Latisha Cheryl Moranda Lightbourne v Shawn Amiel Ainsworth Thomas
| Jurisdiction | Bermuda |
| Judge | Ian Rc Kawaley CJ |
| Judgment Date | 05 April 2016 |
| Court | Supreme Court (Bermuda) |
| Docket Number | APPELLATE JURISDICTION 2016: 10 |
| Date | 05 April 2016 |
[2016] SC 36 App
In The Supreme Court of Bermuda
APPELLATE JURISDICTION 2016: 10
Ms. Nancy Vieira, MacLellan & Associates, for the Appellant
Ms. Alma Dismont, Marshall Diel and Myers Limited for the Respondent
Appeal — challenge to jurisdiction of Family Court — custody care and control jurisdiction vulnerable adults-limited jurisdiction of Family Court-inherent jurisdiction of Supreme Court
(in Court) 1
On November 3, 2015, the Family Court (Wor. Shade Subair Williams, Acting) ruled (upholding the preliminary objection of the Respondent) that it lacked jurisdiction to make orders for the custody, care and control of the parties' child, a vulnerable young adult whose care had previously been supervised by the Family Court before she attained 18 years of age. The Learned Acting Magistrate further found that relief
sought by the Appellant could only be sought from the Supreme Court, because the Family Court had no inherent jurisdiction to grant relief beyond the limits of its statutory jurisdiction. The Appellant appealed against this decision on various grounds, but only actively pursued the complaint that this jurisdictional determination was legally flawed.On March 23, 2016 I dismissed the appeal 2. I indicated that while the appeal had been found to lack merit, it had usefully served to highlight the need for a legislative framework to regulate the welfare of vulnerable adult persons.
I now give reasons for that decision.
After summarising the facts and the respective arguments of counsel, the Learned Acting Magistrate set out the following conclusions:
‘ Counsel, through their written and oral submissions, referred this Court to various previous cases and a thorough review of the provisions of the Children Act 1998 and the Minors Act 1950. I have carefully considered all material referred for consideration.
It is clear that there is no statutory provision in place from which this Court would be expressly empowered in these circumstances to make an order of guardianship over [S], a person now having attained as least 18 years of age. It is apparent that High Courts in other commonwealth jurisdictions have previously invoked an inherent jurisdiction to make orders of guardianship. The real question is whether the Magistrates' Court possesses such jurisdiction. In my view, it does not.
In Re C (a child) [2012] Bda LR 88 Ian Kawaley CJ ruled on the question of sufficient jurisdiction in the Magistrates' Court in relation to section 18J (4) of the 1998 Act which specified the Supreme Court's power to compel a person to submit to a blood test where the court considered it necessary in order to protect the health of a child. In that case, at the stage of first instance, the Magistrates' Court had wrongly assumed jurisdiction to make an order under these provisions which were expressly reserved for the Supreme Court.
The Learned Chief Justice at paragraph 15 (page 3) of this Ruling observed as follows:
“ The jurisdiction of the Family Court, a creature of statute with no inherent jurisdiction, must be found in statutory from. The Children Act does not confer an unfettered discretion on the Family Court to make whatever order it deems fit in the best interest of the relevant child…”
Kawaley CJ helpfully reiterated in this ruling that ordinarily, unless otherwise specified in the 1998 Act, statutory jurisdiction is conferred upon the Special Court of the Magistrates' Court. That is to say, unless the act specifically refers to the Supreme Court being empowered, the statutory powers given in the Act are assigned to include the Special Court. In this case, no such statutory powers have been given to the Special Court and so the order sought calls for the use of an inherent power which may only be exercised by the Supreme Court.’
This was, at first blush, a straightforward decision in which the Family Court had correctly applied a decision of this Court which was binding on it, because there was no clear statutory jurisdiction to supervise the affairs of a vulnerable adult in the same manner as the Family Court could plainly oversee the welfare of a child.
