In re application by Social Welfare Department Labasa, on behalf of MAV (a child) [2013] FJMC 295; Case 01 LBS.2013 (8 August 2013)

IN THE FAMILY DIVISION OF THE MAGISTRATE'S COURT
AT LABASA

CASE NUMBER: 01/LBS/2013

BETWEEN:

THE SOCIAL WELFARE DEPARTMENT-LABASA
APPLICANT

AND:

M. A.V
CHILD

Appearances:
Ms. Ateca D Kaloumaira for Social Welfare Office, Labasa.
CHILD- Not present.

Details:
BEFORE : Resident Magistrate,Mr Tomasi Bainivalu
Date of Hearing Application : 07th August,2013.
Place of Hearing : Family Court, Labasa
Date of Judgment : 08th August, 2013.

___________________________________________________________________

JUDGMENT

The Application

1. This is an Application for Care Order (Form JA 5) filed by the Applicant on the 07th day of August 2013, on behalf of the child namely, M.A.V. born on the 09th September 2006.
   
2. The contents of the applications are as follows:-
   
   • The child namely, M.A.V. is a victim of sexual abuse and the alleged perpetrator is the head of the household.
     
   • Relatives reluctant to provide shelter and care for her and there are tensions in existence in the community.
     
   • The said child is not safe at her present address i.e. Nawasa settlement.
     

The Law

3. The said Care Order Application was made in pursuant to Part IX and section 40 (a) & (b) & 41(2)(b) of the Juveniles Act, Cap 56.
   

The Background Report

4. I have perused the full social welfare background report prepared by the said Welfare Officer, Ms Kaloumaira and must commend the said officer for the detailed comprehensive background outlined in the report, in particular the family situation, circumstances surrounding the case, views of the child, assessment and recommendation.
   

The Determination

5. The court had considered the application with extreme urgency and had heard the application as always, ex-parte.
   
6. The Welfare Officer told the court that the said child is currently placed under care at Lomani Au Children's Home in Savusavu and would rely in the report for an order sought.
   
7. The child born on the 09th September 2006 and today she is six (6) years and eleven (11) months of age.
   
8. I always emphasize this and I wish to do so again in this judgment, that the best interest of the child is always the primary consideration of the court.
   
9. Under Article 3(1) of the United Nations Convention on the Rights of the Child states; "In all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration"
   
10. "Interests" in relation to a child includes matters related to the care, welfare or development of the child. This is provided for in the interpretation section 42 of the Family Law Act No. 18 of 2003.
    
11. The term "welfare" in the context of the law of children has been described in the case of Howe v. Howe [1961] VicRp 45; (1961) 2 F.L.R. 2 at 4 as "a word of the widest meaning". It includes not only economic and physical welfare but moral welfare and the happiness of the child as well.
    
12. As Lindley L.J. put it over a century ago in the wardship case of Re McGrath (infants) [1892] UKLawRpCh 159; [1893] 1 Ch. 143 at 148:-
    

"The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded."

13. There is clear authority from the cases of Re Alford (an Infant) [1941] St. R. Qd. 213 at 217 that the happiness of a child is an obvious element of a child's welfare.
    

The Final Orders

14. This is a very sad situation and the court upon perusing the report filed herein, is satisfied that the said child is under suffering of great pain, physically and emotionally.
    
15. I am fully satisfied that the said child namely M.A.V. is very much in need of care, welfare, protection and/or control; and the Applicant had sought a relief from this court to do so in favor of the said child victim.
    
16. I therefore with no hesitations, considering the very best interest of the said child victim and her daily welfare and well being, I totally concur with the recommendations of the Welfare Officer and hereby grant a Permanent Care Order in favor of the child namely M.A.V. born on the 09/09/2006.
    
17. The said child namely M.A.V born on the 09/09/2006 to be placed at the Lomani Au Children's Home in Savusavu.
    
18. I further order that the Welfare officer to furnish this court with a progress Report of the child victim every 3 months from to date.
    
19. Review Date on the 08th day of November, 2013
    

Dated 08th day of August 2013

Tomasi Bainivalu (Mr)
Resident Magistrate
LABASA

Distributions
:-Applicant-Social Welfare Office, Labasa
:-The Supervisor, Lomani Au Home
:-File Copy.