WATSON-MORGAN v. T. GRANT, H. GRANT and G. GRANT 01-August-1990
[1990–91 CILR 81]
WATSON-MORGAN v. T. GRANT, H. GRANT and G. GRANT
COURT OF APPEAL (Zacca, P., Georges and Henry, JJ. A.): August 1st, 1990
Family Law—children—custody—no order possible under Guardianship and Custody of Children Law (Revised), s.7 for custody of illegitimate child on application by natural or putative father
Family Law—children—custody—grandparents not parties to whom custody may be granted
    The first respondent, the natural father of an illegitimate child, and his parents sought an order in the Grand Court granting them the custody of the child, as against the appellant, the child’s mother.
    The child had lived with the first respondent’s parents since she was three months old. She was four years old at the time of the hearing of the appeal. The appellant had originally been unable to support her but, in view of the fact that she now held a steady, well-paid job and had recently married, she wished her daughter to live with her and accordingly removed her from her grandparents’ home.
    On an application under the Guardianship and Custody of Children Law (Revised), s.7(1) and (3), the Grand Court (Harre, J.) granted custody of the child to all three respondents. In considering what was in the best interests of the child, the court took into consideration that she seemed equally comfortable in both homes. It noted that the appellant and her husband were able to provide a proper home environment for the child but weighed this against the unsettling influences of the mother’s own early family background and the unstable life she had led up to the birth of the child. Expert evidence, including reports from the social worker assigned to the appellant and the child’s school teacher, was led to show that living with her mother had apparently not caused the child any emotional trauma as she continued to behave normally in school. The respondents claimed that there was some risk of sexual abuse to the child in her new home but no substantial evidence was led to support this claim. The court considered that the child’s circumstances could change if her father married but regarded this as a circumstance justifying a review of the case at such time as it occurred.
    The appellant appealed.
    Held, allowing the appeal:
    (1)    It was evident that a distinction was consistently made in Cayman legislation between legitimate and illegitimate children and similarly between a legitimate and a natural or putative father. In some cases the
1990–91 CILR 82
word “parent” was expressly or by necessary implication to be regarded as including a putative father, e.g. s.16 of the Guardianship and Custody of Children Law (Revised) requires that such a construction be given to ss. 12–15 of the Law. But where, as with s.7 of the Law, there was an absence of such a definitional provision, the words “father” and “parent” must take their meaning from the context of the specific provision, and in the present instance this appeared to contemplate a husband and wife situation. Moreover, s.7(1) and (3) were expressed in the same terms as the original Jamaican Law, which had been interpreted so as to preclude a putative father making an application for the custody of an illegitimate child. Accordingly, s.7 was not intended to apply to the custody of an illegitimate child and the court had no jurisdiction under it to entertain an application by the putative father for such custody. The appeal would therefore be allowed (per Zacca, P., page 84, line 39 – page 85, line 38; page 86, lines 18–26; page 96, line 36 – page 97, line 4; Henry, J.A. concurring; Georges, J.A. dissenting, page 101, line 19 – page 102, line 9; page 102, lines 23–36; page 103, line 40 – page 104, line 23).
    (2)    In any event, even if the court had had jurisdiction to entertain the respondents’ application for custody of the child, on the merits of the case it could not succeed. Since the case had been decided essentially on written evidence the Court of Appeal was in as good a position as the trial court to evaluate the evidence and concluded that insufficient weight had been given to relevant considerations. In deciding what would best serve the welfare of the child, the Grand Court had concentrated on the difficulties which had formerly existed in the mother’s household rather than on the situation as it then existed (which was considerably improved) and the child’s observed reactions to that environment. Insufficient weight had also been given to the professional evidence supporting the view that the child had apparently not suffered emotional trauma as a result of leaving her grandparents’ home and the expressed fear in the judgment of risk to the child in the long term had not been specifically related to any evidence of risks amounting to a prima facie case requiring an answer. Additionally, the court had inappropriately and incorrectly treated the grandparents as parties in whose favour an order for custody could have been made and had not given due weight to the more serious risk posed by the likelihood of the father’s marrying and moving the child to a new and unknown environment. On these grounds alone the appeal would have been allowed (page 97, lines 4–9; page 107, line 33 – page 108, line 8; page 108, line 26 – page 109, line 3; page 109, line 13 – page 110, line 15; page 111, line 24 – page 112, line 2).
Cases cited:
  (1)    C. T. (an infant), Re, [1956] 3 All E.R. 500, dicta of Roxburgh, J. applied.
  (2)    Clarke v. Carey (1971), 12 J.L.R. 637, dicta of Graham-Perkins, J.A. considered.
1990–91 CILR 83
  (3)    Crespy, Re (1970), 21 D.L.R. (3d) 166.
  (4)    F. (A Minor) (Wardship: Appeal), In re, [1976] Fam. 238.
  (5)    Finlayson v. Matthews (1971), 12 J.L.R. 401, applied.
  (6)    G. v. G., [1985] 1 W.L.R. 647; [1985] 2 All E.R. 225, dicta of Lord Fraser of Tullybelton applied.
  (7)    Galloway v. Galloway, [1956] A.C. 299, considered.
  (8)    Lewis, Re (1970), 15 W.I.R. 520, dicta of Douglas, J. applied.
  (9)    Minister of Home Affairs v. Fisher, [1980] A.C. 319, distinguished.
(10)    Osenton (Charles) & Co. v. Johnson, [1942] A.C. 130; [1941] 2 All E.R. 245, dicta of Viscount Simon, L.C. applied.
(11)    White v. Barrett, [1973] 3 W.W.R. 293, considered.
(12)    White v. Springle (1966), 10 W.I.R. 152, dicta of Wooding, C.J. considered.
(13)    Woolwich Union Guardians v. Fulham Guardians, [1906] 2 K.B. 240, dicta of Vaughan Williams, L.J. considered.
Legislation construed:
Guardianship and Custody of Children Law (Revised) (Law 19 of 1975, revised 1977), s.7(1) and (3): The relevant terms of this section are set out at page 84, lines 8–17; lines 21–27.
s.16: The relevant terms of this section are set out at page 85, lines 4–7.
N.W. Hill, Q.C. and Mrs. E. Maierhofer for the appellant;
Ms. C. Bridges for the respondents.

      ZACCA, P.: On June 1st, 1990 this appeal was allowed, the 
25  order of Harre, J. set aside and costs awarded to the appellant to 
  be agreed or taxed. On March 30th and 31st, 1990 the court had 
  heard submissions with respect to the merit of the appeal and 
  reserved judgment. The court recalled the parties on June 1st, 
  1990 when it required the parties to make submissions on the 
30  question as to whether the trial judge had jurisdiction to grant 
  custody to the father of an illegitimate child. 
      An application had been made to Harre, J. by the father 
  Garston Todd Grant and his parents Garston Gilbert Grant and 
  Hedy Nadine Grant for the custody of Monique Watson. 
35  Monique Watson was born on October 29th, 1985. She is the 
  daughter of Ann Elaine Watson-Morgan. With some reluctance, 
  Garston Todd Grant acknowledged that he was the father. 
  Harre, J. made an order granting custody to the father and grand- 
  parents. At the hearing on June 1st, 1990 it was conceded that 
40  custody of Monique could not be granted to the grand-parents. 
      The facts of the case are set out in the judgment of Georges, 
1990–91 CILR 84

  J.A. and it is unnecessary to repeat them. The questions for 
  determination in this appeal are (a) whether, upon the applica- 
  tion of the father, an order for the custody of an illegitimate child 
  may be made under s.7(1) of the Guardianship and Custody of 
5  Children Law (Revised), and (b) if so, whether the order of 
  Harre, J. granting custody to the father was properly made. 
      Section 7(1) provides as follows: 
          “The Court may, upon the application of the father or 
      mother of a child, make such order as it may think fit 
10      regarding the custody of such child and the right of access 
      thereto of either parent, having regard to the welfare of the 
      child, and to the conduct of the parents, and to the wishes as 
      well of the mother as of the father, and may alter, vary, or 
      discharge such order on the application of either parent, or, 
15      after the death of either parent, of any guardian under this 
      Law; and in every case may make such order respecting costs 
      as it may think just.” 
  Section 7(3) makes provision for the maintenance of the child by 
  the father where the mother has been granted custody of the 
20  child. That sub-section provides as follows: 
          “Where the Court under subsection (1) makes an order 
      giving the custody of the child to the mother, then, whether 
      or not the mother is then residing with the father, the Court 
      may further order that the father shall pay to the mother 
25      towards the maintenance of the child such weekly or other 
      periodical sum as the Court, having regard to the means of 
      the father, may think reasonable.” 
  Section 7(4) states what is the effect of an order under sub-ss. (1) 
  and (3) if the mother resides with the father. The sub-section 
30  provides as follows: 
          “No such order, whether for custody or maintenance, shall 
      be enforceable, and no liability thereunder shall accrue, 
      while the mother resides with the father and any order shall 
      cease to have effect if for a period of three months after it is 
35      made the mother of the child continues to reside with the 
      father.” 
  This section would seem to contemplate a husband and wife 
  situation. 
      Does the word “father” in s.7 include the natural father of an 
40  illegitimate child or must it be construed as meaning the 
  legitimate father? Sections 12–15 of the Guardianship and 
1990–91 CILR 85

