as KD. Antony within which the legal system tives, Extant defistons are mere Iuidelnes to Wentifeion, and may not thtefore be uilized as futhritatve criteria In fle, the argument as been that, ike al eer Tegal systems, mixed syeems hive not oly an lane lope, bat 4 story, sociology, apsyehology, and indeed philoso." rt La, Chl aw Sci Uw Te La Ch og (Be ‘THE JUDICIAL APPROACH TO CHILD CUSTODY, ISSUES IN THE COMMONWEALTH CARIBBEAN w LYSTRA KODILINYE eis easy ose the principe appli by the cout in mates relating to he cstody of eileen All cid eustody istues mast Be determined according 10 the chit’ best imeress. Ta Leong Quen v. Bramble ‘Wooting C1, im the Teniad and Tobago Court of Appel, sal “alticugh in one sense thse proceeings area contest between dls, sna so much with thm atthe courts eoncerae Tee the welfare of te child tht mas be is persmoont ‘onsen. " es the duty of te court to consider al the celevant masters and ers is on discretion in determining who shall have custody of be ch Tt proposed la thls ey to examine the raonle hind he ui ‘éeerminaion of casody mater and wo lscuss the ways in WHICh the ‘hurts have applied the “welfare ofthe cid” princi. 1. STATUTORY PROVISIONS Ie must be recogalad atthe oust tat he dtemination of disputes cover caso will depend on the fas ofeach indvidal case and hat there i wide discon glven to the judge who hears the exe. At (Georges J. sated in Milne» ine “Iti te ty ofthe eur to aes al relevant ccumstances and ave on te balance a the devslon which serves that nd.” 1 follows, therefore, that factors such as the demeanour of wineses must ncesariy have hgh Gopree of fluence on the cours determination of the ise. Genta speaking, previous judicial ‘ecsions are uefl only a8 guides fo indie bow courts in the pst ‘ave rected to partiolr fatal sits wich may be analogous 0 the fats of the cate presently under conden. Ths apo (1969 WER, i igh cous tn a aap, 0.2162 0199p. 219220 Lyra Kodi ‘pproved by Cross JA. inthe Court of Appel of Trinidad and Tobago In rehoraky v. Hrehorsy Each cage must be decided on is own fats; an the rule of stare decisis rst be medifed to give way to the overiing Princplof the bast interests ofthe child, Nevertheless, decided tases may be of asistance as guidelines, if not at blading oF + persuasive authority." Moreover, changes in prevaling social mores and the aivancement of ‘enowledg in the eld of childcare and developmen tend a diminish he ‘valu ofthe oder judicial decisions insofar as they may be considered 38 barometers of how the courts today will react 10 similar fatal [At cominon aw, the father ofa eild bor in. wedlock was absolutely ie to its custody, as well against is. mother as aginst fosters parent ora stranger. The cones was one of egal right; accordingly, the [proper procedure was by way of writ of habear copun* Equity, however, took a fundamentally diferent and essentially humane View Equity was not so much concerned with the rights ofthe partie sak tw obtain or reain custody as with the welfare ofthe child elf, 8 jurisdiction was a paternal one; a judicially administrative jurisdiction by Which the Court of Chancery acted as parens patriae of an infant nd ‘ths supeseded the natural guardianship of the parent. In most West Indian Jorisdictons the common law position his been abrogated. In Leong Quen v. Brandie? Wooding CI. sated - “Not only dif the common law give way to the equiuble Drncite when law and equity were fused but, Inter, other ‘modifeations were introduced By att.” Further, section 4 (1) of the Family Law (Guardianship of Minors, Domicile and Maintenancs) Act, 1981 of Trinidad and Tobego provides in relation othe custody or upbringing of minor, motes shal have the same rights and authority as the law allows 10 982) Cou ot Appeal Ta wn Toba, 0. 87 of 1981 (wep. + Bhowen ou 197) 25 WAR. ere body anf (98) {GLK 204 Rel, anim, (196) Sop. Coa mo, BI2VIS (oreo, 5 sey ewe us, 1 + Seeaho Mies Aa Cap. 215,28 (Bead: Cen (ashi nd {on At) 8 Uni) naey At, Cap. 1, 15 (Cee {hn Coe Ch 24pm 2106 Lo) (Chl Caray tn Te Caribbean a fuer, and he rights of mother and father shal be equal and be exercisable by ether without the other. In addition, section 3 provides: *Whece in any proceating before any Coutt the custody 0 upbringing of an infant. iin question, the Cou, in deciding ‘that question, shall regard the welfare of th and paramount consideration and whether fom any other point of view he claim ofthe father oe any right of common law possessed by the father in respect of ‘sich casody, upbringing, administration oc applications supeior to that of the moter or the claim of the mother is superior to that ofthe father.” Section 41) ofthe Act gives the mother the same right and authority 4s the aw allows toa father, and provides thatthe rights and authority ofthe mother and father shall be equal. Although in that section the welfare of the Infant is not given pide of pace or paramouttcy itis Clear that section 3 roqules that Kt should Be thus treated becease that section requires thatthe welfare ofthe infnt shouldbe the frst and ‘Paramount consideration in any proceedings before the Cour where the stody of an inf is in question I, DEFINITION OF CUSTODY: THE RIGHTS AND OBLIGATIONS OF THE CUSTODIAL PARENT ‘The paceot ox peson who has custody of child usually asthe right tothe care and contol ofthe child and may dicate the manner in which {he chilis tobe brought up and educated. What then does the eght 12 care and contol mean Refering to cil welfare legislation, Sachs L-. In Hever. Bryan? stated that: “One finds seatered, sometimes with and sometimes without ‘efnitions, words and phrases such a ‘care, “contol, ‘acta! cisiody’, “legal custody’, “guardia’, ‘egal guardian” and ‘possession’, In the end, so far as comprehensibiltyon these ‘matter is concerned, on finds that this voluminous and well 7 9m 1 qp.35, 37legislation has created a bareaucrat’s paradise and & Not only the terminology dict but the whole conception of what ‘are parental rights may be coming it collision withthe development of countervailing rights in cilden, In emer Bryané Lord Denning (MR. stated thatthe legal ight of «pare to custody ended when the child reached eiphten, and. added that "even up till then, itis a Awindling cght which the courts il esate to enforce against the Wishes ofthe child. 