In the Matter of Patrick Ernest Hofmann, an Infant, Misc. Civ. Cause, 39-D-71; 25/9/71; 25/9/71; Biron, J.

In the Matter of Patrick Ernest Hofmann, an Infant, Misc. Civ. Cause, 39-D-71; 25/9/71; 25/9/71; Biron, J.

The suit which concerned the custody of a child was between the parents, both of whom are nationals of the Federal Republic of German. The parties were married in Bombay in 1965. The father, Dr. Hofmann, who is a Doctor of science, was at the time on an assignment in India. Both parties had been married before and their marriages were dissolved. The mother, who belongs to the Parsee community, had previously been married to an Indian and that marriage lasted for 9 years. There were two children of that marriage. The father had no children by his previous marriage. The child whose custody was the subject matter of the proceedings was born in India on the 10^th June 1965. The family returned to Germany some time in December of that year. The marriage was dissolved by the High Court at Munich some time in 1968 because of the incompatibility of the parties. After eh dissolution of the marriage both parties filed proceedings in the Amtsgericht of Düsseldorf for the custody of the child and that court granted the custody to the respondent father. He mother appealed from this order to the Landgericht at Düsseldorf, and in an interim order she was granted interim custody pending the determination of her appeal from the order of the Amtsgericht. The father was allowed access to be child, and some time in August 1970 took him to Switzerland and failed to return him at the end of the prescribed period. The mother filed proceedings in the High Court and the father was ordered to surrender him to her. The father was however allowed to take him in 1971 on the understanding

that he would return him in 11 days time. This he failed to do having left Germany for Tanzania, but he wrote to the mother to the effect that the child did not under any circumstances want to return to Dusseldorf. Immediately on the receipt of the letter, the mother filed proceedings in the Landgericht at Dusseldorf, and that court made an order to the effect that the father was to return the child to the mother immediately and in the event of his failure to do so he was to pay a penalty of 1,000 Deutsch Mark. On ascertaining the address of the father and the child the mother came out to Tanzania and started these proceedings for his custody. During the pendency of the proceedings for his custody. During the pendency of the proceedings, the appeal by the mother from the order of the Amtsgericht of Dusseldorf awarding custody of the child to the father was determined in her favour by the Landgericht at Düsseldorf. The court reversed the order of the Amtsgericht and awarded the custody of the child to the mother.

            Held: (1) “The first question for this Court to determine s whether it has jurisdiction to entertain he proceedings, and this question presents very little difficulty. Its jurisdiction has not been questioned and although I know of no direct authority to the point, the fact that here is no precedent to the point is not to my mind, of any greater substance, let alone fatal.” (The learned judge then referred to a dictum of Denning, M. R. in re P. (G. E.) (An infant [1964] 3 All E. R. 977, also a custody case, to support his view). (2) “However in holding that this Court has jurisdiction that does not even imply that I do not consider that the German courts have jurisdiction as well, even now, when all the parties are out of Germany. After all, the parties are German nationals, they are domiciled in Germany, they were divorced by a German court, and custody proceedings are actually ancillary to divorce proceedings and usually follow them. Furthermore, the German courts are at present seized of this custody case, so the jurisdiction I am exercising is concurrent with that of the German courts.” (3) “The next question that poses itself is the law to be applied, the lex fori or the lex domiclii of the parties. That again presents little, in fact no difficulty at all. Although for centuries the father of a child born in wedlock was regarded as the guardian of such child by nature and nurture – I think that was the old archaic expression – that principle has long since been discharged, at very latest in England, whence stems most of our law here, by the Guardianship of Infants Act, 1925, which laid down that the first and paramount consideration in custody proceedings was the welfare of the child. This was always been the practice of the courts here, and such practice has received statutory authority only very recently in the Law of Marriage act, 1971, which came into force on the 1^st of May of this year, where it is laid down at section 125 (2) that; - “In deciding in whose custody an infant should be placed the paramount consideration shall be the welfare of the infant.” That is the law here. I observe from all the judgments of the various courts in Germany that that is the principle upon which the German courts worked, that the welfare of the child is the first and foremost consideration. There is

