Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Filia, Re [2021] SBHC 166; HCSI-CC 173 of 2017 (8 December 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 173 of 2017

BETWEEN

ABIGAIL FILIA
Infant

AND:

LEVI HOU LATAHUNU
Applicant (1) Husband

AND:

NESTA LEVI HOU
Applicant (2) Wife

AND:

CLIFF BATO
Objector

Date of Hearing: 15 May 2021, 30 June 2021
Date of Judgment: 8 December 2021

Ms. L. Ramo for the Applicant (1) and (2)
Ms. K. Kohata for the Objector

JUDGMENT ON APPLICATION FOR ADOPTION

Faukona DCJ: This is a joint application by the husband and wife for orders for legal adoption of an infant namely Abigail Filia, who was about eleven (11) months and twenty-one (21) days at the time of filing of this application on 1^st May 2017.

2. The child, infant was born on 22^nd May 2016 at the National referral hospital in Honiara. The biological mother of the child is Elizabeth Filia, the cousin sister of the second Applicant, the wife.
3. The first Applicant is Mr. Levi Latahunu Hou, a medical doctor by profession who is the proprietor and director of Family Health Centre, Honiara. His wife is Nesta Levi Hou, (second Applicant) is a registered nurse by profession and is working in Brisbane, Australia.
4. The objector is the biological father of the infant, as agreed, who objects to the application by the Applicants for legal adoption of the infant.
5. Sometimes in December 2016, the Applicants met with the mother of the infant and her brothers and relatives at Fred Filia’s house the brother of the mother. At the meeting the family and siblings of the mother consented to give the child for legal adoption. On 3^rd April 2017 the mother formally gave her consent for the Applicants to apply for an order for adoption.
6. On 13^th January 2017, the Objector, Mr. Bato, was aware when he was asked by Mr. Kinatal for his permission for the infant to be taken by his sister, second Applicant to Australia.
7. On the same date, by his letter of 13^th January 2017, addressed to someone not indicated, the objector expressed his intention by objecting any adoption of the infant even to leave Solomon Islands. This was three months and eighteen (18) days before the formal application was filed on 14^th May 2017.
8. Apparently the Objector had made known his stand at first instance upon being informed of the plan adoption when the infant was 7½ months old.
9. It had appeared undoubtedly that the Applicants had been well versed in advance the objections before the application was formally filed.
10. In the midst of challenges the court is invited to consider the nature of objections, competing facts, the interest and welfare of the infant as a paramount importance for consideration.
11. The objector had made known his intention to object the grant of any adoption order, not in respond to the notice given in writing to Honiara City Council pursuant to section 5(2) Adoption Act, but earlier as 13^th of January 2017.
12. As a result of the objection letter, a legal Officer from the Public Solicitors Office Mrs. Hite formalized by writing to the Registrar of the High Court per her letter dated 22^nd June 2017, formally objecting the application for adoption. In the same letter the Solicitor hinted that she will be filing an application for 3^rd party inclusion. Eventually that had been done and the objector Mr. Bato was added as a party Objector.
13. Despite the objection being filed the Applicants had completed the requirements under the Adoption Regulations 2008 and Section 5 of the Adoption Act, seeking Adoption order.

Is the best interest and Welfare of the infant with the Applicants or with the Objector and his defector wife?

