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Tepulolo v Pou [2005] TVHC 1; Case No 17 of 2003 (24 January 2005)

IN THE HIGH COURT OF TUVALU
FAMILY APPELLATE JURISDICTION

CASE NO. 17/03

BETWEEN:

TIAU TEPULOLO
Plaintiff

AND:

TEALA POU
1st Defendant

AND:

ATTORNEY GENERAL
2nd Defendant

A. Seluka for Plaintiff
E. Apinela for Defendant

Hearing: 6 April 2004
Judgment: 24^th January 2005

JUDGMENT

The plaintiff gave birth to a son, Rakentai, on 10 July 1999 on Nui. She was unmarried and it is undisputed that the first defendant is the father. He was also unmarried and, whilst the plaintiff was feeding the child, the father had access to him. However, it became apparent that he wished to take the child to live with him and his parents.

Following discussion between the plaintiff and the first defendant, the plaintiff formed the view that the first defendant's true intention was to take the child to New Zealand and to give him to his sister who, it appears, lives there. The plaintiff did not agree and the difference of opinion led to the first defendant applying to the Nui Island Court for custody of the child.

The Island Magistrates' decision (delivered it appears in September 2002 although the record bears no date) was, "The child will stay permanently with the father, Teala. If the mother wants to see the child then Teala should ensure that this is done".

The mother appealed to the Resident Magistrate and, on 4 October 2002, he upheld the Island Magistrates' decision. The plaintiff claims that she is not being allowed access.

An appeal was filed in this Court on l5 October 2002 but, at the hearing on 11 April 2003, it was clear that the only question raised was the proper interpretation of the relevant law and an appeal was not appropriate in such a case. The parties agreed the appeal should be dismissed and the issue pursued as an application for a declaration with the Attorney General added as a second defendant.

That application, the present action, was filed on 8 May 2003. By the next sitting of the Court in September 2003, no defence had been filed and so a timetable was set. It was also agreed that the matter could be dealt with by written submissions but, although time was allowed for further submissions, they have not been filed and the Court has proceeded on those already filed both in this case and in the earlier appeal.

The declarations sought are:

"1. That section 27 of the Constitution gives a fundamental right to women that they will not be discriminated against on grounds of gender and that in this case that right has been violated;

2. That section 3(5) of the Custody of Children Ordinance and section 20(2) of the Native Lands Ordinance are in breach of section 27 of the Constitution in so far that this discriminates against women on the grounds of gender;

3. Further, and in the alternative, that sections 3(5) and 20(2) aforesaid are in breach of the Convention on Elimination of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC) to which Tuvalu is a signatory and as such the court is asked to declare them in breach of the obligation;

4. Further that Conventions such as CEDAW and CRC are applicable in domestic law where either the existing law is in contravention of the Convention and the Court makes a declaratory order to that effect, or where the meaning of a statute or provision is ambiguous or silent;

5. That the proper test to be applied by the Court in assessing custody pursuant to the Custody of Children Ordinance and the Matrimonial Proceedings Act 1984 is what is in the best interests of the child in accordance with the CRC irrespective of the gender of the parent."

The first declaration

Section 11(1) of the Constitution declares that every person in Tuvalu, whatever his race, place of origin, political opinions, colour, religious beliefs or lack of religious beliefs, or sex is entitled the fundamental human rights and freedoms listed in the subsection and to other rights and freedoms set out in Part II which include freedom from discrimination. That is found in section 27 where it is defined in section (1) as

"the treatment of different people in different ways wholly or mainly because of their different races, places of origin, political opinions, colours or religious beliefs or lack of such beliefs, in such a way that one such person is for some such reason given more favourable treatment or less favourable treatment than another such person."

Subsection (2) then provides that no-one shall be treated in a discriminatory manner but subjects that protection to a number of exclusions most of which are not relevant to the present case.