1 starts witha eight of contol and ends wit ile more than ave." ‘The expression “parental rights": a lose way of describing the bundle of rights, powers, duis and.freadoms which parent hak with respect to his child. According to Hohfld, a pare basa right todo an actif others are under a eo-relative ity fo permit the at ot 10 forbear ffom preventing it. Ths “right” can be contrasted with a Drvilege, where a person may do an ast nthe seas that hei ot Under 8 duy 1 forbear from it But others ar fee to prevent ims? The astoial paren has a righ-to physical posession of the child. At ‘common law, this ight coud be enforced trough the use ofthe wet of habeas corpus. Bromley" cighly poins out that this definiion of umoy in terms of a right to postetsion has a dated ring and that righ be beter defined a argh wo provide x home forthe cid and power to determine where the child should live. Ths rights protected by the criminal lw tothe extent tht pereon can be chargad orchid ahiucton if childs removed without lawful authority ofthe custodial aren. In addition, a cour may order thatthe power and suority nen antl Lea! Conon (Yale, 1918, oie 1964, Sean Re KD. tanner) Ward Tormbaton of kee) HL MM PER B97 OH, Therare rt pal tlie wich can be et: Poe (0 za, (ae Gl ee coped wi pn dG) feos See Exel, "Wint are Prelit” (97) LQ 4 Mido “Te Fragneiatio of uel Right 1981] CL, 138, Bite, The Mer ‘etn a Lint of Pen Rig” (191) 97 Qa 1} Broly th Love, Bruni’ Fay Low Mee ere), 9.27. "Secchi Abocon and Cat ht 98 fEgnd od Won, ‘Ponca par an eam econ neces npg "0. (198A. 7) ar une imptcnme ce Rar (3) {im App. R36) the ei hy he Seine! apa ht i Wet aan ae of Keping ne Four ene 196 Spee ‘re, Berm, oo 996 (epee; Brown Bw (89) ik Ovid Custody In The Caribbean 22s ofthe person who has custody be limited with respect to some mates, sac a8 prohibiting the custodial paren from taking the cild.ot ofthe Jurltiton ofthe cour without a frter order of the court. ‘Having the sight to look afar chil involves moce than providing hhomes-Te involves the rights and- duties asocatd with bringing op the child ‘tthe present and in the future: These rights are olecvaly ‘own a8 the rights of custody? The fem ‘eustody" however san ‘siren hay oma wl epee See Sey tres wk mange Infor Soi ot it wma st epi o ai, an ere 9 such athe power to onto the child's education, Hs eligi mes a popes, eal aot ing ad the op oa female child, el mariage. “Further [Bowers jncloded the right to ven the sae of a passport tote child and the right to withhold consent 10 marge. "Catody" inthis wide sense embraced bth the power of physica Sorrel over the child andthe Fight to apply tothe cours to exercise the powers ofthe Crown as parent patrae, Sachs LJ. concluded by observing. tit, "somewhat anfstngly, oe ofthe powers conferel by custody nits wide meaning 's casody in its Timited meaning, namely sich personal power of Physical contol asa parent or guaran mey have.” In England and Wales, the Childen Act 1975 atempted to clarify the postion by enacting thet forthe purpose of that Act and of any Act sed afer it, “legal custody" means "so much of the parental ights and tis a relat to the person ofthe child inching the place and manner in which is time is spon)". Lagal custody" is contrast. with “actual custody", which means the aetual poresion of the child's eton, whether or not that possession is shared with anyone ese. This Cov, Bats, o 247 of 1989 (neponed a ALFan (98) Sereno etn Ota pe 2 Seedapue See (196) 19 Tim UR 3) iisojt ge as 28 ‘Seb née Iepettion At 1975, Se, and Ses 2, pr24 yur Kodilige ‘arrow sense of the word i sometimes denoted by the words “are and contol” or possession." 1s submited that law-makers in the Commonwealth Caribbean should formulate clear guidelines 38 to the meaning of custody i order to avoid the confusion of terminology which has arisen in the English case lw. Although the Intention ofthe Children Act 1975 of England and Wales was to simplify the lw, cid not clarify the meaning of he texm “eistdy", ‘The Children Act 1989 has replaced the “estoy “order” with the "residence order". The later Act has introduced 2 now ‘concept termed “parental responsibilty, By virtue ofthe definition of Parental responsibilty in section 3(), it would seem that the new concept embraces the previous concep of “parental rights and duis and restates the legal relationship betweon parent and child, with & areater emphasis onthe parents obligations to care for the child ‘The principle remains intact that In resolving disputes relating to ‘astody, West Indian cours are tatty" bound to regard the shilds welfie'as the fist-and-paramount-consdertion,-andthit-this mast necessarily prevall ove anyparantl igh. Ths isnot to say, however, that the State, through the machincry of the courts, mist always intervene in custodial maners. Iti only where the paras are unable (0 ‘each an agreement a 10 who shall have custody of ther eilden oe hey are not saified with the sau quo, thatthe lem san application to the court ose the disput 1, THE WELFARE PRINCIPLE IN CUSTODY CASES Where the cur i equstedoinervneivany depute lating tothe asi of a chld- the overidng cosigration is what sin the best lnteest-of the-chit, This pracple hat oon enshrined in statutory "woul sin, Noweve at pet win eld, ba ot ata Pyrial conta, cou sil eerste te mers of ete ott be {can and paging ah his Cope Cope [96] 9AN ER, 599,541 C.A) Omer Uni ate fre hein eel cody ‘etc py cna oul trem ot aetna) tbe heaton and binge ie ” Secfa fm cmd Cutty I Te Cariboo 2m ‘provisions in most Commonwealth Carbean jursdicons.