B and Another v Children's Advocate

• Jurisdiction: Jamaica
• Judge: Brooks JA,Sinclair-Haynes JA,P Williams JA
• Judgment Date: 28 October 2016
• Neutral Citation: JM 2016 CA 92
• Docket Number: SUPREME COURT CIVIL APPEAL NO 46/2016
• Court: Court of Appeal (Jamaica)
• Date: 28 October 2016

In The Matter of an application by B and C

In The Matter of an appointment of guardianship in respect of the infant child ‘A’

And

In The Matter of the Children (Guardianship and Custody) Act

Between

B

1 ^st Appellant

and

C

2 ^nd Appellant

and

The Children's Advocate

Interested Party

[2016] JMCA Civ 48

Before:

The Hon Mr Justice Brooks JA

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Miss Justice P Williams JA (AG)

SUPREME COURT CIVIL APPEAL NO 46/2016

JAMAICA

IN THE COURT OF APPEAL

Mrs Kerri-Gaye Rushton instructed by Mellish and Rushton for the appellants

Mrs Debbie-Ann Livingstone-Edwards for the interested party

Brooks JA

1 We heard this appeal on 30 June 2016 and, after hearing the submissions of counsel, made the following orders:

• ‘1. Appeal allowed.

• 2. The order of the Supreme Court made herein on 21 April 2016 is hereby set aside.

• 3. [The appellants] …are hereby appointed legal guardians of [A], an infant born on….’

At that time, we promised to put our reasons in writing. Subsequent to making those orders, we harboured some reservation about them and sought further assistance from counsel by way of additional submissions. We received both written and oral submissions (the latter on 12 July 2016) and, at that time, reserved our decision.

2 The appeal mentioned in the order was from a decision of a judge of the Supreme Court who refused an application by the appellants, B and C, to be appointed guardians of their granddaughter, A. All names and unique details of the parties have been omitted in order to protect the child's identity. The appellants complain that the learned judge's refusal was based on her view that she had no jurisdiction to make an order for guardianship where the biological parents of the child were alive and were not, themselves, the applicants.

3 The main issue in this appeal is whether the Supreme Court of Judicature of Jamaica has the jurisdiction to make an order for guardianship in such circumstances. An outline of the evidence will place the issue in context.

The evidence

4 A is three years old. Her biological parents are not married and do not live together. A's father brought her to his parents' home when she was just over a year old. She has lived with them ever since. The father's parents (father is B and mother, C) are the appellants herein. Although the father also lives at their home, he is ‘frequently absent from the home’ (paragraph 7 of the affidavit of the appellants). There is no evidence as to A's mother's involvement, if any, in her life.

5 A is now of the age where the issue of schooling has become relevant. The appellants have, therefore, decided that they ‘need to take charge of [her] life and upbringing’. They have decided that they should be legally recognised as having that responsibility. They wish to be appointed her guardians so that they will be able to represent her in respect of her primary schooling, health matters, and her higher education. They also wish for her to travel overseas with them. She will be, they say, a part of their family.

6 From their description of their circumstances, it seems that they will be able to provide adequately, if not generously, for A, in material terms. Their residential address is in one of the more affluent communities of the parish of Saint Andrew and although details were not given to the learned judge in the court below, additional evidence, which was provided to us by way of fresh evidence discloses that:

• (a) their house consists of four bedrooms and three and a half bathrooms;

• (b) it has the usual amenities;

• (c) the appellants and one of A's uncles reside at the house; and

• (d) B earns a significant salary from his employment.

7 The fresh evidence also indicates that A's emotional and educational needs are also addressed. The following were among the facts disclosed:

• (a) B is, in addition to his employment, also a minister of religion and the appellants take A with them to church on Sundays and also take her to Sunday school;

• (b) a typical day for the child sees her physical, emotional and educational needs being attended to in a positive way by both appellants;

• (c) although A is not suffering from any serious disability or chronic illness or from the effects of any such illness, she has a paediatrician, whom she sees for medical check-ups on a regular basis;

• (d) the appellants are committed to be responsible for the expenses of A's food, clothing, transportation, education, health care and social upbringing; and

• (e) she is scheduled to begin attending basic school in the next school year.

8 Although the appellants are in their mid-sixties, they assert that they are in generally good health and able to manage the rigours of raising a young child.

