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Deo v Singh [1992] FJHC 66; HBA0018.91 (10 April 1992)

IN THE HIGH COURT OF FIJI
(AT SUVA)
APPELLATE JURISDICTION

CIVIL APPEAL NO. 18 OF 1991

BETWEEN:

SACHIN DEO
f/n Maha Deo
Appellant

AND

BRIJ BHAN SINGH and ARUNE DEVI
Respondents

M.K. Sahu Khan for the Appellant
G.P. Shankar for the Respondents
V. Nathan, Public Legal Adviser: Amicus Curiae

JUDGMENT

These proceedings concern an infant girl named Dixit Aileen Swastika Deo who is the daughter of the Appellant (the father) and who was born of 19 September 1988 and who is therefore about 3½ years old. The Respondents are her maternal grandparents.

The father who is a police constable was married to the infant's mother on 5 August 1987. After the marriage they lived together in Police Quarters at Nasese. Tragically, the mother died on 16 September 1990. Following her death the father went to stay with the grandparents for the traditional 13 day period of mourning known as Kriyakaram. When this period came to an end he wished to take the infant with him back to his parents' home at Nadi where he had been transferred. The grandparents refused.

On 9 October 1990 the father commenced proceedings in the High Court at Lautoka seeking a writ of Habeas Corpus Ad Subjiciendum for the delivery up to him of the infant.

On 16 November 1990 the application was transferred to Nausori Magistrates' Court for hearing, apparently on the grounds of convenience. After hearing the parties the Magistrates' Court ordered that the infant remain with the grandparents but that reasonable access be granted to the father. The father appealed.

On 20 February 1992 the appeal came before for hearing. In the course of the hearing it emerged that a series of irregularities and breaches of the rules had occurred following the transfer of the matter from Lautoka which cumulatively were so serious and so detrimental to both parties that there was no realistic alternative but to set the Order of the Magistrates Court aside and to transfer the whole proceedings back to the High Court for hearing de novo.

On 2 April 1992 the hearing took place. There were six affidavits filed by the parties, three by the father and three by the grandparents. There were also two Welfare Officers' reports together with supplementary up dates, filed by the Welfare Officers at Nadi and Nausori. I also heard evidence from the father, the grandfather, a Senior Health Sister and witnesses called in support of both parties. Counsel for the parties filed most helpful and learned written submissions.

The central question which has to be answered is a question which has frequently worried and troubled the Courts before: should the infant be with her grandparents or with her father?

In each of the jurisdictions to which this Court has traditionally looked for guidance there is legislation covering the guardianship and welfare of infant who are not the subject of matrimonial proceedings. Examples are the Guardianship of Infants Act 1925 (England and Wales) and the Guardianship of Infants Acts 1926 and 1968 (New Zealand). In Fiji, however, there is no equivalent legislation. The closest Fiji comes is section 85 (1) of the Matrimonial Causes Act (Cap. 51) which reads as follows:-

"In Proceedings in which application has been made with respect to the custody, guardianship, welfare, advancement or education of children of a marriage-

(a) the Court shall regard the interest of the children as the paramount consideration; and

(b) subject to paragraph (a) (a Court) may make such Order in respect of those matters as it thinks proper."

That section cannot however be applied directly to a case such as this since this application is for Habeas Corpus and is not a "proceeding" within the meaning of the Matrimonial Causes Act given the definition section of the Act and Rule 3 of the Rules thereto. In the absence of legislation, guidance may still be heard from the decisions of Superior Courts in the traditional jurisdictions but great care must be taken to avoid giving undue regard to the decisions of those Courts which reflect legislation which is not applicable in Fiji.

In exercising jurisdiction in this matter this Court does so by virtue of section 18 and 22 of the High Court Act (Cap. 13) and by virtue of Order 54. It exercises the jurisdiction which has been exercised by the Court of Chancery from time immemorial. It is a paternal jurisdiction, a judicially administrative jurisdiction in virtue of which the High Court is put to act on behalf of the State, as being the guardian of all infants, in place of the parent and as if is were parent of the child, thus superseding the natural guardianship of the parent (see the Queen v. Gyngall [1893] UKLawRpKQB 95; [1893] 2 QB 232, 239).

In 1925 the English Guardianship of Infants Act became law. Section 1 of the Act reads in part as follows:-

"Where in any proceedings before any Court ...the custody or upbringing of an infant... is in question ...the Court shall have regard to the welfare of the infant as the first and paramount consideration..."

