VC v II [2013] WSDC 6 (18 September 2013)

DISTRICT COURT OF SAMOA
V.C v I.I & Anor [2013] WSDC 6

Case name:	V.C v I.I & Anor
Citation:	[2013] WSDC 6
Decision date:	18 September 2013
Parties:	VC (Applicant) on behalf of SVSG v II (First Respondent) & Un-named Natural Father (Second Respondent)
Hearing date(s):	14 June 2013
File number(s):
Jurisdiction:	FAMILY
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Tafaoimalo Leilani Tuala-Warren
On appeal from:
Order:
Representation:
Catchwords:	custody – guardianship order – custody order –
Words and phrases:	welfare of child – Samoa Victim Support Group (SVSG) –
Legislation cited:	Part I of the Infants Ordinance 1961 ss 3 &4;
	Part IV of the Infants Ordinance 1961 ss 15 & 16
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

SUPPRESSION ORDER

MISC-612/13

BETWEEN

V.C of Alafua, for and on behalf of SAMOA VICTIM SUPPORT GROUP INC, a duly incorporated society pursuant to the Incorporated Societies Ordinance 1952
Applicant

AND

I.I of Lotofaga, Safata, Mother
First Respondent

AND

Un-named Natural Father
Second Respondent

Counsel:
S Ponifasio

Date of Application: 14 June 2013

Judgment: 18 September 2013

ORAL JUDGMENT OF DCJ TAFAOIMALO L TUALA-WARREN
[Application for Guardianship - Infants Ordinance 1961]

INTRODUCTION

1. This case concerns applications under Part I of the Infants Ordinance 1961 brought by the President of the Samoa Victim Support Group Inc (SVSG), V.C which are warmly welcomed by the Court.
2. T.I (for publication purposes hereinafter referred to as Baby T) was born on 6 October 2012. She is the birth daughter of I.I and Un-named Natural Father. Their relationship was a fleeting one which is one possible explanation for the natural mother not recording his details on Baby T's birth certificate. The natural mother knows who the natural father is and has identified her link to him. It does not appear from the evidence that the natural father has had any involvement in Baby T's life whatsoever.
3. In February 2012 the natural mother agreed to a request in respect of Baby T from a man by the name of I.T (someone to whom she is not related) who had in mind adopting the baby out to some relatives in American Samoa. On 18 May 2013 Baby T was still in his care when Police became involved following a report that she was being abused by Mr I.T. He was subsequently charged with Actual Bodily Harm. This Court is aware he is now serving a term of imprisonment for that offending.
4. Baby T has been in the care of SVSG since 20 May 2013. They now seek the following orders:
   • (i) Appointment as Baby T's guardian;
   • (ii) Dispensing with the consent of the natural father.
5. The natural mother has given her consent to the applications. In her affidavit sworn 23 May 2013 she deposes that she is unable to care for Baby T as she and an older child are currently relying on an aunt for their survival. Accordingly, she has relinquished custody and care of her daughter to SVSG.

RELEVANT LAW

6. The starting point in terms of relevant law must be section 3 of the Infants Ordinance 1961 which states that:
   • Where in any proceeding in any Court the custody or upbringing of a child is in question the Court in deciding that question shall regard the welfare of the child as the first and paramount importance.
7. What is considered to be in the welfare of one child might not necessarily be so for another, but the fundamental need to belong, be safe and nurtured will be the same for all.
8. Section 4 then goes onto provide that:

(1) Either parent of a child may apply to the Court for an order regarding the custody and upbringing of a child and the right of access thereto of either parent and the Court may make such order in the premises as to it seems just.

(2) If it appears to the Court on an application of an adult person that the parents of a child are unfit to have custody and upbringing thereof the Court may appoint some other person to be its guardian and may make such order regarding its custody and upbringing and the right of access of either parent to such child as to the said Court seems fit.

9. The United Nations Convention on the Rights of the Child ("CRC") is an international human rights treaty that sets out the basic rights of children and the obligation of signatory governments to fulfil them. Samoa ratified the CRC on the 29 November 1994. This Court is particularly mindful of Article 9 (1) which states that:
   • 1. State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

GUARDIANSHIP AND CUSTODY

10. Although SVSG have only applied for a guardianship order it is implicit in Baby T's situation that a custody order is also necessary because as well as needing an adult to make decisions about her care she also needs someone to physically care for her. As in most situations guardianship and custody go hand in hand.
11. For all intents and purposes Baby T has been abandoned by her birth parents. Since I.T’s conviction and sentence no-one on either side has stepped forward to claim her. She was given away by her natural mother with seemingly no care for her safety and wellbeing. As shocking as that might seem to some, that is the reality of Baby T's little world.
12. The Court is easily satisfied on the balance of probabilities that:
    • (i) Both natural parents are unfit to have custody of Baby T and have abrogated their right to have any say in her upbringing;
    • (ii) Baby T's welfare and best interests are best met by SVSG being appointed as her guardian; and
    • (iii) It is also appropriate that SVSG continue to care for her for now.
13. However, Baby T's first birthday is fast approaching. Some attachments will have inevitably formed to her current caregivers. Whilst that provides an immediate solution that must be balanced against the long term consequences of her not being placed in a home for life as soon as possible. At the risk of stating the obvious the longer she remains in temporary care the harder it will be for her to form attachments in her permanent care.

OBSERVATIONS

14. Under the stewardship of V.C the SVSG is providing care for children and young people above and beyond the call of duty. They are to be commended for offering care to those most vulnerable.
15. As the Court understands it however, this is the first application of its kind made by this non-government organisation despite there being many other children with SVSG in similar circumstances. Further applications are strongly encouraged to provide an appropriate legal framework for all concerned.
16. Part IV of the Infants Ordinance 1961 provides for destitute and delinquent children. Section 16 states that:
    • If it appears to a Court on its own motion in the course of any proceedings for an offence, or at any time on the application of a constable, that any child is living in a place of ill repute or is a neglected, indigent or delinquent child, or is not under proper control, or is living in an environment detrimental to its physical or moral well-being, the Court make an order for the committal of that child to the care of a Child Welfare Officer.
17. Section 15 gives power to the Minister of Police and Prisons to appoint 'fit and proper persons' to be Child Welfare Officers for Samoa. The Court is not aware that anyone at SVSG has ever been designated as such. Had that occurred it would have filled the legal lacuna that currently exists for the children placed there. Accordingly, the Police are encouraged to review their practices.

RESULT

18. With due regard to the welfare and best interests of Baby T, and the findings of this Court the following orders are now made:
    • (i) Service on the Second Respondent, Un-named natural father is dispensed with;
    • (ii) V.C, on behalf of the SVSG is appointed guardian of Baby T;
    • (iii) An interim order is made granting V.C custody of Baby T, on the condition that placement is not to be changed without further order of Court;
    • (iv) This matter is to be reviewed at a Judicial Conference (30 minutes) in 4 weeks;
    • (v) At that Judicial Conference, V.C is to provide a plan to the Court as to how and when this child is to be transitioned to a permanent home, what access if any it is proposed she have with her birth family, and any other issues impacting on the welfare of Baby T;
    • (vi) Thereafter the Court intends to regularly review the situation for Baby T until permanent placement has been secured.
      

..............................................................

Judge Tafaoimalo L Tuala-Warren