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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> J v C (an infant) [1969] UKHL 4 (19 February 1969)
URL: http://www.bailii.org/uk/cases/UKHL/1969/4.html
Cite as: [1970] AC 668, [1969] 2 WLR 540, [1969] UKHL 4, [1969] 1 All ER 788

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JISCBAILII_CASE_FAMILY

    Parliamentary Archives,
    HL/PO/JU/4/3/1185

    HOUSE OF LORDS

    J. and Another

    v.
    C. and Others

    Lord Pearson

    Lord Guest

    Lord MacDermott

    Lord Upjohn

    Lord Donovan

    Lord Guest

    MY LORDS,

    The infant in these wardship proceedings is a Spanish national aged 10 1/2
    years, whose parents are Spanish nationals resident in Spain. Ungoed-Thomas
    J. awarded the care and control of the infant to a British married couple

    residing in Britain and the Court of Appeal unanimously affirmed his decision.
    The custody of infants being a discretionary matter this House could only
    interfere with the exercise of the judge's discretion if they were satisfied that

    he had, in exercising his discretion, applied some wrong principle or had failed
    to apply the correct principles. Indeed, counsel for the Appellant parents
    conceded that if the courts below had applied the correct principles to their
    decision, he would not be able to ask for their decision to be reversed. He
    maintained that they had not applied the correct principles.

    The facts have been so fully set out in the very careful judgment of the
    trial judge and by Harman L.J. in the Court of Appeal that for the purpose
    of this Opinion it is only necessary to outline them.

    The story began in the autumn of 1957 when the infant's parents came to
    Britain from Madrid for the purpose of bettering their financial position by
    entering domestic service. The father was at that time a very lowly paid
    worker living in poor housing conditions in Madrid. They are both of the
    Roman Catholic faith. They left behind a daughter then aged four who lived
    with the maternal grandmother. The mother became pregnant shortly after
    their arrival in Britain and the infant was born in hospital on 8th May, 1958.
    As the mother was found to be suffering from tuberculosis and had to remain
    in hospital for some considerable time a home was found for the infant through
    the kind offices of a married couple who have been called the " foster
    parents ". The infant was taken care of, from the age of four days, by them in
    their house in Northamptonshire while the mother remained in hospital.
    The foster parents had been both previously married and between them have
    four children by their previous marriages and now have two by their own
    marriage. The infant continued to remain with the foster parents until the
    mother was discharged from hospital in April 1959. The infant's father
    remained in employment near the foster parents' house and visited the infant
    from time to time. The infant thereafter rejoined his parents who had
    obtained employment in Surrey. The foster parents had also moved to Surrey.
    The infant remained with his parents at Caterham for about ten months: the
    foster mother assisted the mother in looking after the infant and the parents
    kept in touch with the foster parents' family. In February, 1960, the mother
    again became pregnant. As she was afraid of having another baby in this
    country she and her husband went back to Madrid taking the infant with
    them.

    During the infant's stay in Madrid in the summer of 1960 his parents lived
    in what has been described as little better than a " hovel". The father was
    still a lowly paid worker and the family lived in what were virtually slum
    conditions. In the summer heat of Madrid the infant's health rapidly
    deteriorated due to malnutrition and the local conditions which did not suit
    him. He only remained in Madrid with his parents for 17 months. In
    July, 1961, he returned to Britain to stay with the foster parents. This move
    was made at the specific request of the parents who, through the intermediary
    of a Spanish maid of the foster parents, Maria, conveyed their request to the
    foster parents. This request was made on the ground of the infant's health.
    On his return to this country the infant's health rapidly improved and he has
    continued thereafter to enjoy good health. He has not lived with his parents
    since July, 1961, and has continued to live with his foster parents ever since.

    2

    The parents were content at this time to leave the infant with the foster
    parents. There was some suggestion that the parents should return to
    England to take up domestic service, so that the infant could be with them,
    and the foster parents in fact made some arrangements to this end. But
    these arrangements came to nothing. In the winter of 1961 the parents went
    to Hamburg with the idea of further bettering their financial position in
    order to be able to obtain a house of their own in Madrid in more salubrious
    surroundings. They had left their elder daughter with the maternal grand-
    mother in Madrid and they remained in Hamburg until the early part of
    1963. In February, 1963, the grandmother died and this necessitated the
    parents' return to Madrid, first the mother and latterly the father.

    Up to this point of time the parents had evinced no wish to the foster
    parents to have the infant back with them in Madrid, apart from a suggestion
    for a holiday. But in July, 1963, the foster mother wrote to the mother
    what has been described as a tactless and most unfortunate letter. In this
    letter she described how the infant had become integrated with their family;
    he had gone to an English school and he had grown up an English boy with
    English habits, and that it would be most disturbing for him to have to return
    to live with his parents in Madrid. She also made critical remarks about the
    infant's father. This letter produced the not unexpected reaction from the
    mother who, after some previous correspondence, wrote on 25th September,
    1963, to the Surrey County Council, in whose official care the infant was,
    asking for the infant's return. The Local Authority did not act with con-
    spicuous consistency or good sense. After appearing to agree to the mother's
    request they subsequently, after receipt of a letter from the foster parents
    expressing their point of view, resolved, upon the advice of counsel, to apply
    to the Chancery Division to have the infant made a ward of court, which was
    done on 16th December, 1963.

    The proceedings took some considerable time to reach the judge and the
    parents were unfortunately led to believe by a letter from the Surrey County
    Council that they would be represented by counsel at the hearing who would
    state their case for them. For this reason the parents only lodged written
    representations, which had been prepared for them by a Spanish lawyer.
    These, however, did express their wish for the infant's return. Affidavits
    were lodged by various other parties. After a hearing on 22nd July, 1965,
    Ungoed-Thomas J. ordered that the infant remain a ward of court, that
    the care and control be committed to the foster parents, that the infant be
    brought up in the Roman Catholic faith and in the knowledge and recogni-
    tion of his parents and in knowledge of the Spanish language.

    Two years were to elapse before the final stage of the proceedings took
    place before the same judge. This stage had been initiated by the parents'
    summons—asking that they should have the care and control of the infant.
    This was made on 10th May, 1967. An application was also made by the
    foster parents that the infant be brought up in the Protestant faith. This
    request for a change in the boy's religious upbringing was prompted by a
    desire on the foster parents' part that he should enter a choir school so
    as to avoid expense. The most convenient school was a Protestant school.
    The Official Solicitor also entered the proceedings, having been appointed
    next friend. On this occasion the judge heard evidence from all the parties
    and his judgment was given on 31st July, 1967. No order was made on
    either application and his order was dated 20th September, 1967. Owing
    to various delays, for which none of the parties is responsible, the Court
    of Appeal hearing did not take place until 5th July, 1968, and the order
    of the Court of Appeal dismissing the appeal was made on 30th July, 1968.

    In retrospect it is unfortunate that at the first hearing in 1963 before the
    judge the full facts were not before him. It is apparent that at that stage
    he was uncertain of the ability of the mother, on the ground of her health,
    to look after the child and he was not sure in his own mind that the parents
    genuinely desired the infant's return. It may be that if more expedition had
    been exercised by the parties in bringing the case to trial and the full facts
    had been known at the time, the judge's decision might well have been
    different in 1963. In 1963 when the parents first asked for the infant's

    3

    return he was only five years old and he had only been parted from his
    parents for a matter of two years. Even in 1965 he was only seven years
    old, but by the time of the second hearing he was nine and a half and
    he is now ten and a half years old. He has been at school in England since
    January, 1963. He has not seen his parents since 1961, when he was three,
    and apart from a matter of twenty seven months he has been living con-
    tinually in the home of the foster parents with their family. There is no
    doubt, as the learned judge found, that the infant lives in happy surroundings
    in a united and well integrated family. The mixed families have made it
    particularly easy for him to become integrated. He speaks English and
    only pidgin Spanish. He is especially friendly with Piers the child of the
    marriage of the foster parents who is only a little younger than him.

    It is right at this stage to say that the house in which the parents now
    live in Madrid is entirely suitable for the reception of the infant. It contains
    three bedrooms and is in a modern block of flats in quite different
    surroundings from the previous home. The father is in good steady employ-
    ment at a weekly wage of about £18 and the mother's health has been
    completely restored.