The relevance of this Act flows from the fact that it has been held and accepted that it did not affect the law as understood and applied in the Chancery Division prior to its enactment. "The section merely enacts the rule which had up to that time been acted upon by the Chancery Division." (see In Re Thain (an infant) [1926] 1 Ch. 676, 689).

It appears therefore that the rule that the welfare of the infant is the first and paramount consideration is not only the rule in Chancery but also in guardianship applications in Fiji brought under the provisions of Order 54. It will also be noted that the wording of section 1 of the 1925 Act is almost precisely the same as the rule laid down in custody proceeding by section 85(1) of the Matrimonial Causes Act already referred to.

The difficulty facing this Court does not, however, flow from discovering the arcane sources of the law to be applied; it flows from its application to the facts of this case, a case which is by no means the first of its kind. Where a parent has by conduct shown him or herself to be totally unsuitable to look after an infant the position is relatively straightforward and custody will be refused (Re Flynn [1848] EngR 847; [1848] 2 De G & Sm 457). Where however such disentitling conduct has been proved the problem is more difficult.

The area of dispute as to the fact between the parties in the present case is not large. It is clear from the Welfare Reports that both the father and grandparents are able to provide entirely suitable accommodation for the infant. Although the grandparents made some attempt to portray the father as unloving towards the child I think the fact that he has struggled so hard to get her back to him more than outweighs any lack of birthday presents he may have sent her since October 1990. The grandparents say the father never visited the child but the father says that when he tried they refused to let him see her. The grandfather admitted that had been an argument and he had refused to allow the infant to leave. I am satisfied having considered the evidence on this point that the main reason the father has not seen the infant since October 1990 is that the grandparents refused to allow him to do so.

The grandparents also attempted to portray the father as a violent man who had assaulted the mother and who had rejected the infant. It was said that he had wanted a son rather than a daughter. Naturally, the father denied all this. The grandparents claimed that the infant had effectively always lived with them at one version since she was 3 years old and on another since she was 6 weeks old. The father claimed that the infant had only gone to live with the parents in September 1990 when she was already 2 years old. The grandparents called witnesses to say that they had seen the child with the grandparents since she was very small but I do not believe this to be the complete truth. On all the evidence before me I find that the truth most probably lies in between the two extremes. It is apparent that the father's marriage was not especially happy and I accept that he was not especially close to the daughter. I believe that in these circumstances the mother and child spent a considerable amount of time with the grandparents either together or alone but I reject the grandparents' claim that the father refused to accept his daughter and that the daughter had never lived with her parents. As to the claims of assault it is sufficient to note that it was never said by the grandparents that the father had assaulted the infant.

The position as I therefore find it is this: a father who must be considered unimpeachable seeks the return of his 3½ year old daughter whom he has not seen for 18 months and who does not remember him. The grandparents to whom the infant has become deeply attached do not want to give her up. The grandfather in particular told me that having lost his own daughter so tragically, his granddaughter's presence was a great consolation. The father lives on the other side of Fiji from the grandparents and accordingly frequent access is impossible. Mr. Shankar submits that the welfare of the child which is paramount indicates that for the avoidance of all the trauma that would follow a handing over of the infant by her grandparents as well as for the avoidance of all the uncertainty as to whether the infant would adjust to her new surroundings she should be left where she is, at least for the time being. Mr. Sahu Khan in answer submits as between an unimpeachable parent and a stranger the rights of the parent must prevail.

In support of Mr. Sahu Khan's submission a number of authorities may be cited. Prominent among them is Thain's case already referred to wherein is to be found at page 684 the following classic passage by Eve J:-

"I am satisfied that the child will be as happy and well cared for in the one home as the other and in as much as the rule laid down for my guidance 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."

Thain was followed in New Zealand in In Re Mills (an infant) [1928] NZGazLawRp 12; [1928] NZLR 158 in which a father who had placed an infant aged 2½ with relatives following the mother's death sought her return 5 years later and was successful. It was also followed again in In Re Butler (an infant) [1930] NZGazLawRp 142; [1931] NZLR 121 where the father, following the mother's death, had placed the infant aged 10 days in the care of his sister in law and successfully obtained her return 7 years later.

