ICLR: Appeal Cases/1970/J. and ANOTHER APPELLANTS AND C.

and OTHERS RESPONDENTS -

[1970] A.C. 668

[1970] A.C. 668

[HOUSE OF LORDS]

J. and ANOTHER APPELLANTS AND C. and OTHERS RESPONDENTS

1968 Dec. 9, 10, 11, 12, 16, 17, 18;

Lord Guest, Lord MacDermott,

1969 Feb. 19

Lord Upjohn, Lord Donovan and Lord Pearson

Infant - Ward of court - Paramount interest of infant - Universal application of - Rights and wishes of parents -
Ten-year-old boy in care of foster parents for most of his life - Application by foreign parents for his return -
Dangers of change - "Paramount consideration" - Value of expert medical evidence - Whether care of unim-
peachable parents automatically for "welfare of infant" - Whether refusal of parents' request amounting to de
facto adoption order - Applicability of
[1970] A.C. 668 Page 669

principles of comity - Guardianship of Infants Act, 1925 (15 & 16 Geo. 5, c. 45), s. 1. 1

The infant, a boy, was born in England of Spanish parents in May, 1958. Because of his mother's illness he
was taken care of from the age of four days by English foster parents in their home. From April, 1959, he
lived with his parents in England and when in February, 1960, they returned to Spain, he went with them. His
health suffered in Spain and in July, 1961, after he had been with his parents for 17 months in all, at the par-
ents' request he returned to England to stay with the foster parents for a visit of indefinite duration. He had
remained with the foster parents ever since, being brought up by them with their own children but in the Ro-
man Catholic faith, the faith of his parents. In 1963, after the parents had asked for his return the infant was
made a ward of court and when the matter came before the judge in 1965 it was ordered that care and con-
trol be committed to the foster parents, and that he be brought up in the Roman Catholic faith and in the
knowledge and recognition of his parents and knowledge of the Spanish language. In 1967, for educational
reasons, the foster parents asked that the infant might be brought up in the Church of England faith, and sub-
sequently the parents issued a summons asking for the custody, care and control of the infant.

At the time of the hearing the infant was ten years old. His parents lived in a suitable modern house in Spain:
his father was in good employment and his mother's health restored. It was not disputed that they were in no
way unfitted to have the care and control of the infant. The foster parents had six children: it was a good
home and a happy and united family with which the infant had become well integrated. There was medical
evidence that in view of his relationship with the foster parents as parental figures, and with the other mem-
bers of the family, the chances that he would make a successful adjustment in Spain were slight and that if
he did not the consequences for his future emotional stability and happiness were grave. The judge accepted
that as a general proposition it was for the welfare of a child to be in the custody of unimpeachable parents
and were it not for the dangers of adjustment to life in Spain would have made the order for which the par-
ents asked; but he considered that there was no reasonable prospect of such adjustment and that a return to
Spain would be disastrous for the infant and made no order on the parents' application. The Court of Appeal
affirmed his decision.

On appeal, on the contentions (1) that the judge was wrong in principle in refusing to return the infant to his
lawful and natural parents when they were in no way unsuitable to have the care of him; (2) that the judge's
order amounted in effect to an adoption order for which the parents' consent would have been required; and
(3) that his order was contrary to the principles of comity:-

Held, dismissing the appeal, (1) that section 1 of the Guardianship of Infants Act, 1925, applied to disputes
not only

1 Guardianship of Infants Act, 1925, s. 1: "Where in any proceeding before any court ... the custody or upbringing of an infant
... is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount considera-
tion, 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 ... is superior to that of the mother, or the claim of the
mother is superior to that of the father."

[1970] A.C. 668 Page 670

between parents but between parents and strangers and strangers and strangers, and in applying the sec-
tion the rights and wishes of parents, whether unimpeachable or otherwise, must be assessed and weighed
in their bearing on the welfare of the child, which was paramount, in conjunction with all the other factors rel-
evant to the issue (post, pp. 697G-H, 710D-G, 715A, 724H - 725A, 727E, 728B-C); and that the judge in ac-
cepting as a general proposition that it was for the child's welfare to be in the custody of unimpeachable par-
ents, but in declining to accept it as a general rule automatically and invariably, had applied the correct princi-
ples in arriving at his decision (post, pp. 700D, E, 710H - 711B, 715E, 725G, 728A-C).

Principles in Reg. v. Gyngall [1893] 2 Q.B. 232, C.A. and stated by FitzGibbon L.J. in In re O'Hara [1900] 2
I.R. 232, 239 and Danckwerts L.J. in In re Adoption Application 41/61 [1963] Ch. 315, 328; [1962] 3 W.L.R.
997; [1962] 3 All E.R. 553, C.A. applied.

Ward v. Laverty [1925] A.C. 101, H.L.(N.I.) and In re Thain [1926] Ch. 676, C.A. considered.

In re Fynn (1848) 2 De G. & Sm. 457; In re Agar-Ellis (1883) 24 Ch.D. 317, C.A. and In re Carroll [1931] 1
K.B. 317, C.A. disapproved.

Per Lord MacDermott and Lord Pearson. While there is now no rule of law that the rights and wishes of unim-
peachable parents must prevail over other considerations, such rights and wishes, recognised as they are by
nature and society, can be capable of ministering to the total welfare of the child in a special way and must
therefore preponderate in many cases: the parental rights, however, remain qualified and not absolute for the
purpose of the investigation (post, pp. 715B, 728B-C).

A growing experience has shown that serious harm may be caused even to young children by a change in
custody. I do not suggest that the difficulties of this subject can be resolved by purely theoretical considera-
tions or that they need to be left entirely to expert opinion. A child's future happiness and sense of security
are always important factors and the effects of a change of custody will often be worthy of the close and anx-
ious attention which they have received in this case (post, pp. 715C, D, 728B-C).

Per Lord Upjohn. The natural parents have a strong claim to have their wishes considered as normally the
proper persons to have the upbringing of the child they have brought into the world. It is not, however, a
question of the onus being on anyone to displace the wishes of the parents: it is a matter for the judge, bear-
ing in mind the rule as laid down by Eve J. in In re Thain [1926] Ch. 676, 684 (post, 724D-E).

It is a sad commentary upon the attitude of some members of the Protestant and Roman Catholic faiths, that
in so many reported cases over the last hundred years the real contest has been as to the religious upbring-
ing of the infant and orders have been made with scant regard to the true welfare of the infant (post, p.
717G).

Where the infant is under or requires treatment for some physical, neurological or psychological condition,
medical evidence, if accepted, must weigh heavily with the court. But in the case of a happy and normal in-
fant in no need of such treatment the general evidence of a psychiatrist or other medical practitioner on the
dangers of taking particular courses, may be valuable but can only be an element to support the general
knowledge and experience of the judge (post, p. 726D-F).
[1970] A.C. 668 Page 671

(2) That there was no analogy between an adoption order and an order as to custody in wardship proceed-
ings, for the former extinguished the rights and obligations of the natural parents whereas the latter could be
reviewed at any time and did not sever the infant's ties with his parents (post, pp. 692E-F, 714E, 719D-F,
728B-C).

(3) That, there being no order of a foreign court, the doctrine of comity did not apply, nor could the existence
of such an order oust the jurisdiction of the English court or preclude the application of section 1 of the Act of
1925 (post, pp. 700H - 701A, 714F, 720C, 728B-C).

In re B.'s Settlement [1940] Ch. 54 and McKee v. McKee [1951] A.C. 352; [1951] 1 All E.R. 942, P.C. consid-
ered.

Per Lord Guest. National status is merely one of the factors to be taken into account in the exercise of discre-
tion (post, p. 701B).

Decision of the Court of Appeal affirmed.

The following cases are referred to in their Lordships' opinions:

A. & B. (Infants), In re [1897] 1 Ch. 786, C.A.

Adoption Application 41/61, In re [1963] Ch. 315; [1962] 3 W.L.R. 997; [1962] 3 All E.R. 553, C.A.

Adoption Application 41/61 (No. 2), In re [1964] Ch. 48; [1963] 3 W.L.R. 357; [1963] 2 All E.R. 1082.

Agar-Ellis, In re (1883) 24 Ch.D. 317, C.A.

Attorney-General v. Prince Ernest Augustus of Hanover [1957] A.C. 436; [1957] 2 W.L.R. 1; [1957] 1 All
E.R. 49, H.L.(E.).

B.'s Settlement, In re [1940] Ch. 54.

Barnardo v. McHugh [1891] A.C. 388, H.L.(E.).

C. (M.A.) (An Infant), In re [1966] 1 W.L.R. 646; [1966] 1 All E.R. 838, Ungoed-Thomas J. and C.A.

Carroll, In re [1931] 1 K.B. 317, C.A.

Clarke-Jervoise v. Scutt [1920] 1 Ch. 382.

Curtis, In re (1859) 28 L.J.Ch. 458.

D., In re [1943] Ch. 305; [1943] 2 All E.R. 411.

De Manneville v. De Manneville (1804) 10 Ves. 52.

E. (D.) (An Infant), In re [1967] Ch. 761; [1967] 2 W.L.R. 1370; [1967] 2 All E.R. 881, C.A.

Fynn, In re (1848) 2 De G. & Sm. 457.

H. (Infants), In re [1966] 1 W.L.R. 381; [1965] 3 All E.R. 906; [1966] 1 All E.R. 886, C.A.

Hope v. Hope (1854) 4 De G. M. & G. 328.

Johnstone v. Beattie (1843) 10 Cl. & Fin. 42, H.L.(Sc.).

K. (Infants), In re [1963] Ch. 381; [1962] 3 W.L.R. 752; [1962] 3 All E.R. 178; [1962] 3 W.L.R. 1517;
[1962] 3 All E.R. 1000, C.A.; [1965] A.C. 201; [1963] 3 W.L.R. 408; [1963] 3 All E.R. 191, H.L.(E.).

McGrath (Infants), In re [1893] 1 Ch. 143, C.A.

McKee v. McKee [1951] A.C. 352; [1951] 1 All E.R. 942, P.C.

O'Hara, In re [1900] 2 I.R. 232.

Plomley, In re (1882) 47 L.T. 284, C.A.

Reg. v. Clarke (1857) 7 E. & B. 186.

Reg. v. Gyngall [1893] 2 Q.B. 232, C.A.

Rex v. New (1904) 20 T.L.R. 515, D.C.

Stuart v. Marquis of Bute (1861) 9 H.L.Cas. 440, H.L.(Sc.)

Thain, In re [1926] Ch. 676, C.A.

Ward v. Laverty [1925] A.C. 101, H.L.(N.I.).

[1970] A.C. 668 Page 672

The following additional cases were cited in argument:

Andrews (Infants), In re [1958] Ch. 665; [1958] 2 W.L.R. 946; [1958] 2 All E.R. 308.

Aster (An Infant), In re [1955] 1 W.L.R. 465; [1955] 2 All E.R. 202, C.A.

B. (An Infant), In re [1946] N.I. 1.

B. (M.) v. B. (R.) (Note) [1968] 1 W.L.R. 1182; [1968] 3 All E.R. 170, C.A.

C. (An Infant), In re (unreported), July 24, 1964.

Collins (An Infant), In re [1950] Ch. 498; [1950] 1 All E.R. 1057, C.A.

Dawson v. Jay, In re Dawson (1854) 3 De G.M. & G. 764.

E. (An Infant), In re [1964] 1 W.L.R. 51; [1963] 3 All E.R. 874.

E. (D.) (An Infant), In re [1967] Ch. 287; [1967] 2 W.L.R. 445; [1967] 1 All E.R. 329.

E. (P.) (An Infant), In re [1968] 1 W.L.R. 1913; [1969] 1 All E.R. 323, C.A.

Hitchcock v. W.B. and F.E.B. [1952] 2 Q.B. 561; [1952] 2 All E.R. 119, D.C.

L. (Infants), In re [1962] 1 W.L.R. 886; [1962] 3 All E.R. 1, C.A.

Monaco v. Monaco (1937) 157 L.T. 231.

Nugent v. Vetzera (1866) L.R. 2 Eq. 704.

P. (G.E.) (An Infant), In re [1965] Ch. 568; [1965] 2 W.L.R. 1; [1964] 3 All E.R. 977, C.A.

Practice Direction (Infants: Avoidance of Delay) [1966] 1 W.L.R. 1217; [1966] 2 All E.R. 1040.

R. (M.) (An Infant), In re [1966] 1 W.L.R. 1527; [1966] 3 All E.R. 58.
 Rex v. New (1904) 20 T.L.R. 583, C.A.

S. (Infants), In re [1967] 1 W.L.R. 396; [1967] 1 All E.R. 202.

Savini, In re, Savini v. Lousada (1870) 22 L.T. 61; (sub nom. Savini v. Lousada)8 W.R. 425.

APPEAL from the Court of Appeal.

This was an appeal, by leave of the House of Lords, from an order of the Court of Appeal (Harman,
Salmon and Winn L.JJ.) dated July 5, 1968, dismissing an appeal by parents, a Spanish married
couple, from so much of the order of Ungoed-Thomas J., dated September 20, 1967, as made no
order on their application that the custody, care and control of their infant son, a ward of court, in
the custody, care and control of English foster parents, be granted to them, and that they might be
at liberty to take the infant out of the jurisdiction so as to reside with them in Spain.

The reasons for the appeal were (1) that the parents had not conducted themselves, nor were they
persons of such a description, nor were they placed in such a position as to entitle the court to hold
that it was not for the welfare of the infant to be in their custody; (2) that it was in the interests of the
infant to be in the custody of both his parents; (3) that the wardship jurisdiction should not be exer-
cised to create a de facto adoption against the wishes of the parents when no legal adoption order
could have been made without the consent of both of them; (4) that the wardship jurisdiction should
not be exercised against the wishes of foreign parents who wished to recall to their own country
their infant temporarily sent to this country for a period of nurture; (5) that in determining whether
foreign parents should be granted custody of their child abroad the courts should apply the lex
domicilii of the parents and child; and (6) that the order of the judge and the order appealed from
did not give any or proper weight to the principles upon which the wardship jurisdiction should be
[1970] A.C. 668 Page 673

exercised in conflict with the wishes of united parents desiring the custody of their infant, such par-
ents being foreign nationals.

The facts are stated in the opinions of Lord Guest, Lord MacDermott and Lord Upjohn.

Robert Alexander for the appellant parents. If the courts below applied the right principles, their decision
cannot be altered; even if it did, discretion was not exercised on proper grounds. The case involves consider-
ation of the principles on which the courts, in the exercise of their discretion, can say that it is not for the wel-
fare of the child to be in the custody of its natural parents. It also raises the question whether English courts
should ever exercise jurisdiction over a foreign infant whose parents outside the jurisdiction seek to recall
him.

