is in line with the foster parents’ evidence, that there was no request, apart from a somewhat nebulous suggestion on a Christmas card, that the infant might visit Hamburg.

 

Later in 1963, after the grandmother’s death, the father returned for a time to Hamburg, but, again, he did not visit England. The only explanation he gives for not visiting England is that “Alone, I didn’t think I could make it.” In the June 1962 letter, in which the father said that the infant, if returned, should be sent to Madrid and not to Hamburg, he mentioned that the foster parents might return the infant in January 1963. His evidence was that he said that to see if, by saying it, he could have the infant back, but I do not accept this explanation. I have no doubt that it suited the parents that the infant should be with the foster parents in England whilst they were in Hamburg. As the foster mother said, it suited the parents, the infant was happy and the foster parents were happy.

 

They all drifted along and in the meantime the infant was growing up as part of an English family. In view of what has happened since, it is not surprising that the foster mother should, with the advantage of hindsight, have retorted, in cross-examination, that, despite her fondness for the infant, if she had appreciated the position as she did now, he would have gone to a Roman Catholic home, reluctant as she said she would have been to see him go.

 

In January 1963, the infant went to a village school with the foster parents’ child P, for a term, and then to a preparatory school. He was beginning an English schooling. By July it had been brought home to the foster parents how English the infant had become, and they wrote a letter of 9 July 1963, to the parents, to bring this home to them, too, and to bring matters to a head. This letter emphasised how English the infant had become, and the advantages to him of the upbringing which he was receiving. Doubtless, as the foster mother explained, she couched it in terms which she would not have employed in an English letter, but which she considered would be appropriate to the conditions and ideas of such Spaniards as the parents; and perhaps, too, it suffered–as other documents in this case have suffered–from translation, in this case from English into Spanish and then back again from Spanish into English. For my part, when all explanation is made, it remains a most tactless and regrettable letter. It is a letter which I find thoroughly objectionable and it has, in my view,

[1969] 1 All ER 788 at  795

 

very understandably, been responsible for arousing a good deal of animosity on the part of the parents.

 

In that summer the parents asked that the infant should visit them. The foster parents feared that he might not be returned, and were distressed to think what might happen to him again if kept in Spain. His condition on his return in 1961 was very much in their minds, and they feared the destructive effect of such a change. The county council health officer shared this view. M went to Spain that summer. The foster parents said that she had, for some time, been becoming indolent, had been giving P preference over the infant, and had been taking their drinks. But they were fond of her, she had been a good maid, she had been with them for eight years, and they did not want any scene in the house. So they dismissed her when she was in Spain. The foster mother was under the impression that she would stay in Spain for some time, and gave her a reference. She was searchingly cross-examined about this reference. It did not make any reference to sobriety, or give any reason for her dismissal. There was never any question of dishonesty on M.’s part, except in taking drinks, and that was a recent development. The foster mother referred to her as being absolutely honest, but this, she said, was stated with money-honesty in mind. She considered M was, in general, absolutely honest and was always honest about money. She was affected for the time being by menopause, which had caused her trouble, and for which the foster mother had accompanied her to a doctor. She expected that a restful period in Spain would get her over it; and I understand that she has for the last three years or so successfully held the same job in this country. The suggestion that the foster parents were scheming to get rid of M in order to have unfettered and unembarrassed control of the infant is, I am completely satisfied, quite wrong.

 

On 25 September 1963, the mother wrote a most reasonable letter to the county council children’s officer, and on 3 October the children’s officer wrote to the foster parents, informing them that the parents wanted the infant back. On 8 November 1963, the foster parents served a notice under s 3(2) of the Adoption Act 1958, of intention to apply for an adoption order in respect of the infant. This had the desired effect of making the infant a protected child within the Act and imposing on the local authority the duty of securing his well-being. Proceedings were started by the county council, on 6 December 1963, to make the infant a ward of court, and on 22 July 1965, I made the order which I have mentioned.

 

Since then, until the foster parents issued their summons of January 1967, there has been no step in the proceedings by the parents. The parents consulted the parish priest, and left matters in his hands. The legal officer of the Spanish embassy said he was first consulted in April 1964. The only written instructions which he had with regard to the infant were after the foster parents’ summons of 1967, but he did say that there were numerous oral references to him about the infant. He attributed this long delay to the incapacity of the Spanish lawyers and foreign office officials to accept that the infant’s future had to be decided in this country by law, and not politically, and by the principle that the welfare of the infant should not be subordinated to the wishes of the father, and was paramount. It is acknowledged that since the summer of 1963 the parents themselves have wished to have the infant back with them. But from his return to England in 1961 until the summer of 1963 it seems to me that they were relieved to have the boy in England with the foster parents.

 

The delays since the commencement of these proceedings by the county council cannot be held as having been due to the foster parents. Indeed, I have no doubt that if they had not issued their summons in February 1967, I should not be dealing with this case now. The trouble was that the parents, in their helplessness, were not, themselves, able to press on with this matter. That has added to its difficulties.

 

Having dealt with the history of this matter, which has been the subject of so

[1969] 1 All ER 788 at  796

 

much difficulty between the parties and therefore of investigation before me, I come to the considerations which bear directly on the course which should be taken now about the infant. The foster father is 58, a solicitor in practice. He is not well off, and, like most other professional persons, has had to struggle to bring up his family. In recent years the foster mother has helped him in his office. They have six children in their family, a son of the foster father’s former marriage, three children of the foster mother’s former marriage, and two children of their own. It is a very happy and united home. After their own misfortunes they have made a complete success of their family life together. The foster father is a warmhearted man of strong principles, and, as such persons normally are, honourable though somewhat rigid, and forthright to a fault. The foster mother, who is, I venture to think, much younger, is a warm-hearted, scrupulously honest and charming person. They are kind and compassionate and have done a good deal within their church; and outside it they have helped those who have suffered misfortunes, including Spaniards in need in this county. It is hardly surprising that the infant should fit in well into this home, and be happy there. The very fact that here were three families in one might well have helped. In addition, the foster parents have a little boy P, very much of the infant’s age. From the very first, they have taken to each other and been inseparable. More than one witness has described them as being “like twins”. They have differed but they never quarrel; they go to school together, always play together and share their pursuits. The infant is said to come into his own on the playing field. His love of music has had full scope in this musical family. He is keen on cricket, and he has won prizes open to all the boys.