  Custody of Children Law (Revised) makes certain provisions 
  with respect to the “parent” of a child. Section 16 defines 
  “parent” of a child in this way: 
          “For the purposes of sections 12 to 15 (inclusive) the 
5      expression— 
          ‘parent’ of a child includes any person at law liable to 
          maintain such child or entitled to its custody. . . . ” 
  It appears, therefore, that a man who has been adjudged to be 
  the putative father of an illegitimate child under s.5(1) of the 
10  Affiliation Law, 1973 would be a person at law liable to maintain 
  such a child and would be regarded as a “parent” under s.16 of 
  the Guardianship and Custody of Children Law (Revised). 
  Sections 12–15 would therefore include the father of an illegitimate 
  child as a parent if he has been adjudged by the court to be the 
15  putative father. The question to be asked, however, is whether 
  the definition of parent in s.16 would have been necessary if 
  “father” in s.7 included the father or parent of an illegitimate 
  child. 
      Under the Guardianship and Custody of Children Law 
20  (Revised) the court is empowered under s.7(3) to make an order 
  for maintenance of the child. The Affiliation Law, 1973 s.5(2) 
  also makes provision for the court to make an order for 
  maintenance of an illegitimate child against the man adjudged to 
  be the putative father. It is interesting to note that under s.2 of 
25  the Adoption of Children Law (Revised) “relative” includes the 
  father of an illegitimate child. The section also provides that 
  “father” in relation to an illegitimate child means the natural 
  father. The Maintenance Law (Revised) also makes reference to 
  legitimate and illegitimate children. The Caymanian Protection 
30  Law, 1984, s.14(2)(b) refers to a “child.” The Caymanian 
  Protection (Amendment) Law, 1987 amended s.14(2)(b) by 
  including the word “legitimate” before “child.” Section 18 of the 
  Law was also amended by the provision of a new sub-s.6(A) 
  making provision for an illegitimate child to apply to the Board 
35  for the grant of Caymanian status. Again, the Maintenance Law 
  (Revised) in s.3 makes reference to legitimate and illegitimate 
  children. The Cayman legislature therefore makes a distinction 
  between legitimate and illegitimate children. 
      In the English Guardianship of Minors Act 1971 provision is 
40  made for the court to make an order for custody and maintenance 
  of a minor on the application of a father or mother (see s.9(1)). 
1990–91 CILR 86

  The Act specifically makes provision in s.14(1) that s.9(1) of the 
  Act shall apply to a minor who is illegitimate. Under the Child 
  Care Act 1980, s.87(1) the following definitions appear: 
      “ ‘child’ means a person under the age of eighteen years and 
5          any person who has attained that age and is the subject of 
          a care order . . . 
      ‘parent,’ in relation to a child who is illegitimate, means his 
          mother, to the exclusion of his father . . . 
      ‘relative,’ in relation to a child, means a grand-parent, 
10          brother, sister, uncle or aunt, whether of the full blood, of 
          the half blood, or by affinity, and includes, where the child 
          is illegitimate, the father of the child. . . . ” 
  Ms. Cherry Bridges for the respondent makes the point that 
  under the Juveniles Law, 1975 no distinction is made between 
15  legitimate and illegitimate children. In this Law the definition of a 
  “child” means a juvenile under the age of 14 years. Therefore 
  every juvenile is subject to the provisions of this Law. 
      In Finlayson v. Matthews (5) an application was made by the 
  mother of an illegitimate child for the custody and maintenance 
20  of the child. The application was made under s.7(1) and (3) of the 
  Guardianship and Custody of Children Law 1956 of Jamaica. It 
  was held that the term “father” does not include a putative father. 
  The wording of s.7(1) and (3) of the Cayman Guardianship and 
  Custody of Children Law (Revised) is in the exact terms of the 
25  Jamaican Law. Section 7 also follows in terms the language of s.5 
  of the Guardianship of Infants Act 1886 of England. In his 
  judgment, Henriques, P. stated (12 J.L.R. at 404): 
          “I am fortified in the view I have formed from a close 
      reading and consideration of the provisions of the section in 
30      question itself, s.7(1) of the Guardianship and Custody of 
      Children Law 1956. I am fully satisfied from such a study that 
      its whole purpose and intent was to deal with legitimate 
      children. I am therefore of the view that the learned Master 
      came to a correct conclusion when he dismissed the 
35      summons for want of jurisdiction and I would accordingly 
      dismiss this appeal with costs to the respondent.” 
  Fox, J.A. said (ibid., at 405–406): 
          “The answer to the problem in this appeal lies therefore 
      not in the definition of the word child, but in the substantive 
40      provisions of the law itself. In every relevant respect, the 
      provisions of our law are essentially the same as those in the 
1990–91 CILR 87

      English legislation. The English decisions are therefore in 
      point. In Re C.T. (an infant) . . . ROXBURGH, J., held that 
      the court had no jurisdiction, under provisions in the English 
      Acts which are similar to those in s.7(1) of our law, to 
5      entertain an application by a putative father for custody of 
      his two illegitimate children, because the term ‘father’ within 
      the meaning of the English provisions meant a de jure father 
      and did not include a putative father. The case did not 
      actually decide that the mother of an illegitimate child was 
10      not entitled to apply for custody of or maintenance for the 
      child under the English Acts, but that aspect of the matter 
      was considered and the difficulties which the learned judge 
      felt in this regard were indicated. The restrictions imposed in 
      proceedings under the Bastardy law for an affiliation order 
15      which a single woman who has a bastard child was entitled to 
      take, were examined in detail, and the circumstance that 
      none of these restrictions applied in proceedings under the 
      Guardianship of Infants Act was observed. The difficulties 
      were summarised as follows ([1956] 3 All E.R. at p.507): 
20              ‘Under the Bastardy Acts only a single woman, as 
          defined either by the Acts or by judicial interpretation, 
          can obtain an order for maintenance in respect of an 
          illegitimate child—there is no limitation at all of that 
          sort in the Guardianship of Infants Acts. Secondly, the 
25          application for an affiliation order and consequential 
          maintenance has to be made during a period which is 
          limited—there is no limitation in the Guardianship of 
          Infants Acts. Thirdly, evidence of paternity has to be 
          corroborated even in the face of admission—there is 
30          nothing of that sort in the Guardianship of Infants Acts. 
          Lastly (and this, perhaps, is the least important) an 
          appeal lies, not to the High Court as under the 
          Guardianship of Infants Acts, but to the quarter 
          sessions. It is, therefore, almost impossible to believe 
35          that the Guardianship of Infants Acts were intended to 
          embrace illegitimate children.’ 
      The last difficulty stated by ROXBURGH, J., does not occur in 
      Jamaica where appeals from orders made under both laws 
      lies [sic] to the Court of Appeal, but this does not affect the 
40      relevance and weight of the other difficulties, and cannot 
      detract from the validity of the conclusion stated at the end 
1990–91 CILR 88

      of the passage cited above. In the light of this statement of 
      the position, I feel obliged to hold that the word ‘father’ in 
      s.7(3) of our law must be construed as meaning legitimate 
      father. The word does not extend to a putative father and 
5      proceedings under the law to compel such a father to 
      maintain a child are therefore not competent.” 
  Smith, J.A. stated (ibid., at 407–408): 
          “In Re C. T. (an infant) . . . , the admitted natural father of 
      two illegitimate children applied under s.5 of the Guardian- 
10      ship of Infants Act 1886, as amended, for an order granting 
      him custody of the children. On appeal from a dismissal of 
      the application by justices, ROXBURGH, J., held that the 
      word ‘father’ in s.5, as amended by s.16 of the Administration 
      of Justice Act, 1928, must be construed as meaning 
15      legitimate father and did not extend to the natural father of 
      an illegitimate child; and that neither the justices nor himself 
      had jurisdiction to make the order sought. ROXBURGH, J., 
      followed the reasoning of VISCOUNT SIMONDS in Galloway v. 
      Galloway . . . in holding that, prima facie, the words ‘father’ 
20      and ‘mother’ in s.5, as amended, mean lawful father and 
      lawful mother respectively. 
          In Galloway v. Galloway . . . VISCOUNT SIMONDS said 
      ([1956] A.C. at pp. 310, 311): 
                ‘First, as to the prevailing law. It was in 1857 (as it is 
25          today) a cardinal rule applicable to all written instru- 
          ments, wills, deeds, or Acts of Parliament that “child” 
          prima facie means lawful child and “parent”, lawful 
          parent. The common law of England did not con- 
          template illegitimacy and, shutting its eyes to the facts of 
30          life, described an illegitimate child as “filius nullius”. 
          This prima facie meaning may in certain circumstances 
          be displaced and a wider meaning given to the 
          words. . . .’ ” 
  Again, Smith, J.A. stated (ibid., at 408): 
35          “The cardinal rule referred to by VISCOUNT SIMONDS in the 
      passage in Galloway v. Galloway . . . quoted above applies 
      equally in Jamaica as it is a rule of the common law. ‘Child’ 
      in our statutes prima facie means lawful child. This may be 
      demonstrated by reference to two statutes in which that word 
40      appears. In the Fatal Accidents Law, Cap. 125 [J.], which 
      came into force in 1845, it was enacted in s.4 that every 
1990–91 CILR 89

