Supreme Court
Action No. 256 of 1980
Moe, C J. (Acting)
9th September, 1980

Mr. E.L. Flowers for the Applicant
Mr. E. Staine for the Respondent

Infants - Application for Writ of Habeas Corpus to deliver body of infant - Custody of infant - Guiding principles to be taken into account by court in determining custody of infant.

J U D G M E N T

An application for a writ of habeas corpus ad subjiciendum with an affidavit in support was made by one Beulah Payne of Baymen Avenue, Belize City claiming that she on behalf of her brother is entitled to the custody of Ursula Marie August (hereinafter referred to as the infant). An order nisi was made for the issue of a Writ of habeas corpus directed to Gloria Marie de Costa nee Burgess of 107 Racecourse Street, Belize City (hereinafter referred to as "the respondent") to have the body of the infant before a Judge in Chambers on the 27th August, 1980.

2. In the return made to the said writ the respondent alleges that she has best claims to the custody of the infant notwithstanding the fact that it was ordered on the 8th June 1979 by the Supreme Court in Divorce Action No. 57 of 1978 that he infant remain in the custody of Anthony Cliffton August, the father of the infant.

3. Although it was clear from the return of the respondent and it was also conceded by her counsel, that the detention of the infant by the respondent is in disobedience of the Order of the Supreme Court, I took the view that, in determining what order to make in these proceedings, since the custody of an infant was in question, I had to be guided by section 25 of the Infants Ordinance CAP. 186 which is as follows:-

"Where in any proceeding before any Court 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 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."

4. I am fortified in this view by the opinions of their Lordships in J v. C [1970] A.C. at pg. 668. With regard to section 1 of the Guardianship of Infants Act 1925 U.K. which is in precisely the same terms as Section 25 of CAP. 186 Lord Mc. Dermott at pg. 710 said "its wording seems to be deliberately wide and general. It relates to any proceedings before any Court and as Eve J said in Clark-Jervoise v.Scott [1920] 1 Ch. 382, 388: "'Any' is a word with a very wide meaning and prima facie the use of it excludes limitation."

5. I proceeded therefore to an inquiry into the merits of the matter. It was disclosed from the affidavits and the evidence led before me that the respondent married the father of the infant in June, 1967. The Infant was born on the 26th November, 1967. They lived together at the home of Pearl Blackman at 107 Racecourse Street. The respondent left the father and the infant and went to the U.S.A. She had not seen the infant since she left Belize until July 1980.

6. The father took the Infant shortly after the mother left to the home of its Aunt Beulah Payne and requested her to look after it for him. In June 1973 the father left Belize and went to the USA. The infant had continued to live in the same house as the Aunt until 1979 when she went to live with her grandmother Alma Reyes in Belmopan. On the 8th June, 1979 the father obtained a divorce from the respondent and was awarded custody of the infant.

7. On 20th July, 1980 the infant while still living with her grandmother was allowed for one week into the care of the respondent who had come to Belize. At the end of the week the respondent did not return the infant to the grandmother nor to the Aunt and has kept her ever since.

8. On the 30th July, 1980 the father sent a telegram to Gwendolyn Ewen, the grand-aunt of the infant as follows "THIS IS TO AUTHORIZE MISS EWEN TO TAKE FULL CUSTODY OF MY DAUGHTER URSULA MARIE AUGUST IMMEDIATELY Anthony Clifton August".

9. The respondent wishes to take the infant to the U.S.A. to live with her. The father now in Belize also wishes to take the infant with him to the U.S.A.

10. There was some conflict in the evidence as to how long the infant remained in the care of the respondent's family. On the one hand the respondent said that the infant was living with her family at 107 Racecourse Street, Belize City for the first three years of its life and she use to send about $50.00 U.S. a week for its support and clothing. This was supported by Pearl Blackman. The evidence of the Aunt on the other hand is that the infant has been in her care and control since the age of eight months and she and the father has supported the infant. Her evidence on this is corroborated by the affidavits of Gwendolyn Ewen and Alma Reyes and the evidence of the father. For the purposes of this decision I found it unnecessary to resolve that conflict of evidence and based the decision on the undisputed fact that the infant certainly since 1970 or since the age of three has been in the care and control of the Aunt. I found further that the infant since age 3 has been supported by her father and the said Aunt. The infant lived in the same house as the Aunt until 1979 when she went to live in the home of the grandmother. She is now attending Belmopan Comprehensive School and would complete her education there within one year.

11. The infant when examined presented a conflict in her evidence with that of the respondent with regard to the contact between them. The infant said that she received letters from her mother many time every year during the past three years. This not the mother's evidence. I rejected this evidence that there was such contact having put it down as eagerness on the Infant's part to assist the case of the mother. What I had to decide however was whether this effort on the Infant's part was due to genuine love for and wish to be with the mother or whether she was pushed or schooled to give that evidence simply to assist the mother. She deposed to bad treatment by the grandmother which she explained to mean (a) being struck whenever she hit a little girl who also lives in the same house and (b) being burnt with pepper in her moth as punishment. She says she loves her mother and wants to go and live with her. She also admits she loves her father and she used to like to go to the U.S.A to visit him. She has done so for about two months around Christmas of 1978 and Christmas of 1979.

12. It is now commonplace that in matters of this nature the guiding principle is that the welfare of the infant is to be regarded as the first and paramount consideration. That principle is declared in section 25 CAP. 186 supra. In the case of J & another v. C & others (1970) A.C. 668 it was shown that all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are to be taken into account and weighed and the course to be followed is that which is most in the interests of the infant's welfare.

13. It is clear then that an infant is not to be treated like a pawn nor used like a tool. For a relatively brief period of the early part of its life the infant was in the care of its mother and then the mother's family. Thereafter the infant was living as part of the household of the Aunt in Belize City; she is then shifted to Belmopan and lives as part of the household of the grandmother; it was originally the wish of the applicant that the infant become part of the household of the Grand-Aunt at Amara Avenue, Belize City. The infant was evidently in this situation because of the arrangements made for its care and custody by the father who lives in the U.S.A. He will be able to provide adequately for the infant. On the other hand I have the stated wish of the infant to be with the mother whom she says she loves, although they were only together for only one week. I was satisfied that her evidence on these two points is to be accepted. There is also the stated wish of the mother to have the infant live with her and there is evidence that the infant if with the mother would be adequately provided for.

14. After considering these factors which are to be taken into account and weighed, I felt that the infant will be as well cared and provided for in the home of the father as in the home of the mother.

15. I have found only one reason which makes it evident that continuation of the custody in the father would be against the child's best interest. After careful examination of the infant I found that the infant's wish to be with the mother appears to be real. After due consideration of the evidence and submissions of Counsel I am of opinion that it would be most in the interests of the infant's welfare that she remain in the custody of the mother.

16. The order nisi herein is accordingly discharged. It is ordered that the respondent the mother have custody of the infant and the father is to have access.

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