 

The official solicitor said in evidence before me that he is secure and wholly integrated; that the infant and P are equally forthcoming and that he and P might well have been twins, apart from the difference in looks; that there is a great deal of love and affection by the foster parents towards all the boys, and “I could trace no differentiation between them”. He summarised the situation in the words of an affidavit: “He adopted them.” The father accepts that the official solicitor appointed to look after the infant’s interests has the infant’s interests at heart, and the mother accepts that the infant is very happy, greatly loved by the foster parents, and that he is very fond of them. The only flaw in the infant’s attitude has been towards Spain and Spanish things. The foster parents are a strongly pro-Spanish family, and Spanish is quite commonly spoken in the house. The least pro-Spanish has been the infant. He has been answering Spanish in English, putting away a Spanish bull toy sent to him, which the other children prized. A law student, and godfather of the infant, speaking of him in 1963, said of him: “Even when Spain or Spanish things are mentioned in the happiest context, his face will fall a little and slight suspicion and anxiety are apparent.” The foster mother, speaking of this attitude, said: “He is better than he was, as he has got more settled.” The foster parents have brought him up in the conviction that his parents love him, and he has their photographs on his dressing-table.

 

I cannot escape the conviction that the infant suffered more deeply in mind than in body during his 17 months in Spain, and that he has found a home which has quite astonishingly restored him. Now the time has come for P to go to boarding school. Like his elder brother, before him, he has won a school place as a chorister. The infant, in accordance with his Roman Catholic religion, tried for a place as chorister in Westminster Cathedral. He was successful in music but failed in arithmetic. However, after being coached, he appeared to have succeeded in arithmetic on a second attempt, but he was, nevertheless, not accepted, due, it is thought, to a change of choirmaster. It appears that the only other boarding school which is at present able to offer a place for a chorister, is a Church of England choir school, and that place is only open to him subject to the condition that he becomes a member of the Church of England. Hence the foster parents’ application in this case.

[1969] 1 All ER 788 at  797

 

Although, when the infant’s voice breaks, a career as a singer might not be open to him, he would be taught music and to play musical instruments at a choir school. When he reaches public school age, if he were with the foster parents, they would wish to send him with P to a public school. They would pay for him, and they could do so as their elder boy’s schooling would be over and P’s schooling is covered by insurance. In the meantime, for the next four years, if he remains with the foster parents, and a Roman Catholic, the foster parents would try to find a suitable Roman Catholic boarding school for him, or try to arrange for him to continue at his present school as a day-boy or a boarder. If he were a day-boy he might miss P the more; and, as the foster parents would have no maid living in, it would cause some inconvenience, though that would not be insurmountable. If he were to be a boarder this would be a financial burden to them. The possibility of Liverpool Cathedral having a Roman Catholic choir school was mentioned, and there is just a chance that he could later win a place there.

 

I now turn to the infant’s prospects in Spain. The parents have the advantage of being younger than the foster parents. The father is 40, and he would appear to be the older. Whereas when the infant was in Spain their house was little better than a hovel, they now have a house in a modern housing estate, with their own independent piece of garden and five rooms. The two daughters, now aged 14 and seven, live at home. The father has been in the same job for four years and is earning steady money. If the infant returned to Spain he would go to the state day school, and that school appears to be modern and well-equipped. The mother suggested the possibility of his getting in as a chorister-paying boarder at a choir school at the Escorial, but she said that he would have to pass a test for that, and doubtless not only in music. It seems to me that the chances of his going there would be slight. Sixteen is the age up to which there is compulsory schooling in Sapin and there are possibilities for him to win scholarships to higher education after that, but the foster mother said that in Spain the age limits did not necessarily mean that a child stays in school till 16. It is clear that with the dislocation that would be caused by his going back to Spain his schooling would be impeded, His prospects of education, and of a satisfying occupation in life afterwards, would. in the circumstances, appear to be substantially better if he were to stay in this country than if he were to return to Spain. This is important, but it cannot, in my view, be decisive. If it were not for the dangers to the infant of adjustment to life in Spain, I, for my part, would have no difficulty in making the order for which the parents ask.

 

Those dangers appear to go to the very core of his being. I had the advantage of the evidence of Dr G, who is an eminent psychiatrist, and his evidence was firm and impressive. He saw the infant on two occasions, in 1965 for 1 1/2 hours, and in 1967 for 1 3/4 hours. He said that if the infant made a successful adjustment in Spain he would be integrated with his surroundings and the dichotomy of the present situation would be ended. But he was emphatic that the chances of that adjustment would be “very slim”, and, if it were not achieved, there would be the gravest consequences for his future emotional stability and happiness. The infant would be unhappy and there would be such consequences as failing to eat, failing to sleep, failing to learn, illness, defiance and delinquency. The infant’s symptoms, reported to him, of the last visit to Spain, were, he said, symptoms of this maladjustment and not just physical illness. The crux of it all, which he came back to time and time again, under examination and cross-examination, was he said, the infant’s relationship with those who stood to him as father and mother, ie, now the foster parents. He emphasised that at this stage of his life he is in need of stable parental figures. The evidence of how the infant now models himself on the foster father is in line with this. When he gets to 16 years, Dr G said, the infant would be getting more intelligent, and would be becoming more concerned about his origin. In this case, however, the infant has the advantage of knowing his origin, knowing who his parents are, and could later follow

[1969] 1 All ER 788 at  798

 

up his own Spanish past. Dr G’s evidence was to the effect that the infant’s prospects of proper adjustment and development were far better if his return to Spain came from the growth of his own natural inclination later on, than if made now.

 

Other factors, he said, were important but subsidiary to this crucial disruption of his relationship with the foster parents. His friendship with P, the difference in standards of life, and different ways of life, between the English and the Spanish homes, the difference in language, all the innumerable differences between these homes, and these countries, all added to the difficulties. On the other hand, loving parents and sisters, and a warm welcome, the distractions of Madrid, could help. But, again, all these additional considerations were, he emphasised, subsidiary. Dr G said he had not seen the parents and his evidence was given without any supposition as to their characters. The mother is more intelligent than the father and a very different kind of person. She is described by her former employers as “conscientious and civil-tempered”. She is obviously sensible, kind and liked, and it appears that she is now quite well. I have had to comment on the reliability of her evidence, but, in the circumstances of this case at any rate, that does not weigh with me against her in the very slightest on the important questions that I have to decide. In my view, if the infant returned to Spain the mother would be helpful, but would not, in my opinion, prevail against the father, who, I am satisfied, would be dominant. When the infant was born the father behaved impeccably as husband and father, apart from his ingrained hostility to necessary operations, and he was proud of the infant. He is, as I have indicated, a good workman, but he is not the kind of person who could cope with or even understand the difficulties of adjustment of the infant, whom the official solicitor described as “a sensitive boy”. When the parents had had an opportunity of considering Dr G.’s evidence, the father said: “I know what the doctor says about the difficulty. I do not agree”, and, later, “I reject altogether the doctor’s opinion”, and, again, “I can see no difficulties ahead.” The mother, likewise, rejected the doctor’s opinion, but she added: “If I accepted that the doctor was right, I would not wish to take him [that is the infant] back to Madrid.” But the father’s employer in Surrey described him as “difficult, morose and obstinate”, and the father himself said in evidence that “morose–that is my character”. The letters of January 1963, to the foster parents, which I have mentioned, the only letters he ever wrote them, contained revolting passages, and there were omissions of words which the translater considered too obscene for translation. A photograph was sent to the parents of the infant praying, and when it was put to him that his reference to that in his letter was derogatory, he said that it was just a nervous reaction. In another letter, about the same photograph, he said: “They want me to swallow that muck.” When he was asked to explain the passage in his January letter which read: “Many thanks for everything you have done for the boy, because for me you have done very little”, he said: “I was resentful so much was done for my son.”

