Director of Social Welfare v Khan [1994] FJHC 178; Hba0004j.94s (5 December 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA0004 OF 1994

BETWEEN:

THE DIRECTOR OF SOCIAL WELFARE
Appellant

AND

NAZIMA BIBI KHAN
f/n Salamat Khan
Respondent

D. Balram for the Appellant
M. Raza for the Respondent

Dates of Hearing: 20th May, 3rd, 17th June 1994
Date of Judgment: 5th December 1994

JUDGMENT

This is an appeal from the decision of the First Class Magistrate's Court at Suva given on the 5th of November 1993 on an application for a Writ of Habeas Corpus Subjiciendum filed in the Magistrate's Court at Suva on the 2nd of November 1993. By her application the Respondent required one Mrs. Anna Tagivakatini who appears to be an officer employed in the Department of Social Welfare to bring before the Magistrate's Court a child named Zeenat Bibi the daughter of the Respondent who had been detained by the Department of Social Welfare since the 20th of October 1993.

In support of the application for Habeas Corpus the Respondent had sworn an affidavit purportedly on the 2nd of October 1993 but which I have no doubt was meant to be 2nd of November 1993.

In it she deposed that on the 19th of October 1993 at about 7.00 p.m. a Police Officer came to her house at Nakasi and instructed her to bring her daughter Zeenat Bibi to Nausori Police Station at 8.00 a.m. on 20th of October 1993.

On the 20th of October the Respondent says that she took her daughter to the Police Station where she was further instructed by the Police Officer to accompany him to the Welfare Office at Nausori.

There they were called into the office of one Anna who alleged that the Respondent had sold her daughter to a doctor which both the Respondent and her daughter denied.

The Respondent deposed that Anna continued to make false allegations of immorality against her and told her that Zeenat would be taken into the custody of the Social Welfare Department. Both Zeenat and the Respondent vigorously protested but their pleas were ignored.

The Respondent states that when she left the office of the Social Welfare at Nausori her daughter freed herself and ran to her near the Nausori Market but the Police Constable, PC Narend, gave chase and got Zeenat and took her to the Police Station and then to the Welfare Office.

The Respondent denied that Zeenat Bibi was having any affair with any doctor. She deposed that her daughter was born on the 21st of October 1978 and was schooling at Rishikul High School and was currently doing her Fiji Junior Examination at Shreedhar School where she was previously schooling.

The Respondent claimed that not only was the allegation against her daughter false but also that without any Court Order her daughter had been unlawfully detained and taken into custody by the Welfare Office Nausori.

She therefore applied to the Magistrate's Court for a Writ of Habeas Corpus Subjiciendum directing Anna to show cause why her child should not be immediately released.

According to the record of the Magistrate's Court now before me, on the 5th of November 1993 counsel for the present Appellant applied to the Chief Magistrate in which he stated that it was alleged that there was evidence that the child Zeenat was "being sold".

Mr. Balram requested a hearing of the application.

It would then appear that the Chief Magistrate directed the matter to be heard by Syed Mukhtar Shah Esq. a Resident Magistrate on the 5th of November.

At the hearing counsel for the Respondent alleged that the child, Zeenat Bibi had been snatched arbitrarily and that the Appellant had failed to comply with Section 41 of the Juveniles Act Cap.56 and that the Appellant was obliged by that section to make an application to the Court for a Protection Order. As this had not been done the Appellant's custody of the child was unlawful and accordingly the Respondent was entitled to an order returning the child to her custody.

According to the record counsel for the Director of Social Welfare then addressed the Court. He began by saying that there were allegations that the child was virtually sold to one Dr. Sudeshra Pillay who was in charge of Wainibokasi Hospital. It was also alleged by counsel that Dr. Pillay was openly meeting the child and meeting food and other costs. Counsel alleged that the child's family used his personal car also and there was an allegation of having sexual intercourse with the child. For these reasons said counsel the Director felt the child had to be taken into the care of the Department.

Counsel said it was a sinister situation and that the Welfare Officer felt that the child's environment was not safe for her to return to her home.

He then submitted that further assessment was required in the case and the situation would be clearer once a medical report and further investigations were made. He is then quoted as saying "Form C.C.1 had to be filled". This was a reference to a form of that title which is annexed to the submissions made to me by counsel for the Appellant. It is in the form of a note or Minute addressed to the Director of Social Welfare concerning a juvenile received into the care of the Director under the Juveniles Act.

