IN THE MALAWI
SUPREME COURT OF APPEAL
AT
BLANTYRE
MSCA
MATRIMONIAL APPEAL NO. 34 OF 1995
(Being
Matrimonial Cause No. 19 of 1993)
BETWEEN:
ERICA GAY
ARCHIBALD......................................................APPELLANT
-
and -
COLIN MICHAEL
ARCHIBALD..........................................RESPONDENT
BEFORE: THE HONOURABLE
MR JUSTICE UNYOLO, JA
THE
HONOURABLE MR JUSTICE MTEGHA, JA
THE
HONOURABLE MR JUSTICE, KALAILE, JA
Nkhowani,
Counsel for the Appellant
Jussab,
Counsel for the Respondent
Ngaiyaye
(Mrs), Official Interpreter/Recorder
J
U D G M E N T
Kalaile, JA
My Lords, this is an appeal from the judgment of the
learned Chief Justice in which he gave custody of two girls, then aged 5 and 7
years, to the Respondent, who is the father of the children. The appellant and the respondent were
divorced in February 1995 and the lower Court made the custody order in June of
the same year.
The appellant’s Counsel filed nineteen grounds of
appeal, but opted to argue these in certain groupings. Counsel for the appellant challenged the
accuracy of certain conclusions of fact made by the lower Court. Whilst following Counsel for the appellant’s
pattern as stated in his submissions, we shall attempt to relate Counsel’s
approach to the material paragraphs in the judgment.
The following paragraph in the judgment was the first
to come under criticism by Counsel. It
reads:
“The petitioner has a home in the UK where his
parents stay and he is in a position to procure accommodation for any of the
children. He stated that his parents’
home is very close to a very good school and that there is nearby a very good
hospital where, as a matter of fact, Sarah was born. He has told the Court that he is now trying to acquire a house
of his own at 50 Chapman Avenue, Beardstead, Maidstone, and that he has
obtained a loan from Barclays Bank to help him in paying for the house. It was his evidence that his parents’ home
is a four-bedroomed house in secure surroundings and are currently the only
occupants of the house. His parents’
house is fully paid for and that it is in their ownership entirely. There is no loan secured on the house. He stated that while he was acquiring his
own house, his parents with whom the children are very familiar and have lived
with them before, would look after the children. He also stated that his sister and her husband live nearby from
his parents’ house. Allan stays with
his grandparents over weekends. It was
his evidence that Allan is happy although he misses his sisters.”
Now, in this appeal, the custody order relates to
Sarah and Michelle, the two girls, whereas by agreement between the parties,
Allan, the eldest child, was in the custody of the respondent and living in
England. The two girls were, at the
time the custody order was made, living with their mother in Mangochi,
Malawi. Counsel for the appellants took
issue with the passage cited above by arguing in ground xv of the grounds of
appeal that the conclusion drawn by the learned Chief Justice in the final
paragraph of his judgment that:
“After considering all the facts before this Court, I
am satisfied that the petitioner has a home for the children and I am
further satisfied that it will be in the interest, welfare and happiness of the
children if custody is granted to him.”
cannot
be supported by the evidence. Mr
Jussab, Counsel for the respondent, deponed at page 4 of the Court Record that
the respondent had a home in the United Kingdom where his parents stayed
and was in a position to procure accommodation for any of the children in the
event of any such child attending school away from his or her parents. This was definitely not correct, because the
respondent said in his evidence-in-chief that he was in the process of
acquiring his own house in the United Kingdom using a loan from Barclays Bank,
which was granted to him. And later, in
cross-examination, the respondent stated that his employer was assisting him in
getting a house in the United Kingdom.
The only house that existed in the United Kingdom, at the
material time, belonged to the respondent’s parents, and not to the respondent,
as concluded by the learned Chief Justice.
We find ourselves in agreement with the submission of Counsel for the
respondent on this point.
The next passage in the judgment which Counsel took
issue with as not being supported by the evidence on record is the following
paragraph:
“The guiding principles in an application for custody
of children is the welfare and happiness which is the paramount
consideration. It would be wrong to
deny custody to any parent on the ground that he or she was the guilty
party. The paramount consideration is
the welfare and happiness of the children.
Would it be in the interest of all the children that they should be in
the care and custody of one parent? Or
would it be in their interest and welfare that they should live separately away
from each other? I have carefully
considered the views of both parents and I must be guided by what will be in
the best interest and happiness of the children. Mr. Dale, with whom the respondent lives, is not related to the
children nor is there any prospect of a marriage between him and the
respondent. On the other hand, the
petitioner’s parents are the grandparents of the children with whom the children
are very familiar and have lived with their grandparents before. There is no evidence to suggest that the
grandparents would not give to the children parental love, guidance and
care. In my view, Mr. Dale, however
anxious or how best he may try to do for the children, cannot take the place
of their real parents. The
respondent has no house of her own and according to the evidence before this
Court, even if such house was available, she would not be in a position to
afford it. I note in the affidavit in
opposition that the respondent now says that she would afford such a
house. This contradicts her evidence in
the first application, when she stated that she sometimes runs short of money
and that the co-respondent lends her money.” [emphasis supplied]
It was argued by Counsel for the appellant that the
trial Court, quite properly, applied the correct legal principles when dealing
with custody issues. In Kazima
-v- Kazima, 9 MLR 182, the Malawi Supreme Court recognised the exercise
of a judge’s discretion in applying the principles of welfare and happiness of
children in custody proceedings.