14. The biological mother had given consent for the infant to be adopted by the Applicants on 3^rd April 2017. At that time, she had been separated from her husband and was of her own. She was in a situation to move on with her life with another man. Hence felt that the best interest and welfare of the child was to be adopted by the Applicants, considering the wife (Applicant) was her sister.
15. The Objector as the putative father withheld his consent for the infant to be legally adopted because that would thwart him seeing the child and the child visiting him when required.
16. In regulation 11 of the Adoption Regulations 2008, it states that ä parent or guardian may consent to the making of the adoption order whether or not they know the identity of an applicant.
17. This regulation sets the minimum standard required for a person to consent to adoption order. A single apparent or one parent or guardian may consent to an adoption order.
18. Thus it is allowable in law for Elizabeth Filia as a single parent or mother alone giving consent. Therefore, it may not be necessary for the Objector as the putative father to give consent. On the other hand Section 6 of the Adoption Act 2004 states that an adoption order shall not be made, except with the consent of every person who is a parent or guardian of the infant with exceptions in section
19. However Section 7(2) allows the Court to dispense with any consent where a person whose consent is required has persistently failed without reasonable cause to discharge the obligation of a parent or guardian of the infant. And subsection 4 provides the Court may dispense with consent of the spouse of an applicant if the spouses have separated and are living apart and that separation is likely to be permanent.
20. In any event there is no spouse so far as the infant being the subject of his application is concerned. It would worth noting that the biological father and mother of the infant were not married but had been living apart ever since and for sure permanently.
21. It is clear from the evidence that Mrs. Elizabeth gave the infant to the Applicants to be legally adopted. The decision was made after their family meeting in December 2016.
22. From the tone of the objection the Objector objects to the application basically because he and his defector wife Mrs. Siofa are willing to take custody of the infant and had offered support as obligatory.
23. So what is the welfare of the child? On page 290 of a book attached by the Counsel for the Objector, “Principles of Family Law,” it meant that welfare of the child is not to be measured by money only or by physical comfort. It must be read and concern with every circumstance taken into consideration. And the Court must do under the circumstances what a wise parent acting for the true interest of the child ought to do.
24. In upholding the principle I have consider relevant facts as relationship, claims and wishes of the parents, risks, choices and others taken into account and weighed. The course to be followed which is most in the interest of the child’s welfare. Other facts which I agree are quoted in the submission by the Counsel for the objector.
25. It must be noted that the text authority “Principles of family law” and the case authority cited by the Counsel for the Objector confine to a Chapter parent and child, and the case authority related to a child born to a Spanish parent in England.
26. The current case has different factual backgrounds. Though the mother and the Objector are the biological father and mother of the infant they are not described as parents of the infant. As parents they have parental rights and duties which are exercised as parental rights jointly, see Oxford Dictionary of Law, 7^th Edition.
27. In the case of an illegitimate child, the mother has exclusive parental rights, unless the father has applied for parental responsibility; however, has a legal duty to maintain the child. In any event parental rights decline as the child grows older, see Oxford Law Dictionary 7^th Edition.
28. It is worth noting that the same dictionary describes parental responsibility as automatically conferred on both parents if married, and on mother alone if not.
