Mala v Chand [1990] FJCA 14; Abu0017u.89s (6 November 1990)

Fiji Islands - Mala v Chand - Pacific Law Materials

IN THE FIJI COURT OF APPEAL

CIVIL JURISDICTION

CIVIL APPEAL NO. 17 OF 1989
(Civil Action No. 1 of 1987)

BETWEEN:

ass=MsoNormal align=center style=text-align:center> USHA ANJANI MALA
d/o Hardeo Arjun
Appellant

AND:

1. AMI CHAND
2. JYOTIKA DEVI
Respondents

Mr. S.M. Koya for the Appellant
Ms. Patrica Jalal for the Respondent Date of Hearing : 10th October, 1990
Delivery of Judgment: 6th November, 1990

JUDGMENT OF THE COURT

The Appellant is the natural mother of a male child born on the 2nd of April 1983. At the time of his birth he was illegitimate. He is now a little over 6 1/2 years old. The Respondents are the adoptive parents of the child pursuant to a judgment entered and sealed by the Supreme Court at Lautoka purporting to make an adoption order in their favour regarding the child.

From this purported order the Appellant appeals on a number of grounds.

We have first to consider the form of order sealed by the Court. It is in our view defective. The order is in the following form:

"JUDGMENT AFTER TRIAL

BEFORE THE HONOURABLE MR. JUSTICE L.M. JAYARATNE ON FRIDAY THE 26TH DAY OF MAY, 1989

THIS ACTION coming on for trial on the 26th day of January, 1989 before this Honourable Court in the presence of Counsel for the Applicants and for the Respondents AND UPON READING the Pleadings AND UPON HEARING what wasged eged by Counsel for the Applicants and for the Respondent AND UPON HEARING the evidence of the Applicants and the Resnt AND UPON READING writubmissions from Counselunsel for the Applicants and thnd the Respondent IT IS DECLARED that the Respondent is unreasonably withholding her consent to the adoption by the Applicants of the infant named as BITTU who is registered as SIDDHANT JETENDRA PATEL born of the Respondent and her husband JETENDRA PATEL at Lautoka on the 2nd day of April, 1985 AND IT IS ORDERED that the Respondent's consent and the consent of her husband the said JETENDRA PATEL be and are hereby dispensed with AND that the Respondent do pay to the Applicants costs of this proceeding and such costs be taxed in default of agreement.

BY THE COURT

(Sgd.) S.S. Mudiliar
DEPUTY REGISTRAR

SEALED this 9th day of June, 1989."

It will be noted that the judgment contains no order that the Respondents be authorised to adopt the child.

A form of order is provided in the schedule to the Adoption of Infants Act (Vol.11 Cap.58 1978 Edition Subsidiary Legislation pp.8 & 9). The purported "Judgment" in no way resembles the form of Adoption Order provided and apart from the crucial order authorising the adoption the Judgment omits a number of orders the learned judge was required to make.

We do not propose to mention them all. There are more than one. Suffice it is to mention the name the adoptive parents wanted to call the child. There was no direction to the Registrar-General to register the birth or amend particulars.

We have perused the learned judge's "Judgment after Trial" and nowhere in it has he averted to the matters which the Act requires him to decide or make orders thereon.

We would normally have to consider in a case of this nature, whether the matter should be sent back to the learned judge to rectify the defects. That would cause further delay in a matter that should have been disposed of at least four years ago. If there are further errors we may not be in a position to come to a final decision.

There are two matters which require decisions by us and which could dispose of the appeal. The first is a challenge to the jurisdiction of the court to entertain the adoption application contained in the first ground of appeal which is as follows:

"1.THE Learned Trial Judge erred in law and misdirected himself when he purported to dispense with the consent of the lawful and natural father JETENDRA PATEL to the Application made by the Respondents to adopt the infant called "BITTU" and registered under the Births, Deaths and Marriages Registration Act Cap. 49 as SIDDHANT JETENDRA PATEL."

