Custody awarded to father despite mother's adultery claim; access granted to mother.

[*1419] 1972 November 28

(HADJITSANGARIS, D. J. )

IN THE DISTRICT COURT OF LIMASSOL

Stella Ioannou,

Applicant,

v.

Andreas Christoforou,

Respondent.

(Application No.38/72).

Children - Custody - Paramount consideration the welfare of the children - Meaning of "Welfare" - Young child - Whether it shouldremain with mother - Conduct of parties - Mother guilty of adultery - Blameless conduct of father.

S. Papakyriacou, for the Applicant.

A. Kenevezos, for the Respondent.

JUDGMENT

The following judgment was delivered by:-

HADJITSANGARIS, D.J., By virtue of the present [*1420] application which is based on the Infants and Prodigals Law, Cap. 277 the applicant claims: -

a) The custody of her 4 infant children Christakis, Panicos, Marinos and Yiannakis Christoforou and in the alternative,

b) access to her aforesaid children.

The application supported by the applicant’s affidavit was duly opposed and when the case came up for hearing on the 18.10.1972 the Court directed that a welfare Report be prepared as to the condition of the children and the parties.

The facts of the application are briefly as follows:-

The parties were married in accordance with the Greek Orthodox dogma on the 14.10.1962 and from their marriage they had the 4 children, Panicos 3 years old, Yiannakis 5 years old, Christakis 7 years old and Marinos 8 years old. The marriage broke down and in June 1971 a divorce was granted by the Ecclesiastical Court on the ground of the applicant’s adultery. It appears that the respondent husband remarried and his present wife lives with him and the 4 children at Trachoni village. The applicant on the other hand lives at present at Paphos and with another woman they run a Bar entertaining men which remains open from 5 p.m. until 1 a.m. daily.

The Welfare Report which was extremely carefully prepared deals in detail with the aspects of the lives of [*1421] the parties and their background. I think that some details of the said report should he mentioned before looking at the legal aspect of the case.

Mrs. Kapsali, the experienced Welfare Officer, who made this report described the father and his attention for his children at page 3 of the report as follows:-

"The father has shown always remarkable interest for His children and never abandoned them, he is ready to keep in his custody the 4 children. The father is described by his community as honest and peaceloving, he is especially respected for his interest regarding the 4 children. The father remarried to be able to offer to the children a more complete care. With his present wife lives harmoniously and he respects her for the interest she shows to his children."

Regarding the interest of the respondent's new wife for the children, Mrs. Kapsali states that "she married the respondent fully aware of his responsibilities and she has the power to take care of the children with her husband." "She is very respected in her community for her moral values, she loves the 4 children and her interest for them is genuine."

Regarding the applicant the report is not very favourable. After her divorce which was issued against her for adultery she lived and still lives with a married man and runs a bar at Paphos with another woman. [*1422]

I fairness to the applicant it seems that she realises the difficulties that she and the children would face if custody was granted to her in (a) due to her way of life and the mode of her profession and (b) the close link that the father created with his children.

Section 7(2) of the Guardianship of Infants and Prodigals Law, Cap, 277 reads as follows:

"In exercising the powers conferred by this section in regard to infants, the Court shall have regard primarily to the welfare of the infant but shall, where the infant has a parent or parents, take into consideration the wishes of such parent or both of them."

Section 1 of the English Guardianship of Infants Act 1925 provides that where in any proceedings before any Court the custody or upbringing of an infant is in question, the Court shall regard the Welfare of the Infant as the first and paramount consideration.

The Courts have felt themselves faced with difficulty to consider the real meaning of the term Welfare.

In re McGrath(1893) 1 Ch. 143 at page 148 Lindley L.J. said that:

"The welfare of a child is not to be measured by money only nor by physical comfort only. The word welfare must be taken in its widest sense the moral and religious welfare of the child must be considered as well as its physical well being. Nor can the ties of affection be disregarded." [*1423]

In R. v. Gyngall(l893) 2 Q.B.

232 at page 248 Kay L.J. said:

"The term welfare in this connection must be read in its largest possible sense, that is to say as meaning that every circumstance must be taken into consideration and the Court must do what under the circumstances a wise parent acting for the true interest of the child would or ought to do. It is impossible to give a closer definition of the duty of the Court in the exercise of this jurisdiction."

The Courts have felt the appeal of general principles in enabling them to decide what an infant’s welfare requires in any particular case. Two such principles have been prominent.

The principle that very young children should be with their mother and the principle that when children are somewhat older say between 6 and 10 boys should be with their father and girls with their mother. However stress on such principles varies from insistence to deprecation and even denial.

In Re S (1958) 1 W.L.R.391 page 397 RoxBurgh J. said that:

"The prima facie rule (which is now quite clearly settled) is that, other things being equal children of this tender age (under 5) should be with their mother, and where a Court gives the custody of a

child of this tender age to the father it is incumbent [*1424] upon it to make sure that really are sufficient reasons

to exclude the prima facie rule."

But in Re B(1962) 1 W.L.R. p.55 the Court of Appeal disapproved this as a principle of Law but not as principle of common sense Lord Ever shed M.R. saying that he did not "believe that in these cases there is such thing as a rule. Every case must be plainly be determined upon the particular circumstances affecting the case". Similar views were expressed in H.v. H and C. (1969) i W.LR. 208 by Salmon L.J. and in Re (1969) 2 Ch. 238 by Megarry J.

The wishes of an unimpeachable parent is another matter which must be taken into consideration. In Re O (1962) 1 W.L.R. 724 C.A.and Re L. (1962) 1 W.L.R. 886 C. A.

The difficulty of the decision to be made when a mother of young children is much more to blame, but the father not entirely blameless is shown in the recent decision of Megarry J. in Re F (1969)2 Ch. 238.

In England reports may be received from the official solicitor or a Court Welfare Officer or both. Such reports are of great assistance to Courts in England as are indeed in Cyprus. A great merit of such reports is their impartiality, see W.v. W. and c. (1968) 1 w.L- R. 1310.

In the present case the welfare report prepared by Mrs. Kapsali is impartial and I fully accept it. In fact when she gave evidence in Court she was not cross-examined by either side. [*1425]

In the present case the applicant acting very fairly and looking to the welfare of the infants seems to have abandoned the original claim for custody of her children, and she is now only claiming reasonable access to them. I feel that having taken all the circumstances into consideration the welfare of all 4 children regardless of their age and sex is to be if left in the custody of the father. On the other hand the mother should have reasonable access to them. In the result the following orders are hereby made:-

(a) The respondent Andreas Christoforou is hereby given custody of the infant children Christakis Panicos, Marinos and Yiannakis.

(B) The mother to have reasonable access to the children, once every fortnight at Trachoni village.

(c) The mother to be able to have with her the 4 infant children either for Christmas or Easter day.

(d) The father will not be permitted to take the children outside the jurisdiction of this Court without leave of the Court.

(e) Each party to pay his own costs.

Order accordingly.