Court/Judicial body: High Court of St. Lucia
Date: December 17, 2002 CRC
Provisions: Article 12: The child’s opinion
Domestic provisions:Children Act 1989 (U.K.): 1(3) Civil Code of Saint Lucia: Article 210A
Case summary
Background: A married couple with two children split up, the mother staying in Jamaica and the father moving to Saint Lucia. After an informal custody agreement stopped working, the parents instituted a custody dispute in court.
Issue and resolution: Children’s participation in proceedings concerning them. In deciding which parent should have custody, care and control of children, the court shall regard the welfare of the minor as the first and paramount consideration and shall not take into account anything else except to the extent it can assist the court in ascertaining the best solution for the minor. In this case, the parents were granted joint custody with primary physical custody given to the mother.
Court reasoning: Article 210A of the Civil Code of Saint Lucia provides: “Where in any proceeding before any court the custody or upbringing of a minor…is in question, the court in deciding that question shall regard the welfare of the minor as the first and paramount consideration…” In interpreting this Article, the court stated that the word “welfare” should be broadly construed to include both physical well-being and moral and religious well-being. Factors considered by the court included the children’s relationship with each parent, the quality of each parent’s parenting, the economic circumstances of each parent, the wishes of the children, the quality of life of the children with each parent, and the education each parent could offer to the children. With regard to children’s participation in the custody determination, the court noted the importance placed on giving children a place to express their views in proceedings concerning them. However, the court also emphasised that children’s views are not determinative, and that each case must be examined individually to best provide for the welfare of the children involved. Excerpts Citing CRC and Other Relevant Human Rights 26. While there are no statutes directing the court to give effect to the wishes and feelings of a child, the courts, over the last few years, have become increasingly aware of the importance of listening to the view of older children and taking into account what children say, not necessarily agreeing with what they want nor, indeed, doing what they want but paying proper respect to older children who are at an age and have the maturity to make their minds up as to what they think is best for them, bearing in mind that older children very often have an appreciation of their own situation which is worthy of consideration by, and the respect of, the adults, and particularly the courts. This enjoinder to consider the wishes and feelings is reflective of the international obligation under the UN Convention on the Rights of the Child 1989 which Saint Lucia has ratified. 27. But the child’s view is not determinative. As Butler-Sloss, L.J. put it in Re (Minors) (Wardship: Care and Control) (1992) 2 FCR 681 at page 687: “How far the wishes of children should be a determinative factor in their future placement must of course vary on the particular facts of each case. Those views must be considered and may, but not necessarily must, carry more weight as the children grow older.” 28. In Elaine Gail Henry v. Albert Donald Henry (Civil Appeal No. 14 of 1999)(unreported) C.A. Bahamas, on the question of whether a child of 13 has attained the age and degree of maturity, Gonsalves-Sabola, P. said: “A child is after all a human person with its own independent mentality, personality, dignity and wishes which ought to be given proper respect except where non-age is so palpably manifest as to create a judicial perception that the child’s wishes spring from infantile whims rather than a sufficiently rational preference of one habitual residence over another. There should be no automatic disqualification of a specific chronological age…it is all a matter of degree.”
CRIN comments: CRIN believes that this decision is broadly consistent with the CRC, and that children must be given the opportunity to express their views and have them taken seriously in any proceeding concerning them.
Citation: LC 2002 HC 30