032-NLR-NLR-V-43-SAMARASINGHE-v.-SIMON-et-al.pdf
Samarasinghe v. Simon
129
1941
Present : Nihill J.
SAMARASINGHE v. SIMON et al.
In the Matter of an Application for a Writ of Habeas Corpus No. 1,087.
Habeas Corpus—Custody of child—Surrender of custody to another—Right ofparent to claim the child back—Good ground for disturbing status quo—Restoration of custody not detrimental to best interest of child.
Where a parent has surrendered the custody of a child to another,the mere assertion of his natural right is not sufficient to entitle him toclaim back the child. The Court will not disturb the status quo unlessthere is good ground for doing so.
" A good ground is that it would not be detrimental to the best interestsof the child that she should return to her home.
rpHIS was an application for a writ of Habeas Corpus asking for the
JL custody of a child, who is ten years of age and who has been withthe respondents since she was an infant. The matter was referred tothe Magistrate’s Court of Colombo for inquiry. The Magistrate recommend-ed that the prayer of the applicant be granted but that the respondentsshould be given three months’ time to hand over the custody of the
M. D. de Silva, K.C. (with him Dodwell Gunawardana and A. H. C. deSilva), for the respondents, was called upon to begin, in view of theMagistrate’s recommendation in favour of the petitioner.—The childhas been in the custody of the respondents from her earliest infancy.There are no circumstances now needing any change, and the onlyground for the present application is the assertion of a parental right.It is, however, the welfare of the child which is the paramonnt considera-tion. The bias of the law in favour of the father disappears under theconditions which exists in the present case. If a parent surrenders hischild to a foster-parent, it is necessary for the former to show strongground for the existing relationship to be disturbed. Mathieson v.Napier' is exactly in point. See also Rex v. Walker et al.'. Thain v.Taylor ’ can be distinguished because in that case there had not beenand surrender. The ordinary rights of a father, apart from any questionof surrender, are considered in Ran Menika v. Paynter *. As to how farthe wishes of the child may betoensulted, see The Queen v. Gyngall‘ andGooneratnayake v. Clayton*. No good ground has been shown by thepetitioner why the existing state of things should be disturbed.
N.^E. Weerasooria, K.C. (with him E. F. N. Gratiaen and C. J.Ranatunge), for the petitioner.—Parental rights and liabilities, whetherin English law or Roman-Dutch law, cannot be irrevocably surrenderedor transferred—VoL I. of Encyclopaedia of the Laws of England (3rd ed.),p. 166; Humphrys v. Polak’ ; Besant v. Narayaniah ' ; Lee’s Introductionto Roman-Dutch law (3rd ed.), p. 42. In fact there was no abandonment
■ (191S) 119 Late Tii.te* IS.8L. R, (1S93) 2 Q. B. 232 at p. 250.
– (1912) 2S T. L. R. 342.*(1923) 31 -V. L. R. 132.
3 (1926) 135 Law Tittws 99.TL. R. (1901) 2 K. B. 3S5.
* (1932) 34 X. L. R. 127.8(1914) 30 T.L. R. 560.
T
child.
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NIHILL, J.—Samarasinghe v. Simon.
in the present case. The evidence shows that the respondents alwaysrecognized the right of the petitioner to the custody of the child. InMalkieson v. Napier (supra) there was a finding that the return of thechild to its natural parent would be injurious to the child. That is notthe position here. The two homes offered are equal, but ours has theadditional advantage .that the child would have the company of herbrother and sisters, ^hain v. Taylor (supra) is more in point. Withregard to the rights and duties of a father in respect of his child, seeIn re Agar-Ellis'. The present aversion of the child for the petitionercan be easily overcome by the co-operation of the foster-parents.
L. M. D. de Silva, K.C., in reply.—The submission that the authoritygiven by a parent to another to bring up the child is revocable is correct •for the purpose of maintenance only and not for the purpose of custody.
