Supreme Court
Action No. 3 of 1982
15th February, 1982
Alcantara, J.

Mr. Oscar A. Sabido appearing for the Applicant
Jacinta Hau appearing in person.

Application for a Writ of Habeas Corpus - Custody of Infant - Welfare of child is the first and paramount consideration - Financial Resources alone does not constitute welfare of child - Writ of Habeas Corpus refused - Custody of Infant granted to paternal Grandmother - Access to Paternal Grandfather.

J U D G M E N T

Something terrible happened in Benque Viejo del Carmen, in the Cayo District, on the 17th of July, 1979. A wife shot her husband and then shot herself, leaving a small boy, Bernardito, aged 18 months, orphaned. Fortunately for him he had relatives to take care of him, his paternal grandfather and his paternal grandmother. But, unfortunately for him, his grandparents, instead of pooling their resources to raise him up, are disputing as to who has the right of having the care and custody of Bernardito. This is what these proceedings, in the form of a motion for the Writ of Habeas Corpus, are all about.

In a previous and not dissimilar case, in the matter of Stanley, Yvette, Gaylan Jr. and Wilfred, No. 55 of 1980, Mr. Justice Moe had to deal with two conflicting claims, that of a paternal grandmother and a maternal grandmother. In that case the judge quoted from the House of Lords decision in J v C (1970) A.C. 668 and referred to the test laid down by Section 25 of the Infants Ordinance. I agree with his exposition of the law and cannot add anything useful to it, except to say the same thing in other words. And I can do no better than to quote a passage from Bevan on Law Relating to Children at page 260. Referring to the English equivalent of Section 25 of the Infants Ordinance, he has this to say, which I adopt as my own:

"This provision is applicable to all disputes over the custody, care and control of a child, whether they be between one parent and the other or between a parent and a third party or between two guardians. When giving effect to it the court should consider and weigh all the circumstances that are of any relevance and in so doing the welfare of the child is to be treated as the first and paramount consideration. Since welfare is to be understood in the widest sense so as to include the moral and emotional, as well as the physical and mental, well-being of the child, in most cases all the relevant circumstances will relate to the child's welfare, but the Court of Appeal in Re L. (infants) has held that 'paramount' does not mean 'exclusive' and, therefore, in some cases factors other than those relevant to welfare must be taken into account. The extent to which they are must, as Megarry, J., has made clear, depend on judicial discretion and cannot be determined accordingly to any formula. Problems invariably arise with regard to the weight to be attached to the claims and the conduct of the parties."

Although the Applicant, Bernardo Matus (the paternal grandfather of Bernardito) has filed three Affidavits, he went to the witness-box and gave evidence. He also called his present common-law wife Elda Contreras and a neighbour, Antonia de Quiñones. The Respondent, Jacinta Hau (the paternal grandmother of Bernardito) has not filed any Affidavits, but she has given evidence and has called two witnesses, Emmelina Matus and Nellie Matus. She is not legally represented.

Some of the facts are not in dispute. The Applicant is legally married, but separated from his wife, whom he married in 1949. He only lived with his wife for one year. There after he entered into a common-law relationship with Jacinta Hau, who was 15 years old at the time. This relationship lasted 27 years, out of which they had five children:

1. Salomon, the father of Bernardito, who was 26 years old when he died.

2. Eneli or Nellie, 23 years old, who is living with her husband and a four-month baby at her mother's (Jacinta Hau) house.

3. Bernardita, 21 years old.

4. Emmelina, 19 years old.

5. Domitila, 16 years old.

About 6 years ago Bernardo Matus separated from Jacinta Hau. The reason for the separation is in dispute, but I find it unnecessary to make a finding as I do not think it is relevant to the issue before me. Shortly after this separation Bernardo Matus took on another woman, Elda Contreras, with whom he has been living as his common-law wife for the past 6 years. Elda Contreras was a married woman at the time but had been separated from her husband for 15 years. Since the 15th December, 1981 she is a widow and she hopes to be legally married to Bernardo Matus as soon as he obtains a divorce. Elda Contreras has a 14 year old son living with her in Bernardo Matus's house. He is not an issue of Matus, neither is he an issue of her husband.

Jacinta Hau has not taken on any other man, neither has she had any issue from any man other than from Bernardo Matus.

On the evidence adduced before me I find that on the day of the tragedy the grandfather took charge of the child Bernardito. On the following day, the day of the funeral, he handed him over to his neigbour Antonia de Quiñones to take care of him until after the burial of his son. I find as a fact that the grandmother instructed her daughter Nellie to go to Antonia de Quiñones' house and take the child away and bring him to her house. This was done and since then she has had him and has refused to part with him or hand him back to his grandfather. There is no evidence to the effect that since the child has been under her charge he has suffered any ill effects or has been unhappy. Without even wanting to I have had occasions to see Bernardito in the public gallery of this courtroom waiting for these proceedings to conclude - a normal, healthy, happy boy, fed up with having to wait.

What I have to decide is not who is entitled to the boy, but in whose custody he would be better off or in the words of Section 25 of the Infants Ordinance the paramountcy of the welfare of the infant.

Counsel for the Applicant has argued forcibly that Bernardito would benefit both financially and morally if he were in the custody of his client, and has referred me to a number of statutory provisions.

There is no doubt that the grandfather is better off financially and in a position to provide for the future of Bernardito. In his Affidavit he says that if he is granted custody of his grandson he intends to make him the lawful beneficiary in his will of all he possesses. When he gave evidence he rather toned down his intentions. What he did say was this:

"If allowed custody of child my plan is to help him as I did with his father. I love child. I would adopt him and give him my name so that he would share my property, a beneficiary."

I daresay he can still do all this regardless in whose custody Bernardito is. After all he is his own kith and kin.

The grandmother, Jacinta Hau, is not well off financially. She has a small house and has to go out to work, to wash and iron, and there is little likelihood of her standard of living attaining a higher status.

So financially Bernardito would be better off with his grandfather. But the welfare of child does not mean money alone. What about love, in the sense of where Bernardito would be happier and better taken care of? On this aspect of the case I have been unimpressed by the evidence of Bernardo Matus on two points. Firstly, his intention to help Bernardito is conditional on him getting custody. Secondly, in the witness-box he was unable to say with any degree of certainty the ages of his five children.

On the other hand, Jacinta Hau has given me the impression of being a woman who has given and is prepared to give all her love and care to Bernardito.

In the circumstances of this case, the application for the issue of a Writ of Habeas Corpus is refused and it is ordered that the Respondent Jacinta Hau has custody of the infant and that the Applicant has access. Although not part of the order it is my hope that the grandfather might see a way of helping Bernardito and that no trouble should arise on the question of reasonable access.

----------OO----------