    The reason which has impelled the judge to take the unusual step of
    taking the care and control from the parents and giving it to strangers
    is that, in his view, the risk of plunging this boy of ten and a half years
    into a Spanish family, where he has not seen his parents since he was aged
    three and into a foreign country, would be too great to take and that the
    adjustment necessary might well permanently injure the infant's health
    at the impressionable age at which he has arrived. The judge has regarded
    the infant's welfare as the paramount consideration and he has decided
    that this demands that he should remain with his foster parents.

    Counsel for the Appellants accepted that he could not ask the House
    to overrule 'the discretion which has been exercised by the trial judge
    unless he could show that it had been exercised upon some wrong principle.
    This concession could not have been withheld. It is not for this House
    to retry the case on the facts. The Appellants argued that there were three
    grounds upon which it could be said that the judge's decision had been
    exercised upon a wrong principle.

    Although this is not the order in which counsel presented his arguments
    for the Appellants, I will first deal with the proposition that as the effect of
    the judge's order was a de facto adoption order he ought not to have
    made it. Under sections 4 and 5 of the Adoption Act, 1958, no order
    for the adoption of a child can be made without the consent of the
    parents. The result of the order giving the care and control of this infant
    to the foster parents has, it is said, the effect of adoption because it is
    accepted that it is unlikely that, although the order is until further orders,
    the child will return to his parents in Madrid at any rate until he leaves
    school. There are, however, substantial differences between an adoption
    order and the order giving care and control to the foster parents. The
    most important difference is that an adoption order is permanent, while
    this order can be varied at any time. In any case if the infant's welfare
    demands the order, the Judge is entitled to make the order, albeit its
    effect bears certain similarities to an adoption order. I do not think
    there is any substance in this argument.

    I turn next to what is the most important submission. It is argued
    that united parents are prima facie entitled to the custody of their infant
    children and that the Court of Chancery as representing the Queen as
    parens patriae will only deprive them of the care and control of their infant
    children if they are unfitted by character, conduct or position in life to
    have this control and that in the case of what has been described as an
    unimpeachable parent the court must, unless in the very exceptional case,
    give the care and control to the parent.

    This argument for the Appellants necessitates a review of the authorities
    since 1848 when In re Fynn (1848) 2 De G. and Sm. 457 was decided.


    4

    This was a case in which a father was held disentitled to the custody of his
    infant children on account of his conduct. Knight Bruce V.C., at page

    474, said:

    " The acknowledged rights of a father with respect to the custody
    " and guardianship of his infant children are conferred by the law, it
    " may be with a view to the performance by him of duties towards the
    " children, and, in a sense, on condition of performing those duties ;
    " but there is great difficulty in closely defining them. It is substantially
    " impossible to ascertain or watch over their full performance ; nor
    " could a Court of justice usefully attempt it. A man may be in
    " narrow circumstances ; he may be negligent; injudicious and faulty
    " as the father of minors ; he may be a person from whom the discreet,
    " the intelligent and the well-disposed, exercising a private judgment,
    " would wish his children to be, for their sakes and his own. removed ;
    " he may be all this without rendering himself liable to judicial
    " interference, and in the main it is for obvious reasons well that it
    " should be so. Before this jurisdiction can be called into action
    " between them il must be satisfied, not only that it has the means of
    " acting safely and efficiently, but also that the father has so conducted
    " himself, or has shewn himself to be a person of such a description,
    " or is placed in such a position, as to render it not merely better for
    " the children, but essential to their safety or to their welfare, in
    " some very serious and important respect, that his rights should be
    " treated as lost or suspended—should be superseded or interfered
    " with. If the word ' essential' is too strong an expression, it is
    " not much too strong."

    The principle upon which the Chancery Courts acts is expressed by
    the Lord Chancellor, Lord Cranworth, in Hope v Hope 4 De G.M & G. 328

    ai pages 344 and 345 :

    " The jurisdiction of this Court, which is entrusted to the holder of
    " the Great Seal as the representative of the Crown, with regard to the
    " custody of infants rests upon this ground, that it is the interest of
    " the State and of the Sovereign that children should be properly
    " brought up and educated ; and according to the principle of our law,
    " the Sovereign, as parens patriae, is bound to look to the maintenance
    " and education (as far as it has the means of judging) of all his
    " subjects."

    After an interval of some years there followed In re Agar-Ellis (1883)
    24 Ch.D 317 where strong expressions as to the father's rights as to his
    child are to be found. Brett M.R. said: "The Court could not interfere
    "... except in the umost need and in the most extreme case ". Later he
    says that the Court has no right to interfere with the sacred right of
    a father over his children (quoting Bacon V.C. in Re Plomley 474 L.T.
    (N.S.) 284). Cotton L.J. at page 333 says that the only cases where the
    Court will interfere with the rights of a father over children are where
    he has shown by his conduct that he is extremely unfit in any respect to
    exercise his parental authority and duties as a father. Earlier in his
    judgment he had spoken of the Court interfering with " the discretion
    " of the father ". Bowen L.J. at page 337 speaks of the right of family
    life being sacred, and refers to Kindersley V.C. in In re Curtis 28
    L.J.(Ch.)458 with approval. This passage in the latter case at page 459-460
    reads as follows:

    " This Court does not exercise the jurisdiction in merely considering
    " whether it would be for the benefit of the children that their custody
    " should be with the father or with the mother, or with some other
    " relative, or with strangers, simply because, upon the whole, it would
    " be most for the benefit of the children that there should be that
    " custody. I repudiate all such jurisdiction as belonging to this
    " Court. If such a jurisdiction existed, I suspect that the peace of
    " half the families in this country would be disturbed by applications
    " shewing, or attempting to shew, what, I am afraid, might be shewn

    5

    " in at great many cases, that it was most for the interest of the
    " children that they should be removed from the custody both of the
    " father and of the mother; but happily there is no such jurisdiction.
    " I need not cite cases upon this subject, but I will refer to one which
    " has not been mentioned, with reference to the interference with a
    " father's authority and parental rights as regards his children. I
    " mean the case of Re Fynn, and I cite it merely for the purpose of
    " shewing how the learned judge who decided that case (the present
    " Lord Justice Knight Bruce, then Vice Chancellor) expressed what
    " was the ground of the jurisdiction, the manner of exercising, and
    " the principles on which the Court does exercise, that jurisdiction."

    Cotton L.J. continues at page 337:

    " Those are as to the rights of family life. Then we must regard
    " the benefit of the infant; but then it must be remembered that if
    " the words ' benefit of the infant' are used in any but the accurate
    " sense it would be a fallacious test to apply to the way the Court
    " exercises its jurisdiction over the infant by way of interference with
    " the father. It is not the benefit to the infant as conceived by the
    " Court, but it must be the benefit to the infant having regard to the
    " natural law which points out that the father knows far better as a
    " rule what is good for his children than a Court of Justice can."

    Up to this point the rights of the father appear to have been predominant
    and he would only be disentitled to these rights if he had by his conduct
    shown himself unfit to exercise them. The welfare of the infant appears
    to have been a subsidiary consideration. However, in 1886 the Guardian-
    ship of Infants Act was passed which, by section 1, provided that on the
    death of the father of an infant the mother was to be the guardian and
    section 5 entitled the mother to apply to the Court who might make such
    order as they thought fit as to custody " having regard to the welfare of
    " the infant" and to the conduct of the parents and to the wishes as well
    of the mother as of the father. The mother is thus given equal rights
    with the father and the welfare of the infant is for the first time enshrined
    in statute and given a preferential position. By sections 1 and 2 of the
    Custody of Children Act, 1891, it was provided that the Court will interfere
    with the rights of the parents in the interests of the welfare of the child.

    In In re McGrath (Infants) [1893] 1 Ch. 143 Lindley L.J. delivering the
    judgment of the Court said at page 148:

    " The dominant matter for the consideration of the Court is the
    " welfare of the child. But the welfare of a child is not to be
    " measured by money only, nor by physical comfort only. The word
    " welfare must be taken in its widest sense. The moral and religious
    " welfare of the child must be considered as well as its physical well-
    " being. Nor can the ties of affection be disregarded."

