Subrian v Foon

• Jurisdiction: Trinidad & Tobago
• Judge: McMillian, J.
• Judgment Date: 09 July 1966
• Neutral Citation: TT 1966 HC 10
• Docket Number: No. 2028 of 1965
• Court: High Court (Trinidad and Tobago)
• Date: 09 July 1966

High Court of Justice

McMillan, J.

No. 2028 of 1965

Subrian

and

Foon

Habeas Corpus - Purpose — To regain the custody of a child. — Application for a writ of Habeas Corpus by the applicant who is the mother of an illegitimate girl child. Application was made for the purpose of regaining custody of the child which the appellant alleged was illegally obtained. — Once a person has established at common law his legal right to the custody of a child the Courts had no alternative but to hand over the child to that person. For equity, however, the paramount consideration was and is for the welfare of the child, moral and physical. Where the Court is satisfied that it is in the interest of the child not to grant the Writ, it may take the child into warding and exercise control over it through some other person. Court has formed the impression that the applicant in the present case is not a reliable witness and deliberately attempted to distort and avoid the truth in order to mislead the Court. Evidence shows that appellant voluntarily gave up custody of the child in question. While in applicant's custody the child fared badly from neglect and suffered emotionally and mentally. Court therefore satisfied that the applicant's circumstances and obvious way of life are not conducive to the welfare of the child. Child has become well integrated with the respondent's family. Would be in her best interest to leave her there. Writ of Habeas Corpus refused. Child to be a ward of the Court. Her custody, fare and control entrusted to the respondent.

McMillian, J.

1 This is an application for a Writ of Habeas Corpus by the mother of an illegitimate girl child, Sybil Isabel Subrian, otherwise known and herein referred to as Helen, born on the 6 ^th day of June, 1955. The application was in the first instance made ex parte before de la Bastide J. on 21 ^st October, 1965 who directed a summons for the Writ to be issued and the respondent now appears showing cause. It is not disputed that Habeas Corpus proceedings may be instituted for the purpose of regaining custody of the child whom it is alleged is illegally detained, and the parties are agreed that the Court's paramount concern is for the welfare of the child. I shall attempt to state briefly but succinctly the law on this subject. Once a person had established at common law, his legal right to the custody of a child the Courts had no alternative but to hand over the child to that person. In equity, however, the paramount consideration was and is for the welfare of the child, moral and physical. As Lindley L.J. puts it in re McGrath 41 Weekly Reporter at page 89:

“The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare of the child 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.”

2 In the normal case it would usually be in the interest of the child that it should be entrusted to the parent who is invested with legal rights and obligations in respect of the child, but once however the Court is satisfied that it is in the best interest of the child that custody be withheld from the parent the Court will disregard the rights of the parent and refuse to grant the Writ. But the Court will not deprive a parent of his right to custody except for good and sufficient reason as e.g. such as when the Court is satisfied by evidence that the parent is unfit to exercise parental control, or has abandoned her rights by seeking to transfer them to some other person, and in any event that the exercise of the parental rights would be in some way injurious to the health of the child.

3 Where, however, the Court is satisfied that it is in the interest of the child not to grant the Writ, it may take the child into wardship and exercise control over it through some other person.

4 When the matter first came on before me in Chambers on the 30 ^th November, 1965 the parties relied purely on the affidavits filed herein, but having regard to the law as I have attempted to state it and after giving further consideration and in view of the competing allegations in the respective affidavits, I indicated to both counsel that I would require evidence on oath or at any rate that the parties be submitted for cross-examination on their affidavits. I intimated that it was unlikely that I could deal with this matter during the month of December, 1965, and bearing in mind the need for a speedy determination of issues of this nature, indicated that they could have my leave to begin de nova before another chamber judge. By consent, however, it was agreed that I should continue with the matter but, unfortunately it was not convenient to either counsel or myself to proceed with the matter before Saturday 20 ^th May, 1966 and again on Saturday 28 ^th May, 1966 when the evidence of the parties was concluded.

5 In her affidavit the applicant swore that in June 1955 the child, Helen, went to live with the respondent under an arrangement whereby she paid the respondent money to cover the cost of board and lodging for Helen and provided her with clothes and foodstuff. The arrangement she further alleged was that the respondent would take care of Helen during her working periods and that she would call for the child over the weekends. She further alleged that this arrangement was followed,...