Re M (Child's Upbringing)
| Jurisdiction | England & Wales |
| Judgment Date | 05 March 1996 |
| Court | Court of Appeal (Civil Division) |
NEILL AND WARD, L JJ
Child – Zulu – born in South Africa – mother employed by white woman – child living with white woman in South Africa – brought to England – child's parents remaining in South Africa – white woman applying for adoption order in England – parents seeking child's immediate return – Judge ordering review after two years – whether decision of Judge could stand.
The case concerned a child who was born in South Africa in February 1986. His parents were Zulus.
The appellant was a white South African. She came to England in 1969. In 1973 she married an Englishman. They had three children. In 1982 the appellant and her husband decided to go to live in South Africa with their children. The appellant and her three children went to South African but her husband remained in England to clear up business affairs. Although he made visits to South Africa the husband could not join his family permanently. In 1990 he died.
In 1985 the appellant employed the mother as a nanny and housekeeper. The mother became closely attached to and integrated in the appellant's immediate family and in 1986 the mother's Zulu child was born.
When, in 1987, the mother proposed to send the child to the village from which she came in compliance with apartheid regulations, the appellant, with the consent of both the mother and the father, took responsibility for the child so that he could remain a member of the household. In the ensuing years the child lived with the appellant and her children in their house. The mother continued to work in the house but slept in her own quarters in a separate building.
In February 1992 the appellant decided to return to England. There were discussions between the appellant and the parents as to the child's future. It was agreed that the appellant should bring the child to England but there was no agreement as to whether this should be for a period of five years or whether it should be for an indefinite period.
On arrival in England with the child in March 1992 the appellant told the immigration authorities that she wished to adopt him. The child was given leave to stay. By May 1992 the appellant had, unknown to the parents, reached a firm decision that she wished to adopt the child. In October 1992 the appellant's solicitors wrote to an advice office in South Africa asking for a social worker to visit the parents and obtain their wishes as to adoption. Eventually, in January 1993 the parents made it clear that they did not agree to adoption. However, in July 1994 the appellant issued an application for an adoption order and an application for a residence order.
The parents obtained legal representation and in September 1994 an originating summons in wardship was issued on their behalf. The matter came before Thorpe, J in July 1995. The essential applications were the appellant's application to adopt and the parent's application for an order in wardship for the child's immediate return to South Africa. The Judge rejected the possibility of adoption as an appropriate solution to the situation. He also rejected the solution sought by the parents which was the immediate return of the child to South Africa. He decided that he should lay down a master plan for the child's return to South Africa after a further two years.
The appellant appealed submitting that the review in 1997 should not be limited to the arrangements for the child's return to South Africa but that she should be able to argue the whole issue of the child's residence and upbringing during his adolescence.
The parents cross-appealed submitting that the child's return to South Africa should not be further delayed.
Held – dismissing the appeal and allowing the cross-appeal: In arriving at his decision the Judge had referred to the competing claims of the appellant as the child's psychological parent and the mother as the child's biological parent. But the essential principle to be applied was that, other things being equal, it was in the interests of the child to be brought up by his natural parents. That was a guide to the competing claims in the present case. It was not determinative of the conclusion for it must be subservient to the paramount consideration which was the child's welfare. Further, the Judge had not ordered the child's immediate return to South Africa but a review after two years so that the appellant and the parents could restore the trust and goodwill that had previously characterized their relationship. The essence of the Judge's master plan was that all parties should work towards the reintroduction of the child to his family and to his own country. This had not happened. The Judge had been right to conclude that there had to be a firm recognition that the child returned to South Africa. In all the circumstances any further delay in reuniting the child with his Zulu parents could not be in his interests. It would therefore be ordered that the child be returned to his parents in South Africa in five weeks' time.
Statutory provisions referred to: Cases referred to in judgment:H (A Minor) (Interim Custody), Re [1991] FCR 985.
K (A Minor) (Custody), Re [1990] FCR 553.
K (Private Placement for Adoption), Re [1991] FCR 142.
KD (A Minor) (Ward: Termination of Access), Re [1988] FCR 657; [1988] AC 806; [1988] 2 WLR 398; [1988] 1 All ER 577.
W (A Minor) (Residence Order), Re[1993] 2 FCR 589.
Judith Parker, QC and Deborah Eaton for the appellant.
Patricia Scotland, QC and Henry Setright for the parents.
Michael Sternberg for the guardian ad litem.
LORD JUSTICE NEILL. The factsThis appeal is concerned with the future care and upbringing of a boy whom I shall call P. He was born in South Africa on 13 February 1986. His tenth birthday was earlier this month. His parents are Zulus both coming from an area of the
Transvaal known as Leboa. I shall refer to the parents as the father and the mother. The other principal party is the appellant herself.
I propose to start by saying something about the appellant. The appellant is a white South African of Afrikaner descent. She came to England in 1969 when she was about 23 years of age. In 1973 she married an Englishman and acquired British nationality. Three daughters were born to the appellant and her husband – S, who is now 22, N, who is now 19 and N, who is now just 18.
In 1982 the appellant and her husband decided to return to South Africa with their daughters. It was necessary, however, for the husband to remain in England for the time being to clear up his business affairs. The appellant therefore went back to South Africa without him and set up home in the Transvaal about 45 kilometres from Johannesburg. In the event the husband, though he made two visits to South Africa, was unable to join them. Just before he was due to leave England in June 1990 he died in his sleep.
On her arrival in South Africa the appellant obtained employment. In 1984 she met the father who was employed as a driver by the company the appellant worked for. At the beginning of 1985 the appellant told the father that she was looking for a housekeeper and nanny for the children and as a result the father introduced the mother to the appellant. As the Judge explained in his judgment the introduction proved a fruitful one because the mother became closely attached to and integrated within the appellant's immediate family acting not only as nanny for the three girls but also as a cook/housekeeper.
In June 1985 the household moved to a house owned by the appellant's brother. This move, however, led to difficulties because the appellant's family of origin were opposed to any relaxation of the apartheid laws whereas the appellant's own position was quite different and she was in favour of close contacts between the races.
In November 1985 the mother told the appellant that as a result of her relationship with the father she had become pregnant. P was born on 13 February 1986.
In June 1987 the appellant and her daughters together with the mother and P moved to a rented farmhouse in a predominantly white community near Johannesburg. Shortly after that the mother made plans to send P back to the village from which she came. Such an arrangement would have complied with the apartheid regulations because by now P was about 18 months old. However the appellant, who had become attached to P, offered to take responsibility for him in a way that would enable him to remain as a member of the household. It is clear that the father and mother consented to this arrangement.
During the next few years P lived with the appellant and her three daughters in their farmhouse. The mother continued to work in the house but slept in her own quarters in a separate building. It appears that at some stage during this period the father had a relationship with another woman, by whom he had a child in October 1989, and that his contacts with the mother and with P were sporadic.
In June 1990 the appellant's husband died in London. In October the appellant employed the father for three or four months as a chauffeur. The Judge accepted the appellant's evidence that the father's employment was terminated for a breach of its terms.
I come to the spring of 1992. The important national referendum was due to take place in the middle of March. In February 1992 the appellant, who had already spent three weeks in hospital in 1989 with a pulmonary embolism, suffered a second attack and once again she had to spend some weeks in hospital. On her discharge she decided that she would return to London. She regarded the political situation in South Africa as unstable and was worried about possible violence. It is clear that only a short time elapsed between the appellant's decision to return to London and the family's departure from South Africa.
At the beginning of March 1992 there were discussions between the appellant and the father and mother as to P's future. I shall have to say something more about these discussions later. At...
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