Avondale Smith v Tisha Cochrane

THE EASTERN CARIBBEAN SUPREME CURT ANTIGUA AND BARBUDA IN THE HIGH CqURT OF JUSTICE CLAIM NO. ANUHCV2011/319 BETWEEN: I n the MaUer of the Guardianshlip of Infants Act, Cap 197 of the Laws of Antigua and Bartiuda Revised Edition 1992 I And in the Matter of the Status lof Children Act, Cap 414 of the Laws of Antigua and Barquda Revised Edition 1992 , And in the Matter of the A~plication for Custody of the Minor Children, JAHVONTE SHEMARIE ASI SMITH, ONIA AVON CERENA SMITH AND OSARION JAMALIE NATHAN SMITH i AVONDALE SMITH Claimant I I a~d TISHA CQCHRANE Defendant Appearances: I Mr. Peyton J.V. Knight for the Claimapt Mr. Steadroy Benjamin for the Defen1ant I 2013: Sewtember 13 I

[1]HENRY, J.: The claimant (hereinafter iMr. Smith) is the father of the minor children Jahvonte, Onia and Osarion Smith. Th~ respondent Tisha Cochrane (hereinafter Ms Cochrane) is the mother of 7 children including the 3 fathered by Mr. Smith. By Fixed Date Claim Form Mr. Smith seeks an prder that he be granted sole custody of the minor children born to him of Ms Co~hrane. Also filed with the claim form is an Application of Urgency seeking the sa1e relief. It is supported by an affidavit. The grounds of the application are that 1. Ms Cochrane has continually neglected the health and well-being of the minor children; 2. Ms Cochrane has been neglectful, cruel and abusive to the minor children; 3. Mr. Smith, the applicant, is in a po~ition to take care of the minor children; and 4. The interest of the minors is bestl served by them being in the custody of the applicant.

[2]In the affidavit, Mr. Smith deposes ~at he is the father of the minor children. Jahvonte and Onia, twins, were born on 1st February 2003 and Osarion was born on 5th December 2003. He asserts tha~ Ms Cochrane has been a neglectful and abusive mother. He dates the start of ~he abusive behavior to shortly after the birth of the twins. He states that he wbuld hear the babies crying in the nights uncontrollably. At the time the parties did not share a residence, but he lived in another house about 20 ft from Ms Cochrane's. He would go to Ms Cochrane'S house to inquire what was happening,lbut she would be nowhere to be found. He alleges that she would regularly Ieare the babies alone in the house without informing anyone that she was leaving pr of her whereabouts.

[3]I According to Mr. Smith's account, since the children's infancy, it has been he who has done everything for them. As a result, the children began spending more and more time with him and he would take ~hem to spend weekends with Ms Cochrane. On those occasion when he took the~ to visit their mother, he would still have to take food, or when he collected them, \they would complain that they were hungry, because their mother had given them npthing to eat.

[4]He complains that there were times When he would give Ms Cochrane money to I purchase items of food for the children, but she would instead spend the money on herself. As a result, whenever they h~ to go to see their mother he would pack a lunch kit for them as if they were going to school. However, when he collected them, they would tell him that their mother ?te their lunch and all they had to eat was bread. This, he says, caused much arbuments and altercations between them. As a result she took the children from him and he would not see them for months. i I

[5]Mr. Smith makes further allegations df neglect when he states that whenever the children were eventually returned to hih they would need medical treatment for skin rashes. On occasions, visits to th~ doctor would result in medication being prescribed by the doctor. If, he states~ Ms Cochrane was the one who took them to the doctor at his request, if they supsequently had a disagreement, she would withhold the children's medication until ithe issue between them was resolved.

[6][7] He asserts that on 20th April 2011, M$ Cochrane took the children from him and a week and a half passed before he C011d see them. When he finally saw them, he noticed their teeth had not been take care of. Upon inquiry, he was told by the children that their teeth had not been .rushed during that period. One child had to be taken to the dentist, who indicated that the child's teeth, although developing had many cavities i I Mr. Smith's allegations include asse~ions that the environment provided by Ms Cochrane is unhealthy for the childrJn. Mr. Smith's evidence is that when the children are with him he ensures that they go to the doctor and eat balanced meals. He is also mindful of their school w9rk and completes school assignments. He asserts that he also pays for all the Ichildren to receive food at school from the School's Meal Programme. On the otfuer hand, he describes Ms Cochrane's home as lacking indoor plumbing and therefJre has inadequate toilet facilities. He states that almost on every occasion that the1children arrive to stay with him they are sick and requires a doctor's visit. He c,·ncludes that the poor environment at Ms Cochrane's home is having a negativ effect on the children, including for at least one child, poor performance at school.

