IN
THE SUPREME COURT OF BELIZE A.D., 2001
Action
No. 13 of 2000
| Between |
(ROSALVA
REQUENA |
APPELLANT |
| |
(
(
( And
(
( |
|
| |
(ERNESTO
BEY |
RESPONDENT |
M.
Williams for Appellant
Senior Counsel D. Barrow for Respondent
J
U D G M E N T
AWICH J:
| Notes: |
Appeal from Magistrates' Court. Jurisdiction of
Magistrate's Court in custody of a child born out of
wedlock. Ss: 2,16, and 85 of Families and Children Act,
Cap. 17. S: 6 of Inferior Courts Act Cap. 77. |
An
Appeal from Magistrate's Court
Miss
Rosalva Requena, has appealed to this court against the
decision of His Lordship the Magistrate at Belmopan, Mr.
R. Ordonez, granting custody of Joid Bey to Ernesto Bey.
Joid Bey was born to Rosalva out of wedlock. It is common
ground between the appellant and the respondent that the
respondent is the father of Joid.
The
grounds of appeal are that: (1) "The Inferior Court
had no jurisdiction in the matter" and, (2) "The
decision was unreasonable or could not be supported, having
regard to the evidence."
The
application in the Magistrate's Court for custody was made
under Section 85 of the Children and Family Act, Chapter
17 in the Statutes Law of Belize, which states:
85.
(1) The father of a child born to a single woman may apply
to the court sitting in the district in which the child
normally resides for an order granting him right of access
to, or legal custody of the child when such child is under
the age of eighteen years.
(2)
Before considering such application the court shall be
satisfied that the applicant has -
Appeal
Ground (1)
The court that has jurisdiction in application under S:
85 is described in subsection (1) as, "the court sitting
in the district in which the child normally resides."
The description of the court is rather ambiguous. One has
to refer to other sections of the Families and Children
Act itself and to other relevant Acts. The first lead comes
from S: 2, the interpretation section of the Families
and Children Act. The section defines a Magistrate's
Court by reference to its criminal jurisdiction in subsection
(2) clause (a) and to civil jurisdiction in subsection (2)
clause (b). In subsection (2) clause (b), magistrate's Court
is defined as a Court that exercises civil jurisdiction
in accordance with the Inferior Courts Act in civil matters,
maintenance and other related orders. I would add custody,
ejusdem generis. The next lead is the Inferior Courts
Act, Chapter 77 in the Statute Laws of Belize. S: 6
of the Act establishes District Courts to exercise civil
jurisdiction in districts. In my view the court that has
jurisdiction in applications for custody of children born
out of wedlock, which court is described as, "The court
sitting in the district in which the child normally resides,"
is the Magistrate's Court of the district, in this case,
the Magistrate's Court in the district covering Santa Elena,
Cayo District where Ms. Requena lived with the child. The
Magistrate at Belmopan sat as the District Court; he had
jurisdiction; ground one of the appeal is dismissed.
Appeal
Ground (2)
The
second ground of appeal is really a complaint against the
magistrate having accepted the evidence of the respondent
in preference to that of the appellant. I accept the approach
of an appellate court as outlined in Re F (a minor)
(Wardship: Appeal) [1976] All ER 417, cited by learned
senior counsel Mr. D. Barrow. To that I add two judgments
of the Court of Appeal of Belize, namely, Fuller v
Belize Port Authority [2000] 3 BLR 219, and Henderson v
Martinez and Others [2000] 3 BLR 88.
From
the record, the testimonies of the respondent, given during
the application, were largely not divergent. It was common
ground that the applicant left the child behind and went
to the United States on at least two occasions. On the first
occasion the child was at a tender age, it may have been
only weeks, (I may even assume a few months) old. She entrusted
the child to the respondent. It is also common ground that
the respondent in an emergency of the child being ill resisted
using money given to her by the respondent for that purpose
and preferred that the treatment be paid for under an insurance
arrangement of the respondent, and that she would use the
money for something else. Two divergent social welfare reports
were obtained, the decision of the magistrate does not rest
on either. Was it unreasonable that the magistrate should
conclude that those facts proved some or even only one of
the grounds enumerated in S: 85 (3) that the father had
to prove in order to succeed in his application? I think
the magistrate was entitled to conclude from the evidence
that S: 85 (c), for example, was proved. Moreover, from
the decision, it appears that the magistrate was conscious
of the fact that whatever misconduct may have been proved,
he was, over and above to be satisfied, according to S:85
(5) that the order, if made, would be for the welfare of
the child.
It is
correct, as submitted by learned counsel Mrs. Williams,
that under S: 16 (2), custody of a child born
out of wedlock belongs to the mother. The mother may, of
course, be deprived of the custody on the grounds stated
in subsection (3). Because the right to custody is given
to the mother the court must insist that anyone who alleges
misconducts or conditions of the child enumerated in subsection
(3) and indeed in S: 85, against the
mother, must bear the burden of proving those misconducts
or conditions, and finally that the order will be for the
welfare of the child, and therefore in the best interest
of the child. In the judgment appealed against I have not
found anything to suggest that the magistrate misdirected
himself about the burden of proof. The second ground of
appeal is also dismissed.
Costs
In
deciding the costs of this appeal, I have considered the
circumstances of the appellant, especially her means and
the fact that she is a single parent and has other children
born out of wedlock to look after. Parties shall bear own
cost.
Delivered
this Wednesday the 11th of April, 2001.
At
the Supreme Court, Belize City, Belize.
Sam Lungole Awich
Judge