Re C. (Minors) (Wardship: Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAMP |
| Judgment Date | 03 May 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0503-1 |
| Date | 03 May 1977 |
| Court | Court of Appeal (Civil Division) |
[1977] EWCA Civ J0503-1
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On Appeal from Order of His Honour Judge McLelland.
Lord Justice Stamp
Lord Justice Ormrod and
Sir David Cairns
Mr JOHN WOOD, Q.C. and Mr ANTHONY COLEMAN (instructed by Messrs Turner Peacock, Agents for Messrs Moore "Blatch, Southampton) appeared on behalf of the Appellant (Step-father).
Mrs BARBARA CALVSRT, Q.C. and Mr ANDREW MASSEY (instructed by Messrs Ewing, HicKman & Clark, Southampton) appeared on behalf of the Respondent (father).
I will ask Lord Justice Ormrod to deliver the first Judgment LORD JUSTICE ORMROD: This is a case which can properly be called an extremely tragic one for everybody concerned. It has caused the Court a great deal of anxiety and worry; but I think it is right to say, on the part of myself at any rate, that we are extremely grateful first to Cpunsel, who has helped us immensely on both sides, and also to Mr chapman, the Welfare Officer who made a most helpful report on this case in a very short period of time, which has been of immense assistance to us
The short facts are these. In 1966 the father of these three children emigrated to the United States on an emigrant's visa and, while there, he met their mother. She became pregnant by him - they were both very young, only about 19 I think, each of them - and they got married on the 26th March, 1967. They both came back to England fairly soon afterwards, and in 1971 set up house together at 155. Midanbury Lane, Midanbury, Southampton. They had three children who are the subject-matter of these proceedings - Nicola, who was born in 1967 and is 9; Jason, who was born in 1969 and is 8; and Adam, who was born in 1971 and is 6.
The marriage did not survive very long, and in August 1973 they parted. It seems to have been an unhappy marriage We had some evidence to that effect in the form of an affidavit from Mrs Clay, which indicated that the marriage was an unsatisfactory one from the mother's point of view.
In 1973 she returned with the children, with the consent of the father, to California, having transferred her interest in the matrimonial home to him. She went back to her mother and her family, who were living in California.
In 1974 the father paid a visit to California and saw the mother and the children. Also in that year the mother began to live with Mr O'Bar, who is the Plaintiff in these present proceedings, who became the step-father of the children They lived together in San Francisco.
Eventually, on the 10th March, 1975 the marriage of the father and mother was dissolved by decree nisi, and custody was given to the mother by consent There was no formal Order giving her leave to keep the children out of the jurisdiction, but that was obviously part of the Consent Order. She decree was made absolute on the 22nd April, 1975.
Very shortly after that, the mother re-married Mr O'Bar and they moved together to an address at 101, Trish Drive, Novato, California Again about the same time, the father re-married the present lire Cox, a young woman who is now herself about 19 years of age. She was by upbringing a member of the Jehovah Witness persuasion, and the father, either immediately before or after the marriage, become converted to that persuasion also, and they now are both practising Jehovah's Witnesses
In August, 1976, the father and his new wife visited California for a few weeks and saw the children from time to time. Then, on the 8th February, 1977, the great; tragedy occurred in these children's lives, because their mother suddenly died of a heart attack, consequent upon some existing heart disorder that she had. That left these children in the care of Mr O'Bar, the step-father, who is obviously extremely fond of them and they of him.
On the 13th February the father was told of the death of the mother of the children; and a couple of days later he arrived with his own mother in California. Almost immediatelyafter his arriving in California, the step-father and the maternal grandmother, a Mrs Bradley, and a firs Edwards, the mother's sister - all throe - applied to the Superior Court of California in Maria County for an Order for custody of the children, no doubt stimulated by the arrival of the father. An interim Order for custody in favour of the step-father and the grandmother and aunt was made; and on the 12th March the procedure which is followed in the United States of taking depositions of the witnesses on the opposing side by the advocate for the other party took place. We have been supplied with copies of those depositions.
On the 14th March the first hearing took place, which was largely a formality, because the matter was assigned, according to the procedure in California, to the Department of Social Services to investigate and report. Meanwhile, the interim Order continued. A week later, on the 21st March, an Order for access was made in favour of the father, and that Order for access included staying access on the week-end of the 26th/27th March During that week-end the father, in deliberate breach of the Order of the Court in California, kidnapped the children; that is to say, he put them on a plane and brought them back to England.
On the 5th April the step-father caused an Originating Summons to be issued in the High Court in England, making the children thereby wards of Court. He also issued a summons for leave to remove the children back to the United States forthwith; in other words, he was then asking for a peremptory Order that the children return to California, where the proceedings were I of course still pending. On that same day a warrant of arrest was issued in the Californian Court for the arrest of thefather; and we were told that extradition proceedings were started I am not sure by whom.
On the 6th April the matter came before His Honour Judge Stock, who adjourned the summons but made an Order for access by the step-father to the children, he being now in England, and an Order was made requiring the father to give particulars of any criticism that he relied upon of the step-father's character.
On the 14th April the hearing began before His Honour Judge McLellan, that hearing being a hearing of the step-father's summons for an Order that the children be forthwith returned to California. That summons was adjourned in the hope that the Welfare Officer's report which had been ordered by the Californian Court would be available very shortly, but unfortunately it did not arrive in time for the adjourned hearing, and the learned Judge - reasonably in the circumstances - felt that he could wait no longer than the 20th April before embarking upon a full hearing of the matter of the step-father's summons for the children to be returned to California At the conclusion of the hearing, at which he heard a considerable body of evidence from both the father and the step-father and others, the learned Judge decided (I think reluctantly, from reading his Judgment) that he could not, in all the circumstances of the case, make a peremptory Order directing the return forthwith of these children to California with their step-father, For reasons which I will come to in a moment The appeal which is now before this Court is an appeal from that Order made by His Honour Judge McLellan on the 20th April this year.
The case is one which is clearly a very difficult one from every point of view, not least that of the potential conflict of Jurisdiction between this Court and the CalifornianCourt, but It is perhaps right to say at this stage that the view of this Court is that the learned Judge arrived at the right conclusion. It is also right to say that this Court has reached that conclusion on very different grounds from those which the learned Judge relied upon and on much fuller information than he had, because we have had the advantage of seeing now the Welfare Officer's report, prepared in California, although it is quite correct to say that it was not complete because the children were removed before the enquiries of the Welfare Officers in California were completed. We also have before us, as I have said already, Mr Chapmans report on the condition of the children here in England. The children have been, since their arrival in England on the 27th March, living at Southampton in their father's house with their father and step-mother, Cox, and have Just started school in England.
Now, there are one or two matters on the learned Judge's Judgment on which I feel it is necessary to say something, particularly in view of the fact that this Judgment may find its way in due course back to the Court of California, and it is of paramount importance that the two Courts concerned in this matter do not misunderstand one another. The learned Judge in his Judgment formed a very unfavorable view, it is right to say, of the father and a favorable view of the step-father, generally speaking, although he made certain criticisms about him. He observed that he was "a man materialistic and philistine to a marked degree, but; with the material and emotional generosity that sometimes accompanies such a temperament and outlook", but he accepted his evidence wherever it conflicted with that of the father as being evidence of truth, and he made some very serious criticisms of the father himself. The father, of course, washighly vulnerable to criticism, because he had acted in a grossly improper way, in circumstances which I will refer to in a little more detail in a moment, in kidnapping these children unilaterally from the control of the Californian Court, It is only natural that this Court should be most reluctant to take over a case of this kind in the middle, when proceedings are pending in another Jurisdiction.
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