(1988)1988September, 9 (DEMETRIADES,STYLIANIDES,PIKIS,JJ.) ELENI CHR. STYLIANOU, Appellant-Applicant, v. CHRISTAKISN.STYLIANOU, Respondent. (CivilAppeal No. 7635). Children —Guardianship and custody of— The GuardianshipofInfants and ProdigalsLaw, section 7—Principlesgoverning theexerciseof the discretionofthe Court —Welfareofchildren— The paramount consideration — What is meant by 'Welfare» —Status quo — Importance of retaining it—Considerations applicable in cases of veryyoung children. 5 Appeal —DiscretionofthetrialCourt—Interference withitsexercise on appeal —Principlesapplicable. CivilProcedure — The GuardianshipofInfantsandProdigalsRules, Prij 10
(2)—In matters not dealt by them the Civil Procedure Rules 10 apply. Civil Procedure — The Civil Procedure Rules, 0.48, r.4— Application —Conflict as to facts between applicant and respondent — The party, on whom the burden ofproof lies, should beprepared toprove them. Thepartiescamefrom KyreniaDistrict.Theyandtheirnewly bom child were uprooted by the Turkish invasion.'They went to Athens, where they both found work. In 1977 their second child was bom. They were saving money for the purpose of building a house at Lakatamia. Finally theybuiltit.Thiswasindicative oftheir intention nottoabandon permanentlyCyprus.Thefatherhadmoresparetime and he was doing most of the housework and was looking after the children. Gradually their harmonious life came to an end. They started quarrelling.Inthesummer of1987thefamilycametoCyprusfortwo 520 15 20 1 C.L.R. StyUanouv.Styttanou reasons:Holidaysandsupervision ofthefinalstageofthebuildingof theirhouseat Lakatamia. Duringtheirstaytroubleagainflared up.Themotherleftthefamily and went toAthens.The father' spains forreconciliation failed. 5 10 Thefather andthechildrenliveeversinceatthenewlybuilthouse at Lakatamia. A lady from Karavas was found to look after the children, who are thus well cared. The children accepted her. They are co-operative with her. At Lakatamia they live in a house with yard, whereas in Athens theywere livingina flatinamulti-storey building.Thechildren have the opportunityto be withthe grantparentswholiveinCyprus. Finally, the mother filed an application for guardianship and custody of the children and for leave to take them out of the jurisdiction. 15 20 25 30 ThetrialJudgedismissedtheapplication.Theonlymaterialplaced before him were the affidavits of the two opposing parties and the social welfare report.Thechildren, when asked, didnot express any wishes. Among the complaints of the appellant are: (a) Certain of her allegations in her affidavit were ignored. However, such allegations were denied bythe affidavit in opposition, (b)The trialJudge stated inhisjudgmentthatthechildrenhaveinCyprus«friendsandbonds», {c}The status quo that should be taken into consideration is that prevailing inAthensuntilthesummerof 1987. Held, dismissing the appeal:
(1)This Court has been invited to interfere with the exercise of the discretion of the trial Court. Such interference is governed by principles enunciated in a number of cases.ThisCourt does notsubstitute itsdiscretion forthatof thetrial Court.ThisCourtinterfereswhen theexerciseofthediscretion ofthe trialCourt isclearly wrong.
(2)The matterinissuebetween the partiesisgoverned by section 7 of Cap.277.The Courthasthereunder power toallowchildren to be taken out of the jurisdiction. Such power, however, should be sparingly exercised. 35
(3)The paramount consideration isthe welfare of the child. The word welfare must be taken in its widest sense. It is not to be measured only by money or physical comfort. Ties of affection should not be disregarded. The moral welfare of the child must be taken into consideration. 521 Styllanou v. Styfianou
(1988)
(4)Section 7
(2)ofCap.277connotesaprocesswhereby,whenall the relevant facts, claims and wishes of parents, rival or otherwise, relationships,risksand choicesandallothercircumstancestakeninto account and weighed, theJudgehastofollowonecoursetofind out and determine which ismostintheinterest of the child' swelfare. 5
(5)Continuity of care is,also,a most important part of the child's sense of security. The status quo should not be disturbed, unless good reason isshown.
