089-NLR-NLR-V-69-O.-J.-FERNANDO-Petitioner-and-T.-D.-FERNANDO-and-two-others-Respondents.pdf
Fernando v. Fernando
429
1965Present: H. N. G. Fernando, A.C.J.O.J. FERNANDO, Petitioner, and T. D. FERNANDO and two others,
Respondents
S.C. 460/63 — Habeas Corpus Application
Habeas corpus—Custody of child under sixteen—Preferential right of parent.
In a habeas corpus application made by a father for the custody of hisdaughter who is under sixteen, the child is not entitled in law to consent toher continuance in the custody of others. Her wishes are relevant onlyto a consideration of the question whether it will be detrimental to her life,health and morals to place her in parental custody.
A.PPLICATION for a writ of habeas corpus.
J.W. Subasinghe, for the Petitioner.
H. IF. Jayewardene, Q.C., with L. W. Athulathmudali, for theRespondents.
Cur. adv. vult.
430H. X. G. FERNANDO, A.C.J.—Fernando v. Fernanda
September 3, 1965. H. N. G. Fernando, A.C.J.—
Counsel for the petitioner has justifiably maintained that the peti-tioner and his wife did not effectively renounce their rights of parent-lordin respect of their child Dylanthie, in favour of the 2nd and 3rdrespondents. It is perfectly clear on the evidence that the petitioner’swife, out of affection and sympathy for her childless sister, acceded to arequest that the sister be permitted to bring up the child in her home,but without any agreement or implication, for a renunciation of parentalrights. This undefined arrangement worked admirably for many years,during which the child’s parents and the respondent husband and wifetogether sliared the cares and joys of the child’s upbringing. The 3rdrespondent has admitted that, as frequently as possible every year, thechild was sent or taken on visits to her parents and her sister and brothers,and that the parents had throughout contributed towards the welfare ofthe child in a substantial manner. It would be quite unrealistic tothink that the parents ever ceased to regard themselves as such, fromthe point of view whether of duty or of affection.
In these circumstances, lam unable to say that the petitioner’s appli-cation lacks good faith. While the petitioner’s wife had previously beenwilling, on compassionate grounds, to share with her sister the affectionsof her child, it is not surprising that under an impression (whethervalid or imaginary) that her sister no longer deserves her compassion,she should now desire to deny to the sister the favour and sympathyextended in the past. The petitioner and his wife also apparentlybelieve that the child’s mind is being poisoned against them, and forthis reason as well are anxious to resume their full rights and responsi-bilities of custody in their own interests and in those of the child.
Prima jucie, the petitioner in this case has the right to the custody ofhis child. The child is under sixteen, and has not attained the ageaccepted by this Court as the age of discretion. She is therefore notentitled in law to consent to her continuance in the custody of others(Gooneratnayake v. Clayton 1; The Queen v. Jayakody2). Her wishes aretherefore relevant only to a consideration of the question whetherit will be detrimental to her life, health and morals to place her now-in parental custody. For this purpose I have talked to the child, and Ifind her to be quite normal, intelligent and of a cheerful disposition.She very definitely wishes to remain where she is, and I believe herstatement that she has told her parents that she would not consent tostay with them even if they threatened to kill her. While theseundoubtedly are her wishes I do not think that severe mental sufferingor injury to health will ensue if she has now to live with her parents.(At the same time I would not like to form a final opinion at this stage.)
1 (1929) 31 if. L. R. 132.
(1890) 9 S. C. C. 148.
ABEYESUNDERE, J.—Pereru v. The Queen431
The child has stated that her parents and her sisters were unkind toher, and even ignored her, while she was with them last year. But it maywell be that this unpleasantness was the consequence of her refusing herconsent to live with her family, and I trust the family will strive to avoidsuch causes of discontent.
I accordingly order that the child be returned forthwith to the custodyof her parents. I trust that this will be done next week without the needfor any further intervention by the Court. But the petitioner willproduce the child before me in chambers on Monday, 8th November1965. In the meantime I trust that no change will be made in regardto the schooling of the child at St. Bridget’s Convent. Colombo.I make no order as to the costs of the proceedings.
Application allowed.