 

When asked about the official solicitor’s view that the infant should remain with the foster parents he replied “I would not accept it, never. That is because I am very anxious to have my son in my home. That is very important to me”, and soon afterwards he said “It is a matter of family pride to have a son in the family. That is very important.” When asked if the infant’s happiness was his first consideration he replied “It is more important he should be with his sisters and his legitimate parents”, and when further questioned about the infant’s happiness added “The most important thing is his family should give him the happiness he requires.” His attitude is sustained by the preference given in Spain to the sovereign right of the father and not, as in this country, to the welfare of the child. The father’s letters give the impression of crudity and boorishness and that impression, regrettably, was not dispelled but confirmed when he gave evidence before me. And it is in the setting of this nature of the father that his conviction of the father’s paramount rights has to be appraised.

[1969] 1 All ER 788 at  799

 

When the mother was asked what she would do if the infant pined for England she said they would have to find a way of returning him to England, to a boarding school. She said that they could pay for the journey, but not for the school. But that does not appear to me to be a sufficiently practicable outcome to merit serious consideration. When she and the father were later asked what they would do if the consequences which the doctor feared were to result, they said they would accept them with resignation, meaning love and patience. But I, for my part, am satisied that there would be no reasonable prospect of retreat from a decision that the boy should go to Spain. It has been suggested that an undertaking be given for the infant’s return, but in view of the practical difficulties that would beset it, I do not consider that such an undertaking would overcome the difficulties that face us in this case.

 

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 adjustment or with consequential maladjustment and suffering and that the father’s character would inflame the difficulties. Counsel for the parents has, rightly, sought to call in question the doctor’s evidence. He has rightly pointed out that the doctor acknowledges that his experience is based on problem cases, and, therefore, cases of unsuccessful adjustment, not of successful adjustment, and that he could not say what the proportion was of successful to unsuccessful cases. But he was firm in the conclusion that the chances of sucess in this case are, as I have said, very slim. The objection was also made that his instructions flowed from one of the parties, and that his opinion was given without knowledge of the character of the two parents. If, however, I had to rely on 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, convice 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 infant’s life. I simply cannot bring myself to return him.

 

Then it was submitted that although the paramount consideration is the welfare of the child, yet that it is a proposition of law that it is for the child’s welfare to be in the custody of unimpeachable parents. In the course of argument counsel was at one stage inclined to submit that this proposition goes to the extent that even if it were established that returning the child to unimpeachable parents would be disastrous, and even fatal to the child, yet the court is bound, as a proposition of law, to do so. Later, however, counsel submitted that this proposition is subject to some exception described as being of a residual character, where there are special circumstances of conflict between the parents’ wishes and the welfare of the child, and that such an exception could include a case where the return of the child would be fatal to him. But even if there were such a residual exception how reasonable or practical is it to draw a conclusion as to what might be a fatal, and, for instance, a completely disastrous though not fatal consequence to the child? There is no difficulty at all in accepting, as a general principle, that it is for the child’s welfare to be in the custody of unimpeachable parents, of course it is. But that is not a rule of law to be invariably and automatically applied in all cases regardless of circumstances, or merely subject to some such imprecise but narrow exception as was propounded.

 

It seems to me, with great respect, that the law is as stated in cases quoted by Plowman J, in Re R (M) (an infant) ([1966] 3 All ER 58). There appears a quotation ([1966] 3 All ER at pp 65, 66) from Talbot J, in Re Crichton (an infant) ((1935), 79 Sol Jo 181) where he said:

 

“It was clear, on the authorities, that the two considerations were the wishes of the parent and the welfare of the child. It was true that if the

 

[1969] 1 All ER 788 at  800

wishes of the parent were inconsistent with the welfare of the child the latter was the dominant consideration:”

 

 

by Danckwerts LJ, in Re Adoption Application No 41/61 ([1962] 3 All ER 553 at p 560), quoted by Plowman J ([1966] 3 All ER at p 66) where he said:

“But I would respectfully point out that there can be only 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.”;

 

 

and by Wilberforce J, in Re Adoption Application No 41/61 (No 2) ([1963] 2 All ER 1082 at p 1085) in a reference to the provisions of s 7(1)(b) of the Adoption Act 1958, where he said:

“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 connexion, not on the basis that the person concerned has a claim which he has a right to have satisfied, but, only if, and to the extent that, the conclusion can be drawn that the child will benefit from the recognition of this tie.”

 

 

It was suggested that no case had been cited of care and control being transferred from an unobjectionable parent to a third party, but reference was made to Re E (an infant) ([1967] 2 All ER 881), where custody which a mother claimed was given to an aunt. The mother was an American. The custody of the child had been given to her former husband who had died and he wished that the child’s custody should go to the child’s aunt. So the contest was between the aunt and the mother, the father having died. Willmer LJ, quoted ([1967] 2 All ER at p 886) Cross J ([1967] 1 All ER 329 at p 337).

“Having heard [the plaintiff] in the witness-box, I have no doubt whatever that she stands in the relation of mother to Diana, and that to take Diana away from her would be utterly disastrous for the child.”

 

 

Then Willmer LJ, added ([1967] 2 All ER at p 886):

“To be fair to the mother, I do not read this as meaning that the judge took an adverse view of her. On the contrary, he rather went out of his way to pay tribute to the mother for the way in which she had behaved; he described her as “a woman of charm and intelligence’; but it is also fair to say that he did bear in mind the strictures which had been made about her moral behaviour in the past. What the judge was concerned with in using the word ‘disastrous’, I think, was the danger of taking the child away from the plaintiff, having regard to the relationship which had been built up between them. To take the child away from the plaintiff would involve removing her from the only home which she now knows, and setting her adrift in wholly strange surroundings.”

 

 

And then Willmer LJ, said ([1967] 2 All ER at p 887:

“I cannot refrain from expressing my sympathy with the mother, who has fought valiantly to recover care and control of her own daughter. I have no doubt that in the course of doing so she has subjected herself to a good deal of expense and hardship in her efforts. I feel sympathy all the more because I fully recognise the obvious difficulties, on geographical grounds, in making any satisfactory provision for the mother having regular access; but in view of the judge’s finding as to the effect of removing Diana from the care and control of the plaintiff, I do not think that any other decision was

 

[1969] 1 All ER 788 at  801

open to him. In those circumstances in my judgment the appeal must be dismissed.”