™ Guorges CC. said in Coleman aColeman:* - * “In elton to access and custody, the welfare of the child as always been the paramount consideration,” ‘West Indian jadges have relied heavily on the dictum of Lord McDermott in-doo=G#” w the effex that the courts, in-deidig cistody matters "shall regard the welfare of the child atthe frst ant ‘paramount considerations" The leaned Law Lord coined” Gi Sent en 2 of 8 teste smelt Bao Basin (197 Hh Cad ‘el ot arr rar Ean 7 Sa our The Baume, 55 980 (owepore Me» ne 19 ‘ge Cou, Teal Tetagn, 021600 197 (ope ar ‘Dhrb (97P 12 Bus UR, 5: Recor Reade (900 SS, ann 7 of py rd an {Gon Sopene Cou, hms, aE af 19 (omepondy Hem gate (1915) High Coun, ened a Teter. 28-90 1975 (ero High Coe Berd 0 Do 90 weer Lot Br Ban 96 8 WR 1. yor ane de Wor insane Bator». Bao, ine 1 Mt aero Kary Lard Lasts Re Jn 195 igh Cou, Brann. 9 of 197 amped) (90) TAD ER 705: By Chten Ac 10, W1OYQKD, whee ‘ou onder wer ary Sarge oem ‘rer rr ioe cat mn have os a 0) emerald eas ofthe id dere pf rage and ders (2) phys eno on edn ei (5 tela eet on in ony cane i esac: (Nae acinar Seco hw to) Sphere () — Sewenpbleat hie rey andy ste pen ion Sica cour enter he ght bea of mig (© te tagt of power silt he cut under Ac precuein sion“Reading these words inher ordinary significance... eseems {© me that they mus mean-moco than ha the ehilé's welfare i to be treated a8 the topiteinalisof items relevant to the ‘utter in quetion. 1 think they connote proces whereby, when all he rlovat facts, relationships, claims and wishes of Patents, risks, choices and other circumstances are taken into account and weighed, the couse to be followed wil be that which is mos inthe interests ofthe chi’ welfare that tm becanse it rules on or determines the course to be followed” Paramount", however, dos.not mean. exclusive'.” Ax Ocorges C4. opined, i considering the question ofthe welfare Linu be cata ‘otto take this ito accounttotheexclsion ofall other mats aed Tin custody cases, judges inthe Commonwealth Caribbean tend to lok & the evidence as @ whole and form an impression as to which reat ‘would be inthe best interest ofthe child, rather than proceeding hroogh a checklist of factors and placing them one by one upon some Imaging sale. This is by no means an easy tsk. In Couihard , Mathere Renwick .* admited = "In this cas, the welfare ofthe children ie sole soneem of the cour. I frankly admit to baving great dificlty ecidng what is best to be done." Tn contests becwean parent for te ustody of children, the enunciation of the correct pioeples of lew Bresenis litle lificlty.Moce difficulty is encountered tw he So to oe nel rt {Seed Mowing Waten GSE Toba CR. ea ‘tenga oy a ene tuk be {09% ih Goo, nad nd Tg, loa of too itr hi 90 gh ena se Teg oe {986s Bs» B98 Spe Com kc 108 moat as» Believe Co oe ee S39 Get Fr cure ny wr ace ses ee St asia Tne tis (Sept ost ty seed fe oe Dar Cine 4) gh av, snes core (lot bane O90 ede LR20 yrs Kode ee te eet octane ae ded dase omeei od ea ine le prgecoecg an at coat Aree BAe oe Sect Sele ee ie et ee te eee stm ves he eae aoe angen Sora ee ees IV, FACTORS TAKEN INTO ACCOUNT IN CONSIDERING THE CHILD'S WELFARE. 2) Religion 1c wel sett pipe hat ours il x att 0 aja ween te merit of ieee fi." ‘Nor wil te-cour dite’ ‘gon piloupbyse eter prne However wher consti the ‘alr o the hid he oar hs fo kein onan tect wih ela acts migh have te we Seng (tthe he Mane at) Secon ofthe High Cou of Brose, the taer ot of te Closed Brees, argos ‘der wc level i "pcp in sepa’ The BOS, ek ‘om he was doe, plied for ne ake esha he USA Shed noc wiki hid be expendi. Te sh to consider te fet ofthe dotnet eparation oo the wale of Chili: Hansel Ag. C3. at "Chior of he Closed Bern ar ot allows 4 ix wih any chdren who ae nt member, exept schoT doing fehot hours. They sent lowsd gow te homes of uch hiren ort hve them fo throw fms They se ot Slowed t tke prt in schol gumes or any of he tet Sean ais) ae 7 90, Didar at es arr Cr (1965) Spree Cou, Ba, oft (ome. htt Cea In The Crean a scrvs ina school outside of cases, Tey may not x with {he other cilren. They ae not allowed to o 1 the cinema, 0 listen oe ratio ort wath television, They ar not allowed to have animals septs” simul. On te oh: bar inthe Trnkadian cae of Auge Sedor® where the mother was nota Roman Catholic ba te her tra, ie eur thought derale at he ch should be beoupi p as fa as was practi, reece IE Wiss. tig he ‘The mother was in arose wih is, and aay ete the court Indizted that both pares should ty 10 apres a © what ought w-be be concerning the eigiows upbringing ofthe child. Ie seems al ‘Ba ne tence of evidence of sta. potatia hrm the cil, the puting principle in cstdy ces whete the fs Lndlet SUONS_ 1) Conduct ofthe parents The courts do ab ow speak ofa pret right custody, bt they mast sl colder the lative Funes, mets and other circumstances of ‘ich parent applicant fo casiady and thei ffs o Hkely fet 09 ‘Bowell. ofthe id. Ts tue to sy tat conduct of the parents 5 ete 9 9 Tn 9) Sa ean + Sehoran = Rover (90) 1 RFL. (i) 186 an Dr De La File hen ER 30 eg og GED GRE, C3, Silt Gscive cher ses ee nr in Bt imm yur Kedtige ich reflects ie sands of moi, pal tie sx ‘ora, ar often been orf whh te sus fave scr {Smite weigh In the Tallon ene of Aedes Stage’ suerte gusion the may oft moter ans Spas on te wale of te Cd. The led oe che th toprol he English Cor sf