Shuric Merchant v Tameika Williams

• Jurisdiction: Saint Kitts and Nevis
• Judge: LEIGERTWOOD-OCTAVE J
• Judgment Date: 11 November 2010
• Judgment citation (vLex): [2010] ECSC J1111-3
• Court: High Court (Saint Kitts and Nevis)
• Docket Number: CLAIM NO. NEVHCV 2009/0085
• Date: 11 November 2010

[2010] ECSC J1111-3

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. NEVHCV 2009/0085

In the Matter of the Guardianship of Infants Act Cap. 323 of the Revised Laws of St. Christopher and Nevis

In the Matter of an Application by Shuric Merchant, the Father for Sole Custody of Faith Merchant a Child Born of the Body of Tameika Williams

Between

Shuric Merchant

Applicant

and

Tameika Williams

respondent

Appearances:

Mr. Geoffrey Romany for the Applicant.

Ms. Asure Dee Liburd for the Respondent.

Introduction

LEIGERTWOOD-OCTAVE J

1 I start by indicating that in this judgment, I will be referring to the parties by their first names. I do so only because other persons mentioned in the case have the same last names, so the first name references are not casual but expedient in the circumstances.

2 Tameika Williams ["Tameika"] and Shuric Merchant ["Shuric"] are the fairly young and unmarried parents of Faith Tamoya Nathanya Williams ["Faith"], who was born on 24^th April 2007. Although they had been involved in an intimate relationship, Shuric was not aware that he was Faith's father until a DNA test was done shortly after her birth.

3 Faith initially lived with Tameika at the home of her maternal grandmother, Mrs. Viania Williams ["Mrs. Williams"] but she began to live at with Shuric at his parents' ["the Merchants] home not long after she was born. Shuric suggests that it was three weeks after, Tameika puts the period at three months. It is however common ground that Tameika herself moved into the Merchant's home sometime later but again she and Shuric do not agree on the circumstances which precipitated that move.

4 Both Tameika and Faith were at the Merchant's home for about two years until Tameika left on 6^th June 2009 and returned to her mother's home. Not surprisingly, there are competing versions from Tameika and Shuric as to what led to that move. Her version is that it evidenced the end of their relationship and they had previously discussed it. His version is that it came as a complete surprise to him. The only thing that is agreed is that Faith remained behind.

5 Four days after Tameika's departure, the unpleasantness between her and Shuric culminated in a physical altercation at his parents' home in which the police became involved. At that time Tameika demanded that Shuric and his parents hand over Faith and they refused. Two days later Shuric filed the application for sole custody of Faith, which is now for determination by the court. In her affidavit opposing the application Tameika has asked the court to give her sole custody.

The Law

6 The Guardianship of Infants Act ["the Act"] Cap.323 of the Laws of the Federation of St. Christopher and Nevis governs matters related to the determination of custody in this jurisdiction.

7 Section 3 is by far the most important section as it sets out the two primary matters that the court must consider in these types of proceedings. The Court is mandated to regard the welfare of theinfant as the first and paramount consideration and it shall not consider the claim of either the mother or father to be superior1.

8 What is meant by the term "welfare of the infant" was considered in the authorities submitted by Ms. Liburd. In Re Thain 2[1926] All ER 3842, it is defined as being related to the infant's general well-being rather being restricted to a question as to whether the child would be happier in one place or another.

9 InJ v C [1970] AC 6863 Lord MacDermott, offered guidance when in considering the words in the English statute he stated:

"Reading these words in their ordinary significance …it seems to me that they must mean more than that the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices, and other circumstances are taken into account and weighed, the course to be followed will be that which is the most in the interest of the child's welfare as that term has now to be understood. That is the first consideration because it is of first importance and paramount consideration because it rules on or determines the course to be followed."

The Custody to the Mother Issue

10 There is one issue raised by Ms. Liburd which I think it would appropriate to address at this time. Althoughsection 3 of the Act provides that neither parent has a superior claim in custody proceedings, Ms. Liburd urged the court to consider and adopt the principle that the custody of young children, especially girls should be given to a capable mother4.

11 She relied onAustin v Austin [1865] 55 ER 6345, Stephenson v Stephenson6 and Brixey v Lymas [1997] S.C. (H.L.) 17 for that proposition. In each of these cases the courts went to great lengths to underscore the importance of the irreplaceable maternal bond in relation to children of tender years, emphasizing what counsel for the father in Brixey8 referred to as the "maternal preference".

12 The courts found that there with a child of tender years there was no substitute for a mother and the care of a mother9; a female child's interest is better served when she is in her mother's custody and care10 and the relationship and bond between a very young child and his or her mother cannot be duplicated by the father11.

13 The approach of these courts in both England and in the Commonwealth Caribbean, an approach Mr. Romany urged this court to move away from, is analogous to the "tender years doctrine" which was previously applied by courts in many states throughout the United States. This doctrine which was formalized in 183912 presumed that the mother of a child in their tender year is the preferred parent when custody is being determined. The doctrine has been abolished and the legal presumption no longer exists13, it has been replaced by a "best-interests-of-the-child" standard".

14 What I glean from the cases is that in the case of a child of tender years very much for emotional and perhaps psychological reasons, his or her mother, once she is capable, is usually the proper person to be given custody. As Lord Jauncey of Tullichettle observed14 this is neither a presumption nor a principle but rather recognition of a widely held belief based on practical experience and the workings of nature.

15 The mother can be said to be the starting point but as no two child custody cases are the same there cannot be "one size fits all" application to every case. Each case must be viewed on its particular facts and circumstances. The capability of a mother is not the deciding factor in awarding custody.

16 InBrixey, the House of Lords approved Butler-Sloss LJ whose words in my view are an apt conclusion on the "custody to the mother" issue:

"There are dicta of this court to the effect that it is likely that a young child, particularly perhaps a little girl, would be expected to be with her mother, but that is subject to the overriding factor that the welfare of the child is the paramount consideration."

What is best for Faith's welfare?

17 Determining what is best for Faith's welfare takes us back to Lord Mac Dermott inJ v C15. It is at this stage that the court must consider and evaluate all the factors which affect her welfare.

18 Mr. Romany's attempt, in his submissions, to set out the factors that the court should take into consideration accords with the process, outlined by Lord Mac Dermott.

19 Those factors were age and sex of the child; physical, mental health and emotional needs of the child; the parent who has been taking care of the child; conduct and character of each parent; conduct and character of each grandparent/other family members assisting parent in raising the child; religious education and the detriment to the child if removed from present environment. I have noted the submissions of both Mr. Romany and Ms. Liburd on each factor but I do not intend to slavishly consider each in turn.

20 I have taken additional factors into consideration: the love and affection and emotional ties between the parents and Faith; the capacity and willingness of each parent to provide for and take care of Faith; the length of time that Faith has lived in her present environment; the stability of her present environment; the desirability to maintain continuity; the family units in Shuric and Tameika's homes; the willingness and ability of each parent to facilitate and...