Introduction

Our society is very complex and always changes due to the variations in many factors. Social
progress whether it be science, economics, religion or politics demands that law must be kept up
to date with the changes and regulate it.1 As an example; after the industrial revolution and the
Second World War, new laws such as
o Laws which prohibited monopolies and child labor
o Laws related to nuclear power

were legislated in order to cope up with the consequences of these industrial and social reforms.

Therefore law is used as a tool in serving many functions such as,

1. Establishing standards2
2. Maintaining order3
3. Resolving disputes4
4. Protecting liberties, rights & etc.5

Among these, one of the main functions of law is the resolution of disputes. As everyone knows,
in each and every society and community there are disputes between people for the sharing of
resources which are limited in nature. They are unavoidable in the modern society and arises as a
result of differences in the needs, wants, values and views. In a normal federal society these
disputes can be settled in two main ways

1. Alternative dispute settlement mechanisms (ADR)

2. Court system
Both the ADR mechanisms and the court system tries to provide justice for the people by
changing the laws according to the changes happening in the contemporary society.

1 The Function of Law in Society, 3 Golden Gate University Law Review, (1973). Pg. 14
http://digitalcommons.law.ggu.edu/ggulrev/vol3/iss1/2
2
Berger Harris, llp & Samuel d Brinkley 2nd, 'Functions of Law' (Business Law
Basics, 2015) <http://www.businesslawbasics.com/chapter-3-purposes-and-functions-law-
1>accessed 18 October 2017
3
Ibid
4
Ibid
5
Ibid
Family law

One of the areas in which such a vast change had been made is the area of family law. According
to encyclopedia Britannica6 family law is a body of law regulating the family relationships
including the marriage, divorce, the treatment of children and related economic matters.7 In other
words, family law is basically concerned with the rights and obligations which flow from the
institution of marriage.8 Introduction of civil partnerships, increase in the number of couples
cohabiting outside the marriage, same-sex marriages has made this topic more complicated and it
demands significant changes in the fields of divorce, maintenance, adoption, ward ship,
guardianship and especially in the custodianship of a child.

Custody of children

Custody simply demands the care and control of a minor person and taking control over his day-
to-day life.9 The right to custody does not appear to refer to control over the minor’s property. It
refers rather control over the person, and the day to day life, upbringing and educating the minor
child.10The preamble of the convention on the rights of the child (CRC) states that,

“Convinced that the family, as the fundamental group of society and the natural environment for
the growth and well-being of all its members and particularly children, should be afforded the
necessary protection and assistance so that it can fully assume its responsibilities within the
community”11

It had identified the importance of the necessary laws and regulations for the protection and
wellbeing of the child in a society.

6
Ian F.G.Baxter, 'Family law' (Encyclopedia Britannica, Inc., December
07,2016) <https://www.britannica.com/topic/family-law> accessed 7 October 2017
7
Ibid
8
PJ Pace, Family Law (1st ed, MacDonald and Evans 1981) 3
9
BKM attorneys notaries & conveyancers , 'What is
custody' (Bkmcoza, ) <https://www.bkm.co.za/resources/articles/WHAT IS
CUSTODY.pdf> accessed 8 October 2017
10
Dahiru Cherance & Alkali Cheranci (1960) N.R.N.L.R 24
11
Convention on the Rights of the Child
 For the statutory purposes article 1 of CRC had identified the word child as ‘every human being
below the age of 18 years unless, under the law applicable to the child, majority is attained
earlier’12.With the ratification of CRC in 1991, Sri Lanka focused on a special policy document
in order to adopt the international framework into our domestic regulation and as a result
“Children’s Charter” was introduced in 1992. And with the introduction of the charter, an
amendment was made in the Age of Majority Ordinance no 7 of 1865 (no 17 of 1989) 13 and
interpreted the child as minors who have not attained the age of majority of 18 years.

When we analyze the position of child custody in Sri Lanka and around the world, it is an area of
law which has been subjected to many debates and contemporary changes. And the matters
regarding the child custody can be basically divided into three scopes.