To sum up the principles established in the English cases, the indigentcircumstances of a parent alone constitute a sufficient cause for refusalto restore the child.—The Queen v. Gyngall (supra). This is so, quiteapart from surrender. Secondly, where there is a surrender of thechild, the situation is altered. The onus is no longer on the respondentto establish the parent’s indigence. The principles that govern thermare :(a) Before the father can obtain the custody he must establish
good ground, of a positive character, as to why the existing conditionshould be disturbed, (b) mere absence of reason why the father shouldnot have the child back is not a sufficient ground. Even in Ran Menika v.Paynter (supra) there is a dictum of Drieberg J. that where there issurrender the case would be different from an ordinary one.
Cur. adv. vult.
December 11, 1941. Nihill J..—
This is an application for a writ of Habeas Corpus by Robert Earnest deSilva Samarasinghe asking for the custody of his child Ranee who is tenyears of age and who has been with the respondents since she was aninfant. The matter was referred to the Magistrate’s Court in Colombofor inquiry. The respondents contested the applicant’s right to havethe child and contended that such a change would be detrimental to herbest interests.
A great volume of evidence was led on both sides, and the learnedMagistrate at the conclusion of a lengthy report has recommended thatthe prayer of the applicant should be granted but that the respondentsshould be given three months’ time to hand over the custody of the child.Although the present proceedings are in no sense an appeal from theMagistrate’s inquiry I should be reluctant to disturb any findings of factarrived at as the Magistrate who had the witnesses before him, particularlyas it is evident that in the case this learned Magistrate has addressedhimself with great care to the evidence.
In fact I should like to say that this Court is indebted to the wayin which the learned Magistrate has fulfilled his duty in this difficult anddistressing case. It is a thousand pities that all efforts to arrive at anamicable settlement have failed.
1 (1SS3) S3 Li.. J. Ch. 10 cl p. IS.
NIHILL J.—Samarasinghe v. Simon.
131
Whenever litigation is started which involves* something in the natureof a conflict of wills there is always a danger that the voice of reasonwill be stilled by the heat of the contest but in this instance, I should bereluctant to conclude that either party is actuated by any other reasonthan what they believe will conduce to the best interests of this child,for whom both profess great love and affection. In the result however aburden has been placed upon me which I must discharge to the best of~my ability and with I hope a correct appreciation of the legal principlesinvolved.
I am conscious that my decision for better or worse must have seriousrepercussions on this family that have brought their troubles to CourtI still think it would have been better had the parties, who are closelyknit by ties of kinship, found their own solution of this very humanproblem but as that is impossible, then I can only hope, that they willhaving left the matter to this Court, not allow themselves to be estrangedby my decision but will co-operate together to ensure that its consequenceswill be beneficient.
The facts which have -resulted in the present situation can be brieflystated as -follows:—The petitioner married in 1927 and lost his wifesuddenly after an operation in 1932. He was left with four very youngchildren to bring up. He was not particularly affluent and he wasplanting at Akuressa.I think one can well understand that under
difficult circumstances he did the best thing in seeking the help of hisrelations. He and his wife had several brothers and sisters married andholding good positions in life and it was agreed that different membersof the family should have the care of these young children suddenly leftmotherless. Ranee was given to the respondents—Dr. and Mrs. daSimon. Mrs. de Simon was a sister of the petitioner’s wife.
There was some conflict of evidence at the inquiry as to the precisenature of the terms on which the respondents took over the charge ofRanee, but the learned Magistrate found, and I accept his finding, thatshe was given over on the understanding that she would not be claimedback at any time.
It is conceded that the petitioner has never contributed to hermaintenance. The respondents were childless themselves and theyseem to have lavished every loving care and attention upon the littleinfant which Fate had so unexpectedly bestowed on them. As Raneegrew out of infancy she called the respondents “ Mummy ” and * Daddy ”and till this day she thinks of them as such. Her own father to her is“ Uncle Wolly ” and she is now perplexed by his strange desire to gethold of her. It is this factor that makes this case so particularlydistressing.
The petitioner has never married again and as his circumstancesimproved there is evidence that he has made investments on behalf ofhis children including Ranee. Two or three years ago he was able togive up his lonely life at Akuressa and take a house in Colombo, wherehe lives with his mother, a lady of about seventy years of age.