App ch of ln wns where ‘Won LJ st a "ewes imps ul cae a ‘romana ce canted adler near ns eso, ‘aos oe ofa ot onk serach" Geog wet seus Cat at Apps ad sed uc Iran Yer aay slo golf wih tere, being pr amend errs saat tt woul e's ‘eat ‘shes seize ar beeateg up he homes might ead ft chron Led Denning ono “ic mater of simple jc seas thm thatthe abe) sould ave ke ere an con.” Whilst he wee of te hire the stan prmoun cosa, be ne of june camot be weno However, Georg) correcty observ tht wat he nw rue was ‘hsp june be doe to tec by mklg Be dso wih ould be bs forts welfare =n ht “spl uc” be done beween {he paren thir competing lis fore ea, He nemo seao” ttf appro ine Lae aon, “infact swe ne toea-cone_The aw remus ib be ihe peion owe la eB 2 Pano © ieee, Re sur xed soggy ar eer, stesétc pc rps pendant eros ee ie ane Say eh et ‘im emi sgh fe bee (Cid Cea The Caribbean ns This submlted widh respect thatthe approach adept by George J. i ‘Mine. Mie cords with coms rene, sires 0 lel piscbl. Homever serous the misconduct onthe mother’s part, Die mst mover ‘ogWagI-Wpwranaunt omen whieh bthe welfare and te ‘appinas ofthe cil rs Laer Trinidadian case, Quesnel »_Quesal.Bratwae 1 approved of Georges J's approach In conning tho effect of te ‘urs conduct on be welfare ofthe hd Ia the present ase, be came woo clon at Mo ls tn tep er young son 1 lve i what must Be fear, scoring to ay. stands, a os. primive Contos, td wih companions wie or ts wea Sep the lear, sumer dead lo easement of itesponshiy ad iii br esos which, Tink, inst operat gn her subi fo hve te esnnion yf the ca” kaso ttn Quin Ques te me ot cody of the hid treme n Mlne hae hex sodac ete Sn otf te chi She sw th sho tio it er sal ‘oodenshsy atthe se tne se aoe ith one bet {Eucombicc Beaute pomed att she ke outs ‘hin hl sioner or conser pil time 2 mest ‘Rorssonshe tage this your is” tus Guana at Was ain jogs set st if that parent is of & proiniseudus seit puene an tederaecTietesetmentnechag Win oe " ‘Bea very sound spon sop Rete he qesin ofthe ma sont of 2 of... hd an a «a push of ba pare. war Hay sted by Georges). 2 Colmar Coleman? {G9 Hh Co, Tid nd Tags, M9197 oer, io en Ba echt Rc Riad, 1, pre ecousampal {050 Sore Coot. The Bahama, 294 198 (nepone.a Iya Kode ‘ssociton wih ht pose Sach Sn {ote cond of chs ve craters rouge poof ‘ormal sensibiies,"= Jn he Engh ewe of B.¥ B. (Custody Onto” eis tele the cor waste dtl of bcago pwc in esbin ovetbold.Ithod been suggra ht where new tes publ ‘ern ight have chosen to aes regards tenga ‘hese shuld tee esos oa ne ils tt sever hich they shuld regard the rks to chien of beng expose at ‘rie ge, 0 a of fe which pt ed sevens os not Sccey to pyeholgel san and vaginal psy een ‘skal experencen wich might sir han fore, tad to tee ‘egud in anher Fags cao" tha anders eutanes sel Bid be brought op «tan told Tat sre spprenc we, ower, esta bythe luge ad ye Cot of Ape, Te ‘resent cse allman, egarig te ear of te ld a te Fann coneato, sted ™ “tcamt deny the ct at he uso of sigmstizaon and ‘eptaton i ems worn pet hs tse aa have terme is very mac ining ue ole tga the welfare of he elise ah ere ha ely ow fom cml gg ye me oe Yuge Invading coed 0h tes the lenge onsite he {stove fcr vily npc al ate ila song ond wih the mother -hat he moe hal hough dep aout he tinct of binging by ap tain ron ada Ret ‘tie towands te aeons women ar anced an esl. Inaditon the judge conned te fac te fer td ance heer ee cine sce heat ” UipyeR Gane een oa ON RER 24 Se ‘See Be D Gn non (1977 A, 6, 629, pr Lend Wier. Sehr PMs W0) 4 EL HD tears “Cont of he pose wat importantly no fs itmae ces te are cd ae a (td Cusaty n The Caribe 235 ‘rere ou a wrk dy, 2010 give care and-conto tothe fuer woul Inet estates clldninie fora foving ther. ‘This decision tppears 10 be a Soely balanced one based on substantial moder peyahsle and pepcoloicl information given by an expert on ssh fates. ‘The lara age note," moceover, hat the mother bad termonsrate hr dents to se that he cid would be broupt p on 2 ‘Remover ass and that he woud so is fer frequen. Thee do at appear to be ay West Indan cases on tissue, butts subi ‘hate above approach ithe right one "Where pares guly of conduc which wil expose cil to mora cosrapion by. sxample-and hat pater wil not Be ‘trade custdy,ln-he Tiddion cae 0 Baton Batson any Shs mot grace two a respondent lived together he would often in my. Sarma wr svingis welte pcs ef apostle ‘acest sel and se ste Inte Trainee of fr Gobel Deon J efsed pe ody fe war (Tayeung ie cd a ve npr nd wl fe rem Sah te we mel win eer {Paninn ting ey er ar per Ssh el wth he ue te mari om, nt [Sn eer se wa at er sural mimes home, she a 0h nt te cite ea ty gh Cou itd Tats, M959 17 anspor.26 yar Katine ‘sustain injury to her fot and on a ater oscasion she was art on the face ty ahotelecic iron Later the mother gave up estoy of te clild othe father, in whose care the child speed to be ving The child vas prospering at schol and was wall sted in he soil Setves. Her rious upbeinging was properly taken care of. TBs adge granted the ter cstody, dept the fc that he hd een gully af vlenetowardshis wie. The cour scape ht his aggression we ‘only dresed towards the mother, and ot awards the ed. This case irates the lack of ehild proce lepton in most West Indlan ferries. is clear tat the muteroalgraninoter’sinfcion of injures nth child went completly unchecked bythe lose relatives of {he child andthe community at large. This problem of chi abuse next ‘be adrestd urgendy and wate intervention mst be vasa der to pret children” who are. contunly being abused. Costly procedigs wil ot ava ppt protest chen who are ving with ‘oth paren, and in any ease hee procetings do not provides suit ‘elie for children who are beng shed or ae In danger of being used In another Tvinkdadian case, Mariw v. Mathie a 16 year od gle suffered from the trauma experience ofthe breakdown other pare? ‘mascage The gl grew up in an moephere of vslence and diptes between her parents and bewoun ber father and be haloes and sisters. Tn court, both pares accused eachother of bsing ua have asioy of he cd. Davis) ai must conser both th physical and moral well ofthis chil Test take int account fet tht Naat i mos et the age where a court of iw would heise to make an order of ‘ustoy In respect of hee must weigh the advantages aad Li ere Se ow Chen (Oi Cty) At 2 » (Bos amen ma (ht Cuan The Caribeoe 28 {his Is the positon whether the child is bor in or out of welock.”