Halliday et Al v Buller et Al

• Jurisdiction: Belize
• Judge: Mottley, P.,Sosa, J.A.,Morrison, J.A.
• Judgment Date: 14 July 2006
• Neutral Citation: BZ 2006 CA 9
• Docket Number: Civil Appeal No. 12 of 2005
• Court: Court of Appeal (Belize)
• Date: 14 July 2006

Court of Appeal

Mottley, P.; Sosa, J.A.; Morrison, J.A.

Civil Appeal No. 12 of 2005

Halliday et al

and

Buller et al

Appearances:

Ms. Samira Musa Pott, for appellants.

Mr. Michael Young, SC and Ms. Deshawn Arzu for respondents.

Miss Andrea McSweaney, Crown Counsel, for Solicitor General for James Alexander Halliday, an infant.

Family law - Adoption — Application to dispense with the consent of the biological parents — Whether the trial judge erred in finding that there was no persistent neglect and that the biological parents had not failed to contribute the support of the child — appellants paid the hospital expenses for the biological mother — Minor child resided with appellants since birth — Minor child registered as the appellants child — Biological mother expressed intention to put child up for adoption from conception — Biological father provided no financial support for the child — Sufficient evidence of persistent neglect of biological parents — Consent of biological parents should have been dispensed with — Appeal allowed.

Mottley, P.

1 The appellants are seeking to adopt an infant known as James Alexander Halliday who is the infant son of the respondents. At the time of birth of James on 27 May 2002, and at the time of the hearing of the appeal, the respondents were and still are unmarried. James bears the surname of the appellants. On 3 June, 2002 his mother, Dana Mae Buller, with consent of Henry Allan Halliday Sr., registered Henry Allan Halliday Sr. as the father of James. The appellants alleged that the mother did this because at the time she was aware that the appellants wanted to adopt James.

2 The appellants, on 11 July 2003, filed a Summons seeking orders:

• (i) for the appointment of a guardian ad litem to look after the interest of the minor;

• (ii) authorisation to adopt the minor.

On 4 November 2003 an order was made appointing Jolleen Arnold as guardian ad litem.

3 On 15 June 2004 the appellants filed another Summons seeking the following orders:

1

An Order that Henry and Yvette Halliday be authorized to adopt the infant, namely, James Alexander Halliday without requirement of the consent of any of the biological parents of the said infant, pursuant to section 144 of the. Families and Children Act, Cap. 173 of the Laws of Belize R.E. 2000 (the Act). 2. Alternatively, an Order that the consent of the biological mother, Dana Mae Buller and/or of the alleged biological father of the infant, James Alexander Halliday to the adoption of the said infant by Henry and Yvette Halliday be dispensed with pursuant to section 136 of the Act.

4 The trial judge refused to make an order for the adoption of the minor on the grounds, inter alia, that the respondents did not abandon or desert the minor nor did they neglect or refuse to contribute toward the support of the child. The judge expressed the view that the occasion to assess whether they neglected or refused to support the child had not yet arisen. He went onto hold that, without the consent of the respondents, the Court was unable to grant the application of the appellants.

