Tessa Calliste claimant v Joan Ventour defendant [ECSC]

• Jurisdiction: Grenada
• Judge: CUMBERBATCH, J.
• Judgment Date: 19 January 2010
• Judgment citation (vLex): [2010] ECSC J0119-1
• Court: High Court (Grenada)
• Docket Number: CLAIM NO. GDAHCV2009/0402
• Date: 19 January 2010

[2010] ECSC J0119-1

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO. GDAHCV2009/0402

CLAIM NO. GDAHCV2009/0405

In the Matter of an Application by Tessa Calliste Pursuant to the Provisions of the Civil Procedure Rules 2000 Part 57

In The Matter Of An Application By Tessa Calliste For The Issuance Of A Writ Of Habeas Corpus Ad Subjiciendum

Between:

Tessa Calliste

claimant

and

Joan Ventour

defendant

In the Matter of the Inherent Jurisdiction of the Court Parens Patriae Grant Custody Orders for the Protection of Children

and

In the Matter of the Eastern Caribbean Supreme Civil Procedure Rules 2000 Parts 8 & 27

and

In the Matter of Nikita Tinisha Calliste, A Minor Child

and

In the Matter of an Application by Tessa Calliste for the Issuance of a Writ of Habeas Corpus Ad Subjiciendum In Suit No. GDAHCV2009/0402

And In the Matter of an Application by Joan Ventour the Guardian of the Minor for the Custody

Between:

Joan Ventour

claimant

and

Tessa Calliste

defendant

Appearances:

Mr. Dwight Horsford for Joan Ventour

Mr. Derick Sylvester for Tessa Calliste

CUMBERBATCH, J.

1 Tessa Calliste filed a fixed date claim on the 24^th September 2009 seeking the following orders:

• "i. An order that the above named Minor Nikita Tinisha Calliste, be removed from the Respondent and returned to the care and control of the Applicant

• ii. That she being the mother of the minor Nikita Tinisha Calliste, is by law entitled to sole custody of the minor;

• iii. That a writ of Habeas Corpusad subjiciendum be issued in terms of the draft order filed herewith;

• iv. Costs."

2 Joan Ventour on the 25^th September 2009 filed a fixed date claim seeking the following relief:

• "i. An Order that the Claimant/Applicant be granted custody, care, protection and control of the minor child, Nikita Tinisha Calliste.

• ii. An Order that such custody care, protection and control of the said minor child shall continue until the child attains her majority at the age of eighteen (18) years.

• iii. An Order that reasonable and liberal access to the said child be granted to the Defendant/Respondent

• iv. An Order that the costs of an d occasioned by this application be provided for.

• v. Such further or other relief that the Court asparens patriae shall deem just and appropriate in the circumstance."

3 The Court acceded to a joint application by Counsel for the parties to have the matters conjoined and heard together.

4 Tessa Calliste is the biological mother of the child Nikita "Unisha Calliste ('the child') bom of her body on the 7^th January 1994. As an infant the child ended up in the care and custody of Joan Ventour and apart from few intermittent short periods of time the child has lived all her life with Joan Ventour. The Court will make no determination as to exactly how and for what reasons the child ended up residing with Joan Ventour but it is common ground that this has been so with the knowledge, approval and consent of Tessa Calliste until the institution of these proceedings. Both parties have produced several affidavits which the Court has carefully examined and will comment on later in this judgment

5 Both parties are now seeking orders granting them custody of the child until she attains the age of majority. At the first hearing of the applications herein the Court made an interim order granting custody of the child to Tessa Calliste at weekends. I will refer to this order again later in this judgment

THE LAW

6 Section 10 of the Maintenance Act Cap 180 of the Revised Laws of Grenada provides thus;

"10 (1) At the time of making a separation order or a paternity or maintenance order in respect of any child under the age of fourteen years the court shall make a further order (called a 'custody order') providing that the custody of the child shall be given to such person as is named therein who may, if a maintenance order is made, be the same person who is thereby entitled to receive maintenance on behalf of the child.

(2) The Court, in deciding the question of the custody of any child (legitimate or otherwise), shall regard the welfare of the child as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody is superior to that of the mother, or the claim of the mother is superior to that of the father."

This section of the Maintenance Act is applicable in respect of children under the age of 14 years. Moreover section (2) of the said Act (the interpretation section) provides that in this Act the word 'Court' means the Magistrate's Court. Thus, the legislation is silent on the question of custody of a child the age of the child herein.

7 Hence pursuant to the provisions of section 7 of the Supreme Court (Grenada) Act Cap 336 of the Revised Laws of Grenada, the Court will examine the relevant and applicable laws in force in England prior to the commencement of the Supreme Court Act aforesaid. In the circumstances the court will consider the provisions of the UK Guardianship of Infants Act 1925 ('the 1925 Act') which was later consolidated with minor changes in terminology into the Guardianship of Minors Act 1971. Section 1 of that Act provides;

"where in any proceedings before any Court…the custody or upbringing of an infant…is in question, the Court in deciding that question, shall regard the welfare of the infant as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father or any right at common law possessed by the father in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father."

8 The provisions of the 1925 Act introduced what was to become known as the paramouncy principle and those provisions are inpari materia similar to the Maintenance Act aforesaid.

9 Prior to the enactment of the 1925 Act and section 10 of the Maintenance Act aforesaid the prevailing common law position was that the father was the sole guardian of legitimate children whilst the mother was the only person with parental rights over illegitimate children. Section 1 of the 1925 Act however meant that in future such 'legal' claims were to be ignored and the child's welfare was to prevail.

10 In the landmark decision ofJ v C 1970 AC 668 the House of Lords held that this principle was also applicable to disputes between parents and non-parents. Lord Mac Dermott explained the meaning of the words" shall regard the welfare of the infant as the first and paramount consideration" thus:

"…it seems to me that they must mean more than that the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed."

11 The House of Lords rejected the proposition that there was any presumption in favour of the natural parents of the child. Lord Mac Dermott stated thus at p 715:

"2. In applying section 1, the rights and wishes of parents, whether unimpeachable or otherwise, must be assessed and weighed 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 considerations, 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…" (Emphasis supplied)"

12 Lord Mac Dermott also referred to the dictum of Fitzgibbon LJ in the Irish case ofRe O'Hara (1900) 2 IR 232 (1900) 2 IR 232, 240 a case decided before the 1925 Act aforesaid which stated thus:

"In exercising the jurisdiction to control or 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."

13 There followed thereafter a plethora of judicial pronouncements and views on this matter of the paramouncy principle. Inre K (a Minor) (1990) 1 WLR 431 (1990) 1 WLR 431, 437 Waite, J opined:

"The speeches in the House of Lords make it plain that the term 'parental right' is not there used in a proprietary sense, but rather as describing the right of every child, as part of its general welfare, to have the ties of nature maintained, wherever possible, with the parents who gave it life."

But he went on to say that the question was,

"Are there any compelling factors whichrequire me to override the prima facie right of this child to an upbringing by its surviving natural parents?" (emphasis supplied)

14 In re H (A Minor) (1991) 2 FLR 109 (1991) 2 FLR 109,113 Lord Donaldson MR stated;

"So it is not a case of parental...