clr/1982/1982_1_479.pdf

(1982)bitation of the applicant and the respondent Andreas Chiistodoulides. The child was residing in Nicosia with his father and his grandmother who was the other respondent in these proceedings. The respondents refused to let the applicant have custody of the infant unless she accepted certain conditions 5 aiming mainly at securing that the infant will remain in Cyprus. Held,

(1)on the question whether the Court possesses jurisdiction to entertain the application: That this Court possesses such jurisdiction under Article 155.4 of the Constitution and on the stiength of the relevant 10 piinciples of the Common Law and Equity applicable in England up to, at least, the time when Cyprus became an independent country in 1960 (see, inter alia, The Queen v. Nash, In re Carey, an Infant [1883] 10 Q.B. 454). (II) on the merits of the application: That it appears that it is necessary to take into account, within the proper limits, the aspect of the welfare of the infant concerned, especially in a case such as the present one where the infant is not detained by a stranger, but is in the custody of his natural father; that it is, therefore, directed, that there 20 should be prepared by the Department of Welfare Services a comprehensive report, covering the various aspects which are relevant to the infant in question, copies of which should be furnished to both counsel who aie free to place before the Court by way of affidavits any other material which they deem relevant 25 and the case is fixed for continuation on August 24, 1982 at 10 a.m (III) on the question whether applicant possessed an alternative effectiveremedy under theprovisionsof theGuardianshipof Infants and Prodigals Law, Cap. 211, in view of the legalposition that a 30 writ of habeas corpus is a writ of right and not a writ of course and may be refused where there is another effective remedy. That the provisions of Cap. 277 do not apply to illegitimate children, like the infant involved in the present case; and that, therefore, the applicant does not possess under Cap. 277 an 35 effective remedy in addition to the lemedy by way of an order of habeas corpus. Order accordingly. 480 \$ 1 C.L.R. 5 Annander v. Annander Cases referred to: Queen v. Nash,In re Carey,anInfant [1883] 10Q.B. 454; Barnardo v. McHugh [1891] A.C.388; In reJ.M. Carroll (an Infant) [1931] 1K.B. 317; Exparte Corke[1954] 2All E.R. 440; Re C.7\ (anInfant), ReJ.T. (anInfant) [1956] 3All E.R.500. Application. Application for an order of habeas corpus by Susannc Annander of Sweden so that her infant son, Joseph, should 10 beproduced in Court for thepurpose of being delivered toher. A. Georghiades, for the applicant. Gl. Raphael, for the respondents. Cur. adv. vult. TRIANTAFYLLIDES P. read the following decision. In this 15 application foranorder ofhabeas corpus theapplicant, Susannc Annander, is a Swedish citizen who is at present residing in Cyprus. She seeks the said order so that her infant son,Joseph, who is twoyears old, should be produced in Court for the purpose 20 of being delivered toher. Thechild isa Swedish national,too. It iscommon ground that thefather ofthe child is respondent Andreas Christodoulides and that the child is the illegitimate offspring of the cohabitation of the applicant and of the said respondent from May 1975 onwards, both in Sweden and in 25 Cyprus. The child resides, at present, in Nicosia with his father and with his grandmother, Adamantini, or Ada, Christodoulides, who is the other respondent in these proceedings. Until June 4, 1982,the applicant was, also, residing with them, but she 30 ceased doing so because she broke off relatione with the father of the infant due to personal friction with him. As has been stated by their counsel, the respondents refuse to lettheapplicant have custody ofthe infant unlesssheaccepts certain conditions aiming mainly at securing that the infant 35 will remain in Cyprus. The first issue which I have had to examine in this case was whether I possess jurisdiction to entertain this application: 481 Triantafyllides P. Annander v. Annander