    It will be seen that welfare of the child is becoming as important a con-
    sideration as the rights of the parents.

    In The Queen v. Gyngall [1893] 2 Q.B. 232 a mother was refused the
    custody of an infant aged 15. Lord Esher M.R., after saying that at
    common law a parent had as against other persons generally an absolute
    right to the custody of the child unless he or she had forfeited it by certain
    sorts of misconduct, proceeded at page 239 to explain the paternal juris-
    diction of the Chancery Court which was exercised in the interests of the
    welfare of the infant. He thereafter quoted with approval the observations
    of Lindley L.J. in McGrath above referred to, as does A. L. Smith L.J. at
    page 253.

    At the turn of the century a more enlightened view appears to have
    been taken, at any rate in Ireland, in regard to the parents' rights. In re
    O'Hara
    [1900] 2 I.R. 232 Lord Ashbourne C. said at page 239:

    " I rest my judgment on the broad ground that the mother is entitled
    " to the custody of the child; and there is nothing in her conduct,
    " her character, or her present position to induce any Court to take
    " away her child from her."


    6

    But FitzGibbon L.J. stated at page 239:

    " The following principles appear to be settled:—1, At Common
    " Law, the parent has an absolute right to the custody of a child of
    " tender years, unless he or she has forfeited it by certain sorts of mis-
    " conduct; 2, Chancery, when a separate tribunal, possessed a jurisdiction
    " different from that of the Queen's Bench, and essentially parental, in
    " the exercise of which the main consideration was the welfare of the
    " child, and the Court did what, on consideration of all the circum-
    " stances, it was judicially satisfied that a wise parent, acting for the
    " true interests of the child, would or ought to do, even though the
    " natural parent desired and had the Common Law right to do other-
    " wise, and had not been guilty of misconduct; 3, The Judicature Act
    " has made it the duty of every Division of the High Court to exercise
    " the Chancery jurisdiction ; 4, In exercising the jurisdiction to control
    " or to ignore the parental right the Court must act cautiously, not as
    " if it were a private person acting with regard to his own child, and
    " acting in opposition to the parent only when judicially satisfied that
    " the welfare of the child requires that the parental right should be
    " suspended or superseded."

    Those principles he took from the judgments of Lord Esher M.R. and
    Kay L.J. in Gyngall's case (sup.cit) (see also Holmes L.J. at page 250) and
    later in his judgment he said at page 241:

    " The Court, acting as a wise parent, is not bound to sacrifice the
    " child's welfare to the fetish of parental authority, by forcing it from
    " a happy and comfortable home to share the fortunes of a parent,
    " however innocent, who cannot keep a roof over its head, or provide
    " it with the necessaries of life."

    Holmes L.J. at 251, after saying that previous to the Judicature Act a parent
    was held at common law to have, as against strangers, an absolute right to
    the custody of his or her child of tender years unless he or she had forfeited
    it by certain kinds of misconduct, continued :

    " The Court of Chancery, from time immemorial, has exercised
    " another and distinguishable jurisdiction—a jurisdiction resting on the
    " paternal authority of the Crown, by virtue of which it can supersede
    " the natural guardianship of a parent, and can place a child in such
    " custody as seems most calculated to promote its welfare."

    and at page 253 :

    " No doubt, the period during which a child has been in the care of
    " the stranger is always an important element in considering what is best
    " for the child's welfare. If a boy has been brought up from infancy
    " by a person who has won his love and confidence, who is training
    " him to earn his livelihood, and separation from whom would break
    " up all the associations of his life, no Court ought to sanction in his
    " case a change of custody."

    " Welfare of a child " said Holmes L.J. at page 254, means " welfare in its
    " widest sense ".

    There is a remarkable dearth of authority after the beginning of the
    twentieth century until 1926. In 1925 the Guardianship of Infants Act
    was passed. It is around section 1 of this Act that some of the controversy
    in the present case has centered. Section 1 is in the following terms:

    " Where in any proceeding before any court (whether or not a court
    " within the meaning of the Guardianship of Infants Act. 1886) the
    " custody or upbringing of an infant, or the administration of any pro-
    " perty belonging to or held on trust for an infant, or the application of
    " the income thereof, is in question, the court, in deciding that question,
    " shall regard the welfare of the infant as the first and paramount con-
    " sideration, and shall not take into consideration whether from any
    " other point of view the claim of the father, or any right at common
    " law possessed by the father, in respect of such custody, upbringing,
    " administration or application is superior to that of the mother, or the
    " claim of the mother is superior to that of the father."

    7

    The Appellants' counsel argued that the first limb of the section was limited
    to questions in regard to the custody of infants between parents inter se
    and had no application to questions between parents and strangers. He relied
    upon the second limb of the section and on the preamble which is in the
    following terms:

    " Whereas Parliament by the Sex Disqualification (Removal) Act,
    " 1919, and various other enactments, has sought to establish equality
    " in law between the sexes, and it is expedient that this principle should
    " obtain with respect to the guardianship of infants and the rights and
    " responsibilities conferred thereby: '"

    He argued that in regard to disputes between parents and strangers the
    previous law still prevailed and that apart from the limited category of cir-
    cumstances outlined in Fynn in which a father was deprived of his rights to
    custody the wishes of the parents must prevail.

    I have these comments to make on this submission. First, in my view
    the law administered by the Chancery Court as representing the Queen as
    parens patriae never required that the father's wishes should prevail over
    the welfare of the infant. The dominant consideration has always been the
    welfare of the infant. This can be demonstrated by a reference to the Irish
    case in the House of Lords of Ward v. Laverty [1925] A.C.101 a case decided
    before the 1925 Act in Northern Ireland where—the 1925 Act never applied.
    Viscount Cave's opinion is at page 108 where he states:

    " The law in these cases is well settled, and, indeed, is not contested
    " by the learned counsel who argued the case before this House. On the
    " question of the religion in which a young child is to be brought up,
    " the wishes of the father of the child are to be considered ; and, if there
    " is no other matter to be taken into account, then, according to the
    " practice of our Courts, the wishes of the father prevail. But that rule
    " is subject to this condition, that the wishes of the father only prevail
    " if they are not displaced by considerations relating to the welfare of
    " the children themselves. It is the welfare of the children, which,
    " according to rules which are now well accepted, forms the paramount
    " considerations in these cases. Some of the earlier judgments contain
    " sentences in which perhaps greater stress is laid upon the father's
    " wishes than would be placed upon them now ; but in the more recent
    " decisions, and especially since the passing of the Guardianship of
    " Infants Act, 1886, section 5 of which Act shows the modern feeling
    " in these matters, the greater stress is laid upon the welfare and happiness
    " of the children. It is, of course, still true, as the learned counsel who
    " argued the case quite properly said, that a sufficient case must be made
    " for going contrary to the father's wishes; but, if such a case is made,
    " then the Courts have no hesitation in deciding upon the whole facts
    " of the case."

    The other noble Lords concurred in this opinion. It is clear to me that
    even prior to the 1925 Act the paramount consideration in regard to the
    custody of infants was the infant's welfare. The father's wishes were to be
    considered but only as one of the factors as bearing on the child's welfare.
    The father had no " right" as such to the care and control of his infant
    children. The absence of authority in the intervening years between 1900
    and 1925 may have been due to the fact that the change in the climate of
    social conditions was taking place gradually and its influence on the Courts
    was almost imperceptible and was taking place in the chambers of the
    Chancery Courts. But whatever may have been the state of the law prior
    to the 1925 Act section 1 of that Act set any doubts at rest and made it
    perfectly clear that the first and paramount consideration was the welfare
    of the infant. I do not agree with the Appellants' construction of section 1.
    It is, in my view, of universal application and is not limited in its application
    to questions as between parents. The preamble of an Act cannot control the
    ambit of sections of an Act (see Attorney-General v. Prince Ernest Augustus
    of Hanover
    [1957] A.C. 436 per Viscount Simonds: "Assistance may be
    " obtained from the preamble to a statute in ascertaining the meaning of the
    " relevant enacting part, since words derive their colour and content from

    8

    " their context. But the preamble is not to affect the meaning otherwise
    " ascribable to the enacting part unless there be a compelling reason and it
    " is not a compelling reason that the enacting words go further than the
    " preamble indicated.")

