Lightbourne v Thomas

• Jurisdiction: Bermuda
• Court: Supreme Court (Bermuda)
• Judgment Date: 04 April 2016
• Docket Number: Appellate Jurisdiction 2016 No 10
• Date: 04 April 2016

Between:

Latisha Cheryl Moranda Lightbourne

Appellant

and

Sawn Amiel Ainsworth Thomas

Respondent

[2016] Bda LR 43

Appellate Jurisdiction 2016 No 10

In The Supreme Court of Bermuda

Statutory jurisdiction of the Family Court — Care, custody, control and access — Jurisdiction of the Supreme Court to supervise the care of vulnerable adults — Legislative reform

The following cases were referred to in the judgment:

Re C (a child)BDLR [2012] Bda LR 88

Re F (Adult: Court's Jurisdiction)ELR [2001] Fam 38

O v PUNK [2016] 1 All ER 1021

Re F (Adult: Court's Jurisdiction)WLR [2000] 3 WLR 1740

Re C (a minor); A v BBDLR[2012] Bda LR 84

Ms N Vieira for the Appellant

Ms A Dismont for the Defendant

JUDGMENT of Kawaley CJ

Introductory

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.

2. On March 23, 2016 I dismissed the appeal1.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.

3. I now give reasons for that decision.

The Family Court Ruling

4. 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)BDLR[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.’

5. 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 jurisdiction of the Family Court in relation to custody, care, control and access

6. The Appellant's counsel implicitly assumed the burden of persuading this Court that its earlier judgment in Re C (a child)BDLR[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.’

7. 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.

Statutory jurisdiction of the Family Court

8. 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.’

9. Section 2(1) of the Act defines child in the following way:

‘“child” means, except in Part IX2, a person who is under the age of 18 years…’

10. Section 36D is in Part IVA of the Act so “child” clearly...