      action brought by virtue of s.3 ‘shall be for the benefit of the 
      wife, husband, parent and child of the person whose death 
      shall have been so caused.’ The Legislature, obviously 
      recognising the limited meaning of ‘child’ in this section, in 
5      1947 amended the law by adding a provision (see s.2(2)) that 
      for the purpose of the law ‘a person shall be deemed to be 
      the parent or child of the deceased person notwithstanding 
      that he was only related to him illegitimately.’ Similarly, in 
      the Intestates’ Estates and Property Charges Law, Cap. 166 
10      [J.], the word ‘child’ appears in Part I of the law which deals 
      with the distribution of the estates of intestates (see s.5). 
      ‘Child’ there clearly does not include an illegitimate child, as 
      Part II of the Law is entitled ‘Illegitimacy and Succession’ 
      and enables an illegitimate child to succeed to his mother’s 
15      estate and a mother to succeed to her illegitimate child’s 
      estate. 
          In the construction of statutes, there is a presumption 
      against changes in the common law. ‘It is presumed that the 
      Legislature does not intend to make any change in the 
20      existing law beyond that which is expressly stated in or 
      follows by necessary implication from, the language of the 
      statute in question’ (see Maxwell, Interpretation of Statutes 
      (12th Edn.), p.116).” 
  Finally, Smith, J.A. said (ibid., at 409): 
25          “ROXBURGH, J., gave cogent reasons in Re C.T. (an 
      infant) . . . for holding that the prima facie meaning of 
      ‘father’ in the Act of 1886 and in the Guardianship of Infants 
      Act 1925, had not been displaced. The same reasoning may 
      be applied to ‘father’ in Law No. 69 of 1956. There is 
30      certainly nothing in that law to show an intention to extend 
      the meaning to include the father of an illegitimate child. I 
      am prepared to follow ROXBURGH, J., and to hold that 
      ‘father’ in Law 69 of 1956 means the father of a legitimate 
      child.” 
35  In Clarke v. Carey (2) the Jamaican Court of Appeal in the course 
  of argument stated that it was bound by the decision in Finlayson 
  v. Matthews. Following these decisions the Status of Children Act 
  1976 came into operation in Jamaica in November 1976. Section 
  2(1) defines “child” as including a child born out of wedlock. 
40      In Re Lewis (8) the High Court of Barbados, on an application 
  by the putative father for custody of a child under ss. 7 and 10(7) 
1990–91 CILR 90

  of the Infants Act 1958, held that the court had no jurisdiction to 
  make an order for custody of an illegitimate child under the 
  Infants Act 1958. Douglas, J. said (15 W.I.R. at 521–522): 
          “Under the common law of England, and at common law 
5      in Barbados, the father of an illegitimate child, so long as the 
      child remains illegitimate, is not generally recognised for 
      civil purposes. Whether this accords with the facts of life in 
      the context of Barbados is not for me to decide. The law is 
      that the father of an illegitimate child is under no obligation 
10      to provide for the child in the absence of an affiliation order, 
      unless he has adopted the child de facto, or obtained an 
      adoption order, and an illegitimate child is described as filius 
      nullius. 
          Under the provisions of the Legitimacy Act 1959 of the 
15      United Kingdom the right is given by s.3 to the putative 
      father to apply for the custody of the child under the United 
      Kingdom Guardianship of Infants Act. Section 3(1) of the 
      1959 Act reads: 
                ‘Subject to the provisions of this section, the following 
20          enactments relating to the custody of infants, that is to 
          say— 
           (a) section five of the Guardianship of Infants Act 1886 
                (which enables the court to make, on the applica- 
                tion of the mother of an infant, orders regarding the 
25                custody of the infant and the right of access thereto 
                of either parent); and . . 
           (b) section sixteen of the Administration of Justice Act 
                1928 (which enables the court to make orders under 
                the said section five on the application of the father 
30                of an infant), 
          shall apply in relation to an infant who is illegitimate as 
          they apply in relation to an infant who is legitimate, and 
          reference in those enactments, and in any other enact- 
          ment so far as it relates to proceedings under the said 
35          section five, to the father or mother or parent of an 
          infant shall be construed accordingly.’ 
          There is no similar legislation in Barbados extending the 
      ambit of the Infants Act 1958, No. 19 [B.]. This is all the 
      more regrettable because the Affiliation Proceedings Act 
40      1963, No. 29 [B.], at s.7, conferred on magistrates power to 
      make orders for the legal custody of illegitimate children and 
1990–91 CILR 91

      went on to provide that when the magistrate is satisfied that 
      the mother is not a fit and proper person to have custody of 
      the child, he can by order appoint some person other than 
      the mother—including the putative father—to have legal 
5      custody. It strikes me that if it is the intention of Parliament 
      to invest the putative father with powers based on his 
      recognition as a parent by blood of his child, then the Infants 
      Act 1958, No. 19 [B.], should be extended to cover all 
      children, once it is felt that in the case of illegitimate 
10      children, as in the case of legitimate children, the welfare of 
      the child should be the first and paramount consideration. 
          For the reasons I have given I have come to the conclusion 
      that I have no jurisdiction to make an order for the custody 
      of an illegitimate child under the Infants Act 1958. . . . ” 
15      In Re C. T. (an infant) (1) an application was made to a court of 
  summary jurisdiction by the putative father of two illegitimate 
  children for custody of the children under the Guardianship of 
  Infants Act 1886 and 1925 (as amended by the Administration of 
  Justice Act 1928). On appeal it was held by a Judge of the 
20  Chancery Division that there was no jurisdiction to entertain such 
  an application because the term “father” within the meaning of 
  the Acts meant a de jure father and did not include a putative 
  father. In his judgment Roxburgh, J. stated ([1956] 3 All E.R. at 
  507–508): 
25          “Therefore, to summarise the difficulties, they are, briefly, 
      as follows. Under the Bastardy Acts only a single woman, as 
      defined either by the Acts or by judicial interpretation, can 
      obtain an order for maintenance in respect of an illegitimate 
      child—there is no limitation at all of that sort in the 
30      Guardianship of Infants Acts. Secondly, the application for 
      an affiliation order and consequential maintenance has to be 
      made during a period which is limited—there is no limitation 
      in the Guardianship of Infants Acts. Thirdly, evidence of 
      paternity has to be corroborated even in the face of 
35      admission—there is nothing of that sort in the Guardianship 
      of Infants Acts. Lastly (and this, perhaps, is the least 
      important) an appeal lies, not to the High Court as under the 
      Guardianship of Infants Acts, but to quarter sessions. It is, 
      therefore, almost impossible to believe that the Guardian- 
40      ship of Infants Acts were intended to embrace illegitimate 
      children.” 
1990–91 CILR 92