(6)Inthiscase the status quo isnot that prevailinginAthens until the summer of 1987. The parents are no longer co-habiting and, 10 therefore, thefatherwouldnotbeabletolookafterthechildrenashe wasdoinginthe past. ThetrialJudgerightlycompared thelife ofthe children inLakatamiawiththelifetheywouldhavehadinasmallflat .ofa~rf)tJtIff-"storey builcling inAthens,witfTtheir mothetVofking:·
(7)The phrase inthejudgment «friends and bonds» didnottipthe 15 scales and it is not in the circumstances sufficient justification for interference bythis Court.
(8)InvirtueoftheGuardianshipofinfantsand ProdigalsRules,Rule 10
(2)theCivilProcedure Rulesareapplicable,whentheformer rules aresilent.0.48 r.4ofthe CivilProcedureRulesprovidesthatifthereis 20 a conflict between the applicant and any person giving notice of opposition in regard to the facts, the applicant orsuch person must, at the hearing of the application, be prepared to prove the facts he reliesupon in so far asthe burden ofproof liesupon him. Theburden ofproof restedonthemotherandshefailed toadduce 2 5 evidence toprove the allegations referred to byher counsel.
(9)Inthe caseofveryyoungchildrenthedictatesofnaturearethat the mother isthe natural guardian, protector and comforter; but this presumption, however, is rebuttable. In this case the children are grown up. 30 Appeal dismissed. No orderasto costs. Cases referredto: Skaliotou v.Pelekanos
(1976)1 C.L.R. 251; Karydas TaxiCo. Ltd. v. Komodikis
(1975)1C.L.R.321; Economou v.Economou
(1976)1C.L.R. 391; Makrides v.Makrides
(1976)1C.L.R. 14; Panayiotou v.Panayiotou
(1983)1C.L.R.446; 522 •3 5 1 C.L.R. Styllanou v. Stylianou G.v.G.[198512AllE.R. 225; AltransExpressLtd. v.CVAHoldingsLtd.
(1984)1AllE.R. 685; Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [194712AllE.R. 680; 5 Eagil Trust Co.Ltd. v.Piggot-Brown andAnother[1985] 3All E.R. 119; Birkettv. James[1977] 2AllE.R. 801; J.andAnotherv. C. andOthers [1969]1AllE.R. 788; ReΚ(Minors)[1977]1AllE.R. 647; 10 S(BD)v.S. (DJ)(Infants:CareandConsent)[1977] 1AllE.R.656; ReΟ(a Minor) [19781 2AllE.R. 27; ReC(Minors) [1978] 2AllE.R.230; Rostronv. Rostron
(1982)3FLR270; Diccocov. Milne
(1983)4FLR247; 15 Pountneyv.Morris
(1984)FLR381. Appeal. Appeal byapplicant againstthejudgment of theDistrictCourt of Nicosia (HjiConstantinou, S.D.J.) dated the 14th May, 1988 (Appl. No.4/88)whereby herapplication by which sheisseeking 20 guardianship andcustody of hertwo children andleave to take them outside thejurisdiction forthepurpose ofresidinginGreece was dismissed. G;N.Kaizer, fortheappellant. A. HadjiPanayiotou, for therespondent. 25 Cur.adv.vult. DEMETRIADESJ.:TheJudgmentofCourtwillbedeliveredby Mr. Justice Stylianides. STYLIANIDES J.:This case concerns two children -Markos and Melina, fourteen and eleven years old respectively. They 30 Hvepresently in a house at Pano Lakatamia with their father. The appellant (hereinafter referred «the mother»), who lives in Athens, applied to the District Court of Nicosia seeking the 523 Styllanides J. Styllanouv.Styllanou