In considering this ground of appeal we have to consider Section 7(1) of the Adoption of Infants Act which is in the following terms:

"7.(1)An adoption order shall not be made except with the consent of every person or body who is a parent or guardian of the infant, or who is liable by virtue of any order or agreement to contribute to the maintenance of the infant:

Provided that the court may dispense with any consent required by this subsection if it is satisfied -

(a) in the case of a parent or guardian of the infant, that he has abandoned, neglected or persistently ill-treated the infant, or has made no contribution to its maintenance for a period in excess of five years;

(b) in the case of a person liable as aforesaid to contribute to the maintenance of the infant, that he has persistently neglected or refused so to contribute;

(c) in any case, that the person whose consent is required cannot be found, or is incapable of giving his consent or that his consent is unreasonably withheld."

When the Respondents first applied to adopt the child, on the 20th August, 1987, the child was illegitimate and they did not know the name of the father. They did however know the name and address of the mother because more than a month prior to their applying to adopt the child they were served with notice of the issue of a writ of Habeas Corpus to produce the child to the Supreme Court (now the High Court) at Suva on 14th August, 1987, an order they have ignored. Those proceedings are still pending and have been adjourned sine die pending the outcome of the adoption proceedings.

The Appellant filed an affidavit in reply in which she disclosed the following relevant facts and documents:

1. The child's birth was registered on the 27th November, 1987.

2. A copy of the summons in affiliation proceedings brought against the putative father dated 5th February, 1989.

3. Order of Paternity dated 8th February 1988 upon the putative father, Jitendra Patel who admitted paternity.

4. A further amended copy of the child's record of birth disclosing that Jitendra Patel is the father of the child.

5. A statement that there was an order for maintenance of the child against the said Jitendra Patel.

Well before the learned judge delivered his judgment on 26th May, 1989 the Appellant and the natural father were married thereby apparently legitimating the birth of the child under the provisions of the Legitimacy Act. We do not know whether or not the father was resident in Fiji at the time of the marriage which was held in Suva.

However we mention the marriage which is a very relevant fact to be considered when considering the welfare of the child.

Of significance is the fact disclosed by the copy marriage certificate admitted in evidence in the court below, that the appellant's father Hardeo was a witness at her marriage. We will have occasion to refer to this fact later in this judgment.

We now turn to Section 7(1) of the Act.

There is an express prohibition in this Section to the making of an order in the case (inter alia) of the father of the infant or a person who is liable to contribute to the maintenance of the child except with his consent.

The father of the child qualified in two respects, as a parent and as a person whose consent was necessary before the learned judge was vested with jurisdiction to make an order of adoption.

Notwithstanding that the learned judge purported to dispense with the consent of the father in a very cursory manner without considering or adequately considering the issue. He merely said:

"I conclude that she is unreasonably withholding her consent to the adoption of her child by the applicants. Not only her consent. I dispense with the consent of her husband as well."

No reasons are given for such a summary order nor were any adverse findings made against the infant's father in terms of any of the various grounds set out in the provisos to Section 7(1) of the Adoption Act.

It was irrelevant that the infant's mother had married in the course of the proceedings what was relevant however was that the identity of the other "parent" namely the father of the infant had been conclusively established by evidence before the court.

The father's consent was never sought by the applicants. The proper course for the judge to have followed was to direct the applicants to amend their application and serve a copy of the application on the father. If he was in New Zealand the learned judge could have ordered service on him by registered post or make other arrangements to bring notice of the adjourned hearing to the attention of the father.

There was no evidence led by the applicants to indicate the father was unreasonably withholding consent.

In the circumstances of the case the consent of the father was required to vest jurisdiction in the learned judge. He erred in purporting to dispense with the father's consent. It is clear he gave scant consideration to that issue in any event.

The second matter is the issue of dispensation of the mother's consent covered by the second ground of appeal which is as follows:

"1.THAT the Learned Trial Judge erred in law and misdirected himself in purporting to dispense with the consent of the Appellant to the adoption of the infant by the Respondent upon the ground that the withholding of her such consent was unreasonable."

