Supreme Court
Action No. 114 of 1981
15th May, 1981
Moe, J.

Mr. M. Sosa for the Applicant
Mr. V.H. Courtenay, S.C. and Mr. P. Zuniga for the Respondent

Custody of Infant - Whether the father of an infant born out of wedlock entitled to custody of infant - Whether writ of habeas corpus appropriate to determine which parent entitled to custody - Infants Ordinance and Status of Children Ordinance considered.

J U D G M E N T

An application was made by one Ramona Coy, a housewife, for a Writ of habeas corpus ad subjiciendum to issue directed to Eligio Briceño (hereafter referred to as "the Respondent") to have the body of Vanessa Lileth Briceño before a judge in chambers and in the Affidavit filed in support she showed that she is the mother of a child born to her on the 18th March, 1980 and that the Respondent, a married man, is the father. The Applicant further showed that the infant was in her care and custody from birth until the 26th day of March, 1981 on which day she handed the infant over to the Respondent for the purpose of taking the infant for a short drive and immediate return to her, the Applicant. The Respondent has failed up to date to return the infant. The Applicant claims that the detention of the infant by the Respondent is unlawful and that she is entitled to custody of the infant.

The application was adjourned and notice thereof was served on the Respondent. He filed an Affidavit also showing that he is the father of the infant, but further that he has acknowledged paternity. The Respondent, however, has submitted that the court does not have jurisdiction to proceed in this matter.

The Respondent has contended that the remedy sought herein is a remedy properly pursued where detention of a person is wrongful or unlawful. He argued that by the law of Belize, specifically by virtue of section 3 of the Status of Children Ordinance No. 32 of 1980, the Respondent is entitled to the custody of the infant and the Applicant alleges no circumstances which show the Respondent's right to custody has diminished and that his custody of the infant is wrongful or unlawful.

The Applicant, by particular reference to section 9(2) of the Infants Ordinance, CAP 186, maintains that by the law of Belize the mother of the infant is entitled to the custody and contends that section 3 of the Status of Children Ordinance does not deprive her of that right.

In view of the decision I have reached I deem it unnecessary to give an opinion at this stage as to the effect of the statutory provisions to which I was referred. After some consideration of the matter, I took the view that the question whether there are circumstances which diminish the Respondent's right to custody is the very question to be determined on an application of this nature or, to put it another way, the very purpose of the application.

The issue raised is whether the father has the right to retain custody of the infant. This is not determined on the basis of the statement filed in support of the application. There is an abundance of authorities which show that the issue is not determined simply on the fact that the Respondent is the father of the infant born in wedlock or (as is relevant in this case) whose paternity he has recognized. I am persuaded by the authority of J v C [1970] A.C. 668 that the parental rights are qualified and not absolute for the purpose of an application of this nature.

In modern practice one of the purposes to which the Writ of habeas corpus is frequently applied is the investigation of the right to custody of infants, see Halsbury 3rd Ed. Vol. II paragraph 52; and in the same work Vol. 21 in paragraph 474 it is clearly stated that the proceedings in the High Court with regard to custody (or guardianship) of infants may be commenced by Writ of habeas corpus. The remedy is used to decide whether the person in custody of the infant is the right person to have such custody.

It is true that there are other procedures which may be followed in order to have a matter of this nature investigated, but by the nature of the proceedings, habeas corpus provides an answer quickly. In these cases where the custody of children is in dispute, normally the proper person making the application for the Writ is the parent who claims to be entitled to custody. That parent, in my view, is entitled to require a return to be made to the Writ so that the facts may be fully investigated and a determination made.

Accordingly, I rule that the Court has jurisdiction to proceed. I further make an order nisi that a Writ issue returnable before me on the 22 May, 1981.

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