(1982)I have reached the conclusion that I do possess such juris­ diction under Article 155.4 of the Constitution and on the strength of the relevant principles of the Common Law and Equity applicable in England up to, at least, the time when Cyprus became an independent country in 1960. ία this con- 5 nection, I may refer, by way cf illustration, to the cases of TheQueen v. Nash,In re Carey, anInfant,[1883] 10 Q.B. 454, Barnardo v. McHugh, [1891] A.C. 388 and In re J.M. Carroll (an Infant), [1931] 1 K.B. 317. /• A questionwhich has arisen iswhether theapplicantpossesses 10 an alternative effective remedy under the provisions of the Guardianship of Infants and Prodigals Law, Cap. 277, and whether,if that is so, I should refuse toexercise myjurisdiction as regards themaking of anorderof habeas corpus in this case: It is correct that in the commentary to rule 1 of Order 54 15 of the Rules of the SupremeCourtinEngland(seeTheSupreme Court Practice, 1979, vol. 1,p. 835) which corresponds to rule 14of Order 59of theold Rulesof the SupremeCourtinEngland (see The Annual Practice, 1958, vol. 1, p. 1735) it is stated that habeas corpus "is a writ of right andgranted ex debitojustitiae, 20 but not as of course, and may be refused where anotherremedy lies whereby the validity of the restraint can be effectively questioned". A case which is referred to, in this respect, in the said commentary is Ex parte Corke,[1954] 2 All E.R. 440, where Lord Goddard C.J. stated the following: 25 "It has always been the law, since it was laid down by WILMOT, J., in giving his opinion on the writ of habeas corpus, in answer to the questions proposed to thejudges by theHouseof Lordsin 1758,thatawrit of habeas corpus is awrit ofrightandnotawrit of course: SeeWILMOT'S 30 NOTES OF OPINIONS AND JUDGMENTS, p. 82". It has to be examined, next, whether there exists an effective alternative remedy under Cap.277 in a case such as thepresent one: Cap. 277 was enacted as the Guardianship of Infants and 35 Prodigals Law, 1935 (Law 32/35) and its long title was "A law to provide for the Guardianship of Infants not being Heirs under Disability andof Prodigals"; and,insection2of the Law, "infant" was defined as meaning "a person who (

1. a)has not 482 1 C.L.R. Annander τ. Annander / Triantafyllides P. attained theageof eighteen years, and (b)is not anheir under disability as defined insection 1of theInfants'EstatesAdmini­ strationLaw, 1894"; anditwas provided further "thata married woman whohas not attained theage of eighteen years shall 5 notbe deemed tobean^infant for thepurposes of thisLaw". The long title of-Law 32/35, which wasCap. 102 inthe1949 Edition ofthe,StatuteLawsof Cyprus, and theabove definition of "infant" weie amended by the Guardianship of Infants and Prodigals (Amendment) Law, 1954(Law41/54) with the ]ο result that thereference toinfants "not being Heirs underDisa­ bility" wasdeleted from thelongtitleofthe Law andparagraph (
2. b)of the aforequoted definition of "infant" was repealed. Theseamendments coincidedwith theenactmentoftheAdmi­ nistration of Estates Law, 1954 (Law 43/54) which repealed the 15 Infants' Estates Administration Law, 1894(whichwasoriginally Law 7/1894and then Cap. 218 inthe 1949 EditionoftheStatute Laws of Cyprus). At the time when the said Law 7/1894 was enacted there was in force the Intestate Succession Law, 1884(Law8/1884) 20 byvirtue ofwhich only legitimate children could become heirs. Therefore, when atthe timeof theenactmentof Law 32/35— now Cap. 277—there was made, ai aforesaid, reference inits long title and'in the definition of"infant" to"heirs under disa­ bility",,such heirs included legitimate children only, and not 25 illegitimate children, too. Consequently, this is a quite signi„ficant indication that Law 32/35 hassince its enactment been s' destined to relate only to legitimate children Another reason for which Cap. 277 seems to be applicable only to legitimate children is theexpress reference to "lawful 30 father" in its section 6, which, having remained the same all along since it was first enacted, reads as follows: "6. Subject to the provisions of this Law— (
3. a)thelawful father of an infant shall be the guardian of the infant's person and property; 35 (
4. b)where an infant has nolawful father living,themother of theinfant*shall betheguardianof theinfant's person and property; 483 TriantafyNIdes P. Annander v. Annander