The parents' basic contentions are: (1) The Crown as parens patriae has a right and duty to interfere with the
exercise by a parent of his natural right over a child if the welfare of the child demands it. There is a pre-
sumption that the welfare of the child is best served by his living with his parents. The courts will consider the
welfare of the child in the judicial sense and will only hold that it is not for his benefit to be in the care and
control of his parents if the parents by their conduct or character or by the position in life in which they are
placed are unsuited to have care and control. (2) It was conceded in argument below that no adoption could
have been made against the wishes of the parents, but in effect the present order creates, with small legal
distinction, a de facto adoption by the foster parents against the wishes of the parents. Such an exercise of
the wardship jurisdiction frustrates the intention of the legislature which specifically prevents adoption without
the parents' consent in sections 4 and 5 of the Adoption Act, 1958. (3) The English courts have jurisdiction
over foreign children residing here, but in the interests of comity they should not exercise that jurisdiction
where united foreign parents request that their child temporarily sent here should be returned to them in their
own country. This point is to be distinguished from cases where (a) in respect of an orphan infant resident
here the court appoints guardians in this country irrespective of the fact that the infant has guardians in his
own country; (b) in an inter-parental dispute one parent invokes the jurisdiction of the English courts and the
court considers the case on its merits because neither the father nor the mother has a prior claim. To fail to
apply the principles of comity would lead to risks and uncertainties in sending English children abroad. Alter-
natively, if the courts do exercise their jurisdiction it should be limited solely to the question whether the child
has parents whose rights are recognised by their own national law and who have made a request for their
child to be returned. (4) Even if none of the above submissions are decisive, they should all be taken into ac-
count to decide what is for the welfare of the infant from a judicial point of view. That has not been done in
the present case. The courts have looked simply at the status quo and the welfare of the child in its non-judi-
cial sense and have treated other considerations as subordinate. The welfare of a child in its judicial sense is
the way in which it is considered by the courts in applying the principles on which they will intervene to take
custody away from a natural parent: see submission (1).
[1970] A.C. 668 Page 674

Although the respondents are referred to as the foster parents, legally they ceased so to be when the mother
wrote to the Surrey County Council in 1963 requesting the return of the child, thus terminating the county
council's jurisdiction: see the Children Act, 1948, s. 1 (3). The present case must affect many parents who
have put their children into the care of foster parents and unless strong guide lines are laid down, they will
not be sure of being able to recover their children back from foster parents.

On contention (1), Chancery judges act on the principle that they do not determine rights as between a par-
ent and a stranger, but exercise a paternal jurisdiction acting only when it is shown that "either the conduct of
the parent, or the description of the person he is, or the position in which he is placed" renders it right for the
welfare of the child that the parents' rights should be suspended or superseded: per Lord Esher M.R. in Reg.
v. Gyngall [1893] 2 Q.B. 232, 242, adopting the words of Knight Bruce V.-C. in In re Fynn (1848) 2 De G. &
Sm. 457, 474-475. Generally it is for the benefit of a child to be within the care and control of its parents. That
right will only be interfered with in exceptional circumstances. If one looked at the welfare of the child in isola-
tion the status quo would inevitably prevail, but one must also take into account the consideration that natural
parents have for the welfare of their child. Accepting that the child's welfare is the paramount consideration,
the court in the exercise of its discretion will only decide that it is not for the welfare of the child to be in the
custody of his parents in a defined category of circumstances, namely, where the conduct, character or posi-
tion in life of the parent has rendered him unsuitable. If the courts exercise their discretion at large, different
judges would give weight to different factors. It is not contended that the father in the present case is, by his
conduct or character, unfitted to have the care of this child, although the foster parents do suggest that be-
cause of his crudity of character and the dominant position of a husband in Spanish family life, he may not
have the capacity to deal with the situation if the child is returned to Spain. In considering what is best for the
child, the court must act on a judicial basis and not put itself in the position of a private person; although
there might be many cases where the court's interference might be in the interest and to the advantage of
the infant, the court can only act on restricted principles: see per Knight Bruce V.-C. in In re Fynn, 2 De G. &
Sm. 457, 474-475. Hope v. Hope (1854) 4 De G. M. & G. 328 bases the court's jurisdiction on maintenance
and education, in that the Sovereign as parens patriae is bound to look after the maintenance and education
of all its subjects: see per Lord Cranworth L.C. at p. 345.

Under the Guardianship of Infants Act, 1866, s. 5, the court had to take into account the welfare of the child
in considering an application by a mother for custody, but this is explicitly confined to disputes between
mother and father or mother and guardians appointed by a deceased father. The Custody of Children Act,
1891, s. 1 provides that a court may refuse to enforce a parent's right to custody if he has misconducted him-
self and section 3 again refers to the welfare of the child. Barnardo v. McHugh [1891] A.C. 388, which con-
cerned an illegitimate child, is the only case considered by the House of Lords where a court has interfered
with the right of a parent in comparable circumstances, but at that time no one
[1970] A.C. 668 Page 675
 could interfere if it would be detrimental to the child to give effect to parental wishes because the parents
had no real rights. At common law a parent had an absolute right to the custody of his child unless he had
forfeited it by misconduct, but the Chancery courts did not determine rights as between parent and stranger
or parent and child, but exercised a paternal jurisdiction under which the court acts as a wise parent for the
welfare of the child: see Reg. v. Gyngall [1893] 2 Q.B. 232, 239, 241. Lord Esher M.R., at p. 242, approved
the dicta of Knight Bruce V.-C. in In re Fynn, 2 De G. & Sm. 457, 475, but then adopted the wider test laid
down by Lindley L.J., in In re McGrath (Infants) [1893] 1 Ch. 143, of preserving the status quo unless the wel-
fare of the child in its wider sense requires otherwise. In the end Lord Esher M.R. appeared to reconcile the
two views. He went on to say, at p. 242, that "the best place for a child is with its parent" and his reason for
depriving the mother in Reg. v. Gyngall was her position in life, i.e., her inability to provide a home for her
daughter, aged 15, who, within a year, would have been able to do as she wished. In In re O'Hara [1900] 2
I.R. 232, the judge saw and acted on the wishes of a child of 11 but the Court of Appeal, reversing his deci-
sion, held that the child should go back to her mother, emphasising that if a parent could provide a home and
necessities of life, that parent should not be deprived unless guilty of misconduct.

Section 1 of the Guardianship of Infants Act, 1925, has not changed the principles on which the Chancery
courts act when parents are seeking guardianship as against a stranger: see per Lord Hanworth M.R. in In re
Thain [1926] Ch. 676, 689. Section 1 of the Act of 1925 does not create new law, but merely enacts the rule
of the Chancery Division that the welfare of the child as a whole has to be considered and not merely
whether it would be happier in one place or another. While the welfare of the child is the paramount consider-
ation, there are others, the most important of which is that the child should have the right of winning the love
and affection of its parents: see per Warrington L.J., at p. 690, and Sargant L.J., at p. 691. In that case, de-
spite the father's delay, the court held that the right of an unimpeachable parent stood first and the welfare of
the child required her to live with her father. Sargant L.J.'s words provide a reconciliation between the appar-
ent conflict in section 1 between the right of the unimpeachable parent and the paramount consideration of
the welfare of the child: see per Plowman J. in In re R. (M.) (An Infant) [1966] 1 W.L.R. 1527, 1536. So far as
Plowman J., at p. 1537, refers to Danckwerts L.J. in In re Adoption Application 41/61 [1963] Ch. 315, 329,
and the wider test of the parents' wishes being subordinate to the welfare of the child, it can only be with ref-
erence to the fact that, the parent being unsuitable, it might be against the child's interest. Wilberforce J. in In
re Adaption Application 41/61 (No. 2) [1964] Ch. 48, 53, did not approach that case on the basis that a father
has a claim which he has a right to have satisfied, but on that of the extent to which a child may benefit from
the recognition of the blood tie. Accordingly, that decision affords no guidance: in any event it was an adop-
tion case, which is quite different. In re B. (An Infant) [1946] N.I. 1, supports the submission that section 1 of
the Act of 1925, which does not apply to
[1970] A.C. 668 Page 676

Northern Ireland, did not change the law, for in that case there was no reason to prefer the custody of one
parent to that of the other, but the court held that the father's superior right at common law (which had not
been completely abrogated by the Guardianship of Infants Act, 1886, s. 5) entitled him to custody. In In re C.
(An Infant) (unreported) July 24, 1964, although Buckley J. was not prepared to order that a boy brought up
in England should go immediately to his mother and unknown stepfather in America, nevertheless he indi-
cated that the boy should be enabled to join "his family" within two years. In the present case the infant's true
family are his natural united parents even more so than in In re C. (An Infant) where the child did not even
know his step-father. It cannot be right to cut a child off from either the benefits or the obligations of living
with his parents. In Spain it is a family duty for children to look after aged parents; this child should not be de-
prived of that obligation of Spanish life. Ungoed-Thomas J. relied on In re E. (D.) (An Infant) [1967] Ch. 761
as authority for depriving an unimpeachable mother of the custody of her child. In fact, the mother had previ-
ously been deprived of the child's custody on the ground that she was not a fit and proper person to have
custody and the father in his will had indicated that he did not want her to have custody. In considering
whether the older authorities are out of date, the Court of Appeal in In re K. (Infants) [1963] Ch. 381 cited
Fynn and Gyngall with approval. Upjohn L.J., at p. 404, said that the judge cannot treat the matter as though
he were a private parent; it is a judicial exercise: see also per Davis L.J., at pp. 408-409. It is accepted that
these cases were not being directly considered, but in so far as they are referred to, it is with approval, and in
the House of Lords [1965] A.C. 201, Lord Devlin, at p. 239, adopts what Upjohn L.J. said as living law, so nei-
ther the Court of Appeal nor the House of Lords dissented from Fynn and in fact Lord Devlin expressly
adopts it.

International views are that there should be no interference with the family: see the Universal Declaration of
Human Rights, articles 16 (1), 20, 26 (3). The European Convention of Human Rights, to which the United
Kingdom is a signatory, makes provision for the family in article 8 in rather different terms: private and family
life is not to be interfered with except for public order.

On the question of the value of psychiatric evidence, the psychiatrist who was instructed before the 1965
hearing by the foster parents saw the child for about an hour. He saw him again with the foster parents be-
fore the 1967 hearing, but he did not see the parents: that was before Cross J.'s dicta in In re S. (Infants)
[1967] 1 W.L.R. 396, 407, that in a wardship case a psychiatrist should be called by the Official Solicitor. Eve
J. in In re Thain [1926] Ch. 676, 684, discounted the distress to the child on the ground that parting and other
sorrows were mercifully transient at a tender age and other judges referred to the fact that a small child will
rapidly develop affection for his natural parents. That is as good today as it was then and has not been
changed by psychiatric evidence which is open to two main criticisms: (i) The quantitative degree of the risk
cannot be assessed by psychiatrists because in the present state of knowledge there are no statistics to
show the proportion of successful and unsuccessful cases and a psychiatrist from his own experience meets
[1970] A.C. 668 Page 677

only the unsuccessful ones: see per Russell L.J. in In re C. (M.A.) (An Infant) [1966] 1 W.L.R. 646, 677. (ii)
The psychiatrist sees only one side and works on a basis wholly alien to that on which a court of law works:
see per Harman L.J. in In re E. (P.) (An Infant) [1968] 1 W.L.R. 1913, 1915-1916. No court would seek to act
without seeing both sides of the picture and to that extent therefore on the present state of knowledge, the
court should not allow the evidence of a psychiatrist to override the well-established law of nature that the
best place for a child is with its parents.

Although Ungoed-Thomas J. said that he would have decided the same way apart from the psychiatrist's evi-
dence, he must have had it in mind in saying that the parents would not be able to cope with the child's prob-
lems of readjustment. In disregarding the basic principle of the law of nature that a parent is the best person
to have custody of his child, and the transience of sorrow in children, he attached undue weight to the psychi-
atric evidence. Evidence based on one side only is sometimes more dangerous than none at all. Plowman J.
who is well aware of the views of today's psychiatrists on maladjustment (In re R. (M.) (An Infant) [1966] 1
W.L.R. 1527) felt that Eve J.'s proposition in In re Thain [1926] 1 Ch. 676, 684 was as applicable now as it
was then. In In re L. (Infants) [1962] 1 W.L.R. 886, where each parent was seeking custody, Lord Denning
M.R. said, at p. 890, that while the paramount consideration was the welfare of the child, the claims of justice
could not be overlooked: see also per Harman L.J., at p. 891. Where parents are claiming against strangers
it is even more appropriate that the interests of justice should be considered. The law has not changed since
in In re Fynn, 2 De G. & Sm. 457, and in many cases courts have applied the presumption that the best place
for a child is with its natural parents. If that necessitates a change, the child will get over it.

[LORD GUEST. Suppose one were to accept the first submission regarding the unimpeachable parent, may
it not be said that the father's character and the parents' disinterest through the years disentitled them?]

One cannot say that the father is not a proper parent. The height of the case against him is his alleged lack
of sensitivity to cope with the child's problems of readjustment, but the fact that the father is not an instinctive
amateur psychiatrist or psychologist should not be a ground for depriving him of custody. The parents made
the sacrifice of sending their only son back to England, and although they did not visit the child that could not
possibly amount to abandonment in all the circumstances. In 1963 when the child was made a ward, no court
would have refused to send him back to his parents, but the vital gap between 1963 and the hearing in 1965
doubles the length of time the child was in this country away from his parents through no fault of their own. At
the hearing in 1965 the judge was under two misconceptions of fact, namely, that the mother was not in good
health and that the parents did not genuinely want the child back, but even then he did not approach it on the
basis that the parental right should be displaced.

On submission (2) of the de facto adoption, the local authority took the child into their care under the Children
Act, 1948, s. 1 (1) (b) on the ground of the mother's ill-health. The vires of the local authority ended as soon
as the mother asked for the child back, by virtue of section 1 (3),
[1970] A.C. 668 Page 678

and the subsequent provisions of that subsection (3) cannot apply because it was not intended that the local
authority should decide to whom a child should go when the parent himself desired to take care of the child.
The differences between custody and adoption are primarily status and succession. No right of succession is
relevant here, but the Adoption Act, 1958, was intended to protect not only status and succession, but the
right and duty of the parent to bring up a child as he would wish. In In re E. (An Infant) [1964] 1 W.L.R. 51 the
judge accepted that the mother's religious beliefs were a valid reason for her refusing consent to an adoption
(see sections 4 and 5 of the Adoption Act, 1958) but left the child in the custody of the would-be adopters, or-
dering that she should be brought up in the religion of her mother. Thus in wardship jurisdiction the court re-
spects the mother's wishes giving effect to the very reasons for which the adoption consent was refused, but
in a domestic case of that type the natural parent would have ample access. It is the peculiar facts in the
present case, making any provision for access illusory, which makes any custody order in favour of the foster
parents a de facto adoption without consent. Harman L.J. in the Court of Appeal certainly treated the case as
if it was a de facto adoption. He said that there was no means of compromise.

On contention (3) based on comity, the judge had jurisdiction but he ought not to have exercised it. The Eng-
lish courts should only enquire whether the parents have a right to custody. If they have, they should not in-
terfere with the wish of foreign parents domiciled abroad to recall their child. If the parents were unfit or un-
suitable, the judge might have a residual power to adjourn the case for an application to be made to the for-
eign court for an order that the parents were unfit, but in the present case there have been no proceedings in
Spain. Where there is no order of a foreign court and the English court is satisfied that the parents have a
prima facie right to custody, it is not only in the interests of the welfare of the child, but in the interest of
comity for the judge to send the child back, in the same way that one would wish a foreign court to recognise
English parents' right to custody, and to return an English child to this country. The Spanish courts in similar
circumstances would look at the law of the foreign parent and so would other European and South American
countries.

[ Mrs. Puxon for the foster parents. It was never challenged that the lex fori applied, otherwise evidence to
controvert this submission would have been called.]

[LORD GUEST. The objection is noted.]

