Court/Judicial body: Supreme Court of the Republic of Vanuatu
Date: May 15, 1998 CRC
Provisions: Article 3: Best interests of the child
Domestic provisions: The Matrimonial Causes Act, Section 15, CAP 192
Background: A married couple with three children sought a divorce at the request of the wife. The two older children were living with the mother and her parents, and the youngest was living with the father and his parents after having been taken from the mother without her consent. The mother alleged that the father was an alcoholic and that he may have committed a minor assault on one of the children.
Issue and resolution: Custody. As to the oldest child, the trial court granted joint legal custody, but primary physical custody to the mother, with visitation rights to the father during school holidays. As to the middle child, the trial court granted legal and physical custody to the mother, with visitation rights to the father. As to the youngest child, the trial court granted legal and physical custody to the father.
Court reasoning: Based largely on the Convention on the Rights of the Child, the court found that the paramount factor to be weighed in determining care, custody and control of the children at issue was the best interests of the child. This consideration outweighed any parental right of custody, as well as any cultural notion of paternal “ownership” of the children. Consequently, there can and should be no preference of fathers over mothers or vice versa solely by virtue of gender when awarding custody of children.
Excerpt citing CRC and other relevant human rights By perusing the language of section 15(1) of the Act, it is clear that the Court may make provision for the custody, maintenance and education of the child of the marriage, as it appears to the Court just to do so. That section gives the Court a wide discretion. In exercising its discretion, the paramount consideration of the Court is not to punish a guilty spouse, but the children’s welfare. The father has a common law right to the custody of his children. However, a father’s common law right to their custody does not prevail over the children’s welfare. That point must be emphasised upon in view of the social and cultural contexts of Vanuatu since in such proceedings, parents and in the majority of cases husbands/ fathers based their application on the mistaken belief that they have some property right to “own” the children and neglected to have any thought whatsoever about how they would care for them if custody is granted to them. In order to cast any doubt, it is important to refer to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989. That Convention has been ratified by Vanuatu Parliament by Ratification Act No.26 of 1992, which is, therefore, binding on the Republic of Vanuatu [No reservations were expressly provided]. Article 3(1) of the Convention provides: “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.” [underlined words are my own emphasis]. This Article 3(1) is enforceable by the Courts and no specific legislation is required to implement it as opposed to other Articles of the said Convention. In any proceedings before the courts for the legal custody or upbringing of a child, or the administration of any property belonging to or held on trust for a minor, or the application of the income thereof, the Court must regard the welfare of the child as the first and paramount consideration and not the punishment of the guilty spouse/parent. This means that, in such proceedings, the Court shall not take into consideration whether from any other point of view the claim of the father, in respect of such legal 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.
Follow up: This case was cited in a later case, Kong vs. Kong, Civil Appeal Case No. 10 of 1999, for the principle that in all child custody decisions, the welfare of the child must be the paramount consideration. In that case, the Court below had refused on procedural grounds to consider evidence of an assault by one of the parents which allegedly occurred after the custody trial ended. The Appeals Court found this to be in error, since in custody cases, the “Court’s discretion to receive further evidence, particularly new evidence that has arisen since the trial concluded, should generally be exercised in favour of the receipt of the evidence if the evidence is relevant to issues concerning the children.”
CRIN comments: CRIN believes this decision is consistent with the CRC. As noted by the Court, Article 3 requires that the best interests of a child be a primary consideration in all proceedings concerning them. This would certainly include custody proceedings, where the best interests of the children involved should undoubtedly take precedence over any notion of a parental right to custody.
Citation:  VUSC 15
Link to full judgement: http://www.paclii.org/vu/cases/VUSC/1998/15.html