* ‘Other West Indian judges have followed this Tine of reasoning and fave noe given effect fo any so-allad “righ of the mother of an ‘leginare child casody ihe welfare of the child o required ‘ihe pay may make an aplicalon or custer-applcston for he csiody of th cil However, sens that the father of ld bors ‘ut of wedlock must show thet an afliton or spon order hat ben tad ia le favour, It ot ult for nw show thts pteralty In favour ofthe oil as boas resordd in Teg Binding eparation Aisin the Englh cas of Hereford and Worcester County Counc! D> the court held that altbough te Parly Law Reform Act 1987 ‘ra passed to ensure othe great extent posse ht the egal positon (ofa child bora to unmarried parents shouldbe the same as that of one thor to marred pares, te fher could ony acquire the same parental sight and duis este moter by obtaining parent rights order under fesion 4 ofthe Ac. Such a dclartory order placed the aha nthe Same poston vis-evis the child as wat the moter, and Inthe same ‘oti vais tbe mothe as was a arid fuer > Fou eo ae mE Sao tes gemma + OSES anc ecg mn See OS Mma ionactenneecormects + RR athe renee Shoo macamen ees epg rie See eeencemnie ecmneets Errante nm rcsoesats20 ye Kellie (© Financial and material sanding of parents 1 sees thatthe flaca sanding of the pares ie slovat consideration in casody mates. However, n Re McGrath fay Linday Lt ad "The dominant mater fr he conieraton of ou te wai he hl. ate wlan of hl a ‘Pease by money oa, or by posal somfon The word ‘rte’ mes be na it se "In lark Carey. the cor ws pi opin ot hat is ease ‘was ot oe of blaring the wea of he father apn te “eave Tovery" of the abe. Smith A. sid” =“ would be very tomate Ith en wa put a aaa Data well odo father cat take vay and piv te mother oan eine ch fe easy ‘other cd merely besase hs Hoacialy beter of ha hc and {dle bene provide forthe cls trl wel” is bed, weve, ht the fc hat he ther tis presen cae have 2) mens of spp mist have ben 4 major far Gaping et Stam for cased in anoter Jamas ie, Lord ¥ Lord te tthe: was dei cody of wo young shin, oe ef he texans ‘ental ber arangenent forte cle ante cast) ere ase onthe asumpton that the ahr ed! pation, would ave t pay substan! maintenance Whee the dprty between he fianial tacing ofthe apples High? our woud bo ily ‘0 damis he meus of ei pre fom ts cnsderton altogether “The mate cumstances” of scm houses we erefre 2 eleva comsieration fr the cots Tino te adequacy of he Accommodation and how well the house Is wanaged. In Reva! ‘ejore™ epee prandnotee was pated csoly of 0 | 10,18, Sea ha 912 2,28, pr (Gor) #0 a7, Mala sinh eho 85 LR. 8. im gh avatage by bing abet provide «ing poo. The ito wa dave eso Fue Fao C8 gh Cor «gle Taga 199 pata Soe Guan on a, itd Caan The Caribe 1 ‘lc in preference tothe trl mother, withthe cout poling out ‘hat the grinder at» good bosses ad led in large house Tn the Ens case of Re 5 Minor) Custody Booth J tated tha no cour ould propery make longterm order fo cstody, cate and ooo of cin ues tke fy clerly what the seosmodation Broposls were ant where the shilre's home was going tobe Parens Inka soup the cre and contol of tee children mast have mae plans 2a placed before the court very ear proposals as tothe future home of the citron ©) Mental and pial nes of parents “The courte ay ao take the mena nd phy nese ofthe paren Into conieration, In Renaud v. Pare.” the cour, in efising the sober easy of her two cies, observed tat the mother was ‘hate and that sho ved wit er paren, her faker being met land unable to work Tn 0. Na mother was avarded estdy of ‘nz young child dspthavnga heart contin. She stalin evidence thatthe valve around her heart claps when she was depesed at that his eno happen on hd tht she ha hd no rset problens ‘On the othr hand, in Manning v. Waldron the Bartados Court of ‘Appeal awarded oot custody to both paren, with care and contol traded to the fer, on the rounds tat the other Hive with an ‘pile unclean that wool be unsafe eave the id unten Inthe pravence of the uncle wile herve wats work. ‘Tere is anoher eect of» pret esa nd peal nes whlch bas lo eon considered 2 factor in esady mats, aely the age afte paren, Inthe English ewe of Re M (A Mor) (Cuz, thee the mothe was 16 yeas ci and he fhe 17, bo he ial judge ‘ad the Cour of Appel approved the mother's proposal ta th child ‘be opted. The wl judge accep that the chil Would recive love ‘cae wit ether pes andthe assistance of grandparents, but hat LO Fen 5,6. © Bat Se ise ih Cont, Bd 8 01986 are, ‘ist tebe Lb. omen ex2m the child would be disadvantaged by the immaturity ofthe parents, father would most likely wish to seek a life parte, and bis years were Ikely tobe a stressful time for him, "The Court of App agreed that, however genuine and sincere the father might be at present time, In a matter of a few years he might well have ot Interests which would conflict with the welfe of the child 1) Single parents [Tt seems also that a single pacent living far from the rest of her family may lose custody ofa chil, even where there is no complaint about capacity of that parent