G. PEMAWATHIE, Petitioner, and A. KUDALUGODA ARATCHI and 4 others, Respondents

073-NLR-NLR-V-75-G.-PEMAWATHIE-Petitioner-and-A.-KUDALUGODA-ARATCHI-and-4-others-Respondents.pdf


208
WEERAMANTRY, J.—Pemawalhie v. Kudalugoda Aratchi
Present: Weeramantry, J.
PEMAWATHIE, Petitioner, and A. KUDALUGODAARATCHI and 4 others, Respondents
S. G. 364/69—Habeas Corpus Application
Habeas corpus—Principles of English law and other legal systems—Extent to whichthey are applicable—Custody of illegitimate child in a stranger—Whether thestranger can subsequently resist the claim of the natural guardian for restorationof the child to her—Roman-Dutch law—Overriding importance of the welfare ofthe child—Courts Ordinance {Cap. 6), s. 45—Adoption of Children Ordinance(Cap. 61)—Children and Young Persons Ordinance (Cap. 23), ss. 34, 35.Although the consequences of the issue of a writ of habeas corpus undersection 45 of the Courts Ordinance, tho manner of its issue and the procedureand practice to be followod are determined by tho English law, the questionwho has the right to the custody of a child must be determined by the logoisystem applicable to the parties in question.
Where the law governing tho right to the custody of an illegitimate child isthe Roman-Dutch law, the mother of tho child is the natural guardian and isentitled as such to the custody of the child as against a stranger. If, however,the interests of the child would be gravely affected by an interference withits present custody, the claim of the stranger to custody would be preferredto the claim by the mother.
The petitioner was the mother of an illegitimate child. Four weeks afterthe birth of the child on 2nd April 1964, she permitted the child to be broughtup by the 1st respondent. Six years later the petitioner, who had not abandonedor surrendered her interests in the child, made the present application for thecustody of the child. The Magistrate, who held the inquiry, was quite satisfiedthat the child was looked after with much care and affection in the householdof the 1st respondent and was treated as a member of the family. He was alsoof opinion that the petitioner was not likely to provide the comforts andhappiness that the child was enjoying. There was no evidence whatsoever ofany attention paid to the child by the petitioner throughout the period of thechild’s stay with the 1st respondent. The Magistrate expressed his unhesitatingview that “ the interests of the child demand that she be allowed to remainwhere she is now ”,
Held, that the Court had the power to award the custody of the child in thecircumstances of the present case to the 1st respondent, although the childhad not been adopted by him under the provisions of the Adoption of ChildrenOrdinance. It would be open to the petitioner to renew her application afterthree years.
“ A review then of the decisions of this Court for a period of well over hundredyears specially recognises that the right of the parent may be superseded byconsiderations of the welfare of the child. ”
Application for a Writ of habeas corpus.
K. Sivananthan, with Miss C. M. M. Kamnaratne, for the petitioner.Ben Eliyatamby, for the respondents.
Cur. adv. vult.
September 2, 1970. Weeramantry, J.—
This is an application by the mother of an illegitimate child for itscustody. The child was in the custody of a third party at the time.I have at the conclusion of the hearing made a provisional order infavour of this third party for a period of three years and I now Bet outmy reasons for doing so.
The child was bom on the 2nd April 1964. The petitioner avers thatas she was too poor to bring up the child she left the child shortly afterits birth in the care and custody of one Mrs. Seneviratne and that thechild was forcibly taken away from the house of Mrs. Seneviratne on13th July 1969 by the 1st, 2nd and 4th»respondents.
WEERAMANTRY, J.—Pemaivathie v. Kudalugoda Aratchi
399
Although thiB was the position indicated in the petition the evidencerevealed a somewhat different Btory, for the petitioner herself statedthat after the birth of the child, when she waB on her way home fromhospital to her village, she met a gentleman at the Matara bus stand.As she was stranded at that time she accepted a suggestion made toher by that gentleman that she should stay in the house of oneSeneviratne. The petitioner still lives in this household.
At the time she went to Mr. Seneviratne’s house, Mrs. Seneviratnewas expecting a child and Mr. Seneviratne was not happy at the ideaof there being two infants in the house at the same time. Inconsequence the 1st respondent who was a friend of the Seneviratne’sand who developed an affection for. the child, requested permission totake the child to his house. The petitioner allowed this. The childhas so remained in the house of the 1st respondent up to the date of theorder, that is to say, for a period of six years.