1. When the government (courts) consider the wellbeing of a child who is in a family where
the mother and father are not separated. (domestic violence & negligence of a child)
(CRC Article 2(1), 1989)
2. When the parents decided to live separately so a decision on the custody of children
should be made.14
3. When a third party seek custody of a child in reference to 15

And at the end of these cases the custody which was given to the custodian/s by the
courts can be of any one out of four types mentioned below
 Sole custody- Only one parent was given the sole custody and the child lives with
that parent. 16
 Split custody- It is a form of sole custody. It there are more than one children
their custody is divided between the parents or the third party.17
 Joint legal custody- Both parents have the decision- making rights but the child
resides with one parent.18
 Joint legal and physical custody- Parents share the decision- making authority
and the child resides with both parents.19

12
Convention of the rights of the Child,(Article 1)
13
Age of majority ordinance no 17 of 1989, section 2
14
Encyclopediacom, 'Child
custody' (Encyclopediacom, 2015) <http://www.encyclopedia.com/social-sciences and-
law/law/law/child-custody> accessed 15 October 2017
15
Ibid
16
Ibid
17
Ibid
18
Ibid
19
Ibid
First of all when we analyze the early Sri Lankan law regarding the custody disputes, Roman-
Dutch law has recognized that the father as the natural guardian has the preferential right to
custody who has the right to take decisions and educate the child.20 It is evident in the decision of
South African case Calitz v Calitz,21 that the courts showed a preference for the ensuring the
rights of the father, than ensuring the rights of both parents on the custody. Mother only deemed
to be the sole natural guardian of her illegitimate minor child22 the while biological father has a
preferential right to custody in respect of his legitimate children23.

Then after the Second World War which was ended with a great destruction, people tend to
recognize new concepts and most importantly the rights of the people were given a more
prominent place. With the advancement, the law of child custody was also subjected to a new
path. New concepts like the ‘Best interest of the child’ was introduced and it had turned the
direction of the law of Sri Lanka into a new path.

Best interest of the child

When we analyze the Sri Lankan position we are a country which has a long record of the
welfare of children from their birth. The concept of the best interest of the child entered the Sri
Lankan law through the combined influence of the English Law and the Roman-Dutch law.24 In
relation to the matters of the child, courts have the ultimate power of deciding what is best for
the child. In Sri Lankan context District court specifically acts on the matters of the children as
the ‘upper guardian’ of the child. The notion of the best interest of the child mainly explains that
as the children are not capable of imposing their own rights, it is the obligation of the courts to
determine what would be the best for the wellbeing of the child rather than providing all the
rights to the natural parent of the child.

The courts at any time can deprive the parental power or exercise its’ special jurisdiction in order
to protect the ‘best interest of children’.25 This concept is increasingly utilized by the courts in
many jurisdictions all over the world. Especially the countries who have ratified the convention
of the rights of the child26 had identified the importance of the deciding the cases of custody to

20
Savithri goonesekere, The Sri Lanka Law on Parent and Child (2nd edn, MDGunasena & coLTD 2002) 213
21
Calitz v Calitz (1939) AD 56,P.61
22
Premawathi v Kudalugodarachchi 75 NLR 398
23
Fernando v Fernando (1968) 70 NLR 534
24
Best interest of the child: South Asian perspective, Savithri Goonesekere, International Journal of law and family
8, (1994) pg. 131
25
Savithri goonesekere, The Sri Lanka Law on Parent and Child (2nd edn, MDGunasena & coLTD 2002) 206
26
Convention on the rights of the child no. 3 of 1989
enable the child to survive and reach his or her full potential. When we analyze the historical
development of this concept, many early Sri Lankan cases as mentioned above provides evidence
to prove that the judges have disregarded the concept of the best interest of the child. But with
the development of the English and the South African law, our law has also adopted the concept
into practice. It is apparent in the early case of Ivaldy v Ivaldy27 that the courts as the upper
guardian of the child deprived the paternal rights to the custody in the case of the unsuitability of
the father for the wellbeing of the child’s life, health, and morals. But still the Sri Lankan courts
tend to give the preferential rights to the father and it only deviated in the case when the
unsuitability of the father was proved.

Then the revival of law in the jurisdictions of South Africa and England on the best interest of
the child abolished the father’s preferential rights to the custody matters and gave the right of
custody of young children to the mother.28

Our neighbor India is also one such country who had identified the importance of giving custody
rights of a young children to the mother. India is a country who faces constant problems on the
field of the child welfare. According to the Indian jurisdictions, the Hindu Minority and
Guardianship Act of 1956 specifies that the custody of a child under the age of five years must
be with his/her mother and this position is reflected in the case of Saraswathi v Shripad.29

In the case, Beaumont C.J. Stated that,

“If the mother is a suitable person to take care of the child, it is quite impossible to find an
adequate substitute for her, for the custody of a child of tender years.”

