Andrew Raymond Anthony Grant Petitioner v Ceri-Ann Elizabeth Grant Respondent [ECSC]
| Jurisdiction | St Lucia |
| Judge | Hariprashad-Charles J |
| Judgment Date | 17 December 2002 |
| Judgment citation (vLex) | [2002] ECSC J1217-4 |
| Date | 17 December 2002 |
| Court | High Court (Saint Lucia) |
| Docket Number | CLAIM NO.827 of 2002 |
IN THE HIGH COURT OF JUSTICE
CLAIM NO.827 of 2002
In The Matter of an Application for an Injunction Restraining The Respondent from removing the children Gabrielle Elizabeth Alexandria Grant and Victoria Ashleigh Elizabeth Grant from the Custody, Care and Control of the Petitioner
and
In The Matter of Sections 841850 of The Code of Civil Procedure, Chapter 243 of The Revised Laws of St. Lucia
and
In The Matter of Section 210A of the Civil Code, Chapter 242 of the Revised Laws of Saint Lucia
And
In The Matter of the inherent jurisdiction of the Court
This is an unfortunate custody battle in the Saint Lucian Court over two charming little Jamaican girls, Gabrielle Elizabeth Alexandria Grant, aged 9 and her younger sister, Victoria Ashleigh Elizabeth Grant, aged 6. Some background facts are essential in order to put the case in its proper perspective.
The Petitioner, Andrew Raymond Anthony Grant and the Respondent, Ceri-Ann Elizabeth Grant nee Chambers are Jamaican Nationals. They married each other on 18th day of August 1991 in Jamaica. After the marriage, the parties continued to live in Jamaica. The union produced two daughters, Gabrielle Elizabeth Alexandria Grant and Victoria Ashleigh Elizabeth Grant. Unhappy differences arose and as a result, Ceri-Ann left the matrimonial home in 1999 taking the children with her.
On or about June 2000, Andrew Grant left his family in Jamaica and moved to greener pastures in Saint Lucia. Since then, he has been living and working here. He holds the position of Vice President, Distribution Division of Cox and Company, a renowned family business on the island. He earns an attractive salary of EC$8,000.00. His status on the island is governed by work permit regulations. His work permit is extended from year to year.
Ceri-Ann Grant continues to live in Jamaica with her two young daughters. They occupy a two-bedroom apartment in a middle-income area in Kingston, Jamaica. Ceri-Ann is employed with Air Jamaica as a part-time employee having worked with the said airline company for a cumulative period of eight years. She earns a salary of $25,000.00 Jamaican dollars (approximately EC$1,300.00).
On or about June 2000, Andrew Grant filed proceedings for the dissolution of the marriage in Jamaica. The status of the application is pending. Pursuant to his application for divorce,Ceri-Ann filed a summons for custody and maintenance of their two daughters. The summons was not pursued in the Jamaican courts due to an informal workable arrangement which gave joint custody of Gabrielle and Victoria to both Mr. and Mrs. Grant with care and control to Ceri-Ann Grant. An additional term of the arrangement was that the children would remain in the custody of their mother in Jamaica and spend all Easter holidays, half of the summer vacation and every other Christmas day with their father in Saint Lucia.
The informal arrangement seemed to have worked well until July 2002. As customary, Ceri-Ann sent Gabrielle and Victoria to Saint Lucia to spend the summer with their dad. The summer vacation was rapidly approaching an end. It was alleged that the girls especially Gabrielle begged their father not to send them back to Jamaica. They expressed dissatisfaction with their accommodation, their day-to-day arrangements, the discomfort with the presence of their mother's boyfriends in the home and a perceived preference for and favouritism towards Victoria. Being concerned for the welfare of his two daughters, Mr. Grant petitioned the court for inter alia, an order that Mrs. Grant be restrained from removing the said children from his custody, care and control. The application was made"without notice."
On 30th day of August 2002, a Judge in Chambers favourably considered the application and Mr. Grant was granted interim custody of the two minor children, Gabrielle and Victoria pending the hearing and determination of the substantive custody battle which was deemed urgent.
By the date the substantive matter came up for hearing, the Respondent, Ceri-Ann Grant had already filed an application seeking the following relief namely:
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(a) That the Order made on 30th day of August 2002 granting interim custody of the two minor children, GABRIELLE ELIZABETH ALEXANDRIA GRANT and VICTORIA ASHLEIGH ELIZABETH GRANT to the Petitioner be discharged.
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(b) That the status quo which existed prior to the Order of 30th day of August 2002 be restored so that the two minor children, GABRIELLE ELIZABETH ALEXANDRIA GRANT and VICTORIA ASHLEIGH ELIZABETH GRANT be returned to the de facto custody of the Respondent, Ceri-Ann Grant in Jamaica and that the issue of the custody and the maintenance of the said minor children be adjudicated upon by the Jamaica Supreme Court, or in the alternative,
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(c) That the Petitioner's application for custody, care, control and maintenance of the said minor children be dismissed and that the Respondent be granted custody, care and control of the minor children.
The jurisdictional issue was not pursued vigourously. In the end, Mrs. Anthony-Desir for the Respondent reluctantly conceded that the court was adequately clothed to hear and determine the matter. The proceedings before me were concerned only with who is to have the custody, care and control of the two children. To my mind, custody cases are by far the most difficult of all classes of cases that a judge has to deal with, and those difficulties are particularly apparent when one is faced with having to decide which of two perfectly adequate, loving and caring parents should have custody.
A convenient starting point is Article 210 A of the Civil Code of Saint Lucia which provides as follows:
"Where in any proceeding before any Court the custody or upbringing of a minor, …is in question,the Court in deciding that question shall regard the welfare of the minor as the first and paramount consideration, (emphasis mine) and shall not take into consideration whether from any other point of view the claim of the father, or any right under this Code 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."
This provision is similar to the statutory provisions in relation to such matters in England and therefore, English cases provides useful guidance. In proceedings in which 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. The classical exposition is contained in the judgment of Lord Mac Dermott in the case ofJ v C (1970) A.C. 668 at pp 710–711:
"The second question of construction is as to the scope of meaning of the words'. shall regard the welfare of the infant as the first and paramount consideration.' Reading these words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term is now to be understood. That is the first consideration because of its first importance and the paramount consideration because it rules upon or determines the course to be followed."
In this sense, the paramountcy formulation simply reflects that the child's welfare is the court's sole concern and other factors are relevant only to the extent that they can assist the court in ascertaining the best solution for the child. See also Lord Oliver of Aylmerton in the more recent House of Lords case ofRe KD (a Minor) (1988) A.C. 806.
It is now settled law that in matters with regard to custody of children, it is the welfare of the children which is the first and paramount consideration. The meaning of the word 'welfare' came up for review inRe McGrath (Infants) (1893) 1 Ch. 143. The case concerned the children of parents who were both dead and the issue of custody turned on the religion in which they should be brought up. At page 148, Lindley LJ said:
"The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only, nor by physical comfort only. The word 'welfare' must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.."
The modern statement on the meaning of 'welfare' comes from the New Zealand case ofWalker v Walker and Harrison (1981) NZ Recent Law 257. Hardy Boys J. had this to say:
" 'Welfare' is an all-encompassing word. It includes material welfare, both in the sense of an adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place, they are secondary matters. More important are the stability andthe security, the loving and understanding care and guidance, the warm and compassionate relationships, that are essential for the full development of the child's own character, personality and talents."
Ideally, the Court should be concerned to promote the child's long—term future. Unless perhaps where the short-term disadvantages are so...
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