(1982)(c) ifboth theparents ofan infant arc dead, thetestamentary guardian (if any) appointed by the la^t surviving parent shf.ll be the guardian of the infant's person and property". It is useful, also, to note that in Re CT. (aninfant),ReJ.T. 5 (an infant),[1956]3AllE.R. 500,RoxburghJ. after an extensive review of relevant case-law and legislative provisions in the analogous to Cap. 277 statutes in England—such as the Guardianship of Infants Act, 1886, and the Guardianship of Infants Act, 1925,as amended by the Administration of Justice 10 Act, 1928—proceeded, veiy convincingly, to express (he views, inter alia, that "prima facie, the titles of 'father' and 'mother' belong only to thosewhohavebecomesc inthe manner known to and approved by ths law" (seep. 504),that "it is, therefore, almost impossible to bvlievc that the Guardinaship of Infants 15 Acts were intended to embrace illegitimate children" (see pp. 507-508), and that "the prima faciu meaning of the terms 'mother*and 'father' isnot (obedeparted from unlessacompellingreason canbefound inthestatutefor doingso"(secp.510). It appears that in England express special provision for the 20 applicability to illegitimate children of only certain legislative provisions relating to the guardianship of infants had to be made (sec, in this respect, section 14 of the Guardianship of Minors Act, 1971). In the light of the foregoing I am inclined to the view that 25 —(asalsothereisnottobefound initanycompellingindication tothecontrary)—Cap.277should betreated asbeingapplicable only to legitimate and, not, also, to illegitimate, children; and, a further indication in support of this view is that all matters in relation to illegitimate children in respect ofwhich legislative 30 provisions were deemed necessary are regulated by a special Law, the Illegitimate Children Law, Cap. 278, the long title ofwhichis"A LawtoConsolidateandAmendtheLawRelating to Illegitimate Children", and which was enacted in 1955 as Law 15/

1. Since, therefore, I have reached the conclusion that the provisions of Cap. 277 do not apply to illegitimate children, like the infant involved in the present case, the applicant does not possess under Cap. 277 an effective remedy in addition to the remedy by way of an order of habeas corpus. 40 484 35 1 C.L.R. Annander v. Annander Trlantafyllides I*. I would, however, go further and say that, in so far as the situation in the case now before me is concerned, there is so much essential difference between the nature of the remedy of habeas corpus and the nature of the remedies under Cap. 277, 5 that even if Cap. 277 was applicable to illegitimate children, too, I would not be prepared to regard the remedies under Cap. 277 as being so truly alternative to that of an ord?r of habeas corpus as to hold that this would not be a proper case in which to make such an order if it is found that the applicant 10 is entitled to it on the merits of the case. Whether or not the order of habeas corpus which is applied for by the applicant should be made is a question which I cannot answer today as I do not yet have before me all the required material. In the light of case-law such as Nash, supra, 15 Barnardo,supra and Carroll, supra, it appears that it is necessary to take into account, within the proper limits, the aspect of the wtlfare of the infant concerned, especially in a case such as the present one where the infant isnot detained by a stranger, but is in the custody of his natural father. 20 It is directed, therefore, that there should be prepared by the Department of Welfare Services a comprehensive report coveiing the various aspects which are relevant to the infant in question. The Registrar of this Court should take all necessary steps to ensure th.3 preparation of such report, copies of which should 25 be furnished to both counsel. Both sides are, also, free to place before the Court, by way of affidavits, any other material which they deem relevant. This case is fixed for continuation on August 24, 1982, at 10 a.m., and, in the meantime, and until further order, there 30 will remain in force the order regarding the child which was made by consent on June 16,
2. Order accordingly. 485