The Appellant's counsel implicitly assumed the burden of persuading this Court that its earlier judgment in Re C (a child) [2012] Bda LR 88 was wrong. Although the narrow jurisdictional question in Re C was different, the central finding relied upon by Ms Dismont before the Family Court and in response to the appeal was a principle of general application:
‘15. The jurisdiction of the Family Court, a creature of statute with no inherent jurisdiction, must be found in statutory form.’
However, Ms Vieira did not attack this finding head on. She sought instead to establish that the Family Court did have statutory jurisdiction to supervise the welfare vulnerable adults who had previously been supervised as children. This proved to be an insurmountable obstacle. Further, relying on English High Court authorities on the inherent jurisdiction of the English High Court, the Appellant's counsel urged this Court to find that the Family Court had a corresponding inherent supervisory jurisdiction over vulnerable adults capable of filling any statutory void.
The relevant application was made under section 36D of the Children Act 1998 (‘the Act’) which provides:
‘(1) A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of or access to the child.’
Section 2(1) of the Act defines child in the following way:
‘ “child” means, except in Part IX 3, a person who is under the age of 18 years…’
Section 36D is in Part IVA of the Act so “child” clearly means a person under the age of 18 years. Express language is accordingly required to justify construing any powers conferred in relation to a child as applicable to a person who is not a child as defined generally by the Act. An example of such a provision may be found in Part IVB, which Ms Vieira relied upon to demonstrate that maintenance orders could be made past the age of 18. Section 36.1B confers this jurisdiction in explicit and unambiguous terms:
‘(1) Every parent has an obligation, to the extent the parent is capable of doing so, to provide support, in accordance with need, for his or her child who is unmarried and is under the age of eighteen years or, if eighteen years of age or over, is enrolled in a full-time program of education or is unable, by reason of illness, disability or other cause, to withdraw from the charge of his or her parents or to obtain the necessaries of life.
(2)The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.’ [Emphasis added]
Far from supporting the proposition that custody orders could be made in respect of young adults who were vulnerable or adults who were vulnerable more generally, section 36.1B makes it clear beyond sensible argument that clear wording is required to expand the jurisdiction primarily conferred by the Act in relation to children alone.
The Minors Act 1950 took the statutory jurisdiction position no further. Reference to it before the Family Court may explain why the Learned Acting Magistrate described the application as being for a guardianship order. The Minors Act permits guardianship applications but also only deals with the welfare of persons of less than 18 years of age. It was difficult to comprehend how this Act was in any way responsive to the jurisdictional challenge raised by the Respondent and accepted in the Court below.
The Appellant's counsel cited no authority which supported the incredible proposition that the Family Court, a Special Court established by the Magistrates' Act 1948, had inherent jurisdiction corresponding to the Supreme Court of Bermuda and the High Court of Justice of England and Wales.
In addition to relying upon Re C in the Court below, Ms Dismont referred the Learned Acting Magistrate to the following provisions of the Magistrates' Act 1948:
‘77. A Special Court shall exercise such jurisdiction as may be conferred upon a Special Court by or under any Act…’
Ms Vieira relied at first instance and on appeal on a dictum of Thorpe LJ in Re F (Adult: Court's Jurisdiction) [2001] Fam 38 at page 53, which was approved by Baker J in O-v-P [2016] 1 All ER 1021; [2015] EWHC 935 (Fam) (at paragraph [10]):
‘ It would in my opinion be a sad failure were the law to determine that [the court] has no jurisdiction to investigate and, if necessary, to make declarations as to T's best interests to ensure that the protection that she has received belatedly in her minority is not summarily withdrawn simply because she has attained the age of 18.’
All the English cases cited which have deployed the inherent jurisdiction of the court to fill statutory voids in relation to vulnerable persons have involved the High Court. As I observed in the course of the hearing, the Supreme Court of Bermuda is a court of unlimited jurisdiction similar to the High Court of England and Wales. It may be helpful to refer to the statutory basis for this assertion.
Section 12 of the Supreme Court Act 1905 provides:
‘(1)The Supreme Court shall be a Superior Court of Record, and, in addition to any other jurisdictions conferred by this or any other Act or Act of the Parliament of the United Kingdom, shall, subject as in this Act mentioned, possess and exercise the jurisdiction which, at the...
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