The appeal

9 The appellants filed their appeal on 29 April 2016. They urged this court to set aside the learned judge's decision and to order that they be appointed A's legal guardians. The notice of appeal contained the following grounds of appeal:

• ‘(a) That the Learned Judge erred as a matter of Law in applying the wrong principles of Law in refusing the application of the [appellants].

• b) The Learned Judge erred in Law by failing to take into consideration the provisions of Section 27 of the Judicature (Supreme Court) Act [whereby] the Supreme Court of Judicature of Jamaica has the authority to make Orders regarding the legal guardianship of children within its jurisdiction.

• c) That the Learned Judge erred as a matter of Law by not recognizing the authority of the Supreme Court of Judicature of Jamaica as having an inherent parens patriae position in relation to all children within its jurisdiction.

• d) That the Learned Judge erred in Law in failing to consider the case of Panton v Panton SCCA No. 21 of 2006, page 3, where it was held that ‘ the power of the Court of Chancery as parens patriae to all children, which is now exercisable by the Supreme Court, compels such a court to be slow to decline to exercise such power whenever the occasion arises, because of its all-encompassing interest in the welfare of the child. This power is exercisable by the court, despite the wishes of the respective parents .”

• e) That the Learned Judge erred in Law by failing to consider the provisions of Section 20 of the Children (Guardianship and Custody) Act which expressly states “Nothing in this Act contained shall restrict or affect the jurisdiction of the Supreme Court to appoint or remove guardians”.’ (Emphasis and italics as in original)

The submissions on behalf of the appellants

10 Mrs Rushton, appearing for the appellants, emphasised the jurisdiction of the Supreme Court as exercising the traditional jurisdiction of the Sovereign, as parens patriae. This Latin term literally means ‘father of the country’, she submitted. It referred to the Sovereign's traditional entitlement and duty to act as guardian over persons, including children, who were unable to care for themselves.

11 Learned counsel pointed to the Court of Chancery as the entity which normally exercised that jurisdiction on behalf of the Crown. She relied on the statutory provisions that established the Supreme Court of Judicature as exercising the jurisdiction that the Court of Chancery possessed. That jurisdiction, she submitted, is a part of the inherent jurisdiction of the Supreme Court. Learned counsel argued that the jurisdiction is expressly recognised and retained by the Children (Guardianship and Custody) Act.

12 That inherent jurisdiction, Mrs Rushton submitted, allows the Supreme Court to make orders in the best interest of any relevant child, regardless of the wishes of the biological parents. It permitted, learned counsel argued, the learned judge to have made the orders sought by the appellants, which orders were in A's best interest.

13 Learned counsel cited a number of cases in support of her submissions. These included: The Queen v Gyngall [1893] 2 QB 232, Re R (a minor) wardship: medical treatment) [1991] 4 All ER 186, Richards v Richards Claim No 2007 M 00756 (delivered 2 September 2008) and Panton v Panton SCCA No 21/2006 (delivered 29 November 2006). Mrs Rushton also cited several first instance judgments in which the Supreme Court had made orders in respect of guardianship of children.

The intervention of the Children's Advocate

14 The Children's Advocate, who did not appear in the court below, is named as an interested party to the appeal. A single judge of this court, by way of case management orders made in this case, had invited the intervention of the Children's Advocate. The Children's Advocate is a Commission of Parliament established by section 4(1) of the Child Care and Protection Act. The remit of the Children's Advocate includes intervention in court proceedings involving children. Paragraph 14 of the first schedule to that Act speaks to the nature of that intervention. It states in part:

‘14.–(1) Subject to the provisions of this paragraph, the Children's Advocate may in any court or tribunal—

• (a) …

• (b) intervene in any proceedings before a court or tribunal, involving law or practice concerning the rights or best interests of children.

• (c) act as amicus curiae in any such proceedings.

(2) …’

15 The Children's Advocate filed very detailed written submissions in respect of the relevant issues in this case, and Mrs Livingstone-Edwards, representing the Children's Advocate, supplemented those with oral submissions. They will be referred to, in part, below.

The submissions by the Children's Advocate

16 Mrs Livingstone-Edwards' submissions were in line with those advanced on behalf of the appellants. She argued that the inherent power of the Supreme Court to appoint and remove guardians of a child ‘not only [existed] where parents were deceased, but...