Re August, Ursula

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Moe, C.J.
• Judgment Date: 09 September 1980
• Docket Number: Action No. 256 of 1980
• Date: 09 September 1980

Supreme Court

Moe, C.J. (Ag)

Action No. 256 of 1980

Re: August, Ursula

Mr. E.L. Flowers for the applicant

Mr. E. Staine for the respondent

Family law - Custody of child — Father's relatives looked after child for many years — Child's stated wish to live with mother who could amply take care of her — Custody granted mother with access to father.

1 Moe, C.J. (AG.).: An application for a writ of habeas corpus ad subjiciendum with an affidavit in support was made by one Beulah Payne of Baymen Avenue, Belize City claiming that she on behalf of her brother is entitled to the custody of Ursula Marie August (hereinafter referred to as the infant). An order nisi was made for the issue of a writ of habeas corpus directed to Gloria Marie de Costa nee Burgess of 107 Racecourse Street, Belize City (hereinafter referred to as “the respondent”) to have the body of the infant before a judge in chambers on the 27th August, 1980.

2 In the return made to the said writ the respondent alleges that she has best claims to the custody of the infant notwithstanding the fact that it was ordered on the 8th June 1979 by the Supreme Court in Divorce Action No. 57 of 1978 that the infant remain in the custody of Anthony Cliffton August, the father of the infant.

3 Although it was clear from the return of the respondent and it was also conceded by her counsel, that the detention of the infant by the respondent is in disobedience of the order of the Supreme Court, I took the view that, in determining what order to make in these proceedings, since the custody of an infant was in question, I had to be guided by section 25 of the Infants Ordinance CAP. 186 which is as follows:–

“Where in any proceeding before any 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 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 I am fortified in this view by the opinions of their Lordships in J v. C [1970] A.C. at pg. 668. With regard to section 1 of the Guardianship of Infants Act 1925 U.K. which is in precisely the same terms as Section 25 of CAP. 186 Lord Mc. Dermott at pg. 710 said “its wording seems to be deliberately wide and general. It relates to any proceedings before any court and as Eve J said in Clark-Jervoise v. Scott [1920] 1 Ch. 382, 388: “‘Any’ is a word with a very wide meaning and prima facie the use of it excludes limitation.”

5 I proceeded therefore to an inquiry into the merits of the matter. It was disclosed from the affidavits and the evidence led before me that the respondent married the father of the infant in June, 1967. The Infant was born on the 26th November, 1967. They lived together at the home of Pearl Blackman at 107 Racecourse Street. The respondent left the father and the infant and went to the U.S.A. She had not seen the infant since she left Belize until July 1980.

6 The father took the infant shortly after the mother left to the home of its Aunt Beulah Payne and requested her to look after it for him. In June 1973 the father left Belize and went to the USA. The infant had continued to live in the same house as the Aunt until 1979 when she went to live with her grandmother Alma Reyes in Belmopan. On the 8th June, 1979 the father obtained a divorce from the respondent and was awarded custody of the infant.

7 On...