(1988)guardianship and custody ofthe children and leave to take them outside thejurisdiction for thepurpose of residing in Greece. The District Court of Nicosia dismissed hersuch application. Hence this appeal. We were invited by counsel for the mother tointerfere withthe exercise bythe trial Court of itsrelevant discretionary power. 5 We consider, therefore, pertinenttodeal firstwiththepowerof this Court to interfere on appeal with thedecisionsoftrial Judges involving the exercise of judicial discretion. The approach adopted by the Supreme Court was expounded in a number of 10 cases-(see,interalia, YioIaA.Skaliotou v.Christoforos Pelekanos
(1976)1C.L.R. 251;KarydasTaxiCo.Ltd., v. AndreasKomodikis
(1975)1 C.L.R. 321;Loulla G.Economou (No. 2) v. George K. Economou
(1976)1 C.L.R. 391, at pp. 401-402; Anna Taki Makrides (NowAnna Efstratiou)v. TakisMakrides
(1976)1 C.L.R. 15 14,atpp. 17-18;Panayiotou v.Panayiotou
(1983)1 C.L.R.446). Theapproach adoptedinsuchcasesistheonelaiddownbythe English Case Law. The appeals in custody cases,orinany othercases concerning thewelfareofchildren,arenotsubjecttospecialrulesoftheirown, 20 although,thejurisdictioninsuchcasesisoneofgreatdifficutly -G. v. G. [1985]2 AllE.R.225,atp.
- In Altrans Express Ltd. v. CVAHoldings Ltd. [1984] 1AllE.R. 685, atp.690 itwassaid byStephenson, LJ.:«We must be very careful not to interfere with thejudge1 s 25 exercise of the discretion which has been entrusted to him. We can only do so ifhe has erred in law or in principle, orif he has taken into accout some matter which he should not havetakenintoaccountorhasleft outofaccountsomematter which he should have taken into account, or, and this isan 30 extension of the law which is now Ithink well recognised, if the Court of Appeal is of opinion that his decision isplainly wrong and therefore must have been reached by a faulty assessmentoftheweightsofthedifferent factorswhichhe has had totake intoaccount.» 35 In G. v. G. (supra) it was held that the test which the Court appliesindecidingwhetheritisentitledtoexercisejudicialcontrol 524 1 C.L.R. Styllanouv.Styllanou Styllanldes J. overtheexerciseofdiscretion ofanadministrativebody, isnotthe appropriate test for deciding whether the Court of Appeal is entitled to interfere with the decision made by a Judge in the exercise of his discretion. See, also, in this respect, the case of 5 Associated provincial Picture Houses Ltd., v. Wednesbury Corporation [1947]2AilE.R.
- IntheratherrecentcaseofEagilTrustCo.Ltd., v. Pigott-Brown and another [1985]3AllE.R. 119,itwassaidthat thefunctions of the Court of appeal is to review the exercise of the Judge' s 10 discretion and not to entertain an appeal from it in the sense of beinginvitedtosubstitute itsown discretion forthatofthe Judge. The Court of Appeal interferes when the discretion was clearly wrongly exercised. (See, also, Birkett v. James [1977] 2 All E.R. 801, speech of Lord Diplock.) 15 The application of the mother isgoverned by the provision of section 7.(l)(f) and
(2)oftheGuardianshipofInfantsand Prodigals Law, Cap.277, which reads as follows:«7.
