IN THE MALAWI SUPREME COURT OF APPEAL

                                                 AT BLANTYRE

                   MSCA MATRIMONIAL APPEAL NO. 34 OF 1995

                            (Being Matrimonial Cause No. 19 of 1993)

BETWEEN:

ERICA  GAY  ARCHIBALD......................................................APPELLANT

                                                         - and -

COLIN  MICHAEL ARCHIBALD..........................................RESPONDENT

BEFORE:  THE HONOURABLE MR JUSTICE UNYOLO, JA

THE HONOURABLE MR JUSTICE MTEGHA, JA

THE HONOURABLE MR JUSTICE, KALAILE, JA

Nkhowani, Counsel for the Appellant

Jussab, Counsel for the Respondent

Ngaiyaye (Mrs), Official Interpreter/Recorder

                                                J U D G M E N T

Kalaile, JA

My Lords, this is an appeal from the judgment of the learned Chief Justice in which he gave custody of two girls, then aged 5 and 7 years, to the Respondent, who is the father of the children.  The appellant and the respondent were divorced in February 1995 and the lower Court made the custody order in June of the same year.

The appellant’s Counsel filed nineteen grounds of appeal, but opted to argue these in certain groupings.  Counsel for the appellant challenged the accuracy of certain conclusions of fact made by the lower Court.  Whilst following Counsel for the appellant’s pattern as stated in his submissions, we shall attempt to relate Counsel’s approach to the material paragraphs in the judgment.

The following paragraph in the judgment was the first to come under criticism by Counsel.  It reads:

“The petitioner has a home in the UK where his parents stay and he is in a position to procure accommodation for any of the children.  He stated that his parents’ home is very close to a very good school and that there is nearby a very good hospital where, as a matter of fact, S. was born.  He has told the Court that he is now trying to acquire a house of his own at 50 Chapman Avenue, Beardstead, Maidstone, and that he has obtained a loan from Barclays Bank to help him in paying for the house.  It was his evidence that his parents’ home is a four-bedroomed house in secure surroundings and are currently the only occupants of the house.  His parents’ house is fully paid for and that it is in their ownership entirely.  There is no loan secured on the house.  He stated that while he was acquiring his own house, his parents with whom the children are very familiar and have lived with them before, would look after the children.  He also stated that his sister and her husband live nearby from his parents’ house.  A. stays with his grandparents over weekends.  It was his evidence that A. is happy although he misses his sisters.”

Now, in this appeal, the custody order relates to S. and M., the two girls, whereas by agreement between the parties, A., the eldest child, was in the custody of the respondent and living in England.  The two girls were, at the time the custody order was made, living with their mother in Mangochi, Malawi.  Counsel for the appellants took issue with the passage cited above by arguing in ground xv of the grounds of appeal that the conclusion drawn by the learned Chief Justice in the final paragraph of his judgment that:

“After considering all the facts before this Court, I am satisfied that the petitioner has a home for the children and I am further satisfied that it will be in the interest, welfare and happiness of the children if custody is granted to him.”

cannot be supported by the evidence.  Mr Jussab, Counsel for the respondent, deponed at page 4 of the Court Record that the respondent had a home in the United Kingdom where his parents stayed and was in a position to procure accommodation for any of the children in the event of any such child attending school away from his or her parents.  This was definitely not correct, because the respondent said in his evidence-in-chief that he was in the process of acquiring his own house in the United Kingdom using a loan from Barclays Bank, which was granted to him.  And later, in cross-examination, the respondent stated that his employer was assisting him in getting a house in the United Kingdom.  The only house that existed in the United Kingdom, at the material time, belonged to the respondent’s parents, and not to the respondent, as concluded by the learned Chief Justice.  We find ourselves in agreement with the submission of Counsel for the respondent on this point.

The next passage in the judgment which Counsel took issue with as not being supported by the evidence on record is the following paragraph:

“The guiding principles in an application for custody of children is the welfare and happiness which is the paramount consideration.  It would be wrong to deny custody to any parent on the ground that he or she was the guilty party.  The paramount consideration is the welfare and happiness of the children.  Would it be in the interest of all the children that they should be in the care and custody of one parent?  Or would it be in their interest and welfare that they should live separately away from each other?  I have carefully considered the views of both parents and I must be guided by what will be in the best interest and happiness of the children.  Mr. Dale, with whom the respondent lives, is not related to the children nor is there any prospect of a marriage between him and the respondent.  On the other hand, the petitioner’s parents are the grandparents of the children with whom the children are very familiar and have lived with their grandparents before.  There is no evidence to suggest that the grandparents would not give to the children parental love, guidance and care.  In my view, Mr. Dale, however anxious or how best he may try to do for the children, cannot take the place of their real parents.  The respondent has no house of her own and according to the evidence before this Court, even if such house was available, she would not be in a position to afford it.  I note in the affidavit in opposition that the respondent now says that she would afford such a house.  This contradicts her evidence in the first application, when she stated that she sometimes runs short of money and that the co-respondent lends her money.” [emphasis supplied]

It was argued by Counsel for the appellant that the trial Court, quite properly, applied the correct legal principles when dealing with custody issues.  In Kazima -v- Kazima, 9 MLR 182, the Malawi Supreme Court recognised the exercise of a judge’s discretion in applying the principles of welfare and happiness of children in custody proceedings.  Furthermore, Lord MacDermott in J -v- C (1969) All ER 720, defined the paramountcy of the child’s welfare in the following terms in custody proceedings:

“It seems to me that those words (welfare and happiness of the child) must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question.  I think they consider a process whereby when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other factors are taken into account and weighed, the course to be followed will be that which is most in the interest of the child’s welfare as the term now has to be understood.  That is the first consideration, because it rules or determines the course to be taken.  The essence of this paramountcy test is that the child’s welfare must prevail over any other consideration.”