      Counsel for the respondent relied on the case of Minister of 
  Home Affairs v. Fisher (9) for the proposition that “child” should 
  be interpreted to include an illegitimate child. The facts of that 
  case were that the Jamaican mother of four illegitimate children, 
5  all born in Jamaica, married a Bermudian in 1972. The mother 
  and the children took up residence with the husband in Bermuda 
  in 1975. The children were under 18. The Minister of Labour and 
  Immigration ordered the children to leave Bermuda. An applica- 
  tion to the Supreme Court to quash the order and to declare that 
10  the children were deemed to belong to Bermuda was refused on 
  the ground that the children were illegitimate. On appeal, the 
  Court of Appeal by a majority held that the children were to be 
  deemed to belong to Bermuda by virtue of s.11(5)(d) of the 
  Constitution. On appeal by the Minister of Home Affairs, the 
15  Privy Council held that the mother and father were entitled to a 
  declaration that the children were deemed to belong to Bermuda. 
      It was also held that a constitutional instrument should not 
  necessarily be construed in the manner and according to the rules 
  which applied to Acts of Parliament and therefore the pre- 
20  sumption, applicable to statutes concerning property succession 
  and citizenship, that “child” meant legitimate child did not apply. 
  Section 11(5) of the Constitution of Bermuda provides: 
          “For the purposes of this section, a person shall be deemed to 
      belong to Bermuda if that person— 
25                (a) possesses Bermudian status . . . 
                (c) is the wife of a person to whom either of the 
                    foregoing paragraphs of this subsection applies not 
                    living apart from such person . . . ; or 
                (d) is under the age of eighteen years and is the child, 
30                    stepchild or child adopted in a manner recognized 
                    by law of a person to whom any of the foregoing 
                    paragraphs of this subsection applies.” 
  Lord Wilberforce, delivering the judgment of the Privy Council, 
  stated ([1980] A.C. at 326–327): 
35      “Thus fundamental rights and freedoms are stated as the 
      right of every individual, and section 11 is a provision 
      intended to afford protection to these rights and freedoms, 
      subject to proper limitations. Section 11 states the general 
      rule of freedom of movement, which is to include the right to 
40      enter and to reside in any part of Bermuda, but it allows, as a 
      permissible derogation from this right, restrictions in the 
1990–91 CILR 93

      case of any person who does not ‘belong to Bermuda.’ 
      Section 11(5) then defines the classes of persons who ‘belong 
      to Bermuda.’ Among these is ‘the child . . . of a person to 
      whom any of the foregoing paragraphs of this subsection 
5      applies.’ One such person is the wife of a person who 
      possesses Bermudian status. What is meant, in this context, 
      by the word ‘child.’? 
          The meaning to be given to the word ‘child’ in Acts of 
      Parliament has been the subject of consideration in many 
10      reported cases. One finds in them a number of general 
      statements: 
          ‘The law does not contemplate illegitimacy. The proper 
          description of a legitimate child is “child.” ’ Reg. v. 
          Inhabitants of Totley (1845) 7 Q.B. 596, 600 per Lord 
15          Denman C.J. 
                ‘ . . . the word “child” in the Act means legitimate 
          child.’ Dickinson v. North-Eastern Railway Co. (1863) 33 
          L.J. Ex. 91 per Pollock C.B. (similarly in 2 H. & C. 735). 
          Then, as society and social legislation become more 
20      varied, qualifications come to be made: 
          ‘It is of course true that that is only prima facie the 
          meaning to be given to the word, and that a wider 
          meaning may, in the case of some statutes, be given to 
          it, so as to include an illegitimate child or illegitimate 
25          children, where that meaning is more consonant with 
          the object of the statute.’ Woolwich Union v. Fulham 
          Union [1906] 2 K.B. 240, 246–247, per Vaughan 
          Williams L.J. 
                ‘ . . . I do not think it necessary to refer to the 
30          authorities which establish beyond question that prima 
          facie the words “child” or “children” in an Act of 
          Parliament mean a legitimate child or legitimate chil- 
          dren, and that illegitimate children can only be included 
          by express words or necessary implication from the 
35          context.’ Galloway v. Galloway [1956] A.C. 299, 323 
          per Lord Tucker.” 
  Again, Lord Wilberforce said (ibid., at 329–330): 
          “When therefore it becomes necessary to interpret ‘the 
      subsequent provisions of Chapter I—in this case section 
40      11—the question must inevitably be asked whether the 
      appellants’ premise, fundamental to their argument, that 
1990–91 CILR 94

      these provisions are to be construed in the manner and 
      according to the rules which apply to Acts of Parliament, is 
      sound. In their Lordships’ view there are two possible, 
      answers to this. The first would be to say that, recognising 
5      the status of the Constitution as, in effect, an Act of 
      Parliament, there is room for interpreting it with less rigidity, 
      and greater generosity, than other Acts, such as those which 
      are concerned with property, or succession; or citizenship. 
      On the particular question this would require the court to 
10      accept as a starting point the general presumption that ‘child’ 
      means ‘legitimate child’ but to recognise that this pre- 
      sumption may be more easily displaced. The second would 
      be more radical: it would be to treat a constitutional 
      instrument such as this as sui generis, calling for principles of 
15      interpretation of its own, suitable to its character as already 
      described, without necessary acceptance of all the pre- 
      sumptions that are relevant to legislation of private law. 
          It is possible that, as regards the question now for 
      decision, either method would lead to the same result. But 
20      their Lordships prefer the second. This is in no way to say 
      that there are no rules of law which should apply to the 
      interpretation of a Constitution. A Constitution is a legal 
      instrument giving rise, amongst other things, to individual 
      rights capable of enforcement in a court of law. Respect 
25      must be paid to the language which has been used and to the 
      traditions and usages which have given meaning to that 
      language. It is quite consistent with this, and with the 
      recognition that rules of interpretation may apply, to take as 
      a point of departure for the process of interpretation a 
30      recognition of the character and origin of the instrument, 
      and to be guided by the principle of giving full recognition 
      and effect to those fundamental rights and freedoms with a 
      statement of which the Constitution commences. In their 
      Lordships’ opinion this must mean approaching the question 
35      what is meant by ‘child’ with an open mind. Prima facie, the 
      stated rights and freedoms are those of ‘every person in 
      Bermuda.’ This generality underlies the whole of Chapter I 
      which, by contrast with the Bermuda Immigration and 
      Protection Act 1956, contains no reference to legitimacy, or 
40      illegitimacy, anywhere in its provisions. When one is 
      considering the permissible limitations upon those rights in 
1990–91 CILR 95

      the public interest, the right question to ask is whether there 
      is any reason to suppose that in this context, exceptionally, 
      matters of birth, in the particular society of which Bermuda 
      consists, are regarded as relevant. 
5          Section 11 opens with a general declaration of the right of 
      freedom of movement, including that of residence, entry and 
      immunity from expulsion. These rights may be limited 
      [section 11(2)(d)] in the case of persons ‘not [belonging] to 
      Bermuda’—a test not identical with that of citizenship, but a 
10      social test. Then, among those deemed to belong to 
      Bermuda are (section 11(5)) a person who 
          (a) possesses Bermudian status; . . . (c) is the wife of 
                [such a person]; or (d) is under the age of 18 years and 
                is the child, stepchild or child adopted in a manner 
15                recognised by law of a person to whom any of the 
                foregoing paragraphs of this subsection applies.’ 
      In their Lordships’ opinion, paragraph (d) in its context 
      amounts to clear recognition of the unity of the family as a 
      group and acceptance of the principle that young children 
20      should not be separated from a group which as a whole 
      belongs to Bermuda. This would be fully in line with article 8 
      of the European Convention on Human Rights and Fun- 
      damental Freedoms (respect for family life), decisions on 
      which have recognised the family unit and the right to 
25      protection of illegitimate children. Moreover the draftsman 
      of the Constitution must have had in mind (a) the United 
      Nations’ Declaration of the Rights of the Child adopted by 
      resolution (1386 (xiv)) on November 29, 1959, which 
      contains the words in principle 6: 
30          ‘[the child] shall, wherever possible, grow up in the care 
          and under the responsibility of his parents . . . a child of 
          tender years shall not, save in exceptional circum- 
          stances, be separated from his mother.’ 
      and (b) article 24 of the International Covenant on Civil and 
35      Political Rights 1966 which guarantees protection to every 
      child without any discrimination as to birth. Though these 
      instruments at the date of the Constitution had no legal 
      force, they can certainly not be disregarded as influences 
      upon legislative policy. 
40          Their Lordships consider that the force of these argu- 
      ments, based purely upon the Constitution itself, is such as to 
1990–91 CILR 96

      compel the conclusion that ‘child’ bears an unrestricted 
      meaning. In theory, the Constitution might contain express 
      words forcing a contrary conclusion, though given the 
      manner in which Constitutions of this style were enacted and 
5      adopted, the possibility seems remote. But, in fact, their 
      Lordships consider it most unlikely that the draftsman being 
      aware, as he must have been, of the provisions of the 
      Bermuda Immigration and Protection Act 1956, could have 
      intended a limitation of the word ‘child’ to legitimate 
10      children. In the first place, if he had intended this limitation, 
      he must surely, following the example of the Act of 1956, 
      have felt it necessary to spell it out. In the second place the 
      concept of ‘belonging’ of itself suggests the inclusion of a 
      wider class; yet if the appellants are right, those described 
15      under section 11(5)(d) of the Constitution would largely 
      coincide with persons having, or deemed to have, Ber- 
      mudian status. Thirdly, under section 100 of the Act of 1956, 
      these illegitimate children would enjoy immunity from 
      deportation until they were 21. It seems most unlikely that 
20      such children should not be treated as ‘belonging to 
      Bermuda’ or that a stricter test—in respect.of their right to 
      freedom of movement—should be imposed on such children 
      under section 11 of the Constitution than is imposed under 
      the earlier Act.” 
25      This case can clearly be distinguished from the instant case. It 
  involved the interpretation of a constitutional instrument. Lord 
  Wilberforce pointed out that the section was one of the sections 
  dealing with the fundamental rights and freedom of an individual. 
  Reference was also made to the unity of the family. The mother 
30  of the children belonged to Bermuda by reason of her marriage to 
  her Bermudian husband. It was recognized that the children 
  should not be separated from a group which belonged to 
  Bermuda. In the instant case there is no question of the child 
  being with both the father and mother. The child will be with 
35  either the mother or the father. 
      The Fisher case is not authority for saying that in every Act of 
  Parliament the word “child” should be interpreted as including 
  legitimate and illegitimate children. In my view, the cases cited 
  above which have held that “child” does not include an 
40  “illegitimate child” were correctly decided. I would hold that 
  s.7(1) of the Guardianship and Custody of Children Law 
1990–91 CILR 97