It will be seen that this version conflicts with the position taken upin the petition not only in regard to the circumstances in which thechild entered the custody of the respondents from the Seneviratnehousehold, but also in regard to the date of this event. Her tripback from hospital would presumably have been within about 10 daysafter the birth of the child, so that the time of removal of the child bythe respondents must have been shortly thereafter and not some timein 1969 as averred in the petition.
The 1st respondent is a graduate and a Government school teacher,the 2nd respondent i* his mother and the 4th respondent his father.At the time the child was taken into his household the 1st respondentwas a bachelor but he is now married.
He is anxious to retain the child and the learned Magistrate has beencompletely satisfied that the child is looked after with much care andaffection in the household of the 1st respondent, and is treated as amember of the family.
Throughout the period of the child’s stay with the 1st respondent thereis no evidence whatsoever of any attention paid to the child by thspetitioner and there is not even the slightest suggestion of her givingthe child anything at all, not even a parcel of sweets.
The learned Magistrate who has seen the child in Court has been quitesatisfied that the child i3 well looked after and happy, and photographsthat have been produced in evidence shoving the manner in which thechild has been treated as a member of the household even at thei timeof a wedding in the family, completely support this position.
The 1st respondent has stated that the child has been with him sincethe child was four weeks of age. He has stated that the 5th respondenthas been brought up aB a sister of his, and addresses his parents as herparents. He has stated that he will be able to bring up this child andhas no objection to the petitioner having reasonable access to her. Hisfather has also given evidence and has stated that he has brought , upthe 5th respondent as a child of his own and has taken steps for adoption.
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WEERAMANTRY, J.—Pemawathic v. Kudalugoda Aratchi
He does not have young children of hifl own and can provide for thefuture of this child.
Both the 1st and 4th respondents have stated that the petitionercannot provide for the child.
The evidence would therefore reveal that the paragraph of thepetition averring that the child was forcibly taken is false in the lightof the petitioner’s own evidence. This affects her bona tides and soalso does her failure in her petition to reveal the fact that the child hasbeen brought up for a period of over five years in the household of therespondents. In this context her allegation in the petition of forcibleremoval bn 13th July 1969 does not accord at all with the facts and haspresumably been put in order to minimise the period during whichthis child has been under the care and custody of the respondents.
The learned Magistrate has observed: “ the conduct of the corpusin Court was eloquent testimony of her happiness, in her present state.It is also my view that the petitioner may uot be in a position to provideall comforts and happiness in life that this child now appears to enjoy.What struck me regarding the respondents was their genuine desireand love for this child. I am quite confident that given the opportunitythese respondents will do everything in their power for the benefit ofthis child. ”
Upon a review of all the circumstances including a close observationof the child in court the learned Magistrate observed “… it is
my unhesitating view that the interests of the child demand that shebe allowed to remain where she is now ”.
However, the learned Magistrate has felt constrained in consequenceof the decision of Nagalingam A. C. J. in Abeywardene v. Jayanayake1to recommend that the application be allowed on the basis that therespondents cannot resist the claim of the mother so long as the childhas not been adopted under the provisions of the Adoption of ChildrenOrdinance, No. 24 of 1941. Nagalingam A. C. J. there expressed theview that custody of a child by a person who is not the natural guardianand has not obtained an Adoption Order is illegal, and that the childmust be restored to the custody of the natural parent even ifthe restoration is prejudicial to the interests of the child.
Many interesting questions of law are raised in consequence and itwill become necessary to examine what the position is under our lawin regard to the claim of the natural guardian of a child to have the childback where the child has been in the custody and care of third partiesduring a long period of time. It will become necessary for this purposeto examine what the attitude is both of the Roman-Dutch law and ofthe English law to the question whether a stranger can resist the claimof the natural guardian.
Before I examine this question I should briefly dispose of a preliminarysubmission made to the effect that Habeas Corpus applications fall tobe determined by the principles of English law for the reason that the
1 (1953) SS N. L. R. 54.
WEERAMANTRY, J.—Pemawathie v. Kudalugodit Aratchi401
law governing the prerogative writs is the English law. I do not thinkhowever that that general principle means that questions of custodyfall to be determined by the English law. The question who has theright to the custody of a child must be determined by the law applicableto the parties in question and once it is determined by the legal systemapplicable that the right to custody exists, it is then that the writ ofHabeas Corpus would issue. However the consequences of the issueof the writ, the manner of its issue and the procedure and practice tobe followed would of course be determined by the English law.