In 1965 the judge decided that he had jurisdiction and exercised it. In 1967 when the parents were repre-
sented before him it was thought that they could only challenge his decision on the merits. In the Court of Ap-
peal, although not immediately apparent, the jurisdiction point was argued; it was said that the court had no
power to intervene when a foreign child was sent here temporarily. English courts always take an order of a
foreign court into consideration, a fortiori where a right exists under foreign law without need for any court or-
der. The parents should not forfeit it because they sent the child to this country for the good of his health.

There is no case similar to the present one: most of the authorities involve some conflict with guardians
abroad. Dicey and Morris on Conflict
[1970] A.C. 668 Page 679

of Laws, 8th ed. (1967), rule 50, at pp. 383-386, sets out the court's jurisdiction to appoint guardians and
make custody orders based on the personal or local allegiance of the child and the exercise of the Sover-
eign's jurisdiction over children as parens patriae, but the court does not have that jurisdiction once the for-
eign parent has sought to recall the child. once the child's return has been requested there is a constructive
kidnapping, because there is a refusal to return the child. It is accepted that on principle it has to be shown
that the court ought not to have exercised jurisdiction.

The English courts have jurisdiction to enquire whether courts of the infant's domicile have sufficiently pro-
vided for the infant's guardianship and in their discretion may appoint English guardians: Johnstone v. Beat-
tie (1843) 10 Cl. & Fin. 42; see in particular p. 72 of the argument, pp. 103-104, 118-119, 120-121, 128, 148.
The reasoning in that case is authority for saying that parents' rights are to be respected and that if a parent
requires a child back, the court should look no further and should not exercise its jurisdiction. There is no dis-
tinction between comity and reciprocity for the purposes of this submission. [Reference was made to Hope v.
Hope (1854) 4 De G.M. & G. 328, 346, and Stuart v. Marquis of Bute (1861) 9 H.L.Cas. 440.]

A parent whose right is so clear that he does not need an order of the court, should not be in a worse position
that one who, due to disputes, has had to obtain a custody order. Where there is an identified right in parents
recognised by and enshrined in foreign law, English law should recognise that right. If an English child is sent
temporarily to Spain on grounds of reciprocity and comity one would hope that it would be sent back. Al-
though in Nugent v. Vetzera (1866) L.R. 2 Eq. 704, Page Wood V.-C. refused to discharge English guardians,
he recognised the rights of the foreign guardian to recall the children and equated the position of the
guardian with that of the father. Later authorities may have qualified that decision but it is still of great weight
and shows that the court should not intervene where a parent or guardian asks for a child back by appointing
English guardians. [Reference was made to In re Savini, Savini v. Lousada (1870) 22 L.T. 61.]

In Monaco v. Monaco (1937) 157 L.T. 231, Luxmoore J. enquired into the question who was entitled to cus-
tody under Monégasque law. In the present case no evidence of Spanish law was called because it was
taken for granted in the courts below that in Spanish law the parents would have custody. The Spanish Gov-
ernment knowing the facts could not visualise that the child would not be returned to his father. In In re B's
Settlement [1940] Ch. 54, there was a dispute to be resolved between two parents. As between a parent and
a third party, the parent has a prima facie better right, so that there is no dispute to be resolved.

The basis of the wardship jurisdiction is founded on presence and therefore reciprocal protection by alle-
giance to the Crown. Where a parent is entitled to custody under his national law and has not had the right
displaced by any order of his own courts, he should be entitled to custody here. The Chancery court in exer-
cising its powers as parens patriae is not overlooking the welfare of the child because it is for the child's wel-
fare to be sent back to his parents.
[1970] A.C. 668 Page 680

[LORD UPJOHN. Suppose it would be fatal to the infant to send him back?]

One leaves it to the courts of the foreign country to intervene if necessary. One must deal in practicalities. It
would be rare to say it would be harmful to the child to return him to his parents. Even in 1961 when the par-
ents were living in poor conditions they would have had the right to ask for the child back: and if necessary
the Spanish courts could have intervened. If the child is returned now he can be placed under the supervi-
sion of the Court of Minors which has a supervisory right which it would exercise in view of the doubts ex-
pressed by the English courts regarding the boy's future. Notwithstanding that supervision, the patria potes-
tas would continue. McKee v. McKee [1951] A.C. 352 is the high-water mark of the cases against the par-
ents, but it still leaves open the point that it may be for the welfare of the child not to exercise the jurisdiction.
That case exemplifies the difference between an order of a foreign court and vested parental rights which do
not require an order. If the test in In re P. (G.E.) (An Infant) [1965] Ch. 568, that an infant ordinarily resident in
this country is subject to the parental jurisdiction of the Crown, is accepted then the child is ordinarily resident
in Spain. One must look at the position at the time when the parents asked for him back, or at the latest when
he was made a ward in 1963. There is an analogy between a kidnapping case and a case where a parent's
request for a child to be returned is refused: see in re H. (Infants) [1966] 1 W.L.R. 381; In re E. (D.) (An In-
fant) [1967] Ch. 761.

To summarise: Until 1940 one finds no case where it is suggested that a foreign parent ought not to be able
to recall a child without fetter. One finds cases where guardians have been appointed for children while they
are in England, but one finds no authority for the proposition that foreign guardians should not be entitled to
recall a child from England; on the contrary, there is authority that a foreign guardian should be entitled to re-
call a child temporarily sent here: Nugent v. Vetzera (1866) L.R. 2 Eq. 704. That case makes it plain that one
ought to take more care where the foreign country is not within the ultimate sovereignty of the Crown. From
1940 one finds cases as between husband and wife where one party wants the child here and the other does
not and the court there exercises jurisdiction. Prima facie there is an equal right in the father and mother to
custody and ipso facto where there is a conflict there is a dispute to be determined, but one finds only one
case of the court ever intervening against the wish of a sole surviving parent, namely In re E. (D.) (An Infant)
[1967] Ch. 761. That was a kidnapping case where there was evidence that the parent had in the past been
the subject of an order depriving her of custody. One finds therefore no case where a parent, who was prima
facie entitled to custody and had done nothing to dis-entitle himself by the law of his country was deprived of
custody. There are circumstances in which the courts ought not to exercise their jurisdiction over a child sent
here temporarily: particular reliance is placed on In re P. (G.E.) (An Infant) [1965] Ch. 568 and Lord Simonds
in McKee v. McKee [1951] A.C. 352. There is no real distinction in applying this principle between the fact
that there is an order of a foreign court made as a result of a dispute and the vested right of a parent under
his own
[1970] A.C. 668 Page 681

law. Both should be given equal respect. In fact, a person with a vested right should be in a better position,
for the order of a foreign court may be open to review, but a vested right under the law cannot change. If
there is force in the submission that we should do as we would be done by, we should apply the principle of
committee because not to do so would lead to anti-comity. The judge exercised jurisdiction in 1965 when he
should not have held a full enquiry and therefore that decision should have been reversed on appeal: McKee
v. McKee. If the judge exercised discretion in a way which was not wrong in principle, it cannot be interfered
with, but if he did exercise it on wrong principles, this court should interfere because it is for the welfare of the
infant for him to be returned to his parents.

Having fully covered the first three submissions, it is unnecessary to develop that dealing with the welfare of
the infant in its broadest sense. All matters should be taken into account, otherwise foreign parents would be
at a disadvantage. Had the judge taken into account not only the adoption and committee points, but the
principles of In re Fynn, 2 De G. & Sm. 457, he would not have interfered with the fundamental rights of the
parents. The whole emphasis in the case has been the disastrous effect on the boy for him to go back to his
parents. It disregards the basic rule that it is in the best interests of the child for him to be with his real par-
ents. [Reference was made to the Lord Chancellor's Committee on Conflicts of Jurisdiction as it affects chil-
dren, September, 1959, Cmnd. Paper No. 842.]

The Spanish Government will give an undertaking that if the parents are granted custody, in order to ensure
the child's constant moral and material well-being, the Court of Protection of Minors will take such steps as
may be necessary to supervise and protect the child without prejudice to the patria potestas to which the fa-
ther is entitled.

J. D. Waite for the infant by his guardian ad litem, the Official Solicitor. The Official Solicitor's view is that set
out in the record that in none but the most exceptional circumstances would a court required to treat the wel-
fare of the infant as the paramount consideration make an order keeping a child in a foster home against the
will of united parents, but this is an exceptional case. It is clear from Ungoed-Thomas J.'s judgment that he
did not find in the parents the qualities of patience, compassion and sensitivity to enable them to cushion the
blow and reduce the risk of permanent psychological damage to the infant. The undertaking by the Spanish
Government does not alter that view for it is too hedged with qualifications. The words "without prejudice to
the patria potestas" indicate that the jurisdiction of the Court of Protection of Minors is like the power in the
local authorities under the Children Act, 1948, which is subject to the parent's rights. Wardship was resorted
to less frequently in the 19th century and only in connection with the property of well-to-do orphans when
there was a tendency to regard welfare in the material sense. In this century, particularly since 1925, the po-
sition has changed radically; heiresses are comparatively rare and the Chancery Division has become virtu-
ally a court of child welfare sharing its jurisdiction with magistrates' courts and local authorities. The reasons
are, first, the change in social
[1970] A.C. 668 Page 682

particular; and secondly, intervention by local authorities under the Children and Young Persons Act, 1933,
and the children Act, 1948, and the effect of the Law Reform (Miscellaneous Provisions) Act, 1949, s. 9,
which, by the issue of an originating summons, enabled a person to make a child a ward of court without ref-
erence to property or otherwise. The Legal Aid and Advice Act, 1949, opened this jurisdiction to all persons
whether of means or not.

The Official Solicitor makes the following submissions: (1) Since 1925 there has been only one criterion in all
courts for determining questions of custody, whether between parent and parent or between parent and
stranger, namely, that the welfare of the infant is the paramount consideration. (2) Application of this criterion
to the infinitely variable facts of each particular case requires that the court should have the widest possible
discretion consistent with its duty to act judicially. (3) It is inconsistent with submission (2) that the court
should be fettered in its consideration of a child's welfare by the application of fixed rules or presumptions
founded upon alleged legal rights. (4) A court of child welfare must nevertheless take into consideration
claims upon a child's welfare which are recognised by nature and society; in particular the claim of an infant
to have its welfare served by being brought up with the natural love and affection of its own parents. (5) So
strong is this last claim that in none but the most rare and exceptional cases can it be for the welfare of the
infant to be brought up by strangers against the wishes of a parent or parents able and willing to nurture him.

It follows from the view taken by the Official Solicitor that the judge did not err in any matter of principle in
concluding that this is such an exceptional case.

In re Agar-Ellis (1883) 24 Ch.D. 317, 328, 334, 337, in which the court held that the rights of the father were
sacred and could not be interfered with unless he had forfeited them by gross moral turpitude or abdicated
his parental authority, shows the materialistic view prevalent at that stage. Cotton L.J., at p. 334, said that it
was not within the court's power to go into what was for the benefit of the ward, which almost appeared to be
an abdication of jurisdiction. It is difficult to reconcile that case with the germ of the paramount interest being
the welfare of the child found in Johnstone v. Beattie (1843) 10 Cl. & Fin. 42 and Stuart v. Marquis of Bute
(1861) 9 H.L.Cas. 440. Great deference was paid to the principle of the sacredness of a father's rights, but it
would not be deferred to today: it was a most appalling instance of equity following the law. "Paramount"
does not appear to have been used in the cases before the Act of 1925, but the words "chief," "main" and
"dominant" were used with reference to the welfare of the child. Johnstone v. Beattie was cited in In re Agar-
Ellis, at p. 321, but Stuart v. Marquis of Bute does not appear to have been referred to. The paramountcy of
the infant's welfare was apparent in both of these cases as it was in In re McGrath (Infants) [1893] 1 Ch. 143,
where the court was moving away from the idea that there are rules of law and towards a less materialistic
approach based on the infant's welfare. Reg. v. Gyngall [1893] 2 Q.B. 232 does not purport to lay down any
presumption, far less a rule of law. In re Fynn, 2 De G. & Sm. 457, on which counsel
[1970] A.C. 668 Page 683

limit or fetter the welfare of the child and the exercise of the court's jurisdiction. In deference to the unsuc-
cessful argument of a voluble litigant in person the judge reproduced it at length in the judgment before find-
ing against him. Bearing in mind the climate of opinion at the time, the Vice-Chancellor, at pp. 474-475, was
doing no more than equity in acknowledging the supremacy of a father's rights and stating the principle be-
fore making inroads upon it and depriving the father. In saying that he was not at liberty to act on his own
personal views, at p. 474, he was disclaiming the right to act on inadmissible evidence which was the point
that troubled the court in In re K. (Infants) [1963] Ch. 381; [1965] A.C. 201, which establishes no more than
the proposition that a judge must act judicially and not take his own feelings into account. It is conceded on
both sides that cases in which a father's rights are superseded are very rare, the only question is the route by
which one arrives there. All that happened in In re Fynn was that the judge was saying that he did not think
much of a member of the bar who acted in the way that that father did, but he expressly disclaimed that sit-
ting on the bench he was influenced by any such considerations. It appears from Barnardo v. McHugh [1891]
A.C. 388 that prior to the Act of 1886 there had been doubt as to the right of a mother in connection with an
illegitimate child who was considered filius nullius. Reliance is placed on the words of Lord Halsbury L.C., at
p. 394. Lord Herschell, at p. 399, shows that although the desires of the mother of an illegitimate child as to
its custody must be primarily considered, that consideration must be subject to the dominant consideration of
the welfare of the child. That case still has the aura of the 19th century's deference to parental wishes, but
nothing in the decision detracts from the fact that the infant's welfare is the paramount consideration nor is
there any challenge to that proposition in In re O'Hara [1900] 2 I.R. 232, 239, 240, 253. If it is thought that
FitzGibbon L.J.'s language lays down any proposition or presumption of law which a trial judge is bound to
apply, it should not be followed being out of line with the trend of authority in this country today. [Reference
was made to Rex v. New (1904) 20 T.L.R. 515.]

The authorities go no further than submission (4) above, namely, the recognition of parental ties. If, contrary
to these submissions, it is held that the authorities establish a rule of law that a parent is entitled as of right to
the custody of a child unless barred by a serious defect of character, misconduct, or position in life fatal to the
successful upbringing of a child, any such rule was repealed by section 1 of the Guardianship of Infants Act,
1925, which is an enactment of universal application in cases affecting the custody of infants. The preamble
to the Act shows that its purpose was to put mother and father in the same position of equality following the
fusion of law and equity, all the courts treating themselves as bound by the same equitable rules. Bearing in
mind the words of the section and the interpretation in the cases, the operation of section 1 should not be
confined to disputes between parents. On the authorities since In re Thain [1926] Ch. 676 and In re Carroll
[1931] 1 K.B. 317, in all the cases cited, with the exception of In re H. (Infants) [1966] 1 W.L.R. 381, the lis
before the court involved a claim by a parent to assume
[1970] A.C. 668 Page 684

custody or to have it committed to a third party. In re Aster (An Infant) [1955] 1 W.L.R. 465 and In re Adoption
Application 41/61 [1963] Ch. 315 distinguished In re Carroll, and in In re E. (An Infant) [1964] 1 W.L.R. 51
Wilberforce J. distinguished it by implication, though not in terms. Yet if the dicta of the majority of the Court
of Appeal in In re Carroll were right there would have been no scope for the exercise of the discretion at all;
merely on proof of character, good conduct and circumstance in life the court would have been bound to ac-
cede summarily to the parental wishes. In re C. (An Infant) (unreported), In re E. (D.) (An Infant) [1967] Ch.
287 and In re R. (M.) (An Infant) [1966] 1 W.L.R. 1527 were all concerned, like In re Thain [1926] Ch. 676,
with a claim by a parent to recall from a stranger a child which the parent was able to look after. The particu-
lar decision arrived at in each case is irrelevant; it is sufficient that the judge exercised his discretion. In re
Carroll should be disapproved or overruled.