[8]There are further allegations that Msl Cochrane beats the children for no good reason.

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[9]I Mr. Simon, in his affidavits, also make~ allegations of Ms Cochrane's neglect of the children'S health. One example he gi~es is in regard to Jahvonte who at the time suffered from fainting spells. Mr. Silllon had secured an appointment at Mt. S1. Johns Medical Center for tests to be carried out to determine the cause. On the I morning of the appointment when hel arrived at Ms Cochrane's home to collect Jahvonte, Ms Cochrane indicated t~at she did not want him to attend the appointment. In the end Mr. Simon had to enter the yard and take the child. On the way to the hospital, he was called and <!luestioned by the police. It was only after he had explained the situation to the offic~r that he was allowed by police to take the child to the Doctor. At the end of tHe procedure, he took the child home. Ms Cochrane however, did not allow him i to see the other children or allow them to receive their dinner or breakfast from hiln. He eventually sought assistance from the police who got her to release the children to him so they could eat. [9] In her affidavit of response, Ms. Co rane denies that she has beaten the children for no good reason or that she be n neglectful of or abusive to the children in other ways. She admits that sh has had occasion to correct her daughter whenever she misbehaves, but henever she did so, by spanking her or otherwise, it was never in a mann r that can be considered to be abuse. She admits that there are times when sh . does speak loudly, but never with expletives.

[10]Ms Cochrane insists that the one thing she has done and continues to do is take care of the children: she washes, co~ks, cleans and feeds them well. [11 ]

[12]I Ms Cochrane admits that the childr~n were living with Mr. Smith at one point and explains why. She states that two·months after the birth of their third child, Mr. Smith moved out of the house thJy shared and took up residence in another house in the same yard. ShortIY~'thereafter, he moved to Freeman's Village leaving Ms Cochrane and the chi dren in the house in Parham. Sometime thereafter, he returned to tell her t at his aunt was returning from Canada and wanted the house. She was forced to find alternative accommodation. Her evidence is that she and her eldestl· daughter (from a previous relationship) then took up residence with her sister. But the premises were not large enough to accommodate the three children, sol they went to live with Mr. Smith. The three children lived with him from early 2Q05 to 2007. The arrangement, according to Ms Cochrane is that the children stayed with Mr. Smith during the week and spent weekends with Ms Cochrane. I i In 2007, a new boyfriend built Ms Ck>chrane a new house and they all moved in together, including the three children ,fathered by Mr. Smith. She states that all the children, her new boyfriend and he~self have a loving, caring and warm family relationship. The environment aroun them is healthy and clean. The children are healthy and have settled into a sta Ie background with a stable life and secure relationship and the children have bl6ssomed in every meaningful way. According to her the children perform very well at school and are comfortable, happy and enjoy each other's company. She~'requests that they not be separated. She characterizes Mr. Smith's applicatio as unwarranted, unjustified, malicious and without merit. , [13} i In reply, Mr. Smith terms Ms Cochrane's affidavit as replete with lies, falsehood I and innuendoes. Lastly, he stat~s that he is the one solely responsible for feeding the children. According to him he has to travel from Freeman's Village to Parham to give the children breakfast every morning. He returns in the afternoon during the holidays and gives them lilinch and later in the evening he also returns and provides them with supper. Duriog the school term, the children receive lunch from the school lunch program paidl for by Mr. Smith. Their mother, he states I plays no role in their maintenance n~ds. He complains that when he takes meals for the children they are required t9 meet him at the curb, they then enter his vehicle where they eat what he has prepared for them. If he sends the meal into the house, then it would be Sharedf·mongst all the occupants in the household. The children would then complain lat rthat they are hungry. He reiterates that the children are not being cared for and e neglect and abuse by the mother is having a serious effect on the children's heath, education and well being.

The Social Inquiry Reports

[14]A total of 3 Reports have been f:'ed with the court by the Citizens' Welfare Division. The first report indicates th t Mr. Smith had visited that department back in September 2010 and requested ustody of his 3 children because the mother was not adequately caring for them. ! The details of the report indicate that similar allegations as those set out above were made to the welfare officer. The report I indicates that Mr. Smith is a self employed contractor who earns a salary of $4000.00 monthly. He resided alan,' in a 3 bedroom 2-storey house. At the time, the house was under construction, ut the report noted that there was adequate yard space for the children.