  (Revised) was not intended to embrace illegitimate children. The 
  appeal should therefore be allowed on the ground that the court 
  had no jurisdiction to entertain an application by the putative 
  father for the custody of his illegitimate child. Even assuming that 
5  the court had jurisdiction, I would also allow the appeal for the 
  reasons stated by Georges, J.A. in his assessment and 
  conclusions on the facts of the case. I have had an opportunity 
  of reading the draft judgment of Georges, J.A. on the merits of 
  the case and I agree with his findings and decision on the facts. 
       
      HENRY, J.A. concurred with the judgment of ZACCA, P. 
       
      GEORGES, J.A.: On October 29th, 1985 the appellant Anne 
  Elaine Watson-Morgan (Andalyn) gave birth to a daughter 
15  Monique Watson (Monique). She was then aged 22. She had 
  given birth to a son—Quincy—some time before when she was 
  17. At one time (presumably during her pregnancy) she thought 
  that Quincy’s father was the father of the child she was about to 
  bear. After Monique was born she was certain that the 
20  respondent Garston Todd Grant (Todd) was the father and she so 
  informed him. He did not accept responsibility. 
      Andalyn’s financial and domestic circumstances were such that 
  she felt unable properly to take care of Monique. A few weeks 
  after her birth she began to leave her for part of the day with the 
25  respondent Hedy Nadine Grant (Mrs. Grant) who is Todd’s 
  mother and who lived with her husband, Todd’s father, the third 
  respondent, Garston Gilbert Grant (Mr. Grant). All the parties 
  lived on Cayman Brae where Monique was born. Gradually, the 
  periods Monique remained with Mr. and Mrs. Grant increased 
30  until by the age of three months she remained with them 
  continuously and Andalyn visited her there from time to time. 
      Andalyn had herself been raised by her grandparents and had 
  called her mother by her name. Her background was not 
  completely normal. She had an uncle whom she described as 
35  mentally retarded. She was charged and pleaded guilty to having 
  caused him grievous bodily harm. She explained that she had 
  struck him with a machete in circumstances in which she believed 
  that that was the only way to prevent him from attacking her aged 
  grandmother and her mother. The sentence imposed on her—a 
40  suspended sentence and a period of probation—supports the 
  inference that her account of the incident was accepted. 
1990–91 CILR 98

      Monique remained with Mr. and Mrs. Grant until June 17th, 
  1989. On that date Andalyn took her on what was expected to be 
  a routine weekend visit and did not return her. This precipitated 
  an application by Todd and Mr. and Mrs. Grant for an order that 
5  custody of Monique be granted to them. In his original affidavit 
  dated September 14th, 1989, in support of the application, Todd, 
  while not denying that Monique was his child, did not 
  unequivocally admit that she was. He asserted that no blood tests 
  to establish paternity had ever been carried out. In a further 
10  affidavit dated October 2nd, 1989, he stated that he was prepared 
  to admit that he was the father of Monique with the result that he 
  would have locus to make the application under the Guardianship 
  and Custody of Children Law (Revised). 
      No objection appears on the record to the standing of any of 
15  the applicants to make the application. The lack of such standing 
  was not made a ground of appeal. In the course of the hearing 
  before this court the issue was mentioned. There was no 
  application for leave to amend by adding a ground raising it. At 
  the conclusion of the hearing judgment was reserved. During that 
20  period it was realized that in two cases—Finlayson v. Matthews 
  (5) and Clarke v. Carey (2)—the Jamaica Court of Appeal had 
  held, construing similar legislation, that there was no power in 
  the Supreme Court to hear an application by the father of an 
  illegitimate child for custody of that child under the Guardianship 
25  and Custody of Children Law 1969 of Jamaica. The court was as a 
  consequence reconvened to hear argument on the issue. 
      At the crux of the problem is the approach to be taken to the 
  interpretation of the words “child,” “father” and “mother” in the 
  Guardianship and Custody of Children Law (Revised). The 
30  historical inheritance is undisputed. In Galloway v. Galloway (7) 
  Viscount Simonds stated ([1956] A.C. at 310–311): 
      “It was in 1857 (as it is today) a cardinal rule applicable to all 
      written instruments, wills, deeds or Acts of Parliament that 
      ‘child’ prima facie means lawful child and ‘parent’ lawful 
35      parent. The common law of England did not contemplate 
      illegitimacy and, shutting its eyes to the facts of life, 
      described an illegitimate child as ‘Alius nullius.’ This prima 
      facie meaning may in certain circumstances be displaced and 
      a wider meaning given to the words. . . . ” 
40  This formulation can reasonably be said to imply that the 
  circumstances do not easily arise. 
1990–91 CILR 99

      This approach is adopted by Wooding, C.J. speaking for the 
  Court of Appeal of Trinidad and Tobago in the interpretation of 
  the words “mother” and “father” in White v. Springle (12) where 
  he stated (10 W.I.R. at 155): 
5      “But since the titles ‘mother’ and ‘father’ belong prima facie 
      only to those who have become so in the manner known to 
      and approved by the law and the consequent meanings of 
      those terms when used in a statute are not to be departed 
      from unless a compelling reason for so doing can be found in 
10      the statute itself, that Ordinance (like its English counter- 
      parts . . . ) must be construed as referring to lawful parents 
      only. . . . ” 
  Although the prima facie meaning of the words “child,” “mother” 
  and “father” has always been held to refer to those who fell 
15  within the category of legitimate relationships, there has always 
  been much disagreement as to the weight to be given to that 
  prima facie meaning. 
      In Woolwich Union Guardians v. Fulham Guardians (13) 
  Vaughan Williams, L.J. propounded the following test ([1906] 2 
20  K.B. at 246–247): 
      “It is of course true that that is only prima facie the meaning 
      to be given to the word, and that a wider meaning may, in 
      the case of some statutes, be given to it, so as to include an 
      illegitimate child or illegitimate children, where that mean- 
25      ing is more consonant with the object of the statute.” 
  In Galloway v. Galloway (7) ([1956] A.C. at 318) Lord Radcliffe 
  took— 
      “ . . . leave to doubt whether the test which meaning is ‘more 
      consonant’ with the object of the statute ‘is in all respects a 
30      satisfactory guide to decision for I think it a very vague one:’ 
      but, on the other hand, it seems to me uncontroversial to say 
      that the prima facie meaning will be displaced if the context 
      in which the word ‘child’ appears evidently requires it to 
      embrace a wider category than that of legitimate children.” 
35  Lord Tucker was perhaps even more restrictive. He stated (ibid., 
  at 323): 
      “ . . . [P]rima facie the words ‘child’ or ‘children’ in an Act of 
      Parliament mean a legitimate child or legitimate children, 
      and that illegitimate children can only be included by express 
40      words or necessary implication from the context.” 
  Lord Oaksey on the other hand stated (ibid., at 316): 
1990–91 CILR 100