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NIHIL.L J.—Samarasinghe v. Simon.
He then seems to have conceived the idea that he should gather hischildren together under his roof. He has been successful with his threeother children and now Ranee only remains outside the family fold andignorant of the true position of affairs.
From the correspondence produced before the Magistrate it appearsthat when ihe respondents realized that the petitioner seriously meantto have his child their resistance to the idea hardened, and entreatiessoon turned to a flat refusal. In (P 9) which was written on March 24,1941, the petitioner seems to have felt that he could then count on theco-operation from the respondents because he thanks them both for theconsideration they have shown and their promise to help.
It seems to me pretty evident that at that time the respondents werenot unmindful of a father’s natural rights in his child. What hashappened I think is that faced with the dread prospect of separationthey have not been able to face the sacrifice involved.
The correspondence also shows something else, namely, that thoughthere may have been a surrender of the infant Ranee to the respondentsthere never was an abandonment, an abandonment I mean in the sensethat an unwanted child may be given over to adoption by completestrangers to the natural parents. This I think is evident by the contentsof (P 7). This was a letter written to the petitioner by Dr. de Simonon January® 24, 1938, when he was contemplating a visit to Egypt as theCeylon Delegate to an International Leprosy Conference. He wrotethen: “ I am making arrangements to take Ranee with me ” and adds afew lines lower down:I fully trust that you will have no objection
whatsoever ”. I am not suggesting that this was not a very properattitude of Dr. de^Simon’s but it was not the attribute of a foster-parentwho recognized.^no right over Ranee other than his own. The petitionerreplied' by ,.his 'Tetter (P 8) of February 14, 1938 : “ I see no reason toobject to your taking her along with you if you think she would not'in any way be a burden to you when you are there ”.
No father who felt and knew that he had abandoned all rights andinterest, in his child would have written thus. I regard (P 7) and (P 8)as important because they were written some time before the letterswhich have led directly to the present impasse.
That in 1938 the respondents felt themselves to be more in a positionof custodians or trustees for the father than as persons who had steppedcompletely into the shoes of the natural parents helps to differentiatethis case from the Walker Case ’. There three Judges of the King’sBench refused an application from the parents for delivery up of theirten year, old child who had been adopted by the Walkers when a fewweeks old. The child had been born out of wedlock and the parentsdid not marry till several years later. The foster-parents were completestrangers to the natural parents, Mrs. Walker having obtained the infantthrough the. instrumentality of her doctor following the birth of astillborn child to her.
There was not much to choose between the social positions andcircumstances of the parties, indeed there was a suggestion that the child
■ (1912) 28 T. L. if. 343.
NIHILL J.—Samarasinghe v. Simon.
133
would ultimately benefit financially by the change as the natural motherexpected to come into a considerable sum of money on the death of thegrandmother. Mr. de Silva relied on on this case to show that it is notenough for the natural parent to show that he can provide as good ahome and that the ties of affection which naturally spring up between achild nurtured by forster-parents should not in the best interests of thechild be lightly disturbed. The Judges clearly decided against thenatural parents in the Walker Case (supra) because on a review of all thecircumstances they could not bring themselves to find that the changewould be best for the benefit of the child. Even so Mr. Justice Pickfordwho, although he concurred, expressed grave doubt as to whether thefacts really justified the Court in overruling the rights of the motherHe agreed however that the Court could overrule such rights
My study of the English cases cited to me and some others have shownme that there is really no ambiguity as to the legal principles which theCourt must bear in mind. One starts with the assumption that thenatural parent has a natural right. In certain circumstances that rightwill be paramount, in others it will not. Where there has been a surrenderor an abandonment the mere assertion of the natural right will not besufficient. In such a case the touchstone will be what is best for theinterests of the child and the Court will not lightly disturb the status quounless it is satisfied that there is a good ground for doing so. Somethingthat is likely to be conducive to the true benefit of the child would besuch a ground, something that will be clearly detrimental will operateat once against the claim of the natural parent.