    This view of the law is confirmed by the cases, apart from one exception,
    which followed the passing of the 1925 Act. The first is In re Thain
    [1926] Ch. 676 in which occurs the classic passage of Eve J. at page 684:

    " As I said at the commencement of my judgment, I am satisfied
    " that the child will be as happy and well cared for in the one home
    " as the other, and inasmuch as the rule laid down for my guidance
    " in the exercise of this responsible jurisdiction does not state that the
    " welfare of the infant is to be the sole consideration but the paramount
    " consideration, it necessarily contemplates the existence of other condi-
    " tions, and amongst these the wishes of an unimpeachable parent
    " undoubtedly stand first. It is my duty therefore to order the delivery
    " up of this child to her father."

    The Court of Appeal consisting of Lord Hanworth M.R., Warrington and
    Sargant L.JJ., approved of the judgment.

    Shortly after this there next occurred the case of In re Carroll [1931]
    1 K.B.317 which I have found a difficult case. The headnote reads:

    " Save as regards the respective claims of married parents as against
    " one another, there has been no change of attitude on the part of the
    " Legislature between the years 1891 and 1926 in respect of the wishes
    " of the parents with regard to the custody of infant children. Not-
    " withstanding that the Guardianship of Infants Act, 1925, has provided
    " that the welfare of the infant is the first and paramount consideration
    " for the Court in deciding a question with respect to the custody or
    " upbringing of the infant, nevertheless the Court cannot, in the case
    " of a child too young to have any views of its own, disregard the
    " desire of its only parent unless that parent has so neglected his or her
    " duty as no longer to deserve consideration."

    The Court of Appeal reversed a judgment of the Divisional Court which
    had given the custody of an infant of two years to an Adoption Society.
    Scrutton L.J. at page 337 said :

    " The Lord Chief Justice was apparently of opinion that there had
    " been a change of thought and attitude in the last forty years towards
    " the problem we have been considering. Except that the mother's
    " wishes have been put on an equality with the father I can see
    " no such change. The Act of 1886 seems to me similar to the Act of

    1925, except that the equality of the parents is made more pronounced."

    Slesser L.J. at the outset of his judgment refers to the parent as " guardian by
    " nature and nurture " and refers to the mother's wishes as being primarily
    to be considered. At page 355 in his judgment, referring to the Guardianship
    of Infants Act, 1925, he said:

    ' This statute, however, in my view, has confined itself to questions
    " as between the rights of father and mother which I have already
    " outlined—problems which cannot arise in the case of an illegitimate
    " child, and when we consider the whole history of the matter as I have
    " endeavoured to do, it is difficult to see how that Act can affect
    " the principles laid down in Barnardo v. McHugh or how it can be
    " said from a consideration of that statute that there has been a
    " development of thought between 1891 and 1926, as was stated by the
    " Lord Chief Justice in the Divisional Court."

    He refers with apparent approval to In re Fynn (sup cit) and speaks of " the
    " mother's right " Finally, on page 362, he expresses himself, after criticis-
    ing the judgment of the Lord Chief Justice in the Divisional Court, in these
    words:

    " As I have already indicated, I am of opinion first, that as regards the
    " authorities, the cases of Barnardo v. McHugh and Gyngall have as
    " binding an effect as they had when they were delivered and, secondly,
    " that for the reasons I have already given, neither of the statutes cited

    9

    " by the learned judge has modified the considerations of immemorial
    " right of parents by nature and nurture which we have here to regard.
    " I have already expressed by view as to the latter statute of 1925,
    " that it is dealing merely with the respective rights of the father and
    " mother, and I would only add that, if there be any ambiguity in the
    " language, so that we are entitled to look at the preamble; that pre-
    " amble in terms states: ' Whereas Parliament by the Sex Disqualifica-
    " ' tion (Removal) Act, 1919, and various other enactments, has sought
    " ' to establish equality in law between the sexes, and it is expedient
    " ' that this principle should obtain with respect to the guardianship
    " ' of infants and the rights and responsibilities conferred thereby '."

    If these observations of Scrutton and Slesser L.JJ. formed part of the
    decision, then I consider the case was wrongly decided. If, on the other
    hand, the observations did not form part of the judgment then they went far
    beyond what was necessary for the decision and they are, in my view, not
    well founded.

    If these observations had been followed in subsequent years the clock
    might well have been put back. But we find a fairly consistent line of
    authority after 1931 which coincides with the view of Viscount Cave in
    Ward v. Laverty (sup cit). Morton J. in In re B's Settlement v. Collins
    [1940] Ch. 54 said that whatever may have been the position before the
    1925 Act, the Court is always bound, in dealing with questions of custody, to
    consider first the welfare of the infant and to treat it as the paramount
    consideration.

    Coming to more recent times Danckwerts L.J. in In re Adoption Applica-
    tion
    41/61 [1963] 1 Ch. 315, at page 328 disposed of the view held by Penny-
    cuick J. in an unreported case, that the 1925 Act only applied in relation
    to questions as between parents relying as he did in In re Thain and In re
    Carroll.
    The Lord Justice dealt very fully with the history of the Chancery
    jurisdiction and concluded that the Guardianship of Infants Act, 1925,
    " introduced no change in the law " except so far as the claims of the
    mother were concerned. He very clearly and accurately stated the position
    at page 329 when he said:

    " But I would respectfully point out that there can only be one ' first
    " ' and paramount consideration ', and other considerations must be
    " subordinate. The mere desire of a parent to have his child must be
    " subordinate to the consideration of the welfare of the child, and
    " can be effective only if it coincides with the welfare of the child.
    " Consequently, it cannot be correct to talk of the pre-eminent position
    " of parents, or of their exclusive right to the custody of their children,
    " when the future welfare of those children is being considered by the
    " court."

    I forbear to quote the numerous other authorities to which we were referred
    which are all to the same effect on this question.

    Upon this examination of the authorities I am satisfied that the conten-
    tion for the Appellants as to the principles which the learned judge ought
    to have applied is not well founded.

    In arriving at his decision the learned judge accepted as a general proposi-
    tion that it is for the child's welfare to be in the custody of unimpeachable
    parents and this was a matter he weighed in coming to his decision. He
    declined, quite rightly, in my view, to accept this as a general rule invariably
    and automatically. It would, in my view, be undesirable in any case that
    the judge's discretion in wardship proceedings should be limited in this way.
    This would be to put the Chancery Judge in a strait jacket and would prevent
    him fulfilling his duty under section 1 of the Guardianship of Infants Act,
    1925, which is to have regard to the infant's welfare as the first and para-
    mount consideration. The judge referred with approval to the observations
    of Danckwerts L.J. in In re Adoption Application 41/16 (sup cit) already
    quoted and, in my view, he correctly applied those principles in arriving at
    his judgment.


    10

    The final argument for the Appellants had special reference to the Spanish
    nationality of the infant and his parents. While it was accepted that the
    English Court of Chancery has jurisdiction over foreign infants resident
    in this country, it was argued that in the interests of " comity " the Court
    ought not to exercise that jurisdiction after united foreign parents have
    requested the return of their child who had only been temporarily sent to
    this country. An alternative argument was presented to the effect that if the
    Courts do exercise jurisdiction it should be limited to consideration whether
    the child has parents whose rights are recognised by our law.

    In my view, these arguments are wholly misconceived. The law on comity
    is stated by Dicey, Conflict of Laws (8th edition) rule 52 at page 397:

    " A custody order made by a foreign court does not prevent the court
    " from making such custody orders in England in respect of the infant
    " as having regard to his welfare, it thinks fit."

    (see also Cheshire, Private International Law (7th edition) page 387). The
    basis of the doctrine of comity is that there has been an order by a foreign
    court and that the English Court will be constrained on the ground of
    comity to do nothing to conflict with that court's order. But there is no
    case reported where " comity " has operated in the case of a foreign national
    where there has been no order of a foreign court. Even then, a custody order
    by a foreign court will not prevent an English Court from making a custody
    order having regard to the welfare of the infant (see In re B's Settlement (sup
    cit)). National status is merely one of the factors which the judge in exercis-
    ing his discretion will take into consideration. This the learned judge has
    done and there is, in my view, no ground for criticism of his judgment in this
    respect.