to Took aftr the child. In Re H(A Min (Custody) the English Court of Appeal had to decide whether to gr ‘custody of 7% year old boy to his mother who had cared fr him ver well for five years, orto leave him in the cate of his uncle or aunt he had settled well in the two and a half years that he had been wit them. Sir Roualeyn Cumming-Bruce accepted that a familie appro ‘would be to start from the positon that one paren or the other should preferred asthe party with care and conco to outsiders or to member ‘ofthe extended family, and that twas a mater of observation of hu nature in the case of the upbringing of children of tender Years that th ‘mother, for practical and emotional easons, was usualy the right pe to bring up her children. In dismissing the mother’s appeal, the Court accepted that the trial judge had performed "the balancing, act ‘meticulously"; that the desion could not be said to be plainly wrong and that the fact that the child had been subjected to a series alterations in his background and had changed from a shy, difficult ‘backward boy into @ normal schoolboy, necessitatd the decision that h should remain whece he was, with his uncle and aun. I i submit that this decision is a dificult one to accept. The mother was @ and caring mother and the child was happy to be with her. Ia addition the father had deceived the mother (who atthe time was living in Ind ‘with the child) by persuading her to give up care and contol ofthe child in order that he could be educated in England, which both parents uimately agreed was in his best intrest, and falling to carry out his promises to bring the child to India to see his mother and to send her ‘videotapes of the child." Counsel forthe mothe also polted out tat Iyira Koditinye © sarc R389, wise (Gilt Cactdy In The Caribbean 23 xh twas on record thatthe child had expressed a wish to stay with uncle and aunt, he had told the welfare officer that he would Ike to ihe with his mother. Furthermore, the child's headmistress, who | Sepported the decision not to remove the child from his unele and aunt, ‘ike knew the mother. It seems tha, in any event the Court of Appeal a imited in its power to intervene even if that was inthe best interest ‘ihe child, because the House of Lords in G v. G” had decided that {ecvention by an appellate cout in custody cases involving a change of | Gare and contol Is limited to circumstances where the lower court's $5 prayed in sch 4 vaya ts patible for ou ‘Bihar satan propounded by the oop ws puny wren. submis tht eer slat nh ae wuld hate benno avrd cre ad cnt fo he moter onthe ground of ‘Servafon of te nar ors ffm i, coupsd witha acd por acu tote fae Te shld was very young ad old ave Ser cteced oa gue orally to ceuaing fo Te wid As vere sce that is cue he Cou of Appa px 00 mach uals on peeing eee sans quo snd nt emi on Be Srl of he el ) Parents’ wishes and faure plans “The desire of an applicant for eustody 0 live abroad or to send the child to a boarding school outside the jurisdiction of the court is a factor tmeriting special atention. An order in favour of such an applicant may fot only result nthe court losing jurisdiction over the child but may also fect the exercise of any right of access granted tothe nom-cust parent, Notwithstanding this, its a general cul that any ight of access Imust be subordinated to the best interest of the child on the issue of fastody. For instance, ia the Bahamian case of Whieldv. Whilld™ ‘poh parents agreed that i was in the child's interest to leave the jurisdiction in order to attend school in Florida, The Supreme Court accepted the custodial father’s right to choose a school which was best sas WLR. 67 * sa RoR 38, {1985} Supreme Cou, The Baas, 0111 of 1977 (anrpoed). Se ao the Cmdancrnao Gry» Decor of Cid Were 987 1OR.EL C3) 1 and Re Distr of Cd Weare (1983) 4 LR. (A) 406248 ura Kodtnye suited to his daughter's needs. The mother's objection was not child's leaving the jurisdiction but to the choice of school, on ‘rounds that the majority ofthe staff and pupils in the school were wh and the child, being black, was likely to suffer raval prejudices that school was academically mediocre; that there were no facilis horseback riding, an activity in which the child hada particular in and that the child had sad that she did not like the school, The jin considering what was best forthe child, agreed that t would noe be detrimental othe child's interest to attend the school chosen and that any aversion the child might feel towards attnding that school was dug largely to the prospest of lewving home and her present school wid ‘which she was familia. In balancing these factors, the Court destined to interfere with the custodial paren’schoige of schooling ouside the jurisdiction, on the round that “a refusal of the application would be an uawaranad ierference with the petitioner's right to choose his daughter's schoo”, 7 (On the other hand, in Allsopp v. Kremser,® Rocheford J. in the ‘Barbados High Court refused to permit two children to join their mother in Vienna in order to continve theit schooling. In considering the welfare of both children, th lernod judge decided to preserve the stag _quo because both children were setled in good schools in Barbados and they were happy and well-adjustd children who had lived with their Taher and his wife for more than «wo years, In determining what is best forthe welfare and happiness ofthe child, the courts must also focus upon the various individual characteristics of the particular child, including his/her age and sex. In adtion, te court will sek to ascertain the wishes ofthe child where possible and als to preserve the companionship of any brother or sister. (985 High Coun, Bubs, no, 7 of 197 urea Se abo