Keeping these principles in mind I will now address myself to the factsof the present situation. Let me consider first what the father has tooffer. He offers a home and admittedly a good home in Colombo,a home which Ranee will share with her own brothers and sisters. Hehas an income which should be sufficient to maintain Ranee in much thesame way as she has been accustomed to. Her education will not beprejudiced as she will continue to attend the same school. He wishesto be in a position to bestow on her the natural love and solicitude of afather. No doubt it will take time for Ranee to .adjust herself to hernew environment and the process may involve a degree of emotionalshock and distress. I will consider that later. Putting it aside for themoment, there cannot otherwise be discovered anything on which Icould find that the change would be calculated to injure the best interestsof this child. But I will go further than that. Mr. de Silva has arguedstrongly that the judgment of Mr. Justice Eve in Mathieson v Napierand wife1 which was upheld in appeal demonstrates that where therehas been a surrender it is hot enough for a father merely to show thatthere is no reason why he should not be given his child back so far as hepersonally is concerned; he has to make out some good ground why theexisting state of affairs should be disturbed. Swinfen Eady L.J. in theappeal that followed in stating the law did not in terms place quite sohigh a burden on the natural parent, but he did not dissent from the viewexpressed by Mr. Justice Eve and I am content, to accept it as a principleupon which the Chancery Judges in England would act.
1 (19IS) 119 Lair Times Rep. Is.
134NIH1LL J.—Samornstnghc v. Simon.
The question then is, has the petitioner in the present case made out agood ground for a disturbance of the statics quo ? Mr. de Silva wouldhave it that a “ good ground ” must mean that the natural parent mustshow that a continuance of the status quo will be detrimental to the child.
1 think that is putting it too high. I would put it thus. It is notsufficient for a natural parent merely to say “ I am the father, nothing isknown against me. No one can say that I shall not be a good fatheras far as I am personally concerned ”.
No, he must do more than that. He must place all his cards on thetable, reveal all the circumstances, show that those circumstances willnot be injurious to the best interests of the child. If he can do all thatthen no Court I think can take upon itself to overrule the rights of afather, rights which lie deep down at the very roots of human society.For it he can do all that, can it be said that it is not “ a priori ” a “ goodground ” that a child should know its true status and be given anopportunity of coming to its true and rightful home ?
In the case before me I cannot find any evidence to show that apartfrom disturbance to the child’s present equanimity there are factorswhich point to the change being likely to be detrimental. On thecontrary there is one factor which should be beneficial. Ranee is one ofa family of four children. She has a brother who is now fourteen. Shehas a sister who is twelve and another sister who is about a year herjunior. At present she only knows these children as her cousions. Shehas met the girls at school and has no strong opinion about them. Shelikes Joyce “ a bit ” and does not like Nalini. Is it not to her interest'that she should know these children as her own brothers and sisters,grow up with them, share in their games and interests, build up withthem all the hundred and one associations which help to form the tiesthat keep families together ?
Mr. de Silva has argued that all this is speculative and to disrupt theties of affection that bind Ranee to her foster-parents for the, at leastdoubtful benefit that association v/ith her brother and sisters might bring,will not be in her best interests. In this matter I think I must take along view. It is certain that Ranee must know the truth some day,but she may know it too late to build up the kind of relationship whichshould keep and does keep in normal cases, brothers and sisters close toeach other through life.
Where other things are at least equal should I be right by my order todeprive Ranee of her opportunity of creating ties which should persistthroughout the lifetime of her generation and will be there when sheno longer requires the care and solicitude of either natural or foster-parent? I cannot bring myself to think that I should. I have saidenough then to indicate that so far as the circumstances of the father areconcerned I am of the opinion that the return of Ranee to her properfamily unit will not be injurious and is quite reasonably likely to bebeneficial.
