Mw v P and Another

• Jurisdiction: Jamaica
• Judge: BINGHAM, J.A. , PANTON, J.A. , SMITH. J.A.
• Judgment Date: 15 October 2003
• Neutral Citation: JM 2003 CA 45
• Judgment citation (vLex): [2003] 10 JJC 1502
• Court: Court of Appeal (Jamaica)
• Date: 15 October 2003

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON MR. JUSTICE BINGHAM. J.A THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE SMITH, J.A

M.W.

Appellant

v.

P and Another

Respondent

Mrs. Dale Porter-Greenwood, instructed by Brown, Godfrey and Morgan for the appellant

Debayo Adedipe for the respondent

CIVIL PROCEDURE - Dismissal for want of prosecution - Revocation of Adoption Order - Whether Resident Magistrate has jurisdiction to revoke Adoption Order - Whether Order made without full disclosure - Children (Adoption of) Act, s. 20A(1)

BINGHAM, J.A.

1 I have read the draft judgment written by Panton, J.A., and agree with the reasoning and conclusion.

PANTON, J.A.

2 1. On April 4, 2003, we heard this appeal and reserved our judgment. The matter had been dismissed for want of prosecution on the 1 ^st October, 2002, when no parties appeared. It was however re-listed by an order of this Court made on December 16, 2002.

3 The appeal is against a refusal of His Honour Mr. Oswald Burchenson, Resident Magistrate for the parish of Manchester, to revoke an adoption order made on the 19th April, 2000. The learned Resident Magistrate found that he had no jurisdiction to revoke the order.

4 2. The appellant has challenged the decision by filing grounds of appeal which complain that:

• (i) the Resident Magistrate had jurisdiction by virtue of section 20(1) and section 20A(1) of the Children (Adoption of) Act;

• (ii) the Resident Magistrate should have adjudicated on the matter and revoke the adoption order as the order was obtained in breach of the principles of natural justice as the appellant was never afforded the opportunity to be heard; and

• (iii) the relevant agencies of the state failed to properly discharge their functions thereby causing the order to be made without full disclosure of and due consideration of all the facts.

5 3. The circumstances of this case are quite unusuai. The records indicate that on the 19 ^th April, 2000, His Honour Mr. Bertram Morrison, Resident Magistrate for Manchester, granted to Mr. P.P. and his wife Mrs. S. P. business operators, "permanent transferral of parental rights" in respect of a female child, named M. W., resident in Manchester. The adoption order directed the Registrar General to record the adoption in the Adopted Children Register and to name the adopted child M. S. P., giving her date of birth as October 18, 1997. On August 17, 2000, the appellant, who is the natural mother of the child, filed an application in the Resident Magistrate's Court for the adoption order to be revoked and for full parental rights to be restored to her.

6 4. During the hearing of this application, evidence was produced indicating that the child was born at the Manchester Public General Hospital, to the appellant, Miss M. W., and Mr. B. W. The birth registration form does not provide any particulars in respect of the father, but it shows the child as having been named A. W. It appears that the birth was registered on March 19, 1997.

7 5. The appellant lived with her daughter A. at the home of Miss P. W. (the appellant's mother) in the parish of Manchester. In December, 1998, the appellant indicated to Mr. W. that she intended to take up employment in Curacao. They discussed the idea of the child residing with her grandmother P. W. but Mr. W. told the mother that he had made other arrangements for the child's accommodation and welfare. On December 28, he took the child on the understanding that he would return her on December 30. The child was not returned. His explanation for this failure was that she was with the person who would be caring for her in the appellant's absence. After discussions between the parents, it was agreed that the child would be returned on January 3, 1999, for the appellant to see her before the former left the jurisdiction. Although both parents saw each other on the agreed date, there was no sight of the child, and the appellant left the country on January 4, 1999.

8 6. At the suggestion of the appellant, her mother tried to locate the child. In so doing, she sought the assistance of the pastor of her church. The pastor interviewed Mr. W. who informed him that he had taken the child to the Williamsfield Police Station and reported that he had found her abandoned in the area. The Police had then advised him to take the child to the New Hope Childrens' Home. This, he did and, there, the child was renamed M. The child was subsequently brought before the Juvenile Court and made a ward of the state. Efforts by the Children's Officer to find the parents proved futile. In that situation, Mr. and Mrs. P., who live in a district adjoining that in which the child and her mother and grandmother lived, came into the picture as proposed adopters. They received high ratings from the Children's Officer who formed the opinion that they were in a position to offer the child a stable home environment, love, attention, care and the necessary financial and emotional support. Subsequently, her grandmother identified her and reported the matter to the Mandeville Police who arrested and charged Mr. W. for creating a public mischief. He pleaded guilty to the offence and was fined. During the month of May, 2000, the appellant returned to Jamaica and filed the application for the adoption order to be revoked.

9 7. His Honour Mr. Burchenson, having considered the application, ruled that he had no jurisdiction to revoke the adoption order; and he held that the word "revoke" in section 20A(1) of the Children (Adoption Of) Act bore reference to revocation by the Court under section 19A. The learned Resident Magistrate commented that...