(1)The Court may atanytime,on good cause shown- . 20 25 (f) make such order as itthinksfit regarding the custodyof the infant and therightof accessthereto of either parent;
(2)In exercising the powers conferred by this section in regard to infants, the Court shall have regard primarily to the welfare oftheinfantbutshall,wheretheinfanthasaparent or parents, take into consideration the wishes of such parent or both of them.» Thisstatutoryprovision of ourswasapparently modelled onthe corresponding provisions of section 5 of the Guardianship of Infants Act 1886. Itis, however, analogous to section 9
(1)of the 30 Guardianship of Minors Act 1971, which was enacted after our Cap. 277. Under section 7 the District Court has competence to allow minors to be taken out of the jurisdiction of the Cyprus Courts,a power, however, whichshould besparingly exercised. The primary matter for the consideration of the Court is the 35 welfare of the child. But the welfare of the child is not to be measured by money, only, nor by physical comfort only. The word welfare must be taken in itswidest sense. Ties of affection should notbe disregarded.Themoralwelfare ofthechildmust be considered aswellas itsphysical well-being. 525 StyUanldes J. Styllanou v. Styllanou
(1988)Thelocusclassicus intherecentEnglish Lawonthematteristhe Judgment of LordMacDermottinJ. and Another v.C.and Others [1969] 1 All E.R. 788, at pp. 820-821, which was followed and applied invariably. {See Re K. (Minors)[1977] 1 All E.R. 647; S. (BD) v. S. (DJ) (Infants: CareandConsent) [1977] 1All E.R.656; 5 InRe Ο (a Minor) [1978] 2 All E.R.27; InRe C. (Minors)[1978] 2 All E.R. 230. See, also, Cyprus cases Anna Taki Makrides (Now Anna Efstratiou)v. TakisMaknJes and Loulla G. Economou (No. 2) v. George K, Economou (supra)). Sub-section 2 of section 7 connotesa process whereby, when 10 all the relevant facts, claims and wishes of parents, rival or otherwise, relationships, risks and choices and all other circumstances taken into accountand weighed, theJudge has to follow one course to find out and determinewhich is most inthe interest of the child' s welfare. That is the first consideration 15 because itis of first importanceand theparamount consideration because itrules on or determinesthecourse tobe followed. Another principle developed by the Courts is that, in determining a dispute as tothecustody of a child,thewishes and choices of the child should be taken intoconsideration. 20 Continuity of care is, also, a mostimportantpart of thechild' s sense of security. If the child is happy and wellsettled and he gets on well,there must be shown a good and strong reason militating in further welfare of thechild for aJudge todisturb thelife of thechildby re- 25 ordering change of the custody. The status quo should not be disturbed, unless good reason is shown. In Rostron v.Rostron
(1982)3 FLR 270, Oliver, L.J., said:« the conclusion which I reach is thatthe status quo should notbe distrurbed withtheupheaval,theunsettlement, 30 the emotional disquiet which that will bring, if taking a rfek, and a risk which Iam notpersuaded thatitis essential in the children' s interests should be run.» In Diccoco v. Milne
(1983)4 FLR247, Ormerod,L.J., said:«... itis generally acceptedby those who are professionally 35 concerned with children that,particularly in the early years, continuity of careisamostimportantpartof thechild' s sense of security and that disruption of established bonds is to be avoided whenever itis possible todo so.» 526 1 C.L.R. Styllanou v.Styllanou Styllanides J. InPountney v.Morris
(1984)FLR 381,Dunn, L.J., said:- 5 «This isa case in which the children have now been with theirfather forovertwoyears.They areabsolutelyhappy and well settled with him, and they get on well with their stepmother. It seems to me that there is a risk that if they were moved to their mother, leaving aside the material difference that there would be in their lives, there might be difficulties with the step-father.» With the afore principles in mind, we turn to the facts of this 10 case. ThetrialCourthad before ittheaffidavit ofthemother,swomin support of her application, the affidavit sworn by the respondent in opposition and the report of the Welfare Officer, who was appointedbytheCourtforthepurposeundertheGuardianshipof 15 Infants and Prodigals Rules (see subsidiary Legislation of Cyprus, Volume II,p.422)asamended bytheGuardianship ofInfants and Prodigals (Amendment) Rules of Court 1972 (see No. 1, second SupplementtotheOfficial GazetteoftheRepublicof 6.10.1972). No other evidence was adduced and counsel for the parties 20 made ajointstatement thatthey would accept the contentsof the Report of theWelfare Officer, exceptanystatements expressing a final opinion with regard tothe case. The affidavit ofthe mother contained certain allegationsof fact, which were denied bythe father inhisown affidavit. 