Re M (Child's Upbringing);  2 FCR 473
- Edited by:
- The Rt Hon Sir Mathew Thorpe
- Bloomsbury Professional
Re M (Child's Upbringing)
COURT OF APPEAL
5 MARCH 1996
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.
Children Act 1989, s 1(2).
H (A Minor) (Interim Custody), Re  FCR 985.
K (A Minor) (Custody), Re  FCR 553.
K (Private Placement for Adoption), Re  FCR 142.
KD (A Minor) (Ward: Termination of Access), Re  FCR 657;  AC 806;  2 WLR 398;  1 All ER 577.
W (A Minor) (Residence Order), Re  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.
This 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 this stage it is sufficient to say that on 12 March 1992 the father and mother signed a document which gave the appellant permission to take P to London.
The appellant together with her daughters and P arrived in the United Kingdom on 16 March 1992. The appellant told the immigration authorities that she wished to adopt P and P was given leave to remain for three months.
The father and mother remained behind in South Africa. After a short time the mother left the farmhouse at Brakpan and returned to her own village in Leboa. On 1 May 1992 she took employment with a new employer as a housekeeper.
On 12 May 1992 the appellant instructed her solicitors to consider ways in which P's continued residence in the United Kingdom could be arranged. It seems from the evidence to which Ward, LJ refers in his judgment that, unknown to the parents, the appellant had already reached a firm decision that she wished to adopt P.
In October 1992 the appellant's solicitors wrote to an advice office in Johannesburg known as Black Sash asking for arrangements to be made for a social worker to visit the mother, and if possible the father, in order to establish their wishes as to an adoption. The letter from Mrs Duncan of Black Sash is among the papers before the court and I should refer to passages in it. Mrs Duncan wrote:
"I have spoken to [the mother] ... I had merely intended to make an appointment to see her but when I told her what it was about she immediately said that she does not want her `baby' adopted and in fact wants him to return home.
I checked carefully that I was understanding what she said and she repeated it several times.
She never meant him to remain in England and I am not sure what consent she signed for [the appellant] to take him with her but [the appellant] would have needed such a letter in order to have the child entered into her passport or issued with one of his own.
I then spoke to ... [the mother's present employer] ... who confirmed that [the appellant's] sister-in-law had been to see [the mother] and had been told that there is no consent to an adoption.
[The mother] has also been very worried because she has not had a phone call from [the appellant and P] since July.
Please keep me in touch with what happens as I do feel it is important that [P] is returned to his family as soon as possible."
A few days later, however, Mrs Duncan wrote again to say that the position appeared to have changed. The mother was saying that if P stayed in England he would have to visit her each year for a month. There was then some delay because the mother left her employment. On 21 January 1993 the father and the mother were interviewed at the offices of Black Sash in Johannesburg. A report of this interview was sent to the appellant's solicitors on 20 February 1993. The report included these passages:
"The parents are not married but have the intention to marry in the future.
The couple state that last year [the appellant] informed them that the country was on the verge of a civil war and that she had decided to leave South Africa for five years. She said that she was certain that things would return to normal in five years' time. She asked [the mother and father] for permission to take [P] with her for that period so that he could have a good education abroad ...
[The father and the mother] say that they trusted [the appellant] and thus permitted her to take the child to London. One thing which convinced them that [the appellant] would return to South Africa in five years is that she did not sell her furniture but asked friends to keep it for her until her return.
The couple is strongly opposed to the idea of giving up their child for adoption. They are clear that the consent they signed was only for the purpose of having the child entered in [the appellant's] passport. The issue of adoption was never discussed. They never even thought of it.
Both parents feel that if [the appellant] wants to break the agreement that was made between them and take the child for ever the child should be returned to them as soon as possible and not to wait for the five years they agreed to. He is still young and the sooner he comes home the easier it will be for him to settle back to his own community.
[The father] added that when [P] comes back he will live with [the mother] and himself. [The father] intends to marry [the mother] and to take full responsibility for the family."
There then followed a period of several months during which Black Sash lost touch with the father and the mother. A further interview with the parents took place, however, on 22 November 1993 and following this interview the advice office co-ordinator wrote to the appellant's solicitors to inform them that the parents remained adamant that they would not agree to the appellant adopting their child and that they were very doubtful about agreeing to a residence order. The letter continued:
"They say that [the appellant] should bring [P] to South Africa to have a discussion with them about what [a residence order] would mean to the child. They would want lawyers for both parties to be present at such a meeting."
On 2 May 1994 Black Sash arranged for the parents to be represented by Lawyers for Human Rights in Johannesburg. There was then some further correspondence during 1994 between Black Sash and the City of Westminster to
whom the appellant gave a formal notice of intention to adopt on 14 July 1994.
On 28 July 1994 the appellant issued an application for an adoption order and an application for a residence order. On 29 September 1994 P became a ward of court.
In the following months a number of orders were made by the court giving directions as to the conduct of the proceedings. The Official Solicitor was appointed to act as guardian ad litem for P and the City of Westminster were joined as defendants. The Official Solicitor was given leave to consult Dr Hamish Cameron, the consultant child psychiatrist.
The case came on for hearing before Thorpe, J on 19 June 1995. Before I come to consider this hearing in further detail I should mention these additional facts:
(1) On 2 September 1994 the father and the mother went through a ceremony of civil marriage in South Africa. The Judge held that this was the only marriage that had been proved to his satisfaction. He was not satisfied that they had proved the existence of an earlier traditional marriage.