To summarise the Official Solicitor's submissions on the appellants' arguments that there is a rule of law that
the courts would only hold that it was not for the child's benefit to be with the parents if by their conduct, char-
acter or their position in life they were unsuited to have care and control: (1) It is contrary to the weight of the
judicial authorities since 1925, and if it be decided that those authorities proceed from a misreading of sec-
tion 1 of the Guardianship of Infants Act, 1925, it is now undesirable as a matter of public policy that a differ-
ent test should obtain in eases between parent and stranger and parent and parent. (2) Any alleged rule or
presumption of law would restrict the courts (see per Lord Jenkins in In re K. (Infants) [1965] A.C. 201) and
take away one of the advantages of the wardship jurisdiction. (3) Far from replacing what the appellants criti-
cise as uncertainty in conferring wide desertion on the judge, it would lead to a whole body of case law turn-
ing on the infinite degrees of moral blame which instituted bad character or conduct or the infinite shades of
material advantage which would constitute bad position in life. (4) If there are to be cases, however excep-
tional, in which a parent is to be deprived of a child, it is better that the test should be directed to the benefit
of the child rather than the suitability of parents. (5) There is no real distinction between a presumption and a
rule of law, both alike exclude discretion. (6) The appellants should not be allowed to rely on the fact that
there is a rarity of reported instance of parents being deprived of their children in favour of strangers. That
only demonstrates the rarity with which such deprivation should occur. One should bear in mind that many of
the decisions in wardship proddings are taken in chambers and never reach the reports at all. Even if one
adopts the proposition of law for which the appellants contend, the judge still did not err because there is
nothing in the authorities to show that these are overriding considerations which should apply even if disaster
would otherwise occur. "Character" in the eon text of the appellants' submissions may have acquired a new
signification in relation to the parents' capita to enable the child to adjust to Indochinese in their own country.
That point was crucial to the judge's decision. The judge did not err in making an assessment of the parents'
character which disqualified them from
[1970] A.C. 668 Page 685

exercising their parental right to call for the child for the time being at any rate.

As to the justice of the case, much that the parents have suffered is due to matters outside their control. The
regrettable delay cannot be attributed to the fault of either side; a procedure now exists making it impossible
for this to happen again: Practice Direction (Infants: Avoidance of Delay) [1966] 1 W.L.R. 1217. The parents
are entitled to much sympathy. If the test put forward by the Official Solicitor is the right one, considerations
of fairness even if they are all one way, which they are not, cannot override the dominant consideration of the
paramount interest of the child.

[LORD GUEST. We need not trouble you on the point that this was a de facto adoption but would like you to
deal with the committee point.]

There is no authority showing that international reciprocity and committee demand recognition of foreign sta-
tus. It is all a matter of discretion. Parental authority under the law of the domicile is something that the courts
would take into account as part of what is for the benefit of the child. [Reference was made to Cheshire's Pri-
vate International Law, 2nd ed. (1938), p. 387 and Dicey and Morris on Conflict of Laws, 8th ed., r. 52, at p.
397.]

The fourth submission on behalf of the appellants is cumulative and while such an argument has force on a
matter of discretion, each proposition of law must stand on its own and is not improved by cumulative effect.

Mrs. C. M. Puxon and Miss Margaret Higgins for the foster parents. In general the Official Solicitor's sub-
missions are adopted. In dealing with the appellants' first submission regard must be had to the evidence. It
is conceded that the presumption in favour of natural parents is very strong, but however strong, by 1967, if
the paramount consideration was the welfare of the infant, that could not be given effect to without allowing
the child to stay with the foster parents. At the hearing in 1965 the Surrey County Council took the position
that as counsel was instructed to act for the foster parents, he should argue on behalf of the parents, which
he did. He made many attacks on the foster parents which were all rejected. The foster parents never ap-
plied to any court for any order; they were brought to court first by the Surrey County Council, then by the
parents. They did not ask for care and control directly, but only that the county council should consider the
matter carefully and not send the child back to Spain. In 1967 when Ungoed-Thomas J. had this case before
him for the second time, he was not influenced by his judgment in 1965. Reliance is placed on the letter by
Master Neeve to the parents explaining that the order of 1965 was only a temporary order and that the judge
would be pleased to see them. Before the hearing in 1965 a Spanish lawyer saw a representative of the Sur-
rey County Council and must have been satisfied that the parents' interests were going to be adequately rep-
resented. Unless the circumstances in which the judge exercised discretion are investigated, it is difficult to
say that he did not act on the right principles.

[LORD GUEST. The House would like to hear you on the judge's estimate of the psychiatric evidence and the
fitness of the father's
[1970] A.C. 668 Page 686

character. No attack is made on the suitability of the foster parents or the situation of the child.]

As to the father's character, he voluntarily committed the child twice to the care of the foster parents; the first
time he could not have acted otherwise, but, according to the father, there was no reason for sending the boy
the second time. The evidence shows that within three months after the child came back to England in July,
1961, the parents had arranged to go to Hamburg and yet the father is saying that in October, 1961, he
wanted his son back. The letters written from Hamburg by the father indicate the difficulties that would face
the child brought up in a cultured English home if he was returned to a situation where a father could use lan-
guage of that type. He did not want the child sent to Hamburg on holiday and suggested that if the foster par-
ents would not keep the child until January, 1962, they should send him back to Madrid. In the light of that sit-
uation the judge doubted whether the parents really wanted the child back in 1965. To sum up, the parents
took no steps of their own volition to recover the child. The mother's letter to the county council in September,
1963, was provoked by the foster mother's letter of July and as a result it was the county council that made
the child a ward of court. The parents did nothing further until 1967 when the foster parents, simply in order
to get the child into a suitable school, applied to change his religion. It was only then that the father, who had
never previously had any interest in religion, applied to the court. It lies ill for the parents to say that delay
should not be held against them.

A judge in the custodial parental jurisdiction is not bound to reject psychiatric evidence and had Un-
goed-Thomas J. refused to consider the psychiatrist's evidence that would have been a ground of appeal. A
judge should not neglect any factor, medical, psychiatric, or otherwise. Reliance is placed on In re C. (M.A.)
(An Infant) [1966] 1 W.L.R. 646 in which Ungoed-Thomas J. rejected a psychiatrist's evidence that a child
would be disastrously affected by the change and felt that it was in the interest of the child to go to his father.
Judges must be affected by the knowledge of psychiatry which comes to them through their cases and one
would be unlikely to hear a judge today say that the sorrows of childhood are transient. Although it was the
foster parents who took the child to the psychiatrist and his report was exhibited to the foster father's affidavit,
they did not call him; he was called for cross-examination at the suggestion of the parents. While it is true
that psychiatrists only see the failures they know what causes a child to fail to adjust to his surroundings and
what will enable a child to adjust successfully. Ungoed-Thomas J.'s judgment read as a whole, indicates that
he took into consideration many matters, only one of which was the psychiatric evidence and he did not base
his final judgment on that although he came to the same conclusion as that of the psychiatrist. In In re E. (D.)
(An Infant) [1967] Ch. 761 Cross J. in a similar case came to the same conclusion as Ungoed-Thomas J.
without psychiatric evidence.

No evidence should be excluded simply because it may override the law of nature. The law of nature has dif-
ferent connotations at different times. If by the law of nature is meant that the blood tie should not be over-
ruled by psychiatric evidence, that is wrong, because the welfare of the
[1970] A.C. 668 Page 687

child is the paramount consideration. At a time when the whole social attitude towards parents and children is
changing so much, it would be wrong to shut out psychiatric evidence because the judge must have it in
mind whether such evidence is given or not. There may be cases where it would be wrong that the parents'
interests should be overridden. Where, for example, a criminal act has deprived parents of children, the crim-
inal should not be allowed to benefit from his wrong but the basis of that decision must be that it is in the in-
terests of the child for him to return to his parents, but the present case is a quasi-administrative one con-
cerning the welfare of a child already within the jurisdiction of the court. If there were overriding rights in par-
ents one would be returning to something like a feudal system where a father owned his children and wife as
if they were chattels. That cannot be the law today.
[Counsel was not required to argue on the point that this was a constructive kidnapping.]

Where a child is a ward of chancery, the court must be very careful before sending it out of the jurisdiction,
particularly when the child does not want to go: Dawson v. Jay, In re Dawson (1854) 3 De G.M. & G. 764. All
the cases before 1925, even In re Fynn indicate that a court would if necessary take a child away from a nat-
ural parent. It could be argued that the facts in the present case amount to essential reasons within In re
Fynn for depriving the father of his child. [Reference was made to Rex v. New, 20 T.L.R. 515; Barnardo v.
McHugh [1891] A.C. 388; Reg. v. Gyngall [1893] 2 Q.B. 232; In re O'Hara [1900] 2 I.R. 232; In re Carroll
[1931] 1 K.B. 317 and In re K. (Infants) [1963] Ch. 381, 403; [1965] A.C. 201, 228.]

It has been suggested that unless strict rules are laid down this decision opens a very wide door, but that is
not so for the present case is unique because of the following facts. The child was born here. He is a British
national holding a British passport. He was taken from his mother at birth and has been with foster parents
since he was four days old. He was away from their home for 28 months, but only away effectively for 17
months, when he lived with his parents in Spain, because while he lived in this country the foster mother was
very close to him. The failure of that trial period in Spain was admitted by the parents because they sent him
back. He has a happy home here with a "twin" brother and is devoted to his foster parents. Another unique
feature is the child's anti-Spanish feelings, for despite the fact that all the family, except for the foster father,
speak Spanish and it was spoken in the kitchen and nursery, this child does not want to speak it although the
foster mother said that he is now improving. In all cases, apart from In re H. (Infants) [1966] 1 W.L.R. 381,
while wards are taken away from foster parents with whom they have been for a long time, wardship is con-
tinued, but in the present case the wardship cannot continue if the child returns to Spain. Another factor is the
complete difference in background, culture, class and attitude of mind, particularly in regard to the father's
overriding authority in the family. The child's education would be completely disrupted. It is not a question of
a different grade of school, but of a new way of schooling. The foster parents only ask to be allowed to com-
plete the child's education. Another unusual feature is the parents' character which, due to their background
and culture,
[1970] A.C. 668 Page 688

renders them, or at least the father, unable to assist in the child's adjustment if he went back to Spain. This
child knows of his origins, but he does not know his parents: they are "those Spaniards" not Mum and Dad.
This is a unique case unlikely to recur for which it would be wrong to legislate. One cannot restrict the court's
discretion in any way which would work; to say that unimpeachable parents should, as of right, receive their
children back on demand would mean that advocates would have to seek to impeach the parents, which
would be unfortunate and would lead to undignified squabbles in what is principally an administrative action
in relation to a child. With regard to the child's religious upbringing, he is at present at a school which is not
Roman Catholic and no longer goes to Catholic services. The foster 0parents tried to bring him up as a Ro-
man Catholic and approached over 20 Roman Catholic schools, but none would take the child. He is not re-
garded by the Catholic church as a Catholic because although he was sent to catechism classes he has
been brought up in a Protestant family. He was only able to get into the school where he is now because the
other boys in the family had been there or were going there.

On committee there is no case where there has not been an order of a foreign court. [Reference was made
to Cheshire on Private International Law, 7th ed. (1955), p. 387.]

Alexander in reply. It appears that the child is no longer being brought up as a Roman Catholic. The prob-
lems of schooling indicate the difficulties of bringing him up as a Catholic in a Protestant household. On the
question of the psychiatrist, for centuries there has been an overwhelming presumption that a child is better
off with his natural parents: psychiatric knowledge is not sufficiently advanced at present to override that. Al-
though there are points of criticism, the father's character is unimpeachable.

[LORD MACDERMOTT. Ward v. Laverty [1925] A.C. 101, 108 raises the question whether weight is to be
given in law to the father's testamentary wishes as to the religious upbringing of the child.]

[Reference was made to In re S. (Infants) [1967] 1 W.L.R. 396 and B. (M.) v. B. (R.) (Note) [1968] 1 W.L.R.
1182.]

Dealing with the Official Solicitor's submissions, In re Thain [1926] Ch. 676 is expressly relied on in In re K.
(Infants) [1963] Ch. 381; [1965] A.C. 201. In so far as Lord Devlin approved Thain it was not on the basis that
In re Fynn, 2 De G. & Sm. 457 and In re Carroll [1931] 1 K.B. 317 were out of date. It is important to decide
whether one is interfering with a right or a claim. If it is a right, one should follow the law. In the Act of 1925 as
between father and mother it became a claim. As between parent and stranger it became a right. The father's
right to custody at common law could only be interfered with by grounds provided by statute such as the Act
of 1891. Equity could interfere in circumstances in which the welfare of the child was affected as described in
In re Fynn. The Judicature Act, 1875, enabled all divisions to give effect to all principles, but it did not alter
the principles themselves. The Guardianship of Infants Act, 1925, altered the position between parents to the
extent only that it completed the work of the Act of 1886 thereby placing the father in an equal position with
the mother. Otherwise, the legislature enacted no
[1970] A.C. 668 Page 689

Cur. adv. vult.

Dec. 18. LORD GUEST announced that the committee would report to the House that the appeal should be
dismissed for reasons to be given later.

1969 Feb. 19. LORD GUEST. My Lords, the infant in these wardship proceedings is a Spanish national aged
ten and a half 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 unani-
mously affirmed his decision. The custody of infants being a discretionary matter, this House could only inter-
fere 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 be-
hind 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 May 8, 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 par-
ents." 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 con-
tinued to remain with the foster parents
[1970] A.C. 668 Page 690

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 10 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 be-
came 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 re-
quest 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.

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 noth-
ing. In the winter of 1961 the parents went to Hamburg with the idea of further bettering their financial posi-
tion in order to be able to obtain a house of their own in Madrid in more salubrious surroundings. They had
left their elder daughter with the maternal grandmother in Madrid and they remained in 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 September 25, 1963, to the
Surrey County Council, in whose official care the infant was, asking for the infant's return. The local authority
did not act with conspicuous consistency or good sense. After appearing to agree to the mother's request
they subsequently, after receipt of a letter from the foster parents expressing their point of view, resolved,
upon the advice of counsel, to apply
[1970] A.C. 668 Page 691

to the Chancery Division to have the infant made a ward of court, which was done on December 6, 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 re-
turn. Affidavits were lodged by various other parties. After a hearing on July 22, 1965, Ungoed-Thomas J. or-
dered that the infant remain a ward of court, that the care and control be committed to the foster parents, that
the infant be brought up in the Roman Catholic faith and in the knowledge and recognition of his parents and
in knowledge of the Spanish language.

Two years were to elapse before the final stage of the proceedings took place 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 May 10, 1967. An application was also made by the foster parents in January,
1967, that the infant be brought up in the Protestant faith. This request for a change in the boy's religious up-
bringing 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 par-
ties and his judgment was given on July 31, 1967. No order was made on either application and his order
was dated September 20, 1967. Owing to various delays, for which none of the parties is responsible, the
Court of Appeal hearing did not take place until July 5, 1968, and the order of the Court of Appeal dismissing
the appeal was made on July 30, 1968.