25 Counsel for the mother complained in thisappeal and argued that we have to interfere with the Judgment of the Court,' because it disregarded completely material evidence, that is the aforesaid allegations. By Order 48, rule 4 of /the Civil Procedure Rules, Cap. 12, 30 which areapplicabletomattersnotprovided bythe Guardianship of Infants and Prodigals Rules (see Order 10, rule 2), ifthere isa conflict between the applicant and any person giving notice of opposition in regard to the facts, the applicant or such person must, at the hearing of the application, be prepared to prove the 35 factshereliesupon insofarastheburden ofproof liesupon him. The burden of proof rested on the mother and she failed to adduce evidence to prove thesaid allegations and, therefore, she cannotvalidlycomplain thattheCourtdisregardedmaterialwhich 527 Styllanldes J. Styllanou v.Styllanou
(1988)was not proved before it.The Courthasnot erred on this matter. On the contrary, itwould have had, had theJudge gone the other direction. T h e facts, as found bythe trialCourtari&asemerging from the acceptable evidence before it -the undisputed parts of the two 5 affidavits and the Report ofthe Welfare Officer -the parties come from Kyrenia District, Cyprus. Their marriage was celebrated in the Kyrenia district {Ayios Georghios), where Markos, the elder childwasborn on 10thMarch, 1974atAyiosGeorghios, Kyrenia. This young couple, with the newly born child, were uprooted 10 from theirhome bytheTurkishinvadingforcesinJuly 1974.They were deprived of all the means of livelihood and in despair they lefttheirnativeislandand wenttoAthensinsearchofworkhoping for better life. Naturally, they hadhard daysduringthefirst period of theirstay inAthens.The wife, ultimately, took up employment 15 with the Electricity Authority of Greece, a post she continues to hold. The father originally worked at a furniture showroom. He abandoned that employment, however, and indulged in the sale of smalljewellery. Inthe meantime,on2ndJune, 1977,Melina-the second child -wasbom. Theywere livinga happy life.Theywere 20 saving money to build a house, which they actually did, at Lakatamia, a suburb of Nicosia. This was indicative of their Sntention not to abandon permanently Cyprus. Their stay-in Athens wasat least animus temporary. The father was behaving asa good husband. Due tothe nature 25 ofhiswork, hehad moresparetimethanthewife and evenhewas doing most of the housework including cooking and he was looking after the children. The harmonious life, however, came gradually to an end. The wife alleged that he was over jealous and stingy. He was 30 taking the salary of the wife and was giving to her pocket money daily. They had altercations, conjugal squabbles, even in the presence of the children. On occasions the neighbours and the police had to intervene. The husband admitted to the Welfare Officer that trouble 35 started and that on some occasions he beat thewife because she stayed lateoutofthehousewithoutanyreasonable or satisfactory explanation; her own attitude, behaviour and conduct, created strong suspicions thatshe developed extra marital relation. 528 1 C.L.R. 5 Styllanou v. Styllanou Styllanides J. ThelifeinAthensforthechildren,accordingtothemother,was happyandharmonious.Themotherstatedthatthefather waswell behaving to the children; he was accompanying them to the school;hewasmakingtheirfood;heneverassaultedthemandthe children had a good physicaland mental development. In the summer of 1987 the family came to Cyprus for two reasons:Holidaysandsupervision ofthefinalstageofthe building of theirhouse at Lakatamia. During their stay trouble flared up between the parents. The 10 mother left for Athens leaving the father and the children in Cyprus. Thefather tookpainsfor reconciliation.Tothatend he invoked the assistance of relatives and friends. He applied to the Archbishopric. HetravelledtoAthens,butwith no success. 15 The father and the children live ever since at the newly built house at Lakatamia. Alady from Karavas was found tolook after the children, who are thuswellcared.The children accepted her. They are co-operative withherand thiswaseven admittedbythe mother totheWelfare Officer. 