Court/Judicial body: High Court of Tuvalu
Date: 24 January 2005 CRC
Provisions: Article 3: Best interests of the child
Other international provisions: Convention on Elimination of Discrimination against Women (“CEDAW”): Article 5(a) (must modify cultural practices based on the superiority or inferiority of sexes), Article 16 (women have equal right to children irrespective of marital status)
Domestic provisions: Constitution: Section 11(1) (enment of all people to certain fundamental rights), Section 27 (freedom from discrimination), Section 84 (Parliament has power to make and amend laws) Native Lands Ordinance, Section 20(2) (a child of a single woman shall reside with their father or his relations and inherit land as a child born in wedlock, if the father accepts the child and a paternity order is issued) Custody of Children Ordinance, Section 3(5) (custody determination is subject to the Native Lands Ordinance) Interpretation Act, Section 17 (preference for construction of laws that is consistent with Tuvalu’s international obligations)
Case summary
Background: The defendant father (Pou) applied to Nui Island Court for custody of his child. The magistrate gave the father permanent custody, but ruled that the plaintiff mother (Tepulolo) should be afforded visitation if she wanted to see the child. The mother appealed the determination, claiming she was not being allowed access to the child. She sought, amongst other things, declarations from the court that: section 3(5) of the Custody of Children Ordinance and section 20(2) of the Native Lands Ordinance violate CEDAW and the CRC (third declaration); CEDAW and the CRC are applicable in domestic law where either the existing law is in contravention of the Convention and the Court makes a declaratory order to that effect, or where the meaning of a statute or provision is ambiguous or silent (fourth declaration); and the proper test to be applied by the Court in assessing custody pursuant to the Custody of Children Ordinance and the Matrimonial Proceedings Act 1984 is what is in the best interests of the child in accordance with the CRC irrespective of the gender of the parent (fifth declaration).
Issue and resolution: Child custody and access; applicability of the CRC. The Court refused the application, ruling that Tuvalu’s Custody of Children Ordinance and Native Lands Ordinance do not violate the CRC, and in any case, the CRC is not directly applicable in the courts.
Court reasoning: With respect to the third and fourth declarations, the Court stated that both these declarations require a determination of the effect international treaty obligations might have on national law. The Court held that, although the Tuvalu government has ratified the CRC, the CRC is not directly applicable in the courts until laws are passed to implement its provisions. Until that time, courts can only refer to the CRC in order to interpret the laws of Tuvalu when there is an apparent ambiguity in the law; they cannot correct or amend existing laws to bring them in line with obligations under the CRC. Therefore, the Court refused to make the fourth declaration. The Custody of Children Ordinance require the courts to regard the welfare of the child as the paramount consideration. This requirement also applies to the Land Courts. Section 20 of the Native Lands Ordinance empowers the Land Court to enquire into the paternity of a child with the purpose of ensuring that the child’s inheritance of land is secured. It does not require the Land Court to make an order regarding paternity; rather, it gives the Land Court discretion to make an order or no order according to the child’s best interests. However, if the Land Court does make an order of paternity, then it becomes mandatory for the child to reside with the father or his relations so that the child may inherit the property to which they are end. Section 3 of the Custody of Children Ordinance requiring that court orders regarding custody and access shall be subject to the Native Lands Ordinance was intended to ensure that no court can make a custody/access order that destroys or conflicts with the rights of the child to inherit or own land. For these reasons, the Court refused to make the third declaration. Finally, the Court declined to make the fifth declaration as the correct test to be applied when assessing custody of a child – that the welfare of the child is of paramount importance – is drawn from the provisions of the law of Tuvalu, not from the CRC.
Excerpt citing CRC and other relevant human rights The Attorney General advises the court that Tuvalu ratified CRC on 14 July 1995 and acceded to CEDAW on 4 October 1999. No laws have, it appears, been passed or even considered by Parliament specifically to give effect to the obligations placed on the States Parties by either convention. It is indisputable that the implementation of the requirements of such conventions can be a slow process involving considerable discussion, preparation and, frequently, education. If that has been occurring in the long period of time since Tuvalu acknowledged its obligations under these Conventions, then it is to be hoped that there will be some tangible sign presented to Parliament soon. If, on the other hand, nothing has been done to implement the aims, then the whole purpose of accession to such conventions becomes little more than a hollow charade. The court has not been told whether Tuvalu has reported its failure to do anything to date as it is obliged to do under both conventions. Clearly that may mean that action is being taken and, as will be seen, some of our existing laws are in accordance with CRC and may need no amendment. … The power to make laws, which includes the power to amend existing laws is vested in Parliament; section 84, Constitution. The act of accession to an international treaty is carried out by the Executive and, unless and until Parliament passes laws to bring these treaty obligations into effect the mere act of accession does not change the laws of Tuvalu. To find otherwise would be to give the Executive a power to make laws that it does not have. … Dealing with the fourth declaration first, it is clear that it cannot be made as the Conventions are [sic] not applicable here in any circumstances unless and until laws are passed to implement their provisions although, prior to that, the court may take cognisance of their terms as an aid to the determination of the true construction of a provision of our law where there is any difficulty in interpretation. … It is clear from the terms of section 3(3) of the Custody of Children Ordinance that the measure in assessing custody is that the welfare of the child is the first and paramount consideration. However, that arises from the provision in our statute and not from any consideration that it must accord with the CRC. The inclusion of the Matrimonial Proceedings Act in the declaration is irrelevant to this action. However, the test is again clearly stated in the Act and is unaffected by the terms of the CRC unless and until Parliament changes the law. It is that, in all matrimonial proceedings, i.e. divorce and associated proceedings where there are children of the marriage, “the welfare of the children is of paramount importance, at least equal to that of the parties to the marriage”; section 12(1).
CRIN comments: CRIN believes this decision is not consistent with the CRC. Article 9(3) provides that a child has the right to maintain contact with both parents if separated from one or both. Article 2 prohibits discrimination against children of any kind, irrespective of the child’s status, while Article 3 requires that the child’s best interests shall be a primary consideration in all actions concerning them. The Committee on the Rights of the Child has expressed concern that the Native Lands Act does not make reference to the best interests of the child principle, and discriminates against children born out of wedlock in relation to land inheritance rights and child custody. It has recommended that Tuvalu amend its legislation to incorporate this principle and bring discriminatory provisions in line with Article 2.
Citation: [2005] TVHC 1
Link to Full Judgment:http://www.paclii.org/tv/cases/TVHC/2005/1.html