      “It is true that the word ‘children’ has acquired the prima 
      facie meaning of legitimate children in statutes, wills and 
      deeds, because it has been considered that the legislature, 
      testators and settlors usually intend, in using the simple word 
5      ‘children,’ to refer to legitimate children. But circumstances 
      can displace this rule. . . . ” 
  Thereafter he quoted with apparent approval the test pro- 
  pounded by Vaughan Williams, L.J. which Lord Radcliffe had 
  ventured to doubt. 
10      It is thus apparent that the formulation of a test for determining 
  the weight to be given to the prima facie meaning of the words 
  “child,” “father” and “mother” could not be said to have been 
  well settled in 1956. The subject was authoritatively reviewed in 
  Minister of Home Affairs v. Fisher (9), a judgment of the Privy 
15  Council on appeal from Bermuda. While it is true that the narrow 
  base of the decision could be said to be confined to the 
  interpretation of constitutions the judgment did discuss the 
  proper approach to be used in interpreting such words in any 
  statute. The diverging approaches of Vaughan Williams, L. J. and 
20  Lord Tucker were specifically cited and their Lordships were 
  invited to settle the uncertainty. They did so, stating ([1980] A.C. 
  at 327): 
          “Their Lordships approach this line of argument in two 
      stages. In the first place they consider that it involves too 
25      great a degree of rigidity to place all Acts of Parliament in 
      one single class or upon the same level. Acts of Parliament, 
      particularly those involving the use of the word ‘child’ or 
      ‘children,’ differ greatly in their nature and subject matter. 
      Leaving aside those Acts which use the word ‘child’ apart 
30      from any relationship to anyone (in which cases ‘child’ means 
      simply a young person) there is a great difference between 
      Acts concerned with succession to property, with settlement 
      for the purposes of the Poor Law, with nationality, or with 
      family matters, such as custody of children.” 
35      After noting that Viscount Simonds may to some extent 
  (having regard to the cases concerning the administration of the 
  Poor Law) gone too far in describing the common law of England 
  as not contemplating illegitimacy and shutting its eyes to the facts 
  of life, the judgment continues (ibid., at 327–328): 
40      “Matrimonial law in England has increasingly diminished the 
      separation of illegitimate from legitimate children by adop- 
1990–91 CILR 101

      tion of the concept ‘child of the family.’ Indeed the 
      Matrimonial Causes Act 1974, as well as recognizing the 
      ‘child of the family,’ contains a definition of ‘child,’ in 
      relation to one or both of the parties to a marriage, as 
5      including ‘an illegitimate or adopted child of that party or, as 
      the case may be, of both parties’: section 1(1). This is, it is 
      true, by way of express statutory enactment, but the fact that 
      the separation is, for many purposes, less sharp than it was in 
      the last century enables and requires the courts to consider, 
10      in each context in which the distinction between legitimate 
      and illegitimate is sought to be made, whether, in that 
      context, policy requires its recognition.” [Emphasis sup- 
      plied.] 
  In an area such as succession the policy of maintaining the 
15  distinction is firmly rooted in the common law and clear 
  indications will be needed to displace it, though as Lord 
  Wilberforce has pointed out there is a movement even in that 
  context to a biological interpretation. 
      The trend towards the broader interpretation in family matters 
20  is evident outside Great Britain and is aptly illustrated by a 
  decision of the Supreme Court of Alberta in White v. Barrett (11). 
  The enactment under consideration in that case provided that the 
  Supreme Court or the Surrogate Court of the county or district in 
  which the infant resides, upon the application of the father or the 
25  mother of an infant, who may apply by a next friend, may make 
  such order as the court sees fit regarding the custody of the infant 
  and the right of access thereto of either parent, having regard to 
  the welfare of the infant and the conduct of the parents and to the 
  wishes as well of the mother as of the father. McDermid, J.A., 
30  quoting the Ontario Court of Appeal in Re Crespy (3) ((21 
  D.L.R. (3d) at 167) stated ([1973] 3 W.W.R. at 298): 
          “ ‘While the fact of being the natural father may prove to 
      be of much importance in deciding on the merits of an 
      application for access by the father as to whether or not such 
35      access . . . will be granted, it is not, in our opinion, an 
      answer to the making of the application and to the right of a 
      natural father to have his application heard upon the 
      merits.’ ” 
      The rule which requires that the words “child,” “father” and 
40  “mother” should bear the prima facie meaning of a legitimate 
  relationship is a rule of common law and as has happened in many 
1990–91 CILR 102

  other areas it has over time been adapted by the courts to deal 
  with changing social circumstances. The cases cited in argument 
  do not, in my view, debar this court from applying the approach 
  adumbrated in Minister of Home Affairs v. Fisher (9) to the 
5  interpretation of the Law. The decision of Roxburgh, J. in Re 
  C.T. (an infant) (1), though deserving of great respect, is clearly 
  rooted in the older approach. The case was decided shortly after 
  that of Galloway v. Galloway (7) and he relied particularly on the 
  speech of Viscount Simonds who dissented. 
10      The case of Re C. T. (an infant) was much relied on in Finlayson 
  v. Matthews (5). Henriques, P. (who was a dissentient) cited the 
  passage of Viscount Simonds stating that (12 J.L.R. at 403) the 
  common law of England did not contemplate illegitimacy, 
  precisely the passage which Lord Wilberforce had noted went too 
15  far in that it did not pay regard to the administration of the Poor 
  Law. Fox, J. A. relied on the decision of Roxburgh, J. in coming 
  to the decision of the majority. Clarke v. Carey (2) in effect 
  followed Finlayson v. Matthews. In White v. Springle (12), 
  Wooding, C.J. also used the restrictive formulation that “a 
20  compelling reason” had to be found to justify departure from the 
  prima facie presumption of legitimate relationships. This approach 
  did not find favour in Minister of Home Affairs v. Fisher. 
      None of these decisions is binding on this court. They are 
  clearly persuasive authority and merit great respect. Their force is 
25  in my opinion diminished by the developments in the common 
  law rule of interpretation which I have attempted to describe. 
  Had there been authority binding on this court as to the 
  interpretation of the Law there would have been no option but to 
  follow such authority leaving it to some higher court to apply, if it 
30  so wished, the more recent formulation of the rule of interpreta- 
  tion. In the absence of such authority it appears that this court is 
  free to approach the interpretation of the Law applying principles 
  approved by the Privy Council. 
      Considering the context of the Law, I can see nothing which 
35  requires a distinction to be made between legitimate children and 
  children born out of wedlock. In Finlayson v. Matthews (5) and 
  Clarke v. Carey (2) the Court of Appeal in Jamaica has already 
  held that a similar act permits a mother to make an application 
  for custody of her illegitimate child. In his dissenting judgment in 
40  Clarke v. Carey, Graham-Perkins, J.A. develops in detail and 
  with logical rigour the difficulties created by the attempt to endow 
1990–91 CILR 103

  the mother of the illegitimate child with rights under the Jamaica 
  Act while denying such rights to the father. He pointed out (12 
  J.L.R. at 648): 
      “If ‘father’ means, as I too hold, the father of a legitimate 
5      child then it would appear to do extreme violence to 
      language to hold that when s.7(1) [the same section in the 
      Act] speaks of ‘the mother or father of a child’ it is 
      permissible to attribute to ‘mother’ an unrestricted meaning. 
      The subsection, in unmistakably clear terms, envisages 
10      either the one or the other of two parents of a child. Is it 
      possible that a child can be the legitimate child of its father 
      and, at the same time, be the illegitimate child of its mother? 
      Again, if the prima facie meaning of ‘child’ is not to be taken 
      to be displaced, must it not inevitably follow that ‘mother’ 
15      can have no sensible meaning other than that of mother of a 
      legitimate child? Or again, when s.7(2) [the same section in 
      the Act] says ‘notwithstanding that the mother of the child is 
      then residing with the father of the child’, is it not very 
      obviously treating with [sic] the mother and father of the 
20      same child? If this is so, and if ‘father’ means the father of a 
      legitimate child, then it would seem quite impossible, in my 
      respectful view, to argue against the obvious that that 
      legitimate child cannot have as its mother a woman who is 
      not the lawful wife of its father.” 
25  While the result is, in my view, unacceptable, the logic appears 
  compelling. The difficulties are resolved by holding that in the 
  context of the Law policy does not require the recognition of the 
  distinction between legitimate and illegitimate children. Once 
  that distinction disappears there is no need to differentiate 
30  between parents of such children. An illegitimate child is no 
  longer “filius nullius”—the child of no one. 
      In the course of argument there was reference to the problems 
  which may arise in identifying the father of a child born out of 
  wedlock. This is purely an issue of fact arising independently of 
35  the interpretation of the Law. It does not frequently, if at all, 
  happen in the Caribbean that there are claims by men to paternity 
  of children which are disputed by the mothers of the children. 
  Where the person said to be the father disputes paternity he will 
  not be making any claims under the Law. 
40      Where paternity has been established by court order or 
  admitted, the capacity of the father to file an application under 
1990–91 CILR 104

