In re Gilpin, 1972-73 ALR S.L. 452

5 SECTION 48 THE AFRICAN LAW REPORTS IN RE JARTUE GILPIN, ZACCHEUS GILPIN and JASMINE GILPIN, GILPIN v. GILPIN High Court (During, J.): April 10th, 1973 (Misc. Appl. No. 12/73) [ 1] Family Law-custody of children-right of father to custody-welfare of child paramount but if all else equal father has prior right to custody: In all proceedings concerning the custody or property of a child the welfare of the child is of paramount importance and in a dispute between parents the merits of their respective claims should not be taken into 10 account, although where the welfare of the child will be equally served whichever parent is given custody, the father's claim to custody has priority; in proceedings between a parent and a third party custody should be awarded to the parent unless it is shown that he is unfit and should forego his right in the interests of the welfare of the child (page 15 20 25 30 35 454, lines 16-28; page 454, line 37- page 455, line 18). [ 2] Family Law-custody of children-claims of parent and third party­ welfare of child paramount but parent's claim should prevail unless unfit to have custody: See [ 1 J above. The applicant claimed custody of his three children from the respondent, his wife. The applicant and respondent were separated. Their three children lived with the respondent wife in the Western Area and at the time of the present application she was intending to remove the children from the Western Area to another part of the country without her husband's consent. The applicant applied for custody of the children alleging that the respondent had neglected them, since she worked very irregular hours and the nurse she had employed to take care of them was incompetent and often drunk. He also alleged that the respondent had not made proper arrangements for the children's future care after their proposed removal from the Western Area. He contended that as lawful father of the children he had a prior right to custody of them. The respondent denied the allegations made against her and contended that it was in the interests of the children that they should remain with her. The application was granted. Cases referred to: 40 (1) Lough v. Ward, [1945] 2 All E.R. 338; (1945), 173 T.L.R. 181. (2) In re O'Hara, [1900] 2 I.R. 232. 452 IN RE GILPIN. 1972-73 ALR S.L. 452 H.C. (3) In re Thain, Thain v. Taylor, [1926] Ch. 676; (1926), 95 L.J. Ch. 292, dicta of Eve, J. applied. Mrs. Awoonor-Renner for the applicant; Garber for the respondent. DURING, J.: On March 9th, 1973, I ordered that writ of habeas corpus and subficiendum be issued directing that the bodies of Jartue, Zaccheus and Jasmine Gilpin be brought before me by the respon­ dent herein pursuant to O.XIV B of the English Supreme Court Rules. A return was duly made to the writ which was issued against the respondent and the three infants were brought before me as directed. Mrs. Awoonor-Renner for the applicant asked leave to make use of the applicant's file sworn on behalf of the applicant herein on March 8th and 13th, 1973, which was granted. The affidavits were read. Mr. Garber asked for an adjournment on March 14th, 1973 to file the necessary affidavit to controvert certain allegations made by the applicant in his affidavits. I granted the adjournment to March 27th, 1973 as requested. When this matter came up for hearing on March 27th, 1973 Mrs. Awoonor-Renner moved that the infants brought before me be handed to the father and that the father do have custody, control and care of the children. Mrs. Awoonor-Renner referred me to the affidavit of the respondent sworn on March 19th, 1973 in answer to the affidavit of the applicant sworn on March 8th and 13th, 1973 respectively and stated that the affidavit did not disclose what preparation had been made for the care and custody of the children whilst she would be away from the Western Area, and that in para. 10 of her affidavit she admitted that she was going to be transferred and was going to take two domestics with her: a nurse and a maid. She contended that the applicant did not give his consent to the children being removed from the Western Area and that as lawful father of the children he has a right to custody of the children. Both parties agree that the children have been ordinarily resident in the Western Area where they have been attending school. Mr. Garber referred me to the affidavit of the applicant sworn on March 8th, 1973, especially paras. 7 and 8 where he swore that the respondent was a ward sister at the Connaught Hospital and works very irregular hours and as a result the children are neglected and not being properly cared for, and that the respondent lived 453 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS alone with the children and had a day nurse who was most incom­ petent and was mostly under the influence of drink. He also referred me to para. 13 of the said affidavit where the applicant alleged that the children were not well cared for by the respon- 5 dent. Mr. Garber maintained that it was in the interest and for the welfare of the children that they should stay with the mother whilst she was in Freetown. Jartue is six and a half years old, Zaccheus five years and Jasmine three and a half years. There have been no previous proceedings between the parties in respect 10 of the marraige celebrated between them nor have there been previous proceedings in respect of the children of the marriage. Clarke Hall & Morrison on Children, 7th ed., at 799 (1967), dealing with the principles on which questions relating to the custody and upbringing of children are to be decided, has this to 15 say: "Where in any proceeding before any court (whether or not a court within the meaning of the Guardianship of Infants Act, 1886) the custody or upbringing of an infant, or the administration of any property belonging to or held on trust 20 for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consider­ ation, and shall not take into consideration whether from any other point of view the claim of the father, or any right 25 at common law 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.'' Counsel on either side conceded that the proposition of law as 30 laid down by Clarke Hall & Morrison is applicable in the matter before me and I adopt as my own the said proposition in arriving at my decision. In the case of Lough v. Ward (1) it was held that a father, as the head of a family, had control over his children, their persons, 35 their education and their conduct until they were over 21 or married under that age. In re Thain, Thain v. Taylor (3) lays it down that the welfare of the infant, though the first and paramount consideration, is only one amongst several other considerations. Unless a parent shows 40 himself unfit to have custody he has generally a right to the control of the child. Eve, J. said inter alia ([1926] Ch. at 682; 95 L.J. Ch. 454 IN RE GILPIN, 1972-73 ALR S.L. 452 H.C. at 292): "It is happily a case in which no suggestion of unfitness on either side is involved, and I am satisfied that the child will be well cared for and be the object of as much solicitude in the one home as in the other. In these circumstan~es, accord~ 5 ing to well settled practice, the claim of the father must prevail, unless the Court is judicially satisfied that the welfare of his child requires that the parental right should be super- seded.'' FitzGibbon, L.J. in In re O'Hara (2) stated that rule as ([1900] 2 10 I.R. at 240): "Where a parent is of blameless life, and is able and willing to provide the child's material and moral necessities, in the rank and position to which the child by birth belongs - i.e. the rank and position of the parent -the Court is, in my 15 opinion, judicially bound to act on what is equally a law of nature and of society, and to hold (in the words of Lord Esher) that 'the best place for a child is with its parent.' " I have carefully read and considered the affidavits filed herein on behalf of both parties and also read the return made by the 20 respondent and I am satisfied that custody of the children shall remain in the applicant in this matter and I order that the three children be delivered forthwith to the custody of the applicant. I make no order as to costs. Application granted. 25 30 35 40 455