Were the position otherwise the results produced would be incongruous.For example the right to the custody of a Muslim child cannotbe determined otherwise than according to the principles of the Muslim .law and the mere fact that English law is the law applicable to writsquite obviously does not render the English law the governing law inregard to the custody of a Muslim minor. So also in regard to otherpersonal laws it is by the principles of those systems that the right ofcustody is determined and not by the principles of the English law.
As Tambiah J. observed in Kamalauathie v. de Silva1 while referringto section 45 of the Courts Ordinance, in a multi-racial country like ourswhere different types of laws prevail it is an inevitable feature that thelaw governing the custody of a child would vary with the system oflaw applicable to the person concerned.® So also Nihill J. in Samarasinghev. de Simon3, referring to Fischer C.J.’s opinion in Goonaratnayake v.Clayton* observed that a court in exercising the jurisdiction given to itby section 45 of the Courts Ordinance, should apply the English lawwhen considering the question submitted to it, but took care at thesame time to indicate that this court would no doubt have regard tothe personal law applicable to the parties before it.
I shall therefore proceed to examine the matters before me on thebasis that the law governing the right to the custody of the child inquestion is the Roman-Dutch law.
Now, by the principles of the Roman-Dutch law it is clear that themother of an illegitimate child is the natural guardian and entitled assuch to the custody of the child as against a stranger.
In the present case however it is contended that the interests of thechild would be so gravely affected by an interference with its presentcustody that this consideration would override the inherent right ofthe mother as the natural guardian.
It becomes necessary then to examine whether the Roman-Dutchlaw has recognised this principle of the right of the mother being overridden by the interests of the child and whether, where the interests ofthe child so indicate, the claim of a stranger to custody would be preferredto the claim by the mother.
»(1961) 64 N. L. R. 252 ; 60 C. L. W. 21.* (1941) 43 N. L. R. 129.
* ibid, p. 255.* (1929) 31 N. L. R. 132.
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WEERAMANTRY, J.—Pemawalhie v. Kudalugoda Aralchi
One must commence an examination of this matter by referring tothe best known Ceylon decision upon the subject, the case of Samarasinghev. de Simon1. In that case the court held that where a parenthas surrendered the custody of the child to another, the mere assertionof his natural right is not sufficient to entitle him to claim back the childand that the court would not disturb the status quo unless there wasgood ground for doing so. Nihill J. held that a good ground would bethat it would not be detrimental to the best interests of the child thatshe should return to her home.
An examination of the facts in that case shows that there were anumber of reasons not present in the instant case which inclined thecourt to restore the custody of the child to the father. The father hadshown an interest in the child throughout the period of the child’s staywith its foster parents and further it was not the understanding of eitherthe foster parents or of the father that the father had relinquished allcontrol over the child. This fact was evidenced by two letters betweenthe foster parents and the father on the occasion when the foster parentsdesired to take the child with them on a trip to Egypt. Furthermorethe father offered the child a home—and admitted!}' a good home—inColombo with the conspicuous advantage that the child would sharethat home with her brothers and sisters of whose company she hadhitherto been deprived in consequence of the children being scatteredafter the death of their mother. The father was upon an improvementof his financial circumstances attempting to bring all his children togetherunder one roof and re-establish his family. In view of this combinationof circumstances the court was prepared to disturb the status quo althoughit was manifest that the child w'as extremely happy and enjoying muchlove and affection in the home of her foster parents.
It is important to note that the case recognised the general principlethat the mere assertion of the parent’s natural right is not sufficient toentitle the parent to a restoration of custody and that the court wouldshow an attitude of reluctance when asked to disturb the status quowhen the child is apparently very well looked after.
I must next refer to some significant judgments of this court in recentyears, in w hich the claim of a stranger has been preferred to that of anatural guardian. I refer first of all to in re Waranakulasooriya* w hereFernando, A. J., as His Lordship the Chief Justice then was, followedNihill J.’s observations on the law in Samarasinghe v. de Simon, in denyinga claim by a mother to the custody of her daughter who had been placedat a convent by her father.3 That is to say, a claim against the MotherSuperior, who had no right to custody, failed despite the rights of thenatural guardian, the court observing that it should be guided by thetest whether a change in the status quo would be prejudicial to the interestsof the child .It w’as also observed that this same test had been adoptedrecently by Fernando, A. J. in Habeas Corpus Application No. 1824.
