Re H. (Infants)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE RUSSELL |
| Judgment Date | 25 January 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0125-1 |
| Docket Number | 1965. H. No. 2428 |
| Court | Court of Appeal |
| Date | 25 January 1966 |
[1966] EWCA Civ J0125-1
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of Cross J. dated 36th November, 1965.
Revised.
Lord Justice Willmer,
Lord Justice Hahman and
Lord Justice Russell
In the Matter of Scot Frederick Hbrsh and Bret Frederick Hersh (Infants)
In the Matter of The Law Reform (Miscellaneous Provisions) Act, 1949
In the Matter of The Guardianship of Infants Acts, 1886 and 1925
Mr HAROLD LIGHTMAN, Q.C., and Mr N.C. BROWNE-WILKINSON (Instructed by Messrs Sharps, Pritohard & Co., Agents for Messrs Stops & Burton, Daventry) appeared on behalf of the Appellant (Plaintiff).
Mr A. CHARLES SPARROW (instructed by Messrs Kenneth Brown Baker Baker) appeared on behalf of the Respondent (First Defendant).
This appeal concerns two American boys who are at present resident in this country and have been made wards of court. It is an appeal from a judgment of Mr Justice Cross given on the 26th November 1965 on a motion brought by the father in wardship proceeding instituted by the mother. The effect of the learned judge's order was that the two boys, although remaining wards of court, were to be at liberty to leave the jurisdiction and return to the State of New York in the care of their father.
Let me say straight away that, for reasons which I will endeavour to give as briefly as possible, I am quite satisfied that the learned judge made the proper order in the circumstances of this case, and that the appeal should be dismissed.
The judge gave a very careful and detailed judgment, In the course of which he set out all the material facts. That, I think, makes it unnecessary, and indeed undesirable, for me to attract further possible publicity to the case by setting out those facts again in any detail in my judgment. I propose to refer only to certain salient facts.
(1) The parents of these two boys are American citizens, domiciled and at all material times resident in New York State. The father is a natural-born American citizen. The mother is of Scottish origin, but has been resident in the United States of America for twenty years, and in the course of those twenty years has been married to three husbands, all of whom have been American citizens.
(2) The boys' parents were divorced by a decree of the court in the State of Mexico dated 26th January 1953 on the ground of Incompatibility.
(3) That divorce decree embodied certain somewhat elaborate provisions relating to these two boys which had been contained in a prior separation agreement between the parents. The effect of these provisions was to give the custody of the two boys to the mother, with very liberal access to the father.
(4) These provisions were amended In some respects (though still leaving custody with the mother, and preserving liberal access to the father) by a consent order made by Mr justice Dillon In the Supreme Court of New York State on the 11th December 1964. This order perpetuated a provision contained in the original separation agreement to the effect that the boys should reside at ail times In the State of New York, and should at all times be under the control and jurisdiction of the State of New York.
(5) On the 3rd March 1965, the mother, without obtaining the approval of the New York court, and without consulting the father, brought these two boys to this country, where they have since resided.
(6) There is no evidence of any significant event occurring between the 116h December 1964 (the date of the consent order) and the 3rd March 1965, the date when the mother left with the boys, to justify this breach of the consent order.
(7) On the 15th June 1965, after the departure of the mother an order was made by Mr Justice Nolan in the Supreme Court of Now York State in proceedings instituted by the father (in which the mother was represented by her attorney), the effect of which was to require the mother to return the boys to New York State within twenty days.
(8) The mother failed (and has continued to fail) to comply with that order, and she has thus been in contempt of the order for at any rate the last six months.
(9) The mother admits that, unknown to her present husband and unknown to her own attorney in New York, when she left New York on the 3rd March 1965, she intended if possible to remain permanently in this country, because she thought that the only hope for the boys having a stable future was "to get away from New York for good so as to cut off all disturbing contacts with their father"; I Quote those words from the wife's own affidavit at page 71 of the bundle before us.
(10) In June 1965 the mother purchased with the aid of a mortgage a house at Staverton near Daventry In this country where the boys have been residing for the last seven months or so.
The mother Issued her originating summons on the 15th July 1965,as the result of which the boys became wards of court. The present proceedings arise on a notice of motion given by the father on the 5th October 1965, whereby he asked (1) that the plaintiff (that is, the mother) do forthwith deliver into the care of the defendant the above-named infants; (2) that the defendant be at liberty forthwith to take them back to New York; (3) that upon leaving the jurisdiction pursuant to such liberty the wardship of the boys should be discharged. The loarnod judge found in favour of the father in respect of the first two requests but did not see fit to make the third order for which he asked.
On the bare facts which I have stated, in the absence of authority, and treating the matter as one of ordinary common sense it seems to me that anyone would be forgiven for thinking that this was the plainest and most obvious of cases; that the proper order was to send these two American boys back to their own State of New York, where they belong (and where the Supreme Court is already seized of their case, and baa been seized of it since December 1964) and more especially so having regard to the fact that they have been kept here in flagrant contempt of the New York court's order. In that connection I should like to say that I heartily agree with the remark made by the learned judge at the foot of page 11 of his judgment, where be said: "The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me it is the duty of all courts In all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing". That, I think, would be the ordinary common sense approach of anyone in the absence of authority.
However, it been has argued before us that the learned judge was precluded by authority from making the order which he did, permitting the boys to be removed from the jurisdiction, unless anduntil he had himself conducted a full Inquiry Into the whole of the merits of the dispute between the father and the mother, and had formed his own conclusion that in the best interests of the boys it was right to commit them to the care of the parent who sought to remove them from this jurisdiction. when we asked what was to happen if, having conducted that full inquiry, the learned judge did come to the conclusion that these boys should go back to the State of Now York, what was said was that the matter would, no doubt, then be debated in the New York court, but that that court would presumably follow the view expressed by the court here, and would make an order of Its own to the like effect. Putting what amounts to virtually the same argument in another way, it was contended by Mr Lightmanthat what this court cannot do is to abdicate its responsibility for its own wards.
As I think was pointed out by the learned judge, if the view of the law presented by Mr Light man is correct, it would undoubtedly confer a great and undesirable advantage upon the parent whom I may call the "kidnapping" parent, that is to say, the one who has wrongly brought the Infants in question to this country. For, with all respect to Mr Lightman's] submissions in his concluding address, I entertain no doubt but that such a full inquiry as he envisaged might well last for many months, especially having regard to the need for evidence from abroad. There would thus be grave risk that, by the time the judge who eventually had to deal with the case came to give his decision, he would find it very hard to make any order which would have the offect of taking the children away again from a home in which they would, by that time, have taken root. For my part I wholly agree with the view, more than once expressed by the learned judge, that if these boys are to be sent back to the United States at all, then It is in their Interests, and in the interests of their welfare, that they should be sent back as soon as possible, Indeed, the sooner the better.
In the present case there was in fact a considerable body of evidence, both oral and documentary. A number of witnessesattended for cross-examination on their affidavits, and a number of documents as well as affidavits were Included in the bundle. But even so, it is, I think, plain that such Inquiry as was conducted by the learned judge did fall short of what would be required If, as Mr Lightman contends, the judge was not entitled to make an order at all until fully satisfied as to the merits of all the points In dispute between the parents. Indeed, Mr Lightman rather made It a matter of complaint that on a number of occasions he was, if not actually stopped, at any rate actively discouraged, from pursuing his cross-examination of the father with regard to some of the disputed matters.
The learned judge took the view (and I think it...
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