29. In this case the objector is not qualified to be labelled as a parent, though he is the biological and a putative father. The infant was born outside of wedlock and the parties had not been engaged in marriage at all.
30. So when we identified the objector and placed him in the first two requirements (a) and (b) which make references to wishes and conduct of natural parents the objector is far from being considered when the issue of best interest and welfare of the child are considered. He is not a parent as he was until now.
31. As such only the mother’s wishes are to be considered and not the putative father. Legally it has been exposed that the putative father is not a parent therefore cannot express any wishers, even so, cannot be accepted. Similarly, any claim to parental relationship to the child and family has been extinguished, the putative father has no right even with the intention to take care and have custody of the child. Some supports which he enumerated in his evidence did not tantamount to conduct of a parent but manifestation of his obligation and duty.
32. The reality is that upon hearing that the child will be taken to be adopted by the Applicants, the objector had done nothing by acting instantly filing a case in the Magistrates Court for affiliation and custody orders. He had been sitting on his right from 13^th January 2017 when he first heard of the adoption to 1^st May 2017 when the application for adoption was filed. In January or February 2017 for sure he was still in Honiara.
33. Even if an affiliation order did exist that does not confer a putative father proprietary rights over an illegitimate child. Any application order made, or any agreement endorsed of which the father undertook to make payments for the benefit of the child will be ceased to have effect once an adoption order is made.
34. In the case of In re M (an Infant)^[1] Denning LJ said,
    • “The Law of England from time immemorial looked on a bastered as a child of no body that is to say, no known body except his mother. The father is too uncertain to figure for the law to take any recognizance of him except that it will make him pay for the child’s maintenance if he can find out who he is. The law recognizes no right in him in regard to the child; whereas the mother has several rights”.
35. The case authority has indeed silenced the objector not to raise any objection because he has no right at all to do or even to withhold consent or have custody. In the circumstances all it requires is the consent of the mother of the infant.
36. In regards to the conduct of the adopted parents it is noted that the child is related to the first Applicant’s wife. Both Applicants are husband and wife. They were lawfully married at SSEC Central Church, Honiara in January 1994. They have three sons, now grownup boys. The wife Applicant is a sister of the mother of the child, makes adoption environmentally conducive.
37. The child had been in the continuous care of the Applicants since December 2016 when the child was 7 months old. Since then they had been providing support for the child, even in their absence from Solomon Islands due to work commitment in Brisbane, they could leave the child with the wife’s niece. They resided at Lunga in the Applicant’s residence entrusted in the care of the wife’s sister. It is not necessary for the wife Applicant to be present in Court. She filed a sworn statement is sufficient evidence unless notice for cross examination is filed, there was nothing filed.
38. The Objector attested that he supported the child as well and at some stage accommodated the child and mother for three weeks. Undoubtedly that supposed to be his duty but he is not a parent but merely a putative father with no rights to determine the future of the child. There is no evidence how often he supported the child and if so on what terms.
39. The child is a female and is now five years and six months. Since December 2016, she had been living with the Applicants family and their 3 boys living together. This must be held against the objector and his partner as he is not a parent. The argument that the child’s wishes be reflected is an absolute misconception of law. At certain occasions they count for very littles, but not mandatory even to present in Court to express their wishes^[2], is sufficient for the Court to consider.