There remains however another factor to be considered. It is inevit-able that any change in her present status must cause a degree of shock toRanee and may cause her acute distress. The learned Magistrate sawthe child and recorded evidence from her. She made it quite clear to
NIH1LL J.—Samarasinghe v. Simon.135
him.that she did not want to leave her “Mummy” and “Daddy” andthat she did not want to go to “ Uncle Wolly Of course she wa3produced from the custody of her foster-parents but even so there is noreason to suppose that the expression of her wishes is anything butgenuine. It would be unnatural if it was otherwise. Not too muchweight should be placed on this aspect of the case but I agree, that if themedical evidence showed clearly that Ranee was an abnormal child uponwhose mental life such a sudden shock would work irremediable harm,I should hesitate to grant, as 1 believe the petitioner himself wouldhesistate to press, this application. In fact the medical evidence showsnothing of the sort. Ranee has had her illnesses but all the doctors agreethat she is now a normal healthy child.
No less than seven eminent medical men gave evidence before theMagistrate. Four were called by the respondent and three by thepetitioner. Dr. Goonewardene, who may be called the respondents’family physician, gave details of Ranee’s medical history. Apparently,before her visit to Europe she was a somewhat delicate child and therewas at one time a suspicion of a tubercular infection. On her returnfrom Europe Dr. Goonewardene found her quite a healthy child.
He says “ She overcame all her ailments. In March, 1941, she had asharp illness due to some bowel trouble, probably dysentery ”. She ran ahigh temperature and it was during this illness that she showed signs ofhaving developed what has been called a fear complex towards “ UncleWolly ”. She had a dream in which “ Uncle Wolly ” took her away in asack. She was terrified and upset but she has had no recrudenscene ofthis dream.
As the Magistrate points out in his report “It is important to notethat the frightening dreams only occurred after the petitioner demandedthe custody of this child ”.
Dr. Goonewardene when asked his opinion as to the wisdom of Raneeleaving her foster-parents thought that if she was removed at oncewithout taking gradual steps to effect the parting her nervous conditionwould be aggravated and she “ might be upset mentally ”. He admittedthat the company of her sisters would be to her good rather than to herharm.
Dr. Seneviratne, a visiting physician to the Colombo General Hospital,has also attended Ranee from time to time. He was called in during theMarch illness. He thinks that because of this illness in March and thebad dreams it is inadvisable for Ranee to leave her present home. Inconsidering this doctor’s evidence I think it must be remembered that heis a friend of the parties and is a person who from the first tried to persuadethe petitioner not to get any of his daughters back. He seems to havebeen just as anxious about Joyce and Nalini as he is now about Ranee.Although he will not say that the petitioner’s experiment has so farsucceeded, he admits that he has seen the other two girls since at partieswhen he noticed that they were well dressed and playing about happily.In passing I should say here that not a scrap of evidence has beenadduced to show that the going back of Joyce and Nalini has beendetrimental to either.
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The next medical witness called by the respondents is an acknowledgedexpert in mental diseases, namely, Dr. C. O. Perera, the Superintendentof the Mental Hospital at Angoda.
At the request of the respondents he examined Ranee in June of thisyear. He says he found her a perfectly healthy normal girl physicallyand mentally, but he was told about her dream history. In his evidence-in-chief proceeding on the supposition that her hallucinations about“ Uncle Wolly ” were not due to any toxic condition (although theyoccurred during an illness) he has sketched certain dire consequenceswhich might result to Ranee’s mental development if fear and anxiety areallowed to produce certain complexes.
The learned Magistrate has been criticized by counsel for the respond-ents for stating in his report that he does not believe that the direconsequences envisaged by Dr. C. O. Perera are likely to occur. I mustsay that the learned Magistrate’s belief, in view of the medical evidencecalled by the petitioner, appears to me to be a sensible one. Further-more taking this expert’s evidence as a whole I think it is clear, that hisforecast as to what may happen to Ranee is based very largely on thesupposition that there will be no co-operation from the foster-parentsif Ranee leaves them. To accept that supposition would be to accept avery low view of Dr. and Mrs. de Simon, and it is one which I see noreason at all to take.
I am perfectly confident that the respondents will accept the order ofthis Court distressing as it will be to them, and having accepted it, will doall they can to ease the position for the child they love.