It is not in dispute that the consent of the Appellant was never sought by the Respondent. A form of consent, which Dr. Tabua purported to obtain from the appellant in

hospital shortly after the birth of the child, was not in proper form and was correctly held by the learned judge to be inadmissible.

The learned judge held the appellant had unreasonably withheld her consent to the adoption of the child. That was a finding of fact.

BENMAX v. AUSTIN MOTOR CO. LTD. 1955 1 A.E.R. 326 is a House of Lords case which is frequently quoted. It was a case where an Appellate Court dealt with the perception and evaluation of facts found by a lower court. It was held:

"An appellate court, on an appeal from a case tried before a judge alone, should not lightly differ from a finding of the trial judge on a question of fact but a distinction in this respect must be drawn between the perception of facts and the evaluation of facts. Where there is no question of the credibility of witnesses, but the sole question is the proper inference to be drawn from specific facts, an appellate court is in as good a position to evaluate the evidence as the trial judge, and should form its own independent opinion, though it will give weight to the opinion of the trial judge. "

In the instant case we are in as good a position as the learned judge to consider the issue of reasonableness.

Ms. Jalal, while admitting that the Appellant clearly loved her child, and had always done so, stated that it was unreasonable for her, a loving mother, to put the child to the trauma of removing him from his home where he was happy and settled and that she should have consented to the adoption to spare the child the trauma of being taken by a "stranger" to a new home - to surroundings quite foreign to the life he had lived up to that time.

There is no evidence whatsoever that she is not a fit and proper mother. The Guardian-ad-litem's Report concludes with her considered view that both parties are equally capable of bringing up the child but she raised the issue of the child's emotional security. The Report discloses that the adoptive parents have a child of their own. Also relevant is the fact mentioned by Mr. Koya from the bar table, and not challenged by Ms. Jalal, that the appellant and her husband have also had a second child, whether it is a boy or a girl we do not know.

The learned judge was not aware of this last mentioned fact when he wrote his judgment. Had he been aware of it he may not have advanced the reasons he did for considering the appellant's refusal was unreasonable.

He was very concerned that the child's grand parents were hostile and would be cruel to the child. He made such statements as:

"The Respondent must remember the fact that her own father was at the throat of her infant babe if she did not give him for adoption."

This was an exaggeration and the learned judge erred in making it. The only evidence before the court as to the hostility of the grandfather of the child was gleaned from appellant's own affidavit explaining why she had to give up the child for adoption. That hostility related to a period at least 4 years prior to the date of the judgment. The hostility was of a father deeply shocked by his unmarried daughter's pregnancy. It was clearly a transient hostility and understandable.

There was no evidence whatsoever that that hostility continued up to the date of judgment. On the contrary there was evidence that the appellant's father was a witness at her marriage to the father of the child.

Notwithstanding that lack of evidence the learned judge found as a fact that the hostility still prevailed.

The learned judge's real reason for considering the appellant's refusal to give a consent she was never asked to give, is contained in the following passage of his judgment:

"The Respondents desire to get back the child and the expression of love and affection are all consistent with the natural mother. Is her desire to uproot the child from the applicants (Adoptive parents) reasonable? Is it not disruptive and detrimental to the well being of the child? Is it not traumatic to the child? It is unreasonable and detrimental to his well being. It is traumatic too."

He went on to make statements that had no basis at the time he made them. He made such statements as:

"There is no reason why the child should be uprooted and put among a crowd of grandparents."

"She (the appellant) is earning and the hostility towards the child by her parents prevails."

"The same hostility is prevailing amongst the parents of the husband."

"Why should the child be brought into the midst of their hostilities."

"The child must not be made the victim of strategy perpetrated on the applicant."

We do not know what the learned judge meant by the last quoted statement. It is abundantly clear that the learned judge was obsessed by his belief that the child would be ill-treated by the grandparents. We repeat there was no evidence of any hostility by the grandfather from the time the child was born up to the date of the judgment. There was no evidence of hostility by the grandmother at any time. In fact there was evidence that the Appellant's mother supported her and was present at the hearing.

