J v C
| Jurisdiction | UK Non-devolved |
| Judge | Lord Guest,Lord MacDermott,Lord Upjohn,Lord Donovan,Lord Pearson |
| Judgment Date | 19 February 1969 |
| Judgment citation (vLex) | [1969] UKHL J0219-1 |
| Court | House of Lords |
| Date | 19 February 1969 |
[1969] UKHL J0219-1
Lord Guest
Lord MacDermott
Lord Upjohn
Lord Donovan
Lord Pearson
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Jurado and another against Carazo (an infant) (by the Official Solicitor, his next friend) and others, that the Committee had heard Counsel, as well on Monday the 9th, as on Tuesday the 10th, Wednesday the 11th, Thursday the 12th, Monday the 16th, Tuesday the 17th and Wednesday the 18th, days of December last, upon the Petition and Appeal of Jos� Maria Carazo Jurado and Carmen Carobonero de Carazo, of Block 217, House 3, District of Entrevias, Madrid, Spain, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 5th of July 1968, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament might seem meet; as also upon the Case of Jos� Maria Carazo (an infant) (by the Official Solicitor, his next friend); and also upon the Case of Philip David Forsyth and Margaret Nathalie Forsyth, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 5th day of July 1968, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the taxed Costs of the second and third Respondents in this House be paid out of monies paid by the Appellants into the Security Fund of the House, and that thereafter the taxed Costs of the first Respondent in this House be paid out of the balance remaining of such monies.
My Lords,
The infant in these wardship proceedings is a Spanish national aged 10� years, whose parents are Spanish nationals resident in Spain. Ungoed-Thomas J. awarded the care and control of the infant to a British married couple residing in Britain and the Court of Appeal unanimously affirmed his decision. The custody of infants being a discretionary matter this House could only interfere with the exercise of the judge's discretion if they were satisfied that he had, in exercising his discretion, applied some wrong principle or had failed to apply the correct principles. Indeed, counsel for the Appellant parents conceded that if the courts below had applied the correct principles to their decision, he would not be able to ask for their decision to be reversed. He maintained that they had not applied the correct principles.
The facts have been so fully set out in the very careful judgment of the trial judge and by Harman L.J. in the Court of Appeal that for the purpose of this Opinion it is only necessary to outline them.
The story began in the autumn of 1957 when the infant's parents came to Britain from Madrid for the purpose of bettering their financial position by entering domestic service. The father was at that time a very lowly paid worker living in poor housing conditions in Madrid. They are both of the Roman Catholic faith. They left behind a daughter then aged four who lived with the maternal grandmother. The mother became pregnant shortly after their arrival in Britain and the infant was born in hospital on 8th May, 1958. As the mother was found to be suffering from tuberculosis and had to remain in hospital for some considerable time a home was found for the infant through the kind offices of a married couple who have been called the "foster parents". The infant was taken care of, from the age of four days, by them in their house in Northamptonshire while the mother remained in hospital. The foster parents had been both previously married and between them have four children by their previous marriages and now have two by their own marriage. The infant continued to remain with the foster parents until the mother was discharged from hospital in April 1959. The infant's father remained in employment near the foster parents' house and visited the infant from time to time. The infant thereafter rejoined his parents who had obtained employment in Surrey. The foster parents had also moved to Surrey. The infant remained with his parents at Caterham for about ten months: the foster mother assisted the mother in looking after the infant and the parents kept in touch with the foster parents' family. In February, 1960, the mother again became pregnant. As she was afraid of having another baby in this country she and her husband went back to Madrid taking the infant with them.
During the infant's stay in Madrid in the summer of 1960 his parents lived in what has been described as little better than a "hovel". The father was still a lowly paid worker and the family lived in what were virtually slum conditions. In the summer heat of Madrid the infant's health rapidly deteriorated due to malnutrition and the local conditions which did not suit him. He only remained in Madrid with his parents for 17 months. In July, 1961, he returned to Britain to stay with the foster parents. This move was made at the specific request of the parents who, through the intermediary of a Spanish maid of the foster parents, Maria, conveyed their request to the foster parents. This request was made on the ground of the infant's health. On his return to this country the infant's health rapidly improved and he has continued thereafter to enjoy good health. He has not lived with his parents since July, 1961, and has continued to live with his foster parents ever since.