The last medical witness called for the respondents was Dr. Ratnavale,who is the holder of a certificate granted by the Royal Medico-Psycho-logical Association. He examined Ranee on three occasions in July ofthis year. He examined her at the instance of the petitioner who paidhim a fe.e. He told the petitioner that he would be no partisan in thematter and this honourable attitude subsequently permitted this witnessto. take a fee similar in amount from the respondents to whom he gave theReport (R 17). To one unversed in psychological terms the report mayat first sight appear a little alarming.
Bereft of such terms I should translate it as being a certificate to theeffect that Ranee is an essentially nice child. It is only fair however tosay that Dr. Ratnavale did detect in her a sentiment of fear of beingremoved by Uncle Wolly—“ who thus appears to her as a person fromwhom she should be protected ”. In his evidence Dr. Ratnavale gave itas his opinion that a forcible removal of the child will be detrimentalbecause it will create a conflict in the mind of the child.
Again as I have observed when considering Dr. C. O. Perera’s evidence,much will depend upon the attitude of the respondents. If theircooperation is secured there will be no forcible removal of Ranee.
I now turn to the medical evidence adduced by the petitioner. Hisfirst witness was Dr. S. C. Paul, who is a Fellow of the Royal College ofSurgeons. He does not profess to be a medical expert but he is a medicalman of wide experience and has, he says, treated a large number of children
NIHIL,L. J.—Samarasingher v. Simon.
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in the course of his practice. He is also incidentally a father of ninechildren himself, all of whom he has brought up to his entire satisfaction.He examined Ranee in June, 1941, and found her a bright and intelligentchild. When he examined her “ Uncle Wolly ” was patting her on thehead and she showed no sign of being afraid of him. This witnessperhaps because he is the fortunate father of nine children has strongviews about the hardships endured by the only child. His opinion isthat it is likely to do Ranee more good to learn the truth and to bebrought up in a family association with her brothers and sisters than toremain in what he seems to think may be the “ cotton wool ” atmosphereof the respondents’ home.
The next witness was Dr. C. C. de Silva, wh'o has attended specialcourses in children’s diseases both in Vienna and London and who hasmore or less specialized in such since his return from Europe. He alsoexamined Ranee in July and was given her medical history. Admittingthat Ranee may have a fear complex about the petitioner it is thisdoctor’s opinion that the complex can easily be removed by intelligenthandling.
He is certain that the knowledge that the petitioner is her father willhelp her to get rid of her fears. His general view is the same as Dr. Paul’sand he concludes his evidence as follows : —“ The difference betweenpermanent parting and a temporary parting is one of degree. If thepetitioner is given the custody of the child the respondents should beallowed to see the child. In my study of child psychology I have notcome across a single case where it is not desirable for a child to know herblood brothers and sisters. It is absolutely essential that a child shouldassociate with her brothers and sisters if she has them. The only child isa problem in child psychology ”.
Lastly we have Dr. I. A. Senanayake who is the Assistant Superin-tendent at the Mental Hospital, Colombo. He is well qualified in mentaldiseases but has not examined Ranee. He did however either hear orhas read all the medical evidence given in this case. He too stated thata fear complex in a child was the simplest and easiest complex to getover. He thinks it would be definitely harmful to Ranee to keep thetruth from her and considers that she should be told “ that Uncle Wollywhom she is so averse to is really her father—that he is not a malignantbeing but her own benign father ”.
I have gone into this mass of medical opinion at length in order tosatisfy myself that on medical grounds no abnormal factors exist whichwould outweigh and overrule all other factors in this case.
On a careful review of that evidence I cannot find such a factor. Boththe petitioner and the respondents are to be congratulated that Raneeis in fact a normal healthy intelligent child. No doubt since Marchshe had gone through trying experiences. It can do no child good to beaware of whispering and antagonism in the home and her frequentexaminations by medical men however eminent and however suavemay well have caused a vexation of spirit to this lively child. Raneemay have one more ordeal before her but when this is over I feel I amjustified in thinking that she will settle down.