It is accepted by the plaintiff that there is no specific reference to women in section 27 but that, as the word 'people' is used, the protection must apply to men and women. That is clearly correct but the question that has to be addressed is whether the discrimination against which the section provides protection includes different treatment on the grounds of the person's gender. It is clear it does not. The definition of what amounts to discrimination under the Constitution is restricted to the grounds stated and gender is not one of them.

The description of the people entitled to the fundamental constitutional rights is identical to the wording in the definition of discrimination in section 27 save for the reference to sex and supports the view that the omission in the later was deliberate.

The defendants appear to be suggesting that the omission of any reference to sex in section 27 in some way limits the people entitled to freedom from discrimination. That is not the case. Clearly the intention of section 11 is to guarantee all rights and freedoms, including freedom from discrimination, to all citizen irrespective of gender. What section 27 does is to limit the range of conduct which will amount to discrimination. Gender is not included. In other words, everyone, whatever their gender is entitled to the constitutional freedoms including freedom from discrimination but, under the definition of discrimination in section 27, unequal treatment because of a person's gender is not discrimination.

The application for the first declaration is refined.

The second declaration

A similar answer must apply to the second declaration sought. As gender is not one of the bases of discrimination under section 27, sections 3(5) of the Custody of Children Ordinance and 20(2) of the Native Lands Ordinance cannot be in breach of the section on that ground.

In fact, it goes further in relation to section 20 of the Native Lands Ordinance because section 27(2) of the Constitution provides that no-one shall be treated in a discriminatory manner subject, inter alia to subsection (1)(c). By the latter, the provisions of subsection (2) do not apply to a law in so far as it makes provision "in relation to land." Whilst section 20 gives the Lands Court powers in relation to paternity, the whole purpose of the provision is to protect the child's rights to inherit, inter alia, land in accordance with native customary law.

The application for the second declaration is dismissed.

The third and fourth declarations

Both these declarations require a determination of the effect international treaty obligations might have on our national law. It is suggested by the plaintiff that section 3 of the Custody of Children Ordinance and section 20 of the Native Lands Ordinance contravene the terms of two international Conventions, namely CEDAW and CRC.

I pause to point out that, when a party wishes the court to consider the effect of any law other than those of Tuvalu, that party should ensure the court has a copy of the foreign law. The same applies in this case to these Conventions. No such copy was made available and counsel for the plaintiff relied instead on his own statements as to the meaning and intention of each. Counsel for the defendants could have objected on that ground but did not do so preferring, properly, in view of the nature of the issues involved, to have them resolved.

I shall rule on the basis that the submissions of counsel for the plaintiff are an accurate summary of the contents of the Conventions on the relevant points. He states:

"In assessing whether or not a law is discriminatory under CEDAW, the court has to apply the following tests:

- is the law discriminatory against women? The definition of discrimination is given in Article 1.

- Article 5(a) calls on States to modify cultural practices based on the superiority and inferiority of sexes.

- Article 2 refers to amendments of the law which are discriminatory against women.

- Article 16(d) concerns and gives women an equal right to children irrespective of marital status."

"The CRC defines the rights that a child has. That provides that any decision that is taken by a court must be taken in the best interests of the child (Article 3)."

The Attorney General advises the court that Tuvalu ratified CRC on 14 July 1995 and acceded to CEDAW on 4 October 1999. No laws have, it appears, been passed or even considered by Parliament specifically to give effect to the obligations placed on the States Parties by either convention. It is indisputable that the implementation of the requirements of such conventions can be a slow process involving considerable discussion, preparation and, frequently, education. If that has been occurring in the long period of time since Tuvalu acknowledged its obligations under these Conventions, then it is to be hoped that there will be some tangible sign presented to Parliament soon. If, on the other hand, nothing has been done to implement the aims, then the whole purpose of accession to such conventions becomes little more than a hollow charade. The court has not been told whether Tuvalu has reported its failure to do anything to date as it is obliged to do under both conventions. Clearly that may mean that action is being taken and, as will be seen, some of our existing laws are in accordance with CRC and may need no amendment.

