Legal Scoop | ‘The best interest of the child’ - The dominant consideration for the court

In my last article, 'Guardian beware', I averted to the Court of Appeal's ruling in the case of B v C and the Office of the Children's Advocate delivered on October 28, 2016, that the inherent equitable jurisdiction to appoint guardianship to a child, whose parents are alive, to person(s) who are not the biological parents of the child lies with the Supreme Court.

The judgment also highlighted that "it is only in extreme circumstances that the court will exercise that discretion". The crucial issue is for the court to act in the best interest of the child.

In that article, I emphasised other aspects of the judgment. This week I will look at how the courts have, over the years, treated the question of "the best interest of the child".

In B v C, Brooks JA looked at Section 18 of Children (Guardianship and Custody) Act which states: "... the court in deciding that question, shall regard the welfare of the child as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father ... is superior to that of the mother, or the claim of the mother is superior to that of the father".

Brooks also cited Lindley L.J. explanation of the principle In re McGrath (Infants) [1893] 1 Ch 143, where he said: ".... 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 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."

Brooks also noted that several of the cases stressed the court's recognition of the bond between parent and child and the reluctance of the court to interfere with that bond.

He cited Ex Parte Mountfort (1809) 15 Ves Jun 445; 33 ER 822, a case in which a petition was presented for the appointment of a guardian for an infant in place of his father, whose negligence, it was alleged, threatened the security of the infant's estate, as one case where the father was given preference because the court took into consideration the ties of affection between father and child.

TIES OF AFFECTION

De Manneville v De Manneville (1804) 10 Ves Jun 52; 32 ER 762, was also cited where the court again took into consideration the ties of affection and refused to deprive a father of custody of his child despite the court's less than approving view of his religious leanings, or lack thereof, and his politics.

Most recently, I managed to get my hands on a decision of Batts J in the Supreme Court (Re Application for Guardianship of a Minor Child F [2016] JMSC Civ 193 delivered November 4, 2016), where he also looked at the circumstances under which a court should grant an order for guardianship where the parents are alive.

In looking at the history and development of this jurisdiction of the courts, Batts cited the above-mentioned B v C case and quoted from paragraphs 19 and 20 which stated inter alia: "The jurisdiction ... has a rich history. That history includes the history of the Court of Chancery, which had exclusive jurisdiction in equity, providing relief where the common law offered no remedy. ... the jurisdiction of the Court of Chancery, over children, was founded on the prerogative of the Crown as parens patriae. The term parens patriae is defined ... as meaning 'parent of his country' ... the State in its capacity as provider of protection of those unable to care for themselves ... Based on that doctrine the State was regarded as having the right to make decisions concerning people who were not able to take care of themselves."

In the Re Application for Guardianship of a Minor Child judgement, Batts at paragraph 11 said: "The 'parens patriae' jurisdiction is to be exercised where the parents (or guardians) of the child are unable, unwilling or incompetent to take proper decisions in relation to the care and well-being of the child.

"It developed at a time when there was no specified agency of the State to take such decisions. The court continues to have this residuary power, ... It no doubt can, and should be, exercised where the agency of the State proves unable or incapable or where there are no parents or guardians or where the parents (or guardians) prove unable, or fail to, act in the child's best interest."

In refusing to grant the order for guardianship sought in the case under discussion, Batts examined the issue of the child effectively becoming a ward of the court by the application for guardianship, and the consequential legal ramifications.

He noted that there was no evidence before him of urgency or that the child was in peril. He also noted that the parents, in the case before him, had it within their power to grant temporary care and control to the applicants by way of an agreement, as occurs when a child is sent away from his/her parents to boarding school, or overseas to visit relatives.

Another ground advanced by Batts for refusing the order sought in the instant case was that an adoption process was already in train for the child in question and the applicants already had a 'Form of Licence' granted under Section 24 of The Children (Adoption of) Act transferring the care and possession of the child to them.

The licence carried with it certain conditions and restrictions, and the state agencies were also carrying out certain investigations and oversight in relation to the adoption process.

It was in this further context that Batts thought that under the circumstances this very sparingly granted order should not have been granted.

- Shena Stubbs-Gibson is an attorney-at-law and legal commentator. Send feedback to shena.stubbs@gleanerjm.com. Twitter:@shenastubbs