J v C (C (J M) (An Infant), In re)

In any proceeding concerning an infant’s custody or upbringing, the child’s welfare is the first and paramount consideration. The court must weigh all relevant circumstances and choose the course which best serves that welfare.

There is no rule or legal presumption that the wishes of unimpeachable natural parents prevail. Those wishes and the natural relationship ordinarily carry great weight, but remain subordinate to welfare. The principle applies equally to disputes between parents and strangers. Wardship may therefore place care and control with foster parents where the child’s welfare requires it, even though the natural parents are fit and refuse consent to adoption.

A Spanish boy had lived for most of his life in England with foster parents. His natural parents, who lived in Spain and were fit and able to care for him, sought his return. Ungoed-Thomas J continued care and control with the foster parents because removal to Spain carried a serious risk of lasting harm. The Court of Appeal unanimously dismissed the parents’ appeal.

The parents appealed to the House of Lords. They argued that fit natural parents were presumptively entitled to custody, that the wardship order amounted to adoption without consent, and that comity required return of a foreign child. The central issue was whether welfare governed the whole discretionary inquiry under section 1 of the Guardianship of Infants Act 1925, or whether parental rights prevailed unless forfeited.

1. Appeal dismissed unanimously. Lord Guest, Lord MacDermott, Lord Upjohn and Lord Donovan held that Ungoed-Thomas J had applied the correct principles and that there was no basis for appellate interference with his discretion. Lord Pearson agreed with Lord MacDermott.

2. Per Lord MacDermott, section 1 of the Guardianship of Infants Act 1925 applies to disputes between parents and strangers as well as disputes between parents. Its deliberately wide language could not be confined by the preamble. Lord Guest, Lord Upjohn and Lord Donovan reached the same conclusion.

3. Per Lord MacDermott, the statutory words require the court to consider and weigh all relevant facts, relationships, parental claims and wishes, risks and choices. The court must then adopt the course most conducive to the child’s welfare. Welfare is paramount because it determines the course to be followed. The wishes of fit natural parents have special and often preponderating weight because the natural relationship commonly serves welfare, but they are qualified rather than absolute. No rule or presumption of law requires those wishes to prevail.

4. Lord Guest and Lord Upjohn held that In re Carroll [1931] 1 KB 317 was wrongly decided insofar as it treated parental wishes as decisive and confined the 1925 Act to disputes between parents. Lord MacDermott likewise held that its majority approach was no longer authoritative.

5. Per Lord Guest, Lord MacDermott and Lord Upjohn, a wardship custody order is not an adoption order. It remains variable, does not extinguish the natural parents’ status, and may preserve access. The parental-consent requirements of the Adoption Act 1958 therefore did not restrict the wardship power.

6. Per Lord Guest, Lord MacDermott and Lord Upjohn, the English court’s wardship jurisdiction extends to a foreign child resident here. Nationality and any foreign order are relevant considerations, but neither displaces the independent duty to decide custody by reference to welfare. No question of comity arose because there was no Spanish order.

7. The judge was entitled to find that removal from the settled foster home to an unfamiliar family, language and country created an unacceptable risk of serious harm. The existing order for care and control with the foster parents therefore remained in force until further order.

1. House of Lords: The parents’ appeal was dismissed unanimously. The order leaving care and control with the foster parents remained in force.
2. Court of Appeal: Harman, Salmon and Winn LJJ unanimously dismissed the parents’ appeal from Ungoed-Thomas J. The order was made on 30 July 1968.
3. High Court, Chancery Division: Ungoed-Thomas J made the child a ward of court in 1965 and committed care and control to the foster parents. On 31 July 1967 he refused both the natural parents’ application for care and control and the foster parents’ application to change the child’s religious upbringing, leaving the earlier order in force.