Re R (an Infant) Guardianship and Custody
| Jurisdiction | Anguilla |
| Judge | Saunders, J |
| Judgment Date | 29 September 2000 |
| Neutral Citation | AI 2000 HC 7 |
| Date | 29 September 2000 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Docket Number | Civil Suits Nos. 97 of 1997 & 27 of 2000 |
High Court
Saunders, J.
Civil Suits Nos. 97 of 1997 & 27 of 2000
Mr. G. Hamilton for the plaintiffs
Ms. Josephine Gumbs-Connor for the defendants
Family law - Adoption — Guardianship of Infants Ordinance, Cap. 323 — Adoption of Children Ordinance.
Two sets of proceedings are before me for determination. They both concern R, an infant. R is the child of L. The infant was conceived as a result of a sexual assault upon L. At the time of the assault, L was a school child just 13 years old. The perpetrator of the assault left Anguilla shortly after committing his vile deed.
The first suit to be instituted was for the adoption of R by the couple whom I will refer to as the defendants. The adoption papers were filed on 14 th October, 1997. L and L's mother signed formal consents to the making of the adoption. They both swore affidavits that they were unable and unwilling to raise R.
Had the adoption proceeded in a more expeditious manner it is likely that it would have been granted. The file discloses however that on 23 rd August, 1999, before any such order was made, L and her mother filed a document indicating that they no longer were prepared “to pursue with the adoption process of the said infant”. Some months later, together with the natural father of the infant, they commenced the second set of proceedings.
The latter proceedings were filed pursuant to the Guardianship of Infants Ordinance, Chapter 323. The applicants therein, (L, her mother and R's natural father) are asking for orders that the adoption application be dismissed and that the infant be “returned to the custody of its parents”. This court made an order consolidating both of sets of proceedings. It was agreed that the consolidated hearing should take place during the Long Vacation.
Save for R's natural father and the prospective adoptive father, the court saw and heard all the parties to these proceedings. The court also heard from a psychologist retained by the defendants and from two social welfare officers charged by the court to make investigations and report to the court. Counsel on each side had an opportunity to cross-examine everyone who testified.
From the evidence that was led, I find the following facts. When L was pregnant with R, L's mother decided that it was not practicable for her or for L to raise the child then still a foetus in L's womb. During this time, L's mother agreed with the defendants that they should raise the child from birth. L herself, at the time, did not want the child. She wanted to get on with her life and to go back to school. The defendants desired to raise the child as their own. They were concerned that L and her mother might renege on their arrangement. They therefore went out of their way specifically to inform L and her mother that “if you guys know you are going to give me a child today and come back for it tomorrow I don't want it”.
Before R's birth it was therefore settled that the defendants would raise R. Accordingly, the defendants made all the necessary baby preparations for R. After giving birth to R on the 17 th August, 1997, L and her mother proceeded directly from the hospital to the home of the defendants. R was then placed in the care of the defendants. Shortly thereafter, the adoption papers to which I have already alluded were drawn.
From the very day they obtained the custody of R, the defendants encouraged L to come to visit R at any time she wished. I completely believe the following evidence that was given by the prospective adoptive mother. She said:
“L came by on the week-end. After that she would come maybe every other week-end. She would stay about five to ten minutes. The person who would drop her would wait for her in the car. She never spent an hour or two at any time. Gradually her visits faded away. It started fading away in September, 1998. She was coming for almost an entire year. I asked her what happened why she was not coming to see the child. She said she had no transportation. I told her she could call me and I could come and pick her up……….She called me on two occasions for me to pick her up. I went and did so”.
In September, 1998 R's natural father returned to Anguilla and expressed a desire to see R. The defendants facilitated the visit, ensuring that L and L's mother were on hand throughout the duration of the visit. Subsequently, the father was arrested and he pleaded guilty to the sexual assault upon L.
Between September, and December, 1998, L did not see R. However, on 23 rd December L expressed the wish to have R spend Christmas with her. The defendants were put out at this. Christmas is a special time in the life of a young child. By then they must have made preparations for celebrating the occasion with R. In light of the child's unfamiliarity with L and the persons in L's household, they thought that it would be better if L came to their home instead. They told this to L. She was not pleased. Nor did she avail herself of the opportunity to see R at their home at Christmas. L next saw the child on 11 th May, 1999.
It is very clear to me, and even L agrees with this view, that the defendants truly love R and have been raising him as if he were their own son. Indeed, the defendants are the only parents R knows. I saw myself the close affinity R has with the defendants. During the proceedings he was wont to nestle himself in the lap of either of them even as he seemed entirely oblivious of the presence in the room of his natural mother and grandmother. L herself openly acknowledged that R is happy where he is. The defendants are willing and able to offer him a comfortable and loving environment.
L and her mother recently swore affidavits stating that since R's birth, L's circumstances have changed considerably for the better and that L is now willing and able to look after her child. In sifting through the testimony however I saw no evidence to support that view. If anything, the evidence tended to justify its converse. For a start, L is pregnant again. She conceived while still at school. Her baby is due in December.
The grandmother says that if L got the child back L will receive support from the child's father. She mistakenly laboured under the belief that the child's father was remitting monies to the Welfare Department for the child's upkeep. R's father, one of the plaintiffs, was indeed ordered to make regular periodic payments of maintenance for R's support but, except for one or two payments, he has failed to do so.
Since R's birth, L's household has grown in number. The social worker reported that “L resides…….with her mother, her five siblings, grandparents, uncle and aunts, in a five bedroom house. [L's mother] has three children plus another grandchild that she takes care of”.
On the basis of all the above facts, I cannot presently conclude that R's interests will be better served by being sent to join that household. Originally, L and her mother swore that they were unable to raise R. I believe then that they were being truthful. I also believe that since then there has been no improvement in their circumstances and those circumstances may now be worse. It was L's mother who had made the decision to give out R for adoption. Bread and butter issues aside, on the evidence presented to me, I cannot form the view that she has really had a change of heart regarding R. I see little serious effort on her part to establish any close emotional ties to R. While I may be prepared to give L...
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