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M v P, Re the child G [1988] VULawRp 7; [1980-1994] Van LR 333 (31 March 1988)

[1980-1994] Van LR 333

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No 58 of 1988

BETWEEN:

M
Applicant/Petitioner

AND:

P
Respondent

Coram: Chief Justice

Counsel: M de Preville for petitioner
Mr G Rissen for respondent

JUDGMENT

[CUSTOM - FAMILY ARRANGEMENTS - adoption]

The Petitioner, of Ni-Vanuatu nationality, was married to Mr M on 16th January 1969, a French national who resides in Noumea, New Caledonia.

Shortly after the birth of G (hereinafter called "the child") the child in this case who was born on the 8th July 1975, it was alleged that the Petitioner agreed to entrust the child into the care and keeping of Mr K (and his wife, L), brother of the Petitioner. The reason given was that the Petitioner had ten other children to care for and one of such children had to undergo a serious operation in Noumea and she was unable to care for the child.

K gave evidence that he was given the child when he was a month old. He requested the child from his sister, the Petitioner as his 23 year old unmarried son wanted the child. He stated the Petitioner was happy to give the child to him. He said he looked after the child but P provided the money for food and clothes. He considered he had custodial rights to the child. His son P lived with him and his wife L and when his wife died in 1983, his daughter D looked after the child. That in 1987 P who was then married, looked after the child. Later he stated that the child was given to P but he and his wife looked after the child. That he registered the birth of the child at Erakor in 1977 and it was stated on the form that the child was adopted in custom. No entry was in the form as to where the child was born. K says he was born at Vila Base Hospital but his son was adamant that the child was born at Georges Pompidou Hospital.

Finally, he stated that when the Petitioner comes to Vanuatu she stays at her house in Erakor but the child always stays with him and the Petitioner visits him at his house. That the Petitioner never sent any money for the child.

His evidence was supported by his son, P, who stated the child was born at Georges Pompidou Hospital and that he was the first to visit the Petitioner after the birth of the child. During that visit the Petitioner asked if some of the family could take the child and look after it. That he returned home and told his family he wanted the child and they agreed. That he took the child and gave money to his parents for clothing, food and general upkeep of the child. He lived in the house with his parents. He said the Petitioner had given another of her children to another family in adoption. It was a girl called R. He said the Petitioner came back to Erakor five or six times. That she lived on her own and that on one occasion she tried to get the child to live with her but he ran away and came back to his parents' house. That the Petitioner never sent money for support of the child - no gifts or food sent to him - no letters. He stated that in custom a mother who leaves her child with another family on temporary basis would have to pay something for the upkeep of the child. She did not do this.

The child goes to school at Erakor. He pays transport costs, school fees, clothing and food. That he is now married to T and the child lives with them and his young daughter. That he lives in a house in town. That his wife treats the child as her own child and he is very happy with them.

In reply to Mr de Preville, Counsel for the Petitioner, he stated that in Erakor custom if you give a name to a child then the child belongs to you. He adopted the boy because he got agreement from the Petitioner (mother) that he could take the child. Further he stated that he never sought help from the Petitioner (mother) because it was unnecessary as he realised he had adopted the child. It was not always necessary to have the chief's consent.

The Petitioner, in her evidence before me, denied she gave the child to P - she said she gave it to her brother K. She related how she had another child of one and a half years who could not walk and who was in Noumea with her husband. That the child was five months old but she wanted to go to Noumea to be with the other child who had to have an operation. That her sister-in-law offered to look after the child which allowed her to go to Noumea. She said her sister-in-law had parental authority over the child. There was a verbal agreement between her and her sister-in-law that the child was to remain with her. She stated she came to Vanuatu every year except a break of two years, that when any of the family came here she would send something for the child.

She stated that in Erakor custom it is not normal to give away a child to such a young man, i.e. P. It was to her brother but not to P that she gave the child.

She denied there was any talk of adoption of the child. She agreed in answer to Mr Rissen, Counsel for the Respondent, that P's mother did come to see her at the hospital and suggested a name for the child. That after she came out of hospital K did suggest a name for the child. She denied that she gave the child to P by way of permanent adoption.