 

 

Willmer LJ, mentioned some of the relevant circumstances in that case. He said ([1967] 2 All ER at p 886):

“It might be different if the child was to go back to Albuquerque where, I suppose, she might find herself among her own friends and some of her own people; but, of course, in Portland, Oregon, she would be a complete stranger.”

 

 

It was argued for the parents that in that case the deceased father had been given the custody as against the mother, and that there the father had expressed a wish about his child’s custody, and effect was given to it; and that there, in effect, the conflict was between the father and mother, and not between the parent and somebody who is not a parent of the child. I do not so read the ratio decidendi of the judgments in Re E ([1967] 2 All ER 881). It seems to me, with due respect, that it accepts what the Act appears clearly to lay down, namely, that the paramount consideration shall be the welfare of the child.

 

It is only with the greatest reluctance and regret that I, personally, could bring myself to say that the circumstances are such that it is–having regard to the paramount consideration being the welfare of te infant–Undesirable and wrong to return the infant to the parents. It is with reluctance that I come to that conclusion in this case, but, considering that the consequences otherwise might be, as I have said, disastrous, I cannot, as I have already indicated, do otherwise–with whatever reluctance, and whatever my concern for the parents–than come to the conclusion that the proper course is that the infant should stay where he is.

 

I now come to religion. It is established that the court should pay serious heed to the religious wishes of the parents, but not to the extent of infringing the requirement of the paramount consideration being the welfare of the child. I accept that when in England the parents certainly did not assiduously attend Mass, but they are Roman Catholics who wish the infant to be brought up in the Roman Catholic religion, and this is a wish to which this court must pay serious heed. If he remains a Roman Catholic he might not have the musical advantages that he would otherwise have, but it is certainly not established at present that he will be exceptional as a musician, or, indeed, that music will be his career. His remaining a Roman Catholic might cause inconvenience, and even difficulty, to the foster parents, and I would regret this. I appreciate, of course, that dogma may mean little to a boy of nine, but he has been brought up a Roman Catholic, and it might well devalue religion for him perhaps not now but later, if the change were made to enable him to go to a choir school. It is an achievement of the foster parents that they have brought him up so successfully as a Roman Catholic in a Protestant family. They have overcome any serious difficulty that might have resulted. His Roman Catholicism may help in due course to ease the acceptance of his Spanish past and reconcile the Spanish and English in him. The foster parents, I think, have suggested this change in the infant’s interest from the best of motives, but I do not consider that it would be to the infant’s long-term benefit. It is, I am convinced, in the infant’s interest to remain a Roman Catholic, and this, happily, accords with the parents’ wishes. The result, therefore, is that case and control remains as it is, and the infant is to be brought up as a Roman Catholic, as he now is.

 

Having made that decision, there may be different ways, I appreciate, of dealing with the difficulties that then arise in this case. I would merely say this at this present juncture, because it may conceivably be helpful: the foster parents have, themselves, suggested that one possibility is sending the infant to a Roman Catholic boarding school. I can see that there might be substantial advantages in this course. It is a course which I, for my part at any rate, would regard with

[1969] 1 All ER 788 at  802

 

considerable sympathy, but, of course, always reserving the position that when any application is made it is an application that must, of necessity, be dealt with on its merits as existing at the time when the application is made.

 

The order which was made in 1965, therefore, in effect, remains undisturbed, and things will remain, as far as my judgment is concerned in this case, as they are. But I should not like to leave this case without saying that, although there has had to be, of necessity, considerable probing into the lives of those concerned, and although, of necessity, I have had to deal with it in order to explain the conclusion to which I have had to come, I trust that there will be no added sore feeling because that has had to be done. I trust that those concerned with this boy will, whatever the eventual arrangements may be, do the best for him.

 

The parents appealed to the Court of Appeal from the decision of Ungoed-Thomas J On 5 July 1968, the Court of Appeal (Harman, Salmon and Winn LJJ) dismissed the appeal on the grounds that the risk of removing the infant from his existing environment was too great, and that there were no grounds for upsetting the decision of Ungoed-Thomas J

 

Robert S Alexander for the parents.

 

J D Waite for the infant.

 

Margaret Puxon and Margaret Higgins for the foster parents.

 

Their Lordships took time for consideration a

 

 

 

LORD GUEST.

 

My Lords, the infant in these wardship proceedings is a Spanish national aged 10 1/2 years, whose parents are Spainsh 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 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 LJ, in the Court Of Appeal that for the purpose of this opinion it is only necessary to outline them.

 

 

 

 

a     After a short adjournment Lord Guest said that the committee would report to the House that the appeal should be dismissed. Their Lordships’ reasons would be given at a later date

 

 

 

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 8 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’ hose 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

[1969] 1 All ER 788 at  803

 

Surrey. The infant remained with his parents at C 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, M, 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 the foster parents ever since.

 

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 grandmother in Madrid and they remained in Hambrug 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 Mardrid. 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 25 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 conspicuous 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, on the advice of counsel, to apply to the Chancery Division to have the infant made a ward of court, which was done on 16 December 1963.

 

The proceedings took some considerable time to reach the judge and the parents were unfortunately led to believe by a letter fom 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 Spainsh lawyer. These, however, did express their wish for the infant’s return. Affidavits were lodged by vairous other parties. After a hearing on 22 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 recognition of his parents and in knowledge of the Spanish language.

 

Two years were to elapse before the final stage of the proceedings took place

[1969] 1 All ER 788 at  804

 

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 10 May 1967. An application was also made by the foster parents in January 1967, 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 31 July 1967. No order was made on either application and his order was dated 20 September 1967. Owing to various delays, for which none of the parties is responsible, the Court of Appeal hearing did not take place until 5 July 1968, and the order of the Court of Appeal refusing leave to appeal was made on 30 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 ws 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 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 9 1/2 and he is now 10 1/2 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 27 months he has been living continually 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 Spainsh. He is especially friendly with P 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 employment 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 tking the care and control from the parents and giving it to strangers is that, in his view, the risk of plunging this boy of 10 1/2 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 parents 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 has been exercised on some wrong principle. This concession could not have been withheld. It is not for this House to retry the case on the facts. The parents argued that there were three grounds on which it could be said that the judge’s decision had been exercsed on a wrong principle.