    The learned judge had before him the evidence of a psychiatrist, Dr. Gough,
    who had examined the infant on at least two occasions and expressed the
    opinion that the chances of the infant's successful adjustment in Spain with
    his own family were in the circumstances slight and if it were not achieved
    there would be the greatest damage to the child's emotional stability and
    happiness. The judge stated that he would have arrived at the same conclu-
    sion apart from the evidence of Dr. Gough. It is indeed a matter of inference
    which the judge apart from medical advice, could draw for himself from the
    whole circumstances.

    A factor which influenced the judge was that the readjustment of the
    infant into the Spanish family would require great sympathy and understand-
    ing on the part of his parents. He thought that the mother would be helpful
    and loving. He was, however, doubtful about the father's capacity to help in
    the adjustment process which might be long and difficult. Letters which the
    father wrote to the foster mother relating to a matter unrelated to this case
    gave the impression of crudity and boorishness. The evidence before the
    judge confirmed this impression. In these circumstances the judge was
    impelled to the conclusion:

    " It is with regret that I must state that it appears clear to me that
    " the parents would be quite unable to cope with the problems of adjust-
    " ment or with consequential maladjustment and suffering and that the
    " father's character would inflame the difficulties."

    He felt that he could not take the risk of returning the boy to his parents
    in Spain.

    I find it quite impossible to say that there was no evidence upon which
    the learned judge could reach this conclusion or that he was not entitled to
    exercise his discretion in refusing to send the infant back to Spain.

    I would dismiss the appeal.

    Lord Macdermott

    my lords,

    The infant respondent is now a boy of ten who has lived in England con-
    tinuously since July, 1961, with the other Respondents, a solicitor and his
    wife whom I shall refer to as the foster parents. The Appellants are the

    11

    boy's natural parents, a married couple of Spanish nationality who have their
    home in Madrid. The issue throughout the litigation has been as to the boy's
    future custody, the rival claimants being, on the one hand, the foster parents
    with whom the boy has been living and, on the other, the natural parents.

    In 1965, and again in 1967, Ungoed-Thomas J. found in favour of the foster
    parents on this issue. The parents having appealed, the Court of Appeal
    dismissed their appeal and they now ask your Lordships to reverse this
    decision and to grant them the custody care and control of the boy, with
    liberty to remove him out of the jurisdiction.

    The course of the dispute and certain aspects of the evidence present a
    story which is involved and at times rather confused ; but whether this needs
    to be traced in detail depends on the answer to be given to a question of law
    which stands on the threshold of the case and to which I turn at once.

    Mr. Alexander for the appellants conceded that if the Courts below had
    applied the right principles of law in reaching the decision appealed from
    he could not succeed in asking your Lordships to disturb that decision. The
    substance of his main argument may be stated shortly. All parties were agreed
    that the Courts had jurisdiction and a duty to interfere with the natural right
    of parents to have the care control and custody of their child if the welfare
    of the child required and the law permitted that course to be taken. But
    there agreement ended. For the Appellants it was submitted that the Court
    were in law bound to presume that the welfare of the child was best served by
    allowing him to live with his parents unless it was shown that it was not
    for his welfare to do so because of their conduct, character or station in life.
    Mr. Waite for the boy and Mrs. Puxon for the foster parents submitted
    on the other hand, that there was no such presumption of law, that the
    paramount and governing consideration was the welfare of the child and
    that the claim of natural parents, although often of great weight and cogency
    and often conclusive, had to be regarded in conjunction with all other relevant
    factors, and had to yield if, in the end, the welfare of the child so required.

    The question of law under discussion is therefore whether there now is such
    a preumption as that contended for by the Appellants, or whether the correct
    process of adjudication is, instead, to consider all material aspects of the case,
    including the claims of the parents, and then to decide in the exercise of a
    judicial discretion what is best for the welfare of the child. I have already
    mentioned Mr. Alexander's concession as to the position if his argument does
    not prevail. I may add here that if it does prevail the appeal, in my opinion,
    is bound to succeed since (a) the evidence shows no defects of character
    or conduct on the part of the parents sufficient to disentitle them to custody,
    and (b) their position in life has so improved as to be no longer capable in
    itself of constituting an answer to their claim.

    Before the Judicature Act of 1873, the Common Law Courts recognised
    an almost absolute right in the father to the custody of his child and assumed
    no discretionary power to interfere with such custody except in very extreme
    cases. As Lord Campbell said in R. v. Clarke. 7 El. & Bl. 186 at 198;
    119 E.R. 1217 at 1221: " There is an admitted qualification on the right of
    " the father or guardian, if he be grossly immoral, or if he wishes to have the
    " child for any unlawful purpose." It would seem, however, that the case
    had to be bad indeed before the Common Law Courts would intervene.
    With a father claiming custody, the welfare of the child as a test in itself was
    generally without relevance.

    The Court of Chancery exercised a wider and more benevolent discretion,
    but in this equity usually followed the law to the extent of accepting that
    the discretion to interfere was limited to certain types of case. This appears
    very clearly from the decision of Sir James Knight Bruce in the Vice-
    Chancellor's Court in In re Fynn, [1848] 2 De G. & Sm. 457; 64 E.R. 205,
    a decision on which Mr. Alexander placed strong reliance. There the father's
    conduct left so much to be desired that the Vice-Chancellor had no hesitation
    in saying that as a private person—i.e. not as a judge sitting in Court—he
    would have interfered with the father's power. But as a judge he had to

    12

    regard the limits of his Court's jurisdiction; and this is how, at p. 474,

    E.R. 212, he described those limits:

    " But there may and must be many cases of conduct, many cases of
    " family differences, family difficulties, and family misfortunes, in which,
    " though interposition would be for the interest and advantage of minor
    " children, Courts of Justice have not the means of interfering usefully,
    " or, if they have the means, ought not to interfere ; and the jurisdiction
    " to which the present petition is addressed is one that, infinitely various
    " as are the possible circumstances in which it is applicable, is yet
    " restricted, and I believe wisely restricted, by certain principles and
    " rules from which there can with propriety be in its exercise no
    " departure."

    And then a little later the Vice-Chancellor continued—

    " Before this jurisdiction can be called into action between them it
    " must be satisfied, not only that it has the means of acting safely and
    " efficiently, but also that the father has so conducted himself, or has
    " shewn himself to be a person of such a description, or is placed in
    " such a position, as to render it not merely better for the children, but
    " essential to their safety or to their welfare, in some very serious and
    " important respect, that his rights should be treated as lost or suspended
    " —should be superseded or interfered with. If the word ' essential'
    " is too strong an expression, it is not much too strong."

    If such be still the law the Appellants' case would stand high; but the
    course of both authority and legislation during the 120 years which have
    elapsed since Fynn's case shows a change in the law, and the question is

    how far that change has gone.

    The authorities are not consistent and the way along which they have
    moved towards a broader discretion, under the impact of changing social
    conditions and the weight of opinion, has many twists and turns. In these
    circumstances no useful purpose would be served by an exhaustive citation.
    A few examples will suffice to indicate the trend which, it may be observed,
    was probably fashioned to a considerable degree by unreported cases heard
    mostly in Chambers.

    In In re Agar-Ellis, [1883] 24 Ch. D. 317, the Court of Appeal did not,
    either in its reasoning or its decision, demonstrate any appreciable enlarge-
    ment in the attitude of the law. This appears from the following excerpts, at
    pp. 337 and 338, from the judgment of Bowen L.J.: —

    " Then we must regard the benefit of the infant; but then it must
    " be remembered that if the words ' benefit of the infant' are used in
    " any but the accurate sense it would be a fallacious test to apply to the
    " way the Court exercises its jurisdiction over the infant by way of
    " interference with the father. It is not the benefit to the infant as
    " conceived by the Court, but it must be the benefit to the infant having
    " regard to the natural law which points out that the father knows
    " far better as a rule what is good for his children than a Court of
    " Justice can."

