Watson-Morgan v Grant

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Henry, JJ. A.)
• Judgment Date: 01 August 1990
• Court: Court of Appeal (Cayman Islands)
• Date: 01 August 1990

Court of Appeal

(Zacca, P., Georges and Henry, JJ. A.)

WATSON-MORGAN

and

T. GRANT, H. GRANT and G. GRANT

N.W. Hill, Q.C. and Mrs. E. Maierhofer for the appellant;

Ms. C. Bridges for the respondents.

Cases cited:

(1) C. T. (an infant), Re, [1956] 3 All E.R. 500, dicta of Roxburgh J. applied.

(2) Clarke v. CareyUNK(1971), 12 J.L.R. 637, dicta of Graham-Perkins J.A. considered.

(3) Crespy, ReUNK(1970), 21 D.L.R. (3d) 166.

(4) F. (A Minor) (Wardship: Appeal), In re, [1976] Fam. 238.

(5) Finlayson v. MatthewsUNK(1971), 12 J.L.R. 401, applied.

(6) G. v. G., [1985] 1 W.L.R. 647; [1985] 2 All E.R. 225, dicta of Lord Fraser of Tullybelton applied.

(7) Galloway v. Galloway, [1956] A.C. 299, considered.

(8) Lewis, ReUNK(1970), 15 W.I.R. 520, dicta of Douglas J. applied.

(9) Minister of Home Affairs v. Fisher, [1980] A.C. 319, distinguished.

(10) Osenton (Charles) & Co. v. Johnson, [1942] A.C. 130; [1941] 2 All E.R. 245, dicta of Viscount Simon, L.C. applied.

(11) White v. Barrett, [1973] 3 W.W.R. 293, considered.

(12) White v. SpringleUNK(1966), 10 W.I.R. 152, dicta of Wooding, C.J. considered.

(13) Woolwich Union Guardians v. Fulham Guardians, [1906] 2 K.B. 240, dicta of Vaughan Williams, L.J. considered.

Legislation construed:

Guardianship and Custody of Children Law (Revised) (Law 19 of 1975, revised 1977), s.7(1) and (3): The relevant terms of this section are set out at page 84, lines 8–17; lines 21–27.

s.16: The relevant terms of this section are set out at page 85, lines 4–7.

Family Law-children-custody-no order possible under Guardianship and Custody of Children Law (Revised), s.7 for custody of illegitimate child on application by natural or putative father

Family Law-children-custody-grandparents not parties to whom custody may be granted

The first respondent, the natural father of an illegitimate child, and his parents sought an order in the Grand Court granting them the custody of the child, as against the appellant, the child”s mother.

The child had lived with the first respondent”s parents since she was three months old. She was four years old at the time of the hearing of the appeal. The appellant had originally been unable to support her but, in view of the fact that she now held a steady, well-paid job and had recently married, she wished her daughter to live with her and accordingly removed her from her grandparents” home.

On an application under the Guardianship and Custody of Children Law (Revised), s.7(1) and (3), the Grand Court (Harre, J.) granted custody of the child to all three respondents. In considering what was in the best interests of the child, the court took into consideration that she seemed equally comfortable in both homes. It noted that the appellant and her husband were able to provide a proper home environment for the child but weighed this against the unsettling influences of the mother”s own early family background and the unstable life she had led up to the birth of the child. Expert evidence, including reports from the social worker assigned to the appellant and the child”s school teacher, was led to show that living with her mother had apparently not caused the child any emotional trauma as she continued to behave normally in school. The respondents claimed that there was some risk of sexual abuse to the child in her new home but no substantial evidence was led to support this claim. The court considered that the child”s circumstances could change if her father married but regarded this as a circumstance justifying a review of the case at such time as it occurred.

The appellant appealed.

Held, allowing the appeal:

(1) It was evident that a distinction was consistently made in Cayman legislation between legitimate and illegitimate children and similarly between a legitimate and a natural or putative father. In some cases the

word ‘parent’ was expressly or by necessary implication to be regarded as including a putative father, e.g. s.16 of the Guardianship and Custody of Children Law (Revised) requires that such a construction be given to ss. 12–15 of the Law. But where, as with s.7 of the Law, there was an absence of such a definitional provision, the words ‘father’ and ‘parent’ must take their meaning from the context of the specific provision, and in the present instance this appeared to contemplate a husband and wife situation. Moreover, s.7(1) and (3) were expressed in the same terms as the original Jamaican Law, which had been interpreted so as to preclude a putative father making an application for the custody of an illegitimate child. Accordingly, s.7 was not intended to apply to the custody of an illegitimate child and the court had no jurisdiction under it to entertain an application by the putative father for such custody. The appeal would therefore be allowed (per Zacca, P., page 84, line 39 – page 85, line 38; page 86, lines 18–26; page 96, line 36 – page 97, line 4; Henry, J.A. concurring; Georges, J.A. dissenting, page 101, line 19 – page 102, line 9; page 102, lines 23–36; page 103, line 40 – page 104, line 23).