In retrospect it is unfortunate that at the first hearing in 1965 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 re-
turn. It may be that if more expedition had been exercised by the parties in bringing the case to trial and the
full facts had been known at the time, the judge's decision might well have been different in 1963. In 1963
when the parents first asked for the infant's return he was only five years old and he had only been parted
from his parents for a matter of two years. Even in 1965 he was only seven years old, but by the time of the
second hearing he was 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 27 months he has been living continually in the home of the foster parents with their family. There is
no doubt, as the learned judge found, that the infant lives in happy surroundings in a united and well inte-
grated 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
[1970] A.C. 668 Page 692

three bedrooms and is in a modern block of flats in quite different surroundings from the previous home. The
father is in good steady employment at a weekly wage of about £18 and the mother's health has been com-
pletely restored.

The reason which has impelled the judge to take the unusual step of taking the care and control from the par-
ents 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 par-
ents.

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 princi-
ple. 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 fos-
ter parents has, it is said, the effect of adoption because it is accepted that it is unlikely that, although the or-
der 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 unim-
peachable 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. & Sm. 457 was decided. This was a case in which a father was held disentitled to the custody of his
infant children on account of his conduct. Knight Bruce V.-C. said, at p. 474:
[1970] A.C. 668 Page 693

"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 circum-
stances; he may be negligent, injudicious, and faulty as the father of minors; he may be a person from whom the dis-
creet, 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 malign it is
for obvious reasons well that it should be so. Before this jurisdiction can be called into action between them it must be
satisfied, not only that it has the means of acting safely and efficiently, but also that the father has so conducted him-
self, or has shown himself to be a person of such a description, or is placed in such a position, as to render it not
merely better for the children, but essential to their safety or to their welfare, in some very serious and important re-
spect, that his rights should be treated as lost or suspended - should be superseded or interfered with. If the word 'es-
sential' is too strong an expression, it is not much too strong."

The principle upon which the Chancery Court acts is expressed by the Lord Chancellor, Lord Cranworth, in
Hope v. Hope (1854) 4 De G.M. & G. 328, at pp. 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 chil-
dren 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, at p. 328: "the court could not interfere
... except in the utmost need and in the most extreme case." Later he says that the court has no right to inter-
fere with the sacred right of a father over his children (quoting Bacon V.-C. in In re Plomley (1882) 47 L.T.
284). Cotton L.J., at p. 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 p. 337, speaks of the right of family life being sacred, and refers
to Kindersley V.-C. in In re Curtis (1859) 28 L.J.Ch. 458 with approval. This passage in the latter case, at pp.
459-460, reads as follows:
[1970] A.C. 668 Page 694
"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 be-
cause, 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 showing, or attempting to show, what, I am afraid, mat be shown in a
great many cases, that it was most for the interest of the children that they should be removed from the custody both of
 the father and of the mother; but happily there is no such jurisdiction. I need not cite cases upon this subject, but I will
refer to one which has not been mentioned, with reference to the interference with a father's authority and parental
rights as regards his children. I mean the case of In re Fynn [2 De G. & Sm. 457], and I cite it merely for the purpose of
showing how the learned judge who decided that case (the present Lord Justice Knight Bruce, then Vice-Chancellor)
expressed what was the ground of the jurisdiction, the manner of exercising, and the principles on which the court does
exercise, that jurisdiction."

Bowen L.J. continues, 24 Ch.D. 317, 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 Guardianship 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 p. 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

[1970] A.C. 668 Page 695

by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and reli-
gious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disre-
garded."

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

In Reg. 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 p. 239,
to explain the paternal jurisdiction of the Chancery Court which was exercised in the interests of the welfare
of the infant. He thereafter quoted with approval the observations of Lindley L.J. in McGrath above referred
to, as does A. L. Smith L.J., at p. 253.

At the turn of the century a more enlightened view appears to have been taken, at any rate in Ireland, in re-
gard to the parents' rights. In In re O'Hara [1900] 2 I.R. 232 Lord Ashbourne C. said, at p. 239:
"I rest my judgment on the broad ground that the mother is entitled to the custody of the child; and there is nothing in
her conduct, her character, or her present position to induce any court to take away her child from her."

But FitzGibbon L.J. stated, at p. 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 misconduct; 2, Chancery, when a separate tri-
bunal, 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 otherwise, and had not been guilty of miscon-
duct; 3, The Judicature Act has made it the duty of every division of the High Court to exercise the Chancery jurisdic-
tion; 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 sat-
isfied 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 (see also
Holmes L.J., at p. 250) and later in his judgment he said, at p. 241:
"The court, acting as a wise parent, is not bound to sacrifice the child's welfare to the fetish of parental authority, by
forcing it from a happy and comfortable home to share the fortunes of a parent,

[1970] A.C. 668 Page 696

however innocent, who cannot keep a roof over its head, or provide it with the necessaries of life."

Holmes L.J., 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 p. 253:
"No doubt, the period during which a child has been in the care of the stranger is always an important element in con-
sidering 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 asso-
ciations of his life, no court ought to sanction in his case a change of custody."

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

There is a remarkable dearth of authority after the beginning of the twentieth century until 1926. In 1925 the
Guardianship of Infants Act was passed. It is around 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 the court (whether or not a court within the meaning of the Guardianship of Infants
Act, 1886) the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for
an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the
welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any
other point of view the claim of the father, or any right at common law possessed by the father, in respect of such cus-
tody, 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 appellants' counsel argued that the first limb of the section was limited to questions in regard to the cus-
tody 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 es-
tablish 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:"

[1970] A.C. 668 Page 697

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's case, 2 De G. & Sm. 457 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 p. 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 be-
fore 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 para-
mount consideration in regard to the custody of infants was the infant's welfare. The father's wishes were to
be considered but only as one of the factors as bearing on the child's welfare. The father had no "right" as
such to the care and control of his infant children. The comparative absence of authority in the intervening
years between 1900 and 1925 may have been due to the fact that the change in the climate of social condi-
tions 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
[1970] A.C. 668 Page 698

v. Prince Ernest Augustus of Hanover [1957] A.C. 436, 461, per Viscount Simonds [as set out in the per cu-
riam in the headnote]:
"Assistance may be obtained from the preamble to a statute in ascertaining the meaning of the relevant enacting part,
since words derive their colour and content from their context. But the preamble is not to affect the meaning otherwise
ascribable to the enacting part unless there be a compelling reason and it is not a compelling reason that the enacting
words go further than the preamble indicated."

This view of the law is confirmed by the cases, apart from one exception, which followed the passing of the
1925 Act. The first is In re Thain [1926] Ch. 676, in which occurs the classic passage of Eve J., at p. 684:
"As I said at the commencement of my judgment, I am satisfied that the child will be as happy and well cared for in the
one home as the other, and inasmuch as the rule laid down for my guidance in the exercise of this responsible jurisdic-
tion does not state that the welfare of the infant is to be the sole consideration but the paramount consideration, it nec-
essarily contemplates the existence of other conditions, and amongst these the wishes of an unimpeachable parent un-
doubtedly 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 judg-
ment.

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 atti-
tude on the part of the legislature between the years 1891 and 1926 in respect of the wishes of the parents with regard
to the custody of infant children. Notwithstanding that the Guardianship of Infants Act, 1925, has provided that the wel-
fare 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 con-
sideration."

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. said, at p. 337:
"The Lord Chief Justice was apparently of opinion that there had been a change of thought and attitude in the last 40
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
[1970] A.C. 668 Page 699

to be considered. In his judgment, referring to the Guardianship of Infants Act, 1925, 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 - 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 [1891] A.C. 388, 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 and speaks of "the mother's right." Finally, he expresses him-
self, after criticising the judgment of the Lord Chief Justice in the Divisional Court, in these words, at p. 362:
"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 al-
ready given, neither of the statutes cited by the learned judge has modified the considerations of immemorial right of
parents by nature and nurture which we have here to regard. I have already expressed my view as to the latter statute
of 1925, that it is dealing merely with the respective rights of the father and mother, and I would only add that, if there
be any ambiguity in the language, so that we are entitled to look at the preamble; that preamble in terms states:
'Whereas Parliament by the Sex Disqualification (Removal) Act, 1919, and various other enactments, has sought to es-
tablish 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 [1925] A.C. 101. Morton J. in In re B.'s Settlement [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 Application 41/61 [1963] Ch. 315, 328, dis-
posed of the view held by Pennycuick J. in an unreported case, that the Act of 1925 only applied in relation to
questions as between parents relying as he did on In re Thain [1926] Ch. 676 and In re Carroll [1931] 1 K.B.
317. The Lord Justice
[1970] A.C. 668 Page 700

dealt very fully with the history of the Chancery jurisdiction and concluded that the Guardianship of Infants
Act, 1925, "introduced no change in the law" except so far as the claims of the mother were concerned. He
very clearly and accurately stated the position when he said ([1963] Ch. 315, 329):
"But I would respectfully point out that there can only be one 'first and paramount consideration,' and other considera-
tions 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 contention for the appellants as to the princi-
ples which the learned judge ought to have applied is not well founded.

In arriving at his decision the learned judge accepted as a general proposition that it his 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 straitjacket 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 paramount consideration. The judge referred with approval to the observations of Danckwerts L.J. in
In re Adoption Application 41/61 already quoted and, in my view, he correctly applied those principles in arriv-
ing at his judgment.

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 resi-
dent in this country, it was argued that in the interests of "committee" the court ought not to exercise that ju-
risdiction 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 jurisdic-
tion 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 committee is stated by Dicey, Conflict of
Laws, 8th ed. (1967), rule 52, p. 397:
"A custody order made by a foreign court does not prevent the court from making such custody orders in England in re-
spect of the infant as, having regard to his welfare, it thinks fit."
(see also Cheshire, Private International Law, 7th ed. (1965), p. 387). The basis of the doctrine of committee
is that there has been an order by a
[1970] A.C. 668 Page 701

foreign court and that the English court will be constrained on the ground of committee to do nothing to con-
flict with that court's order. But there is no case reported where "committee" has operated in the case of a for-
eign 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 [1940] Ch. 54). National status is merely one of the factors which the judge in exercising
his discretion will take into consideration. This the learned judge has done and there is, in my view, no
ground for criticism of his judgment in this respect.

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 ar-
rived at the same conclusion 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 re-
quire great sympathy and understanding on the part of his parents. He thought that the mother would be
helpful and loving. He was, however, doubtful about the father's capacity to help in the adjustment process
which might be long and difficult. Letters which the father wrote to the foster mother relating to a matter unre-
lated to this case gave the impression of crudity and boorishness. The evidence before the judge confirmed
this impression. In these circumstances the judge was impelled to the conclusion:
"It is with regret that I must state that it appears clear to me that the parents would be quite unable to cope with the
problems of adjustment or with consequential maladjustment and suffering and that the father's character would in-
flame 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 contin-
uously since July, 1961, with the other respondents, a solicitor and his wife to whom I shall refer as the foster
parents. The appellants are the 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 par-
ents having appealed, the Court of
[1970] A.C. 668 Page 702

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 ques-
tion 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 juris-
diction 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 courts were in law bound to presume that the welfare of
the child was best served by allowing him to live with his parents unless it was shown that it was not for his
welfare to do so because of their conduct, character or station in life. 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 para-
mount and governing consideration was the welfare of the child and that the claim of natural parents, al-
though often of great weight and cogency and often conclusive, had to be regarded in conjunction with all
other relevant factors and had to yield if, in the end, the welfare of the child so required.

The question of law under discussion is therefore whether there now is such a presumption as that con-
tended for by the appellants, or whether the correct process of adjudication is, instead, to consider all mate-
rial 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 par-
ents 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 Reg. v. Clarke (1857) 7 E. & B. 186, 198: "There is an admitted
qualification on the right of the father or guardian, if he be grossly immoral, or if he wishes to have the child
for any unlawful purpose." It would seem, however, that the case had to be bad indeed before the common
law courts would intervene. With a father claiming custody, the welfare of the child as a test in itself was gen-
erally 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
[1970] A.C. 668 Page 703

appears very clearly from the decision of Sir James Knight Bruce in the Vice-Chancellor's Court in In re Fynn,
2 De G. & Sm. 457, 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 - that is
not as a judge sitting in court - he would have interfered with the father's power. But as a judge he had to re-
gard the limits of his court's jurisdiction; and this is how he described those limits, at p. 474:

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

And then a little later the Vice-Chancellor continued, at p. 474:

 "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 shown himself to be a person of
such a description, or is placed in such a position, as to render it not merely better for the children, but essential to their
safety or to their welfare, in some very serious and important respect, that his rights should be treated as lost or sus-
pended - 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 in-
dicate 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, 24 Ch. D. 317, the Court of Appeal did not, either in its reasoning or its decision, demon-
strate any appreciable enlargement in the attitude of the law. This appears from the following excerpts, from
the judgment of Bowen L.J., at p. 337:
"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 jurisdic-
tion over the infant by way of interference with the father. It is not the benefit to the infant as

[1970] A.C. 668 Page 704

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 dearly not exercising a dis-
cretion at all, but a wicked or cruel caprice, or where he is endeavoring to withdraw from the protection of the court,
which is entrusted with such protection by law, the custody of the infant, as a rule this court does not and cannot inter-
fere, because it cannot do so successfully, or I should rather say because it cannot do so with the certainty that its do-
ing so would not be attended with far greater injury both to the infant itself and also to general social life."

And finally, at p. 338:

"As soon as it becomes obvious that the rights of the family are being abused to the detriment of the interests of the in-
fant, then the father shows that he is no longer the natural guardian - that he has 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 in-
terests of his infant than 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 sig-
nificant in the importance now attached to the question of welfare. Thus we find this, at p. 148:
"The duty of the court is, in our judgment, to leave the child alone, unless the court is satisfied that it is for the welfare of
the child that some other course should be taken. The dominant matter for the consideration of the court is the welfare
of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word wel-
fare 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 15, who was in the charge of a lady who kept a
home at Weymouth. The proceedings had been instituted by the mother's application for a habeas corpus
and they exemplify the assumption by the Queen's Bench Division, under section 20 (10) of the Judicature
Act, 1873, of the former Chancery jurisdiction in relation to the custody of infants. But it is on the present is-
sue that the judgments of the Court
[1970] A.C. 668 Page 705

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, 2 De G.
& Sm. 457, 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 Guardianship 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 judgment 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 wel-
fare of the child. In this connection I may leave the following excerpts from the judgments to speak for them-
selves, 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 (Infants), Lord Esher M.R. proceeded thus
([1893] 2 Q.B. 232, 243):
"The court has to consider, therefore, the whole of the circumstances of the case, the position of the parent, the posi-
tion 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 happi-
ness of the child. Prima facie it would not be for the welfare of a child to be taken away from its natural parent and
given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking,
the best place for a child is with its parent. If a child is brought up, as one may say, from its mother's lap in one form of
religion, it would not, I should say, be for its happiness and welfare that a stranger should take it away in order to alter
its religious views. Again, it cannot be merely because the parent is poor and the person who seeks to have the pos-
session of the child as against the parent is rich, that, without regard to any other consideration, to the natural rights
and feelings of the parent, or the feelings and views that have been introduced into the heart and mind of the child, the
child ought to be taken away from its parent merely because its pecuniary position will be thereby bettered. No wise
man would entertain such suggestions as these. As Lindley L.J. well pointed out in the case of In re McGrath (Infants),
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, dero-
gate 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."