(2) On 16 March 1995 the mother gave birth to a daughter.
(3) On 17 March 1995 Ewbank, J gave leave to the Westminster City Council to instruct an expert in the field of transracial adoption. Mrs Vivian Biggs was chosen. She met P and the appellant and her family in London on 1 May. On 5 May 1995 she went to South Africa for four days where she visited the father and mother on two occasions. On her return she wrote a report dated 18 May 1995.
(4) On 24 March 1995 Dr Cameron, who had been instructed by the Official Solicitor on 21 November 1994 to prepare a psychiatric report on P and to give advice as to his best interests, visited the appellant's flat and saw P and the appellant and her three daughters. The visit lasted about six-and-a-half hours. Dr Cameron subsequently wrote a written report dated 16 May 1995. On 15 June 1995 Dr Cameron wrote a second report. This report was based on an interview which he had had with the father and the mother in London on 1 June 1995, on a further interview with the parents when he saw them with P, and finally on a visit to the appellant's flat on 12 June 1995 when he saw the appellant and P who had just returned from school.
(5) The father and the mother arrived in London towards the end of May 1995. They brought their baby daughter with them. After their arrival P made a number of visits to see them at the flat which had been made available for their use in South East London. The parents had declined an invitation from the appellant to stay at her flat.
I come now to the hearing before Thorpe, J. The hearing of the evidence took place between Tuesday 20 June and Thursday 29 June 1995. The Judge gave his judgment on Friday 30 June 1995.
In his judgment the Judge traced the events which had led up to the hearing and made a number of findings.
It will be remembered that at an earlier stage of this judgment I said that I would return to deal in more detail with the circumstances surrounding P's departure from South Africa in March 1992. I should therefore refer to that part of the judgment where Thorpe, J dealt with the matter. He drew attention to the fact that only a
short interval elapsed between the appellant's decision to leave South Africa and the departure for England. He said that he was satisfied that the appellant's first preference would have been to take both the mother and P with her to London, but the mother made it plain that she would not leave her homeland. The Judge continued:
"I suppose the easiest course for [the appellant] in practical terms would have been to have left [P] behind with [the mother]. But of course she had by then a strong emotional and psychological attachment to the child. Those attachments led her to offer to continue to take responsibility for [P] and to provide for him as though he were her own child. Discussions initially were with [the mother] alone, but were then extended to include his father ... There is no doubt at all that both [the mother and the father] agreed to [P] accompanying the [the appellant's] family. They signed a paper to that effect, which was subsequently used to obtain the necessary authority and leave for his departure. There is no doubt at all that it was agreed that [the appellant] would finance an annual return for [P] to his parents. There is no doubt that she agreed to finance an annual visit by [the mother] to London.
The only issue between the parties is as to the duration of the arrangement. [The appellant] asserts that it was an indefinite arrangement that would endure until the completion of [P's] education. [The father and the mother] assert that the arrangement was for five years precisely. It seems to me that reality lies somewhere between these two poles. It is only too easy to understand that the parties may have received different impressions as to the duration of the arrangement.
There is evidence, which seems to me significant, that a possibility that was strongly mooted then was that the entire family would return to the Republic once and if the political and civil unrest subsided. In that event, of course, [P's] privileged education would continue in the Republic."
A little later in his judgment the Judge considered the correspondence, so far as it had survived, which had passed between the parents and the appellant and P in the period between March 1992 and 1995. The Judge noted that apart from one Christmas card, sent in December 1994, there had been no communication between the father and P. The Judge considered that this fact supported his conclusion that the father was an insubstantial figure in P's life. The Judge continued:
"The correspondence shows the closeness of the relationship between [the mother] and [the appellant's] family. It further shows the tragic evaporation of trust and affection, gradual but steady, and the manner in which the performance of the terms for reciprocal visits was frustrated. The correspondence is not complete, but there is enough to reveal a surprisingly clear picture; and it is significant that the correspondence peters from frequent and intense, in the years 1992 and 1993, to non-existent after the commencement of litigation."
A little later the Judge referred to the 10 letters which the mother wrote to England between June and August 1993. Most of these letters were written to P, although two were sent to a friend of the appellant. The Judge summarized them
"The letters are all very much of the same theme. Throughout is this plea: `Will you come to me to South Africa, [P], as I love you? ... I want [P] to come to me please. Look, [P] is one year since I last saw you. [P], it is not good.' This heart-rending message is manifest from the whole series of letters, some of which were being dispatched within days of each other. It is the only prolific batch of correspondence from the mother in which she pleads for the return of her child. The answer that it achieved must have been for her, utterly despairing."
The Judge then referred to a letter from the appellant written in July 1993 in which the appellant told the mother that she could not send P to South Africa at that stage. The Judge described the letter as "a surprisingly dispassionate response to what were moving appeals".
In 1994 the correspondence fell away. The only communications were a letter from the mother in February 1994 and a Christmas card sent by the father and mother to P at the end of the year. It is to be noted, however, that in the February letter the mother repeated her plea that P should come back.
The Judge then turned to examine the oral evidence.
