K v T and KU; In re Custody Application [1985] SBMC 2; [1985-1986] SILR 49 (4 May 1985)

1985-1986 SILR 49

IN THE CENTRAL MAGISTRATES’ COURT OF SOLOMON ISLANDS
(HONIARA)

Central Civil Case No. 37 of 1985

K

v

T and KU

In re Custody Application

Magistrates’ Court (Central)
(Stanford-Smith P.M.)
Central Civil Case No. 37 of 1985

4 May Honiara 1985
Judgment 4 May 1985

Custody of child - principles governing - applicability of custom - proof of custom - Constitution - applicability of U.K. statute

Facts:

The plaintiff married A. and a bride price was paid in custom. A. died leaving seven children and the plaintiff pregnant with the eighth. T., the first defendant, took five of the children and the plaintiff kept the remaining two as well as the new baby after he was born and went to stay with K., the second defendant. Later she left and T., the first defendant took two of the children remaining with the plaintiff, whereupon the plaintiff made this claim for custody.

An expert on custom testified that bride price is payment for the bride and for the children and that if the husband dies the children would normally be taken by the husband’s line, however, much in custom is not fixed or rigid, but is a matter to be determined between the parties.

The defendants argued that since the Constitution provides that customary law is part of the law of Solomon Islands to the extent that it is consistent with the Constitution and Acts of the Solomon Islands Parliament, then "the interests of the child being paramount", a creation of a U.K. Act, does not apply in Solomon Islands and so customary law should govern.

Held:

1. While customary law is part of the law of Solomon Islands and must be applied in custody cases, the interests of the child remain of paramount importance. (Sututaona v. Hounihou (1982) SILR 12 followed).

2. "Parliament" is defined in s.144 of the Constitution as "the National Parliament of Solomon Islands", therefore "Acts of Parliament" standing alone means only Solomon Islands statutes and not UK statutes.

3. It does not follow, however, that the UK Guardianship of Infants Act 1925 is inapplicable and only customary law governs in custody cases. Until Parliament passes an Act under s.75 of the Constitution applying the customary law as to custody, the UK statute applicable thereto will continue to apply under Schedule 3 paragraph 1 of the Constitution.

4. Custom should be proved by evidence given by unbiased witnesses or extracted from authentic works on custom. (Sututaona followed).

5. There was little material difference between the parties, however, the children were young and the plaintiff was a good mother who showed courage and love in standing up to customary male dominance.

Accordingly, custody was granted to the plaintiff.

6. Obiter - Natural parents have legal custody of their children which can only be taken away by a court of law. Persons who take children away without the consent of the natural parents are liable to prosecution under the Penal Code.

7. Obiter - As a matter of practice, all children should be named in custody applications to avoid uncertainty and the need for further applications.

Cases considered:

Sututaona v. Hounihou (1982) SILR 12
In re B. (1983) SILR 223

Kenneth Brown for the Plaintiff
Andrew Radclyffe for the Defendants

Stanford - Smith PM: The facts of this case are simple and not in issue. K. married A., in church at Gizo and a bride price was paid in custom. In March 1982 A. died. At that time there were seven children of the family, details of which are set out in the report of Mrs Jio. Five of the children went with the Plaintiff’s deceased husband’s brother T., the first defendant. R, M. and the plaintiff, who was pregnant went to the Fishing Village, Honiara with K., the second defendant, the elder brother of T. and A. Within a matter of weeks AA was born to the plaintiff. K. and the children stayed with K. until November 1984 when she left to go to Foxwood with Ratu and his wife with whom she and her deceased husband had lived with in the West.

I have the benefit of very detailed and helpful reports compiled by Mrs Jio. I commend her reports on their content, and recommendations which are positive. She has given detailed information on the Foxwood, Fishing Village, and Mbokanavera households and conditions. Neither party has contested these aspects of her reports. All three locations could provide the children with security, other children, and very few material wants.

It is true to say that T., in financial terms, is in the better position but that is only one matter for the court to consider when deciding a custody case.

