Re T. (Infants)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE RUSSELL,LORD JUSTICE FENTON ATKINSON |
| Judgment Date | 29 May 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0529-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 May 1968 |
[1968] EWCA Civ J0529-3
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Pennycuick)
Lord Justice Harman
Lord Justice Russell and
Lord Justice Fenton Atkinson
In the Matter of Lynn Charlotte Thomson (spinster and an infant) and David Allan Thomson (an infant) and in the Matter of the Guardianship of Infants Acts 1886-1925 and in the Matter of the Law Reform (Miscellaneous Provisions) Act 1949:
Mr. ANTHONY EWBANK (instructed by Messrs, Simmons & Simmons) appeared on behalf of the Appellant (Plaintiff).
Mr. CHRISTOPHER HORDERN (instructed by Messrs. Warmingtons & Hasties) appeared on behalf of the Respondent (Defendant).
This is a mother's appeal in wardship proceedings. The two wards are a boy and a girl, one aged 6½ and the other aged 5 or thereabouts. The mother, who is the plaintiff, appeals against an order of Mr. Justice Pennycuick in which he ordered that the children should be delivered into the care of their father, the defendant, whereby they may be taken by him back to Canada, and that when they leave this country their wardship shall be ended. The mother claims, as I understand her, that they ought to be left here in England in her care and remain wards of court.
This has been described as a "kidnapping" case. And so in my view it is. It does not particularly resemble any of the other kidnapping cases that have pestered these courts during the last couple of years or so but nevertheless, as will be seen when I recite the facts, it can justly so be described.
The parties were married in May of 1961 in the Province of Alberta in Canada. The husband is a native of that State and by origin, birth, residence and everything else a Canadian. The wife is by origin an Englishwoman. She had to Canada about a year before in order to work there and see whether she would care to I make it her home, which, as I understand, up to the time of her marriage she had not decided. She was 24 and he was 26. The children were born in due course, as I have said, and the younger is now 5 years old.
The wife came to England on holiday in 1966. She returned from that holiday to her home in Alberta in 1967, when her husband was away on what Canadians are pleased to call a "hunting" trip though we should perhaps call it a shooting holiday, she took the children without his knowledge or consent and removed them to England, where they have been ever since. The husband followed on the 17th December but by that time the wife, by way of precaution I suppose, had issued this originating summons asking that the children should be made wards of court. She did not put in any evidence in support of her summons for a long time and the husbandstarted the ball rolling with a statement of his own. There have followed statements and counter-statements, evidence, on the wife's behalf, of two doctors, evidence from the lady with whom she has now got a job as housekeeper, and evidence from the schoolmistress in England. Most of it I take to be quite irrelevant to anything we have to decide. Most of it consists of charges made by the wife against her husband. She says that she has serious grievances against him. They do not as far as I can see have any but a minimal relevance to the position of the children. She says that he made excessive sexual demands upon her. She says that he was morose and silent and subjected her to long periods when he would not speak to her. And that really is the burden of her complaint. She also says that he was a man who, when he drank, as he did at times, had "blackouts" as they were called, that is to say moments when he really did not know where he was or what he was doing; but he, having discovered this in 1964, took advice on the subject and was told that he was one of those people who can be described as an "alcoholic in the sense that when they take that amount of drink which would not hurt other people they do suffer in this way. He determined to cure himself by stopping drinking altogether; in that he has persevered ever since and since 1964 there has been no drinking on his part at all. How he demands that the children should be taken back to Canada under his care. He says: "These are Canadian children. The matrimonial home was in Canada. When my wife chose to marry me she chose to make her home there too. That is where we live. That is where we belong. That is where the children should go. My wife is welcome to come back. She is welcome, even if she does not come to my house, to come to Alberta, and there, if she can induce the local court or the provincial court so to decide, she may be able to get the custody, care and control of the children" "But", says he, "it is not tolerable that she by this one-handed action should deprive me altogether, as she proposes to do, of any communication with my children at all, because I am a man who has a living to earn and my living is earned in Canada, where Iam in receipt of a good or an adequate salary".
What is said against the wife is that she has determined for her own selfish reasons to cut these children off altogether from the society, comfort and help of their father, and that because she thinks she would prefer to live in England she comes to live in England and will have none of his proposals for reconciliation.
Now I think it is right to say that this Court sets itself against these unilateral movements of children which have been far too frequent in the last few years. I take it that the right view of it is that the Court should, other things being equal, set its face against such conduct, and I am supported in that by the observations of Lord Justice Willmer in the case of In re E., in 1967 Chancery, at page 768, where the Lord Justice is discussing Mr. Justice Cross's judgment. He says this: "At the outset of his Judgment, after expressing his concern at what he described as the growing tendency, which has recently been apparent, of kidnapping children in this way and removing then from the jurisdiction...
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