Supreme Court
Inferior Appeal No. 55 of 1980
13th May, 1980
Moe, J.

Mr. E. A. Marshalleck for the Plaintiff
Mr. G. Arzu for the Defendant

Habeas Corpus ad Subjiciendum - Minors- Factors to be taken into account by court in determining custody of minors.

J U D G M E N T

This is an application by Violet Evangeline Burns of May Pen Village, Belize District, Belize for an order that Stanley, Yvette, Gaylan Jr.and Wilfred Gillette (hereinafter referred to as "the Infants") be delivered to her custody. The Respondent Lucinda Gillette of Crooked Tree Village, Belize District, Belize, seeks an order that the infants remain in her custody.

The evidence is contained in the affidavits filed on behalf of both parties. Except for a statement from Violet Burns and her daughter Daisy Swasey as to their ages, no oral testimony was given.

It appears from the affidavits that the Infants have neither father nor mother alive. On the 23rd December, 1979 the father of the Infants shot and killed their mother and later in the said day also shot and killed himself. The Applicant alleges that the Infants' father on the said 23rd December, 1979 a little before he killed himself said to her "Please take care of all those children for me." From that fatal day, the Infants were then in the custody of the applicant until the 27th December, 1979 when the Respondent took away the Infants from the house of the Applicant who was not at home at the time. The Respondent claims that the Infants' father wished her to care for the Infants as members of her household if anything happened to him.

The guiding principle in cases of this nature is clearly set out in section 25 of the Infants Ordinance Cap. 186 which provides as follows:- "Where in any proceeding before any Court the custody or upbringing of an infant . . . . is in question, the Court in deciding that question, shall regard the welfare of the infant as the first and paramount consideration . . ."

5. That principle is applicable whether the case involves a claim of parent against parent, or of parent against stranger or stranger against stranger. The crucial words of the provision are "the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration." In the case of J and another vs C and 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.

6. Before the 23rd December, 1970 when both parents died, the infants except Wilfred were accustomed to stay with their maternal grandmother Daisy Swasey 42 years of age, at May Pen Village from Monday to Friday so that they could attend school since it was easier for them to get there from where the grandmother lived than where the parents lived. They went to their parents for Saturday and Sunday. On the 23rd December, 1979 the infants were staying with the said Daisy Swasey. On that day the father shot the mother and with the barrel of the gun he beat the said Daisy Swasey and her common law husband. The applicant then took the children to her house. Later in the day the father killed himself.

7. The applicant, the maternal great grandmother of the infants is 66 years old. She owns jointly with her husband 100 acres of land on which she keeps a stock of poultry, cattle and sheep and she herself owns the only grocery store which serves the May Pen Village. The applicant's home is on the River Bank, and in periods of heavy rain the road between her house and May Pen is impassable. The school is approximately 2 miles from her home and it is necessary to cross the river in a dory to reach school.

8. On the other hand the Respondent, the paternal grandmother of the infants is 51 years old and lives in Crooked Tree Village. She has two infants of her own living with her. Her husband is the owner of a 100 acre farm on which are cultivated fruit trees, corn and rice and on which cattle, pigs, sheep and poultry are kept. The Respondent's home is approximately 400 yards from the school of the Village. In Crooked Tree Village there is a Government Health Centre where nurses are permanently stationed.

9. Having taken into account and weighed these factors which it is laid down are to be considered, I found some difficulty in making a choice between the parties involved. However I have taken the view that the facts set out in the various affidavits indicate that at the Respondent's home, the infants will enjoy a better environment and have easier access to educational and health facilities. They will have younger people to control and raise them.

10. After due consideration of the affidavits and the submissions of Counsel I am of opinion that it would be most in the interests of the infants' welfare that they remain with the Respondent.

11. It was submitted for the applicant that she had applied for the issue of a Writ of Habeas Corpus to regain custody of the infants wrongfully taken from her. On service of notice on her of the application, the Respondent filed an affidavit claiming that she ought to have custody. I therefore had before me conflicting claims to have custody of the infants and in order to determine whether to issue the Writ of Habeas Corpus, the Court inquired into those claims.

12. The application for issue of the Writ of Habeas Corpus is therefore refused and it is ordered that the Respondent have custody of the Infants and the Applicant to have access.