    And again:

    " But still the father has the natural authority. Except in cases of
    " immorality, or where he is clearly not exercising a discretion at all,
    " but a wicked or cruel caprice, or where he is endeavouring to withdraw
    " from the protection of the Court, which is entrusted with such protec-
    " tion by law, the custody of the infant, as a rule this Court does not
    " and cannot interfere, because it cannot do so successfully, or I should
    " rather say because it cannot do so with the certainty that its doing
    " so would not be attended with far greater injury both to the infant
    " itself and also to general social life."

    And finally:

    " As soon as it becomes obvious that the rights of the family are
    " being abused to the detriment of the interests of the infant, then the
    " father shews that he is no longer the natural guardian—that he has

    13

    " become an unnatural guardian—that he has perverted the ties of
    " nature for the purpose of injustice and cruelty. When that case arrives
    " the Court will not stay its hand; but until that case arrives it is not
    " mere disagreement with the view taken by the father of his rights
    " and the interests of his infant that can justify the Court in
    " interfering."

    In re McGrath (Infants), [1893] 1 Ch. 143, concerned the children of
    parents who were both dead, and the question of custody turned on the
    religion in which they should be brought up. The application was for
    a change of guardianship and the judgment of the Court of Appeal, which
    was delivered by Lindley L.J., is significant in the importance now attached
    to the question of welfare. Thus, at p. 148, we find this:

    " The duty of the Court is, in our judgment, to leave the child alone,
    " unless the Court is satisfied that it is for the welfare of the child that
    " some other course should be taken. The dominant matter for the
    " consideration of the Court is the welfare of the child. But the welfare
    " of a child is not to be measured by money only, nor by physical com-
    " fort only. The word welfare must be taken in its widest sense. The
    " moral and religious welfare of the child must be considered as well
    " as its physical well-being. Nor can the ties of affection be
    " disregarded."

    Then, the same year, there is Reg. v. Gyngall, [1893] 2 Q.B. 232. There the
    question was whether a widowed mother should have the custody of her
    daughter, a girl of fifteen, who was in the charge of a lady who kept a home
    at Weymouth. The proceedings had been instituted by the mother's appli-
    cation for a habeas corpus and they exemplify the assumption by the Queen's
    Bench Division, under section 25(10) of the Judicature Act, 1873, of the
    former Chancery jurisdiction in relation to the custody of infants. But it
    is on the present issue that the judgements of the Court of Appeal are of
    outstanding importance. They agreed, affirming the Courts below, that the
    mother should not be given custody, and they undoubtedly enlarge the views
    as to jurisdiction expressed in In re Fynn by Knight Bruce V.C. The mother's
    conduct was not impugned and the submission advanced on her behalf was
    based on her parental rights as fortified by sections 2 and 4 of the Guardian-
    ship of Infants Act, 1886. Except in cases of misconduct or desertion or
    abandonment of the parental right, the argument continued, the Court could
    not " interfere with the rights of the parent or consider either what the wishes
    " of the child may be, or what they may think to be most for its benefit".
    Lord Esher M.R. approached the judgement of Knight Bruce V.C. in In re
    Fynn
    with respectful caution, but there can, I think, be no doubt that he
    and the other members of the Court were not content to adopt the strictly
    circumscribed view of the Vice-Chancellor on the question of jurisdiction, and
    that they thought that much greater emphasis should be laid on the welfare of
    the child. In this connection I may leave the following excerpts from the
    judgments to speak for themselves, and in view of the nature of the issue
    which your Lordships have been called upon to decide, I feel no need to
    apologise for the length of my quotations.

    After a reference to what Lindley L.J. had said in In re McGrath, Lord
    Esher (at page 243) proceeded thus—

    " The Court has to consider, therefore, the whole of the circumstances
    " of the case, the position of the parent, the position of the child, the
    " age of the child, the religion of the child so far as it can be said to
    " have any religion, and the happiness of the child. Prima facie it
    " would not be for the welfare of a child to be taken away from its
    " natural parent and given over to other people who have not that
    " natural relation to it. Every wise man would say that, generally
    " speaking, the best place for a child is with its parent. If a child is
    " brought up, as one may say, from its mother's lap in one form of
    " religion, it would not, I should say, be for its happiness and welfare
    " that a stranger should take it away in order to alter its religious views.
    " Again, it cannot be merely because the parent is poor and the person

    14

    " who seeks to have the possession of the child as against the parent is
    " rich, that, without regard to any other consideration, to the natural
    " rights and feelings of the parent, or the feelings and views that have
    " been introduced into the heart and mind of the child, the child ought
    " to be taken away from its parent merely because its pecuniary position
    " will be thereby bettered. No wise man would entertain such sugges-
    " tions as these. As Lindley, L.J., well pointed out in the case of In re
    " McGrath, it is the welfare of the child in the largest sense of the term
    " that is to be considered. In the present case I proceed on the footing
    " that the mother has not been guilty of any misconduct that would,
    " as between her and other people, derogate from her natural right.
    " The Court has to consider what is for the welfare of the child and for
    " her happiness, what her prospects are if not interfered with, the fact
    " that in a short time she will be able to choose for herself, and what
    " her position will be if taken by the mother to live with her."
    Then, at page 248, Kay L.J., after referring to what Lord Eldon L.C. had

    observed in De Manneville v. De Manneville, [1804] 10 Ves. 52; 32 E.R.

    762, said:

    " This statement of the jurisdiction shews that, arising as it does from
    " the power of the Crown delegated to the Court of Chancery, it is
    " essentially a parental jurisdiction, and that description of it involves
    " that the main consideration to be acted upon in its exercise is the
    " benefit or welfare of the child. Again, the term ' welfare ' in this
    " connection must be read in its largest possible sense, that is to say,
    " as meaning that every circumstance must be taken into consideration,
    " and the Court must do what under the circumstances a wise parent
    " acting for the true interests of the child would or ought to do. It is
    " impossible to give a closer definition of the duty of the Court in the
    " exercise of this jurisdiction."

    Later, at page 252, Kay L.J. after reviewing the facts added this :

    " I cannot doubt that the Court has jurisdiction in this case to enable

    " it to say that under the circumstances it would not be wise or for the

    " interest of the child, but would be contrary to the interest and wel-

    " fare of the child, to assist the mother in carrying out what she desires.

    " For these reasons I think that this is a case in which, though no kind

    " of aspersion can be cast on the character of the mother, we must,

    " acting for the true welfare of the child, decline to assist the mother."

    A. L. Smith L.J. at the conclusion of a short concurring judgment came

    back to the test which had guided the other members of the Court. He said,

    at page 253:

    " Considering her age, and the short time she can be kept away from
    " the institution where she is being happily brought up, and wishes to
    " remain, I think that, if we compelled her to leave, and handed her
    " over to her mother, we should not be acting for the true ' welfare'
    " of the child in the large sense in which the term was used by
    " Lindley, L.J., in his judgment in the case of In re McGrath, to
    " which I was a party."

    That brings me to the case of In re O'Hara, [1900] 2 Ir.R. 232, a decision
    of the Irish Court of Appeal (Lord Ashbourne C, Fitzgibbon and Holmes
    L.JJ.). There a girl of eleven was restored to the custody of her mother
    who, having previously given the child into the custody of a former
    employer, had re-married and wished to have her daughter with her in her
    new home. Fitzgibbon L.J. summarised the relevant principles under four
    heads. The last of these, derived as were the others, from Gyngall's case,
    is stated thus at p. 240:

    " 4, In exercising the jurisdiction to control or to ignore the parental
    " right the Court must act cautiously, not as if it were a private
    " person acting with regard to his own child, and acting in opposition
    " to the parent only when judicially satisfied that the welfare of the
    " child requires that the parental right should be suspended or super-
    " seded."

    15

    That accords with what I may call the welfare test, but in a later
    passage on pp. 240-241, Fitzgibbon L.J. went on to say:

    " It appears to me that misconduct, or unmindfulness of parental duty,
    " or inability to provide for the welfare of the child, must be shown
    " before the natural right can be displaced. Where a parent is of
    " blameless life, and is able and willing to provide for the child's
    " material and moral necessities, in the rank and position to which
    " the child by birth belongs—i.e., the rank and position of the parent—
    " the Court is, in my opinion, judicially bound to act on what is equally
    " a law of nature and of society, and to hold (in the words of Lord
    " Esher) that' the best place for a child is with its parents.''