The Judge considered the appellant to be "a woman of unusually forceful personality, with an unusual capacity to achieve against the odds". At the same time he considered that she bore a heavy responsibility for the fact that the essential conditions of the parent's consent to her taking P to England in 1992, which were designed to preserve the relationship between them and their child and to preserve his attachment to his own people and culture, had not been observed. It is to be noted, however, that on a number of issues the Judge preferred the evidence of the appellant to that of the parents.
The Judge found the evidence of the parents to be unreliable on a number of important matters, though he regarded the statements that they had made to Black Sash at the beginning of their investigations to be "entirely reliable and realistic".
The Judge referred to the other oral evidence which he had heard. It is clear that he found most of the other witnesses to be of little significance. In particular he placed little reliance on the evidence of Mrs Biggs and Miss Endbinder. Miss Endbinder was the social worker who had looked after P's interest on behalf of the City of Westminster.
It is plain, however, that the Judge was much impressed by the evidence of Dr Cameron, who had given what the Judge described as "a particularly impressive exposition of his findings and conclusions". The Judge added that he had absolutely no doubt at all of "the profundity and wisdom of his findings and conclusions". It is therefore necessary to pay careful attention to the evidence of Dr Cameron.
In the course of his two written reports and in his oral evidence Dr Cameron identified three possible solutions:
(a) Adoption, as sought by the appellant.
(b) An immediate return to South Africa, as sought by the parents.
(c) A return to South Africa at the end of the period of the "accord", which had been reached in South Africa whereby P had come to England in 1992.
The Judge had no difficulty in rejecting adoption by the appellant as a possible solution. He said that it had seemed to him from the outset that the application had no realistic chance of success, and indeed towards the end of the hearing the appellant herself abandoned this solution. She continued however, to seek a residence order.
The Judge also rejected the solution sought by the parents, which was the immediate return of P to South Africa. In rejecting this solution he took a number of factors into account including the following:
(1) The principles of law which he considered should be applied.
(2) The psychological attachment of P to the appellant and her family.
(3) The evidence of Dr Cameron as to the dangerous consequences of forcefully and precipitately rupturing the contact between P and the appellant.
The Judge therefore concluded that it would be wrong to make an order for P's immediate return to South Africa, but, in disagreement with Dr Cameron, that it was necessary to make a decision as to P's ultimate home and that this decision could not be postponed for a further two years.
I shall have to return later to examine the principles of law which the Judge applied but it is convenient if I first set out some passages from the judgment in which the Judge stated his final conclusion.
The Judge recorded Dr Cameron's advice that there should be a review in two years' time and that in the interim the arrangement negotiated in March 1992 should be continued, though with the proviso that there should be the immediate restoration of the agreed links between P and his family and his homeland. The Judge concluded, however, that he "should make a determination which, as far as possible, lays down a master plan to which the adults must work and thereby precludes the need for another battle in 1997".
It would seem that at that stage of his judgment the Judge had in mind that, barring some wholly unexpected event, P would return to South Africa in 1997, that is, at the expiration of the five-year period to which the parents, on their account, had agreed in March 1992. But there are also passages on the following pages of the judgment which suggest that the Judge contemplated that the hearing in 1997 might reopen the question of where P was to spend the remainder of his school days. The Judge continued:
"... obviously, this court has to have regard to the wishes and feelings of the child and if, in two years' time, there is a continuing offer of London education from [the appellant], supported by fervently expressed wishes and feelings from [P] that represents a formidable combination. But any such presentation would be very stringently scrutinized to ensure that the stated wishes and feelings of the child were not the product of both influence and isolation, and that [the appellant's] attachment was not something that was impeding [P] from development which must be, in the last resort and profoundly, Zulu development and not Afrikaans or English development.
So I think that there must be a firm recognition that [P] returns to South Africa. The only question is when and how that can be achieved ... I think it is in [P's] interest that there should be a clear ruling from this court that, whilst return is impossible in the immediate future, and whilst the arrangement that
was negotiated in March 1992 must be given primacy, at its conclusion the presumption is return, unless there is at that stage a consensual extension to represent the restoration of co-operation between the adults ...
A final consideration that bears upon the future and the time-scale of return is the parents' need to prove themselves in the light of the rejection of their case that they have been a settled married couple throughout the history. The reality is that they have only come together since, and perhaps as a result of, this case. Their present house seems inadequate. Their presentation of the future is dependent on the generosity of others, and their ability to earn consistently and achieve material targets that have opened to them in the new South Africa. In [P's] interests this court should not take too much on trust. The next two years will give the parents the chance to turn their proposals into reality."
At the end of his judgment the Judge invited counsel to discuss the precise terms of the order. The order in its final form was made on 10 July 1995. It incorporated undertakings both by the parents and by the appellant which were designed to ensure that contact was maintained between P and his parents while the appellant continued to have care and control of him in England. The undertakings given by the appellant included:
(a) An undertaking to provide the mother with a return ticket to England once a year.
(b) An undertaking to provide P with two return tickets each year to South Africa.
(c) An undertaking to provide P on a regular basis with lessons in the Zulu language.
The order provided that P should remain a ward of court until further order and it also made provision for direct and indirect contact between P and his parents. Paragraph 6 of the order was in these terms:
"That the matter be restored for the purposes of a review in two years' time, such review to be directed to the determination of the date and circumstances of the ward's permanent return to South Africa."