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I have already alluded to the fact that the Magistrate has seen Raneeand taken evidence from her. I have considered carefully whether itwas my duty that I should myself see this child in my Chambers but Ihave come to the conclusion that it is not necessary. She has been seenby the learned Magistrate who is a gentleman belonging to the samecommunity and it is hardly likely that she would open her mind anymore to me whom she might regard as a very strange person. I do notwish to be responsible for the creation of any more fear complexes.She has told the Magistrate that she does not want to leave Dr. and Mrs. deSimon and that she is apprehensive about Uncle Wolly’s intentionstowards her. I might remark that she does not say she does not want tojoin her own father because, of course, she thinks that Dr. de Saram is herreal father.
Ranee is not yet of an age when her wishes can be a conclusive factor.Her wishes are really immaterial but they are entitled to be taken intoconsideration when” determining what is really for her welfare.
That this is a principle followed by the Chancery Judges in Englandwill appear from the two following citations. In re Agar-Ellis ‘Brett M.R. at page 14 said: —
“ It is the universal law of England that if any one allege thatanother is under illegal control, he may apply for a writ of HabeasCorpus, and have the person so alleged to be in illegal custody or underillegal control brought up before the Court. But the question for theCourt is, whether the person is in illegal custody without that person’sconsent. Now up to a certain age infant children cannot consent orwithhold consent. They can object or they can submit, but theycannot consent. The law, because the Court cannot inquire into everycase, has fixed on a certain age—in the case of a boy at fourteen, andin the case of a girl at sixteen—up to which the Court will not, upon anapplication for Habeas Corpus as between father and child, inquireas to whether the child does or does not consent to remain in the placewhere it may be. ”
And in the Gyngall Case ‘ Kay L.J. after quoting the above passage saidat page 251 : —
“ When one comes to consider what it is that the Court of Chanceryhas to determine and what the main consideration in exercising itsjurisdiction was, viz., what was really for the welfare of the child,whose interests were being discussed, it is obvious that if the child wereof any reasonable age, the Court would hardly desire to determinethe question without seeing and speaking to the child and ascertainingits own views on the matter. So again and again in such cases, wherethe child was not of very tender years, the practice has been that theJudge himself saw the child, not for the purpose of obtaining the consentof the child, but for the purpose, and as one of the best modes, ofdetermining what was really for the welfare of the child ….”.Ranee is well imder sixteen years but she is of a reasonable age to be1 {1884) -5-3 Law J•<1 p. IS.1 {ISOS) Law Ifep. Q.-B. Vol. 2. p. 252.
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interviewed and this has been done. The learned Magistrate havingseen her and listened to what she had to say has felt it his duty torecommend her return to her natural parent.
I feel certain that had some special factor emerged from his inspectionof the child which had not appeared otherwise from the evidence thelearned Magistrate would have noted it and taken it into account beforereaching the conclusion that it will not be injurious to the best interestsof Ranee that she should be handed over to the petitioner.
The English principle that the wishes of a female infant under sixteenv/ill not be taken into consideration on an application for a writ of HabeasCorpus except in the sense that I have indicated has been followed in ourCourts as the judgments delivered in Gooneratnayaka v. Clayton ' illustrate.That case is also useful because one of the points argued was whether theRoman-Dutch law or English law was applicable. Fisher C.J. was of theopinion that the Court in exercising the jurisdiction given it by section 45of the Courts Ordinance of issuing “ mandates in the nature of writs ofHabeas Corpus ”, the Court should apply English law when considering thequestion submitted to it. No doubt this Court would also have regardto the personal law applicable to the parties before it. No difficulty ofthat nature exists in the present case as all trie parties are Christians andit has not been suggested during the course, of the argument before methat I am not free to follow the general principles laid down by theJudges in England when exercising their Chancery jurisdiction. LearnedCounsel on both sides have also agreed that there is no recorded case inCeylon where the facts are near enough to those existing on this applica-tion to be of service as a guide in showing me what decisions any of mypredecessors might have come to if faced with similar facts.
I have already set down the principles which I think emerge from theEnglish decisions and I need not restate them. In the M at hie son v. NapierCase ~ and in the Gyngall Case * the Court refused the application of thenatural parent but on the facts as recorded in the reports of those casesit is easy to see the reason for the decisions. Thus in the former caseSwinfen Eady L.J. was satisfied that “ it would be very detrimental andvery injurious to the best interests of the child ”.