  the Law is of benefit to the child since it provides an additional 
  channel by which the court can be apprised of the need to inquire 
  into the desirability of intervention in the interest of the welfare 
  of the child. The interpretation should be viewed as conferring 
5  benefits on the child rather than as conferring rights on the father. 
  The privileges of custody or access will not in any event be 
  granted to him unless the court so orders. 
      Not unnaturally, much emphasis was laid on the ascertainment 
  of the intention of the legislature as the object of interpretation 
10  and it was urged that a draftsman using the word “child” or 
  “father” or “mother” should be taken to mean a legitimate child 
  since the state of the law then would have justified such a 
  conclusion. I have sought to show that the law was even then by 
  no means free of difficulty. The fact is that the language of the 
15  Law (in the Jamaican original) has led to sharp controversy as to, 
  whether or not a mother has the right to apply. Intention can only 
  be gleaned from the language of the Law read in the context of 
  the Law as a whole and applying the rules of interpretation 
  derived from the latest authorities available at the date the 
20  decision is to be made. Accordingly, I conclude that Monique’s 
  father, Todd, does have standing to make this application. The 
  grandparents, Mr. and Mrs. Todd, have no standing. Only 
  fathers and mothers may apply under s.7(1) of the Law. 
      After having filed the affidavit dated October 2nd, 1989 the 
25  respondents applied for an order for interim custody pending the 
  final determination of the summons. This was heard on a date 
  which cannot accurately be fixed from a perusal of the record but 
  was quite likely to have been in the week commencing September 
  25th, 1989. Andalyn had not yet filed affidavits. She appeared 
30  and gave evidence. She was at that time married to a Jamaican, 
  Adolphus Morgan, who had then lived in Cayman Brac for two 
  years. They lived in a rented house with two bedrooms, living 
  room, dining room, kitchen and bathroom. The dining room had 
  been converted into a third bedroom. Andalyn’s son Quincy lived 
35  with them. Andalyn worked for $1,100 per month. 
      The trial judge ordered that Monique remain with Andalyn 
  until the issues were finally decided. Access by Todd and the 
  Grants was suspended. It was the judge’s view that further 
  disturbing Monique pending the hearing would have been 
40  undesirable. The basis of the application by Todd and Mr. and 
  Mrs. Grant was that Andalyn had abandoned Monique at the age 
1990–91 CILR 105

  of three months. In her affidavit Mrs. Grant alleged that she had 
  a bad temper as evidenced by her conviction for grievous bodily 
  harm. There were also allegations that Quincy, Andalyn’s son, 
  was extremely disturbed and had on one occasion molested 
5  Monique. 
      The trial judge correctly held that Andalyn had not “aban- 
  doned” Monique in the sense in which that word had been used in 
  s.14 of the Law. No question, therefore, arose of the court’s 
  refusing to make an order for delivery of the child to her unless 
10  satisfied that having regard to the welfare of the child she was a fit 
  person to have custody. In any event Monique was already in her 
  care and custody at the date of the hearing of the application. The 
  judge commented on Andalyn’s background—the fact that her 
  father was unknown, that there were mental problems in her 
15  family and that she had had her first illegitimate child at 17. He 
  concluded that the lenient sentence imposed on her for the 
  conviction for grievous bodily harm did indicate that her 
  explanation of the incident had been accepted but nonetheless it 
  was evidence of a troubled family background. 
20      There were allegations of sexual abuse in an affidavit filed by 
  Mrs. Grant on October 3rd, 1989. She stated that while she was 
  showering and shampooing Monique after a swim, Monique had 
  told her out of the blue that “Andalyn touches me there,” 
  pointing to her private parts. To this Mrs. Grant had replied 
25  “Don’t you mean Andalyn washes you there?” Monique’s answer 
  had been: “No. She touches here with her finger. She loves to do 
  that.” A week later, in reply to a question from Mrs. Grant, 
  Monique had repeated the statement and had added: “Andalyn 
  told me not to talk anything about the house.” There was no 
30  specific denial in Andalyn’s affidavit filed on October 20th, 1989 
  that she had ever played with Monique’s private parts. Mr. Hill 
  stated that his instructions were that this affidavit had never been 
  served on Andalyn’s attorneys. Ms. Bridges was positive that it 
  had been served though she was unable to produce an ack- 
35  nowledgement of service. In his judgment the trial judge stated: 
      “I can make no finding as to what gave rise to Monique’s 
      remarks to Mrs. Grant which she has recorded in her 
      affidavit dated October 3rd, 1989. I do, however, accept her 
      evidence of what those remarks were as being truthful.” 
40  Having made that finding the trial judge continued: 
      “On all the evidence, I have concluded that in awarding 
1990–91 CILR 106

      custody of Monique to Andalyn I would be exposing her not 
      only to a continuance of the emotional trauma associated 
      with the sudden disruption of her existing emotional rela- 
      tionships which has taken place, but also to an appreciable 
5      element of risk in the longer term.” 
  He then ordered that custody of Monique be granted to Todd 
  jointly with Mr. and Mrs. Grant, fixed the date on which she was 
  to be collected, ordered that she remain in her present school 
  until the end of the current term, school placement thereafter to 
10  be at her father’s discretion, and provided that “reasonable non- 
  residential access” be afforded to her mother. 
      The finding that awarding the custody of Monique to Andalyn 
  would be exposing her to a continuance of emotional trauma 
  associated with the sudden disruption of her existing emotional 
15  relationships was based on reports filed by two psychiatrists—Dr. 
  Charles Hasselback and Dr. F. Lallee—and a social report 
  prepared by a social worker, Maureen Jervis-Brooks. The 
  psychiatrists did not agree and neither attended to be cross- 
  examined. 
20      Dr. Hasselback’s report dated October 25th, 1989 noted that 
  he had interviewed Monique, Mr. and Mrs. Grant, Todd and 
  Andalyn. He then stated: 
      “In a professional interview, it was apparent that Monique is 
      unhappy and troubled. Neither natural parent has shown 
25      until recently (approx. six months) an emotional commit- 
      ment as a parent to Monique. The importance of Monique’s 
      emotional attachment to Hedy and Garston Grant, who in 
      every important aspect have been her parents, cannot be 
      over-estimated. To disrupt this stable loving relationship by 
30      separating her from the Grants, whom she considers her 
      parents, will result in incalculable emotional suffering and 
      damage to Monique.” 
      The report of the social worker is dated October 19th, 1989. 
  She had an opportunity of observing Monique at Andalyn’s home 
35  in the family relationship existing there. She reported: 
      “Monique has been observed with her mother (whom she 
      calls Mommy) on several occasions and there was no 
      evidence of unhappiness of dissatisfaction. Mother reports 
      that on some occasions when she returns from weekend visits 
40      to the Grants, she cries and will not eat. Andalyn says she 
      usually calms her by reading stories for her. Andalyn has 
1990–91 CILR 107

      expressed concern that Monique is being given negative 
      impressions of her (Andalyn) by the Grants.” 
  Among the persons she interviewed was Monique’s school 
  teacher. She reported on that interview: 
5      “It was understood that Monique had no problems in 
      adjusting to school life and there were definitely no 
      indications that she was an unhappy child. She said, 
      however, that Monique sometimes behaves in extremes, one 
      minute hugging another child and the next minute hitting. 
10      She believed that this could be due to her not being 
      accustomed to playing with other children or to her 
      adjustment to the recent changes in her life.” 
  Dr. Lallee, who reported on November 5th, 1989, stated: 
      “During the interview Monique appeared quite relaxed and 
15      friendly. In both settings she appeared comfortable but 
      warmer to her grandfather and her father whom she had not 
      seen for some time. In both situations, both of her parents 
      did not put restraints on her behaviour and their admonitions 
      and pleadings did not help.” 
20  In his summary he stated: 
      “Despite her separation experiences, Monique did not 
      appear anxious or unhappy and showed no overt evidence of 
      emotional disability. In the presence of her father and 
      grandfather she was more active and attention-seeking in 
25      behaviour. With her mother and stepfather she. appeared to 
      be in control of herself and occupied herself by drawing, etc. 
      Both parents were unable to control her behaviour.” 
      There was thus conflicting evidence as to Monique’s emotional 
  condition among observers who would have seen her over the 
30  period October 19th to November 5th, 1989. The trial judge does 
  not seem to have resolved this issue. He concentrated on the 
  apparent difference between the psychiatrists as to the effect of 
  separation on the emotional stability of young children. The fact 
  was that the social worker and Dr. Lallee had carried out their 
35  observations at a period when Monique had been separated from 
  Mr. and Mrs. Grant and they were concluding that she showed no 
  signs of having suffered as a result. Of particular significance was 
  the fact that Monique’s behaviour at school had given no 
  indications of unhappiness. 
40      The trial judge correctly concluded that the essence of 
  Andalyn’s case was that whatever might have been the troubles 
1990–91 CILR 108