This document which appears to be signed by Mrs. Anna Tagivakatini on the 20th of October 1993 requests the Director to receive Zeenat Bibi into his care and proposes that she be placed temporarily with The Mahaffy Girls' Home, Domain Road, Suva. The circumstances necessitating the child's receipt into care are claimed to be that the child was alleged to be having a sexual relationship with the Medical Officer at the Wainibokasi Hospital, Dr. Sudeshra Pillay. It is also alleged that the doctor had earlier proposed to the mother of the child that he would like to marry her but that problems arose between the couple Pradeep Kumar Singh and his wife Nazima Bibi Khan causing the latter to remove all her personal belongings and her children and go to live in a $200.00 per month rented flat at Nakasi which was paid by Dr. Pillay. Mrs. Tagivakatini stated that it seemed from her investigation that the child had been used for financial purposes and had been seen riding alone with the doctor on a few occasions at night.

Counsel then continued that it was eventually proposed to seek an order under Section 41 of the Act and he then quoted Section 38(1)(b) and Section 38(4) of the Act.

Counsel then stated that Nazima Bibi Khan lived separately from her husband in a de facto relationship with one Suresh, who is presumably Dr. Pillay.

He then informed the Court that the Director of Social Welfare had powers under the Act to take the child into his care without complying with Section 41. He then appears to have requested that the Court give the Director further time, a period of three months was mentioned, to check the child's environment.

To these submissions counsel for the Respondent (mother) stated that if what counsel for the Appellant said was correct, then the Director could pick up a child at any time and take him or her into his custody.

Counsel then is quoted as saying that Section 38(2) "talks of seeking to other provisions". Therefore counsel submitted that Section 41 was very important and that once Section 41 had been complied with Section 47 had to be complied with. He therefore submitted that the child should be released immediately.

It is necessary now to set out the relevant parts of Sections 38, 40, 41 and 47 of the Juveniles Act because the learned Magistrate in reaching his decision made certain comments about Sections 38 and 41 which I cannot accept.

Section 38 is the only section appearing in Part VIII of the Act and the part is headed "Duty Of Director To Assume Care of Juveniles". Section 38(1) begins thus:

"Without prejudice to the provisions of Part IX where it appears to the Director with respect to any person appearing to be a juvenile -

(b) that his parent or guardian is for the time being or permanently prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation, maintenance or upbringing; and

(c) in either case the intervention of the Director under this section is necessary in the best interest and the welfare of the juvenile,

it shall be the duty of the Director to receive the juvenile into care under this section."

Sub-section 2 provides:

"Where the Director has received a juvenile into care under this section, it shall, subject to the other provisions of this Act, be his duty to keep the juvenile in care so long as the welfare of the juvenile appears to him to require it and the juvenile has not attained the age of seventeen years."

Sub-section 3 is not relevant.

Sub-section 4 states:

"Where the Director receives a juvenile into care under this section the Director shall, after a period of three months, if the period of care is to be extended, make application for a care order."

Under Section 40 a juvenile is in need of care, protection or control within the meaning of the Act if among other things:

"(b) his parent or guardian does not or is unable or unfit to exercise proper care and guardianship and he is either falling into bad association or is exposed to moral or physical danger, or is beyond control; or

(c) the lack of care, protection and guidance is likely to cause him unnecessary suffering or seriously to affect his health or proper development."

Section 41(1), (2) and (3) are as follows:

"(1) Any person having reasonable grounds for believing that a juvenile is in need of care, protection or control may make application to a magistrate to have him brought before a juvenile court and it shall be the duty of a welfare officer to bring before a juvenile court any juvenile who appears to be in need of care, protection or control unless he is satisfied that the taking of such proceedings is undesirable in the interests of such juvenile or that proceedings are about to be taken by some other person.

(2) Any welfare officer or police officer may, on behalf of the Director, take into care any juvenile who appears to be in need of care, protection or control and shall -

(a) forthwith notify the Director of such taking into care; and

(b) apply as soon as practicable to a juvenile court for an order under this section.