Furthermore, Lord MacDermott in J -v- C (1969) All ER
720, defined the paramountcy of the child’s welfare in the following terms
in custody proceedings:
“It seems to me that those words (welfare and
happiness of the child) 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 consider a
process whereby when all the relevant facts, relationships, claims and wishes
of parents, risks, choices and other factors are taken into account and
weighed, the course to be followed will be that which is most in the interest
of the child’s welfare as the term now has to be understood. That is the first consideration, because it
rules or determines the course to be taken.
The essence of this paramountcy test is that the child’s welfare must
prevail over any other consideration.”
Counsel for the appellant argued that the trial Court
placed undue emphasis on peripheral issues such as Mr Dale not being a blood
relation of the children and that the grandparents of the children were very
familiar with the children. Whereas,
the custody of the children was being sought and granted to the appellant or
the respondent and not the respondent’s parents. Counsel argued that the conclusion drawn by
the trial Court, that:
“In my view, Mr. Dale, however anxious or how best he
may try to do for the children, cannot take the place of their real parents”
is
totally correct and applies with equal force to the children’s grandparents as
custodians of the children.
In Willoughby -v- Willoughby (1951), p184 at
190, Singleton, LJ, said at 192:
“I have yet to learn that the fact that a woman
commits adultery prevents her in all circumstances from being a good mother.”
So
that the fact that the appellant was living with Mr Dale should not have been
taken as a key factor in determining whether or not she should have custody of
the children.
Lastly, it was argued on this same point by Counsel
for the appellant that the appellant had agreed that the respondent should have
custody of Allan, the eldest child, but that she had custody of Michelle and
Sarah for a period of 4 years and that no problem had been encountered so far,
and, this arrangement had been found to be satisfactory to both parties. The status quo should have been left
to subsist if there was no evidence that the children’s welfare was at
risk. The respondent stated in his
evidence-in-chief that he was in touch with the children on the telephone and
that they were happy and in good health in Mangochi where they lived with the
appellant. It should be recalled that
the ages of the children were, at the material time, 7 years for Michelle and 5
years for Sarah. By the material time,
we mean by the time when the judgment was delivered.
The authority relied on by Counsel for the respondent
for the maintenance of the status quo was D -v M (1982), 3 All
ER 897, where Ormrod, LJ, states at pages 902-903, whilst referring
to the case of Evans -v- Bartlam (1937), 2 All ER 646:
“In our opinion the justices attached much too little
weight to three important considerations.
In the first place, it is generally accepted by those who are
professionally concerned with children that particularly during the early
years, continuity of care is a most important part of a child’s sense of
security and that disruption of established bonds is to be avoided whenever it
is possible to do so. Where as in this
case a child of two years of age has been brought up without interruption by
the mother (or a mother substitute) it should not be removed from her care
unless there are strong counter valuing reasons for doing so. This is not only the professional view, it
is commonly accepted in all walks of life.”
Counsel for the appellant raised other points why
custody should have been granted to the appellant rather than the
respondent. We do not consider it
necessary to delve into these other issues.
Suffice it to say that, on the basis of the points covered so far in our
judgment, we would have granted custody of the two girls at the point in time
when the judgment was delivered in the Court below to the appellant.
It is to be noted, however, that after the appeal
herein was lodged, the parties reached an agreement on the very issue of the
custody of the two girls. The agreement
was reduced into writing and filed in Court as a consent order. An examination
of the Consent Order shows that it was mutually agreed by the parties that
Michelle and Sarah would travel to England around 17th December 1995, where
they would live with the respondent while attending school thereat. It was further agreed that whilst in
England, both parties shall share the two children’s long vacations equally and
alternate the Christmas and Easter holidays.
Again, it was agreed by both parties that in the event of the appellant
being desirous of having the two children spend any mid-term holidays with her
in Malawi, the respondent would allow the appellant to stay with the children
if circumstances would so permit, and this would be on condition that the
respondent would be solely responsible for all the costs for the two children’s
travel to Malawi from England and back.
The respondent undertook to notify the appellant of any mid-term holiday
dates so as to ensure that mutually agreed arrangements were made prior to the
two children’s departure for Malawi.
Counsel for both parties signed the Consent Order for
and on behalf of their clients and no evidence was adduced to demonstrate that
the terms of the Consent Order were breached by the respondent. For these reasons, we do not see the need
for giving custody of the two girls to the appellant when the girls are now 10
and 8 years of age and already attending a boarding school. Besides, their sojourn to England is
specifically catered for by paragraph 1 of the Consent Order. In our opinion, the terms of the Consent
Order are framed in such a way as to be very generous to the appellant and
rather onerous to the respondent.
Since, as we have pointed out, there is no evidence that the terms of
the Consent Order were breached, we would rather that the status quo is
maintained, and we so order.
Each party shall pay its own costs.
DELIVERED in open Court this 11th day of November
1998, at Blantyre.
Sgd. ............................................................
L E
UNYOLO, JA
Sgd. .............................................................
H M
MTEGHA, JA
Sgd. .............................................................
J B
KALAILE, JA