Likewise in the Gyngall Case (supra) the natural mother was a personstruggling with adversity ” and the child who was very nearly sixteenwished to stay where she was. The Court Jiad therefore no difficulty infinding that it would be detrimental to order any change.
There is one other case which I think I should mention because it wasrelied on by the learned Magistrate:This is Thain v Taylor*. Mr. de
Silva has pointed out that on the learned Magistrate’s finding of factthat the petitioner did surrender Ranee to the respondents this case hasnot the applicability which the Magistrate has seen in it. It may be thatthe Magistrate has overlooked this distinction but it does not I think followthat the case is of no assistance to us in the present instance. In manyrespects the facts are similar. There too the natural father had lost his%
* (1929) 31 X. L. B. 132.3 (1S93) Law Bep. Q. B.. Vol. 2. p. 232.
2 (1918) 119 Law Times Bep. IS.* (1920) Law Times Bep. Vol. 135, p. 99.
140
NIHILL J.—Samarasinghe v. Simon.
wife in child-birth and had handed over his infant daughter to his wife’ssister and her husband. When she was seven years old he wanted herback. A difference is that the father had regularly sent remittances forthe keep of his child but it is also clear from the facts reported that thefoster-parents regarded the child as theirs by adoption and thought thatthe father had deliberately surrendered paternal rights.
The Court came to the conclusion that it was in the true interests of thechild that she should return to her father and ordered accordingly. 1cannot refrain from quoting the same passage from Lord Hanworth’sjudgment (at page 103) as has been cited by the learned Magistratebecause it is precisely what I wish to say on the present application butwhich 1 might express in less felicitous language : —
“ I appreciate the skill of Mr. Maugham and Mr. Robertson in theirpresentment of the case and their care of the feeling of the husbandand the parties in this appeal. It is said that the child is now withher maternal aunt and that the present wife of her father has not hadtouch with the child. At some time the father and his daughter oughtto be brought in touch together, so that the happy relationship of fatherand daughter may be established. Mr. Maugham has clearly statedthat he does not disregard the rights of the father to the custody of theinfant at some time. At what time ? Is the child to be left with theJones’ until she becomes more and more accustomed to her aunt anduncle ? Both sides are of the highest moral character but I thinkthat the child ought to be brought into contact with her father, andin the interests of the child that should be now, at the present time,and the child be given an opportunity of coming into her rightfulhome. I agree with the judgment of Eve J. and see no reason todisturb it. The true interests of the child are that she should be guidedto feelings of love and respect towards her father, with gratitude to theJones’—and I hope that the parties will be careful to put no impedimentin the way of this, so that the child may have, in effect, two happyhomes that will be to her true advantage …. ”.
Having reached a similar conclusion, namely, that it will not be detrimentalto the best interests of Ranee that she should return to her rightful homeand having found that the petitioner has shown a good ground for adisturbance of the status quo I am bound to support the recommendation. of the learned Magistrate.
To help to meet some of the fears expressed by the medical witnessesthe Magistrate has recommended that a period of three months should begiven to the respondents. I accept also the recommendation but I onlydo so because I feel I can place reliance in Dr. and Mrs. de Simon. If 1thought that they would use the period to poison the mind of Raneeagainst the petitioner I would in Ranee’s interests order an immediategiving up to the petitioner.
I order therefore that this child Ranee de Silva Samarasinghe be givenover by the respondents to the custody of the petitioner on or beforeMarch 12, 1942.
SOEBTSZ J.—Perera v. Wickremaratne.
141.
As the learned Magistrate who concluded the inquiry is no longer onthe Magisterial Bench I shall not return the papers to the Magistrate’sCourt. If any question arises in which either party require directions,application can be made to a Judge of the Supreme Court inChambers.
With regard to costs, no doubt, the petitioner has been put to consider-able expense in order to obtain his child. At the same time he must bearin mind that he is under a deep debt of gratitude to the respondents forhaving maintained his daughter for so many years without expense tohimself. Under these circumstances therefore I do not propose to makeany order as to costs.
Rule made absolute.