The children that are the subject of these proceedings are AA and M. In January 1985 the first defendant took these children away from the Plaintiff and hence her claim. On the 7th February 1985 this court, having heard evidence, made an interim custody order granting custody to the Plaintiff.

Apart from the reports no further evidence has been called by either party except that Ku. has given evidence that he paid a bride price of 6 red money and $100 and that K. had had one child when she married A. K. stated in her interview with Mrs Jio she was bought for only one tafuliae.

Mr Brown called Philip Solidia Funifaka as a custom expert. He is familiar with the Lau Custom, the custom of the parties involved in this dispute. He explained that any bride price has two undefined elements, one for the bride, and one for the children. In the event of the death of the husband the children would normally be taken by the husband’s line. This does not affect the mother’s right to see the children and she can remain with them with the husband’s line, or can return to her own family. The mother’s right to see the children can be terminated by a further payment made by the husband’s line. Whether the mother stays or goes the children still have rights to the husband’s property. If they stay they will have primary rights, if they go, they have secondary rights. He did say that much custom is a matter as between the parties and that it is not something that is fixed or rigid. The normal bride price would be 10 tafuliae, 1000 dolphin teeth and $100 but that the Church had affected this and it was halved or in the case of some religions was done away with. If the bride was pregnant then the price would come down also. One thing that became clear was that there was nothing absolutely clear and much depended upon the parties themselves.

The High Court decision involving the part played by custom in the Laws of the Solomon Islands was dealt with by Daly C.J., in Sututaona v. Houanihou (1982) SILR 12 in which it was held, inter alia, whilst custom was part of the law of the Solomon Islands and must be applied in custody cases the interests of the children remained of paramount importance. Further custom should be proved by evidence given by unbiased persons or extracted from authentic works on custom. This case was followed by J. Sanga, Magistrate in Re B. 1983 SILR 223 in which he stated:-

"I have been told that once the brideprice was paid the children of the marriage would become the property of the buyer if the marriage is broken down. No due regard would be given to the children’s welfare or health or age, I find. With respect, the custom rule is inconsistent with the words of Daly CJ, in the Sututaona case."

In the present case, Mr Brown has made a submission, which if I may try to put simply is this. Schedule 3 to the Constitution states that the principles and rules of common law and equity shall have effect as part of the laws of Solomon Islands save in so far as in their application to any particular matter they are inconsistent with customary law applying in respect of that matter. Further customary law shall have effect as part of the law of Solomon Islands only to the extent that it is consistent with the Constitution or an Act of Parliament. Act of Parliament being only Acts passed by the Solomon Islands Parliament and not including U.K. Acts. If this is accepted then in custody matters the ‘interests of the child being paramount’ is a creation of a U.K. Act and therefore does not apply. Customary law must be followed and is paramount.

The concept of the interest of the child being paramount in guardianship or custody cases has been with lawyers and courts in the U.K. for a long time. It has become a statutory creature. The Guardianship of Infants Act 1886 section 5 "the Court may.... make such order as it may think fit regarding the custody of such infant .... having regard to the welfare of the infant.....". It was in the Guardianship of Infants Act 1925 section 1 that the words used by all courts today first appeared "the Court ... shall regard the welfare of the infant as the first and paramount consideration."