[1970] A.C. 668 Page 706

Then Kay L.J., after referring to what Lord Eldon L.C. had observed in De Manneville v. De Manneville (1804)
10 Ves. 52, said, at p. 248:
"This statement of the jurisdiction shows that arising as it does from the power of the Crown delegated to the Court of
Chancery, it is essentially a parental jurisdiction, and that description of it involves that the main consideration to be
acted upon in its exercise is the benefit or welfare of the child. Again, the term 'welfare' in this connection must be read
in its largest possible sense, that is to say, as meaning that every circumstance must be taken into consideration, and
the court must do what under the circumstances a wise parent acting for the true interests of the child would or ought to
do. It is impossible to give a closer definition of the duty of the court in the exercise of this jurisdiction."

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

 "I cannot doubt that the court has jurisdiction in this case to enable it to say that under the circumstances it would not
be wise or for the interest of the child, but would be contrary to the interest and welfare of the child, 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 p. 253:
"Considering her age, and the short time she can be kept away from the institution where she is being happily brought
up, and wishes to remain, I think that, if we compelled her to leave, and handed her over to her mother, we should not
be acting for the true 'welfare' of the child in the large sense in which the term was used by Lindley L.J., in his judgment
in the case of In re McGrath (Infants), to which I was a party."

That brings me to the case of In re O'Hara [1900] 2 I.R. 232, a decision of the Irish Court of Appeal (Lord
Ashbourne C., FitzGibbon and Holmes L.JJ.). There a girl of 11 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 [1893] 2 Q.B. 232, 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."

That accords with what I may call the welfare test, but in a later passage FitzGibbon L.J. went on to say, at
pp. 240-241:
[1970] A.C. 668 Page 707

"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 parent.'"

In that passage FitzGibbon L.J. appears to be harking back to the earlier and more restrictive view of the ju-
risdiction, 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 ele-
ments exist, which involve the risk of moral or material injury to the child, such as the disturbance of religious convic-
tions or of settled affections, or the endurance of hardship or destitution with a parent, as contrasted with solid advan-
tages 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 inno-
cent, 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 Ash-
bourne 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 Presbyteri-
ans. 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 lo 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

[1970] A.C. 668 Page 708

be taken into account, then, according to the practice of our courts, the wishes of the father prevail. But that rule is sub-
ject 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 ac-
cepted, 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 de-
cisions, 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."

This passage, while marking a substantial qualification of the father's common law rights, is not expressly di-
rected to the claim of one or both parents for custody. But Viscount Cave spoke in general terms, and it is no-
torious 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 ex-
tend to a parent's claim for custody.

At this point it will be convenient to note some of the legislative changes which occurred during the period
covered by the authorities I have mentioned, for Parliament as well as the courts had been responding to
what 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 seven, an order for custody.
This measure was replaced by the Custody of Infants Act, 1873, which (a) in effect granted the same form of
relief but with the age limit 16 instead of seven; and (b) enacted that an agreement in a separation deed pro-
viding 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, car-
ried 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 appli-
cation 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 par-
ent, 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, ..."

[1970] A.C. 668 Page 709

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 circumstances satisfying the court that the parent was unmindful of his parental
duties, the court
"... shall not make an order for the delivery of the child to the parent, unless the parent has satisfied the court that, hav-
ing 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 qualifi-
cation 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 can-
vassed 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 [1925] A.C. 101. 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 es-
tablish 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:"

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 paramount consideration, and shall not take into consideration whether from any
other point of view the claim of the father, or any right at common law possessed by the father, in respect of such cus-
tody, 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 declara-
tory of the existing law: see In re Thain [1926] Ch. 676, per Lord Hanworth M.R. at p. 689 and Sargant L.J.,
at p. 691; and McKee v. McKee [1951] A.C. 352, P.C. per Lord Simonds, at p. 366. There have been different
views about this, but whether the proposition is wholly accurate or not, the true construction of the section it-
self has to be considered as a matter of prime importance.

Two questions arise here. First, is the section to be read as referring

[1970] A.C. 668 Page 710

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 - problems 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 im-
ply 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, 463, per Viscount Simonds. Having read the whole statute, I cannot find this important ear-
lier 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, 388: "'Any' is a word with a very wide meaning, and prima facie the use of it excludes limi-
tation."

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

The second question of construction is as to the scope and meaning of the words "... shall regard the welfare
of the infant as the first and paramount consideration." Reading these words in their ordinary significance,
and relating them to the various classes of proceedings which the section has already mentioned, it seems to
me that they must mean more than that the child's welfare is to be treated as the top item in a list of items
relevant to the matter in question. I think they connote a process whereby, when all
[1970] A.C. 668 Page 711

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 im-
portance 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 [1926] Ch. 676 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 ac-
cepted 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 headnote is so worded
as to suggest that as the father was an unimpeachable parent his parental right stood first and an order had
to be made in his favour. On its face this, if a true reflection of the ratio, is against the first view I have formed
on the wording on section 1. In my opinion, however, the head-note is misleading in this respect. The true ra-
tio is contained in the last paragraph of Eve J.'s judgment which reads thus, at p. 684:
"As I said at the commencement of my judgment, I am satisfied that the child will be as happy and well cared for in the
one home as the other, and inasmuch as the rule laid down for my guidance in the exercise of this responsible jurisdic-
tion does not state that the welfare of the infant is to be the sole consideration but the paramount consideration, it nec-
essarily contemplates the existence of other conditions, and amongst these the wishes of an unimpeachable parent un-
doubtedly 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 1.

In re Carroll [1931] 1 K.B. 317 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 Protes-
tant. The mother, however, after changing her mind on more than one occasion, came to the conclusion that
she
[1970] A.C. 668 Page 712

wanted the child to go to another society where she would be brought up a Roman Catholic. Charles J. and a
Divisional Court refused to accede to the mother's wishes. It is clear from the judgment of Lord Hewart 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 vas best served by not com-
plying with her wishes. The Court of Appeal (Scrutton, Greer and Slesser L.JJ.) reversed 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 ma-
jority 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. Scrutton L.J. said, at p. 335:
"In the present case unless the mother is of so bad a character that her wishes as to religion and education may be dis-
regarded, a contention which was expressly disclaimed by Sir Thomas Inskip, in my view the mother has a legal right to
require that the child shall be brought up in her religion in which the child has been baptized."

Then he added when speaking of the court, at p. 336:

"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 re-
ligious education of the parent of a child too young to have intelligent views of its own. The responsibility for religious
views is that of the parent, not of the court. The court should not sanction any proposal excellent in itself which does
not give effect to the parent's views on education religious and secular."

And later he observed, at p. 337:

"The Lord Chief Justice was apparently of opinion that there had been a change of thought and attitude in the last 40
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 ne-
glected his or her duty as to cease to deserve consideration, ..."

Towards the conclusion of his dissenting judgment Greer L.J., referring to the judgment of Lord Hewart C.J.,
said, at p. 348:
"It was said in the argument that the judgment of the Divisional Court delivered by the Lord Chief Justice was based on
a misconstruction of the 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

[1970] A.C. 668 Page 713

was attached to the welfare of the child, and the Act of 1925 was pointed to as an illustration of the modification in one
 instance of what at common law were the strict rights of a male parent. As the Lord Chief Justice says: 'There seems to
have been between ... 1891 and 1926 a certain development of thought in this matter.'"

Slesser L.J. seems to have been prepared to base his view in favour of the mother on the judgments in Gyn-
gall [1893] 2 Q.B. 232 and O'Hara [1900] 2 I.R. 232, but if I read his own judgment aright he, as well as
Scrutton L.J., regarded the mother as having a prevailing right which was not affected by section 1 of the Act
of 1925.

My Lords, if the principles of law on which In re Carroll [1931] 1 K.B. 317 appears to have been decided by
the majority of the Court of Appeal are sound they cannot but conflict with the meaning my first view would
ascribe to the language of section 1. But in my opinion this decision can no longer be taken as authoritative.
It disregarded the relevance of section 1 and looked on the rights of the mother as absolute rather than quali-
fied in the sense that they only became effectual if in accord with the best interests of the child's welfare. And
further - and whatever may be said of the decision on the merits - its approach to the problem seems hard to
reconcile with that which commended itself to your Lordships' House in Ward v. Laverty [1925] A.C. 101.

The effect of section 1 of the Act of 1925 was again considered in the Court of Appeal in In re Adoption Appli-
cation 41/61 [1963] Ch. 315, and there Danckwerts L.J. had this to say on the subject at p. 329:
"... I would respectfully point out that there can only be one 'first and paramount consideration,' and other considera-
tions 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."

When that case went back to Wilberforce J. he had to consider the import of the words from section 7 (1) (b)
of the Adoption Act, 1958 - "that the order if made shall be for the welfare of the infant" - and what he said will
be found in In re Adoption Application 41/61 (No. 2) [1964] Ch. 48, 53. The passage reads:
"The section, apart from a particular direction given in subsection (2), does not prescribe what matters have to be con-
sidered in this connection, so that it would seem to me that the court must take into account all the merits and demerits
of the alternative proposals as they seem likely to bear upon the child's welfare: not limiting itself to purely material fac-
tors, but considering, as they may bear upon the welfare of the infant, such matters as the natural ties of blood and
family relationship. The tie (if such is shown to exist) between the child and his natural father, (or any other relative)
may properly be regarded in this connection, not on the basis that the person

[1970] A.C. 668 Page 714

concerned has a claim which he has a right to have satisfied, but, if at all, and to the extent that, the conclusion can be
drawn that the child will benefit from the recognition of this tie."

Now that passage was not directed to section 1 of the Act of 1925, but it seems to me to be an apt descrip-
tion of the sort of process which section 1 enjoins, for it too calls for an inquiry as to what will be for the in-
fant's welfare. If such is the true nature of the inquiry, it goes far to confirm my first view of the construction to
be placed on the words "... the court shall regard the welfare of the infant as the first and paramount consid-
eration ..."; and that means an end of any presumption of law respecting parental rights and wishes so far as
the test of welfare is concerned.

The attention of your Lordships was also drawn to the decision of this House in In re K. (Infants) [1965] A.C.
201. I do not think what was said in that appeal offers much guidance on the present issue. It is true that the
judgment of Knight Bruce V.-C. in In re Fynn, 2 De G. & Sm. 457 was cited as a leading authority, but what
was in question was the nature of wardship proceedings and the opinions expressed were not intended to
bear on the issue now before your Lordships.
Mr. Alexander, for the appellants, supported his main submission with two further points which, without disre-
spect to his full and careful argument, may be regarded as subsidiary and dealt with briefly. The first was
based on the requirement, now provided for by sections 4 and 5 of the Adoption Act, 1958, which makes the
consent of the parents a condition precedent to the granting of an adoption order. The wardship jurisdiction, it
was submitted, ought not to be exercised so as to create a de facto adoption against the wishes of unim-
peachable parents when no legal atoption order could have been made without their consent. The short and,
as I see it, sufficient answer to this is that, however alike they may be in their apparent effect, wardship or-
ders as to custody and adoption orders are so different in concept, nature and legal consequences that one
cannot validly argue from either of these jurisdictions to the other. The second of these supporting points
was, in essence, a plea for committee. As we have here no order of a foreign court this plea is not really
open. It is plain from such authorities as In re B.'s Settlement [1940] Ch. 54, and McKee v. McKee [1951]
A.C. 352, that the existence of such an order will not oust the jurisdiction or preclude the application of sec-
tion 1 of the Act of 1925, and it is no less plain that where there is such an order its relevant provisions
should be carefully assessed and taken into account, and that, foreign order or no foreign order, the law of a
foreign home may have to be examined if relevant to the welfare of the child should he be returned there. But
these considerations do not affect the present issue and this point, like the first, does nothing, in my opinion,
to advance the appellants' case.

For these reasons I conclude that my first view construction of section 1 should stand, and that the appel-
lants' proposition of law is ill-founded and must fail. The consequences of this present little difficulty, but be-
fore coming to them I would add in summary form certain views and comments on the ground surveyed in
the hope that they may serve to restrict misunderstanding in this field. These may be enumerated as follows:
[1970] A.C. 668 Page 715

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

2. In applying section 1, the rights and wishes of parents, whether unimpeachable or other-
wise, must be assessed and weighed in their bearing on the welfare of the child in conjunction
with all other factors relevant to that issue.

3. While there is now no rule of law that the rights and wishes of unimpeachable parents
must prevail over other considerations, such rights and wishes, recognised as they are by na-
ture and society, can be capable of ministering to the total welfare of the child in a special way,
and must therefore preponderate in many cases. The parental rights, however, remain qualified
and not absolute for the purposes of the investigation, the broad nature of which is still as de-
scribed in the fourth of the principles enunciated by FitzGibbon L.J. in In re O'Hara [1900] 2 I.R.
232, 240.

4. Some of the authorities convey the impression that the upset caused to a child by a
change of custody is transient and a matter of small importance. For all I know that may have
been true in the cases containing dicta to that effect. But I think a growing experience has
shown that it is not always so and that serious harm even to young children may, on occasion,
be caused by such a change. I do not suggest that the difficulties of this subject can be re-
solved by purely theoretical considerations, or that they need to be left entirely to expert opin-
ion. But a child's future happiness and sense of security are always important factors and the
effects of a change of custody will often be worthy of the close and anxious attention which they
undoubtedly received in this case.

The conclusions I have reached on the appellants' proposition of law make it unnecessary to enter upon a re-
view of the facts and circumstances which are material here. When the evidence and the judgments are ex-
amined the result is only to confirm the propriety of Mr. Alexander's concession. The learned judge applied
the appropriate principles of law and I can find no ground for interfering with the manner in which he exer-
cised his discretion.
On these grounds I am of opinion that the appeal fails and should be dismissed.

LORD UPJOHN. My Lords, this appeal is concerned with wardship proceedings affecting the future custody,
care and control of the infant, who was born on May 18, 1958.

The appellants are his lawful and natural parents who are nationals of and resident in Spain.

The first respondent is the infant himself, who appears by the Official Solicitor, and the second and third re-
spondents are the foster parents (for such they were originally) in whose custody, care and control the infant
is at present.

The whole issue in the case is whether the infant should remain with the foster parents or should be returned
to the parents in Spain.

Ungoed-Thomas J. in proceedings of some complexity has held that the infant should remain with the foster
parents until further order and in this decision he has been upheld by the Court of Appeal (Harman, Salmon
and Winn L.JJ.). The learned judge's order is attacked by the appellants
[1970] A.C. 668 Page 716

on the ground that he acted upon wrong principles in reaching his decision; if, contrary to their submission,
he acted on the right principles, then the appellants concede that they cannot submit that he wrongly exer-
cised his discretion. So I can be brief in my recital of the relevant facts and surrounding circumstances which
have been very fully dealt with by Ungoed-Thomas J. in his judgments in 1965 and 1967 and by Harman L.J.
in the Court of Appeal.

In the autumn of 1957 the parents, who had lived in somewhat uncomfortable conditions in a poor part of
Madrid, came over to England to better their circumstances, and they entered into domestic service in
Northamptonshire shire. They spoke virtually no English and when the infant was born in hospital the foster
mother (as she was to become), a fluent Spanish speaker, then living with her husband and family in the
same county, where the husband carried on a practice as a solicitor, was called in to help. The mother was
found to be suffering from some infectious ailment so could not look after the infant. Though having no con-
nection whatever with the parents, the foster mother, out of the kindness of her heart (and she already had a
large young family to look after), took the infant and looked after it when it was four days old. She and her
husband were formally appointed foster parents under section 1 of the Children Act, 1948, by the Northamp-
tonshire County Council. Then in November, 1958, the foster parents moved to Oxted in the county of Surrey
with their family and the infant, and the husband carried on his practice there.

