F v D

• Jurisdiction: Jamaica
• Judge: Sykes J
• Judgment Date: 18 January 2017
• Neutral Citation: [2017] JMSC Civ 9
• Docket Number: CLAIM NO. 2012HCV00646
• Court: Supreme Court (Jamaica)
• Date: 18 January 2017

[2017] JMSC Civ. 9.

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Sykes, J.

CLAIM NO. 2012HCV00646

Between

F

Claimant

and

D

Defendant

Leonard Green and Sylvia Edwards instructed in by Chen Green & Co for the claimant

Janet Taylor and Yackeisha Scott instructed by Taylor Deacon and James for the defendant

FAMILY LAW — CUSTODY — SECTIONS 3, 4, 7, 11, 12, 13, 14, 18 OF CHILDREN (GUARDIANSHIP AND CUSTODY) ACT — PARAMOUNTCY OF THE WELFARE OF THE CHILD — FACTORS TO BE TAKEN INTO ACCOUNT

IN CHAMBERS

Sykes J

1 The father, D, and mother, F, were husband and wife. The marriage has ended. The mother is about to remarry. There are two children involved: a girl and a boy. The girl is the older, born in September 2005 and the boy was born in January 2009. The father has applied for sole custody children, care and control in respect of both children with access granted to the mother. There is an order of Pusey J in place which had ordered joint custody to both parents with care and control to the mother with access to the father. The father is of the view that the current state of affairs is not advancing the welfare of the children. His main concern he says is that the mother is not managing the health, psychological, emotional and physical, of the children properly. He is of the view that the children are better off with him. He says he has more time to see to the welfare of the children which the mother does not have because she works long hours. He also says that the maternal grandmother who supports the mother in the rearing of the children is unsuitable and she does not have a healthy relationship with the children.

2 The mother, on the other hand, sees this application as part and parcel of the father's attack on her as person, a mother and professional. She believes that he has no regard for her and will stop at nothing to discredit her.

3 The mother has accused the father of trying to convince the Supreme Court that they should be reconciled. She sees this application by him as a means of trying to force a reconciliation that is no longer possible. In her mind, he has not accepted the reality that the relationship is over and there is simply no prospect of the family unit getting back together. For his part, the father has spared no words in describing the mother as negligent, incompetent and a candidate for the loss of licence to practice her profession. He has gone on to say that had she, as a medical practitioner, treated her patient's health in the way she has treated the health of her children she would be sued and removed from the role of medical practitioners. Both parties have expressed the view that the other should be committed to prison for alleged breaches of Pusey J's order. The court has repeatedly said that it cannot supervise every aspect of child rearing and while the children are minors the parents ought to be able to communicate with each other sufficiently respectfully to advance the welfare of the children.

4 In the case of Re C (Older Children: Relocation) [2016] 2 FLR 1159; [2016] EWCA Civ 1298 Peter Jackson J made this observation at paragraph 1:

1

This family appeal strongly demonstrates the damage that is caused when separated parents fail to take the opportunity to resolve their differences. Instead of finding its own solutions, this family, which has every other advantage, has engaged in 2 years of litigation that has caused great unhappiness, not least to two teenage children. …Aside from the emotional cost and general waste of life, the financial cost has been staggering. … The proceedings are yet another example of why the Family Court repeatedly attempts to divert parties into mediated solutions that allow them to keep control of their own affairs. The court is there to resolve disagreements that cannot be resolved in any other way but, as has been said before, it is not a third parent.

5 This present case is not an appeal but the sentiment expressed by his Lordship applies to this case. Much ‘blood’ has been spilt and treasure spent on this custody hearing. This court has encouraged the parties to resolve their dispute regarding the children. Both mother and father have dug in their heels. Each is confident of victory. The reality though is that custody is not about the parents. It is about the welfare of the children.

