Til re Evelyn Wai nnkulasuriya
1955Present.: Fernando A.J.In he EVELYN WARNAKULASURIYA
Habeas Corpus Petition No. 424—M. O. Hatton
llalioos Corpus—CtisUnlg of child—Parents right thereto—Factors for consideration—Adujttiun of Children Ordinance, 1041—Children and Young Persons Ordinanceof 1030, ss. 31, 3o.
Petitioner claimed tho custody of her daughter (1st respondent) aged 15-Tho 2nd respondent, tho Mother Superior of a Convent, claimed no right tocustody, hut her position was that the girl was placed ut tho Convent by herfather in order to provent contact between the girl and tho petitioner and thattho girl herself wished to remain at the Convent.
Held, that tho child’s own wishes were by roason of hor ago and educationworthy of consideration and that the Court should bo guided by the test whetheru chungc in tho status quo would bo prejudicial to tho interests of tho child. Insuch a case tho <(uestion of registration under the Adoption of Children Ordinancedid not uriac. Moreover, sections 34 and 35 of the Children and Young PoisonsOrdinance recognized that tho parent’s right to custody was not absolute andenabled a Court to deprive a parent of this right if, for reasons specified in thosesections, the parent was unfit to exercise care and guardianship over the child.
./^LpPLfOATION for a writ of habeas corpus.-
D. S. J a yu wick rente, Q.C. with K. C. de Silva for the petitioner.
J..4. L. Cooray for the respondents.
Cur. adv. vult.
520FERNANDO A.J.—In re Evelyn Wamakulasuriya
January 3, 1956. Fernando A.J.—
In this application, the petitioner claims the custody of her daughterEvelyn (1st respondent) who is now 15 years of age. The 2nd respondent,the Mother Superior of St. Gabriel’s Convent, Hatton, claims no rightto custody, but her position is that Evelyn was placed in the Convent byher father in order to prevent contaot between Evelyn and the petitionerand that the girl herself wishes to remain at the Convent. I havo nottherefore to examine competing claims to the custody of Evelyn butonly to consider whether the petitioner’s lawful right to the custody ofher daughter is to be overridden in favour of Evelyn’s wishes.
The evidence of the petitioner establishes certain facts which I willassume to be correct:—
Evelyn, the eldest child of the petitioner and her husband Francis .Wamakulasuriya, was born on January 1, 1940.
Wamakulasuriya went abroad on war service about 1941 andreturned only in 1945.
In 1943, Evelyn was “ handed over ” to the Moratuwa Convent
at the request of Wamakulasuriya.;
A second child was born to the petitioner in 1946 : Wamakulasuriyadenied paternity of that child and filed divorce proceedings, citing oneFaulu Fernando as co-respondent. He separated from the petitionerabout two months before the birth ofthat child.
At the same time, the girl Evelyn was removed from the MoratuwaConvent by the petitioner’s mother and was handed over to Wama-kulasuriya. Evelyn then lived with her father for some years and notwith the petitioner.
The divorce action was dismissed, apparently because Wamakula-suriya did not press it, on July 13th, 1949'.-
On the same day, Evelyn was taken by her father to the HattonConvent and has remained there ever since in the care of the nuns.
Shortly after the dismissal of the divorce action, the petitionerapplied to this Court for the custody of Evelyn from her husband; andthe matter was settled upon statements by both parties that they werereconciled. After this (January 1950), husband and wife lived togethor(he being away for long periods bn business), but Evelyn was never broughtback home even for a day.
Wamakulasuriya died a violent death in December 1953, andEvelyn was with great reluctance brought to hei father’s funeral by thonuns. This was the first occasion after 1946 when the petitioner set eyeson Evelyn.
I need refer only to a few of the controversial items of evidence. Incross-examination the petitioner said •** In those divorce proceedingshe named a co-respondent. The name of the co-respondent is G. PaulFernando. He alleged that the child that was bom to me was G. PaulFemando’s child. He is also called Paulu. My mother did not objectto my association with Paulu ”. When the inquiry was resumed twomonths later, however, the petitioner said “ I do not know Paulu. I deny
FERNANDO AJ.—In re Evelyn Wamdkulaavriya
that my mother accused me of being friendly with Paulu This laterstatement is palpably false, and at least arouses suspicion as to the natureof the^association between the petitioner and Paulu.'