> (1941) 43 .V. Jj. It. 129.* (1955) 56 N. L. B. 525.
* ibid, al p. 527.
Wiy-bKAJLA.N inx, j.—rtmawattoe v. n.uaauujoaa Aratcm
4US
In re Waranakulasooriya is also important for the observation thatthe right under our law of a parent to the custody of a minor is notabsolute as is evidenced by sections 34 and 35 of the Children and YoungPersons Ordinance of 1939. It enabled a court to deprive a parent ofthis right if for reasons specified in its sections, the parent is unfit toexercise care and guardianship over the child.
More recently Samerawickrame, J. in the case of Frugtniet v. Fernando1refused custody to the mother observing that in a case of this nature theparamount consideration is the welfare and the happiness of the corpus,who in that case was in the custody of strangers with whom she washappy and contented, as she was looked after by them with greataffection.
One more recent instance of a decision on these lines is the judgmentof de Kretser, J. in Endoris v. Kiripetta.2 The child in that case was8 years old and had been brought up by his aunt, a sister of the petitioner.In that case again the right of the parent was treated as defeasible ifa sufficient case was made out. De Kretser, J. there observed thatthe court would not deprive the parent of the custody of the child ifonly for the reason that it would be brought up better and have a betterchance in life if given over to another. He held that it was for the personseeking to displace the natural right of the parent to the custodyof the child to make out his case that consideration for the welfare ofthe child demands it. This judgment while emphasising the right ofthe parent, also indicates a recognition that tho right of the parentwould bo overridden if a consideration for tho welfare of the childdemanded it.
The juridical basis for the denial by court of tho rights of tho naturalguardian in appropriate cases was given expression to by Sansoni J.who in Weragoda v. Weragoda3 observed that although in England theprinciple of the interests of the child being paramount applies, becausepresumably the court is the guardian of all infants, in Roman-Dutchlaw the State is the upper guardian of all minors, and that ho did notthink there was any material difference between the two concepts.The court would in deciding what is best for the child have regard tothe rights of parents, their character and any other factor which thecourt thinks ought to be weighed.
Again in DetUromv. Jinadasa4 Alles J. held that in every case concerningthe custody of a minor child the welfare of the child is the paramountconsideration to be taken into account and that although the motheris the natural guardian of her illegitimate child, her right to custodymay be forfeited if it is established that such custody may be dangerousto the life, health and morals of the child. The case is also importantas laying down that in order to determine questions of custody all theavailable evidentiary material should be examined, a principle stressed
*{1069) 74 N. L. R. 44S.
(1968) 73 N. L. R. 21.
'(1961) 66 N.L.R. 83.
' (1970) 78 O. L. W. 17.
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V KKK AM A NTRY, J.—Pcmawathie v. Kudalugoda Aratchi
also by Saasoni, J. in Weragoda v. Weragoda1 who, following McKee v.McKee2 observed that in questions of custody “ the welfare and thehappiness of the infant is the paramount consideration … to thisparamount consideration all others yield. ”
Tambiah, J. in Kamalawathie v. de Silva3 after an extensive examinationof the party observed ‘ however in applications which have come upin this court, whatever the system of law which may have been appliedto determine the custody of the child, this court has always asserted inunmistakable language that it has the discretion to remove a child fromthe lawful custody of the father if such a course was necessary in theinterests of the life, health or morals of the child. ”
There is thus no dearth of authority in the recent decisions of thisCourt recognising the overriding importance of the welfare of thechild even in cases where the natural guardian’s claim is resisted by astranger.
It will indeed be seen upon a perusal of the decisions of this Courtthat this is no recent trend but goes back well over a hundred years,for similar rulings have been given by this Court at least as far back as1862. In In re the application of OysanakhiS decided in that jTear,by a Full Bench of this Court, there is a significant passage to whichI would wish to refer. It is to this effect:“ The court decides that
in any case where a child’s relative has consented to that child beingtaken at a time of its extreme need by a person, who has maintained it,and is willing to continue to maintain it, with all proper kindness and incomfort and respectability, and when that relative after a long lapseof time comes forward, at a very suspicious period of a female child’sexistence to claim possession of it, though utterly unable to maintain it,this court will not misuse the right of habeas corpus to take the childfrom a good and virtuous home and deliver it over to miseryand want ..”
In In re Andrew Greig5 also the principle was recognised that theSupreme Court has a large discretion resembling that exercised by theChancellor in England who as parens patriae looks to the interests of thechildren as well as to the circumstances and wishes of the parents.