As has been stated above, the plaintiffs suggestion is that the terms of Section 3 of the Custody of Children Ordinance and of section 20 of the Native Lands Ordinance breach these two Conventions. Counsel further submits that they:

"have to be read in accordance with the existing laws and impose obligations on States to adapt its laws to meet those. If the State does not take such steps, this process may be done through the Courts".

Whilst it is plain that obligations are placed on States parties to amend their laws where there is conflict with the aims of the conventions, no authority was advanced for the second contention and I do not accept this court has such power.

The power to make laws, which includes the power to amend existing laws is vested in Parliament; section 84, Constitution. The act of accession to an international treaty is carried out by the Executive and, unless and until Parliament passes laws to bring these treaty obligations into effect the mere act of accession does not change the laws of Tuvalu. To find otherwise would be to give the Executive a power to make laws that it does not have.

However, I accept that the aims of an international convention may be relevant in the interpretation of existing laws of Tuvalu and, in that manner, the Court may be able to alter the way in which the existing laws are applied. Section 17 of the Interpretation Act, Cap 1A, provides:

"17. A construction of a written law which is consistent with the international obligations of Tuvalu is to be preferred to a construction which is not."

That will apply to obligations incurred by Tuvalu upon accession to any international convention but it will only be relevant where there is an apparent ambiguity in the laws of Tuvalu which requires the court to determine the true construction of the law. I cannot accept that it is to be read as giving the courts the power, in effect, to correct or amend existing laws to bring them in line with such obligations. To do so would give the court a lawmaking rather than an interpretive power.

Section 3 of the Custody of Children Ordinance provides:

"3. (1) A court may on application by or on behalf of any person make such order regarding-

(a) the custody of any child; and

(b) the right of aces to the child of his mother or father,

as the court thinks fit having regard to the welfare of the child and to the conduct and wishes of the mother and father.

(2) Before making a custody order the court shall make full enquiry into all the circumstances and shall call for any evidence or report it may in the interests of justice consider necessary.

(3) In exercising jurisdiction under this section the court shall regard the welfare of the child as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father is superior to that of the mother or the claim of the mother is superior to that of the father.

(4) A court may at any time on application by or on behalf of any person make an order discharging or varying a custody order.

(5) This section is subject to the Native Lands Ordinance."

Section 20 of the Native Lands Ordinance provides, so far as relevant to the present case:

"20. (1) If in any island a single woman is delivered of a child, the court may summon before it that woman and all other such natives as it may think fit and may enquire into the paternity of the child.

(2) Subject to anything to the contrary in the native customary law, the court may make an order regarding the paternity of the child and its future support in one of the following ways -

(i) If the father being a native accepts the child as being his, such child shall after reaching the age of 2 reside with the father or his relations and shall in accordance with native customary law inherit land and property from his father in the same way as the father's legitimate children ......"

Paragraphs (ii) and (iii) are not relevant as they deal with the orders that may be made if the putative father denies paternity but is found by the court to be the father.

The plaintiff's submission is that the two sections challenged are in conflict because the requirement that section 3 of the Custody of Children Ordinance is subject to the Native Lauds Ordinance negates the mandatory test set out in subsection 3(3) and thus removes the principal safeguard prescribed by the Act and which accords with the requirements of CRC.

It is suggested that the Nui Island Court acted under the terms of section 20 of the Native Lands Ordinance and read its terms as mandatory and restrictive. As the first defendant accepted paternity, the court considered it had to make the order in the terms set out in section 20(2)(i). The result was that the requirements of section 3(5) of the Custody of Children Ordinance could not be applied either in the sense of the paramountcy of the child's interests or the exclusion of any consideration of superiority of the claims of the father.

The plaintiff's case, therefore, is that the requirement imposed by section 3(5) means that subsections (1) to (4) conflict with section 20. Thus, because section 3(3) conforms to the requirements of CRC, the court should resolve the ambiguity by applying the test in section 3(3) and thereby override the provisions of section 20.

