PATERNAL grandmother Stella Gill took care of the infant David from 1964 to 1967, when she objected to returning the infant to the custody of his mother, Maureen, resulting in the mother applying for a writ of habeas corpus to regain custody of her child.

Justice Victor Crane, who heard the application in 1968, held that under the Infancy Ordinance, Cap. 39, the mother of the infant is the infant’s guardian and is entitled to custody.
The grandmother was therefore ordered to forthwith give up possession of the child David to his mother.

APPLICATION GRANTED
According to Justice Crane, D.H. is an infant child who is illegitimate. He was born in England. With the consent of his father and mother, who were both undergoing courses of study there, custody was given to his paternal grandmother, of whom it was known would be bringing him to Guyana.

It had been expected that, at the end of their studies, the child’s parents would marry, but this did not materialise. The child’s mother eventually obtained a job as a typist in England, and, in December 1967, came to Guyana and tried to obtain custody of her son from his grandmother, because she intended to take her son to England. This failed, and she instituted the present proceedings.

Granting the application to the mother, Justice Crane explained, “In a case involving custody, the principle must be borne that the welfare of the child is the first and paramount, though not the exclusive, consideration; and in considering the child’s welfare, account must be taken of its moral, spiritual, social, educational, material and medical welfare.

Mr.C.A.F. Hughes, associated with Mr. Fields, appeared for the applicant, while Mr. J.C. Nurse appeared for the respondent.

Delivering judgment in the case, Justice Crane disclosed that David was born of the body of the applicant, Maureen Priscilla Husbands. The birth took place out of wedlock on the 26th March, 1963 at the Hackney Hospital in England.

The judge added, “This is an application by the mother for an order on the respondent, Mrs. Stella Gill [the paternal grandmother], of Lot 12 Costello House, La Penitence, East Bank Demerara, calling on her to show cause why a writ of habeas corpus ad subjiciendum should not go commanding the child’s release, he now being in her possession in Guyana.

“The facts and circumstances under which Mrs. Gill got possession of the child are revealed in both the affidavits in support of and the reply to the application and the viva voce evidence adduced. They arose in this way: Dennis Gill [the father] became attached to the applicant while they both resided in England pursuing courses of study there. So fond were they of each other that their attachment deepened into affection. This caused them to associate on the closest terms of intimacy, and the result was the birth of David.

“I think the evidence affords the fair conclusion that both father and mother expected to be married to each other when their studies were completed. They each worked to this end – mother at Lyons & Co. in London… The child David was, however, in the way to the smooth accomplishment of their future plans. It was not convenient to keep him in England, and this is where Mrs Gill came into the picture. She, too, was in England in September 1964, and when requested, readily agreed to take David to Guyana, it being more convenient for the mother that such a course should be taken until the mother required him back.

“Accordingly, with the consent of both son and prospective daughter-in-law, Mrs. Gill and David sailed for Guyana in the month of October, 1964.

“The putative father, however, broke faith with the applicant. Very shortly after the arrangement, he failed to maintain correspondence with his mother, or to make any enquiry about his child. He fell in love with another, to whom he got married in 1966.

“The mother, on the other hand, constantly wrote letters to Mrs. Gill, all of which showed an anxious and sustained interest in David’s welfare, for she often sent such gifts and money as her slender means could afford.

“Ever since David came to Guyana, he has been continuously in the care of Mrs. Gill, who administers to his every want. But trouble began on the arrival of the mother in Guyana on the 16th December, 1967. Immediately upon her arrival, i.e. the very next day, December 17, she went to Mrs. Gill’s home to see David. She was well received. She and Mrs. Gill had lunch, after which she tried to renew acquaintance with [David] as best she could.

“On December 26, she paid Mrs. Gill another visit, but with the intention on this occasion of taking David away with her for all time. Fearing that Mrs. Gill would not be a willing party, she did not consider it wise to reveal her intention, because she had never before disclosed her plans to resume custody of David, although she had conceived then in England during 1967, when her domestic and financial situation there had improved,” the judge said. He noted that the applicant had filed a writ of habeas corpus to recover custody of her son.

Justice Crane in his concluding remarks said: “If I may recapitulate for a moment, the original bargain between the mother and the grandmother was that the child should be brought to Guyana and kept by the grandmother until the mother’s situation changed, when [the child] would be handed back to her.

“Throughout [his] three years in Guyana, there was continuous correspondence between mother and grandmother about the interests and welfare of the child. The mother sometimes sent gifts and money for [his] upkeep, while the father did not even care to enquire about [him].

“In all correspondence, the grandmother acknowledged the mother’s authority over her child, knowing fully well that she would have to give [him] up one day; but [she] has so fallen in love with [him] that she is not willing to face that inevitable day. Come what may, she would only be willing to give up David, she says, when he is old enough to exercise a discretion as to the person with whom he would like to stay; and [she]would, if she is allowed to do so, be willing to adopt him as her son.

“David, of course, has not yet reached that age; and even when he does, I am sure he would opt for her rather than his mother, whom he does not now know, nor from what I have seen in Chambers, wants to know.

“I find that the grandmother’s claim that David should exercise the discretion she claims when he is of age to do so is without legal or moral foundation; and I think it would be a fitting end to this judgment if I close with a quotation from a distinguished Irish Judge, Fitz Gibbon L.J. in Re. O’Hara (1900) 2. I.R. 240, which has received the repeated approval of the English courts:

“Where a parent is of blameless life, and is able and willing to provide for the child’s material and moral necessities… the court is, in my opinion, judicially bound to act on what is equally a law of nature and of society, and to hold (in the words of Lord Esher in R.v. Gyngall (1893) 2 Q.B.232 at p.243) that the best place for a child is with its parent.

“The grandmother is therefore ordered to give up possession of the child David to its mother forthwith. Application granted,” said Justice Victor Crane, who delivered the judgment.