Pile v Pile (No. 2)

• Jurisdiction: Barbados
• Judge: Williams, C.J.
• Judgment Date: 08 August 1977
• Neutral Citation: BB 1977 HC 35
• Docket Number: No. 483 of 1977
• Court: High Court (Barbados)
• Date: 08 August 1977

Supreme Court

Williams, C.J. (Ag.)

No. 483 of 1977

Pile

and

Pile (No. 2)

F.G. Smith, Q.C., S.C., and V.O. Smith for the plaintiff.

W.H.A. Hanscell, Q.C. and P. Williams for the defendant.

Family Law - Children — Custody

Facts: The issue to be decided concerned the custody of four children of the marriage — The parties were husband and wife

Held: That having regard to the welfare of the children as being of paramount importance they should be made wards of the court with care and control going to the mother because of the sex and ages of the three youngest children — The father was entitled to reasonable access.

1 Williams, C.J. (Ag.): The plaintiff and the defendant were married on September 4, 1962 and have 4 children whose names and present ages are: Laurie Douglas 11, Virginia Grace 10, Jennifer Dorothy 7 and Charlotte Mary 2. At the time of the marriage the plaintiff and the defendant were members of the sect commonly known as the Closed Brethren and their children have been brought up in this faith.

2 Difficulties have now arisen between the plaintiff and the defendant and the application before the court seeks to have the children made wards of the court and their care and control committed to the plaintiff – mother.

3 There can be no dispute as to the approach which I must take in resolving the matter. Section 8 of the Infants Act, Chapter 215 makes this clear. This section is as follows:–

“8. Where, in any proceeding before the Court, the custody or upbringing of an infant or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the Court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application, is superior to that of the mother or the claim of the mother is superior to that of the father.”

4 This approach recognized as proper in the cases cited before me. J. and Another v. C. and Others [1969] 1 All E.R. 788; Re K. (Minors) (Wardship, care and control) [1977] 1 All E.R. 647; S.(B.D.) v. S.(D.J.) (infants: care and control) [1977] 1 All E.R. 656; and A. v. A. (1965) 8 W.I.R. 247. Counsel for the plaintiff in his address suggested that in A. v. A., last cited, the welfare of the child was not considered but this suggestion can hardly be taken seriously when reference to section 8 of the Infants Act, Chapter 215, above quoted, was made by the learned trial judge at p.247 and at p. 249 these two paragraphs occur:–

“The fact that the mother is shortly going to live permanently in the United States of America will in effect cut off all practicable access by the father. This is regrettable and my sympathy goes out to the father in these circumstances, however, the welfare of the infant comes first and may not be subjected to any other consideration.”

“In accordance with well established principles courts never attempt to adjudicate between the merits of different faiths, and I have no desire to do so. However, it is impossible for me to consider the welfare of this child without at the same time taking into consideration this doctrine of separation above mentioned.”

5 Counsel made some other comments on this case and it is as well to deal with them at this stage. He observed that no cases were referred to or cited. But it must be noted that the learned judge having put himself on the right road by invoking the proper approach, it became a question of seeking the right decision on the facts of the case before him and failure to refer to other cases constitutes by itself no demerit. Counsel also referred to the fact that in A. v. A. the issue of custody had been decided in the divorce proceedings which had preceded the application and that a consent order followed the divorce. I cannot understand why this point was made because the application by the divorced wife in A. v. A. to take the child out of the jurisdiction was opposed by the husband who did not want his daughter to grow up in a foreign land and who wanted the child instructed in his own religion.

6 Counsel sought to draw a distinction in that in A. v. A. the application before the court was to take the child out of the jurisdiction while the present application is to make the children wards of Court. Here again the point being made is obscure. Where a child is taken out of the jurisdiction the court has no direct control over the child. The court retains the custody of a child who is made a ward of the court.

7 Turning to the facts of the instant case, I can instantly and without hesitation venture these opinions –

• (1) that the children should not be separated from each other but should have one another's companionship. They should live and be brought up together. Recognition of this special need arises in part from the unfortunate situation which engulfed them over the last year and a half. It is reinforced by the evidence of their aunt, which I accept, that the children are very attached to each other;

• (2) that their ages and the sex of the three youngest would make their natural place to be with their mother. The ages of the last two are 7 and 2. The last three are all girls. All of them were drawn even closer to her in recent times when the dictates of their faith led to their being shut off not only from contact or association with the non-Brethren world but also from the fellowship of members of the group. Their happiness and sense of security are important.

8 Having expressed these preliminary opinions I now turn to deal with the difficult matters.

9 The plaintiff sees her position as follows. She was deeply hurt to be told by her husband that he did not love her and had made a mistake in marrying her. She was also upset at his relationship with Miss Emtage and his discussion of their affairs with her. She is now irrevocably opposed to a reconciliation. She cannot submit herself to a man who does not love her. Moreover, she is still “shut off” from the other members of the Brethren and so are the children. Their being members of the household of the defendant who has been withdrawn from makes it impossible for them to resume full membership of the Brethren. She told of her wish to take...