It is pertinent to state that Ms. Jalal entirely ignored such statements. She was right to do so. We propose to do the same and confine our consideration of the very narrow issue, to the question whether it was unreasonable for the Appellant to refuse consent knowing it might have a traumatic effect on the child.

We are of the view that too much emphasis has been placed on the possible effect of uprooting the child in the instant case. There was no expert evidence given on this issue. As was pointed out in the House of Lords Case Re W (an infant) (1971) 2 All E.R. P. 49 the test of whether the refusal to give consent is a reasonable one is an objective one to be made in the light of all the circumstances of the case and, although the welfare of the child is not the sole consideration, it is a factor of great importance.

Lord Hailsham, at p.55 of the House of Lords Case, quoted with approval a passage from Lord Denning's. Judgment in Re. L.S.C (1962) 106 Sol Jo 611 which Lord Hailsham stated may now be considered authoritative, Lord Denning said:

"'In considering the matter I quite agree that: (1)the question whether she is unreasonably withholding her consent is to be judged at the date of the hearing; and (2) the welfare of the child is not the sole consideration; and (3) the one question is whether she is unreasonably withholding her consent. But I must say that in considering whether she is reasonable or unreasonable we must take into account the welfare of the child. A reasonable mother surely gives great weight to what is better for the child. Her anguish of mind is quite understandable; but still it may be unreasonable for her to withhold consent. We must look and see whether it is reasonable or unreasonable according to what a reasonable woman in her place would do in all the circumstances of the case.'"

Lord Hailsham at p.55 specifically endorsed a statement by Jenkins L.J.'s in Re K (an infant) 1952 a ALL E R at 884.

"'Prima facie it would seem to me eminently reasonable for any parent to withhold his or her consent to an order (for adoption) thus completely and irrevocably destroying the parental relationship. One can imagine cases short of such misconduct or dereliction of duty as is mentioned in s.3(1)(a) (i.e. of the Adoption Act 1950) in which a parent's withholding of consent to an adoption might properly be held to be unreasonable, but such cases must, in our view, be exceptional.'"

Lord Russell said in Re W (an infant) 1970 3 ALL E R 990 at 996:

"Taking the case as a whole I cannot escape the conclusion that the Judge's decision went entirely on his view as to the best interests of the child, notwithstanding his self reminder that on this point that was not the sole consideration."

That is also our view in the instant case. The learned judge did not consider the totality of the evidence before him as he should have done. Had he done so he may well have come to a different conclusion.

We have considered all the evidence. The mother was not at fault in any way. She loves her child although she has never seen him. Is it unreasonable of her to want her own child to join her and her husband and now a brother or sister? She and her husband are better educated and indications are that the family will reside in New Zealand a welfare state where the father has permanent residency status.

The adopted parents are simple farming folk. The foster father has a small 3 acre farm which produces only above 50-60 tonnes of cane. This farm can not support the family and the family's income has to be augmented by casual work the father can find. They are living close to the poverty line.

The birth of their own son will throw an additional burden on the family. It is natural that their own son should be the favourite child. Could this possible favouritism result in future unhappiness for the adopted son? We do not know but we would not be surprised if it could.

In Re R (M) (an infant) (1966) 3 All E R 58 Plowman J. made an order which confirmed care and control of a child close on 6 years of age being given to the mother.

The facts in that case bear some resemblance to the facts in the instant case. It was held that although the plaintiff had provided a good home for the child, it would be for the child's benefit, on a long term view, that she should be brought up by her mother.

At page 61 the learned Judge said:

"I have referred to the history of the matter in the barest possible outline in order to show, what indeed is admitted, namely, that the mother has not in any way disentitled herself by neglect or abandonment from saying that she wants her child back; and she has been saying that for a long time.

