D was convicted for kidnapping his 5-year old daughter, a ward of court, who was in the care and control of her mother. The CA held that there was no such offence as the kidnapping of a child under 14, that it could not be committed by a parent, and that the proper remedy was for contempt of court rather than the criminal law.
Held: Allowing the Crown’s appeal that 1) the common law of the offence of kidnapping in relation to children under 14 was unaffected by the statutory offence of child stealing so that where the ingredients of kidnapping were proved, namely the taking or carrying away of one person by another by force without the consent of the other and without lawful excuse, an offence was committed people (R v Edge [1943] IR 115 considered)
2) Although a father’s paramount authority in the family would have proved a lawful excuse in the past, that defence was no longer available in the changed social and legal attitudes when parents were treated as having equal authority over a child. A parent could not plead his rights as a father as a lawful excuse and could therefore kidnap his own child in law;
3 it was desirable that people who snatch their own children in defiance of a court order should be dealt with in civil proceedings for contempt of court save in exceptional cases where the parent’s conduct was so bad that an ordinary right thinking person would unhesitatingly regard it as conduct of a criminal nature. The defendant’s conduct and plea justified the decision to prosecute him, and the order of the court of appeal should be set aside and the conviction for kidnapping restored.
The offence of kidnapping ‘was always regarded, by reason of its nature, as a grave and (to use the language of an earlier age) heinous offence’
It is extremely undesirable that there should in any circumstances be any private prosecutions for such a kidnapping.
Lord Brandon said: ‘From this wide body of authority six matters relating to the offence of kidnapping clearly emerge. First, the nature of the offence is an attack on, and infringement of, the personal liberty of individuals. Secondly, the offence contains four ingredients as follows: (1) the taking or carrying away of one person by another; (2) by force or by fraud; (3) without the consent of the person so taken; and (4) without lawful excuse. Thirdly, until the comparatively recent abolition by statute of the division of criminal offences into the two categories of felonies and misdemeanours, the offence of kidnapping was categorised by common law as a misdemeanour only. Fourthly, despite that, kidnapping is always regarded, by reason of its nature, as a grave and (to use the language of an earlier age) heinous offence. Fifthly, in earlier days, the offence contained a further ingredient, namely that the taking or carrying away should be from a place within the jurisdiction to another place outside it; this further ingredient has, however, long been obsolete, and forms no necessary part of the offence today. Sixthly, the offence was in former days described not merely as taking or carrying away a person, but further or alternatively as secreting him; this element of secretion has, however, also become obsolete, so that, although it may be present in a particular case, it adds nothing to the basic ingredient of taking or carrying away.’
Lord Scarman concluded that: ‘as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law. Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances.’
Otherwise: Regina v D (Ian Malcolm)
Judges:
Lord Brandon, Lord Scarman, Lord Bridge
Citations:
[1984] AC 778, [1984] 2 All ER 449, (1984) 79 Cr App R 313, [1984] 2 All ER 249, (1984) 79 Cr App R 313
Jurisdiction:
England and Wales
Cited by:
Applied – Regina v Cort CACD 7-Jul-2003
The defendant appealed a conviction for kidnapping, saying the victims’ absence of consent was not fundamental. Driving his car, he had stopped at bus stops, inviting women to get in saying falsely that the bus had been cancelled. He had with him . .
Cited – Regina v Hendy-Freegard CACD 23-May-2007
The defendant against appealed his conviction for kidnapping. He had fraudulently taken control of his victims’ lives and fleeced them. He was said to have kidnapped them, originally by persuading them to get into his car and then driving off. He . .
Cited – Dean v Regina CACD 28-Jul-2021
The defendant appealed her conviction inter alia for kidnapping. The victim had been taken and brought to a car she drove, then taken out and severely assaulted. She said that the offence of kidnapping had been complete when he was brought to the . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.
Crime, Children
Updated: 19 April 2022; Ref: scu.668405