    In that passage Fitzgibbon L.J. appears to be harking back to the earlier
    and more restrictive view of the jurisdiction, but I do not think this was
    the intention for the next paragraph of his judgment is in these terms:

    " Of course I do not speak of exceptional cases—of which this,
    " fortunately, is not one—where special disturbing elements exist, which
    " involve the risk of moral or material injury to the child, such as the
    " disturbance of religious convictions or of settled affections, or the
    " endurance of hardship or destitution with a parent, as contrasted with
    " solid advantages offered elsewhere. The Court, acting as a wise
    " parent, is not bound to sacrifice the child's welfare to the fetish of
    " parental authority, by forcing it from a happy and comfortable home
    " to share the fortunes of a parent, however innocent, who cannot
    " keep a roof over its head, or provide it with the necessaries of life."

    Read together, these paragraphs of the judgment do not seem to me to
    modify or detract from the fourth of the principles enunciated by the learned
    Lord Justice and which I have quoted above. It is true that Lord Ashbourne
    C. stated, at p. 239, that he rested his judgment

    "... on the broad ground that the mother is entitled to the custody
    " of the child ; and there is nothing in her conduct, her character, or
    " her present position to induce any Court to take away her child from
    " her."

    This reads like a return to the language of In re Fynn, but when the
    judgments are considered fully I think the view of the Court, or at any
    rate that of the Lords Justices, was clearly to affirm the welfare test
    as an ultimate criterion.

    In Ward v. Laverty, [1925] A.C. 101, this House affirmed an order of
    the Court of Appeal in Northern Ireland that three young children should
    remain in the custody in which they were being brought up as Presbyterians.
    Both parents were dead but the father had by his will directed that the
    children should be brought up in the Roman Catholic faith and the change
    of custody sought was to enable this to be done. The appeal was heard
    and decided in May, 1924. Viscount Cave, who expressed the views of the
    House, stated the law in these terms at p. 108—

    " Now, my Lords, upon those facts the question is what ought to be
    " done as regards these children? The law in these cases is well
    " settled, and, indeed, is not contested by the learned counsel who
    " argued the case before this House. On the question of the religion
    " in which a young child is to be brought up, the wishes of the father
    " of the child are to be considered ; and, if there is no other matter
    " to be taken into account, then, according to the practice of our Courts,
    " the wishes of the father prevail. But that rule is subject to this
    " condition, that the wishes of the father only prevail if they are not
    " displaced by considerations relating to the welfare of the children
    " themselves. It is the welfare of the children, which, according to rules
    " which are now well accepted, forms the paramount considerations in
    " these cases. Some of the earlier judgments contain sentences in
    " which perhaps greater stress is laid upon the father's wishes than
    " would be placed upon them now ; but in the more recent decisions, and
    " especially since the passing of the Guardianship of Infants Act, 1886,

    16

    " s. 5 of which Act shows the modern feeling in these matters, the
    " greater stress is laid upon the welfare and happiness of the children.
    " It is, of course, still true, as the learned counsel who argued the case
    " quite properly said, that a sufficient case must be made for going
    " contrary to the father's wishes; but, if such a case is made, then the
    " Courts have no hesitation in deciding upon the whole facts of the
    " case."

    This passage while marking a substantial qualification of the father's
    common law rights is not expressly directed to the claim of one or both
    parents for custody. But Viscount Cave spoke in general terms, and it is
    notorious that custody and religious upbringing are frequently inter-woven
    issues. These considerations and the reference to section 5 of the Act of
    1886 indicate, to my mind, that the passage quoted was intended to extend
    to a parent's claim for custody.

    At this point it will be convenient to note some of the legislative changes
    which occurred during the period covered by the authorities I have men-
    tioned, for Parliament as well as the Courts had been responding to what
    Viscount Cave described as " the modern feeling in these matters." By the
    Custody of Infants Act, 1839 (Talfourd's Act), the mother of an infant in
    the sole custody or control of the father was enabled to obtain from the
    Court of Chancery an order for access and, until the child was of the age
    of 7, an order for custody. This measure was replaced by the Custody of
    infants Act, 1873, which (a) in effect granted the same form of relief but
    with the age limit 16 instead of 7 ; and (b) enacted that an agreement in a
    separation deed providing for a transfer of custody from the father to the
    mother should not be invalid on that ground alone ; but this later provision
    was made subject to the proviso that the Court should not enforce such an
    agreement if of opinion that it would not be for the benefit of the infant to do
    so. The Guardianship of Infants Act, 1886, carried reform a stage further.
    Section 2 made a mother who survived the father the guardian of her infant
    child either alone or jointly with a guardian appointed by the father or the
    Court; section 3 conferred upon the mother powers of appointing a guardian
    in certain cases; and section 5 empowered the Court upon the application
    of the mother of the infant to

    "... make such order as it may think fit regarding the custody
    " of such infant and the right of access thereto of either parent, having
    " regard to the welfare of the infant, and to the conduct of the parents,
    " and to the wishes as well of the mother as of the father, . . ."

    The Custody of Children Act, 1891, granted the Courts further powers
    relating to the custody of children. By section 1 where the parent of a child
    applies for a writ or order for the production of the child, the Court may
    decline to issue the writ or make the order if " of opinion that the parent
    " has abandoned or deserted the child, or that he has otherwise so conducted
    " himself that the Court should refuse to enforce his right to the custody
    " of the child." Then, under section 3, where a parent has abandoned or
    deserted his child or allowed the child to be brought up in certain circum-
    stances satisfying the Court that the parent was unmindful of his parental
    duties, the Court

    "... shall not make an order for the delivery of the child to the
    " parent, unless the parent has satisfied the Court that, having regard to
    " the welfare of the child, he is a fit person to have the custody of the
    " child."

    I have referred to these statutes because, as in the case of the authorities,
    they record an increasing qualification of common law rights and the
    growing acceptance of the welfare of the infant as a criterion. In this way,
    and like the trend of the cases, they serve to introduce the enactment which
    has been so closely canvassed on the issue of law under discussion. It is
    section 1 of the Guardianship of Infants Act, 1925, which was passed in the
    year following the decision in Ward v. Laverty. This section follows a pre-
    amble which runs thus: —

    " Whereas Parliament by the Sex Disqualification (Removal) Act,
    " 1919, and various other enactments, has sought to establish equality in

    17

    " law between the sexes, and it is expedient that this principle should
    " obtain with respect to the guardianship of infants and the rights and
    " responsibilities conferred thereby: "

    The section itself reads:

    " 1. Where in any proceeding before any court (whether or not a court
    " within the meaning of the Guardianship of Infants Act, 1886) the
    " custody or upbringing of an infant, or the administration of any
    " property belonging to or held on trust for an infant, or the application
    " of the income thereof, is in question, the court, in deciding that
    " question, shall regard the welfare of the infant as the first and para-
    " mount consideration, and shall not take into consideration whether
    " from any other point of view the claim of the father, or any right at
    " common law possessed by the father, in respect of such custody,
    " upbringing, administration or application is superior to that of the
    " mother, or the claim of the mother is superior to that of the father."

    The part of this section referring to " the first and paramount consideration "
    has been spoken of as declaratory of the existing law. See In re Thain, [1926]
    Ch. 676, per Lord Hanworth M.R. at 689 and Sargant L.J. at 691 ; and
    McKee v. McKee, [1951] A.C. 352, per Lord Simonds at 366. There have
    been different views about this, but whether the proposition is wholly accurate
    or not, the true construction of the section itself has to be considered as a
    matter of prime importance.

