Re R (Minors) (Wardship: Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD |
| Judgment Date | 07 July 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0707-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 81/0276 |
| Date | 07 July 1981 |
[1981] EWCA Civ J0707-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
Royal Courts of Justice
Lord Justice Ormrod
Lord Justice Dunn
and
Mr. Justice Eastham
81/0276
WG 415 1979
MR. JOSEPH JACKSON, Q.C. and MR. NICHOLAS A.R. WILSON (instructed by Messrs Paisner & Company, solicitors, London) appeared on behalf of the Appellant (Plaintiff).
MR. PETER SINGER (instructed by Messrs Lee & Pembertons, solicitors, London) appeared on behalf of the Respondent (Defendant).
This is an appeal by the mother from an order made in wardship proceedings by Mr. Justice Lincoln on 4th March 1981. There is also an appeal by the father, by leave of the judge, from his order as to the costs of the proceedings.
The substantive part of the order under appeal is in the following terms:
"It is ordered that the minors should reside in Israel in the care and control of the Plaintiff (the mother) if she returns to Israel, otherwise in the care and control of the Defendant (the father) until further order. The said minors to remain Wards of this Court until they are ready to return to Israel".
In its present form this order is unsatisfactory on its face; it is self-contradictory in that the order for care and control will be rendered inoperative when the second part takes effect, and the children cease to be Wards of this court. The only part of the order which is effective is the order that they are to reside in Israel.
This order was made after the most protracted wardship proceedings in our joint experience. The mother's originating summons was issued and served as long ago as June 1979, and the matter has been before at least five different judges of the Family Division. In addition, there have been no less protracted parallel proceedings in the Rabbinical Court in Israel which began in February 1979, and are still not concluded, and unlikely to be concluded in the immediate future. Meanwhile, the two children concerned have been living with their mother in England since April 1979 when she brought them to this country, unilaterally, and in breach of an order of the Rabbinical Court. They are living in an Orthodox Jewish household, and attending Orthodox Jewish Schools, and doing exceptionally well. So far, there has been no effective decision in either court as to which of their parents in the future should be responsible for their care and upbringing. The sad truth of the matter is that the welfare of these children has been lost to sight in the clouds of dust generated by legal arguments in the courts of the two countries. Until the matter came before this court on the mother's application to extend the stay on the judge's order until the hearing of the appeal, there had been no welfare report, and no attempt had been made to ascertain the feelings and wishes of the children themselves, although the girl is an exceptionally intelligent twelve year old, and the boy is a bright and articulate seven year old. Their views are not, of course, in any way conclusive; they are, however, no less relevant than the views of their, by now, badly bruised and exhausted parents.
Since we find ourselves obliged, though with regret, to differ from the views so far expressed in the Rabbinical Court, and in the Grand Rabbinical Court, as to the future of these children, we think that we should explain, as briefly as possible, the principles upon which the English court is required, by English law, to act in cases like this, which concern the care and upbringing of children. It may also help the father to understand why we have arrived at a conclusion which, to him, must seem inexplicable.
From the moment when the proceedings are started in the Family Division of the High Court by the issue of an originating summons, the child concerned becomes a ward of court, and the judge who is dealing with the case becomes the guardian of the child and responsible for making all the decisions which seriously affect his or her life and welfare. It is his duty to hear and adjudicate upon the disputes between the parents of the child, or any other adult parties to the proceedings, but, in reaching a decision on any matter concerning the interests and welfare of the child, he is acting as the guardian of the child, so that the overriding consideration is always the welfare of the individual child, which is to be determined by the standards normally applied in this country. The wishes and interests of the parents are very important considerations, but they must yield to the prior interests of the child. In the same way, although an order or judgment of the court of another country relating to the child, must be given the fullest respect, it too must yield, if it is found to be in conflict with the interests of the child. These principles apply to all children who are physically within the jurisdiction of the court. It is rightly called the "parental jurisdiction", and supersedes both parents.
In this case the facts are simple compared with the complexity of the litigation. The father is 43 years of age. He was born in Israel and is now a successful business man living at 16 Kisch Street, Ramat Gan, near Tel Aviv. The mother is 35 years of age. She was born in England of Orthodox Jewish parents. They married in England on 27th August 1968, and went immediately to live in Israel. The father's family live in Israel, though one sister is married and lives in England. The mother's family live in England, though she has a brother in Israel.
They have had three children, A, who was born on 10th June 1969, so she is now 12 years old; G who was born on 20th January 1971, so he is 10 1/2 years old; and D who was born on 7th November 1973, so he is 7 1/2 years old.
The evidence in the case comes entirely from the mother's side because the father has declined to give evidence in these proceedings, for reasons to which reference will be made later. It shows that the mother suffered from post-natal depression after the birth of each of her children. Her relationship with her husband deteriorated over the years, producing a picture with which all of us are familiar in this court. In brief, an ailing or depressed, perhaps lonely and dispirited wife, married to a vigorous, extroverted successful business man, pre-occupied with his own affairs, becoming increasingly exasperated and unsympathetic to a wife who seems to be making no effort to "pull herself together". Each makes the other worse, and the tension between them rises until eventually breaking point is reached. In this case, according to the mother, the marriage had deteriorated to the point when, in January 1979, the father announced his intention of divorcing her. The question of custody of the children then became a vital issue to both of them, each refusing to contemplate giving up the children. In February 1979, each started proceedings almost simultaneously, the mother in the District Court at Tel Aviv, the father in the Rabbinical Court. The mother says (and it is not contradicted by the father) that she was subjected by him to a campaign of extreme harassment over the next two months, leading to ineffectual complaints by her to the police, and to court appearances. On 20th February 1979 the father obtained an order restraining the mother from leaving Israel with the children. The mother obtained a similar order against the father on 26th February 1979. Other orders followed including an order restraining the wife from removing the children from the matrimonial home. On 2nd April 1979, the wife obtained an order dividing the matrimonial home, and restraining each side from entering the other's part of the house. The mother's evidence is that the father ignored this order, entered her part of the house when she was out, and took away her jewellery, keys and other things, disconnected the telephone and finally turned off the electricity at the main switch which he controlled, leaving her and the children only candle-light. Her lawyers advised her that there was no prospect of obtaining a decision from the Rabbinical Court about the care and custody of the children for a long time. Faced with an indefinite prospect of continuing harassment and uncertainty, living in what she described as a ransacked apartment with no electricity, she decided that her only course was to take the children and return home to her parents in England, in spite of the order of the Rabbinical court restraining her from doing so. In her affidavit she says that she is normally a law abiding citizen who would not dream of defying a court order, and asks the court to accept this as some measure of her desperation. She obtained a new passport in her maiden name, and succeeded in leaving Israel with all three children on 5th April 1979, and took them to her parent's home in London.
On 6th June 1979, the mother issued an originating summons making the children Wards of Court and leave was given to serve the originating summons on the father out of the jurisdiction. On 23rd July 1979, Mr. Registrar Kenworthy made an interim order for care and control to the mother and gave directions that both parties were to file evidence.
On 11th June 1979, the father obtained an order in the Rabbinical court, ordering the mother to return to Israel with the children within thirty days. On 26th July 1979, the same court ordered her to return the children forthwith, and provided that she was to have exclusive possession either of her part of the matrimonial home or of the whole house (the order is not clear), and to have control of the children there for the time being. The order...
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