Social Welfare reports.

40. There are two social welfare reports in respect of the Applicants and the Objector. They are independent reports extracted from the interviews the Social Welfare Officer had with the parties. They should reflect on answers disseminated directly to the interviewer as much as possible.
41. In view of the reports extracted from the objector and his partner both denied fair reporting, in particular in regards to the well fair of the child that both would face difficulties if they have custody to the child. Both adduce that is a reflection of unbalance view and were presumptive.
42. That recommendation was the view of the interviewer after assessing the facts she gathered. However, the reports were not the only documentations the court will consider; important are the sworn statements and the oral evidence tendered in Court.
43. The first and foremost point the objector must acknowledge is that he is not a parent but a putative father. To claim custody must be litigation against the mother of the child. Facts surrounding their backgrounds and capability in all avenues will be considered and weighed.
44. This case premise on an application for legal adoption. One reason for objection is that the objector wishers to have custody of the child, therefore his background facts, capability in all avenues as upbringing and financial provision must be weighed against the Applicants. Not only is that, but care and affection is of paramount importance as well.
45. From the reports, the objector was exposing that he had been consistently supporting the infant until the Applicants took her under their care. The mother of the child denied it. She stated that the objector being the father of the child had made many unfulfilled promises to her including providing for the child if they remain at Burns Creek. She further stated that the objector could call her to take the child to his house at Kaibia. She also mentions the objector had a forceful and demanding attitude towards her and the child.
46. On the other hand the Applicants had taken the child under their care since 16^th December 2016 until today. They had been providing and supporting the child, and had accommodating her at their residence at Henderson with the wife’s (Applicant) cousin sister.
47. From the perspective of the Objector, after having learned that her partner was having extra-relationship resulted in the child was born, there was turmoil and hatred and disagreements in their house. Amidst that they could only accommodate the child for only 3 days. From demeanor point of view of the objector in Court, I could able to glean that he is an influential and aggressive type of a man. I would agree with the mother that objector influenced his wife as to what to say. Their objections to the social welfare reports in particular are similar in nature. Those reflect the objector is in control and influence the wife as to what to say. There is evidence that the objector went to the Applicants house at Mbokonavera 2 drunk and used aggressive words that he would kill the Applicant husband.
48. In the report as well the objector exposed that he had a house at Kaibia and runs 3 taxis and one public bus. He is an artist painter and owns a business “Good Samaritan Sign Art Design”. There is no evidence of his earnings through his art design. Income through art design is not consistent but on ad-hoc basis, this is public knowledge.
49. The Applicants in terms of wealth had acquired five properties and houses in Honiara. They lived in a seven (7) bed room house at Mbokonavera II and rented the rest.
50. Their earnings from business and work are quite remarkable. The Applicant husband owns and Proprietor and Directorship of Honiara Private Medical Center and Honiara Chemist Ltd which he earns as employment with both companies at $180,000.00 net per annum. He also earns as Board of Director of NPF, South Pacific Oil, Sasape International Shipyard, Small Malaita Shipping Company with total remuneration of around $100,000.00 net per annum.
51. The Applicant wife is a Registered nurse in Age Care (Algester, Brisbane) and she earns AUD1, 900.00 per fortnight or around SBD $273,000 per annum.
52. Both Applicants are husband and wife, both are Solomon Islanders. The wife is related to the child who is the daughter of her sister. Both are above the age of 21 years.
53. Both had taken the infant into their care when she was about 7 months old until now. That qualifies them under S.5 (2) of the Adoption Act. There is evidence of consent by the mother given in writing in form 6, stamped by Commissioner of Oath on 3^rd April 2017. She is well versed with and understands the effect of such an order once it is made.
54. From facts and evidence as shown that the best interest and welfare for the child is in favor of the Applicants. Both are quite well off so far as the level of standard of living in Solomon Islands is concerned. Both are well educated with permanent employment.
55. Through years of toil and hardworking they had acquired properties and houses in Honiara which they had rented. Both are financially capable of meeting the infant’s future in terms of education, health, and all her needs. Since the infant had been living together with their family and their 3 boys, certainly they have been developing a bond for the last four (4) years, since December 2016.
56. The objector merely objects to the mother giving consent for the Applicants to leally adopt the infant. He wants to take custody of the infant. As a putative father he has no proprietary right to do so, he only has duty to perform, but has never performed. Accordingly, this Court must dispense with his consent and uphold the mother is the only person whose consent is necessary in the circumstances.
57. The evidence before this Court shows an adoption order will be in the best interest of the infant and for her welfare and future.
58. The objector argues by granting the Adoption Order could discriminate his right as a putative father or a right to meaningful relationship with the infant and vice versa. It is unconstitutional as he submits.
59. The welfare of the child does not include meaningful relationship with the putative father, or a right to meaningful relationship. The objector as a putative father only has a duty right and nothing more. He has not proof in evidence that he performed that duty obligation left for him. The mother denies any assistance but all failed promises by the Objector. I do not see any Constitutional breach of Sections 15 (1) and 15 (4) of the Constitution in this case.
60. Adoption of Common Law and equity is very much part and partial of Solomon Islands Laws. Schedule 2 (1) of the Constitution has provided for a clear path to adopt Common law and equity principles which shall operate effectively as part of Solomon Islands laws.
61. From evidence adduce by way of sworn statements and oral in court, it is in the best interest and welfare of the infant that an adoption order be made in favor of both Applicants as joint Applicants.

Orders:

1. The Court herby grant Adoption Orders sought pursuant to Section 3 of the Adoption Act 2004 and Regulations 5 of the Adoption Regulation 2008 authorizing the Applicants to legally adopt the infant AGIGAIL FILIA.
2. Consequent upon Order (1) hereof the Court hereby makes an order authorizing that the Child be given the full name of ABIGAIL FILIA HOU.
3. That the objector bears the cost of this hearing payable to the Applicants on standard basis if not agreed upon.

The Court.

^[1] [1955] 2 QB 479
^[2] Ibid (1), page 299, paragraph (4).