Court grants mother leave to take 5-year-old child abroad to Dubai based on child's welfare and father's lack of interest.

[*431] 1980 May 24

(P. LAOUTAS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

In the matter of the Guardianship of Infants

and Prodigals Law, Cap. 277,

and

In the matter of Christina Kokkalou,

Infant,

and

In the matter of Niki Kokkalou,

Applicant,

and

In the matter of Ioannis Kokkalos,

Respondent.

(Application No. 120/75).

Children - Custody - Access - Mother having custody - Father’s right of access - Mother intending to go and work abroad together with her parents - Father showing no interest in the child - Child

5 years old and emotionally attached to mother - Welfare of child will be served if allowed to go abroad with mother - Leave granted to mother to take child abroad subject to conditions.

X. Xenopoullos, for the Applicant.

C. Emilianides, for the Respondent.

DECISION

The following decision was delivered by:-

LAOUTAS, D.J.: In the present application the mother applicant seeks leave of the Court to take her infant child out of the jurisdiction of the Court. [*432]

In the order granting custody of the child to the mother which was given on the 10th December 1975, it is stated that the child is not to leave Cyprus without the consent of the respondent father.

It is convenient at this stage to be noted that since the filing of the present application a divorce has been issued between the parties.

The applicant adopted on oath her affidavit and gave further evidence. She intends to travel to Dubai where her father has been employed by J. & P. She will try to find employment in the same company. Her mother is living there. She (applicant) has a job on a temporary basis. She wishes to live with her parents instead of living in Cyprus alone with a child. There are Greek Elementary Schools within the area of the employment of her father. The father, she said, has not visited or communicated with the child since 1978.

Her father in giving evidence stated that he is willing to take his daughter and the child to Dubai where they can live together and she can be employed in the company, if she so wishes. He said that due to the fact that his daughter lives alone in Cyprus, his wife who usually resides with him, has spend most of the time in Cyprus. They want to live all together.

The respondent adopted on oath the contents of his affidavit he had no personal knowledge of some of its contents e.g. para. 7. He said that the last time he had [*433] visited his daughter was in August 1978. He considered it best for the child to start visiting it when it became of school age where it would better understand what is the real situation between himself and the child's mother.

A welfare report (Exh. 1) was produced by an assistant welfare officer, the contents of which have been taken duly into consideration.

Both counsel in their final addresses agreed that the paramount consideration in this type of cases is the welfare of the child. Applicant's counsel stressed that it is for the interest and welfare of the child that the leave of the Court should be granted. Respondent’s counsel agreed the opposite. Both cited the same authorities.

I agree that it is an established principle that the welfare of the infant should be the first and paramount consideration.

Welfare of the infant has been

judicially interpreted in a long line of authorities. Some of them are the following:- Re MCGrath (Infants)(1891-1894)

All E.R. Rep. 1757. Re Thain, Thain v. Taylor (1926) All E.R. Rep.

384. Re L. Infant (1962) 3 All E.R. 1. Re F. an Infant (1969) 2 All E.R. 766.

In this later case it was said inter alia ".... The welfare of the ward is to be the pre-eminent or superior consideration; but that does not mean that I should

leave out of amount the conduct of the parties". See further Re L (minors) (Wardship: Jurisdiction) (1974) [*434] 1 All E.R. 913.

In P (LM) V. P (GE) (1970) 3 All E.R. 659. Winn L.J.said at p. 660; "it seems to me personally that the welfare of the child is the primary

consideration which should weight with the Court. Further, it is to be regarded, I think, as a very dominant factor in such a dispute

that there has been an order (which in fact was not resisted) for custody in favour of the one parent, in this case the mother and that there is every indication that the custody then ordered has been working satisfactorily in every respect and although naturally the other parent will feel - and the father does feel - that the access permitted to him is not all that he would wish in no other respect it is suggested in the slightest degree that the custody arrangements have been anything but entirely beneficial to the child and satisfactory in general to the parties concerned".

Another relevant case is Nash v. Nash (1973) 2 All E.R. 704. The last three cases have been cited with approval in Anna Taki Makrides (Now Anna Efstathiou) v. Takis Makrides (1976) 1 C.L.R. 14.

It is in evidence that the parties got in divorce. The applicant wants to join her parents who are abroad. She has not a permanent job and lives virtually alone. She has the custody of the child since 1975. The child is now over 5 years old and attend a nursery. The respondent has not a regular job. He has got married to a foreign girl (English) in April, 1980. They live at Prodromos where he owns a house. He usually works during the summer at the hotel [*435] "Verengaria" which is run by his father. His income is not known. Since August 1978 he stopped having any conduct with his daughter.

Having weighed the whole evidence before the Court and having directed my mind to all the authorities and principles governing this type of cases, I have reached the conclusion that it would have been for the welfare of the child if it is given leave to the applicant to take it abroad.

I have reached the above conclusion having taken into serious consideration the following aspects of the case.

The mother-applicant is a divorced person. Her movements and wishes cannot be fettered in any way. She is a free person and as such can travel abroad. The child is emotionally attached to her mother. This is evident from the welfare report; what would happen to the child if the mother decides to travel. We have not been told and there is no evidence by the respondent or on his behalf that the child can stay with him. This could not have been fulfilled, however, due to the conduct of the father, which I cannot disregard. The father has not attempted during the last two years to create the necessary prerequisites for a normal contact with the child. He is an indifferent person I reject his allegation that it is not possible to have such contacts due to the age of the child, but he will do so as soon as the child is of school age. I am afraid that [*436] by that time the only consequence will he the enstrangement between father and child.

Another consideration is the age of the child. It has been said time and again that children of tender years should not be separated from their mother because in that age they need her care and attention.

From the evidence adduced I am satisfied that the welfare of the child physical or natural will be properly served and there is no fear that the arrangements to be made will be inadequate for the protection, support and upbringing of the child.

The applicant mother is therefore allowed to take her child with her to Dubai on the following terms.

(a) That the right of access of the respondent father of his child, as defined by the custody order now in force, shall remain unaffected, so that it may be enjoyed whenever he happens to be in Dubai.

(b) That the child should be brought annually to Cyprus for a period of not less than two weeks and not more than a month, during the summer school vacations and in such time as it will fit the respondent father.

(c) That, on behalf of the mother an undertaking should be given by a responsible person in Cyprus, to the satisfaction of the Registrar [*437] of the D.C. Nicosia, and in the appropriate form, to the effect that the child will be brought back to Cyprus annually as above or at whatever time the Court may so order. In the circumstances I have decided not to make any order as to the costs of this application.

Order granting leave to the

mother to take child out of

Court's jurisdiction.