Court commits illegitimate child to welfare director due to mother's severe mental unfitness.

[*211] 1984 Nov.19

(MILTIADOU, D.J.)

IN THE DISTRICT COURT OF PAPHOS

In the matter of the Children Law, Cap.352,

sections 63(1)(a) 64(1 )(b) and 70(1),

and

In the matter of the illegitimate infant

Nicos, son of Stella Asprou of Mouttallos,

born on 16.10.84,

Infant,

and

Savoulla Papamiltiadou, Welfare Officer,

Applicant.

(General Application No.3/84).

Children - The Children Law, Cap. 332, sections 63(1)(a), 63(1)(b) and 70(1) - Child in need of care or protection - The Court should first examine whether or not the case is within the terms of the Statute, and, if yes, whether to commit him into the care of a fit person - Mother of an illegitimate child-mentally afflicted to such an extent that she is unfit to exercise care and guardianship over her said child - The child is a child in need of care and protection - Committal of said child to the custody of the Director of the Welfare Officer, who, as he filed his consent, is deemed to be a “fit person” (Section 70(1) of the aforesaid).

S. Papamiltiadous (Miss), for Applicants,

Respondent absent

JUDGMENT

The following judgment was delivered by: -

MILTIADOU, D.J.: The applicants in the above [*212] application seek for an Order committing Nicos Asprou, the illegitimate child of Stella Asprou of Mouttallos, Paphos, to the care of the Director of the Welfare Office of Paphos, as a child in need of care and protection.

The application is based on the Children Law Cap. 352 and. particularly on sections 63(1 )(a), 64(1)(b) and 70(1 ).

Section 63(1)(a) reads as follows:-

“For the purposes of this Part a child in need of care or protection means a person under the age of sexteen years who is -

(a) a child who having no parent or guardian or a parent or guardian unfit to exercise care and guardianship, or not exercising proper care or guardianship, is either falling into bad associations, or exposed to moral danger or beyond control or is ill-treated or neglected in a manner likely to cause him unnecessary suffering or injury to health .

Section 64(1)(b) of the above law on the other hand, reads as follows:-

If a Juvenile Court is satisfied that any person brought before the Court under this section by the Director or any police officer is a child in need of care or protection the Court may either –

(b) commit him to the care of a fit person, whether a relative or not who is willing undertake the care of him.” [*213]

Section 70(1) finally reads as follows:-

“ The Director shall for the purposes of the provisions of this Law relating to the making of orders committing a child under the age of sixteen years to the care of a fit person be deemed to be a fit person subject to the consent of the Director to the making of such an order.”

Two witnesses were called by the applicants in support of the above application, namely:-

W.1

- Elias Nicolaides, a psychiatrist, at Limassol-Paphos, Government Hospitals, who inter alia, said that, he on two different occasions examined Stella Asprou of Mouttallos-Paphos and to his opinion, she is a mentally afflicted person and to such an extent, that she is unfit to exercise any care or guardianship over her said illegitimate child.

W.2 - Ioanna Demetriou, a Welfare Officer at Paphos District Welfare Office, who, inter alia, said, that, in her above capacity, for a period of three years had the whole Asprou family, under her supervision, and therefore, she knows all the members of said family; Stella Aspou is unmarried and resides with her parents. The whole family resides at Mouttallos, Paphos, in a very small house under the most unhealthy and not sanitary conditions. The grand-mother of the said child is too a mentally afflicted person and unfit to exercise care or guardianship over her grand-son. [*214]

Finally, present in the Court-room was the grand-father who stated that he is unwilling to exercise or undertake any care or guardianship over the illegitimate child of his daughter Stella.

In Clarke Hall and Morrison On Children , 4th Edition, p.3 is stated:

“…… Where a juvenile is brought before a juvenile Court not charged with an offence, but as in need of care or protection or beyond control, the first business of the Court is to try the issue whether or not the case is brought within the terms of the statute, and only if this be proved by proper evidence can the Court proceed to decide upon treatment. If the case be not proved, then whatever be the ground upon which the juvenile has been brought before the Court me must be released from custody, The liberty of the subject, however, small that subject may he must be safeguarded by the courts, and as the case of R.v.Toybee Hall Juvenile Court JJ. Exp Joseph (1939) 3 All E.R. 16, showed, the High Court will intervene where the liberty has been invaded without proper legal justification.”.

Two questions, therefore, require consideration by the Juvenile Court in this present application , first whether Nicos Asprou, the illegitimate child of Stella Asprou, is a child in need of care or protection, and, secondly, if so, whether to commit him into the care [*215] of the Director of the Welfare Office as a fit person.

Before, however, proceeding to examine the evidence adduced, I would like to stress, that, in cases like this, where the custody or upbringing of a child is in question, the Court, in deciding that question, shall regard the welfare of the child as the first and paramount consideration. (See Allen v. Allen, (1948) 2 All E.R. p.413 and Re Colling (An Infant) (1950) 1 All E.R. p.1057).

Having care fully considered the whole evidence before me and having given the matter the very anxious thought which any case of this sort demands, I find that Stella Asprou of Mouttallos, Paphou, on the 16.10.84 gave birth to an illegitimate child namely Nicos Asprou; that the said Stella Asprou is a mentally afflicted person to such an extent that she is unfit to exercise care and guardianship over her said child and therefore, her said child is a child in need of care and protection.

As regards the second question, a consent, on behalf of the Director of the Welfare Office, for the committal of said child to his care have been filed, and, therefore, under section 70(1 ) of the Children Law, Cap. 352 is deemed to be a fit person.

Finally, I would like to say, that undoubtedly it would be very sad for the mother of the child, who, in the Court her only saying, despite her mental affliction was, that she wanted her child, I assure her that she has all the sympathy of the Court, but, the welfare of her [*216] child is of a paramount consideration for the Court and I have no alternative but to order the removal of said child from her.

In the result, I grant the application and commit said Nicos Asprou, the child of Stella Asprou, to the care of the Director of Welfare Office.

Application granted.