10 ALL ENGLAND LAW REPORTS [1962] 2 AL E.R. proper inference, in my judgment, is that they intended to submit to the Italian civil law. In fact the marriage is invalid by that law and in those cireum- stances I have no hesitation in pronouncing it null and void. Order accordingly. Solicitors: Jaza & Partners (for the wife); Queen's Proctor. [Reported by A. 'T. Hootauan, Esq., Barrister-at-Law.] Re O. (Infants). [Court or Arreat (Lord Evershed, M.R., Upjohn and Diplock, L.JJ.), February 6, 7, 23, 1962.] Ward of Court—Jurisdiction—Leave to take out of jurisdiction—Bi-racial marriage —Infant son and infant daughter of Sudanese father and English mother— Matrimonial home intended at time of marriagé to be in Sudan—Children subsequently brought to England by mother—Whether father should have liberty to take them or either back to the Sudan—Quardianship of Infants Act, 1925 (15 & 16 Geo. 5 c. 45), 6. 1. In 1954 the parents, who were then twenty-seven years of age, married in England. The husband was a Sudanese and a Moslem; the wife was English and a Christian. They intended their matrimonial home to be in the Sudan, where they went shortly after their marriage. There were two children of the marriage, a boy born in 1985 and a girl born in 1956. In 1959 the wife came to England with the children and did not return to the Sudan. ‘The husband, who was a man of substance with a comfortable home in the Sudan, came to England in 1960 with a view to persuading her to take the children back to the Sudan, On arrival he was served with a summons making the children. wards of court. On the question of custody, Held: the welfare of the children being the paramount, but not the sole, consideration, regard should also be had to the wishes of an unimpeachable parent and, taking a longer view than one which too greatly emphasised the transient effect of parting between young children, the just order was such as would allow the father to take the son back to the Sudan, where he would be brought up and might eventually succeed to his father’s business. Re Thain ({1926] Ch. 676) applied. Appeal allowed. [ As to the removal of a ward of court out of the jurisdiction, see 21 Hatsnury’s ‘Laws (3rd Edn.) 218, para. 481. As to infant’s welfare being paramount, see 21 Harssury’s Laws (3rd Edn.) 198, 194, para, 428, and as to the rights of the father, see ibid., 191, 192, para. 425; and for cases on the subject, see 28 Diazsr (Repl.) 614, 615, 1205-1218. For the Guardianship of Infants Act, 1926, s. 1, see 12 Hatspury’s StaTuTES (2nd Edn.) 955.] Case referred to: Thain, Re, Thain v. Taylor, [1926] Ch. 676; 95 L.J.Ch, 292; 135 L.T. 99; 28 Digest (Repl.) 614, 1214. Appeal. ‘This was an appeal by the father from so much of an order made by Pewny- curox, J., and dated Nov. 8, 1961, as committed the care and control of the two infant children of the marriage to the mother, and for an order committing the care and control of the children to the father and giving liberty to the father to. remove them to the Sudan and providing that on their leaving the jurisdiction they should cease to be.wards of court. ‘The following facts were found in the judgment of Pawnyourcx, J. The parties were married according to Moslem rights in England on Sept. 26, 1954, they then being both twenty-seven years of age and students at the London School of Eoonomics. The father was of SudaneseOA. Re O. (Infants) (Lorp Eversmep, M.R.) ll nationality and a Moslem and the mother was English. Their intention when they married was to make their home in the Sudan, where they went in October, 1954. ‘The father, who was originally a teacher, established @ successful business in Khartoum, as well as having other business activities, and in 1961 was a well-to-do man with a comfortable home. The two children of the marriage, son and a daughter, were born on Sept. 1, 1955, and Dec. 23, 1956, respec- tively, in England, the mother having on each occasion come to England for the birth. ‘The mother found conditions in the Sudan, in particular the climate and the food, difficult and her health deteriorated while she was there. ‘There were many disagreements, some amounting to quarrels, between the parties. In August, 1959, the mother left the father and brought the children to England. In the courso of a long and quite affectionate correspondence she gave no hint that the separation was to be permanent, but she remained in England with the children thereafter. She and the children went to live with her parents and the children attended school in England. She took a post as a teacher. There was evidence by the headmistress of both the school which the children attended and the school where the mother taught that the children were completely English in speech and ways and were well-cared for and happy. The children’s knowledge of Arabic was negligible; they had not yet received any denominational religious education, but if they remained with the mother would be brought up as Christians. The father and his family were Arabic-speaking Moslems and if the children went to him they would be brought up as Moslems. He