    Two questions arise here. First, is the section to be read as referring only
    to disputes between the parents of the child? In In re Carroll, [1931] 1 K.B.
    317, Slesser L.J. appears to have approved such an interpretation for he
    said, at p. 355, " This statute, however, in my view, has confined itself to
    " questions as between the rights of father and mother which I have already
    " outlined—factors which cannot arise in the case of an illegitimate child...."
    Now, the latter part of the section is directed to equalising the legal rights or
    claims of the parents, and the preamble speaks only of achieving an equality
    between the sexes in relation to the guardianship of infants. But these
    considerations, do not, in my opinion, suffice to constrict the natural meaning
    of the first part of the section. The latter part beginning with the words
    " shall not take into consideration ..." does not call for or imply any such
    constriction for it does not necessarily apply to all the possible disputes which
    the earlier part is capable of embracing ; and as for the preamble, it could
    only be used to restrict the applicability of the earlier part of the section if
    that part were ambiguous. See Attorney-General v. Prince Ernest Augustus
    of Hanover,
    [1957] A.C. 436, per Viscount Simonds at 463. Having read
    the whole statute, I cannot find this important earlier part to be other than
    clear and unambiguous. On the contrary, its wording seems to be deliberately
    wide and general. It relates to any proceedings before any Court, and as Eve
    J. said in Clarke-Jervoise v. Scutt, [1920] 1 Ch. 382 at 388—" ' Any ' is a word
    " with a very wide meaning, and prima facie the use of it excludes limitation."

    Thus read the section would apply to cases, such as the present, between
    parents and strangers. This construction finds further support in the follow-
    ing considerations. In the first place, since (as the statutes and authorities
    already mentioned by way of background show) welfare was being regarded
    increasingly as a general criterion which was not limited to custody disputes
    between parents, it would be more than strange if the earlier part of section
    1 were meant to apply only to that single type of dispute. Secondly, the
    questions for decision which are expressly mentioned—custody, upbringing,
    administration of property belonging to or held in trust for the infant, and
    the application of the income thereof—are of a kind to suggest the involve-
    ment not only of parents but of others such as guardians or trustees. And
    thirdly, there is nothing in the rest of the Act to require a limited construction
    of section 1. Section 6, indeed, would seem to point the other way for it
    provides for the settlement by the Court of differences between joint guardians
    affecting the welfare of an infant and there is no apparent reason for con-
    fining this relief to differences between parents or for taking proceedings
    therefor out of the ambit of section 1. For these reasons I would hold that
    the present proceedings are proceedings within that section.

    18

    The second question of construction is as to the scope and meaning of the
    words "... shall regard the welfare of the infant as the first and paramount
    consideration." Reading these words in their ordinary significance, and
    relating them to the various classes of proceedings which the section has
    already mentioned, it seems to me that they must mean more than that
    the child's welfare is to be treated as the top item in a list of items relevant
    to the matter in question. I think they connote a process whereby when all the
    relevant facts, relationships, claims and wishes of parents, risks, choices and
    other circumstances are taken into account and weighed, the course to be
    followed will be that which is most in the interests of the child's welfare as
    that term has now to be understood. That is the first consideration because
    it is of first importance and the paramount consideration because it rules upon
    or determines the course to be followed. It remains to see how this " first
    " view ", as I may call it, stands in the light of authority.

    In In re Thain (supra) Eve J. had to determine, shortly after the Act of
    1925, came into operation, the proper custody of a girl of seven. The
    father's wife had died soon after the child's birth and the father then
    accepted the offer of his wife's sister and her husband to take charge of the
    infant and bring her up with their own children. That was in 1919.
    In 1925 the father, having re-married and improved his position in life and
    obtained a suitable home, asked to have his daughter back but this request
    had been refused. Eve J. awarded custody to the father and the Court of
    Appeal held that he had applied the correct principles of law and refused
    to interfere with the manner in which he had exercised his discretion. The
    head-note is so worded as to suggest that as the father was an unimpeachable
    parent his parental right stood first and an order had to be made in his
    favour. On its face this, if a true reflection of the ratio, is against the first
    view I have formed on the wording of section 1. In my opinion, however,
    the head-note is misleading in this respect. The true ratio is contained in
    the last paragraph of Eve J.'s judgment, at p. 684, which reads thus:

    " As I said at the commencement of my judgment, I am satisfied that
    " the child will be as happy and well cared for in the one home as the
    " other, and inasmuch as the rule laid down for my guidance in the
    " exercise of this responsible jurisdiction does not stale that the welfare
    " of the infant is to be the sole consideration but the paramount
    " consideration, it necessarily contemplates the existence of other condi-
    " tions, and amongst these the wishes of an unimpeachable parent
    " undoubtedly stand first. It is my duty therefore to order the delivery
    " up of this child to her father."

    I appreciate that the reporter may have experienced some difficulty in
    epitomising this passage, but viewed in relation to the facts of the case
    I think there can be little doubt that Eve J. was neither ignoring the welfare
    of the child nor the terms of section 1 of the Act of 1925. He was not
    putting the wishes of the father above the welfare of the child. Having found
    that the child would be as happy and well cared for in one home as the
    other, he must have been satisfied that her welfare would be best provided
    for by respecting the wishes of the unimpeachable father and giving her
    custody to him. That was the view taken by the Court of Appeal and the
    view which has been generally accepted since. I therefore see nothing
    in In re Thain to conflict with my first view of the meaning of section J.

    In re Carroll (supra) raises more difficulty. There the question was whether
    an illegitimate baby girl should stay with a young couple wanting to adopt
    her who had been found by a Protestant Adoption Society at the request of
    her mother. If she had stayed with the adopters she would have been brought
    up a Protestant. The mother, however, after changing her mind on more
    than one occasion, came to the conclusion that she wanted the child to go
    to another Society where she would be brought up a Roman Catholic.
    Charles J. and a Divisional Court refused to accede to the mother's wishes.
    It is clear from the judgement of Lord Hewart C.J., speaking for the
    Divisional Court, that that Court took the view that section 1 of the Act
    of 1925 applied and that, while the wishes of the mother must be considered,
    the welfare of the child was best served by not complying with her
    wishes. The Court of Appeal (Scrutton, Greer and Slessor L.JJ.) reversed

    19

    this decision, Greer L.J. dissenting. The merits of this ruling are not now
    in point, but the principles of law as accepted by the majority of the
    Court are. Scrutton and Slesser L.JJ. did not regard the Act of 1925 as
    really affecting the matter and took the view that the mother's wishes were
    dominant and decisive. At page 335 Scrutton L.J. said:

    " In the present case unless the mother is of so bad a character that
    " her wishes as to religion and education may be disregarded, a con-
    " tention which was expressly disclaimed by Sir Thomas Inskip, in my
    " view the mother has a legal right to require that the child shall be
    " brought up in her religion in which the child has been baptized."

    Then, at page 336, he added when speaking of the Court:

    " But in my opinion it has this duty, where the character of the parent
    " is not attacked, to give effect to the views as to religious education of
    " the parent of a child too young to have intelligent views of its own.
    " The responsibility for religious views is that of the parent, not of the
    " Court. The Court should not sanction any proposal excellent in itself
    " which does not give effect to the parent's views on education religious
    " and secular."

    And later, at page 337, he observed:

    " The Lord Chief Justice was apparently of opinion that there had
    " been a change of thought and attitude in the last forty years towards
    " the problem we have been considering. Except that the mother's
    " wishes have been put on an equality with the father I can see no such
    " change. The Act of 1886 seems to me similar to the Act of 1925,
    " except that the equality of the parents is made more pronounced. We
    " were not referred to any authority, and I have found none, where in
    " the case of a young child the Court has disregarded the views of the
    " only parent, except where that parent has. so neglected his or her
    " duty as to cease to deserve consideration, ..."

    Towards the conclusion of his dissenting judgment Grcer L.J., referring
    to the judgment of Lord Hewart C.J., said at page 348:

    " It was said in the argument that the judgment of the Divisional
    " Court delivered by the Lord Chief Justice was based on a miscon-
    " struction of the Guardianship of Infants Act, 1925. I do not think
    " this is a justifiable criticism. In my opinion all that the judgment
    " was intended to convey was that actually the attitude of public opinion
    " and the Courts towards the powers of a parent over his children had
    " become modified, and that nowadays less importance was attached
    " to the rights of, and the wishes of, the parent, and more importance
    " was attached to the welfare of the child, and the Act of 1925 was
    " pointed to as an illustration of the modification in one instance of
    " what at Common Law were the strict rights of a male parent. As the
    " Lord Chief Justice says: ' There seems to have been between ... 1891
    " ' and 1926 a certain development of thought in this matter'."