 

Although this is not the order in which counsel presented his arguments for the parents, 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 s 4 and s 5 of the Adoption Act 1958, no order for the adoption of a child can be made whithout 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

[1969] 1 All ER 788 at  805

 

because it is accepted that it is unlikely that, although the order is until further order, 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 childeren 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 parents necessitates a review of the authorities since 1848 when Re Fynn was decided. This was a case in which a father was held disentitled to the custody of his infant children on account of his conduct. Sir James Knight Bruce, V-C, said ((1848), 2 De G & Sm at pp 474, 475):

 

“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 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.”

 

 

The principle on which the Chancery Court acts is expressed by Lord Cranworth LC, in Hope v Hope ((1854), 4 De G M & G 328 at pp 344, 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 Re Agar-Ellis, Agar-Ellis v Lascelles here strong expressions as to the father’s rights as to his child are to be found. Sir Balliol Brett MR, said (1883), 24 Ch D at p 328): “… the Court could not interfere … except in the utmost need and in the most extreme case.” Later

[1969] 1 All ER 788 at  806

 

he said ((1883), 24 Ch D at p 329) that the court “has no right to interfere with the sacred right of a father over his own children” (quoting Bacon, V-C, in Re Plomley, Vidler v Collyer ((1882), 47 LT 283 at p 284). Cotton LJ said ((1883), 27 Ch D at p 333), 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 ((1883), 24 Ch D at p 332) of the court interfering with “the discretion of the father”. Bowen LJ spoke ((1883), 24 Ch D at p 337) of the right of family life being sacred, and referred to Kindersley, V-C, in Re Curtis with approval. This passage in the latter case read as follows ((1859), 28 LJ Ch at pp 459, 460):

“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 in a 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.”

 

 

Bowen LJ, continued ((1883), 24 Ch D at pp 337, 338):

“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 Guardianship of Infants Act was passed which, by s 1, provided that on the death of the father of an infant the mother was to be the guardian and s 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 s 1 and s 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.

[1969] 1 All ER 788 at  807

 

In Re McGrath (infants) Lindley LJ, delivering the judgment of the court said ([1893] 1 Ch at p 148):

“The dominant matter for the consideration of the Court os 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 consideration as the rights of the parents.

 

In R v Gyngall a mother was refused the custody of an infant aged 15. Lord Esher MR, after saying ([1893] 2 QB at p 239) 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 ([1893] 2 QB at p 239) to explain the paternal jurisdiction 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 LJ, in Re McGrath ([1893] 1 Ch at p 148) above referred to, as does A L Smith LJ ([1893] 2 QB at p 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 Lord Ashbourne, C, said ([1900] 2 IR 232 at p 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.”

 

 

But Fitzgibbon LJ, stated ([1900] 2 IR at pp 239, 240):

“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 misconduct; 2, Chancerty, 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 circumstances, 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 otherwise, 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 supersended.”

 

 

Those principles he took from the judgments of Lord Esher MR, and Kay LJ, in R v Gyngall (see also Holmes LJ ([1900] 2 IR at p 250)) and later in his judgment he said ([1900] 2 IR at p 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 LJ, ([1900] 2 IR at 251), after saying that previous to the Supreme Court of Judicature

[1969] 1 All ER 788 at  808

 

Act 1873 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 ([1900] 2 IR at p 251):

“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 ([1900] 2 IR at p 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 LJ ([1900] 2 IR at p 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 s 1 of this Act that some of the controversy in the present case has centred. 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 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 paramount 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.”

 

 

Counsel for the parents 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 on 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 circumstances outlined in Re 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, a case decided before the Act of 1925 in Northern

[1969] 1 All ER 788 at  809

 

Ireland whether the Act of 1925 never applied. Viscount Cave stated ([1925] AC at p 108; [1924] All ER Rep at p 323):

“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, 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.”

 

 

The other noble Lords concurred in this opinion. It is clear to me that even prior to the Act of 1925 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 comparative 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 Act of 1925, s 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 parents’ construction of s 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 A-G v H R H Prince Ernest Augustus of Hanover 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 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 Act of 1925. The first is Re Thain, Thain v Taylor, in which occurs the classic passage of Eve J ([1926] Ch at p 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 conditions, and amongst these the

 

[1969] 1 All ER 788 at  810

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 MR, Warrington and Sargant LJJ, approved of the judgment.

 

Shortly after this there occurred the case of Re Carroll (No 2), which I found a difficult case. The headnote read (36 [1931] 1 KB at p 317):

“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. Notwithstanding 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 LJ, said ([1931] 1 KB at p 337; [1930] All ER Rep at p 202):

“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 LJ, at the outset of his judgment ([1931] 1 KB at p 353; [1930] All ER Rep at p 210 referred to the parent as “guardian by nature” and referred ([1931] 1 KB at p 351; [1930] All ER Rep at p 209) to the mother’s wishes as being primarily to be considered. In his judgment, referring to the Guardianship of Infants Act 1925, he said ([1931] 1 KB at pp 355, 356; [1930] All ER Rep at p 211):

“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 referred with apparent approval to Re Fynn and spoke of “the mother’s right”. Finally, he expreessed himself, after criticising the judgment of Lord Hewart CJ, in the Divisional Court, in these words ([1931] 1 KB at p 362; [1930] All ER Rep at p 214):

“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

 

[1969] 1 All ER 788 at  811

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 my 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 preamble in terms states: ‘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’.”

 

 

If these observations of Scrutton and Slesser LJJ, 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 Lord Cave in Ward v Laverty. Morton J, in Re B’s Settlement, B v B said that whatever may have been the position before the Act of 1925 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 LJ, in Re Adoption Application No 41/61 ([1962] 3 All ER 553 at pp 559, 560; [1963] Ch 315 at p 328) disposed of the view held by Pennycuick J, in an unreported case b, unreported.(49), that the Act of 1925 only applied in relation to questions as between parents relying as he did in Re Thain and Re Carroll (No 2). Danckwerts LJ, 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 when he said ([1962] 3 All ER at p 560; [1963] 1 Ch at p 329):

 

 

 

 

b     Re B (an infant), (July 27 1961)

 

 

“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 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.

 

On this examination of the authorities I am satisfied that the contention for the parents as to the principles which the learned judge ought to have applied is not well founded.

 

In arriving at his decision Ungoed-Thomas J, accepted as a general proposition 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 invariable 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

[1969] 1 All ER 788 at  812

 

be to put the Chancery judge in a straitjacket and would prevent him fulfilling his duty under s 1 of the Guardianship of Infants Act 1925, which is to have regard to the infant’s welfare as the first and paramount consideration. The judge referred with approval to the observations of Danckwerts LJ, in Re Adoption Application No 41/61 ([1962] 3 All ER at pp 559, 560; [1963] Ch at pp 328, 329) already quoted and, in my view, he correctly applied those principles in arriving at his judgment.

 

The final argument for the parents 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, The Conflict Of Laws (8th Edn) r 52 at p 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 Internationsl Law (7th Edn), p 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 Re B’s Settlement. National status is merely one of the factors which the judge in exercising 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.