Thai was also recently cited with approval by the Fiji Court of Appeal in adoption proceedings (Mala v. Chan and Devi FCA 17/89). In all these cases the thinking of the Court has been similar to that of Fitzgibbon LJ who in In Re O'Hara [1900] 2 Ir R 232 said:-

"Where a parent is of blameless life and is able and willing to provide for the child's material and moral necessities ... the Court is in my opinion judicially bound to act on what is equally a law of nature and society and to hold that the best place for a child is with its parents."

In reply to this submission Mr. Shankar relied heavily on the very important case of J v. c [1969] UKHL 4; [1970] AC 668; [1969] 1 ALL ER 788 in which the House of Lords reviewed the whole development of the law and the meaning of section 1 of the 1925 Act. The House upheld the refusal of the High Court to order the return of a child to unimpeachable parents. At the conclusion of his judgment Lord MacDermott set out three "comments" which it is clear represent the general views of their Lordships. They are as follows:

"2. In applying Section 1 the rights and wishes of parents whether unimpeachable or otherwise must be assessed and weighted in their bearing on the welfare of the child in conjunction with all other factors relevant to that issue.

3. While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over other consideration, such rights, and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way and must therefore preponderate in many cases. The parental rights, however, remain qualified and not absolute for the purposes of the investigation, the broad nature of which is still as described in the fourth of the principles annuciated [sic] by Fitzgibbon L. J in In Re O'Hara.

4. Some of the authorities convey the impression that the upset caused to a child by a change of custody is transient and a matter of small importance. For all I know that may have been true in the cases containing dicta to that effect. But I think a growing experience had shown that it is not always so and that serious harm even to young children may on occasion be caused by such a change. I do not suggest that the difficulties of this subject can be resolved by purely theoretical considerations or that they need to be left entirely to expert opinion. But a child's future happiness and sense of security are always important factors and the effects of a change of custody will often be worthy of the close and anxious attention which they have undoubtedly receive in this case".

The "fourth principle" referred to in 3 above reads as follows:-

"4. In exercising the jurisdiction to control or to ignore the parental right the Court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded."

The last of the comments made by Lord MacDermott is of a special note since it clearly represents a move away from part of the thinking of Eve J who expressed himself in Thain at page 684 in the following curiously old fashioned words:-

"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 (7 years old) one knows from experience how mercifully transient are the effects of partying and other sorrows and how soon the novelty of fresh surroundings and new associations effaces the recollection of former days and kind friends and I cannot attach much weight to this aspect of the case".

The last decision to which I wish to refer is Re D (an infant) [1971] NZLR 737 in which an aunt sought custody of an 11 year old girl who had lived with her since she was 11 weeks old. Allowing the application the Court laid down the following three principles:-

1. There was a prima facie presumption that it was for the benefit of the child that he or she should be in the custody of the natural parents.

2. The prima facie presumption might be displaced by inter alia showing that the parent was lacking in affection for the child or had been unmindful of parental duty.

3. If there had been an abdication of parental authority then the Court would not allow the parent to resume it.

The last principle, not specifically referred to in J v. C is consistent with an old decision of the High Court of Australia Goldsmith v. Sands [1907] HCA 47; [1907] 4 CLR 1648 where the Court upheld the refusal of a father's application for the return of child aged 9 who had been left by him with its grandparents following the death of its mother when only 5 years old on the ground that having effectively abandoned his right to the custody of the child in favour of the grandparents it would be injurious to her welfare to order that her custody be changed.

Reviewing the principles annunciated in the authorities cited, one emerges clearly. It is only in exceptional cases that a child should be deprived of its right to live with its parent. In the present case I am satisfied that the father can properly be described as unimpeachable. That is not to say that he has been or will be a prefect parent; no parent is. I am satisfied however that he can be provided a suitable loving home environment for his daughter. I am not satisfied that he ever intended to abandon his claim to her. Although I realise that a parting from her grandparents would be a time of bitter sadness I believe that with proper care and loving and unselfish assistance from her father, grandparents on both sides, other relatives and the Department of Social Welfare this sadness would in due course pass away.

The grandparents have not rebutted the presumption that the best place for Dixit Aileen Swastika Deo is with her father. I grant the Order sought. I will hear Counsel before giving directions as to its implementation.

I desire to add one footnote. It is a melancholy fact that had this application for Habeas Corpus been dealt with with the urgency that it deserved the parting by Dixit from her grandparents would have taken place at a time when she was by virtue of youth much more likely to get over it smoothly and rapidly. The dilatory way this matter has been handled reflects poorly on the administration of justice in Fiji.

M.D. SCOTT
JUDGE

At Suva,
10^th day of April, 1992.