therefore no conflict of law on the question of custody.” (4) “The next question that poses itself is the attitude to be adopted by this Court. This case comes within the category of what are known as kidnapping cases, and, as very rightly submitted by Mr. Talati for the applicant mother, in such cases the English courts have evolved a practice of returning a child to its country of origin from where it has been kidnapped. A very typical case to the point is that of In re H. (Infants) [1966] 1 W. L. R. 381.” [The judge referred to the facts of that case by quoting the headnote. He then quoted a couple of relevant passages from pages 388 and 393 and continued:] “[The] principle, returning a child or children which have been kidnapped, to use the expression employed by the court, to the country from where they came, has very recently been reaffirmed in the case of In Re C. (s). (An Infant) (Law Report June 25 1971: chancery Division) reported in the London “Times” or June the 26^th, 1971, three months ago ……. However, although such a course has its attractions, at least in so far as this Court is concerned, I feel, in view of the advanced stage of these proceedings, that it would not be right of this Court to abdicate its responsibilities altogether and send the child back without at least attempting to decide the issue on the merits of what material is available before it, though it must be said at once that this material is rather limited.” (5) “As already noted, the Amtsgericht of Dusseldorf awarded the father the custody of the child. From what I can gather from the various proceedings in the courts, the Amtsgericht was greatly influenced by a report by a Welfare Officer of the Youth Welfare Office of the Municipal Welfare Office of Dusseldorf, a Frau Kotzmann. That report was rather adverse to the mother. It stated that the accommodation provided by the mother was not suitable for he child, the flat was too small, the child was not being well looked after, it was not even clean, nor apparently was the flat. However, this report was considered by the Landgericht at Dusseldorf and the court stated that the report had been nullified and rend completely nugatory by a certificate from the Principal of the Kindergarten [refuting the allegations in the report]……….. the Landgericht heard further evidence – there are copies of such evidence in translation – from neighbours of Mrs. Hofmann which are all in her favour, that the child was well looked after. There was also the evidence of a Gerda Dunker, a Social Worker of the Protestant Church, who had apparently previously made a report, and in this evidence before the Landgericht she stated that the child was being well looked after and he was doing well at school.” (6) “Now obviously in custody proceedings the character of the parents is extremely relevant ………….. the courts held that the dissolution of the marriage was due to faults on both sides, and that id do not regard as necessarily implying that either parent was at fault, at least towards the child. Infact, from my own observations, I would unhesitatingly say that I myself have been very much impressed by the affection and regard both parents have evidenced towards the child each time they have appeared in front of me. So there is no question of the child suffering from lack of affection form either parent.” (7) “[I] fully agree with Mr. Mawalla’s submission that as we have no legislation for reciprocal enforcement of judgments between this country and the Federal Republic of Germany, this Court is not bound

to follow the decision of the Landgericht of Germany, but as Mr. Mawalla would himself concede, it is certainly of persuasive authority and I lean rather heavily on its observations and decision. It is not irrelevant to note that the court, the Landgericht, sat as a Bench of three Judges, one of them a woman. Whether this was just co incidental or is the practice of German courts to have both sexes represented on the Bench in custody cases, I must with respect, commend it.” (8) “In the proceeding before the German courts one of the arguments advanced by the father against custody being awarded to the mother was that the child would not be bought up as a proper German national. This submission was made some time ago, possibly before the father had accepted employment in this country. The present circumstance of his having accepted such employment, and, as he had just informed the court, it is anticipated that he will be here for at least five years, weakens, to but it at very lowest, the force of his submission made before the German courts that the child would not be brought up as a proper German national, if he is to be away from Germany for five years. In fact one could go further and say that the present circumstances make such submission ring rather hollow and very much militate against it. Now Mr. Mawalla has further argued that it is in the child’s interest that custody be given to the father, as the father is in so much better a financial position to look after the child and educate him than is the mother. The father’s salary at the moment has been given at Shs. 12,500/- per month, plus fringe benefits. As opposed to that the mother’s salary is 400 Deutsch Mark, which I think corresponds to Shs. 800/-, per month. She also has 300 Deutsch Mark, which is Shs. 600/-, as alimony from her previous marriage. In support of his argument Mr. Mawalla has cited the judgment of my late brother Hamlyn in Bi Ruth Pemba v. Daudi Mfalingundi, reported in 1970 High Court Digest, page 98, as No. 105.” [The learned judge then referred to the relevant passages of that judgment but expressed preference or the statements of the Landgericht at Dusseldorf to the effect that it does not tell against her, the mother, to have the custody of the child even id the father is financially better off because he is obliged to pay for the maintenance of the child, regardless of he fact that the custody is given to the mother, and further he is not prevented in financial matters to do for the child what he should if he had the custody of he child. The judge continued]: “So that conservation obviously has little force in determining he question as to whom the custody should be granted. In fact, if the father is so well off, as this Court has now been informed, the German courts may well feel inclined to increase the maintenance to be paid by the father should the case come again before the German courts. It is certainly a relevant matter, as custody cases – and I think in one of the cases referred to, or I have perused, it was expressly stated – are always open to review in the light of the changing circumstances of the parents.” (9) “I think I have said enough to make it sufficiently clear that, although I have not abdicated the Court’s responsibilities, and have tried to decided the issue as much as possible on its merits, the material in from of me is very limited and cannot compare with that before or in possession of the German courts, which are in a much better position to

decide this issue than I am. Further – and this may well be, if I may say so, the ratio decidendi of my determination – but before I come to that I must digress for one moment and deal with the submission of Mr. Mawalla that this Court could not make an order which would mean the child leaving the jurisdiction of this Court. I think from all the authorities it is abundantly clear that this Court has such jurisdiction. What greatly influences me is the law to be applied. I have already referred to section 125 of the Law of Marriage Act 1971. in that very same section it is stated at subsection (3):- “There shall be a rebuttable presumption that it is for the good of an infant below the age of seven years to be with his or her mother, but in deciding whether the presumption applies to the facts of any particular case the court shall have regard to the undesirability of disturbing the life of an infant by changes of custody.” Now that is the presumption. Patrick was born on the 10^th of June 1965. He is therefore under seven years of age. Therefore there is a presumption, though rebuttable, that the custody should be given to the mother. Nothing that has been adduced or submitted before me in any way rebuts such presumption. On the contrary, all the proceedings in the German courts, which, as I have already said, I do not regard as binding on me, but which, as indicated, have great persuasive effect, are in favour of that presumption being upheld. And it is also pertinent to quote another passage from the case I have cited reported in the London “Times” of June 26^th, 1971;- “Additionally it was in the interest of the child that his future and upbringing should be decided in accordance with the motions of the country which was his home.” In the result I allow the application and grant the mother custody of the child with immediate effect.”