Following the order dated 10 July 1995 an application was made by the parents in the Witwatersrand Local Division of the Supreme Court of South Africa. On 8 August 1995 an order was made that the parents should do all things necessary to give effect to the order of Thorpe, J
Meanwhile, the appellant's solicitors wrote to the other parties to inform them that the appellant was considering an appeal so as to ensure that the review in 1997 should be a general review and should not be limited by the "master plan" laid down by Thorpe, J. It was suggested that it might be possible for the matter to be dealt with by consent. No agreement could be reached between the parties, however, and there is now before the court both an appeal by the appellant and what is in effect a cross-appeal by the parents.
On the hearing of the appeal it became clear that the appellant wishes to argue on the review ordered by Thorpe, J in 1997 that the whole issue of P's residence
and upbringing during his adolescent years should be reopened. Our attention was drawn to those passages (which I have already set out) towards the end of Thorpe, J's judgment which suggested that at least the following matters would be investigated during the 1997 review:
(a) Whether the appellant was still willing to educate P in London.
(b) Whether the father and the mother continued to have a settledrelationship.
(c) Whether the father and the mother had adequate housing in SouthAfrica.
(d) Whether the father, and perhaps the mother, were in regularemployment.
(e) The expressed wishes of P in 1997.
It was therefore argued that in any event para 6 of the order of 10 July 1995 should be amended so as to delete the following words:
"... such review to be directed to the determination of the date and circumstances of the ward's permanent return to South Africa."
As the argument developed, however, it became apparent that the appellant does not accept the inevitability of P's return to South Africa. At the review she would seek to question the suitability of the accommodation and the education which the parents could provide for P in South Africa. She wishes, if she can, to arrange for him to be educated at a leading independent school in England.
The parents for their part support the Judge's decision that P's future development should be a Zulu development. But it was argued on their behalf that, despite the difficulties, P's return to South Africa cannot be delayed for another 18 months. In support of this argument counsel drew attention to a number of matters including the following:
(1) The whole basis upon which the parents originally agreed that P could come to England had disappeared. The appellant's attempt to adopt P had shattered the parents' confidence in her.
(2) At the hearing before the Judge the appellant had stated in evidence that she would be able to finance three or four meetings between P and his parents every year. In large measure this evidence had been reflected in the undertakings which the appellant had given to the court which provided for two visits by P to South Africa and one visit by the mother to England each year. In fact the appellant had been unable to abide by her undertaking. P went to South Africa in September 1995 for part of the school holidays, but the appellant was unable to pay for the mother's visit to England at Christmas. The parents considered that once again they had been let down.
(3) It is now apparent that the appellant is unemployed and is in receipt of income support.
(4) The Judge's master plan was constructed on the hypothesis that the appellant would co-operate with the parents so as to make P's return to South Africa in 1997 as free from difficulty as possible. This co-operation had not been forthcoming and the problems which flowed from the fact that P had now been in England for nearly four years were increasing all the time. As the Judge noted in his judgment
P had lost his ability to speak Zulu and his links with his homeland were growing more tenuous.
In these circumstances it was suggested that the right course was to order the return of P at Easter at the conclusion of the present school term. In the alternative it was submitted that, if there was to be a further review in the Family Division, such a review should take place during the next few months. It should not be postponed until next year.
It is against this background that one must try to reach a conclusion in this very difficult and anxious case. First, however, it is necessary to say something about the law because, with all due respect to the Judge, I am not satisfied that he gave proper weight to the special position of P's natural parents.
In the course of his judgment the Judge referred to the well-known passage in the speech of Lord Templeman in Re KD (A Minor) (Ward: Termination of Access)  FCR 657 where he said at p 660D:
"The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered."
Having cited this passage the Judge then continued:
"It is said that within that passage is a principle that requires this court to accede to the parents' claim to provide [P] with immediate parenting in South Africa. That passage is taken from a speech determining an appeal in which a parent sought to re-establish direct contact with a child. It begs the question: who is the natural parent, when the issue is to determine who should have the daily care of a child when one applicant is the biological parent and the other the psychological parent? I know of no statement of principle, in any decided case, that particularly guides the resolution of that competing claim.
This case is further complicated by the fact that this boy has two psychological parents and they are both psychological mothers. Equally I know of no statement of principle that determines the conclusion of such competing claims. The only guiding principle is that that overrides all cases affecting children, whether determined in wardship or under the Children Act 1989, namely that the welfare of the child is paramount. It is the function of the Judge to choose that solution which promotes welfare, or, more relevantly, is likely to prove the least damaging to the child in its intellectual, physical, emotional and psychological development."
In considering the right approach it is necessary to take account of some of the cases decided since Re KD (above). I would refer first to a passage in the judgment of Waite, J in Re K (A Minor) (Custody)  FCR 553 where he said at p 559F:
"The principle is that the court in wardship will not act in opposition to a natural parent unless judicially satisfied that the child's welfare requires that the parental right should be suspended or superseded. The speeches in the House of Lords make it plain that the term `parental right' is not there used
in a proprietary sense, but rather is describing the right of every child, as part of its general welfare, to have the ties of nature maintained wherever possible, with the parents who gave it life."
The correct approach was further explained by Lord Donaldson in Re H (A Minor) (Interim Custody)  FCR 985 where he said at p 988G:
"So it is not a case of parental right opposed to the interests of the child, with an assumption that parental right prevails unless there are strong reasons in terms of the interests of the child. It is the same test which is being applied, the welfare of the child. And all that Re K is saying, as I understand it, is that of course there is a strong supposition that, other things being equal, it is in the interests of the child that it should remain with its natural parents."