It follows that as a statutory creation of the UK Parliament and of general application, under Schedule 3 paragraph 1, it SHALL have effect as part of the law of Solomon Islands. This section is Mandatory. Paragraph 2 is dealing with common law rules and principles, and I do not have to consider this section as the principle whilst once being common law has now been incorporated into statute. Paragraph 3(i) preserves customary law as part of the Law of Solomon Islands but qualifies that mandatory provision by stating that any customary law inconsistent with an Act of Parliament shall not be part of the law of the Solomon Islands. ‘Act of Parliament’ is not defined in section 144 although ‘Parliament’ is defined as the ‘National Parliament’ of the Solomon Islands established by this Constitution. The meaning must be then an Act of Parliament passed by the Solomon Islands Parliament by reading the whole schedule this is confirmed. Whenever Act of Parliament is used, if it is meant to include a UK Act, the words used are ‘Act of Parliament of the United Kingdom’ as in paragraph 1 and paragraph 2(2). It therefore must follow that Mr Brown’s narrow construction is the correct construction. This is further supported by s.75(i), Parliament shall make provision for the application of laws including customary law. S.75(2) in making those laws Parliament shall have particular regard to the customs, values, and aspirations of the people of the Solomon Islands, s.76 clearly states that until Parliament makes those laws Schedule 3 shall have effect. I therefore accept the first submission put by Mr Brown.

I cannot follow Mr Brown’s conclusion that customary law must be followed in this particular case. The meaning of paragraph 3 simply means that customary law is part of the laws of the Solomon Islands unless inconsistent with statute law passed after the 7th July 1978. As are principles and rules of common law and equity unless inconsistent with customary law under paragraph 2. Paragraph 1 also states that statutes passed in the UK and in force on the 1.1.1961 shall also have-effect as part of the Solomon Islands law. The only construction this court can place upon Schedule 3 of the Constitution is that UK statute law, Common Law, equity and customary law unless specifically excluded are all part of the Laws of the Solomon Islands. The courts of the Solomon Islands have applied these principles to custody cases and the High Court has endorsed the view that the interest of the child shall be paramount and not custom. As a subordinate court I must follow that decision until reversed or the law is changed by statute as envisaged by the draftsman in sections 75.

I now apply the law to the facts of this case. It is accepted that in material terms there is little to differentiate between the parties. These are still young children, who have spent all their lives with the mother. If I grant custody to the defendants they will be taken away from her for the first time. There is no question of the plaintiff being an inadequate mother, on the contrary, she has shown remarkable tenacity to keep her children and provide for them, in spite of financial hardship and strong male customary dominance. To take this case to court and challenge custom shows courage and deep love for her children. She is working to provide for them and the children are happy and supervised whilst she is away during the mornings.

The Court has no hesitation in granting custody of the two children of the family to their natural mother. The court appreciates the view taken by both defendants but it must be stressed that they had no right to take the children away from their natural mother without her consent. If they wished to do so they should have made an application for custody to the court under section 22 Magistrates’ Courts Act.

There appears to be understandable confusion in custody matters. The law at this time is clear. Natural parents have legal custody of their children which can only be taken away from them by a court of law. In the event of the death of one parent, the other living parent has legal custody.

If a testamentary guardian is appointed by the deceased parent then that person shall have joint custody with the remaining parent, the parent retaining care and control, and if there is any disagreement, application must be made to the court for the court to determine the dispute. Putative fathers have no rights to custody of the child unless they are granted custody by the court. Anyone else who wishes to interfere in the child’s affairs must either have the consent of the parents or make the child a ward of court, or make application for a guardianship order under section 22 of the Magistrates’ Courts Act. Until the law is changed or the High Court rules otherwise persons taking children away from natural parents without consent are open to prosecution under Part XXVI Penal Code.

In the report of Mrs Jio it is stated that the five other children of the plaintiff are happy and well cared for and fully integrated into T’s family. It is however said that T, because of these proceedings has intimated that he will stop the plaintiff seeing these five. These five children are not the subject of these proceedings and care and control of them was given by the plaintiff. Custody still lies in the plaintiff although if the children are happy. T. has the locus standi to make application for a guardianship order, however, the Plaintiff should always be entitled to exercise a right of access unless this proved disruptive for the children and was not in their interests. If access is denied she has recourse to the courts.

I am of opinion that as a matter of practice when such cases as this come before the court all the children should be named in the application so that the Court may make appropriate orders in respect of all the children thereby negating the need for further applications or uncertainty or alternatively the other party should make a cross application when served with the summons.

Ordered accordingly:

Custody of the children AA and M granted to the Plaintiff.