The law

6 Section 18 of the Children (Guardianship and Custody) Act of Jamaica reproduces, almost verbatim, section 1 of the Guardianship of Infants Act, 1925, UK, which reads:

Where in any proceeding before any court (whether or not a court within the meaning of the Guardianship of Infants Act, 1886) the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, 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.

7 With the exceptions of the words in brackets in the English statute and the use of the word ‘child’ in the Jamaican statute instead of ‘infant’, the Jamaican section 18 is the same as the English provision.

8 It has been said that the provision did not enact any new law and was simply stating what the law was just prior to the passing of the English statute. It has also been said that the paramountcy of the welfare of the child is not the sole consideration. Support for the first conclusion is found in the judgment of Lord Hanworth MR in In re Thain [1926] Ch 676, 689:

The other statute referred to is the Guardianship of Infants Act, 1925, which by s. 1 provides that the Court, in deciding any such question as we have here, “shall regard the welfare of the infant as the first and paramount consideration.” That is no new law, and the welfare referred to there must be taken in its large signification as meaning that the welfare of the child as a whole must be considered. It is not merely a question whether the child would be happier in one place than in another, but of her general well-being. The section merely enacts the rule which had up to that time been acted upon in the Chancery Division.

And Sargant LJ, 691:

It is not necessary for me to say much more than that s. 1 of the Guardianship of Infants Act, 1925, does not affect what was and is the law, that the first and paramount consideration is the welfare of the child.

And Lord UpJohn in J v C [1970] AC 668, 724:

My Lords, the Guardianship of Infants Act, 1925, enshrined the view of the Chancery Courts.

9 For the second conclusion support is found in Eve J's first instance judgment in In re Thain at page 684:

.. inasmuch as the rule laid down for my guidance in the exercise of this responsible jurisdiction does not state that the welfare of the infant is to be the sole consideration but the paramount consideration, it necessarily contemplates the existence of other conditions, and amongst these the wishes of an unimpeachable parent undoubtedly stand first …

10 Something must be said about the expression unimpeachable parent but that will be done after reference to the Court of Appeal's decision in In re Thain.

11 In the Court of Appeal in the same case Warrington LJ also supports the conclusion when he held at pages 690 – 691:

The welfare of the child is no doubt the first and paramount consideration, but it is only one amongst several other considerations, the most important of which, it seems to me, is that the child should have an opportunity of winning the affection of its parent, and be brought for that purpose into intimate relation with the parent. The judge bore these matters in mind, and was therefore right in coming to the conclusion that the father was entitled to, and that it was for the welfare of the child that he should take over the duties and enjoy the actual privileges of a father.

12 Ormrod LJ in S (BD) v S (DJ) (infants: care and control) [1977] 1 All ER 656 emphasised the following at page 660:

The question is not what the essential justice of the case requires but what the best interest of the children requires.

…

It is clear from J v C that if the interests of the children require a decision in favour of one parent, the perfectly proper interests and wishes of the other parent, unimpeachable or impeachable, must yield to the interests of the children.

13 Ormrod LJ warned against the use of the expression ‘unimpeachable parent’ which was used in earlier cases to suggest that if one parent was ‘unimpeachable’ then that factor gave that parent a head start in the decision making process regarding custody. His Lordship had this to say at pages 660 – 662:

The phrase ‘unimpeachable parent’ seems to exercise a certain fascination over judges and advocates from time to time. I think it is a most misleading phrase. It is hurtful to the other parent in whom it invariably creates an immediate resentment and a bitter sense of injustice, and, in my experience, it is a most potent stimulus for appeals to this court. I have never known and still do not know what it means. It cannot mean a parent who is above criticism because there is no such thing. It might mean a parent against whom no matrimonial offence has been proved. If so it adds nothing to the record which is before the court and in the event is now outmoded. I think in truth it is really an advocate's phrase. It is to be found in some of the reported cases but only, I think, in those where a parent was trying to recover custody of the child from a non-parent or stranger; and there the concept of...