It seems to me that the meaning of the term "natural parents" is quite clear. It means the biological parents. Of course, there will be cases where the welfare of the child requires that the child's right to be with his natural parents has to give way in his own interest to other considerations. But I am satisfied that in this case, as in other cases, one starts with the strong supposition that it is in the interests of P that he should be brought up with his natural parents.
In a crucial passage in his judgment Thorpe, J stated that P's development "must be, in the last resort and profoundly, Zulu development and not Afrikaans or English development". In the light of the principles of law which are to be applied and in the light of the evidence in this case I am satisfied that that conclusion was manifestly correct and should not be disturbed.
The question then arises: is it any longer possible to give effect to the Judge's master plan? One can see the eminent good sense of the master plan, though I see great force in the submission of Miss Parker, QC that the Judge could not as a matter of law fetter the discretion of the Judge who conducted the review in 1997. But it was of the essence of the master plan that all parties would work towards the reintroduction of P to his family and to his own country. This has not happened. P is now 10 and the gap between him and his homeland is growing wider.
Miss Parker very properly directed our attention to the careful reports prepared by Dr Cameron and passages in Dr Cameron's evidence. I should therefore refer in particular to a passage towards the end of Dr Cameron's oral evidence. The Judge said that Dr Cameron's position was perfectly plain and that in his view immediate return to South Africa was going to be deeply traumatic for P. Dr Cameron expanded his fears as follows:
"Things can help to ameliorate but they will not overcome the fundamental traumatic effect of a traumatic, abrupt separation over the space of even a few weeks. If he is going to return, it would have to be worked on and planned and negotiated and agreed by all parties as being in his best interests with [P] understanding it and being party to all that planning and decision making. At the moment the boy is nowhere near that decision and he would be utterly dismayed if we were to say `you have to go back forthwith, this summer'."
This is very powerful evidence. There are other passages to the same effect. Moreover the recent report of the Official Solicitor dated 31 January 1996 points to some of the difficulties which P will experience in adjusting to a new life in South Africa.
Nevertheless after anxious consideration I have come to the conclusion that any further delay cannot be in P's interests. The longer he stays here the more difficult the parting will be and the further his education will have advanced.
Anyone who has studied this case cannot fail to have great admiration for the appellant and for the love and affection which she and her family have given to P since he was a baby. But he has the right to be reunited with his Zulu parents and with his extended family in South Africa. In my judgment he should return there at Easter.
I would therefore dismiss the appeal and allow the cross-appeal to the extent which I have indicated.
I am in entire agreement with the judgment of Neill, LJ but in deference to Thorpe, J, I respectfully add these reasons to explain why I disagree with him.
This is a sorely difficult case because, as the Judge observed:
"The tragic thing about this case is that the adults have unwittingly created or permitted the development of a situation in which there is no good solution and the court is faced with a choice between solutions which are, all of them, unsatisfactory, and all of them in some degree damaging or risking damage to the child. It is my job to choose which of those alternatives is likely to prove least damaging ..."
The Court of Appeal must be chary indeed about interfering with such a delicate exercise of discretion, especially where made by a Judge as experienced and as sensitive as this. The upholding of an exercise of discretion which does not exceed the generous ambit within which reasonable disagreement is possible, is, however, always dependent upon the Judge applying the right principles. This is how the Judge directed himself:
"The submissions of the local authority, adopted by the parents, is that there is a principle to be extracted from the case of Re KD  F.C.R. 657, in particular the citation from the speech of Lord Templeman at p.660D:
`The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered.'
It is said that within that passage is a principle that requires the court to accede to the parents' claim to provide [P] with immediate parenting in South Africa. That passage is taken from the speech determining an appeal in which a parent sought to re-establish direct contact with the child. It begs the question: who is the natural parent, when the issue is to determine who should have the daily care of a child when one applicant is the biological parent and the other the psychological parent? I know of no statement of principle, in any decided case,
that particularly guides the resolution of that completing claim. This case is further complicated by the fact that this boy has two psychological parents and they are both psychological mothers. Equally I know of no statement of principle that determines the conclusion of such competing claims. The only guiding principle is that that overrides all cases affecting children, whether determined in wardship or under the Children Act 1989, namely, that the welfare of the child is paramount. It is the function of the Judge to choose that solution which promotes welfare, or, more relevantly, is likely to prove the least damaging to the child in its educational, physical, emotional and psychological development."
With respect to the Judge, there is in my judgment an established line of authority which does guide the resolution of the competing claims of a psychological parent and a biological parent, and, a fortiori, the claims of two psychological mothers, one of whom bore the child. Although Re KD involved contact, the principle there expressed is one of general application, namely that, per Lord Oliver of Aylmerton at  FCR 657, 672F:
"... the natural bond and relationship between parent and child gives rise to universally recognized norms which ought not to be gratuitously interfered with and which, if interfered with at all, ought to be so only if the welfare of the child dictates it."
In Re K (A Minor) (Custody)  FCR 553, Fox, LJ may well have gone slightly further in setting up the test at p 557D in these terms:
"The question was not where would R get the better home. The question was: was it demonstrated that the welfare of the child positively demanded the displacement of the parental right."