was a man of substance and position with a comfortable modern home. The children would not be subject to any disability in the Sudan by reason of their mixed parentage. Each parent had the welfere of the children at heart and each was fit to occupy the position of a parent towards them. On Nov. 2, 1960, when the father arrived in England with a view to persuading the mother to take the children back to the Sudan, he was served with an originating summons, dated Oct. 31, 1960, in which the mother sought an order making the infants wards of court, giving care and control of them to her and restraining the father from removing either of them from the jurisdiction, Prwwycurcg, J., found that it would almost certainly cause great unhappiness to the children and might well be dangerous for them if they were now removed from the mother, and stated that, having considered whether the welfare of the boy might be served by sending him to the father in the Sudan and that of the girl by leaving her with the mother, he had concluded that such separation would be detrimental to both children, He accordingly ordered that the children (who had become wards of court on Oct. 31, 1960, by virtue of the Law Reform (Miscellaneous Provisions) Act, 1949) should remain wards of court during their respective minorities or until further order and thet until further order they should be committed to the care and control of the mother, the father to have all reasonable access when in England. The father now appealed to the Court of Appeal. J. @. Strangman, Q.C., and P. R. Oliver for the appellant, the father. Nigel Warren, Q.C., and B, J. H. Clauson for the respondent, the mother. LORD EVERSHED, M.R.: It was the learned judge's eventual view that the children should remain in this country. As counsel for the mother very rightly pointed out, these cases are pre-eminently matters for the discretion of the judge who first hears them. This court is very loth to interfere with what the judge may decide and will only do so in exceptional cases if the court feels on mature reflection that what the judge decided was not really justified. I speak with great respect for PeNNxcUIOK, J., but we have come to the conclusion that in all the circumstances of this case it would neither be right nor just that the order which he made should stand. I am in the first pleco comforted in saying that because, quite plainly, the learned judge, if he could have made a wish come true, would have preferred that the boy should go back to the Sudan12 ALL ENGLAND LAW REPORTS. [1962] 2 All E.R. with his father and that the girl should remain here and that arrangements A should be made so that the two children could seo each other quite often. I read from the transcript: “T have considered seriously the position that the welfare of the boy might be served by sending him to the father in the Sudan, and that of the girl served by keeping her in England with the mother.” Further, I gather that the learned judge tried on an adjournment to get the two parents to agree to accept such a solution. That not having happened, he felt compelled: to make the decision on the ground that the children should not in any circumstances be separated the one from the other. He said: “Tt seems to me that it would almost certainly occasion great unhappiness to the children, and might well be dangerous for them if they were now to be removed from their mother, with whom they have spent all their lives, and from the English conditions to which they have become accustomed.” I agree that separation of the children is inevitably such as must cause to them unhappiness; but with all respect to him, I venture to think that the learned judge placed too much emphasis on the immediate effect and too little on the longer'view. I think that he was persuaded against what he stated to be his own J) preference, by the fear that it would be too unkind to separate the children. He had had the benefit of much assistance, as would be expected, from the learned counsel now appearing before us. Counsel for the father drow our atten- tion to certain Scottish cases (1) in support of the view that if there was no con- sideration on the children’s behalf that was altogether compelling, then the rights and wishes of the innocent parent were to receive consideration and might be the determining consideration. I am not sure that some of the language used in those Scottish.cases would be in complete conformity with the interpre- tation of the Guardianship. of Infants Act, 1925, by the English courts. I do not doubt the correctness of the decisions, but I should prefer not to express any view on some of the phraseology which the learned Lords of Session used. I am content to adopt the language used by Eve, J., in Re Thain, Thain v. Taylor (2). It will be recalled that s. 1 of the Act, so far as relevant, “Where in any proceedings before any court . . . the custody or upbringing of an infant... is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, G in respect of such custody . . . is superior to that of the mother, or the claim of