Forsythe (Dennis) v Jones (Idealin)

• Jurisdiction: Jamaica
• Judge: FORTE. P. , HARRISON, J.A: , LANGRIN, J.A.
• Judgment Date: 06 April 2001
• Neutral Citation: JM 2001 CA 21
• Judgment citation (vLex): [2001] 4 JJC 0610
• Court: Court of Appeal (Jamaica)
• Date: 06 April 2001

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, PRESIDENT THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE LANGRIN, J.A

BETWEEN

DENNIS FORSYTHE

APPELLANT

AND

IDEALIN JONES

RESPONDENT

Dennis Forsythe

Gordon Steer

FAMILY LAW - Child - Application for custody - Interim Access Order - Children (Guardianship and Custody) Act

FORTE. P.

1 I have read in draft the judgment of Harrison, J.A., and agree with his reasoning and conclusion. I have therefore nothing further to add.

HARRISON, J.A:

2 This is an appeal from the order of Pitter, J., on 6 ^th April, 1999, granting custody, care and control of child Brian Forsythe, born on 24 ^th March 1995, to the respondent mother Idealin Jones, and awarding costs to the respondent to be agreed or taxed.

3 The facts based on the evidence led before Pitter, J., disclosed that the child Brian was born as a result of a relationship between the appellant father Dennis Forsythe and the respondent mother Idealin Jones. The relationship ended some months before Brian was born. The appellant, 50 years old in 1997, is a sociologist with a Ph.D. (McGill) and an attorney-at-law. The respondent now 33 years old, is a sales representative employed to a company, and now occupies a two-bedroom house with her fiance, a chemical engineer. She also has two other daughters. The child Brian has lived with its mother, the respondent, since birth.

4 The appellant occupies a modern spacious house with sufficient outdoor area for a child to play. He remarried and his current wife, experienced in looking after children of her own, now grown up, expressed a willingness to assist in the upbringing of Brian. The appellant sought custody of the child, contending that the living conditions of the respondent at Claremont Heights, Old Harbour, St. Catherine, being " ... devoid of bare communal facilities" is not conducive to the proper upbringing of the child. In addition, the medical condition of the child, alleged to be suffering from asthma allergies and "serious infections of the nose, ears, throat and stomach," indicates that the child is not getting the proper care that he needs.

5 Consequently, the appellant sought custody of the child, Brian. On 14 ^th June, 1996, on an application by the appellant to the Family Court for custody of the child by information No. 240/96, an interim order was made that the child reside with his mother until final determination of the matter. On 12 ^th September, 1996, the interim access order was varied. On 26 ^th November, 1996, on the said "information No. 240/96," a further custody order in favour of the mother, with access to the father was made "by consent." On 25 ^th February, 1997, on information No. 937/96 in the said Family Court, by consent, the "interim order made for custody order made on the 26 ^th November, 1996" was varied, as to access.

6 There were two further orders varying the access order by the said Court on the said "information 937/96" on a date suspending access until 9 ^th June, 1997. "Mother to return to jurisdiction along with Brian by the 5 ^th June, 1997," and also on 9 ^th June 1997. On 2 ^nd July, 1997, the appellant made application in the Supreme Court, by originating summons, Suit No. E. 230/97 seeking custody of the child. By exparte summons on 7 ^th August, 1997, the appellant was granted custody of the child, but on 27 ^th August, 1997, the order was set aside on the ground of non-disclosure of the fact of the interim order made in the Family Court. On 26 ^th January, 1998, the originating summons was adjourned sine die to enable the parties to obtain counselling over a period of six months. The said summons was heard by Pitter, J., who concluded on the evidence before him, that it was in the best interest and welfare of the child that his custody and care remain in his mother, and he dismissed the summons on 6 ^th April, 1999, pronouncing "Leave to Appeal is refused." This appeal arose as a consequence.

7 The grounds of appeal were:

• "(1) That the finding of the Learned Trial Judge that the child is happy and well adjusted is not supported by the evidence.

• (2) That the Learned Trial Judge whilst knowing the law did not apply it to the facts of the case.

• (3) The Learned Judge erred when he substituted his own bias for the facts.

• (4) The Learned Trial Judge erred in giving preeminence to what the arrangement was convenient to the mother of the child rather than what was in the best interest of the child.

• (5) That the Learned Trial Judge did not appraise the evidence regarding the condition of the child correctly and objectively.

• (6) That the Learned Trial Judge admitted inadmissible evidence whilst rejecting admissible evidence.

• (7) That the decision of the Learned Trial Judge is so aberrant that no reasonable Judge regardful of his duty to act judicially, could have reached it.

  (8) That the decision of the Learned Trial Judge was not "fair" and "impartial" as guaranteed by S. 20 (2) of the Jamaican Constitution."

8 The Children (Guardianship and Custody) Act, which came into force on 1 ^st July 1957, empowers the Court to make custody orders on the application of either parent, and determines the proper approach of the court. Section 7(1) reads:

"7. - (1) The Court may, upon the application of the father or mother of a child, make such order as it may think fit regarding the custody of such child and the right of access thereto of either parent, having regard to the welfare of the child , and to the conduct of the parents , and to the wishes as well of the mother as of the father, ..." (Emphasis added)

9 Such an application may be made in either the Supreme Court, the Family Court or the Resident Magistrates Court, thereby recognizing an existing concurrent jurisdiction (Section 2). The "welfare of the child" to which the Court is required to pay heed, and to be guided in making its decision is re-enforced in Section 18 of the Act. Section 18 reads:

"18. Where in any proceeding before any Court the custody or upbringing of a child or the administration of any property belonging to or held on trust for a child, or the application of the income thereof, is in question, the Court in deciding that question , 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, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father." (Emphasis added)

10 At common law the father of the child enjoyed a virtual sacrosanct right to custody of the child, unless he was guilty of moral misconduct or proved to be otherwise unfit (see Re Agar Ellis (1883) 24 Ch. Div 317 ). The emphasis on that sacred right of the father was later changed, and replaced by the welfare of the child as the paramount consideration, both at common law and by statutory provisions. Of course, these principles concerned children of legitimate birth. A child not born in wedlock was not in contemplation.

11 This application for custody of the child Brian, a child not born in wedlock, is made under the provisions of the Children (Guardianship and Custody) Act, by the appellant father. At common law, the authorities have established that the mother of an illegitimate child has a prima facie right to its custody: ( Barnado v McHugh [1891] A.C. 388 ). This "right" arose as a consequence of...