The approach of Waite, J (as he then was) may be preferable and at p 559D he spoke of:
"The right of every child, as part of its general welfare, to have the ties of nature maintained wherever possible with the parents who gave it life.
... The question he ought of course to have been asking was: are there any compelling factors which require me to override the prima facie right of this child to upbringing by its surviving natural parent."
In Re K (Private Placement for Adoption)  FCR 142 Butler-Sloss, LJ with whom Sir Patrick O'Connor and Purchas, LJ agreed, followed Fox, LJ but also said this at p 147H:
"The mother must be shown to be entirely unsuitable before another family can be considered otherwise we are in grave danger of slipping into social engineering."
This case was not referred to in Re H (A Minor) (Interim Custody)  FCR 985 where Lord Donaldson expressed caution about the judgment of Fox, LJ and preferred Waite, J's approach. The last of this line of authorities is Re W (A Minor) (Residence Order)  2 FCR 589 where Balcombe, LJ concluded
at p 633F:
"For my part I agree wholeheartedly with what Lord Donaldson says there, and I hope that it may be possible that this divergence of views, if such it really is, can finally be stilled. I would repeat what Lord Donaldson says, it is the welfare of the child which is the test, but of course there is a strong supposition that, other things being equal, it is in the interests of the child that it shall remain with its natural parents, but that has to give way to the particular needs in particular situations."
Waite, LJ agreed.
In my judgment that strong supposition, other things being equal, that it is in the interests of the child to be brought up by his natural parents, is a guide to the resolution of the competing claims in this case which Thorpe, J in error did not follow. I agree this is not determinative of the conclusion for it must be subservient to the paramount consideration, which the court has always in mind, that is to say, the welfare of the child.
Thorpe, J was in no doubt at all that Dr Cameron's solution for "a return to, and a completion of, the accord that had been achieved in South Africa to enable [P] to come to this jurisdiction" was likely to prove the least damaging. Dr Cameron was recommending a review in two years' time. He was asked by Miss Parker, QC:
"What is the purpose of this review and what is to be its format? Who is to make the decision?"
His answer was:
"It is always balanced, my Lord, is it not, between producing a surgical decision which is convenient for stopping the litigation, to put it no more strongly than that, and trying to find a way whereby the adults who started behaving in a very appropriate and responsible way towards each other in 1992 and throughout 1992 – at the back of my mind, quite clearly, I am hoping that at the end of these proceedings that a decision will be made where [P] will be brought up, where he will go to school, which family he will be with and the five years will go by and in two years' time, there will be a chance of the parents and [the appellant] continuing to give the joint care he has had so successfully for the first nearly seven years of his life: six in South Africa and one in London."
Later he said:
"I am confident that after the court has reached its decision these people will be able to talk and communicate and share and discuss – they all want the best for [P]. They have a long history of having lived and worked together and I am in no doubt that they will get underway and do what is necessary after the court has reached its decision. This is not a situation where antagonisms go miles back in history. These antagonisms between [the appellant] and [the parents] are late in their relationship and in particular [the appellant] and [mother] had an excellent relationship, living together day in day out for seven years."
Towards the end of his evidence Dr Cameron said in answer to the Judge:
"The final thing which will be essential is that the natural parents, particularly [the mother] and [the appellant] should be in harmonious dialogue about this boy and they would actually continue to meet as they started and go on working together and, indeed, taking care of this boy as they did for the first six years of his life and as I am sure they are capable of doing again, because that is what the boy needs."
Having regard to that evidence the Judge was clearly right to find:
"The extent to which Dr. Cameron's solution proves to be least damaging depends, in real measure, upon the reaction that the parties have to judgment. The more they can find it in their hearts to resume intimate and affectionate communication, the less damage to the child. If they continue to distrust and to dislike, then the prospects for [P] are not particularly good."
The Judge properly posed the problem but he did not fully answer it. With the benefit of hindsight and with the fresh evidence laid before us it is clear that trust and affection have not been restored. There is no harmonious dialogue, indeed very little dialogue at all. The appellant's undertaking to afford P two holidays in South Africa has been broken and she seeks to be released from it. In his supplementary judgment on contact the Judge had found that "the welfare consideration leans heavily in favour of the second annual visit" and that will now not happen. If ever there were faint hope of repairing the breach, then that hope has gone.
The Judge had, as he acknowledges in the judgment, made it plain from the outset (and one sees this early in the evidence of the appellant) that:
"It was vital that the adults in the case should resume communication and work to restore the trust and goodwill that had characterized their relationships over the course of seven years before their departure. I emphasized the importance of endeavouring to move from the extreme positions that the contending applications advanced, towards the middle ground identified by the Official Solicitor."
He would not have wished to have sabotaged the prospects of bringing that about by making findings which were wholly adverse to either or both of the parties. He did make findings that:
"The correspondence shows the closeness of the relationship between [mother] and [the appellant's] family. It further shows the tragic evaporation of trust and affection, gradual but steady, and the manner in which the performance of the terms for reciprocal visits was frustrated ... This correspondence shows the tragedy of the case, how a relationship of real love between the [appellant's] family and [mother] withered away to nothing and then to active distrust and animosity, certainly, on [mother's] side ... It is manifest from the correspondence which I have reviewed, that the [appellant] bears a heavy responsibility for the failure to perform the essential conditions of the parents' consent, which were designed to preserve the relationship between them and their child and to preserve his attachment to his own people and culture."
