“Kidnapping”, like others kinds of unilateral action in relation to children, is to be strongly discouraged, but the discouragement must take the form of a swift, realistic and unsentimental assessment of the best of the interests of the child, leading, in proper cases to the prompt return of the child to his or her own country but not the sacrifice of the child’s welfare to some principle of law”.
In the important case ‘of kidnapping of a child’, The Court of Appeal, while ‘setting aside the conviction of a father for kidnapping his own child’ had referred ‘two most important questions of law of general public importance’ for decision to the House of Lords.
The two certified questions are as follows:
1. Whether the common law offence of kidnapping exists in the case of a child under the age of 14 years?
2. Whether in any circumstances a parent may be convicted of such offence where the child is unmarried and under the age of majority?
The facts that were responsible for referring the two questions of law were that MR.D, the respondent-father of a minor child, had kidnapped his own child by forcefully taking away the child from her mother once on 13-12-1978, being the first charge of the offence of kidnapping and again on 6-11-1981, being the second charge brought against the father. The child had already been declared as ‘the ward’ of the Family Court of the High Court on 10. 4.1978.
In his defense, to the first charge, the father had pointed out that, he had a lawful excuse for ‘taking away the child from the mother and out of this country as he believed that the child was an illegal immigrant and therefore could be lawfully be removed’since the child was in England though born in New Zealand,
In the Lower Court, Judge Lymbery ruled that under the common law of England, ‘a father could commit the offence of kidnapping of his own child, even though that child was still a minor’.
The Jury convicted the respondent on the second charge.
The Court of Appeal quashed his conviction on the reasons that the offence could not be committed by anyone against a child under 14 years of age and the offence could not committed by a parent against an unmarried child who was still a minor.
In the House of Lords, Justice Brandon, in the only opinion given, which was acceptable to the other Lords, excellently summed up the ingredients of the offence of kidnapping as (1) the taking or carrying away of one person by another (2) by force or fraud (3) without the consent of the person so taken or carried away (4) without lawful excuse.
After tracing the history of legislation on the crime of ‘child stealing’ now known as ‘kidnapping’ in the new Offences Against the Person Act.1981, (known as The OP Act)and also by rejecting the beautiful argument of the Counsel for the father that ‘in view of the absence of protection to the father of a legitimate child comparable to the protection given to both the father and mother of an illegitimate child in the OP Act of 1981,’ in cases of offence of kidnapping, (such lack of protection) could only be explained and (understood) that ‘the legislature thought that it was impossible for father of a legitimate child to be guilty of the offence of kidnapping if he takes the child by force or fraud’, Lord Brandon, in an equally beautifully reply, had declared ‘that in view of the changed social conditions and legal attitudes existing today it is possible for a father to commit the common law offence of kidnapping his own child’ as ‘the affirmative answer to the first question’.
Also giving a positive answer to the second question, Lord Brandon declared that ‘in all cases of kidnapping of a child, the absence of child’s consent is material fact, whatever may the age of the child. In the case of very young child who could not the…. understanding or the intelligence to give consent the absence of consent is an inference to be drawn on the fact of the age of the child. In the case of older child the Jury had to decide whether the child has sufficient understanding and intelligence to give consent and then consider whether it was proved that the child did not give consent’.
Accepting that it is desirable as a matter of policy, Lord Brandon gave the unanimous opinion of the House that ‘proceedings for Contempt of Court against father for snatching away his own child declared as ward of the Court’ can be initiated and ‘criminal prosecution can be brought only in exceptional cases keeping in mind the reprehensible conduct of the father.
The House of Lords set aside the ruling of the Court of Appealand sustained the conviction of father.
Read more at http://www.goforthelaw.com/index.php/browsearticles/loadarticleview/170.html
Follow Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College at http://csraghuraman.goforthelaw.com
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