 

Ungoed-Thomas J, had before him the evidence of a psychiatrist, Dr G 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 conclusion apart from the evidence of Dr G. 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 understanding 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 adjustment 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 on which

[1969] 1 All ER 788 at  813

 

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 continuously 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 infant’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 infant’s future custody, the rival claimants being, on the one hand, the foster parents with whom the infant has been living and, on the other, the natural parents. In 1965, and again in 1967, Ungoed-Thomas J, found in favour of 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. Counsel for the parents 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 substances 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 parents it was submitted that the courts 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. Counsel for the infant and counsel 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 presumption as that contended for by the parents, 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 counsel for the parents’ concession as to the position of his argument does not prevail. I may add there 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 Supreme Court of Judicature Act 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 CJ, said in R v Clarke, Re Race ((1857), 7 E & B 186 at p 198):

 

“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

[1969] 1 All ER 788 at  814

 

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, V-C, in the Vice-Chancellor’s Court in Re Fynn, a decision on which counsel for the parents placed strong reliance. There the father’s conduct left so much to be desired that Sir James Knight Bruce, V-C ((1848), 2 De G & Sm at p 474), had no hesitation in saying that as a private person–ie, not as a judge sitting in court–he would have interfered with the father’s power. But as a judge he had to regard the limits of his court’s jurisdiction; and this is how he described those limits ((1848), 2 De G & Sm at p 474):

“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 he continued ((1848), 2 De G & Sm at pp 474, 475):

“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 parents’ case would stand high; but the course of both authority and legislation during the 120 years which have elapsed since Re Fynn shows a change in the law, and the question is how 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 Re Agar-Ellis, Agar-Ellis v Lascelles, the Court of Appeal did not, either in its reasoning or its decision, demonstrate any appreciable enlargement in the attitude of the law. This appears from the following excerpts, from the judgment of Bowen LJ ((1883), 24 Ch D at pp 337, 338):

“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

 

[1969] 1 All ER 788 at  815

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 ((1883), 24 Ch D at p 338):

“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 protection 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 ((1883), 24 Ch D at p 338):

“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 become an un-natural 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.”

 

 

Re McGrath (infants), 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 LJ, is significant in the importance now attached to the question of welfare. Thus we find this ([1893] 1 Ch at p 148):

“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 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.”

 

 

Then, the same year, there is R v Gyngall. There the question was whether a widowed mother should have the custody of her daughter, a girl of 15, who was in the charge of a lady who kept a home at Weymouth. The proceedings had been instituted by the mother’s application for a habeas corpus and they exemplify the assumption by the Queen’s Bench Division, under s 25(10) of the Supreme Court of Judicature Act 1873, of the former Chancery jurisdiction in relation to the custody of infants. But it is on the present issue that the judgments 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 Re Fynn ((1848), 2 De G & Sm at p 474) by Sir James 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 s 2 and s 4 of the Guardianship of Infants Act 1886. Except in cases of misconduct or desertion or abandonment of the parental right, the argument continued ([1893] 2 QB at p 236), 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 MR, approached the

[1969] 1 All ER 788 at  816

 

judgment of Sir James Knight Bruce, V-C, 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 Sir James Knight Bruce, V-C, on the question of jurisdiction, and that they thought that much greater emphasis should be laid on the welfare of the infant. 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 on to decide, I feel no need to apologise for the length of my questions.

 

After a reference to what Lindley LJ, had said in Re McGrath ([1893] 1 Ch at p 148), Lord Esher MR, proceeded thus ([1893] 2 QB at p 243):

“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 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 suggestions as these. As LINDLEY, L.J., well pointed out in the case of Re McGrath ([1893] 1 Ch at p 148), 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, Kay LJ, after referring to what Lord Eldon LC, had observed in De Manneville v De Manneville, said ([1893] 2 QB at p 248):

“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, Kay LJ, after reviewing the facts added this ([1893] 2 QB at p 252):

“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 welfare of the child,

 

[1969] 1 All ER 788 at  817

to assist the mother in carrying out what she desires. For these reasons I think that this 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 LJ, at the conclusion of a short concurring judgment came back to the test which had guided the other members of the Court. He said ([1893] 2 QB at p 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 Re McGrath (74), to which I was a party.”

 

 

That brings me to the cases of Re O’Hara, a decision of the Irish Court of Appeal (Lord Ashbourne, C., Fitzgibbon and Holmes LJJ). There a girl of 11 was restored to the custody of her mother who, having previously given the infant into the custody of a former employer, had re-married and wished to have her daughter with her in her new home. Fitzgibbon LJ ([1900] 2 IR at p 240), summarised the relevant principles under four heads. The last of these, derived as were the others, from R v Gyngall, is stated thus ([1900] 2 IR 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 superseded.”

 

 

That accords with what I may call the welfare test, but in a later passage, Fitzgibbon LJ, went on to say ([1900] 2 IR at pp 240, 241):

“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 c that ‘the best place for a child is with its parent’.”

 

 

In that passage Fitzgibbon LJ, 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 ([1900] 2 IR at p 241).

 

 

 

 

c     In R v Gyngall, [1893] 2 QB at p 243

 

 

“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 advantage 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 Fitzgibbon LJ,

[1969] 1 All ER 788 at  818

 

and which I have quoted above. It is true that Lord Ashbourne C, stated ([1900] 2 IR 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 Re Fynn, but when the judgments are considered fully I think the view of the court, or at any rate of the Lords Justices, was clearly to affirm the welfare test as an ultimate criterion.

 

In Ward v Laverty, 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 ([1925] AC at p 108; [1924] All ER Rep at p 323)–

“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, 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 suffcient 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 Lord Cave spoke in general terms, and it is notorious that custody and religious upbringing are frequently interwoven issues. These considerations and the reference to s 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 mentioned, for Parliament as well as the courts had been responding to what Lord Cave described ([1925] AC at p 108; [1924] All ER Rep at p 323) 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 enable to obtain from the Court of Chancery an order for access and, until the child was of the age of seven, 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 seven; and (b) enacted that an agreement in a separation deed providing for a transfer of

[1969] 1 All ER 788 at  819

 

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; s 3 conferred on the mother powers of appointing a guardian in certain cases; and s 5 empowered the court on 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 s 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 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 s 3, where a parent has abandoned or deserted his child or allowed the child to be brought up in certain circumstances 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 Acts 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 s 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 preamble which runs thus:

“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 of the guardianship of infants and the rights and responsibilities conferred thereby: … ”

 

 

Section 1 itself reads:

“Where is 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 paramount 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 Re Thain, Thain v

[1969] 1 All ER 788 at  820

 

Taylor, per Lord Hanworth MR ([1926] Ch at p 689; [1926] All ER Rep at p 386), and Sargant LJ ([1926] Ch at p 691; [1926] All ER Rep at p 387); and McKee v McKee ([1951] 1 All ER 942 at p 949; [1951] AC 352 at p 366), per Lord Simonds. 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 Re Carroll (No 2), Slesser LJ, appears to have approved such an interpretation for he said ([1931] 1 KB at p 355; [1930] All ER Rep at p 211):

“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 A-G v H R H Prince Ernest Augustus of Hanover ([1957] 1 All ER 49 at p 55; [1957] AC 436 at p 463), per Viscount Simonds. Having read the whole Act, 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 p 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 following considerations. In the first place, since (as the Act 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 s 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 involvement 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 s 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 confining this relief to differences between parents or for taking proceedings therefore out of the ambit of s 1. For these reasons I would hold that the present proceedings are proceedings within that section.