20 AtLakatamia they liveina house withyard, whereas inAthens they were living in a flat in a multi-storey building. The children have the opportunity to be with the grand parents who live in' Cyprus.Theyarewelllookeduparidtheyarecleanandtidy.They ^attend the school regularly with pleasure. According to their teacher, who was invited bytheWelfare Officer, they look happy. Theirphysicaland mentaldevelopment isnormal.Theylovetheir parents. TheJudge makingacomparison stated,ontheevidence before him, that ifthe children were removed toAthens, they would stay 30 inanapartmentofamulti-storeybuilding.Theirmotherisworking for longhoursand hasno timetolook after them. Objection was taken in this appeal to a phrase used in the Judgment, that the children have in Cyprus «friends and bonds». This is not stated expressly in any of the documents before the 35 Judge. Though itismore favourable to the respondent, itwould notbyitself tipthescalestoeitherdirection. Even ifthiscould not be deduced as a reasonable inference from the whole picture depicted in the Welfare Report, having regard to the fact that the 529 Styllanldes J. Styllanou v. Styllanou
(1988)children attended theschoolforawholeschoolyear,againtheuse by the trialJudge of thisphraseand/or factor would not, inallthe circumstances, suffice for this Court to interfere with the Judgment. The Judge made a comparison between the life the children wouldhavehadinAthens,ifcustodyweregiventothemotherand leave to take them out of the jurisdiction, and their present condition in Cyprus. 5 Learned counsel for the appellant argued that the status quo which should be retained was the one prevailing prior to the 10 summer of 1987, when the family had not broken down and the children were living inAthenswithboth parents;the comparison should be made between thatperiod and the present one. With respect, without being necessary to say which of the parents is the impeachable, or if both are impeachable for the 15 break down of the family, the family situation pre-existing the summer of 1987came toan endand cannotbetakenasabasisfor the determination of this case.There isno cohabitation between the parents. Itisnot possible for the parents to cohabit in Athens and the father to be there to look after the children, as he was 20 doinginthe past. Certainlythefamilyconditionandthetiesofthe family during the life in Athens helped inthe development of the children.Such asituation would be more favourable tothem.The Judge rightly made the comparison between the life of the children with their father at Lakatamia, as described earlier, and 25 the envisaged condition of life of the children inAthensinasmall apartment with the mother out of doors for long hours, with nobodythere tolookafter them.The statusquo whichshould not be disturbed without good reason isthe present one. It was argued, further, by counsel for the mother that the 30 custody should be given to her, she being the mother. AJudge, when deciding what isbest for the welfare of a child, musttake intoaccount alltheparticularcircumstances relevant to that child. Inthe case of veryyoung children thedictatesof nature are that the mother is the natural guardian, protector and 35 comforter ofvery young children, butthispresumption, however, is rebuttable. Markos and Melina in the present case are aged fourteen and eleven.They are grown up. 530 I 1 C.L.R. Styllanou v. Styllanou Styllanides J. The wishes of the children are a factor to be taken into consideration when they are grown up. In the present case they stated thattheyloveboththeirparents,buttheyareneutraltotheir quarrel and expressed no preference. 5 The Judge, having taken into consideration only the evidence before him and applying properly the lawtothefacts of the case, reached theconclusionthatthechildrenshouldcontinue tostayin the house which was built for the family, in the custody of their father, as, otherwise, the change sought by the mother would 10 bring physical, psychological and emotional disturbance and might create confusion, insecurity and uncertainty to them. He dismissedthe application. We are unable to conclude that the Judge came to a wrong conclusion and wesee no reason to interfere with the Judgment. 15 We dismissthe appeal, but in allthe circumstances of the case, we make noorder as tocosts. Appeal dismissed. No orderasto costs. 531