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Clarke v Carey

Judgment Cited authorities 25 Cited in Precedent Map Related
Vincent
JurisdictionJamaica
JudgeHenriques, P.,Smith, J.A.,Graham-Perkins, J.A.
Judgment Date29 December 1971
Neutral CitationJM 1971 CA 60
Docket NumberNot Stated
CourtCourt of Appeal (Jamaica)
Date29 December 1971

Court of Appeal

Henriques, P.; Smith, J.A.; Graham-Perkins, J.A.

Not Stated

Clarke
and
Carey
Appearances:

F.M.G. Phipps, Q.C., and A. Edwards for the appellant.

D. Muirhead, Q.C., and W.K. Chin See for the respondent.

Cases referred to:

Custody - Application by mother for custody of illegitimate children — Children in de facto custody of father — Similar application by father — Applications made under Guardianship and Custody of Children Law [J.] — Application by mother competent — Application by father not permissible — Custody of children awarded to mother — Prima facie right of mother to custody — When mother may be deprived of right — Welfare of children overriding right of mother — Discretion of master exercised on wrong premise — No evidence before master that welfare of children required removal from de facto custody of father — Guardianship and Custody of Children Law (No. 69 of 1956) [J.], ss.7(1), 14, 98 — Maintenance Law, Cap. 232 [J.], s.3 — Guardianship of Infants Act, 1925 [U.K.], s.1.

Henriques, P.
1

I have read the judgment prepared by Smith, J.A., and I agree with it. The case presented a human problem, which made it difficult to resolve. There were so many factors on either side to be considered. After a close examination of them I am of the view that the learned master on the evidence before him was not justified in making the order which he did. In the circumstances it cannot be for the welfare of the children to grant custody of them to the mother.

2

I would therefore allow the appeal, set aside the order of the master, and order that the summons be dismissed.

Smith, J.A.
3

The plaintiff is the mother of two illegitimate children, a boy and a girl, by the defendant, a married man living with his wife. Since February, 1969, the children have been in the de facto custody of the father. In December, 1969, the mother applied by originating summons for custody of the children. The boy was then aged eight years and the girl four years. The application was made under the provisions of the Guardianship and Custody of Children Law, Law 69 of 1956. The father, on whom the summons was served, opposed the application and himself asked for custody. The applications were heard by the master commencing on January 13, 1970, and on June 5, 1970, he granted the mother's application awarding her custody. The father appealed against the master's decision on the broad ground that he wrongly exercised his discretion in granting the mother's application.

4

Since the enactment of Law 69 of 1956 applications have been made from time to time under that Law for the custody of illegitimate children, on the assumption that the Law applied to all children. In the Jamaican context this assumption is not surprising. The applicability of the Law to illegitimate children was questioned in Finlayson v. Matthews (1). This Court decided that it was competent for the mother of an illegitimate child to apply for and be granted custody of her child under s.7(1) of the law of 1956, but not for the father. In the case under consideration it was conceded during the argument on appeal that the counter-application of the father for custody must be taken to have been made under the law of 1956. Counsel for the father attempted to argue that Finlayson v. Matthews (1) was wrongly decided but was stopped by the Court on the ground that the decision was binding on the Court unless it could be shown that it was given per incuriam. The argument was not pursued. In view of the decision in Finlayson v. Matthews (1), the master had no jurisdiction to grant the counter-application.

5

The liaison between the mother and father began when she was 18 or 19 years old and he 38 or 39. It lasted some nine or ten years. She asserts that she did not know he was a married man, that he told her he was a bachelor. He denies this. They lived together at various places, including his matrimonial home for three months in 1962 while his wife was away in England. The children, the subject of these proceedings, are the product of the liaison. The elder child, the boy, lived with the mother in her parents' home at Above Rocks until he was a year old, when she left him in her parents' care and went to work in Kingston. He was born on October 10, 1961. Apart from visits at weekends, the boy never again lived with the mother but remained in the care of his grandparents. The father visited the boy from time to time and he claimed that he gave the grandparents a weekly sum for the child's maintenance. This is denied by the mother and grandmother. The younger child, the girl, was born on August 14, 1965. She lived with the mother from birth until January, 1969, when the mother left for the United States of America. The liaison was apparently broken, or started to break, in October, 1968, when there was a violent altercation at the grandparents' home involving the father, the mother's sister and her brother. The mother claimed that the father threatened her and tried forcibly to take the boy away with him. The mother left for the United States of America on January 26, 1969 on vacation and to work, she said. She said that she wanted to make a new start in life as she had discovered that the father was a married man and he would not cease visiting her. On the day before she left she took the two children to Montego Bay and boarded them there with a friend. This, clearly, was done to put them out of the reach of the father. He, however, discovered where they were and with the help of the police took them away on February 2, 1969, to his home in Spanish Town, where they have since lived. The mother was informed that the children had been removed by the father in the same month that they were removed. She, however, took no steps in the matter and remained away for ten months, four months longer than she originally intended. Thus, when she took proceedings the children had been living with the father for over ten months.

6

The authorities establish that the mother of an illegitimate child has, at least, a prima facie right to its custody. Lindley, L.J., said so in the Court of Appeal in R. v. Barnado (2). He said ( [1891] 1 Q.B. at p. 211):

“The child is illegitimate. The consequence is that he has no guardian: Re Ullee (3). In other words, there is no person who has all the rights of a guardian over either him or his property. But, although this is true, it is now settled, after some fluctuation of opinion, that the mother of an illegitimate child has a prima facie right to the custody of the child up to the age of fourteen in preference either to the reputed father or to any other person: R. v. Nash (4). This right is based on the relationship which exists between a mother and her child, and on the absence of all superior right on the part of the reputed father or of any one else.”

7

When this case went to the House of Lords (sub nom. Barnado v. McHugh (5)) Lord Herschell L.C. did not dissent from Lindley, L.J.'s description of the right (see [1891] A.C. at pp. 395, 396). Lord Herschell (ibid., at p. 398) affirmed that the mother had a right to the custody of her illegitimate child but said that this right arose from the obligation to maintain the child placed on her by the legislation embodied in the Poor Law Act (4 & 5 Will. 4, c.76, s.71). In Humphrys v. Polak and wife [16], Vaughan Williams, L.J., expressed the view that there was at common law a duty on the...

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