Rkj v Abg

• Jurisdiction: Dominica
• Judge: Stephenson J.
• Judgment Date: 28 August 2018
• Judgment citation (vLex): [2018] ECSC J0828-1
• Court: High Court (Dominica)
• Docket Number: DOMHCV2018/0056
• Date: 28 August 2018

[2018] ECSC J0828-1

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL) -

DOMHCV2018/0056

Between:-

RKJ

Claimant

and

ABG

Defendant

Appearances:

Miss Danielle Wilson for the Claimant

Mr Geoffrey L Letang for the Defendant

Pursuant to Part 42:10 of CPR 2000 a correction has been made to this judgment which is being reissued.

Stephenson J.

1 This is essentially a custody battle in the Commonwealth of Dominica over little Miss ASKJ born 1 born of the body of a Miss AZB 2 now of blessed memory on the 3 ^rd May 2015. The

claimant is the father of the said child (hereinafter referred to as “the father”. The defendant is the sister of the deceased mother that is she is the maternal aunt of the little girl (hereinafter referred to as “the aunt”).

2 This trial was conducted in closed court and the judgment was handed down in chambers. The judgment is to be reported in this anonymised form only. It would a contempt of court for any person to identify the child or any of the parties or their wider families.

3 The question which arises in the case at bar is not what the essential justice of the case requires but what the best interest of the child demands.

4 These proceedings commenced with an application for the issue of Habeas Corpus brought by the father of ASKJ.

5 The issue to be determined by this court basically boils down as to whether this court should order that ASKJ is to remain in the care and control of her aunt and that she be allowed to return to and reside in Anguilla or whether she should remain in Dominica in the custody care and control of her father.

6 ASKJ was born to the father and AZB on the 3 ^rd day of May 2015 in Dominica. Her parents were not married. Prior to her birth and after her birth her mother was ill having been diagnosed with Sickle Cell and a heart defect.

7 Prior to her death the mother handed care and control of her daughter to the aunt the defendant in this matter, this was due to her aforementioned ill health 3.

8 ASKJ therefore has been in the care and control of her aunt since she was two months and she resided out of Dominica in Anguilla with her and her husband in their family home. The maternal grandmother it would appear spends a significant time in Anguilla with her daughter and granddaughter.

9 RKJ, the father, formerly worked at Sea, prior to and subsequent to his daughter's birth and has since January 2018 returned to Dominica where he has obtained employment in two jobs, one with a telecommunication company as a technician and one as a Taxi Driver. It is the father's contention that he returned to Dominica to take up employment and residence in order to obtain and have custody of his daughter. It is noted that this is a decision he says was taken prior to the AZB's death.

10 The father now seeks sole custody of his daughter and seeks to have the aunt return his daughter to Dominica to him. The aunt contests his application and contends that she and her husband are the most suitable persons to have care and control of ASKJ primarily on the ground that they have been taking care of her solely from the time she was two months old and that they have and intend to continue to look after her best interest and provide care for her and further that the father has played little or no role in the ASKJ's life to date.

11 The aunt contended that her sister gave her an affidavit giving her custody of the infant child. It was agreed in chambers by both Counsel Miss Wilson and Mr Letang that this affidavit died with the mother and is of no legal force at this time.

12 This matter was first dealt with by an exparte application brought by the father seeking an order for Habeas Corpus against the aunt for her to produce the body of the child to him as he was denied access to her and that the aunt refused to hand over his daughter to him. There was also an injunction order prohibiting the aunt from taking the child out of the jurisdiction 4.

13 The child was taken back to Anguilla prior to the court's order and was returned to Dominica and on the 16 ^th April 2018, the aunt and the infant child ASKJ appeared before the court in chambers.

14 Every effort has been made by the Court with the assistance of Counsel representing the parties and three Welfare officers, Mr Wallace, Mrs Steadman and Miss Baron to have the parties come to a consent agreement regarding custody and access. It should be noted that on the 16 ^th April 2018 and on the 19 ^th April 2018 this matter engaged the attention of the Court and the parties along with all four

grandparents being present. Each set of grandparents in support of their children both sets wanting this Court to make a custody order in favour of their child.