The parents were content at this time to leave the infant with the foster parents. There was some suggestion that the parents should return to England to take up domestic service, so that the infant could be with them, and the foster parents in fact made some arrangements to this end. But these arrangements came to nothing. In the winter of 1961 the parents went to Hamburg with the idea of further bettering their financial position in order to be able to obtain a house of their own in Madrid in more salubrious surroundings. They had left their elder daughter with the maternal grandmother in Madrid and they remained in Hamburg until the early part of 1963. In February, 1963, the grandmother died and this necessitated the parents' return to Madrid, first the mother and latterly the father.
Up to this point of time the parents had evinced no wish to the foster parents to have the infant back with them in Madrid, apart from a suggestion for a holiday. But in July, 1963, the foster mother wrote to the mother what has been described as a tactless and most unfortunate letter. In this letter she described how the infant had become integrated with their family; he had gone to an English school and he had grown up an English boy with English habits, and that it would be most disturbing for him to have to return to live with his parents in Madrid. She also made critical remarks about the infant's father. This letter produced the not unexpected reaction from the mother who, after some previous correspondence, wrote on 25th September, 1963, to the Surrey County Council, in whose official care the infant was, asking for the infant's return. The Local Authority did not act with 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 to the Chancery Division to have the infant made a ward of court, which was done on 16th December, 1963.
The proceedings took some considerable time to reach the judge and the parents were unfortunately led to believe by a letter from the Surrey County Council that they would be represented by counsel at the hearing who would state their case for them. For this reason the parents only lodged written representations, which had been prepared for them by a Spanish lawyer. These, however, did express their wish for the infant's return. Affidavits were lodged by various other parties. After a hearing on 22nd July, 1965, Ungoed-Thomas J. ordered that the infant remain a ward of court, that the care and control be committed to the foster parents, that the infant be brought up in the Roman Catholic faith and in the knowldege 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 10th May, 1967. An application was also made by the foster parents that the infant be brought up in the Protestant faith. This request for a change in the boy's religious upbringing was prompted by a desire on the foster parents' part that he should enter a choir school so as to avoid expense. The most convenient school was a Protestant school. The Official Solicitor also entered the proceedings, having been appointed next friend. On this occasion the judge heard evidence from all the parties and his judgment was given on 31st July, 1967. No order was made on either application and his order was dated 20th September, 1967. Owing to various delays, for...
To continue reading
Request your trial
- L v S
- Sivajothi K Suppiah v Kunathasan Chelliah
- Re KO (an Infant)
-
Re J (A Child) (Custody rights; Jurisdiction)
...to the foreign judgment. What is the proper weight will depend on the circumstances of each case." 24 This House, in the leading case of J v C [1970] AC 668, regarded it as clearly decided by Re B's Settlement and McKee v McKee that the existence of a foreign order would not oust the jurisd......
-
Fostering and Adoption as Means of Securing Article 6 Rights in England
...303. 53 See for example H Ree ce “The Paramo untcy Princ iple: Consensus or C onstruct? ” (1996) 49 CLP 267 304.54 See for example J v C [1970] AC 668, 709 (Lord Ma cDermott). See, mo re recently, Re B (A Child) (Residence: Bi ological Parent) [2009] UKSC 5 [20 09] 1 WLR 2496 para 37 (per L......
-
The Development of Family Law in the Twentieth Century: Informed Reform or Campaigns and Compromises?
...Fam Law 90, 90 for the argument that amendment of theRegulations was preferable to re-opening the wardship floodgates.31 n 27 above.32 [1970] AC 668.33 HL Deb vol 58 col 350 9 July 1924.The Modern Law Review [Vol. 63616 ßThe Modern Law Review Limited a ‘process whereby, when all the relevan......
-
The Children Act 1989 in the highest courts
...Law Commission (1998); but it was not a change from the meaning given to ‘paramount’ by the House of Lords in the leading case of J v C [1970] AC 668: ‘it rules on or determines the course to be followed’. The hidden issue was where this leaves the child’s ‘natural’ or ‘biological’ parents.......
-
Child abduction and non-convention countries: a comparative analysis -England and Australia
...89 at 90. 43 See Re B's Settlement, B v B [1940] 1 Ch 54at 63 per Morton,J; McKee v McKee [1951] AC 352 at 365 per Lord Simonds; J v C [1970] AC 668 at 714 per Lord MacDermott; Re R (Minor)(Wardship:Jurisdiction) (1981) 2 FLR416 at 426 per Ormrod, LJ. 44 [1998] 1 FLR 231 at 243. 45 Ibid at ......