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IN RE EVELYN WARNAKULASURIYA
NLR56V525
1955 Present: Fernando A.J.
IN RE EVELYN WARNAKULASURIYA
Habeas Corpus Petition No. 424-M. C. Hatton
Habeas Corpus-Custody of
child-Parent's right thereto-Factors for consideration- Adoption of Children
Ordinance, 1941-Children and Young Persons Ordinance of 1939, ss. 34, 35.
Petitioner claimed the custody of her daughter (1st respondent) aged 15-The 2nd
respondent, the Mother Superior of a Convent, claimed no right to custody, but
her position was that the girl was placed at the Convent by her father in order
to prevent contact between the girl and the petitioner and that the girl herself
wished to remain at the Convent.
Held, that the child's own wishes were by reason of her age and
education worthy of consideration and that the Court should be guided by the
test whether a change in the status quo would be prejudicial to the interests of
the child. In such a case the question of registration under the Adoption of
Children Ordinance did not arise. Moreover, sections 34 and 35 of the Children
and Young Persons Ordinance recognized that the parent's right to custody was
not absolute and enabled a Court to deprive a parent of this right if, for
reasons specified in those sections, the parent was unfit to exercise care and
guardianship over the child.
APPLICATION
for a writ of habeas corpus.
D. S. Jayawickreme, Q. C. with K. C. de Silva for the petitioner.
J. A. L. Cooray for the respondents.
Cur. adv. vult.
January 3, 1955. FERNANDO
A.J.-
In this application, the petitioner claims the custody of her daughter Evelyn
(1st respondent) who is now 15 years of age. The 2nd respondent, the Mother
Superior of St. Gabriel's Convent, Hatton, claims no right to custody, but her
position is that Evelyn was placed in the Convent by her father in order to
prevent contact between Evelyn and the petitioner and that the girl herself
wishes to remain at the Convent. I have not therefore to examine competing
claims to the custody of Evelyn but only to consider whether the petitioner's
lawful right to the custody of her daughter is to be overridden in favour of
Evelyn's wishes.
The evidence of the petitioner establishes certain facts which I will assume to
be correct:-
(1) Evelyn, the eldest child of the petitioner and her husband Francis
Warnakulasuriya, was born on January 1, 1940.
(2) Warnakulasuriya went abroad on war service about 1941 and returned only in
1945.
(3) In 1943, Evelyn was " handed over " to the Moratuwa Convent at the request
of Warnakulasuriya.
(4) A second child was born to the petitioner in 1946 : Warnakulasuriya denied
paternity of that child and filed divorce proceedings, citing one Paulu Fernando
as co-respondent. He separated from the petitioner about two months before the
birth of that child.
(5) At the same time, the girl Evelyn was removed from the Moratuwa Convent by
the petitioner's mother and was handed over to Warnakulasuriya. Evelyn then
lived with her father for some years and not with the petitioner.
(6) The divorce action was dismissed, apparently because Warnakulasuriya did not
press it, on July 13th, 1949.
(7) On the same day, Evelyn was taken by her father to the Hatton Convent and
has remained there ever since in the care of the nuns.
(8) Shortly after the dismissal of the divorce action, the petitioner applied to
this Court for the custody of Evelyn from her husband ; and the matter was
settled upon statements by both parties that they were reconciled. After this
(January 1950), husband and wife lived together (he being away for long periods
on business), but Evelyn was never brought back home even for a day.
(9) Warnakulasuriya died a violent death in December 1953, and Evelyn was with
great reluctance brought to her father's funeral by the nuns. This was the first
occasion after 1946 when the petitioner set eyes on Evelyn.
I need refer only to a few of the controversial items of evidence. In
cross-examina