Finally, Maxime Carlot who was the Mayor of Erakor and Registrar of births at Erakor as well as head of Civil Status in the Condominium Government stated the declaration of adoption on the register of birth exhibit 1, was put there because K, brother of the Petition declared that the child was given in adoption to his son P. That he was there when the declaration was made to the village chief. That the mother (Petitioner) or father of the child were not present. There was no feast as such was not necessary in Erakor custom. That normally there must be an agreement with the natural father but that after the adoption the natural father could not take back the child without consent.

In answer to Mr de Preville, Counsel for the Petitioner, he stated that inquiries were made before the child was registered.

That he did know that the child was of French nationality but from time to time when a child is given to a New Hebridean family it meant the child could be registered by the Civil Status. In view of the fact that an approach was made to register the child, it was registered. The witness was asked whether he was aware that custom does not apply to a person of French or English nationality. The witness replied that this was not the only case. That the villagers do not look at the nationality of the party as there are many mixed marriages and they are all regarded in the village as Ni-Vanuatu and registered.

After hearing the evidence I asked the child to come to my chambers and spoke to him.

The child is now 13 years of age and lives with P and his wife in a house in Vila town. He goes to school at Erakor and plays with other boys in Independence Park. That he has lunch with P's aunt. That he liked the school at Erakor and had many friends both boys and girls and that he liked his teachers. He said he would not like to go to Noumea as he had been told his brothers would hit him. That he did not like his mother or father because when he was small they did not want him. I inquired whether anyone told him to say this but he replied that that is what he thought no-one coached him as to what to say. Certainly, no one knew that I intended to interview the child. He said he would like to go to the Lycee after schooling at Erakor, that both P and his wife, T, are good to him and that he liked their baby girl. Finally, that he wanted to stay in Vanuatu.

I found the child relaxed, not shy or hesitant in any replies to my questions. I was satisfied that he was not coached in what he had to say.

This really is a sad case of a young child given away by his mother at the age of five months into the care and protection of her brother and family. The child, for thirteen years, has resided in the environment of that family. He has been cared for, fed, clothed and has had school fees paid by P and now resides in the house of P, his wife and young daughter. He has obviously enjoyed his life with this family and does not want to return to his mother and father.

In custom, the child seems to have been adopted according to Erakor custom. According to the President of Malvatumauri, Chief Willie Bongmatur, to whom I referred this case regarding custom, his reply was that according to custom each island has its' own way of doing such a ceremony. In this case, according to Maxime Carlot, there was a declaration before a chief and as a result of that he recorded an adoption on the register of births, Exhibit 1. Again, the evidence of K and P was to the effect that the child had been adopted. Again, the evidence was that if there was no adoption the parents should have given something for the upkeep of the child. The evidence was clear that nothing was given by the parents. Further, in custom if you give a name for a child, it is considered as adopted.

It is difficult for me to accept the evidence of the Petitioner that the child was not given in adoption when for thirteen years the child was cared for, fed, clothed and given all the necessities of life by K, L, T and P, that one expects of parents and was continuously in their care and possession for that period.

I therefore have no hesitation in reaching the conclusion that the child was adopted in custom by K and son, P. The welfare of the child is the paramount question to be decided in all these cases and I therefore order that the child remain with the adoptive parents. Mr de Preville raised the question of nationality but as the child was registered (Exhibit 1) since the 29th March 1977, he is automatically a citizen of Vanuatu in so far as I have held he was adopted into a Ni-Vanuatu family and from that date, was, in law their legal son.

FREDERICK G. COOKE
CHIEF JUSTICE

Rider:

I have been informed the child may not be able to gain a place in a secondary school in Vanuatu after he leaves the Erakor school at the end of the year. If this is so, consideration should be given to further education for the child. If a Vanuatu passport was obtained for him, it might be wise to allow him to go to Noumea for further education.

FREDERICK G. COOKE
CHIEF JUSTICE