 

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

[1969] 1 All ER 788 at  821

 

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 on 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 Re Thain 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 remarried 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 headnote 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 s 1. In my opinion, however, the headnote is misleading in this respect. The true ratio is contained in the last paragraph of Eve J’s judgment, which reads thus ([1926] Ch at p 684):

“As I said 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 conditions, and amongst there 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 fact 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 s 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 geneally accepted since. I therefore see nothing in Re Thain ([1926] Ch at p 684) to conflict with my first view of the meaning of s 1.

 

Re Carroll (No 2) 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 judgment of Lord Hewart CJ ([1931] 1 KB at p 322), speaking for the Divisional Court, that that court took the view that s 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

[1969] 1 All ER 788 at  822

 

with her wishes. The Court of Appeal (Scrutton, Greer and Slesser LJJ) reversed this decision, Greer LJ, 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 LJJ, 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. Scrutton LJ, said ([1931] 1 KB at pp 335, 336; [1930] All ER Rep at p 201):

“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 contention 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, he added when speaking of the court ([1931] 1 KB at p 336; [1930] All ER Rep at p 201):

“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 he observed ([1931] 1 KB at p 337; [1930] All ER Rep at p 202):

“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 Greer LJ, referring to the judgment of Lord Hewart CJ, said ([1931] 1 KB at p 348; [1930] All ER Rep at p 207):

“It was said in the argument that the judgment of the Divisional Court delivered by the Lord Chief Justice was based on a misconstruction of the Guardship 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 LJ, seems to have been prepared to base his view in favour of the mother on the judgments in R v Gyngall and Re O’Hara, but if I read his own judgment aright he, as well as Scrutton LJ, regarded the mother as having a prevailing right which was not affected by s 1 of the Act of 1925.

 

My Lords, if the principles of law on which Re Carroll (No 2) 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 s 1.

[1969] 1 All ER 788 at  823

 

But in my opinion this decision can no longer be taken as authoritative. It disregarded the relevance of s 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.

 

The effect of s 1 of the Act of 1925 was again considered in the Court of Appeal in Re Adoption Application No 41/61, and there Danckwerts LJ, had this to say on the subject ([1962] 3 All ER at p 560; [1963] Ch at p 329:

“… 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 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, he had to consider the import of the words from s 7(1)(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 Re Adoption Application No 41/61 (No 2). The passage reads ([1963] 2 All ER at p 1085; [1964] Ch at p 53):

“The section, apart from a particular direction given in sub-s. (2), does not prescribe what matters have to be considered in this connexion, 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 on the child’s welfare: not limiting itself to purely material factors, but considering, as they may bear on 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 connexion, not on the basis that the person concerned has a claim which he has a right to have satisfied, but, only if, 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 s 1 of the Act of 1925, but it seems to me to be an apt description of the sort of process which s 1 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 respecting 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 Official Solicitor v K. I do not think what was said in that appeal offers much guidance on the present issue. It is true that the judgment of Sir James Knight Bruce, V-C, in Re Fynn was cited as a leading authority, 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.

 

Counsel for the parents supported his main submission with two further points

[1969] 1 All ER 788 at  824

 

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 s 4 and s 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 submitted, 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 effect, 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 Re B’s Settlement, B v B, and McKee v McKee, that the existence of such an order will not oust the jurisdiction or preclude the application of s 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 a 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 parents’ case.

 

For these reasons I conclude that my first view construction of s 1 should stand, and that the parents’ 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 misunderstanding in this difficult field. These many be enumerated as follows:

 

  1. Section 1 of the Act of 1925 applies to disputes not only between parents, but between parents and strangers and strangers and strangers.

 

  1. In applying s 1, the rights and wishes of parents, whether unimpeachable 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.

 

  1. While there is now no rule of law that the rights and wishes of unimpeachable 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 LJ, in Re O’Hara ([1900] 2 IR at p 240).

 

  1. 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 containing 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 happiness 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 attention which they undoubtedly received in this case.

 

The conclusion I have reached on the parents’ proposition of law make it unnecessary to enter on 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 counsel for the parents’ concession. The learned judge applied the appropriate principles of law and I can find no ground for interfering

[1969] 1 All ER 788 at  825

 

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 18 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. 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 LJJ). The learned judge’s order is attacked by the parents on the ground that he acted on wrong principles in reaching his decision; if, contrary to their submission, he acted on the right principles then the parents 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 uncomfortable 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 him when he was four days old. She and her husband were formally appointed foster parents under s 1 of the Children Act 1948, by the Northamptonshire County Council. In November 1958, the foster parents moved to O 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 C where the foster parents found them some employment, 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 suffering 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

[1969] 1 All ER 788 at  826

 

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 independent 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.

 

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 Children Act 1948, see s 1(3)) who requested the foster parents to return the child. They countered by issuing a notice under s 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 6 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 statement 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 22 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 recongnition 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 on 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 on 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 10 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 31 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 22 July 1965, remained in force. The parents appealed from this order,

[1969] 1 All ER 788 at  827

 

but on 5 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, on the footing that he erred in principle in refusing to order a return of the infant to his lawful and natural parents in Spain but concede that if he exercised his jurisdiction on 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 control 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 in1967 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 his parents unless they fall within the category described in the words of Sir James Knight Bruce, V-C, in Re Fynn ((1848), 2 De G & Sm 457 at pp 474, 475), that the court–

 

“must be satisfied … 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 that represents the law today, as counsel submits, it is not in doubt that on the facts of this case the parents 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 his parents regardless of all other circumstances affecting his 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 withheld.

