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RE W, AN INFANT (1958 - 60) 2 BARB. L.R. 268 [1960] BBSC 22 (1 December 1960)

RE W, AN INFANT

[SUPREME COURT (Hanschell, J.) December 1, 1960]

[1958 - 60] Barb. L.R. 268

Family law - Infant - Custody - Application for variation of order granting custody to petitioner.

Facts: The petitioner obtained a divorce from the respondent and custody of the child W was granted to the petitioner. She took the child to England with her in January, 1957 and placed him in the care of D.M.G. in June, 1957. She returned to Barbados without him. She claimed that she was anxious to bring him to Barbados but did not have the money for the fare. At the court's suggestion, the [286] respondent provided an airline ticket and the petitioner agreed to bring the child to Barbados. The child was to travel to Barbados early in January 1959 but he did not come. On January 10, 1959 the child left D.M.G. and went to live with the respondent's sister J.H.L. and her husband in Sussex, without the consent or approval of the petitioner. The respondent applied for revocation of the order by which custody of the child had been granted to the petitioner and for such other order as the judge may deem fit.

Held: if the legal custody remained in the petitioner and the order was amended to provide that it was without prejudice to any question of care or control, it would have the effect of balancing the positions of the petitioner and the respondent should proceedings for the custody of the child be commenced in England. This would be in the best interests of the child and at the same time it would be made clear that the court did not desire to prejudice the position of either party in any such proceedings.

Order for custody to be amended accordingly.

Cases referred to:

(1) McKee v. McKee [1951] 1 All E.R. 942.

(2) Wakeham v. Wakeham [1954] 1 All E.R. 434.

Statute referred to:

(1) Infants Act, 1958, s. 8.

(2) Guardianship of Infants Act, 1925, s. 1. (U.K.).

Mr. E.W. Barrow for the petitioner instructed by Messrs. Hutchinson & Banfield.

Mr. J. Dear for the respondent instructed by Messrs. Carrington & Sealy.

HANSCHELL, J.: In this matter three applications have been heard together. They are as follows:

1. An application by the petitioner for an order for maintenance for the infant W;

2. an application by the respondent for an order for access to the said infant;

3. an application by the respondent for an order revoking the order by which custody of the said infant was granted to the petitioner and for such other order as to the judge shall seem meet.

On September 6, 1957 the petitioner presented her petition for dissolution of the marriage and custody of the children of the marriage. This petition was not defended and the respondent did not enter an appearance. On October 25, 1957, the petitioner obtained from this court a decree nisi on grounds of the respondent's adultery and custody of the infant W, who was born on August 16, 1952 [269] (hereinafter referred to as the child). The decree was made absolute on Deceember 13, 1957. In January, 1957 the petitioner took the child to England with her and on June 6, 1957 she placed him in the care of DMG in London and returned to Barbados without him. At the time when the order for custody was made, the child was in England and has not since returned to this Island. Of the three applications the first to be filed was that for maintenance of the child. This was followed by the application for access. During the hearing of these two applications together, the order for maintenance was resisted on behalf of the respondent on the ground that the child was not in the care and control of the petitioner, that he did not know where the child was, or indeed whether it was alive or dead. It was also contended on his behalf that the petitioner had refused to inform him of the child's address in England and that his efforts through the English police and other bodies there had failed to disclose the child's whereabouts. The petitioner claimed that the child was alive and that she did not disclose its address because she feared that the respondent would try to take it away if she did so. She was anxious to bring the child to Barbados, within the jurisdiction of this court and had expected to do so a few weeks after her return to this Island in 1957, but did not have the money for the fare. At my suggestion, counsel on both sides examined the possibility of the respondent providing the necessary fare for this purpose. As a result of this, the respondent provided an airline ticket and the petitioner agreed to bring the child to Barbados. The child was to travel to Barbados early in January, 1959. He did not come. On January 10, 1959, the child left D.M.G. with whom the petitioner had placed him in June, 1957 and went to live with the respondent's sister, J.H.L. and her husband at a farm in Sussex, without the consent or approval of the petitioner. The circumstances of this case are, on the evidence, far from clear and very much in dispute.

This evidence consists of affivits and exhibited letters, an undated medical certificate and a cable. I have not seen the deponents of the affidavits, nor is it possible for me to do so as they are in England. The child in question is not within the jurisdiction of this court and it is extremely doubtful that he will be brought within this jurisdiction in the near future. Although this court is the court of domicile, it is possible that a court of competent jurisdiction in England, where the child resides, may have to decide the question of custody and control of the child at some future date. In so doing such court may take into consideration the circumstances of the change of control of the child in January, 1959. The deponents of any affidavits filed in such proceedings would be able to appear if required before such court in England.

For these reasons and for the reasons which will appear herein below, I make no finding of fact of the circumstances of the said change of control above-mentioned.

Since January 10, 1959 and up to now the child has been living with his aunt J.H.L. and her husband at a farm in Sussex. The first and paramount consideration for this court is the welfare of the child. This principle hardly requires authority but see Tolstoy on Divorce, 3rd. edition at page 164 and section 8 of the Infants' Act, 1958 of this Island which is a reenactment of section 1 of the Guardianship of Infants Act, 1925 of the United Kingdom. There are a number of affidavits on the [270] record which relate to the welfare of the child.