(3) In considering applications made under this section, the juvenile court shall -

(a) order investigations and medical examinations to be made in respect of the juvenile concerned and for the court to be furnished with reports on such investigations and examinations;

(b) remand the juvenile into the temporary care of the Director until the investigations and examinations are completed; and

(c) hear any objections to the application."

Under Section 47 where a juvenile is brought before a juvenile court in need of care, protection or control, the court shall allow his parent or guardian or their barrister and solicitor to be heard on any application made in relation to the juvenile if they so wish.

After hearing submissions the court then gave a brief ruling which is now under appeal. The learned Magistrate stated that all that had been said against the Respondent were mere allegations. No substantive proof had been put before the Court to justify the action of the Director of Social Welfare. The learned Magistrate stated that Section 41 had to be complied with and that failure to do so was fatal.

He then said that Section 38 was clearly subject to Section 41 and that the language of Section 41 was very clear and should be so interpreted. He then said that Section 38(2) clearly provided that that section was subject to other provisions of the Act and repeated that Section 41 had to be complied with. He stated that the Director had quite clearly incorrectly assumed powers under Section 38 which he did not possess and so the learned Magistrate ordered the child to be returned to the Respondent forthwith.

On the 5th of January 1994 the Appellant was given leave to appeal.

In his submissions to this Court counsel for the Appellant alleged that the learned Magistrate had failed to hear and assess the full facts of the case before giving his decision. He says that he pointed out to the Magistrate that the Welfare Officer who had taken the child under her care was present in the Court and should be heard but claims that the learned Magistrate denied the Welfare Officer the right to fully explain why she took the child under her care.

Counsel claims that at one point during the hearing in the lower court he held the file in his hand and pointed out and drew the learned Magistrate's attention to Form C.C.1 but he did not ask to see the form.

Unfortunately there is no reference in the Court Record to either of these claims by counsel and for this reason when coming to consider this matter I requested the learned Magistrate to swear an affidavit commenting on these allegations. I have now received an affidavit from Syed Mukhtar Shah sworn on the 24th of November 1994. In it he strongly denies the comment by counsel for the Appellant that he was denied the right to fully explain matters.

He recalls that counsel for the Appellant was given every opportunity to present his case as fully as he wished and Mr. Shah at no stage stopped him from doing so.

He claims that counsel for the Appellant is misleading this court when he states that he held the file in his hand and drew his attention to Form C.C.1 but that Mr. Shah did not have a closer look at it.

In these circumstances I have no option but to accept the Court Record as verified by the learned Magistrate.

In addition to Form C.C.1 counsel for the Appellant in his submission to this Court annexes a Background Report on Zeenat Bibi compiled again by Mrs. Tagivakatini. It is also dated the 20th of October 1993 and to a large extent amplifies the matters stated by Mrs. Tagivakatini in Form C.C.1. She states that Zeenat Bibi was born on 21st of October 1978 and is the eldest of the four legal issue of Pradeep Kumar Singh and the Respondent. It alleges that Zeenat's parents had been married for sixteen years and recently had developed marital problems the Respondent accusing her husband of being a habitual drunkard and the husband accusing the Respondent of having extra marital affairs. The report claims that while living at Wainibokasi Zeenat was being reported as having some relationship with Doctor Pillay.

The report then refers to the child who was then a Form 4 pupil at Rishikul High School and was about to sit for her Fiji Junior Examinations. She was doing quite well in her class and she come fourth in her mid-year examination. It states that Zeenat is very outspoken and quite mature for her age. The report then gives Mrs Tagivakatini's assessment of the child. It claims that she had been encouraged by her mother to flirt with the doctor who was in a better position to finance her family without considering any damage it would bring to the child's future. It claims that it was quite obvious that the relationship existed for some time and was brought to the Department of Social Welfare's knowledge only when the parents separated in September 1993.

The report concludes by recommending that the child be placed in the Mahaffy Girls' Home temporarily until a report was received from a Gynaecologist and states that there was a real risk sending the child back to her mother at that stage.

It is clear that the learned Magistrate relied heavily on his interpretation of Sections 38 and 41 of the Juveniles Act. He stated that Section 38 was clearly subject to Section 41 but in doing so I consider he fell into error.

