Abeyawardene, I.F. V. Jayanayake, C.E.

1953 Present: Nagalingam A.C.J.

I. F. ABEYAWARDENE,  Petitioner, and C. E. JAYANAYAKE et al.,
 Respondents

S. C. 190-Application for a Writ of Habeas Corpus
 

Habeas corpus-Surrender and abandonment of a child by its parents-Custodian's duty of registration-Adoption of Children Ordinance, No. 24 of 1941, ss. 19, 26.

Where the custody of a child is transferred by its natural parent to a third party in circumstances not amounting to adoption, it is generally the duty of the third party, under section 19 of the Adoption of Children Ordinance, to have himself registered as the custodian of the child. Failure to register renders him liable to restore the child's custody to the natural parent, even if the restoration is prejudicial to the best interests of the child.

APPLICATION for a writ of habeas corpus.

 D. S. Jayawickreme, for the petitioner.

N. E. Weerasooria, Q .C., with J. A. P. Cherubim and A. W. W. Goonewardena, for the respondents.

Cur. adv. vult.

September 11, 1953. NAGALINGAM A.C.J.-

The petitioner who is mother of a child by the name of Nirmalie applies to have its custody delivered to her after removing it from the custody of the respondents with whom it is at present.

The learned Magistrate to whom the matter was referred for inquiry has in a very careful and lucid report given reasons for the view he has taken that the child should be restored to its mother. I do not think I need traverse the same ground, for counsel for the respondents did not himself seek to question the soundness of the view expressed by the learned Magistrate on questions of fact. He, however, attempted to show that the child should not be removed from the custody of who might be termed its foster parents, and based his argument upon the English case of Mathie son v. Napier 1[ (1918) 119 L .T. R. 18.] where the right of the natural parent was not permitted to hold sway as against the claim of a third party who had received the child in circumstances amounting to what has been referred to under the English Law as surrender and abandonment of the child by its natural parents.

It is true that the English notion of surrender and abandonment of a child has been recognized in more than one case in our courts-see Gunaratnayake v. Clayton2[(1929) 31 N. L. R. 132.] and Samarasinghe v. Simon 3[(1941) 43 N. L. R. 129.], but no attempt has been made to show what are the legal consequences of surrender and abandonment, excepting that in such a case a court would bestow its consideration as to what is best for the child in the circumstances.

Under the Roman Dutch Law, the natural parent has a right to the custody of his or her child and that custody can only be terminated under that law under circumstances which are well recognized and clearly defined 4[Lee : An Introduction to Roman Dutch Law, page 42.]. The mere delivery of a child by its natural parent to a third party does not invest the transaction with any legal consequences. If the parent had a right to hand over the custody of a child then that parent would also have the undoubted right to resume the custody himself, as the authority of the parent must prevail in the latter instance as much as in the former. We are quite used to the principles of adoption, though it does not apply to persons who are governed by the Roman Dutch Law. Adoption results in definite legal consequences, so far as the child, the adoptive parent and the natural parent are concerned.

It is, however, unnecessary to pursue the question as to the effect of surrender and abandonment, for the legislature has now stepped in and given legal recognition to the basic idea underlying the English notion of surrender. By the Adoption of Children Ordinance, No. 24 of 1941, adoption has been made legal even among persons governed by the Roman Dutch Law. The Ordinance goes on to give legal recognition to the transference of the custody of a

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