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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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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'."