It is not said that the mother is not a fit and proper person to look after her own child, and it is admitted that she is genuinely anxious to do so. The argument put forward on the part of the plaintiffs is this: that the welfare of the child is the matter of first and paramount consideration, and her welfare requires that she should stay where she is; and that is a view which the county council support. It is pointed out on behalf of the plaintiffs, and the mother does not in any way dispute it, that the child has a happy, secure and settled home; that she has loving foster parents; better material surroundings than perhaps her mother can give her; and that she is happily settled in the village school and is getting on there satisfactorily. It is then said that it would be very upsetting for the child to uproot her from her familiar surroundings; that she would gain nothing from it, and that it might cause her lasting harm."

There was medical evidence regarding the possible effect on the child but Plowman J. could not read into the evidence that there was likely to be permanent psychological damage to the child. He quoted with approval what UPJOHN L.J.is reported to have said in Re L (M.A.) (an infant) (1966) 1 ALL E R 838 at p. 845:

"The argument about the risk to a child was an argument often put forward, but was a risk which the court accepted everyday."

Plowman also referred to the Thain, Thain v. Taylor (1926) All E R Rep. 384 where it was held:

""Held, by Eve, J., on the evidence, that the father had never surrendered his parental right, and that it was the well settled practice that the claim of a father must prevail, unless the court was judicially satisfied that the welfare of the child required that the parental right should be superseded: Re O'Hara (4), where the rule was laid down.

"Held, therefore, that as there was no suggestion of unfitness in the father in the present case and the rule did not state that the welfare of the infant was to be the sole consideration, but only the paramount consideration, which contemplated the existence of other conditions, the parental right of an unimpeachable parent stood first, and an order must be made for the delivery up of this child to her father.

"On appeal:

"Held, that the question of the custody of the infant was entirely a matter within the discretion of the judge to be exercised judicially, and that EVE, J., having applied the correct principles of law there was no ground for interfering with his discretion.

Held, also, that s.1 of the Guardianship of Infants Act, 1925, introduced no new principle of law, but merely enacted the rule which had hitherto been acted upon in the Chancery Division.""

The natural mother has as strong a claim as the father.

Eve J said at p. 682:

""It is happily a case in which no suggestion of unfitness on either side is involved, and I am satisfied the child will be as well cared for and be the object of as much solicitude in the one home as in the other. In these circumstances, according 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 superseded. FITZGIBBON, L.J., in Re O'Hara (8) states the rule thus: 'Where a parent is of blameless life, and is able and willing to provide for the child's material and moral necessities...... the court is, in my 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 (9)) that "the best place for a child is with its parent."'""

He also said and this is apposite in the instant case:

""It is said that the little girl will be greatly distressed and upset at the parting from Mr. and Mrs. Jones. I can quite understand it may be so, but, at her tender age, one knows from experience how mercifully transient are the effects of partings and other sorrows, and how soon the novelty of fresh surroundings and new associations effaces the recollection of former days and kind friends, and I cannot attach much weight to this aspect of the case.

"As I said at the commencement of my judgment, I am satisfied that the child will be as happy and well cared for in the one home as the other, and inasmuch as the rule laid down for my guidance in the exercise of this responsible jurisdiction does not state that the welfare of the infant is to be the sole consideration but the paramount consideration, it necessarily contemplates the existence of other conditions, and amongst these the wishes of an unimpeachable parent undoubtedly stand first. It is my duty therefore to order the delivery up of this child to her father.""

We have considered all the relevant facts. We are of the view that the best interests of the child are served if he were to be united with his natural father, with a mother who has never ceased to love him, and with a real brother or sister.

In our view the Appellants assumed refusal to give consent to the adoption was not unreasonable.

In addition we hold that the learned judge had no jurisdiction to entertain the application without the consent of both the mother and the father of the child.

The appeal is allowed and the judgment set aside.

If the foster parents accept our considered view that the child is better off with his parents, and they are concerned for his future welfare they could liaise with the Appellant and assist her to get to know her son and thus reduce to a minimum any possible trauma the child may suffer when he is returned to his parents.

We make no order as to costs and the circumstances of this case.

Sir Ronald Kermode
Justice of Appeal

Sir Moti Tikaram
Justice of Appeal

D.V. Fatiaki
Justice of Appeal

Abu0017u.89s