By force of circumstances, that is to say the lack of money, this child was left by the petitioner with D.M.G. in June, 1957, when he was not yet 5 years old and during the time he stayed with her he exhibited the symptoms of a child who feels the lack of security and a permanent home, and who is cut off at this early age from his parents, relations, and all the persons whom he knows. He became ill and must have been very unhappy at first. After he had settled down with her his health improved, but in January, 1959, when he went to J.H.L. he was thin, weak and nervous and still obviously unsure of himself although otherwise in good health. Since then he has put on weight and become stronger. He is happy with his aunt and uncle, he sees his sister regularly and sometimes has the companionship of his cousin, a child of about the same age, who is the son of J.T., the petitioner's sister. He is at a good home with relations where he is happy to stay. The house has adequate facilities and stands in lovely country surroundings. His education is being looked after and he has shown progress at Oaks Preparatory School where he is at present a pupil.

For these facts I have relied on material in the affidavits of the following deponents, which material does not appear to be disputed. The deponents are D.M.G., J.H.L., J.T., Sidney Harold Blake, an inspector of the National Society for the Prevention of Cruelty to Children, Ursula Mary Pudney (B.A. Oxon.), Charles Williams (Vicar of Ifield) and Florence Maude Parker (Principal of Oaks Preparatory School).

There can be no doubt that this child, who is still very young, has suffered greatly when it is considered that there is evidence that among his doctors there was a psychiatrist, and that the child got so weak that he had to be pushed about in a wheelchair when he was staying with D.M.G. and before she had gained his confidence. I am satisfied that he is at present happy, in good health and well cared for, in the hands of relations who have his interest at heart. He is now settled and secure. In these circumstances, this court would do nothing to uproot the child. In the first place another move so soon after his present home has proved adequate and right for his general welfare might well result in injury to his health. In the second place it is possible that either of his parents may, in the future, institute proceedings for his custody in England. In such proceedings, any order of this court would have no legal force but would only be of evidentiary value, one of the facts to be considered by such court - McKee v. McKee [1951] 1 All E.R. 942. In any such proceedings in England the paramount consideration would be the welfare of the child.

It is to the child's advantage that neither of the parents should be placed in a position of disadvantage to the other by any order of this court in proceedings for custody if instituted in England - Wakeham v. Wakeham [1954] 1 All E.R. 434. The principle of the decision in Wakeman is applicable to any finding of fact contained in this judgment which might better be left to that court in England before which the question of custody of this child may be brought. It is for this reason as well as those already given that I make no finding on the circumstances of the change of de facto control of the child in January, 1959 or on the questions of the respondent's conduct and fitness raised on behalf of the petitioner. [271]

It is submitted for the respondent that the petitioner's order for custody would prejudice the respondent's position in England, because in this case the child is not in the care or control of either parent, whereas in Wakeman v. Waakeman the care and control was in one and the legal custody in the other; that the proper course is for the court to revoke this order and make no other in its place, leaving both parties at equal advantage to seek custody in England should they see fit. If this course is not followed the respondent asks that a Wakeman amendment be inserted. Both revocation and any such amendment are resisted for the petitioner on the ground that she is the innocent party to the divorce and that the child is virtually in the control of the respondent, even though in England.

I view the present care and control of this child J.H.L. as one to which the respondent may easily have access. J.H.L. is his sister, she has provided several affidavits on record in support of his applications and I can only reasonably infer that she would be willing to accommodate his wishes in the matter of his own son even if they amounted to a desire to reduce her care and control into his own. On the other hand, I do not think that the petitioner would be able to gain access to her son in the present circumstances, which may well prove unfriendly towards her, or to obtain the control of him from J.H.L. without the assistance of the order of a court.

The legal custody has been by the order of this court committed to the petitioner. She is an innocent party. She placed the child in the control of D.M.G. at a time when, by force of circumstances, she was unable to bring him with her to this Island and at the time when he was about to be brought into the actual care and control of the petitioner, this child was effectively removed into the control of a person from whom the petitioner has at present no means of recovering him. No grounds have been established which would merit the revocation of this order. If the legal custody remains in the petitioner and the order is amended to provide that it is without prejudice to any question of care and control, it will have the effect of balancing the positions of the petitioner and the respondent should proceedings for the custody of the child be commenced in England. This would be in the best interests of the child and at the same time, it would be made clear that this court does not desire to prejudice the position of either party in any such proceedings.

On the question of maintenance, the circumstances do not merit an order in favour of the petitioner for future maintenance of the child. She has, however, maintained this child at her expense from December 13, 1957, the date of the order for custody, up to the beginning of January, 1959. The child was first placed with D.M.G. at 25s. a week and with medical expenses and clothes to be considered, the weekly cost increased. The respondent made a voluntary contribution at the rate of $240.00 per month from September, 1957 to May 16, 1958 for the maintenance of the petitioner and the child jointly. Since then the respondent has not contributed anything towards the maintenance of the child. I think that an order should be made against the respondent for the payment by him to the petitioner of a reasonable sum towards the maintenance of the child from September 8, 1958, the date of the summons for maintenance, down to January 10, 1959, when the child went to live with J.H.L. I think that in the circumstances and from the [272] evidence that $40.00 a month would be reasonable and that the total amount should therefore be $160.00. This sum is in respect of a period during which the respondent had the means of paying, and the petitioner had no visible income except the amount ordered for her maintenance.

The application for access has been withdrawn with leave with costs to the petitioner in respect thereof. For the reasons I have given the order for custody will be amended by inserting the words "without prejudice to any question of care or control." The respondent is ordered to pay to the petitioner on or before December 15, 1960 the sum of $160.00 as maintenance for the child in respect of the period from September 8, 1958 to January 10, 1959. [273]

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