So also in Mohamadu Cassim v. Cassim Lebbe6, a case of a Muslimchild who was in the custody of her maternal aunt from her infancytill her 9th year, the court again recognised the principle that the parents’right is not absolute, and refused to order the restoration of the childto the father’s custody, on the basis that such a change wouldbe detrimental to the welfare of the child- The Court there observedfurther, following the grounds upon which the parents’ rights shouldbe interfered with in England7, that even though the mother of a femalechild has not been guilty of misconduct yet the court may refuse to givecustody to the mother if satisfied that such refusal was essential for thewell being of the child.
1 {1901)66 N.L.R.83 at 86.* (1951) A. O 352.
» (1961)64 N.L.R.252 at 255.‘ (1860-62) Ram. 130.
* 3 Lor.149.• (1927) 29 N. L R 136.
? Regina v. Qingall, {1893) 2 Q. B. 232.
WEERAAlANTKV, J.—Pamaivathic v. Kudalugoda Aratchi405
A review then of the decisions of this Court for a period of well overhundred years specially recognises that the right of the parent may besuperseded by considerations of the welfare of the child. I am unabletherefore to accept the contention urged on behalf of the petitionerthat our law affords no recognition to the principle that the naturalguardian’s right to custody cannot be defeated by a stranger.
It is perfectly clear that mere considerations of financial or economicwelfare would not suffice to deprive the parent of the custody of thechild, but in the present case the matter goes farbeyond suchconsiderations. The learned Magistrate’s unhesitating view is thatthe interests of the child demand that she be allowed to remain whereshe is now. After so long a period of loving care and of the enjoymentof a comfortable and settled home it would in all probability be mostdamaging to the mental and physical welfare of the child that she beuprooted and transferred to the custody of a mother who is not onlyunable to provide her even with a home, but whose affection for thechild seems also to be in doubt, having regard to her lack of interestin the child during all these years. This case would indeed come veryclose to the case wherein the Full Bench of this Court observed thatit would not issue a writ of habeas corpus to hand over the child to alife of misery.
Having made these observations in regard to the decisions of thisCourt I would wish to make reference to some decisions of the courtsof South Africa wherein also the principle has gained recognitionincreasingly in recent years that the welfare and interests of the childare, in matters of custody, the paramount consideration. I refer tothese cases not only as indicative of a similar idea having been adoptedby the South African courts but also as emphasising the principle thatthe court as upper guardian of minors has the right and indeed theduty to intake orders if need be superseding the rights of the parents ornatural guardians.
The principle is of course well recognised in cases between spousesthat the court has power as upper guardian of all minors to interferewith a father’s custody on special grounds such as, for example, dangersto the child’s life, health or morals, even when no divorce or separationauthorising a separate home has been granted x.
South African decisions however are not confined to cases as betweenparents but there have been decisions where parents had been deprivedof the custody of children at the instance of third parties on specialgrounds. In Short v. Naisby2 the court acting in its capacity as upperguardian considered an application by the paternal grandmother ofthree minor children for an order against their mother for the custodyof the children. The court held that the interests of the children are ofparamount importance. Consequently where the allegations againstthe father of a failure to take an interest in the children andother circumstances make out a prima facie case, it was held to be the
1 Vide CcUilz v.Ccditz (1938) A. D. 56.1 (1955) 3 S. A. L. R. 572.
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WEERAMANTRY, J.—Pemaieathie v. Kvdaltigoda Aralchi
duty of the court- os upper guardian to investigate the matter and decidefor itself what was in the best interests of the children. The courtobserved1 that it would have no jurisdiction to deprive the survivingparent of her custody at the instance of third parties except under itspower as upper guardian and then only on special grounds but heldthat such special grounds would include danger to a child’s life, healthor morals.
In September v. Karriem2 the Court held that if in an applicationfor the custody of children the court is of opinion that it should interferewith the rights of the parents because the interests of the child demandsuch interference, it should be at large to act in the manner best fittedto further such interests and that this may even mean that the childshould be taken from the custody and control of one or other or bothparents and be given to a stranger. It was pointed out that danger tothe child’s life, health or morals was not the only ground which wouldjustify interference 3 but that the court as upper guardian should be givenas complete a picture of the child and its needs as possible so that nothingof relevance should be excluded. Whilst certain aspects taken separatelymight not be of importance any combination that might build up a strongcase in favour of one or other conclusions is relevant.