15 There has been no settlement between the parties so therefore the Court has to make a decision as to the custody, care and control of ASKJ.

16 The Court having been now seised of the circumstances and situation as it relates to the child is now required in my view to ensure that adequate and suitable arrangements are made as it regards ASKJ as the Court is concerned primarily with the best interests of the said child.

17 It was decided to fast track the matter and have a full trial which would allow a full ventilation of the issues and evidence. Each side filed witness statements in addition to the affidavits which were filed in the matter. The court heard from the father, his father and his aunt on behalf of and in support of the claimant. The Court also heard from the Aunt, her mother and family friend on behalf of the defendant.

18 In coming to its decision, this court has considered the contents of the affidavits filed by both parties with the exhibits and the witness evidence received. The Court has also had sight of and taken into consideration the two Home Study Reports one by the Welfare Department here in Dominica and one by the Welfare Department in Anguilla. Both of these reports have sought to provide this court with the living situation at the father and of her current living situation with her maternal aunt and uncle in Law in Anguilla. The Court notes that both reports speak positively as to the suitability of both homes for the little one. The Psychologists report was also taken into consideration.

19 The undisputed facts in the case at bar is as follows:

• i. ASKJ is a very young female child having turned three on her last birthday;

• ii. She has been in the custody care and control of her aunt and her husband from the tender age of 2 months;

• iii. The mother of the child is now deceased and before her death “gave” custody care and control to her sister and her husband who lives outside of Dominica; 5

• iv. ASKJ was born out of wedlock, in that her parents were not married so the question of custody is not being dealt in the situation of divorce of separation of the parents of the child;

• v. The Claimant is ASKJ's biological father and he now lives in Dominica at the home of his parents;

• vi. The aunt has provided adequate and suitable care for ASKJ and in fact has established a mother (and father through her husband) relationship with ASKJ, in other words ASKJ has been living in the situation and circumstances of a nuclear family;

20 This judgment is being delivered at the conclusion of the trial in the matter. I have read and reviewed and analysed the many affidavits from parties, the witness statements and submissions filed by both sides. I have also had the opportunity to hear the viva voce evidence of the parties and their witnesses and have been able to observe their demeanor and attitudes in court and have drawn my conclusions in that regard.

21 The restatement of some of the facts of this case is limited to those that are considered by the court to be strictly relevant to the determination of the question as to what is the best interest of the child ASKJ.

22 There were social reports filed by both the welfare departments in Dominica and in Anguilla. The social workers in each island paid home visits to the homes of the parties and provided the court with a report as to the physical environments where ASKJ is expected to be housed. I have also reviewed the report prepared by the consultant Psychiatrist. The persons who prepared the reports did not appear at trial and were not cross examined.

23 From the evidence led in this case I find the following facts. When the mother was pregnant with ASKJ she initially lived with her parents at Salisbury and then in Anguilla with her sister. (The aunt).

24 ASKJ was born in May 2015 it therefore means that her mother would have become pregnant in or about the month of August 2014. A perusal of the mother's passport copies of which were exhibited by the aunt show that the mother travelled to Anguilla in August 2014. She did return to Dominica in December 2014 for what must have been a short period as she was noted to have registered in the Ante Natal Clinic of Anguilla Health Authority in Anguilla in January 2015. The notes reveal that she also attended the clinic in February 2015.

25 It is also noted that the mother's time for her stay in Anguilla was extended in January 2015 to March 2015.

26 All of this evidence was extracted from the copies of the mother's passport and her Ante Natal Clinic cards which were exhibited by the aunt in support of her evidence that the mother, her sister spent a significant period of her pregnancy in Anguilla and not in Dominica as the father sought to establish in his case.

27 The father and his witnesses gave evidence that the mother was in conflict with her family when she got pregnant. They sought to persuade this court that the mother spent her entire pregnancy with their family in Kings Hill up until her 8 ^th month of pregnancy when she was removed from their home by the mother's mother.

28 It is clear to this court that this was not true....