(2) In any event, even if the court had had jurisdiction to entertain the respondents” application for custody of the child, on the merits of the case it could not succeed. Since the case had been decided essentially on written evidence the Court of Appeal was in as good a position as the trial court to evaluate the evidence and concluded that insufficient weight had been given to relevant considerations. In deciding what would best serve the welfare of the child, the Grand Court had concentrated on the difficulties which had formerly existed in the mother”s household rather than on the situation as it then existed (which was considerably improved) and the child”s observed reactions to that environment. Insufficient weight had also been given to the professional evidence supporting the view that the child had apparently not suffered emotional trauma as a result of leaving her grandparents” home and the expressed fear in the judgment of risk to the child in the long term had not been specifically related to any evidence of risks amounting to a prima facie case requiring an answer. Additionally, the court had inappropriately and incorrectly treated the grandparents as parties in whose favour an order for custody could have been made and had not given due weight to the more serious risk posed by the likelihood of the father”s marrying and moving the child to a new and unknown environment. On these grounds alone the appeal would have been allowed (page 97, lines 4–9; page 107, line 33 – page 108, line 8; page 108, line 26 – page 109, line 3; page 109, line 13 – page 110, line 15; page 111, line 24 – page 112, line 2).

ZACCA, P.: On June 1st, 1990 this appeal was allowed, the
25	order of Harre, J. set aside and costs awarded to the appellant to
be agreed or taxed. On March 30th and 31st, 1990 the court had
heard submissions with respect to the merit of the appeal and
reserved judgment. The court recalled the parties on June 1st,
1990 when it required the parties to make submissions on the
30	question as to whether the trial judge had jurisdiction to grant
custody to the father of an illegitimate child.
An application had been made to Harre, J. by the father
Garston Todd Grant and his parents Garston Gilbert Grant and
Hedy Nadine Grant for the custody of Monique Watson.
35	Monique Watson was born on October 29th, 1985. She is the
daughter of Ann Elaine Watson-Morgan. With some reluctance,
Garston Todd Grant acknowledged that he was the father.
Harre, J. made an order granting custody to the father and grand-
parents. At the hearing on June 1st, 1990 it was conceded that
40	custody of Monique could not be granted to the grand-parents.
The facts of the case are set out in the judgment of Georges,

J.A. and it is unnecessary to repeat them. The questions for
determination in this appeal are (a) whether, upon the applica-
tion of the father, an order for the custody of an illegitimate child
may be made under s.7(1) of the Guardianship and Custody of
5	Children Law (Revised), and (b) if so, whether the order of
Harre, J. granting custody to the father was properly made.
Section 7(1) provides as follows:
‘The Court may, upon the application of the father or
mother of a child, make such order as it may think fit
10	regarding the custody of such child and the right of access
thereto of either parent, having regard to the welfare of the
child, and to the conduct of the parents, and to the wishes as
well of the mother as of the father, and may alter, vary, or
discharge such order on the application of either parent, or,
15	after the death of either parent, of any guardian under this
Law; and in every case may make such order respecting costs
as it may think just.’
Section 7(3) makes provision for the maintenance of the child by
the father where the mother has been granted custody of the
20	child. That sub-section provides as follows:
‘Where the Court under subsection (1) makes an order
giving the custody of the child to the mother, then, whether
or not the mother is then residing with the father, the Court
may further order that the father shall pay to the mother
25	towards the maintenance of the child such weekly or other
periodical sum as the Court, having regard to the means of
the father, may think reasonable.’
Section 7(4) states what is the effect of an order under sub-ss. (1)
and (3) if the mother resides with the father. The sub-section
30	provides as follows:
‘No such order, whether for custody or maintenance, shall
be enforceable, and no liability thereunder shall accrue,
while the mother resides with the father and any order shall
cease to have effect if for a period

...