Willns ‘ans (1979) High Cour, Buadon a, 004 197 eons) we Husbands). “Te were fe cien mse be it nd part ‘onsderaon fh eourt On the mtr bore eam nt perce a {Touldbe in Nok bet nrc she wore emit wiht te {hrc neu enc n Pande xe aden of ‘pcan And sc Hon» Hoh (37) Supreme Cou eta, o- DSET 31970 (repo) ant Mos: Mont 28; spre, whe Be Objrion of he be. (Chit Custody fn The Cviddean us bp The child's age - The tender age doctrine re he wel nd hapies ofa tit would be egy served ven cay ibe the arth cou sed wih be 2 a of eres iscston In fvour of oe fn oder to salve em icra rsa unt Rave ben slope. One sch Pen ae fede age dotnet al things being ee ady of try young cid should Be awarded the au Somer te de ge dose doesnt apy whee te hf opton hate wee of the Sild woul ot be Seed Sy aning cody te mote, Ian cof Lard Lad he Spee Cou te Me tener ape oie wher sh an oder ws aan the Best nar ch To so eer wold eo plik een fom aed and py home were tho every sed snd mo and eae cn rly now enone samped wi woe." Kine nn se of Perv Romy ond i Goin apie beets was plac by varios se Rang to ele of tech, Inti eae, he father had aaa ethohad adequate sours fo provide forthe cles and be Ao taadenontedsstongemosond statment em. Sina, aseetah cana Re 44 Mir) (sod, twas ed by be Ete ot Appa wheres gh entrar young len Sea eRe wire ue was nda is wa consideration, seeetfrsumpon Ts submited tha the the proper epoch Touemwang een a fe ag Tate oop Bo Sartng appt he mabe be pera tothe fr, pata whee Retmer an tshae bor spared, However, where he child at eases roughou wie mother an eer baby or toler, te a See Mine» Mie, 8, spa; Ire Mopar, 2, supra: Re Fond Ken 19, ops ins» Fins, 18, spr Thor Tori Ti, pra: Sophenson Saphewon and Jobson 98D] CLLR, 93 en 1 sre ‘fh Seen Gare vCal (980) High Cou, nada Tobago, 0 ‘M95 of 1978 uoepore), Use High Cours ead and Tobe, . 2723 of 1987 eeprted 7 Use RER. 0,246 pire Koliine unbroken relationship is one which it may be very i ich it may be very difclt 0 dip unless the mother is unsuitable to ace forthe child Sole 1) Sex ofthe child Anche “rl of thumb wich has develop ta, oer 1, oe hi being egal, the custody of very young prs ought to e awarded oe, toms andthe esoyof ty pela er bye aap awarded to their fathers. In Parsons v. Parsons,” Smith J, stated - A wo may bee pet dal acd nf ei a, but al cid hs vty many ist yeas noo inal oon Seamus W's voy dete at ae lib esa nd tins oer ica was had wh spoval nt alan es of Quen v. Bramble" and Auguste v, Seidar." In the latter a Wooding C.J. said - ee rh Jung it he ijt sven yeaa ’ ye srt theatre fsx an at an age wheres aught be unde te Cae an onl of mean emote as dgeed fetal tom having any of er aut smite are pcg cpa a se returns ligt ey young il nd Soya snd a ‘ero igh quoi,” cng wt ea eb iment fc, nter pret ugh be pete on ees ‘the sex of the child. = : Bae The sexo the hid “ought ot ob pla inthe alane wes ee wore rengiae din wach ha ou ot meh i) Separation of siblings Whenever possible, the courts sek wo avoid th vod the separation of siblings ‘This practice is based upon the premise that each sibling will enjoy See ako Re inn (Cased) {IH ROR. 55 7% oo NZLR a7, fo, (968) 8 WR Ls G96) 19 Trin LR. 9) 428 "See ReA A Minor) Caso 1991] FER, 56, Child Custody In The Caribbean 2 itive benefits from the companionship ofthe other or others, Jessel BUR, in fn re Besant stated "As a man ofthe world, and speaking asa father, 1 am satisfied that solitary children ae nat so happy, and not so likey to make good men’ and good women, 2s children brought up in the Society of brothers and sisters in early life.” “This dictum was cited with approval by Wooding C.J. in Leong Quen v. Branble.™ Tc is submitted thatthe companionship shared by brothers ind sisters could bea positive and enriching experience for children, and that separation of siblings ought tobe avoided for that reason only and tat becase solitary children are not ikely to make good men or women. ‘There is no known evidence to support such a statement. On the other and, the courts wil not hesitate to separate siblings where thsi i the best interest or welfire of a child. In Coulthard v. Mathews," for instance, the father of throe boys was awarded custody of one child on the ground that his particular child was not tease inthe presence ofthe mother's new husband. 1) The wishes of the child ‘The issue of whether a court will give effet toa childs preference as, to which parent he should live with depends on several factors. First, if {custody mate is brought before the cour by way of habeas corpus, iehas been laid down in English law" that ifthe child is “at an age of, discretion” and does not consent to being delivered into the Gustody of the applicant, habeas corpus will not be granted. ‘Secondly, regardless of how the matter is brought before the courts, judges do realize that, with espect to an older child it would be diticult to enforce a custody order if the order were against the express wishes fof the child. Inthe Barbadian case of Durant v. Cave," two girls aged 15 and 16 years gave oral evidence to Williams J. inthe presence ee {Q8T9) 11 C&D. 508, $12. So ao are Mayra, 22, spr {3365 WR. 19,157 {197} High Court, Domein 0 165 of 1969 (unreported Sec owes i800 BL ER. 467; ere dgar Els (18) 24 CRD. 317 (Ca. (G58 igh Court, Bando o0 164 of 1985 emer ee a Singh hon (1985) LB. 15. bana8 ra Kodinye (Cild Cty tn The Caribbean 9 of counsel of their unwillingness to return to live with their ‘V. CONCLUSION ‘Seater ee th e o i wcll be mong br ew oes a nc {grant the applicant the order which he secks.""