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[15]The report noted that at the time,' Ms Cochrane resided with her 6 children (including the 3 children the subje~t of this matter) and her boyfriend in a 2 bedroom house. There was no indoor bathroom or running water. The house was described as clean, but disheveled. r·ne bedroom had 2 beds. Four children slept in this room - each bed accommod ted 2 children. In the second bedroom, Ms Cochrane shared a king size bed wit her boyfriend and their 2children, then ages 4 and 2 years old.

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[16]According to the report, the 3 Smith children - Jahvonte, Onia and Osarion revealed that they liked living with oth parents. However, they explained that they were fed better when they were ith their father. Onia, in addition, expressed that she preferred to reside with er father because he was kinder. She complained that whenever she tal her mother she was hungry, her mother responded by telling her to drink her spit. She also indicated that there were times when Ms Cochrane spoke indecent language in front of her and that she did not like this.

[17]i The welfare officer also interviewed Sf'hool representatives who indicated that both parents were attentive to the chil ren's educational needs. However, their conclusion was that Ms Cochrane as more attentive. She had a record of attending all the Parent-Teachers' . eetings (PTM) and had even attended a workshop hosted by the school. While the school's records did not show Mr. l ·. Smith attendance at PTMs, they 1d show that he contributed to the financial support of the children at school. •

[18]i The Division's assessment at that ti~·e was that the children were adaptive, that is, self sufficient. They got on well wit their peers and their language skills were in keeping with their age group. Th. Division further found that each parent was capable of being a good influenc~ in the children's lives, with each parent possessing strong as well as weak Iattributes. The greatest problem, the report concluded, was the parents' relation~hip. The lines of communication, the report stated, had totally broken down. ~he division recommended that both parents attend counseling sessions. •

[19]The secood report was prepared bJ order of Lanns, J. on 21" November 2012. She requested an update and mor~ detailed report on living conditions of the I parties, state of health and educatiynal wellbeing of the children. Visits to the homes of the parties were carried ou, between the 9th -18th January 2013.

[20]I The updated reported indicated that tv1s Cochrane's household now consisted of 7 children. She had given birth to at·aby boy who was, at the time of the visit, 3 months old. Ms Cochrane's househ Id was still housed in the 2 bedroom wooden structure in Parham. However,. n indoor bathroom was currently under construction. But at the time of the visit bathroom activities were still being carried out in an outdoor facility. Sleeping arrangements had changed somewhat. In the bedroom utilized by Ms Cochrane a~d her boyfriend, instead of a king size bed, there now were two beds. Ms Cochrane, her partner and the 3 month old baby occupied one bed, while the other w~s occupied by Kezia, age 4 years and Alton age 6 years. The other children shatd the second bedroom as before.

[21]Information had been culled from the, Parham Community Clinic records in regard to the health of the children. They, showed that the children had received all immunization shots to age 5. Therelhad been occasional visits to the Doctor for respiratory tract infections, but none ~f the children were asthmatic. The records of their visits to the clinic show the following: Jahvonte: 20th April 2010- Skinl fungus 4th January 2011 - ~Ungal infection in head (school had a major breakout) I Onia: 25th October 2011 - ~ar ache 7th February 2012 - acute gastroenteritis Osarion: 4th January 2011 - e~r ache, fungus on skin ..

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7th June 2011 - ringworm

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[22]The Principal and Teachers of the P~rham Primary School were also interviewed. Jahvonte was deemed a good stud~nt, although considered reserved. Onia was said to be an excellent student, very outgoing and expressive Osarion, however, was said to be agood student, but very quiet and slow to respond to questions.

[23]All the children were described as rvell behaved, however it was suggested that the boys appeared to be "too quiet)'. It was believed that they were scared or afraid of saying the wrong thing. It Was also revealed that Osarion spends a lot of time flying an invisible plane. The Welfare Officer made afew criti4al observations at the end of the report: 1. Ms Cochrane's home is overcrQwded, given the fact that there are 7 growing I children. 2. Mr. Smith not only has adequate' space to accommodate the children, but also I the capacity to care for them. . 3. Due to the lack of an indoor bathroom at the Cochrane's residence, meeting basic needs such as taking a bat~ presents challenges. 4. Ms Cochrane has found herself in an economic situation which does not enable her to provide adequate qare for the children.