Also an Indian judge, Kamal Rudra Das J. has expressed his view as “I have no doubt in my
mind that the mothers lap is God’s own cradle for a child of this age, and that as between mother
and father, other things being equal, a child of such tender age should remain with the mother.”

In the Sri Lankan context, the case of Fernando v Fernando30 can be considered as the perfect
example which clearly proves the acceptance of the interest of the mother into the domestic
jurisdiction. In the case, Justice Weeramantry has stated that,

“There is a rule recommended by law and according to the ordinary human experience that the
custody of very young children must be given to the mother.”

27
Ivaldy v Ivaldy (1956)144 NLR 568
28
Hindu Minority and Guardianship Act 1956
29
Sarasvathi v Shripad AIR (1941) Bom 103
30
Fernando v Fernando (1968) 70 NLR 534
Apart from the preferential rights of a single parent for the best interest, the position of such
interest of the child was generally stated in the case of 31 where Muhammad J stated that

‘initially the minors welfare lies in giving custody according to the dictates of personal law, but
if circumstances clearly points out that his/her welfare dominantly lies elsewhere, or that it
would be against his/her interest, the court must act according to the demand of the welfare of
the minor.

When we analyze the south African position of the best interest concept, the section 6(3) of the
Divorce Act, of South Africa as amended states that the courts may award the sole custody of the
minor children to one of the parents if in its opinion it would be in the best interest of the
children to do so’.32

Furthermore, the development in the Custody of a minor child in Sri Lanka identifies the consent
of the child in the event of custody as an essential requirement in addition to the order which was
made by the courts as the upper guardian of the child. Section 19(2) of the part ii of the Adoption
Ordinance states that

“An authorized officer shall not register any person under this section as the custodian of any
child where the child is over ten years of age, unless such child consents to such registration.”33

Also when an adoption order was made, the child who was adopted is considered by the law as a
‘protected person’34 under section 20 of the above mentioned ordinance and it also can be taken
as an attempt made by the Sri Lankan judiciary to promote the welfare of the children in the
event of a custody dispute.

31
Best interest of the child: South Asian perspective, Savithri Goonesekere, International Journal of law and
family 8, (1994) pg.128
32
Divorce Act, No. 70 of 1979, section 6(3)

33
Adoption Ordinance, part ii, section 19(2)(d)
34
Ibid , section 20
In addition to what was discussed earlier, adoption on the other hand request many duties from
the current custodian. In the cases of Nalliah v Herath35and Vaithialingam v Ganapathipillai36
which used the sri Lankan legislation of the ‘children’s’ charter’ to give the decision states that,
“a person who interferes with the parents’ custody by keeping the child away from him may be
guilty of the criminal offence of kidnapping under the section 352 of the penal code.”37
Similarly, the courts can remove any parent who is in the custody of a child, if that person
violates the authority and abuse the power which was given to him. The key purpose of
introducing such a legislation in the domestic context clearly proves the attempt made by the
domestic legislators on the protection of the best interest of the child.

Another special incident which revoked the child custody law in Sri Lanka is the Tsunami. This
tragedy which happened in 2004 created many issues regarding the custody of children.
Especially there were lots of cases which requested the custody of children who lost their parents
due to the disaster. As a result, the Tsunami (special Provisions) Act was introduced in 2005
includes special provisions made by the legislature on the custody of children and young persons
who lost their parents due to the tsunami.38

Section 10 of the above mentioned act specifies the duties of the custodian as follows.

“It shall be the duty of the current custodian to provide all such care and protection including
adequate education, to the child under his or her care, so long as he or she remains the current
custodian of the child.39

In some of the custody cases of tsunami, courts have ordered DNA tests to be done in order to
find the natural parents in the case of custody of infants.

E.g.-; Baby 81 case, where a child was found in a garbage dump alive after the tsunami and
many parents claimed the parentage of that child.