He could have been harsher on the appellant. There was not only an issue between the parties as to the duration of this arrangement but also as to its purpose. The appellant gave the following evidence:
"Q. What was your understanding as to how long he would remain in the U.K. after you had brought him here when you came with him?
A. Indefinitely, or until such an age that he was 18, that he was an adult ...
Under no circumstances would I have said five years ...
Q. Now in your discussions with the mother and father, you are adamant that you mentioned adoption?
A. Yes ...
Q. And you had left South Africa with the full intention, you say, of adopting [P]?
A. That is correct ...
Q. Your case is this, in a nutshell, that you took [P] from South Africa to England with the full informed knowledge and consent of his parents that this would be a permanent adoptive placement, is that right?
Q. And it was your design to regularize the position as soon as you could by formal adoption?
A. Yes ...
Q. The fact is, is it not, that you knew you did not have their consent to adopt?
A. That is why I sought their consent to adopt.
Q. You knew that before you left South Africa with [P] you did not have the parents' consent to adopt?
A. Yes ...
Q. May I turn to the question of whether it was a permanent removal or a removal for a purpose, and for a specific time span. You say it was to be a permanent arrangement.
Q. Was that permanent arrangement always linked by you with adoption?
A. Yes ...
Q. You see, putting it very bluntly, these parents think they have been tricked, and they have been closed out of [P's] life. Can you understand why they should think that?
A. Yes, I can."
That adoption was in the appellant's mind is borne out by the fact that she informed the immigration authorities on arrival at Heathrow that "she was bringing him to the UK for adoption".
The mother's evidence was unshakable. She said:
"Q. [The appellant] says that there were discussions about adoption with you, is that right?
A. [The appellant] has never mentioned adoption at all in South Africa ...
The decision I made, my Lord, was influenced by what [the appellant] had said, that she would be here, she would be in England for five years and then after that she would come back.
Right at this moment I feel very strongly about not trusting [the appellant] because she has lied on several occasions.
Q. You say you feel strongly about not trusting [the appellant] but at what stage did you trust [the appellant]?
A. At that time I trusted [the appellant] because she had a good intention of educating my son and her intentions soon changed into adoption. She wants to take my child away from me and as far as my nature is concerned I have absolutely no idea about adoption, it is unheard of ...
Q. [P] was going to go, but what was the agreement you reached about his going?
A. [The appellant] promised that [P] would visit South Africa and she would send me a ticket to visit [P] here in England, which she failed to do ...
Q. Dr. Cameron advised you and your husband to try to talk to [the appellant] and to see her before these proceedings started, did he not?
A. Dr. Cameron did say that, but I am not interested.
Q. Did you understand why he thought that should happen?
A. Dr. Cameron meant well. This woman wrest my son from us. Why should she do such a terrible thing to me?
Q. If [P] stays here, what do you feel about him visiting you?
A. I do not want to think about that, because [the appellant] has a tendency of breaking her promises and I do not know why I am even supposed to think that way ...
Thorpe, J.: If [the appellant] drops the adoption application, would that not improve the communication between you and [the appellant]?
A. I cannot trust [the appellant] ever again. I just want my child."
Although not forthrightly expressed, no doubt for the good reason that harsh findings might destroy the rapprochement the Judge was endeavouring to create, the implications of his judgment are that the parents were deceived by the appellant. He said of the duration of the agreement:
"It seems to me that reality lies somewhere between these two poles. I doubt that there was any specific definition. It is only too easy to understand that the parties have received different impressions as to the duration of the arrangement."
On the other hand he acknowledged:
"[The parents] sought and obtained conditions to maintain their relationship
with him and his relationship with his roots. Those conditions have been breached or abandoned and, although responsibility for that breach and abandonment is shared, the major part lies with [the appellant]. Her freedom to retain [P] as a member of her family and to educate him as though a member of her family, is essentially dependent upon [P's] parents' consent."
The letters written at the time are inconsistent with an agreement that the parents agreed to a permanent/indefinite removal, still less to adoption. Within a days of arrival, a daughter of the appellant wrote:
"I hope we are quickly back by you in South Africa."
Significantly, the appellant wrote on 11 October 1992 to forewarn the parents of the approach to be made to them by Black Sash. That letter included this passage:
"[S] when I ask to adopt [P] I want you to know that I'm doing it so that he can stay in this country and study. You know that we all love him very much. I don't want to take him away from you, I will never do that. You must never forget that you are also my child and you are my family. If you want to come and stay with us I will send you a plane ticket immediately. If you want to come to visit I will do the same. But to keep [P] in this country I have to adopt him. If there is another way to do it I will. I will never take him away from you, so that you won't be able to see him again. You are his mother."
That letter would have been very differently expressed had the appellant believed she already had the parents' consent to the course she was proposing. Her solicitors invited Black Sash to arrange for a social worker to visit "in order to establish their wishes in this matter" which was a very different inquiry from one aimed at obtaining formal confirmation of an established position.
As the Judge found, the appellant's freedom to retain P is dependent on the parents' consent. It always was, and the harsh truth is that the appellant knew she did not have mother's consent. In the language of child abduction, this was a wrongful removal, or at least it became so by 4 November 1992 when mother called for P's return to South Africa.
