Re L. (Minors) (Wardship: Jurisdiction)

Lord Justice Buckley will deliver the first judgment in this case.

This is an appeal from a judgment of Mr. Justice Cumming-Bruce delivered on the 18th July, 1973, in a wardship matter relating to two children, a girl, Birgid, horn on the 28th February, 1962, and now aged 11, and a boy, Arno, born on the 9th October, 1964, and now aged 9. The plaintiff, their mother, is 48 years of age. She is English by origin and, before her marriage to the father, her home was in England. The defendant, the children's father, is 55 years of age. He is of German nationality, domiciled and resident in Germany, where he is in business. The father and mother met in Germany and they married there in 1961. The matrimonial home has always been in Germany in or near Munich. The language spoken by the parents and the children in the home was German, although their mother sometimes talked English to the children. The mother says that from about 1966 her married life was unhappy. In 1970 she first consulted a German lawyer concerning her matrimonial problems, unknown to her husband, and she has subsequently consulted others, but she has not commenced any proceedings in Germany.

What she did was this. Being a Christian Scientist by religion, she knew of a school which was associated with the Christian Scientist community in this country called Pancourt School, situate at Englefield Green, Surrey, which provides boarding education for boys and day-school education for girls. In the early part of 1972 up her mind to try to secure residential employment at hool on terms that Arno should become a boarder there and rgid should be able to live with her at the school and be there as a day-girl. She started enquiries with the ob-putting this plan into operation and by July expected that Id be successful in carrying it into effect. She did nottell her husband of this.

At or about the same time she was advised by German lawyers that it would be possible for her to get a divorce in Germany and that she would not be prejudiced in that respect if she were to come to live is England and to send her children to school here. In July, 1972, she came to England, bringing the children with her, ostensibly on a holiday. The learned judge found the facts as follows: "By a pretext, pretending that she was going on a holiday to England with the children, which she had done before, she obtained the consent of her husband to visit by herself with the children to England. Her intention, formed before she left, was to try to establish herself permanently in England with the children. She made plans which in fact fructified successfully) and when she left Germany with the children she had formed a settled intention to establish herself and the children permanently in England if she could. And she only contemplated returning to Germany, and returning the children to their father, if her attempts to obtain reasonable accommodation, financial provision and facilities for education failed to come off. The way that she put it in her first affidavit when she said 'I left with the children to come to England for a holiday and having made enquiries as to employment decided to remain here' is a travesty of the truth". She was careful to conceal her address in England from her husband, using as her accommodation address the home of a friend whom she told not to disclose her whereabouts to her husband.

The plan was carried out successfully, and since September, 1972, the mother has been employed at the school and the two children have been receiving education there. They did not return to Germany until about the 20th July, 1973, when they did so pursuant to the order now appealed against.

When the mother and children failed to return to Germany in timefor the autumn school term, the father came to England to find them. Consequently, on the 2nd October, 1972, the mother issued an originating summons making the children wards of court. The father first discovered where his wife and children were when he was served with this. For some reason no appointment was taken under this summons within the time limited by the rules, with the result that the wardship lapsed, but a new originating summons was issued on the 28th October, 1972, commencing the proceedings in which this appeal is brought; and the children then once again became wards of the court. The father has, by agreement with the mother, since visited the children in England.

Both parents gave oral evidence before the learned judge. He formed the view that the father is a responsible hard-working man and said that there was no evidence satisfying him that the father is anything other than a responsible father and a responsible head of the family household. The judge found that the father has always hoped that the mother will eventually appreciate that there is really no good reason why she should not resume her position as his wife and mother in the family home, and that the father simply does not believe that there is any real difficulty as grave as the mother suggests; but the judge approached the case, as he stated, on the basis that, though it might be that the father's hopes might prove to have foundation, on the evidence before him the mother appeared to maintain a strong resistance to her living at home with her husband.

The father took no step to expedite the hearing of the summons because, as the learned judge accepted, he was hoping that a reconciliation could be achieved and was anxious not to make the mother more obdurate. Consequently the case did net come on for hearing until mid-July, 1973, some ten months after the proceedings were launched and a year after the children's arrival in England.

In the meantime, in May, 1973, the father, having found that his hopes of a reconciliation ware not being fulfilled, commenced proceedings in Germany by an application to the Court of Protection in which he sought relief depriving the mother of the right to determine the domicile of the two children.

She originating summons came on for hearing before Mr. Justice Cumming-Bruce on the 17th and 18th July, 1973, when, according to the formal judgment as drawn up, the learned judge directed that the children should continue to be wards of the court until arrangements were made by the father for their return to Germany and that they should remain in the custody of the father until further order and that the father should make arrangements for their care and control with his sister. The learned judge directed that the parties should have liberty to apply but refused a stay of execution of the order.

The mother appeals from that order by notice of appeal dated 9th August, 1973, but in the meantime on the 20th July, 1973, she had applied to this Court for a stay of execution of the order, which was refused upon the father undertaking to return the children or either of them to this country if called upon to do so and to take no steps in the proceedings pending in Germany.

Accordingly shortly thereafter the father took the children back to Germany and they have been attending schools there since the 13th September, 1973. Their mother was in Germany and had access to the children during a substantial part of the period between their return to Germany and the start of the autumn school term.

Counsel for the mother has submitted to this Court that the learned judge, having found as a fact, as counsel submits, that the interests of the children would be best served by remaining with their mother, wrongly reached his decision upon the basis that thisis what is conveniently described as a "kidnapping" case, in which class of case the learned judge wrongly held, as counsel submits, that the approach of the Court should differ from its approach to a case in which both parents live and propose to continue to live in this country.

In the course of his judgment the learned judge discussed the prospects (a) if the children were to remain with their mother in England and (b) if they were to return to Germany. He summarised the former as follows: "And so I summarise the life and prospects of the children in England as follows: here are two German children; they are German nationals; children whose domicile is German, as the domicile of both parents is still Germany. They are living with their mother at Fancourt, where she is able to give them maternal care. As to that, I have taken into consideration the report of a very experienced court welfare officer, who expressed herself in this way: 'At the time of my visit to [the mother] and the children there appeared to be a happy relationship between mother and children and the children appeared to be happy and well cared for'. Their educational opportunities appear to be very good, and they have an advantage - which I regard as a very considerable advantage to children whose family life has broken up - namely, that they have got the environment of a good school, with all the social activities and companionship that exist there, and unusually they are able to combine that with the home care of their mother, a very exceptional situation. That, therefore, will be the life of the children...