35
Nallaiah v Herath (1951) 54 NLR 473
36
Vaithialngam v Ganapathipillai (1944) 46 NLR 235
37
Children’s’ charter, Article 11
38
Tsunami (Special Provisions) Act, No. 16 of 2005,section 7
39
Ibid ,section 10
Mother and Father- Equal Parental Responsibility?

With the development of the best interest of the child a new ethic has emerged in the field of
custody of children which makes a distinction between the parental rights and the parental
responsibilities. Parental rights explain the preferential rights that both parents possess on behalf
of the custody of children and it further says that it must not be unduly harsh on both mother and
the father, while parental responsibilities explain the obligations that they have to fulfill for the
best interests of the child. In the case of sole custody what happens is that when the child lives
with one parent the other parent gets alienated. The child misses out the love and the affection of
one parent which may lead to many consequences such as abuse, addiction to drugs, deprivation
of education and etc. Children of divorce must be given equal time with their parents and
consider shared parenting to be in their best interests.40 When we emphasize about the equal
treatment of both men and women, it is evident that fathers face significant barriers in
maintaining their relationships with their children after separation.41

The South African case Van der Linde v Van der Linde supports this gender neutral aspect of
the custody by stating that “mothering” means to care for a child’s physical and emotional
wellbeing. Mothering is not only a component of the mother but also forms part of the father’s
being and the quality of a parent’s role should not simply be determined by the gender. 42

When we consider the responsibility of the parents, there are many omissions in the Sri Lankan
law of child custody when compared to the international standards which were stated in the
CRC. One such distinction we can see is that in the Article 9(3) of the CRC it states that

“State parties shall respect the right of the child who is separated from one or both parents to
maintain personal relationships and direct contact with both the parents on a regular basis, except
if it is contrary to the child’s best interests”43

Article 18(1) which was formulated based on the Article 3 above further mentions that

“State parties shall use their best efforts to ensure the recognition of the principle that both
parents have common responsibilities for the upbringing and the development of the child. The
best interest of the child will be their basic concern.”44

40
Ibid pg. iv
41
Edward Kruk, CHILD CUSTODY, ACCESS AND PARENTAL RESPONSIBILITY: THE SEARCH FOR A JUST AND
EQUITABLE STANDARD ( University of British Columbia Press2008) pg.55
42
Van der Linde v Van der Linde (1996) SA 509 (O)
43
Convention on the rights of the child, Article 9
44
Ibid, Article 18
And it had highlighted the fact that the courts must enforce the joint custody and joint
responsibility on the way of the parents for the growth and the well-being of the child. But the
Sri Lankan legislation, which is the “children’s charter” had failed to legislate such an article
which translates the international law into domestic legislation because of the Roman Dutch law
principle which had identified the preferential rights of the father to the custody.

Conclusion

With the development of the child custody law of Sri Lanka it is evident that many of the
shortcomings prevailed before were eliminated, such as, the preferential rights of the father for
the custody of the child which leads for the adoption of the principle of the best interest of the
child. But there are many areas in the law where deliberate changes must be made

E.g. - The implementation of the joint custody of child.

I agree to the fact that the child custody system must not be harsh on both men and women.
Specially for the fathers who have lacked the attention of the society as an eligible parent to
receive the custody of the children, where it is the other way round in the early Roman Dutch
law but according to my opinion what it should be is that parental rights of the custody of a child
must be ensured and equal responsibility must be given to the parents as long as it does not
deprive the concept of the best interest of the child.

As it is mentioned earlier one of the weakness we can see in the custody disputes in Sri Lanka is
that they are more court based actions and the judges tend to give the sole custody, where the
custody of a child given to a single parent by referring to the best interest of the children. Since
law does note essentially take emotions into consideration sometimes these orders may be harsh
to one party where one parent have to suffer their whole life with the loss of their loved ones. But
now it is the time to move away from the sole custody framework into joint legal custody but
with some developments to ensure the best interest. According to my opinion the custody actions
in the courts must be backed by the parental development programs, psychological assistance
and mediation plans which uplift the positions of the parents as well as to ensure that the joint
custody would not harm the physical and mental well- being of the child. Ultimately what should
be done is, to understand the mind of a child who have faced many psychological traumas in the
event of the separation of their parents and provide what is best for him/her for the well- being of
the child without making the separation of parents the reason for the destruction of a life of an
innocent child.