As the Judge found that the statements the parents made to Black Sash at the initiation of their investigations seemed to be "entirely reliable and realistic", it is small wonder these parents felt betrayed by and mistrustful of their former employer.
If, as I find to be inevitable, there is not now, if ever there was, any realistic hope for Dr Cameron's optimistic expectations to be fulfilled, then the whole basis upon which he proceeded and upon which he persuaded the Judge to accept his advice, has collapsed. There no longer is, if ever there was, any substantial prospect that these parties will come to terms about this boy's future. Consequently, to delay the harsh decision is to delay for no purpose and s 1(2) of the Children Act 1989 requires that:
"... the court shall have regard to the general principle that any delay in determining the question [with respect to the upbringing of a child] is likely to prejudice the welfare of the child."
I conclude that Dr Cameron's third position was not, and is not viable.
A choice has, therefore, to be made between leaving P here indefinitely and returning him to South Africa. I am under no illusions whatever about the harm that return to South Africa will cause. It is not just the uncertainty about the stability of his parent's marriage and their relationship nor about their housing conditions nor economic security nor personal safety. He will leave the comfort of Maida Vale for the comparative discomfort of Brakpan. I am sure he will cope with all of that. The real harm is spelled out by Dr Cameron in a passage by Neill, LJ and in the following extracts from his evidence:
"If you take him away now from the [appellant's] family against his will, then the risk is that he will go downhill emotionally, he will go downhill psychologically, he will pine for [the appellant] and [her girls], he will get grumpy and disagreeable, he will not quickly grasp Ndelele and Afrikaans, he will be a bit of an outsider with the group when he gets there and everything may go horribly wrong ...
To remove him in the middle of a turmoil of disagreement would be very profoundly damaging, to such an extent that the boy might never recover his poise and psychological well-being and confidence. That is what worries me."
Dr Cameron did, however, see the other side of the coin.
"For [P] to have the gain of education in England carries with it the weakening of his Zulu identity, his knowledge of the Zulu language and culture and so on and there are gains and losses. If he is brought up in the Zulu culture, he has the gain of identity with his family of origin and the loss of being a citizen of the larger world ...
There is a loss in any decision that is made for a child and for [P] to be living in London he is separated from his linguistic culture and racial roots and that is a problem to him if he continues to live in London and it is only going to be ameliorated, mitigated, made less if he has meaningful contact back home to his family of origin."
In my judgment there is no real prospect of that meaningful contact being afforded him. The parents do not have the money to pay for it. The appellant's evidence about her ability to finance the travel is thoroughly unreliable. In her affidavit sworn on 3 April 1995 she stated:
"As I am currently in receipt of income support, I can neither afford to finance trips nor telephone calls to South Africa."
Giving evidence two months later, she said this:
"Q. What realistically is the position with regard to funds for the future?
A. I can produce evidence that funds will be provided for [P] to go over there.
Q. How much and how often?
A. Once a year for [P] ...
Q. Would it be possible to fund visits more often than that?
A. No, I am afraid I cannot afford [inaudible]
Q. Does it therefore follow that if the parents were to come to this country that the funding would be similarly limited?
A. Yes, that is correct. I would certainly make arrangements for the mother, she is not a position to afford it herself.
Q. And how much would you afford, how many visits for the mother?
A. Also one a year."
Then she was asked:
"Q. If he were to go back would you want him to come to see you here?
A. Of course.
Q. And how often would he need to see you?
A. Three or four times a year.
Q. Would it be possible to finance it?
A. I will find the money through friends and relatives."
It is clear to me, therefore, that there is no realistic prospect of this boy having enough contact with South Africa for him to maintain the necessary link with his background. Dr Cameron was asked:
"Q. How important to [P] do you believe his cultural Zulu heritage is?
A. My Lord I consider that [P's] cultural Zulu heritage is of great importance to this little boy and is going to continue to be central to his identity as he grows up in adulthood and I think it is a fundamental important part of this whole case that [P] should continue to grow up knowing himself to be a Zulu boy, identified with the Zulu traditions, knowing that he is South African and feeling identified and confident about that country."
Thorpe, J found – and was right to find – that P's development:
"Must be in the last resort and profoundly, Zulu development and not Afrikaans or English development."
He cannot get that remaining here. To deprive him of it is to negate the understanding which led him here. These parents would never have permitted him to leave South Africa had they known that the appellant would seek to adopt him or to keep him here permanently or so fundamentally deny him his heritage. I do
not doubt that the appellant's decision was motivated by deep love for the child and a burning desire to do her best for him. She has succeeded in very large measure for which the parents ought to be grateful. Nevertheless, his roots are in South Africa and the Judge was absolutely right to conclude that:
"There must be a firm recognition that [P] returns to South Africa. The only question is when and how that can be achieved."
I have given most anxious consideration to the proper answer to that question. I have read and reread the papers. I weigh the gains and losses, in the short as well in the medium and long-terms. I come to the conclusion that the longer his return is delayed the greater will be the harm in removing him. The supposition in favour of return is not displaced by other factors in the welfare check-list. He must have time to prepare to leave but I agree with Neill, LJ that he must be reunited with his parents at Easter. Accordingly I, too, would dismiss the appeal and allow the cross-appeal.
Solicitors: Messrs Bindman & Partners for the appellant.
Messrs Paring Ross Gagrat and Gardi for the parents.
The Official Solicitor.