  and turmoils of her past she was now as the result of her marriage 
  able to put all that behind her and offer a stable and loving home 
  to Monique in the environment of a normal family. In arriving at 
  his conclusion as to what would best serve the welfare of Monique 
5  the trial judge concentrated on the difficulties which had existed 
  rather than on the situation as it then existed in Andalyn’s 
  household and Monique’s observed reactions to that environ- 
  ment. He stated: 
      “Moreover, Monique would be going, if she were to remain 
10      with her mother, into a family whose problems I have 
      already described. It is greatly to be hoped that Andalyn will 
      be able to put these problems behind her, but there must be 
      risk that she may not. I cannot justify exposing Monique to 
      such a risk when the secure home in which she has been 
15      living remains available for her.” 
  He finally concluded: 
      “On all the evidence, I have concluded that in awarding 
      custody of Monique to Andalyn I would be exposing her not 
      only to a continuance of the emotional trauma associated 
20      with the sudden disruption of her existing emotional rela- 
      tionships which had taken place, but also to an appreciable 
      element of risk in the longer term. That is far from saying 
      that I have concluded Andalyn is an unfit mother, and I must 
      emphasise my view that it is in Monique’s best interests that 
25      she should be allowed to remain in contact with her.” 
      This finding placed insufficient weight on the evidence cited 
  above which supported the view that Monique had not suffered 
  “emotional trauma” as a result of her separation from the Grants 
  and had behaved normally at school. Further, the trial judge has 
30  not identified the risks to which he finds that Monique may be 
  exposed. Andalyn no longer lived in a home with problematic 
  relatives. Even though she might have been giddy-headed and 
  had shown a preference for leaving her child with grandparents to 
  free herself for fun, that had changed. She was now married and 
35  had set up house. She held a steady job. It is not unreasonable to 
  conclude, having regard to the tenor of the judgment and the 
  nature of allegations made in the course of evidence, that the trial 
  judge feared that Monique might well be in future the victim of 
  abuse. There was her complaint to Mrs. Grant that Andalyn had 
40  played with her private parts. On none of these matters, 
  however, had the evidence amounted to a prima facie case 
1990–91 CILR 109

  requiring answer. The trial judge quite correctly made no finding 
  on them, and it is difficult to identify any other possible fears in 
  the testimony. It is significant that that trial judge specifically 
  ordered that Andalyn should have only non-residential access to 
5  Monique. The child had been in Andalyn’s care and control since 
  June 19th, 1989. An interim order had been made on or about 
  October 23rd, 1989 allowing her to stay there. Reports from the 
  social worker who had observed Monique in that environment 
  and from Dr. Lallee indicated that the child had suffered no overt 
10  maladjustment. The order seems to reflect the trial judge’s 
  assessment of the appreciable element of risk in the longer term 
  to Monique—a risk which was not identified. 
      There has been no real dispute as to the principles of law 
  applicable in this case. Section 14 of the Law makes the welfare 
15  of the child the paramount consideration. It is also common 
  ground that the principle on which an appellate tribunal will 
  interfere with a discretion exercised by the court below are 
  authoritatively expressed by Viscount Simon, L.C. in Charles 
  Osenton & Co. v. Johnston (10) ([1942] A.C. at 138) as quoted 
20  by Browne, L.J. in In re F. (A Minor) (Wardship: Appeal) (4) 
  ([1976 Fam. at 256): 
      “ ‘The law as to the reversal by a court of appeal of an order 
      made by the judge below in the exercise of his discretion is 
      well established, and any difficulty that arises is due only to 
25      the application of well-settled principles in an individual 
      case. The appellate tribunal is not at liberty merely to 
      substitute its own exercise of discretion for the discretion 
      already exercised by the judge. In other words, appellate 
      authorities ought not to reverse the order merely because 
30      they would themselves have exercised the original discretion, 
      had it attached to them, in a different way. But if the 
      appellate tribunal reaches the clear conclusion that there has 
      been a wrongful exercise of discretion in that no weight, or 
      no sufficient weight, has been given to relevant considera- 
35      tions such as those urged before us by the appellant, then the 
      reversal of the order on appeal may be justified. . . .’ ” 
      In G. v. G. (6) Lord Fraser of Tullybelton expressed the 
  principle thus ([1985] 2 All E.R. at 229): 
      “Certainly it would not be useful to inquire whether different 
40      shades of meaning are intended to be conveyed by words 
      such as ‘blatant error’ used by Sir John Arnold P. in the 
1990–91 CILR 110

      present case, and words such as ‘clearly wrong’, ‘plainly 
      wrong’ or simply ‘wrong’ used by other judges . . . in order 
      to emphasise the point that the appellate court should only 
      interfere when it considers that the judge of first instance 
5      has not merely preferred an imperfect solution which is . 
      different from an alternative imperfect solution which the 
      Court of Appeal might or would have adopted, but has 
      exceeded the generous ambit within which a reasonable 
      disagreement is possible.” 
10      I am satisfied that this is a proper case for interference. The 
  case was decided essentially on written evidence and nothing 
  appears to turn on any assessment which may have been made on 
  the basis of the demeanour of the parties. An appellate tribunal is 
  thus in as good a position as was the trial judge in the area of its 
15  evaluation. 
      The trial judge did not place sufficient weight on the report of 
  the social worker who had seen Monique in the environment of her 
  mother’s home and had assessments of her behaviour at school. 
  This indicated that she had settled reasonably well. Dr. Lallee’s 
20  report tended to confirm that. Dr. Hasselback’s report on the 
  other hand was brief. It stressed the broad proposition that 
  disturbing stable and loving relationships could be harmful to a 
  child but there was no detail as to its effect in this case—apart from 
  the statement that it was apparent that Monique was unhappy and 
25  troubled. The social worker and Dr. Lallee did not find this to be 
  the case in their assessments made about the same time. 
      The trial judge in assessing the relevant factors stressed 
  Andalyn’s troubled history rather than her then existing cir- 
  cumstances which had greatly changed. He contrasted her 
30  troubled past with the Grants’ history of continuous stability. 
  This was not the proper comparison. The comparison should 
  have been between Andalyn’s home as it now appeared to be and 
  the Grants’ home as it was. He appeared to give no importance to 
  the fact that in her mother’s home Monique would be growing up 
35  with an elder brother, Quincy, who, in the words of the social 
  worker, “always looks out for Monique and is somewhat 
  protective of her.” The social worker had had an opportunity of 
  observing them unofficially at school and at swimming classes 
  held by the school. 
40      In arriving at his decision the trial judge appeared to be very 
  much concerned with “risks” involved in placing Monique in the 
1990–91 CILR 111

  care and control of her mother—risks which he did not identify 
  and which cannot be reasonably deduced from the evidence 
  placed before him. 
      In concluding his report Dr. Lallee stated: 
5      “I think the mother should keep in touch with the social 
      worker to learn what is acceptable behaviour and also to 
      receive help to deal effectively with her adjustment reaction. 
      Mother needs to spend more quality time with Monique to 
      foster further the bonding and attachment between them.” 
10  The trial judge appears to have treated this as an indication of 
  inadequacy on the mother’s part. I do not think it was so 
  intended. He had earlier said that both parents had not been able 
  to control her behaviour and their admonitions and pleadings did 
  not help. He then concluded: “It was abundantly clear that they 
15  needed to know what was and what was not acceptable 
  behaviour.” There was in effect nothing to choose between the 
  parents on that issue and advice was tendered to the mother to 
  whose custody Dr. Lallee recommended that she be given. 
      In my view the trial judge misdirected himself in assessing 
20  the reports of the experts and failed to give due weight to the 
  type of home which Andalyn since her marriage could and did 
  provide for Monique. He did not give sufficient weight to the 
  evidence of Monique’s reasonable adjustment during her 
  period at Andalyn’s home. Additionally, by treating Mr. and 
25  Mrs. Grant as parties in whose favour an order for custody 
  could have been made, he did not give due weight to the 
  likelihood of Todd getting married. He might then have moved 
  from his parents’ house, taking Monique with him—an action 
  the parents could not resist. The advantages of the historically 
30  stable Grant household would then have disappeared and the 
  new environment would be wholly unpredictable. Dr. Hassel- 
  back’s report had stressed Monique’s emotional attachment 
  to Mr. and Mrs. Grant—whom she regarded as her 
  parents—rather than to Todd, who had not, until recently, 
35  shown any emotional commitment as a parent. In the cir- 
  cumstances of this case this was a real risk—with consequences 
  potentially more serious than a breakdown of Andalyn’s 
  marriage since she was regularly employed and likely to be 
  able to maintain a household in any event. 
40      Accordingly, in my view, on a consideration of the facts, the 
  order of Harre, J. should be set aside, and the appeal allowed in 
1990–91 CILR 112

  terms of the order made by the President at the close of the 
  further argument on jurisdiction. 
  Appeal allowed. 
       
       
  Attorneys: Bruce Campbell & Co. for the appellant; Ritch & Conolly 
  for the respondents. 
       
       
  [The Guardianship and Custody of Children (Amendment) Law, 
  1992, s.2 amended the definition of “child” in s.2 of the principal Law so 
  as to include an illegitimate child. ]