* In addition, oa 43(10) ofthe Family Law Act 1981, Cap. 214 — which movie the rt sha no assay on cates ena contrary to the wishes of a child of 16 or over unless the ‘i satisfied that, having regard to special circumstances, iis neesany do so - did not apply in Durant v. Cave™ because no — circumstances were adduced. re “hyn be aes Youre chil, uo iw shld pretence shoud be aetna coe aan ae tte sours te weg ws snot aenae fae “nad ce Shon onan ea with yer boy ih Ca nm Pen eee! expressed a definite preference for staying with 1 ver, ‘Nevertheless, the learned judge disregarded the preference of te hid and awarded cast the theron he pound bate too youn for too uch sin o be placed on his preference, The child had said that his mother was unkind to him, but he ‘could fot recall any instance of unkindness. Also, in the Bermudian case of Butterfield but Seon elie oe et the ound that he was to Jung to mea wie dace Recent custody law inthe West ni fle the frustrating nature of fons sone’ ptsfactry tg odes the ft iren on he sien of el paras. Ths gal wll probably never be eal soeptek inepesonl and pycologtl problems of chien and ae beyond the scope of te machinery of legal dispute rm, Mote serch eed nlm wich rangement we sre work best for which chien, ant daly the rata sasfeaons of eal nocms and procalite on he resotion of casiody enter shuld come asm surprise ht Inias an aie &o Pi angle ol, West ain jogs, fo desng wha sin ifs beat res must empha he mitenance of eltnships “ina he important parson ina hs Ie, fcong primary Sree Tatmern tines, where both parents are wageeamer, materi pectercors mus prov over ater’ amt custody. The aw Keg aim fora gendce-neral prin at des not promote the ote pho esd and penalize the fhe’ on acount of his sex ‘is mst apy wall cle, weir born ino out oF wedlock. The Tv ooh encourage cominul paral contact and show a greer, sey father ees Sepa legal ropecetstio forthe cid 1 pcesary inorder 10 hoot ne eal and ingore WBA mother and atendng a ay ensure that interparental conflict does ot detract from deciding what is Teens that din the Ea Ses fr the dil Al, the chil’ wef rogues at mai tft thatthe Com of Cranes case OF Rv. Gyngall" wo the carder, not custody law, be the method by which financial disparities are ffs that the Court of Chancery would never determine the ive of luressed. Because of inreased pressure on custodial parents t0 work, oe ascertaining the child's view on the mate, is not and continuing differentials berwoon men’s and women’s wages, these Bitar aig cours ofthe Caribbean. The preferences of younger, {issues are of crucial importance. hildren wader 16 ae not acorded much weigh i anya all tis "The eelevance of parental Violence and child abuse has come under {bmi that hs is a sensible approach because young children can ew scrutiny. The degree to which allegations of domestic violence or ly be influenced by one parent against another in custody dispute, Child abuse reflect increased public concern on these issues is unclear. ae Aids ie ass met conc to ecu pet i i. ‘contact after the breakdown of the family, though this must not be a a ie icence to ignore the court's responsibility to enter orders protecting: ee ‘Stef fom soe Fone cnt Rel 618 tga cao abera toy pre ae oft recog 4 fone © eon fa pa es pin nu om eng set Peston or fend eons, Bathe mater Opole250 ya Keine ee ces pecan cote er one pe Sablty race than'4chi's ead for scbiy and cones household membership, and these restrictions also ‘unfortunatly ane oh eee eee pea opmaping leap opel Sacre etiese ene ae cee ems ise nr sei crossed estes sen cdi sty ste Was. Cat rn aaa reese tee es ee nto and judicial tine for the resolution of such disputes 1 sciachy eee eee, ee orate meee and less costly alternatives ought to be considered, Mediation is 3 pesbily: Ws a coaprave moses nahh shel eet ar spare ra toy nat eat a Sesh wae came ae sree ses serail Se strat it oe teeauen ae te wel oh rai wah ocak ae — q DE FACTO SPOUSES IN BARBADOS: COMPUTATION OF TIME IN COHABITATION Cy SAMPSON OWUSU “mre celts! of conjugal life in Barbados, as in other Caribbean ommunities,? have fread the hand of the Barbados Parliament to give fs blessing to de facto mariage It bas in two different struts, the Suceassion Act I97S* and the Family Law Act 1981, conferred rights Bhd imposed duties on parties (0 non-marital relationships. The Soocession Act accords toa defacto spouse the same rights of succession AS are accorded to a married couple. The Family Law Act goes further than this. At the instance of a party to ade facto marital relationship, the ourt is empowered not only to make a maintenance award against the —————— "the many fhe anf he West is thera ery away bee ‘high prmentige of common unio aang persons fom te pest ‘aE nite pst two coder tush sions have icone cae poporion song peso he mie income back Cp Tomas 989) 36 WHR. 18,92 + Ti ptnce f high epincy ris ble enon, ad anomalous fms fda grup inthe Wet ide rl 6 oe ame oo ‘Fore condo he ta iar origin in slavery, xp in th mating ‘ston of ven Wet indi saver werent owed to ary bt ey treet so concur ote erential, a hey lewd "Smith, Wes Idan Fan Sacre (Seale: Unies of Weshiagon rons, 196), 9.260, Cte aes an expat for he pronlence of de fore ariaga, a flown: “the exes of contbinage a4 s0ialy ‘Scop seaonhip war secure for somtimes a 4 sl eon of ‘Spon of Afoean ply an someines aa consequence of prohibison Urdacouragerentt arage between ses.” ater Who atered Me (Condon: Genge Alle Unni 1968, p18 + TReprevalens de facto mnrage ha een acd tthe ave wen 8 pn out im tn 2 spr, buy nl he nace 1981, de foto ited dey have bee allowed to exit ome te aver in TL + This concepts plead oncbiage beef he peje somataine| ‘tbe tera however, ae inthe ame ese "asthe conga ui onsbuaion of man aod woman witout legal and rele sant se, My Mother Who Fathered Me, op 30 By definton de ft Surge son ext even if eer or buh eoabtan ate maried to ter 2 Sitseion As 1975, Cop, 29 Bashan