The defendants, on the other hand, point out that the provisions of section 20 are expressly "subject to anything contrary in the native customary law". This is consistent with the Constitution which, in the preamble, places emphasis on the acceptance of Tuvaluan values and culture including, in paragraph 3:

"... the people of Tuvalu recognise and affirm, with gratitude to God, that the stability of Tuvaluan society and the happiness and welfare of the people of Tuvalu, both present and future, depend very largely on the maintenance of Tuvaluan values, culture and tradition, including the vitality and the sense of identity of island communities ..."

and, more specifically in paragraph 6:

"6. The life and laws of Tuvalu should therefore be based on respect for human dignity, and on acceptance of Tuvaluan values and culture, and on respect for them."

The purpose of section 20 is, the defence contends, to allow the inheritance of property in accordance with customary law.

I have considered the submissions of both parties but I am satisfied the answer to this issue lies elsewhere than in those arguments.

There is no doubt that the toms of section 20 relate to the inheritance of native land. Thus it gives the court power to enquire into the paternity of a child born to an unmarried woman and the purpose of such enquiry is to ensure the child's inheritance is secured. However, it must be borne in mind that, by section 2 of the Native Lands Ordinance, "court" means a lands court established under section 6. Thus the power to enquire and determine the paternity of the child under section 20 is only given to the Lands Court. It is a special procedure given only to that court to initiate an enquiry into the paternity of a child born out of wedlock and make any necessary provision for its upkeep.

In order to do so, it is given the power, in subsection (1), to summon the woman and any other natives the court thinks fit. I would suggest the purpose of such a procedure was to enable the Lands Court to ensure any illegitimate child born on its island would know where it has the right to reside and how and from whom it will inherit property. Subsection (2) provides three alternative ways in which the court may deal with the inheritance, and maintenance of the child. By making such an order, the Lands Court is able to ensure the child will not be disinherited or become an outcast in its community.

As I have stated, it has been suggested by counsel for the Plaintiff that the Island Court reached its conclusion because it considered that, by the terms of section 20, it had no alternative to making one of the orders in subsection (2). It appears to be accepted by both counsel that the order, set out in subsection (2)(i), (ii) and (iii) are the only orders available to the Lands Court in such cases.

I cannot accept that is correct because subsection (2) provides that the court may make an order regarding the paternity and future support of the child "subject to anything to the contrary in the native customary law". It is clearly open to the court to make an order in accordance with native customary law which may not be in accordance with those set out in paragraphs (i) to (iii). The wording of section 20(2) demonstrates that the decision whether to make one of the orders in paragraphs (i) to (iii) is discretionary:

"Subject to anything to the contrary in the native customary law, the court may make an order ... in one of the following ways ..."

Where the court decides to make an order in the terms of paragraph (i) following an admission of paternity, it is a mandatory requirement that the child:

"... shall after reaching the age of 2 reside with the father or his relations ... and shall ... inherit ... in the same way as the father's legitimate children ..." (my italics)

It would seem that the mandatory provisions are necessary because the inheritance in that manner cannot occur unless there is a corresponding residence but, as has been stated the decision whether to make such an order at all is discretionary.

The record of the Island Court shows the President as saying, "If the child is 2 years old, the father has a right to the child." However, whether this was reference to the terms of section 20 or to a matter of Nui custom is not clear. If the former, it should not have been a matter for the consideration of the court because, as has been stated, the Island Court was not bound by the terms of section 20 as such procedure could only apply to the Lands Court.

In contrast to the terms of the Native Lands Ordinance, there is no definition of the term "court" in the Custody of Children Ordinance. Thus by section 10 of the Interpretation and General Provisions Act, the meaning of the word in any written law unless the context otherwise requires is "any court of Tuvalu of competent jurisdiction". Although section 6 of the Ordinance restricts the power of the Minister to make regulations in respect of proceedings under the Ordinance to the Magistrates' and Island courts, it is clear that the term is not limited and the Ordinance applies to all courts in Tuvalu.