The court there considered that the plaintiff’s attitude to the childsince, its infancy and the child’s own reaction to its removal from a familyas a member of which it has been reared and the deleterious effect ofsuch a change of environment upon the health and well being of thechild were all matters of the greatest relevance which should be takeninto account.
There is an older case, the decision of Maasdorp J. in Parrington v.Shugan4 where that learned Judge refused the application of a motherfor the restoration to her of her child by a stranger who was not relatedto the child.
In September v. Karriem5 the Court observed that there was no goodreason for drawing any distinction between relations and strangersfor if interference with the rights of the parents was demanded in theinterests of the child the court should be free to act irrespective of thequestion whether the third party to whom the child is to be handed overis a .relation or a stranger.
It seems clear therefore that the South African law as well recognisessuch a right in the court.
Although as I hare said this Court would guide itself by the principlesof the Roman-Dutch law rather than the English still it is of interestto note that in England as well decisions on the lines I have indicatedhave been made, having regard to the interests of the child. I would. refer in particular to the cases of Re White, ex White4 and Bamardo v.McHugh1. In the former case the Court, on the application of the
1 ibid, at p. S75.* at pjS. 688-9.
(19S9) 3S. A. L.R. 687.• (1848) 10 L. T. O. S. 331 at 349.
ibid, at p. 689.7 (1891) E. L. 388.
(1908) C. T. R. 912 referred to in Sevtembir v. Karriem supra p. 688.
YVEERAMAXTRY, J.—Pemaualhie v. Kudaltirjoda Aralchi
407
mother of an illegitimate child refused to order it to be restored toiler,where it appeared that it had been in the custody of the parties nowpossessing it for seven years with the mother’s consent, that the childwas well taken care of and that the child itself who was eight years ofage and very intelligent wished to remain with its present protectors.In the latter case, Lord Herschell observed that if it would be detrimentalto the interests of the child that it be given to the mother, the Courtwould not feel bound to accede to the wishes of the mother, even wherethe rival claimant to the custody of the child is a third party. So alsoHalsbury observes1 that “ in any proceedings before any court concerningthe custody or upbringing of an infant … the court must regard
the welfare of the infant as the first and paramount considerationthis provision applies whether both parents are living or eitheror both is or are dead …”2; and again ' where the parent …
has allowed the child to be brought up by, and at the expense of, anotherperson. .. for such length of time and in such circumstances as to
satisfy the epurt that the parent has been unmindful of the parentalduties owed to the child, the court must not make an order for thedelivery of the child to the parent, unless satisfied as to the fitness ofthe parent to have the custody, having regard to the welfare of thechild3.
All these authorities seem to indicate then that the court hasjurisdiction to make an order awarding the custody to a third party evenas against a parent; In regard to the observation of Nagalingam J.that the custody of such third party would be illegal in the absence ofan Adoption Order it would be of interest to point out with much respect,that the English Adoption Acts of 19504 and 19586 both containedprovisions similar to those in our Adoption of Children Ordinance butthat the English cases despite this provision have not considered custodyin the absence bf an adoption order to be illegal. For example in lie E*where an adoption order .sought by a family which had looked afteran illegitimate infant had been refused, still, despite an application bythe mother the court continued wardship and custody of the children inthe family so.looking after the child.
I may add that all that has been stated hitherto is in the context■of a case where the mother has not abandoned or surrenderedher interests in the child. There is a definite finding by the learnedMagistrate to this effect and it is on this basis that these matters areherein discussed.
For these reasons I have concluded that this Court has the power toaward the custodj' of the child in the circumstances of the present caseto the 1st respondent. I have however made only a provisional order
1 3rd ed. vol. 21, pp- 193-1. * See alio the Guardianship of Infants Act, 1925 S. 1.
J Halsbury, 3rd ed. Vol. 21, pp. 1967; see also Mathieson v.. Napier (1918) 87 L. J.
Ch. 445, C. A.
» 14 Geo. 6 c. 26.. ' ' 6 7 & 8 Eliz. 2, 0.5.• (1965) 3 All E. R. 874.
408
H. N. G. FERNANDO, C.J.—Junaul i Gooneicardenc
in favour of this respondent and when this order expires, three yearsafter the date on which it was made, the question of custody may bereviewed should the mother so desire. The Court would then be betterable to decide upon the custody having regard to the long term interestsof the child.
Provisional order made hi favour of the 1st respondent.