Court/Judicial body: High Court of Fiji at Lautoka
Date: 5 May 2000
CRC Provisions: Article 3: Best interests of the child
Domestic provisions: Maintenance and Affiliation Act, Cap. 52 (ability of a parent to seek maintenance (child support) if deserted by the other parent); Section 4(b) (ability of magistrate to make orders regarding the legal custody of children at a related hearing); Section 2(1)(e) (providing a magistrate the additional jurisdiction to make orders of custody)
Background: A father of two children appealed an interim order granting custody of the children to the mother. The father argued the interim custody order was beyond the authority of the magistrate as it was made in the course of a suit for maintenance filed by the mother.
Issue and resolution: Child custody; best interests of the child. The High Court found that the magistrate did not exceed the scope of his authority by granting an interim custody order, and that this was permitted in the best interests of the child under Article 3 of the Convention on the Rights of the Child (CRC).
Court reasoning: The Constitution of Fiji allows the court to take into consideration the CRC, in particular, Article 3 on the best interests of the child, where it is relevant. Article 3, read with the Maintenance and Affiliation Act, allows the Magistrate’s Court to make interim custody orders on the basis that “the best interests of the child shall be a primary consideration”, despite the underlying hearing being related to a maintenance claim.
Excerpt citing CRC and other relevant human rights Section 43(2) of the Constitution states: “43(2) In interpreting the provisions of this Chapter, the courts must promote the values that underlie a democratic society based on freedom and equality and must, if relevant have regard to public international law applicable to the protection of rights set out in this chapter.” (emphasis added) The provision allows regard to be had to the CRC subject to it being relevant. The nature of the right to life Sudharsan Prakash Sami enjoys in the present context has already been canvassed. It is reinforced by Article 3 of the CRC paragraph l of which is in these terms: ” Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.” (emphasis added) The Article casts a clear obligation on the relevant institutions of state parties to the CRC to take account of the principle. The practical effect of this duty is in the construction of legislation and administrative procedures in order to effect the intentions of the applicable international norm. In Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh  HCA 20; (1995) 183 CLR 273 their Honours of the High Court of Australia held that ratification of the CRC gave rise to a legitimate expectation that the Minister would act in conformity with it and treat the best interests of Mr Teoh’s children as a primary consideration… Although what was under consideration was the effect of ratification of CRC on administrative decision-making, nevertheless the manner in which its relevant provisions were imported to affect domestic concerns is in the court’s respectful opinion, its most significant aspect. Mason CJ and Deane J in the course of their judgment discussed the effect of an international convention on the construction of a statute as follows at 287: “It is accepted that a statute is to be interpreted and applied as far as its language permits, so that it is in conformity with and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to form a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations. That indeed is how we would regard the proposition as stated in the proceeding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more then [sic] a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.” (emphasis added) Those dicta are directly in point and the court respectfully adopts them. They apply here with greater force in the light of Chapter 4 of the Constitution and more particularly the terms of section 43(2).
Debate continues in Australia over the efficacy of an entrenched bill of rights. In the present situation where it is left to the common law and ordinary statute to assure such rights, it is noteworthy that the learned Judges of the High Court held the Minister was obliged to act in accordance with the relevant provisions of the CRC. . . Locally, the court has had the benefit of the decision in Epeli’ Seniloli and Another v Semi Voliti Civil Appeal No. HBA0033 of 1999S. At first instance the learned Magistrate cited inter alia Article 37(a) of the CRC to reinforce the rights of a fourteen year old child who had been unlawfully detained in breach of sections 25, 26 and 27 of the Constitution. Shameem J in affirming the decision endorsed the learned Magistrate’s reliance on the CRC. Her Ladyship concluded that the relevant provisions of the Constitution and the Juveniles Act conformed with [sic] the CRC in relation to the rights of children in confinement. In the court’s respectful opinion, Article 3 is to be read with section 4(2) of the [Maintenance and Affiliation] Act to allow the Magistrate’s Court to make interim custody orders on the basis that “the best interests of the child shall be a primary consideration.” Broadening the ambit of section 4 is consonant with the Republic of the Fiji Island’s international obligations as signified by its ratification of the CRC and by reference to sections 22 and 43(2) of the Constitution. An equally important factor is the absence of any contrary indications in section 4 of the Act as would militate against such an interpretation. Where there was an “ambiguity” construed in the widest terms a construction was to be preferred that was consistent with this country’s international obligations over one that would detract from them. As an aside it need only be said that the terms of section 43(2) of the Constitution are not dependent on ratification but rather on the relevance of the convention or treaty to the rights under consideration in Chapter 4 of the Constitution. The court therefore finds that section 4(2) of the Act includes the capacity to make interim orders. This implication arises by virtue of section 22 and 43(2) of the Constitution. Those provisions when read together import Article 3 of the CRC by reference. In order to give effect to that provision section 4(2) of the Act must be construed broadly. The first ground of appeal therefore fails for two reasons: on the basis of section 27(2) of the Magistrates’ Courts Act and section 2(1)(e) of the Decree as well as of Article 3 of the CRC as imported into section 4(2) of the Act by the relevant constitutional provisions.
CRIN comments: CRIN believes this decision is consistent with the CRC. The High Court directly applied Article 3 to ensure that the best interests of the children was a primary consideration in this decision concerning them. The Court also confirmed that it may take the CRC into consideration by virtue of the Constitution.
Citation: FJHC 144; HBA0001J.99L
Link to full judgement: http://www.paclii.org/fj/cases/FJHC/2000/144.html