Counsel for the appellant argued that the trial Court placed undue emphasis on peripheral issues such as Mr Dale not being a blood relation of the children and that the grandparents of the children were very familiar with the children.  Whereas, the custody of the children was being sought and granted to the appellant or the respondent and not the respondent’s parents.  Counsel argued that the conclusion drawn by the trial Court, that:

“In my view, Mr. Dale, however anxious or how best he may try to do for the children, cannot take the place of their real parents”

is totally correct and applies with equal force to the children’s grandparents as custodians of the children.

In Willoughby -v- Willoughby (1951), p184 at 190, Singleton, LJ, said at 192:

“I have yet to learn that the fact that a woman commits adultery prevents her in all circumstances from being a good mother.”

So that the fact that the appellant was living with Mr Dale should not have been taken as a key factor in determining whether or not she should have custody of the children.

Lastly, it was argued on this same point by Counsel for the appellant that the appellant had agreed that the respondent should have custody of A., the eldest child, but that she had custody of M. and S. for a period of 4 years and that no problem had been encountered so far, and, this arrangement had been found to be satisfactory to both parties.  The status quo should have been left to subsist if there was no evidence that the children’s welfare was at risk.  The respondent stated in his evidence-in-chief that he was in touch with the children on the telephone and that they were happy and in good health in Mangochi where they lived with the appellant.  It should be recalled that the ages of the children were, at the material time, 7 years for M. and 5 years for S..  By the material time, we mean by the time when the judgment was delivered.

The authority relied on by Counsel for the respondent for the maintenance of the status quo was D -v M (1982), 3 All ER 897, where Ormrod, LJ, states at pages 902-903, whilst referring to the case of Evans -v- Bartlam (1937), 2 All ER 646:

“In our opinion the justices attached much too little weight to three important considerations.  In the first place, it is generally accepted by those who are professionally concerned with children that particularly during the early years, continuity of care is a most important part of a child’s sense of security and that disruption of established bonds is to be avoided whenever it is possible to do so.  Where as in this case a child of two years of age has been brought up without interruption by the mother (or a mother substitute) it should not be removed from her care unless there are strong counter valuing reasons for doing so.  This is not only the professional view, it is commonly accepted in all walks of life.”

Counsel for the appellant raised other points why custody should have been granted to the appellant rather than the respondent.  We do not consider it necessary to delve into these other issues.  Suffice it to say that, on the basis of the points covered so far in our judgment, we would have granted custody of the two girls at the point in time when the judgment was delivered in the Court below to the appellant.

It is to be noted, however, that after the appeal herein was lodged, the parties reached an agreement on the very issue of the custody of the two girls.  The agreement was reduced into writing and filed in Court as a consent order. An examination of the Consent Order shows that it was mutually agreed by the parties that M. and S. would travel to England around 17th December 1995, where they would live with the respondent while attending school thereat.  It was further agreed that whilst in England, both parties shall share the two children’s long vacations equally and alternate the Christmas and Easter holidays.  Again, it was agreed by both parties that in the event of the appellant being desirous of having the two children spend any mid-term holidays with her in Malawi, the respondent would allow the appellant to stay with the children if circumstances would so permit, and this would be on condition that the respondent would be solely responsible for all the costs for the two children’s travel to Malawi from England and back.  The respondent undertook to notify the appellant of any mid-term holiday dates so as to ensure that mutually agreed arrangements were made prior to the two children’s departure for Malawi.

Counsel for both parties signed the Consent Order for and on behalf of their clients and no evidence was adduced to demonstrate that the terms of the Consent Order were breached by the respondent.  For these reasons, we do not see the need for giving custody of the two girls to the appellant when the girls are now 10 and 8 years of age and already attending a boarding school.  Besides, their sojourn to England is specifically catered for by paragraph 1 of the Consent Order.  In our opinion, the terms of the Consent Order are framed in such a way as to be very generous to the appellant and rather onerous to the respondent.  Since, as we have pointed out, there is no evidence that the terms of the Consent Order were breached, we would rather that the status quo is maintained, and we so order.

Each party shall pay its own costs.

DELIVERED in open Court this 11th day of November 1998, at Blantyre.

Sgd.   ............................................................

   L  E  UNYOLO,  JA

Sgd.   .............................................................

   H  M  MTEGHA,  JA

Sgd.   .............................................................

   J  B  KALAILE,  JA