 

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

[1969] 1 All ER 788 at  828

 

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 exclusively in the position of a child born to the adopter in wedlock (see s 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 position, this proceeds on 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 understand that the courts acting on behalf of the Crown might have disclaimed any jurisdiction as parens patriae over the children of foreign nationals temporarily residing here, but they have not done so; our courts do assume a parental jurisdiction over such children, and counsel for the parents does not contend to the contrary in the face of such wellestablished authorities as Hope v Hope; Johnstone v Beattie and Re D (infants). 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’s Settlement, B v B ([1940] Ch 54 at p 63) and McKee v McKee, though the court will pay proper regard to the order of the foreign

[1969] 1 All ER 788 at  829

 

court, Re E (an infant). 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 seized of the matter is the proper forum to decide all questions relating to the infant’s welfare (see for example Re H (infants). 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 other, the principle stated in Re Fynn 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 on 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 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 said ((1843), 10 Cl & Fin at p 122): “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 Stuart v Marquis of Bute, Stuart v Moore where again both parents were dead, Lord Campbell LC, approved ((1861), 9 HL Cas at p 463) of his words I have just quoted, and Lord Cranworth said ((1861), 9 HL Cas at p 469): “… 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 ((1861), 9 HL Cas at p 474). But Re Fynn followed in 1859 by Re Curtis 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, Agar-Ellis v Lascelles, where the Court of Appeal permitted a monstrously unreasonable father to impose on his dauthter of 17 much unnecessary hardship in the name of his religious faith. Sir Baliol Brett MR, plainly proceeded on pure common law principles (for reasons which

[1969] 1 All ER 788 at  830

 

he tried to explain ten years later in R v Gyngall ([1893] 2 QB 232 at p 241) and Cotton and Bowen LJJ, in effect followed the principles of 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 (infants) 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 R v Gyngall, where the mother was a party but where the importance of the consideration of the welfare of the child was emphaised though some lip service was paid to Re Fynn, A L Smith LJ, said ([1893] 2 QB at p 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 Re McGrath to which I was a party.”

 

 

Then in Re A and B (infants) the same court stressed the equality of the mother with the father, but Lindley LJ, pointed out ([1897] 1 Ch at p 790) that it did not much if at all diminish the rights of fathers except as to mothers. Lopes LJ, said ([1897] 1 Ch at p 792):

“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 LJ, in Re O’Hara ([1900] 2 IR 232 at p 234) to state four principles as well established of which I need only quote the fourth ([1900] 2 IR 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 superseded.”

 

 

That was a very pale reflection of the earlier and robust doctrine of Re Fynn.

 

Lord Ashbourne C, and Fitzgibbon LJ, 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 LJ, in that case who examined the facts in detail and then dealt with it in the exercise of his discretion. He rightly stressed the great importance of the period during which a child has been in the care of a stranger in these words ([1900] 2 IR at p 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,

 

[1969] 1 All ER 788 at  831

and separation from whom would break up all the associations of his life, no Court ought to sanction in his care 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 showing 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 R v New (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 before been entrusted to admirable and fond foster parents was thrown into a religious institution. No later authority was cited 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 cases I am about to mention; for let me remind your Lordships that Viscount 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 LJ, from 1913 until 1923 and Eve J, from 1907.

 

So we find Lord Cave, in Ward v Laverty 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 ([1925] AC at p 108; [1924] All ER Rep at p 323):

“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, 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.”

 

 

While the infants were orphaned in that case his views were plainly intended to be of general application.

 

Then, in Re Thain, Thain v Taylor, Eve J, in the court of first instance and Lord Hanworth MR, and Warrington and Sargant LJJ, in the Court of Appeal, 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 ([1926] Ch at p 684):

“… 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

 

[1969] 1 All ER 788 at  832

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 principle 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 resurrected by something that I said in Official Solicitor v K, and that Lord Devlin said in that case on appeal. I protest at such misuse of authority. That case was in nowise concerned with the principles on which as between parents and strangers a court acts; the observations of Sir James Knight Bruce, V-C, in Re Fynn ([1848] 2 De G & Sm at p 474) were relevant to the entirely different question whether in an infancy matter the proceedings were judicial or administrative.

 

My Lords, Eve J, said ([1926] Ch at p 684) 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 seems to me that Danckwerts LJ, in Re Adoption Application No 41/61 ([1962] 3 All ER 553 at p 560; [1963] Ch 315 at p 329), and Wilberforce J, in Re Adoption Application No 41/61 (No 2)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 ([1926] Ch at p 684).

 

My Lords, the Guardianship of Infants Act 1925, enshrined the view of the Chancery Courts. Section 1 is in these 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 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 paramount 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 (infants) it had been held that the Act of 1886 virtually only applied between spouses, the principle laid down in the Act of 1925 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

[1969] 1 All ER 788 at  833

 

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 parents’ argument, is finally conclusive that Re Fynn no longer represents the law.

 

But in 1931, in deciding Re Carroll (No 2) the Court of Appeal, Scrutton and Slesser LJJ (Greer LJ, 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 Lord Hewart CJ, with whom the other members of that court agreed, said ([1931] 1 KB at p 324), “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 LJ ([1931] 1 KB at p 348; [1930] All ER Rep at p 207), agreed with him.

 

Unhappily in his judgment Scrutton LJ, never even mentioned the leading case of Re Thain of that same court; he thought that Re Agar-Ellis, Agar-Ellis v Lascelles and Re Curtis represented the law and he could see no change in the last 40 years. Slesser LJ, mentioned Re Thain twice but not in a significant way. He reviewed R v Gyngall and Re O’Hara and other cases but held, as Scrutton LJ, had done, that the Act of 1925 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, though that case in your Lordships’ House had done no more than state, as Lord Herschell said ([1926] Ch 676; [1926] All ER Rep 384), that the wishes of the parent should be followed unless detrimental to the benefit of the child.

 

My Lords, in my opinion Re Carroll (No 2) 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 on what principle the majority of the court reached the conclusion that Charles J, had wrongly exercised his discretion, on all the facts before him, for even 40 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 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 on 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

 

[1969] 1 All ER 788 at  834

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 infant, 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 observations on 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, one has 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 practitioner for the sole purpose of calling the practitioner to give quite general evidence on 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 (M A) (an infant).

 

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 parents claim 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, to the 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 Act. 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 Act so as to make it fit the preamble.

 

This the parents agree is true. They find, 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

[1969] 1 All ER 788 at  835

 

continues, the law which was merely given declaratory expression by the Act, regarded it as being a paramount requirement 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 Act of 1925.

 

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 s 1 of the Act of 1925 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 infant was born here nearly 11 years ago and has been with the foster parents ever since, with the exception of some 18 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 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. Ungoed-Thomas J’s assessment of the father, based not only on father’s letters to the foster mother, but on his personal observation 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 him. 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 parents 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.

 

Appeal dismissed.

 

Solicitors: Anthony Duke & Co (for the parents); Official Solicitor; Montagu’s and Cox & Cardale agents for David Forsyth, Oxted (for the foster parents).

 

S A Hatteea Esq Barrister.

 

 

 

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