the mother is superior to that of the father.” In Re Thain (2) the unhappy circumstances wore that the child’s mother had died and the father, being in the service of the Royal Air Force, had for a long time been unable to look after the child. The child had been brought up by her aunt (her mother’s sister) and uncle, and it had been suggested that it would H be unkind to the child, when the father eventually was in a position to give her a home, to take her from her foster parents. I quote (3): “It is said that the little girl will be greatly distressed and upset at parting from Mr. and Mrs. Jones. I can quite understand it may be so, but, at her tender age, one knows from experience how mercifully transient are the effects of partings and other sorrows, and how soon the novelty of fresh surroundings and new associations effaces the recollection of former days and kind friends . . . As I said at the commencement of my judgment, I am satisfied that the child will be as happy and well cared for in the one home as the other, and-inasmuch as the rule laid down for my guidance (4) (1) Hume v. Hume, 1926 8.0. 1008; M. v. M., 1926 8.C. 778. (2) [1926] Ch. 676. (8) [1926] Ch. at p. 684. (4) See Re O'Hara, [1900] 2 LR. at p. 240, per FrrzGrpnow, LJ.CA Ro 0. (Infants) (Lorp Eversnep, M.R.) 13 in the exercise of this responsible jurisdiction does not state that the welfare of the infant is to be the sole consideration but the paramount consideration, it necessarily contemplates the existence of other conditions, and amongst these the wishes of an unimpeachable parent undoubtedly stand first.” If that be, as I venture to think it is, a proper statement of the principles to be applied, then I return to this case, It is, I think, vital to recall that when this marriage took place, the intention was that it should be what would be called a Sudanese marriage, that the man and wife should live together in the Sudan and make their home there, and that the children of the marriage should be brought up in the Sudan. The father is Sudanese and the mother is English. The two children born of the marriage are, therefore, half Sudanese and half English, and that is, of course, a not unimportant consideration. I shall say nothing about the evidence. The learned judge expressed a view about it and I wish to add nothing to what he said. I think that, having regard to the father’s position and the background and the circumstances which I have mentioned, what the learned judge plainly would himself have liked is the right course and that in all the circumstances the best thing to do is to make an order so that the boy may go back with his father to the Sudan, may be brought up there and may eventually succeed to his father’s business. The little girl is in a somewhat different position. It may be that a small girl, half Sudanese and half English, would be less adaptable in the Sudan than a boy. However that may be, in all the circumstances I think it would not be right to make an order so that the little girl went with her brother. Taking what I hope is a longer view than just considering the immediate unhappiness of the inevitable parting, I, therefore, conclude that the order we should make is that the father should be at liberty to take the boy back with him to the Sudan, where he goes, I understand, on Monday. He will, of course, bear in mind that the children are wards of court and counsel for the father will no doubt on his behalf give an undertaking that if any order is made which affects the boy and requires him to be returned, he would bring him back to England. So long as he remains out of the jurisdiction he might choose (though I hope that he will not) to ignore any such order, but he will appreciate that if he did so and then at any time landed in this country, he would be instantly liable to arrest for contempt. I hope that his affection for the boy and also for the boy’s sister and his wife will render such forecasts quite unreal, That is the order that I would make, and questions of access and the like would be referred to the learned judge at first instance. I hope that, possibly by arrangement, things may so turn out that tho two children will meet each other quite often, but that is a matter on which I propose to say nothing more, I venture only to add one thing, which I hope will not be misconstrued. It is the duty of this court, as the Act lays down, to treat the welfare of the children as the paramount consideration. Unhappily at the moment the marriage between the father and the mother has struck serious rocks, but they will each remember, I do not doubt, that having brought these children into the world, their first duty ie to the children rather than to themselves. I would make the order which I have suggested accordingly. UPJOHN, L.J.: I agree and do not desire to add anything. DIPLOGK, L.J.: I also agree. Appeal allowed. Leave to appeal to the House of Lords refused. Solicitors: Balderston, Warren & Oo. (for the appellant, the father); Rayden & Co. (for the respondent, the mother). [Reported by F. Gurruan, Esq., Barrister-at-Law.]