5 The appellants have filed seventeen grounds of appeal. These are:

1

The learned judge erred in not finding as a matter of fact, based on the evidence including the admission of the respondents, that the respondents have persistently neglected or refused to contribute toward the child's support since his birth. 2. The evidence being clear that the biological mother and the alleged biological father have persistently neglected the child, and have not contributed towards the child's support since the child's birth, the learned trial judge erred in law in finding “that the occasion to assess whether there has been neglect or refusal to support the child has not arisen”. 3. The learned judge erred in not finding that section 136(b) of the Families and Children Act, Cap. 173 of the Laws of Belize revised Edition 2000 was met and satisfied by the evidence that the respondents had for a period of not less than one (1) year, persistently neglected or refused to contribute towards the child's support. 4. The learned judge was erroneous in stating that the biological mother had only two (2) other children, as the evidence clearly bore that she had three (3) other children, two (2) of whom do not live with her, and the appellants wish for the record to be corrected. 5. The learned judge was erroneous in stating that the appellants tried to adopt Mr. Halliday's children from a previous relationship, as this is not so and was not in evidence, and the appellants wish for the record to be corrected. 6. The learned judge erred in finding that the attorney for the appellants pursued the applicant's/appellant's case mainly on the basis that Mr. Patnett and Ms. Buller refused their consent to the adoption unreasonably, because the written legal submissions of counsel for the applicants/appellants which were submitted to the learned judge and orally presented in open Court made it clear that the ground and basis for the application was section 136(b) of the Families and Children Act, Cap 173. 7. The learned trial judge misconstrued the submissions made by counsel for the applicants'/appellants, which was basically that section 136(b) is satisfied by the evidence, and so having been satisfied, the learned judge was then free to exercise his discretion to dispense or not dispense with consent of the biological parents to the adoption of the child. 8. The learned judge misconceived the applicant's counsel's submissions which misconception is made clear by the learned judge's statement that “the applicant's case was pursued mainly on the basis that Mr. Patnett and Ms. Buller refused their consent to the adoption unreasonably”. 9. In refusing to dispense with the consent of the respondents to the adoption by the appellants/applicants of the child, the learned trial judge failed to exercise his discretion properly and reasonably given all the circumstances of the case and given the totality of the evidence, and given the case law presented in support of the applicant's/appellant's case. 10. In exercising his discretion, the learned trial judge failed to have any or sufficient regard to the serious effect of his decision on the child, to the welfare of the child, James Alexander Halliday, and to the guiding principles as set out in sections 1 and 3 of the First schedule of the Families and Children Act, Cap 173 of the laws of Belize particularly to the likely effects of any changes in the child's circumstances generally and as elaborated in the case of Re C (an infant)[1964] 3 All E.R. 483 by Pearson, L.J.; to any harm that the child is at risk of suffering; and to the capacity of the child's biological parents of meeting the child's needs. 11. The learned judge erred in finding “that the matter of Mr. Norbert Patnett's other children was not sufficiently proved in this Court” and erred in finding that “it only came up in cross-examination”, and further erred in finding “that the Order said to have been made against Mr. Norbert Patnett was not produced” and further erred in finding “that that left the matter levelled on a scale of probabilities” because the affidavit of Margarita Moya which was filed at the Supreme Court Registry in this action in support of the applicant's/appellant's case and which forms part of the evidence for and on behalf of the applicant's/appellant's clearly exhibits the Maintenance Order of the Magistrate Court made against Mr. Norbert Patnett. 12. The learned judge erred in law in finding that “so far as the submission that Mr. Patnett neglected to support the child James Alexander is concerned, the opportunity never arose from the child was born”. 13. The learned trial judge erred in finding “that the evidence adduced by Mr. Patnett that he earned $1,152.82 per month and that with that he will be able to support the child stood uncontested” because in cross examination Mr. Patnett admitted he was summoned to the Family Court for arrears in maintenance payment that he should be paying for three other children he has with one Margarita Moya. 14. The learned judge erred in finding that “it was not proved that she (Dana Mae Buller) told the parish priest that she wanted the child adopted at birth” because the sworn affidavit of Veradale Bennett filed in this action, made it clear that it was the intention of Ms. Buller from the time she was pregnant to give up the child for adoption. 15. The learned trial judge failed to consider, or to consider adequately, the totality of the evidence, including the affidavit evidence filed in this action. 16. The decision is against the weight of the evidence. 17. The learned trial judge erred in finding that “Norbert Patnett's consent o the adoption of the child must also be obtained under section 135” because “parent or guardian” as referred to in section 135(a) of the Families and Children Act, Cap. 173 of the Laws of Belize, Revised Edition, 2000, does not include an unmarried father.

6 In essence, the real question for the Court is whether the Court is entitled to dispense with the consent of the parents under the provisions of section 136 of the Families and Children Act, Cap. 173.

BACKGROUND

7 Around July 2001, Dana Buller discovered she was pregnant. The father of her baby was her boyfriend Norbert Patnett. Prior to the birth of the child, Dana and Norbert ended their relationship. Veradale Bennett, a Human Development Officer, said that, in March 2002, Dana informed her that she did not want the baby she was carrying and wanted to give it up for adoption. Dana said she was not able to provide for the baby as she was not working. Dana made it abundantly clear to the Human Development Officer that she wanted the Department of Human Services to take the baby from the moment it was born. While Norbert knew that Dana was pregnant, Dana did not inform him of...