An inquest was held upon the death of Warnakulasuriya, and a letteralleged to have been written by him to the Hatton Convent very shortlybefore his death was produced at the inquest. It contained the followingstatement. “ This is to notify you that at any time in my absence, thenext responsible person to my dear daughter Evelyn, is her grand-motherMadolena (mother of the petitioner) ”. The petitioner admits that thisletter (T)4) is signed by her husband and that she herself presenteda certiliod copy of the letter to the Mother Superior when she tried in 1954to take Evelyn away from the Hatton Convent. According to theMother Superior, Warnakulasuriya had made it quite clear to the nunsthat tho petitioner was to have no communication with Evelyn.
Evelyn’s ovidenco is to the effect that she first saw her mother at herfather’s funeral in 1953, i.o., at the age of 14, and she has no earlierrecollection of her mother. The father made regular visits to the Convent,and father and daughter used to communicate regularly by letters. Sheis quite ceitain that her father wished her to have no contact with thopot it inner. Her desire to remain at the Hatton Convent springs mainlyfrom her respect for the father’s wishes ; in addition, she expects to sitfor tho S. S. C. examination in 1955, and is anxious to avoid interruptionsin her studies. There is evidence to indicate that Evelyn will inhoritsomo property on the death of her grand-father and/or uncle ; but inview of tho special circumstance that she has lived away from home andfamily for so long, I tliink it is of particular importance that she receivesas good an education as possible in order to fit herself to face the problemsand difficulties which lie before her.
Aspersions have been cast against the character of the petitioner, andthis principally in the evidence given by the petitioner’s own mother.Although I do not agree with Mr. Jayawiekreme that this evidence shouldhe disregarded as unreliable, I find it unnecessary to take account of thoseaspersions. But, wherever the blame may lie, the fact is that thepetitioner failed to maintain good or normal relations either with herhusband or with her own mother. Evelyn said that on the first .datoof the inquiry, the petitioner said to her “ I know, what I will do whenI get you ”. I am not disposed to accept the petitioner’s denial that shemade such a remark.
I do not proposo to refer, except briefly, to the principles which shouldguide a Court in determining whether a mother’s undoubted right to thecustody of a daughter of fifteen may be denied recognition. I can addnothing useful to Nihill J.’s observations on the law in Sumaraainha v.Simon 1 whore tho authorities were comprehensively reviewed. Mr. Jaya-wiekreme has relied strongly on the case of Abeyivardene v. JayatillekeIt was there held that a person who has failed to register himself as thecustodian of a child (under the Adoption of Children Ordinance, 1941)cannot claim to retain custody as against the parents of the child. Thatdecision is not applicable' to the present facts because I am here
* (1053) 55 N. L. R. 54.
1 (1041) 43 X. L. R. 120.
528FERNANDO A.J.—In re Epelyti Warnahulasnriya
considering, not a claim by the 2nd respondent to the custody of Evelyn,but Evelyn’s own refusal to live with her ip other. • Moreover, it does notappear from the judgment in that case what w<peithe child’s own wishes,and whether her wishes were by reason of age and education worthy ofconsideration by the Court. I propose therefore to guide myself bythe tost whether a ohango in tho status quo would be prejudicial to thointerests of Evelyn—a test recognised by Nihill J. and adopted by morecently in H. C. Application No. 1824, S. C. Minutes. Our Statute Lawalso recognises that the parent’s right to custody is not absolute ;Sections 34 and 35 of the Children and Young Persons Ordinanco of 1030enable a Court to deprive a parent of this right if, for reasons specifiedin those sections, the parent is unfit to exercise care and guardianshipovor his child.
The facts to which I havo referred convince me that Evelyn's attitudeif? perfectly reasonable ; she has no affection or respect for the petitionerwho is virtually a comjdote stranger to her ; her own father deliberatelykopt her awray from contact with the petitioner ; she is at present happyand in safe hands and anxious to honour her ,father’s wishes ; .but for thomisfortune of her father’s untimely death, die would have remained inthis Convent at his direction. On the other hand, I am not satisfied thattho petitioner is worthy of her daughter’s respect or affection or that sheis genuinely concerned for the welfare of the daughter. In any eventthe petitioner’s right to custody would be of no avail after 1955. I am ofopinion that a change of custody will be prejudicial to the welfare andinterests of the girlEvelyn. I would accordinglyrefuse the application withcosts fixed at Its. 157 • 50. I direct, however, that the Mother Superiormust permit the petitioner to visit the girl once a month, and must dolivorto tho girl letters addressed to her by the petitioner ; this direction willbe effective only for the year 1955, and the matter of visits can thereafterbe decided in accordance with the girl’s orfcn wishes. The Magistratewill please communicate this direction to the parties.
IN RE EVELYN WARNAKULASURIYA