In March, 1959, the infant was returned to his parents, who had moved to near-by Caterham where the foster
parents found them some employment, but the parents returned with the infant to Spain in 1960 and all con-
nection with the foster parents seemed at an end though, naturally enough, the mother and foster mother
had got to know one another very well in the meantime.

It appears that in the summer of 1961 the infant was poorly and suffering from the heat of the Spanish sum-
mer and by arrangement, though the foster parents were reluctant to accept the responsibility, the infant was
returned to them in July, 1961. As the learned judge held, this was to be a temporary visit though of indefinite
duration. In October, 1961, the foster parents were again appointed foster parents, this time by the Surrey
County Council.
At this time the plan was that the parents would come over to England to some employment which the foster
parents were going to find for them; but, for whatever reason, this did not materialise.

In the winter of 1961 to 1962 the parents went to Hamburg, again to improve their position. While there the
foster mother offered to pay for the mother to pay a visit to her son, but for some reason, unexplained, this
never took place. In February, 1963, the mother's mother, who had been looking after her other children in
Madrid, died, so the mother had to return there to look after them. The father returned to Spain in September,
1963.

Since then the material circumstances of the parents have greatly changed for the better. The father is now
in a secure position, being in permanent employment as a bricklayer with a substantial firm where he has an
exemplary character and should, in due course, receive promotion. The family are now living in good accom-
modation; as the learned judge said
[1970] A.C. 668 Page 717

in his judgment in 1967, "they now have a house in a modern housing estate with their own independent
piece of garden and five rooms," and the laurel school to which the infant would go if he returns to Spain is
modern and well equipped.

In the summer of 1963 there was some correspondence between the foster parents and the parents and be-
tween the parents and the children's officer of the county council, which culminated in a demand in Septem-
ber, 1963, by the mother for the return of the infant. This terminated the jurisdiction of the county council (un-
der the Children Act: see s. 1 (3)), who requested the foster parents to return the child. They countered by is-
suing a notice under section 3 (2) of the Adoption Act, 1958, of an intention to apply for an adoption order,
and the county council replied by issuing a summons on December 6, 1963, asking that the infant might be a
ward of court and seeking directions as to his custody, care and control. The parents and foster parents were
respondents to this summons. So far as I know, no proceedings were taken to adopt the infant, perhaps be-
cause of the obviously unsurmountable difficulty of obtaining parental consent. There followed protracted
proceedings.

Unhappily there were long delays in filing evidence, but the summons ultimately came before Un-
goed-Thomas J. in July, 1965. There was a full hearing before him on affidavit evidence, but the parents
were not represented at the hearing. However, the judge had before him a lengthy written statement on be-
half of the parents by a Spanish lawyer, and counsel for the county council, as the judge said, "put forward all
the arguments on behalf of the parents."

On July 22, 1965, the learned judge delivered judgment and ordered that the care and control of the infant be
committed to the foster parents until further order but that he be brought up in the Roman Catholic religion,
his parents being of that faith. He further directed that the infant should be brought up in the knowledge and
recognition of his parents and they were to have all reasonable access to the infant when they or either of
them should be in England. The parents were informed of that decision by the master.

There the matter remained (save that in 1966, on the application of the county council, they ceased to be
parties and the infant was made plaintiff in their place) until January, 1967, when the foster parents issued a
summons asking that the infant might henceforth be brought up in the faith of the Church of England. My
Lords, it is, as I think, a sad commentary upon the attitude of some members of the Protestant and Roman
Catholic faiths that in so many of the reported cases over the last hundred years the real contest has been as
to the religious upbringing of the infant and orders have been made with scant regard to the true welfare of
the infant; and I shall have to mention some of them at a later stage of this opinion. But in this case, as I un-
derstand it, the application was based not on any doctrinal bias in favour of one faith rather than the other but
upon the difficulty as a practical matter of obtaining suitable general education as well as religious instruction
in the Roman Catholic faith for an infant who comes from an otherwise Protestant family (as the foster par-
ents are) and it was solely for the benefit of his general education that the change was proposed to be made.

This, however, brought matters to a head, and on May 10, 1967, the
[1970] A.C. 668 Page 718

parents issued a summons asking for custody, care and control of the infant.

This summons together with the foster parents' summons of January, 1967, came before the learned judge in
July, 1967, and lasted for several days The parents, the foster parents, a psychiatrist and others were exam-
ined and cross-examined on their affidavits and, on July 31, he delivered a very full and detailed judgment
giving his reasons for refusing to make any order on either summons, so that his order of July 22, 1965, re-
mained in force.

The parents appealed from this order, but on July 5, 1968, the Court of Appeal dismissed it from which dis-
missal your Lordships gave leave to appeal.

The parents attack the order of Ungoed-Thomas J. upon the footing that he erred in principle in refusing to
order a return of the infant to his lawful and natural parents in Spain but concede that if he exercised his juris-
diction upon the right principles they cannot challenge his exercise of the discretion vested in him.

So this case is concerned with a conflict between, on the one hand, the natural and lawful parents and, on
the other hand, foster parents who are strangers in blood and in law, though they have de facto had care and
control of the infant for all of his now 10½ years of life except for the period of March, 1959, to July, 1961.

Whatever may be said as to the condition of the parents before they went to Hamburg there is no dispute
that now and at the time of the hearing in 1967 the parents are unimpeachable in the sense that they are not
in any way unfitted to have care and control of an infant moreover, they now have a perfectly suitable home
and surroundings in Spain where they are able and willing to look after the infant and provide properly for his
future. Counsel for the parents in an interesting argument submits three propositions:

First, he says that although the Crown as parens patriae has a right and duty to interfere with a parent's natu-
ral right of custody and control if the welfare of the child demands it, yet there is a strong presumption that
the welfare of a child is best served by his living with his parents. So strong is this presumption that the court
(which, it is common ground, must act judicially in the matter) must order that the child be with its parents un-
less they fall within the category described in the words of Knight Bruce V.-C. in In re Fynn, 2 De G. & Sm.
457, 474, that the court ...

"must be satisfied ... that the father has so conducted himself, or has shown himself to be a person of such a descrip-
tion, or is placed in such a position, as to render it not merely better for the children, but essential to their safety or to
their welfare, in some very serious and important respect, that his rights should be treated as lost or suspended -
should be superseded or interfered with. If the word 'essential' is too strong an expression, it is not much too strong."

If that represent the law to-day, as counsel submits, it is not in doubt that upon the facts of this case the ap-
pellants must succeed, for their "rights" cannot be treated as lost or superseded. Counsel puts the same
point in a rather different way: he submits that the presumption is really one of law, so that in the case of par-
ents not falling within the In re Fynn category the
[1970] A.C. 668 Page 719

court must order the return of the child to its parents regardless of all other circumstances affecting its wel-
fare.

Secondly, he submits that in the circumstances of this case the judge's order amounts in effect to an adop-
tion order with only small differences, made without the consent of the parents, and this would be unfair on
the parents and frustrate the intention of Parliament expressed in the Adoption Act, 1958, which makes the
consent of the parents necessary unless it can be shown that such consent has been unreasonably withheld.

Thirdly, he submits that, where the parents are of foreign nationality residing in their native country, although
the courts here have jurisdiction over foreign children resident here (for my part I ignore altogether the fact
that by the accident of his birth here the infant happens to be a British subject) nevertheless, in the interests
of committee between States, where an infant has been sent here temporarily in the first place our courts
ought not to assume jurisdiction in cases where there is no inter parental dispute, but should in response to
the parents' request hand back the infant to them. If there is some dispute as to the custody of the infant as
between the parents and a third party then that is more properly dealt with by the courts of the place where
the parents reside and to which they owe allegiance.

My Lords, as there seems to me to be no substance in counsel's second or third submissions I propose to

deal with them shortly. As to the second submission, that the judge's order amounts to an adoption order, I
must confess I do not understand this argument. An adoption order, if made, is the antithesis of an order
made in wardship proceedings. In the former case the rights and obligations of the true parents in relation to
the infant are extinguished and the adopted child stands in relation to the adopter exclusively in the position
of a child born to the adopter in wedlock (see section 13 of the Adoption Act, 1958). The family ties with the
true parents are cut completely and for ever; the adopting parents stand for all purposes in the position of the
true parents. In the normal case after the adoption the infant does not see or have any communication with
his true parents; indeed, again in the normal case, the true parents and the adopting parents are and remain
in total ignominious of one another's identity and the infant, if adopted as usual in earliest infancy, remains
wholly ignorant of his true parents.

How different is an order relating to custody. There is nothing permanent about such an order; it can be var-
ied at any time. There is no severance of the infant's ties with the true parents who remain the parents for all
purposes. If an order is made giving custody to a third party the only parental duty thereby assumed (subject,
of course, to the terms of the order) is to bring up the infant as a good parent would while in his or her care.
At any time the custody of the infant may be recommitted by the court in the exercise of its discretion to the
parents, and in the meantime the court may give directions as to access by the parents, and the order of
July, 1965, affords a very good example of this. At a later stage, too, when the infant is of an age to express
an opinion to which the judge would no doubt give sympathetic consideration, the judge might, if he thought
fit, and the infant so desired, order his return to his parents in Spain and at the same time the judge might
bring the wardship proceedings to an end.
[1970] A.C. 668 Page 720

As to the third proposition, this proceeds upon the footing that in the case of foreign children temporarily resi-
dent here the court should not exercise its discretionary powers but hand them over to the parents of foreign
nationality resident abroad without more ado. I can well understand that the courts acting on behalf of the
Crown might have disclaimed any jurisdiction as parens patriae over the children of foreign nationals tempo-
rarily residing here, but they have not done so; our courts do assume a parental jurisdiction over such chil-
dren, and counsel for the appellants does not contend to the contrary in the face of such well-established au-
thorities as Hope v. Hope, 4 De G.M. & G. 328; Johnstone v. Beattie (1843) 10 Cl. & Fin. 42 and In re D.
[1943] Ch. 305. That is really sufficient to dispose of the point, for if the court does exercise its powers over
foreign children it must go into the facts and hand over the children to the foreign parents resident abroad
only if in the proper exercise of its discretion it deems that to be the proper course. No question of comity, as
that word is ordinarily understood in jurisprudence, arises in this case for there is no order of a Spanish court
in existence and so nothing to guide the courts of this country. Our courts have the plain duty to consider the
application on its merits before them.
But many authorities make it plain that, even if there were in existence some order of a foreign court so that a
question of "committee" arises, yet in the case of custody of infants our courts have an independent power
and duty to investigate the facts and make an order based on English principles notwithstanding that foreign
order. See (for example) In re B.'s Settlement [1940] Ch. 54, 63 and McKee v. McKee [1951] A.C. 352,
though the court will pay proper regard to the order of the foreign court In re E. (D.) (An Infant) [1967] Ch.
761.

But where there has been something in the nature of kidnapping, as it is usually called, a court in this country
after investigating the facts may decide that a foreign court which is already seized of the matter is the proper
forum to decide all questions relating to the infant's welfare: see for example In re H. (Infants) [1966] 1
W.L.R. 381.

At one stage of his argument counsel tried to convince your Lordships that this was a case of constructive
kidnapping, as he described it, because the visit here was of a temporary nature abut, with all respect, that
was, on the facts, a hopeless argument. My Lords, this point, too, seems to me misconceived.

So I return to counsel's first proposition.

My Lords, the whole question is whether in a case between parents, on the one side, and strangers or more
remote relatives of the infant, on the other, the principle stated in In re Fynn, 2 De G. & Sm. 457, as to the
state of affairs to be established before the court will interfere still represents the law or, at all events, the
practice to be followed by the court in infancy matters today.

It is quite clear that the jurisdiction of the Chancery Court exercised on behalf of the Crown as parens patriae
was quite independent of the common law where the rights of the father over the custody, care and control of
his children were absolute unless by his misconduct he had wholly forfeited those rights. The wife was a
mere chattel and for all practical relevant purposes her identity and, of course, her property merged in that of
her
[1970] A.C. 668 Page 721

husband. But whereas equity had done much to protect the wife's property against the strictness of the com-
mon law by inventing such doctrines as the separate use, and the restraint upon anticipation, yet in respect
of infancy matters, while recognising the dominant consideration of the welfare of the child, in practice in the
presence of the early Victorian pater familias, equity too dutifully followed the law.

Thus in 1843 in Johnstone v. Beattie, 10 Cl. & Fin. 42, we find Lord Cottenham, Lord Campbell and Lord
Langdale (who had had much experience in the Chancery Court) all pointing out that the benefit and interest
of the infant was the determinative consideration. Lord Campbell said, at p. 122: "The benefit of the infant,
which is the foundation of the jurisdiction, must be the test of its right exercise." But the infant in that case
was an orphan.

In 1861, in Stuart v. Morgues of Bute (1861) 9 H.L.Cas. 440, where again both parents were dead, Lord
Campbell approved of his words I have just quoted, and Lord Cranworth said, at p. 469: "there is but one ob-
ject which ought to be kept strictly in view, and that is, the interest of the infant." And to the same effect was
Lord Chelmsford.

But In re Fynn, followed in 1859 by In re Curtis, 28 L.J.Ch. 458, continued to dictate the law or practice be-
fore the Chancery Court would interfere in the presence of the father.
But in the 1870's and 1880's the married woman was emerging from her chattel existence by reason of the
Married Women's Property Acts and, apart from religion, the tide began to turn against the power and author-
ity of the father, but only gradually, for in 1883 we find the case, which I can only describe as dreadful, of In
re Agar-Ellis, 24 Ch.D. 317 where the Court of Appeal permitted a monstrously unreasonable father to im-
pose upon his daughter of 17 much unnecessary hardship in the name of his religious faith.

Brett M.R. plainly proceeded upon pure common law principles (for reasons which he tried to explain ten
years later in Reg. v. Gyngall [1893] 2 Q.B. 232, 241) and Cotton and Brown L.JJ. in effect followed the prin-
ciples of In re Fynn and held that the father's conduct was not such as to warrant interference by the court.

In 1886 the Guardianship of Infants Act made a notable departure from the existing law by putting the rights
of the mother on an equality with those of the father in relation to the custody of infants, and the tide then ran
more strongly against the father. Thus, in In re McGrath (Infants) [1893] 1 Ch. 143 it was stressed that the
dominant matter for the consideration of the court was the welfare of the infants in its widest sense though
that was, again, a case of orphans.

There followed two cases in the Court of Appeal of some importance in the development of the law and prac-
tice. In Reg. v. Gyngall [1893] 2 Q.B. 232, where the mother was a party but where the importance of the
consideration of the welfare of the child was emphasised though some lip service was paid to In re Fynn, A.
L. Smith L.J. said, at p. 253:
"Considering her age, and the short time she can be kept away from the institution where she is being happily brought
up, and wishes to remain, I think that, if we compelled her to leave, and handed

[1970] A.C. 668 Page 722

her over to her mother, we should not be acting for the true 'welfare' of the child in the large sense in which the term
was used by Lindley L.J. in his judgment in the case of In re McGrath to which I was a party."