The adjectival phrase 'subject to' is defined in the Macquarie Dictionary as 'being under dominion, rule or influence'

meaning in this context that Section 41 must first be complied with by the Director of Social Welfare before the provisions of Section 38 can be applied to a given case. I do not accept this because in my judgment the two sections are independent of each other. Indeed Section 38 begins by saying that "without prejudice to the provisions of Part IX" the Director is obliged to take a juvenile into his care where sub-paragraphs (a), (b) and (c) of sub-section (1) are involved. The expression "without prejudice", well known to lawyers, simply means without injury or damage to any existing right or claim.

Under Section 38 it is clear in my judgment that where the Director believes that a juvenile has been and remains abandoned by his parents or guardian, that a parent or guardian is temporarily or permanently prevented from any of the various reasons stated in sub-paragraph (b) from providing for the proper maintenance or upbringing of the child and that the intervention of the Director is necessary in the best interests of the welfare of the juvenile it shall be the duty of the Director to take the juvenile into his care.

Sub-section 2 requires the Director to keep the juvenile in his care as long as he considers the welfare of the child appears to require it and the child has not attained the age of seventeen years.

By contrast under Section 41 any person including a Welfare Officer or Police Officer may on behalf of the Director or himself apply to a Magistrate to have a juvenile brought before a Juvenile Court if the person has reasonable grounds for believing that the juvenile is in need of care, protection or control.

Sub-section 3 requires the Juvenile Court to order investigations and medical examinations to be made in respect of the child concerned and for the Court to be furnished with a report on such investigations and examinations.

There is nothing in my judgment which requires the Director to first comply with Section 41 before he avails himself of Section 38 in the circumstances stated. For these reasons I am satisfied that the learned Magistrate erred in holding that the Director had incorrectly assumed powers under Section 38 which he did not possess.

In my judgment, when according to the record counsel for the Department of Social Welfare mentioned Form C.C.1 and that further assessment was required, the learned Magistrate should have at least read Form C.C.1 and given the Director further time in which to complete his inquiries into the case.

There can be no doubt that counsel for the Director requested time to obtain a medical report on the child and bearing in mind that under Section 19 of the Act the duty of any court dealing with a juvenile brought before it is to have regard to his welfare and, if thought fit, take steps to remove the child from any undesirable surroundings, in my judgment the Magistrate should not have decided immediately as he did to return the child to her mother.

Serious allegations had been made by counsel for the Department including that the situation was "sinister" and that the Welfare Officer felt the environment was not safe for the child to return to her home. In my judgment having heard these allegations the learned Magistrate should have referred to Section 19 and at least adjourned the matter to enable the allegations to be investigated. For these reasons I consider the appeal succeeds and I order that the decision of the learned Magistrate be set aside.

The question then arises what should now be done in the further disposition of this case? I am conscious of the fact that the child has now been in the custody of her mother for over twelve months and that within approximately ten months she will have attained her seventeenth birthday and thus be outside the jurisdiction of the Department of Social Welfare. It is possible that the Department has been keeping the child under observation since the decision of the Magistrate's Court was given. Instead of remitting the matter to the Magistrate's Court for further consideration by that Court in the light of this judgment, in the exercise of the supervisory jurisdiction of this Court I propose to adjourn the matter for mention before me on the 31st of January 1995 at 9.30 a.m. when I shall require the Appellant to provide this Court with an up-to-date report on the present situation of the child. I will then make such orders as may be necessary to finalise this case.

Before concluding this judgment I should add that in a supplementary submission made by the Appellant on the 15th of June 1994 my attention was directed to a recent judgment of Mr. Justice Fatiaki in the case of Randy Ram Lakhan and Susan Allison Haldane Lakhan v. Nalini Lata, Nilesh & Others, and in particular pages 15 and 16 of the judgment. I have read the judgment and it seems to me the views I have expressed about the differences in the application of Sections 38 and 41 of the Juveniles Act are confirmed by His Lordship's remarks.

JOHN E. BYRNE
JUDGE

The following Legislation and case referred to in judgment:

Juveniles Act Cap. 56.
Unreported decision of Fatiaki J. of 22nd March 1994 - Randy Ram Lakhan and Susan Allison Haldane Lakhan v. Nalini Lata, Nilesh & Others, Civil Action No. HBC0585 of 1993.

No other authorities were referred to in argument.

HBA0004J.94S