Where does this leave the court in regard to the third and fourth declarations? Dealing with the fourth declaration first, it is clear that it cannot be made as the Conventions arc not applicable here in any circumstances unless and until laws are passed to implement their provisions although, prior to that, the court may take cognisance of their terms as an aid to the determination of the true construction of a provision of our law where there is any difficulty in interpretation.

Similarly I cannot make the third declaration. The basis upon which the plaintiff has put her case is that there is a conflict between the two Ordinances because of the need to read section 3 of the Custody of Children Ordinance subject to the Native Lands Ordinance.

It is clear that the Custody of Children Ordinance applies to all courts and provides that, in all cases where custody is sought, the court making the enquiry must call for any evidence or report it considers necessary in the interests of justice. When it makes its decision, it must then regard the welfare of the child as the first and paramount consideration. In so doing, it must put any apparent superiority of claim by either of the parents to one side.

Those requirements also apply to the Lands Court when it is dealing with a case under section 20 because its decision involves an issue of custody or access. If, having done so, the Land Court is satisfied it is in the child's best interests to make one of the orders in paragraphs (i) to (iii), it may do so. If however it is not so satisfied, it will make such order as custom allows that will best accommodate the welfare of the child or, if it is in the best interests of the child to make no order, it can take that course and leave it to some person to make an application to any court under section 3 of the Custody of Children Ordinance to ensure the child's best interests are provided for.

It should be noted that the Native Lands Ordinance was passed in 1957 and the Custody of Children Ordinance in 1974. The provision that section 3 of the latter shall be subject to the former does not give rise to the conflict suggested by counsel for the plaintiff. It was no doubt included by the drafters of the later Ordinance to ensure that no court can make a custody order that destroys or conflicts with the rights of the child to inherit or own land.

The application to make the third and fourth declarations is refused.

The fifth declaration

It is clear from the terms of section 3(3) of the Custody of Children Ordinance that the measure in assessing custody is that the welfare of the child is the first and paramount consideration. However, that arises from the provision in our statute and not from any consideration that it must accord with the CRC.

The inclusion of the Matrimonial Proceedings Act in the declaration is irrelevant to this action. However, the test is again clearly stated in the Act and is unaffected by the terms of the CRC unless and until Parliament changes the law. It is that, in all matrimonial proceedings, i.e. divorce and associated proceedings where there are children of the marriage, "the welfare of the children is of paramount importance, at least equal to that of the parties to the marriage"; section 12(1). As can be seen, the test differs from that in the Custody of Children Ordinance in that it does not give the same primacy to the children's' interests.

It follows that the terms of the declaration are correct in part but, as that part simply restates the statutes concerned, I do not consider it necessary.

I decline to make the fifth declaration.

The interim order made on 11 April 2003 that the child shall not be removed from Tuvalu until the completion of this claim or further order of this Court shall remain in force until varied by this Court or by the Senior Magistrate on application by either parent.

Before leaving this case, I would add that the plaintiff has the right to make a fresh application under section 3 of the Custody of Children Ordinance for an order either for custody or for access. It may be made in the Nui Island Court, the Nui Lands Court or the Senior Magistrate's Court. If it is made in either of the first two, I would remind the members of those courts that they must follow the procedure in sections 3(2) and (3) and apply the correct test in determining the matter. If their consideration includes the child's future right to land or any other matter in the Native Land Ordinance, they must decide whether any such right is in the child's interest in terms of its present and future welfare. If they then make any such order, the terms must be compatible with the requirements of the Native Lands Ordinance.

[GORDON WARD]
CHIEF JUSTICE

JANUARY, 2005

[handwritten addition] With permission of the CJ, the judgment received today and dated.

Afele
Senior Magistrate