Then in In re A. & B. (Infants) [1897] 1 Ch. 786 the same court stressed the equality of the mother with the
father, but Lindley L.J. pointed out (at p. 790) that it did not much if at all diminish the rights of fathers except
as to mothers. Lopes L.J. said, at p. 792:
"Now, what has the learned judge to do when he is asked to exercise his discretion under this Act? I take it there are
three things he must look at. He must look primarily, I am entitled to say, to the welfare of the infant, then to the conduct
of the parents, and then take into consideration the wishes - not of the father, which, it is suggested to us, are para-
mount - 'as well of the mother as of the father'."

That is the first mention which I have been able to find of the use in this connection of the rather curious word
"paramount."

These cases enabled FitzGibbon L.J. in In re O'Hara [1900] 2 I.R. 232 to state four principles as well estab-
lished of which I need only quote the fourth, at p. 240:
"4, In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a
private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied
that the welfare of the child requires that the parental right should be suspended or superseded."

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

Lord Ashbourne C. and FitzGibbon L.J. himself, after expressing these broads principles, then dealt with the
facts on what I may call rather strict old-fashioned lines, and for my part I much prefer the more modern ap-
proach of Holmes L.J. in that case who examined the facts in detail and then dealt with it in the exercise of
his discretion. He rightly stressed the great importance of the period during which a child has been in the
care of a stranger in these words, at p. 253:
"No doubt, the period during which a child has been in the care of the stranger is always an important element in con-
sidering 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 a training him to earn his livelihood, and separation from whom would break up all the as-
sociations of his life, no court ought to sanction in his case a change of custody."

Of course he could not lay down, and I am sure did not intend to lay down, any proposition of law in this re-
spect; he only emphasised its importance when exercising a judicial discretion in these matters.

But these authorities are valuable as showing the gradual development of the law and practice in relation to
infants. They have developed, are developing and must, and no doubt will, continue to develop by reflecting
[1970] A.C. 668 Page 723

and adopting the changing views, as the years go by, of reasonable men and women, the parents of children,
on the proper treatment and methods of bringing up children; for after all that is the model which the judge
must emulate for, as pointed out in In re Fynn, he must act as the judicial reasonable parent.

In spite of this development of the law, in Rex v. New (1904) 20 T.L.R. 515 (another dreadful case) the claims
of a parent (in this case a mother of an illegitimate child) based largely on religious grounds were, as late as
1904, allowed to prevail so that a girl then aged 12 who had many years before been entrusted to admirable
and fond foster parents was thrown into a religious institution.

No later authority was cited to your Lordships until the year 1925, but it was fast being developed behind the
closed doors of the Chancery Division (the doors being closed to the public only in the best interests of the
infants themselves) and of this we have the best evidence in the two cases I am about to mention; for let me
remind your Lordships that Lord Cave was called to the Bar in 1880 and practiced in the Chancery Division
until he became a Law Lord in 1919, that Lord Warrington was a Chancery judge from 1904 until 1915, Sar-
gant L.J. from 1913 until 1923 and Eve J. from 1907.

So we find Lord Cave L.C. in Ward v. Laverty [1925] A.C. 101 in your Lordships' House on appeal from
Northern Ireland before the Guardianship of Infants Act, 1925 (which in any event was destined never to ap-
ply there) saying, at p. 108:
"It is the welfare of the children, which, according to rules which are now well accepted, forms the paramount consider-
ations 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 pass-
ing of the Guardianship of Infants Act, 1886, section 5 of which Act shows the modern feeling in these matters, the
greater stress is laid upon the welfare and happiness of the children. It is, of course, still true, as the learned counsel
who argued the case quite properly said, that a sufficient case must be made for going contrary to the father's wishes;
but, if such a case is made, then the courts have no hesitation in deciding upon the whole facts of the case."

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

Then, in In re Thain [1926] Ch. 676, Eve J. in the court of first instance and Lord Hanworth M.R. and War-
rington and Sargant L.JJ. all explained the law, apart altogether from the Guardianship of Infants Act, 1925. I
take the law as it had developed to be as stated by Eve J. in this passage, at p. 684:
"... inasmuch as the rule laid down for my guidance in the exercise of this responsible jurisdiction does not state that
the welfare of the infant is to be the sole consideration but the paramount consideration, it necessarily contemplates the
existence of other conditions, and amongst these the wishes of an unimpeachable parent undoubtedly stand first ..."
 [1970] A.C. 668 Page 724

That seems to me to dispose entirely of any idea that the principles of In re Fynn, 2 De G. & Sm. 457, re-
mained, after this further development of the law. But during argument it was suggested that the principles
stated in that case were resurrected by something that I said in In re K. (Infants) [1963] Ch. 381 and what
Lord Devlin said in that case on appeal [1965] A.C. 201, 240. I protest at such misuse of authority. That case
was in nowise concerned with the principles upon which as between parents and strangers a court acts; the
observations of Knight Bruce V.-C. in In re Fynn were relevant to the entirely different question whether in an
infancy matter the proceedings were judicial or administrative.

My Lords, Eve J. said that among other Considerations the wishes of an unimpeachable parent undoubtedly
stand first, and I believe, as I have said, that that represents the law. In a jurisdiction which can only be exer-
cised by the judge after full and anxious but broad consideration of all the relevant facts I do not want to split
hairs with other judges who have expressed it a little differently, but it seems to me that Danckwerts L.J. in In
re Adoption Application 41/61 [1963] Ch. 315, 329, and Wilberforce J. (as he then was) in the same applica-
tion, In re Adoption Application 41/61 (No. 2) [1964] Ch. 48, hardly did justice to the position of the natural
parent(s). The natural parents have a strong claim to have their wishes considered; first and principally, no
doubt, because normally it is part of the paramount consideration of the welfare of the infant that he should
be with them, but also because as the natural parents they have themselves a strong claim to have their
wishes considered as normally the proper persons to have the upbringing of the child they have brought into
the world. It is not, however, a question of the onus being on anyone to displace the wishes of the parents; it
is a matter for the judge, bearing in mind the rule as laid down by Eve J.

My Lords, the Guardianship of Infants Act, 1925, enshrined the view of the Chancery Courts. Section 1 is in
these terms:
"1. Where in any proceeding before any court (whether or not a court within the meaning of the Guardianship of Infants
Act, 1886) the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for
an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the
welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any
other point of view the claim of the father, or any right at common law possessed by the father, in respect of such cus-
tody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to
that of the father."

That Act now states the relevant law for all purposes.

It extended the Guardianship of Infants Act, 1886, in certain respects: first, it applied the principles of that Act
to all courts; secondly, it applied the principles to all proceedings in every court and that, in my opinion,
meant and meant quite plainly that while in In re A. and B. (Infants) [1897] 1 Ch. 786 it had been held that the
1886 Act virtually only applied between spouses, the principle laid down in the 1925 Act applied wherever the
custody of an infant is in issue and whoever are the parties; I can
[1970] A.C. 668 Page 725

give it no other meaning, and the fact that this extension of the law was not expressed in the long title as part
of its objects is quite irrelevant, for in this case the construction of the relevant section is clear and unambigu-
ous. That Act, with all respect to the appellants' argument, is finally conclusive that In re Fynn, 2 De G. & Sm.
457, no longer represents the law.

But in 1931, in deciding the case of In re Carroll [1931] 1 K.B. 317 the Court of Appeal, Scrutton and Slesser
L.JJ. (Greer L.J. dissenting) attempted to put back the clock 40 years. At first instance Charles J. exercised
his discretion and committed the custody of an illegitimate infant to a couple who wanted to adopt her rather
than put her into an institution as the mother wanted. In the Divisional Court Hewart C.J., with whom the
other members of that court agreed, said, at p. 324, "There seems to have been between these few years
1891 and 1926 a certain development of thought in this matter," as, of course, there had been. Greer L.J., at
p. 348, agreed with him.

Unhappily, in his judgment, Scrutton L.J. never even mentioned the leading case of In re Thicken [1926] Ch.
676 of that same court; he thought that In re Agar-Ellis and In re Curtis, 28 L.J.Ch. 458, represented the law
and he could see no change in the last 40 years. Slesser L.J. mentioned In re Thain twice but not in a signifi-
cant way. He reviewed Reg. v. Gyngall and In re O'Hara and other cases, but held, as Scrutton L.J. had
done, that the 1925 Act only applied between spouses and that in the case of an illegitimate child it could not
affect the principles laid down in Barnardo v. McHugh [1891] A.C. 388, though that case in your Lordships'
House had done no more than state, as Lord Herschell said, at p. 398, that the wishes of the parent should
be followed unless detrimental to the benefit of the child.

My Lords, in my opinionIn re Carroll was wrongly decided and does not represent the law or the practice to-
day.

In the first place, it was wrong not to recognise the development of the law and so to apply the Act of 1925 or
the principles of In re Thain. Secondly, I am unable to understand upon what principle the majority of the
court reached the conclusion that Charles J. had wrongly exercised his discretion, upon all the facts before
him, for even 40 years ago a court could go against the wishes of a mother, especially of an illegitimate child,
if the benefit of the child required it.

My Lords, having read and re-read the judgment of Ungoed-Thomas J. in 1967 it is clear he recognised in
express terms the general principle that it is for the child's welfare to be in the custody of unimpeachable par-
ents. He heard and saw the parents, and he treated them, as I read his judgment, as unimpeachable for the
purposes of applying the law, but after the years of estrangement he reached the conclusion
"that the parents would be quite unable to cope with the problems of adjustment or with consequential maladjustment
and suffering and that the father's character would inflame the difficulties."

Then, after dealing with some criticism that had been made of some medical evidence to which I shall return,
he said:
"If, however, I had to rely upon my own conclusion apart from

[1970] A.C. 668 Page 726

medical evidence, my decision in this case would be the same. If I thought there was a real prospect of adjustment in
Spain, I would be in favour of his return there, but the evidence, and my impression of the witnesses, convince me that
there is no such reasonable prospect at all. His return to Spain would in my view be disastrous for him at this stage.
The prospect is altogether too dangerous. It is the prospect of ruining the child's life. I simply cannot bring myself to re-
turn him."

That finding has not been challenged and as in fact your Lordships have been taken through much of the evi-
dence I may say I should be very surprised if it had been.

My Lords, that is sufficient to dispose of the appeal; the judge in this admittedly very difficult case applied the
correct principles and having given full weight to the strong claims of the unimpeachable natural parents
reached the conclusion that the paramount consideration, the welfare of the child, demands his continued
separation from his parents until further order; they having full access when in this country.
While that disposes of the appeal I think it right to make some observations upon the discussion before your
Lordships as to the value of the evidence of psychiatrists on these applications.

There seem to me to be two completely different cases to be considered.

First, where the infant is under some treatment or requires some treatment for some physical, neurological or
psychological malady or condition. In such cases medical evidence if accepted must weigh heavily with the
court.

Secondly, and this is the case before your Lordships, you have the case of a happy and normal infant in no
need of medical care and attention for any malady or condition who is sent to a psychiatrist or other medical
practitioner for the sole purpose of calling the practitioner to give quite general evidence upon the dangers of
taking this, that or the other course in the relevant proceedings.

My Lords, such evidence may be valuable if accepted but it can only be as an element to support the general
knowledge and experience of the judge in infancy matters, and a judge, in exercising his discretion, should
not hesitate to take risks, as I said when in the Court of Appeal and go against such medical evidence if on a
consideration of all the circumstances the judge considers that the paramount welfare of the infant on the
balance of probabilities (for that must be the true test) points to a particular course as being the proper one.
By way of illustration I may remark that Ungoed-Thomas J. had taken that very course in an earlier case In
re C. (M. A.) (An Infant) [1966] 1 W.L.R. 646, 653.

My Lords, for these reasons I would dismiss this appeal.

LORD DONOVAN. My Lords, the Guardianship of Infants Act, 1925, enacts that in matters regarding custody
and upbringing, the welfare of the infant should be regarded by the courts as the first and paramount consid-
eration.

This is a statutory provision which is almost refreshing in its clarity. But the appellants claim that it does not
really mean what it clearly says.

Thus, the preamble to the Act refers to the desirability of establishing

[1970] A.C. 668 Page 727

equality in the law between sexes, and the expediency of establishing this principle with respect to the
guardianship of infants. Ergo, it is said, the Act applies only where a father and mother are competing for
custody and upbringing.

But the preamble to an Act of Parliament does not always enumerate every purpose of the statute. It is by no
means uncommon to find the enacting part of the Act going beyond the bounds of the preamble; and reasons
more cogent than this are required to tailor the enacting part of the statute so as to make it fit the preamble.

This the appellants agree is true. They find, however, the requisite reason in this: The Act of 1925 has been
declared by some judges to enact no new law. The courts, they said, have always treated the welfare of the
infant as paramount. If this be so, I find some of the decisions strange. Moreover, so the argument continues,
the law which was merely given declaratory expression by the Act, regarded it as being a paramount require-
ment for the welfare of the infant that it should remain with its natural parents unless, being capable of caring
for it, they had by their character or conduct, forfeited their rights to its custody and upbringing. Accordingly a
provision to this effect should be read into the 1925 Act.
This claim led to a submission, no less interesting for being long, supported by a copious citation of authority.
For the reasons given by others of your Lordships I find it unconvincing. It is incredible to me that Parliament
would pass such an enactment as section 1 of the 1925 Act if the position were that it made no difference at
all to the law as already expounded by the judges. Or that it would not have incorporated a proviso preserv-
ing the alleged "rights" of the natural parent if it had intended to preserve them. I think the section means just
what it says - no more and no less: and although the claim of natural parents to the custody and upbringing
of their own children is obviously a most weighty factor to be taken into consideration in deciding what is in
the best interests of the infant, yet the legislature recognised that this might not always be the determining
factor, whether the parents were unimpeachable or not.

This is one such case. The boy was born here nearly 11 years ago and has been with the foster parents ever
since, with the exception of some 18 months in 1960 to 1961. He speaks little-or no Spanish. He regards the
foster parents as his mother and father. He is happily integrated into their family and is on terms of close
comradeship with their young son. He is about to commence his further education. If he is now sent to
Madrid against his will it is inevitable that he will begin making comparisons between what he has come to,
and what he has left behind: and a rankling sense of injustice and depression may result which will not only
hinder his resettlement, but could easily prejudice his whole future. It is obvious that this result could be
avoided, if at all, only by the most patient and loving understanding and sympathy on the part of his parents -
particularly the father. Ungoed-Thomas J.'s assessment of the father, based not only on the father's letters to
the foster mother, but on his personal observation of him and his answers in evidence, is that he lacks the
safeguarding qualities I have mentioned. The judge therefore refused to take the risk of sending him back,
and explained his decision in a judgment to the clarity and the careful nature of which I desire to pay a re-
spectful tribute.
[1970] A.C. 668 Page 728

I also would dismiss the appeal. This is not a case where parents are being deprived for the time being of the
custody and upbringing of their Son simply to pander to the wishes of foster parents who have grown to love
it. It is simply a case of the courts obeying the command of Parliament that the son's welfare is to be the first
and paramount consideration.

I agree with your Lordships in rejecting the other arguments of the appellants regarding adoption orders and
comity.

LORD PEARSON. My Lords, I agree with the opinion of my noble and learned friend, Lord MacDermott, and
would therefore dismiss the appeal.

Appeal dismissed.

Solicitors: Antony Duke & Co.; Official Solicitor; Montagu's and Cox & Cardale for David Forsyth, Oxted.

C. J. E.