Court/Judicial body: Supreme Court
Date: 9 June 2000 CRC
Provisions: Article 3: Best interests of the child
Domestic provisions:Children Act, Section 3 (1): Best interests of the child and right to be heard.
Background: The claimant appealed a decision of a Tribunal to grant custody of his son to the child’s mother. The Tribunal had decided that, due to his tender age of seven, the child would be best taken care of by his mother. The claimant argued that the decision contradicted the welfare of the child principle and failed to take the child’s view in consideration.
Issue and resolution: Custody. Whether the child’s tender age can override considerations regarding the welfare of the child principle and the right of the child to be heard. The Court ruled that the Tribunal erred in its findings and granted custody to the claimant.
Court reasoning: The Court first stated that the Tribunal was wrong in applying solely the “tender age of the child” factor to grant custody to the mother. Indeed, the welfare of the child principle – which is contained both in domestic law and in the CRC – takes into consideration all factors and must be the paramount consideration in judicial matters relating to children. Secondly, the Court criticised the Tribunal’s decision as it removed the child from his “well established home” without grounds. Finally, the Court ruled that the Tribunal’s refusal to take into account the Social Services report (which stated the child’s wish to stay with the claimant) was contrary to the provisions of the Children Act.
Excerpt citing CRC and other relevant human rights “This welfare principle is not only incorporated in the National Law of this land but also it is the international obligation, which Seychelles has undertaken by virtue of signing the UN Convention on the rights of the child. In fact, Seychelles was amongst one of the first to ratify the Convention in 1990. Article 3 of the said Convention reflects this principle as follows: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. Therefore, no matter who decides or where it is decided but as long as the decision of an authority involves the interests of a child, the decision-maker ought to apply the welfare principle. No attempt to whittle it down can be entertained by any one in this country. Be that as it may.”
CRIN comments: CRIN believes this decision is consistent with the CRC. The best interests of the child principle and his/her right to be heard are contained in Articles 3 and 12 of the CRC respectively. They are two of the Convention’s four general principles which guide its interpretation and implementation. In all matters relating to children, their best interests must be the primary consideration and their opinion must be taken into consideration – particularly in matters of custody.
Citation: Seychelles Supreme Court, Civil Appeal no. 1 of 2000, Durup v. Durup
Link to Full Judgment: Judgement available on request.