[24]At a preliminary hearing on 7th FeQruary 2013, the Welfare Officer was cross­ examined. She admitted that in completing the last report she had not spoken to Ms Cochrane, nor had she spoken ~th the children individually. The court, at the request of Counsel for Ms. Cochr~ne, requested that the Officer conduct the necessary interviews and file afinal r~port.

[25]I The third and final report is dated 14th April 2013. At the time of this report, the twins, Jahvonte and Onia were 10 ye~rs old and Osarion was 9years.

[26]Ms. Cochrane describes her relatio~ship with the children as sometimes good. She admits that at other times the ~hildren get on her nerves. Punishment for misbehaving, she revealed is normajly by beating with a belt, and sometimes by I shouting at them, but she denied u~ing indecent language. With regard to the children's meals, Ms Cochrane says Ithat she has asked Mr. Smith to deliver the meals (breakfast and dinner) to an a~nt's home in Parham. With regard to their health, she admitted that Jahvonte s~ffers from fainting spell, froths at the mouth and shakes. During this period he lis unaware of his surroundings. She also admitted that Mr. Smith took Jahvonte to the Doctor but complains that he did not give her an explanation of what had produced the seizure. ·.

Interview with children

[27]In the interview conducted by the ~Ifare Officer, the children all expressed love for both parents. However, now they stated a preference for living with their father. The reason stated is becau~e he takes better care of them. If they do something wrong, they stated, theif father would first talk to them, but if they repeat the action then abeating is u~ually the end result. On the other hand, their mother beats first. "Beatings" were Idescribed to include slaps and punches. In addition, the mother is said to use bad words (indecent language) when angry. The issue of adequate food was alsp addressed by the children. They indicated that when they are with their father, there is enough food and they eat on time. If hungry there is access to food in the tridge without restriction.

[28]I They also expressed their feelings about Alton Edwards, Ms Cochrane's boyfriend. They stated candidly that they do I not like his attitude towards them. They complained that he smokes and e~en though the smoking takes place on the verandah or in the yard, at times it a~ects Jahvonte. Mr. Edwards too shouts and speaks bad words to them and on .occasion would pinch. However, the court notes that Ms Cochrane has instruct~d him not to punish the children, an act she undertakes herself. .

[29]Among the issues raised in the Welfare Officer's assessment is that of the inability of both parents to communicate with leach other, especially during times of illness which according to her could prove ~etrimental to the children. The children are painfully aware of their situation andlfor them being able to eat regularly, and on time are of utmost importance, The Law Section 3of the Guardianship oJ Infa~ts Cap 197 provides: "3. Where in any proceedin~· before any Court the custody or upbringing of an infant, or the administr tion of any property belonging to or held on trust for an infant, or the app ication of the income thereof, is in question, the Court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from ary other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mqther is superior to that of the father." ·.

[30]Lord MacDermott J v C1 has provided some guidance in applying the words of the statue. He states: "Reading these words in their ordinary significance ... it seems to me that they must mean more than that the child's welfare is to be treated as the top item in a list of items r~'levant to the matter in question. I think they connote a process whereb , when all the relevant facts, relationships, claims and wishes of paren , risks, choices, and other circumstances are taken into account and weighed, the course to be followed will be that which is the most in the inter.est of the child's welfare as that term as now to be understood. That is 'the first consideration because it is of most importance and paramount consideration because it rules on or determines the course to be followed." , Mr. Smith's claim for sale custody i~ based on abuse and neglect by the mother. Section 2 of the Childcare and Protection Act, 2003, No 29 of 2003 defines neglect. Even though the Act deals Iwith the Child Care and Protections Agency and its functions, the definition is instructive and provides and follows l "Neglectfl means the failure or refusal, without reasonable cause, of a person having care of achild to provide the child with basic needs such as food, clothing, shelter, adeq~ate supervision or medical attention.

[31]It is therefore the duty of the court ~o assess all the relevant circumstances and arrive at adecision2 .

[32]Counsel for Ms Cochrane submits that the factors the court ought to take into consideration in determining the bestlinterest of the children in this matter are: (a) Religion (b) Conduct of the parents (c) Security and Stability; I I (d) Financial and material standing of parents I (e) Mental and physical fitness of pa~ents I (f) Single parents (g) Parents wishes and future plans; ! ·. (h) The Children's qges (i) The sex of the children CD Separation of siblings; and (k) The wishes of the children I

[33]Counsel also submits that this is not a case of balancing the wealth of the father qgainst the relative poverty of the m~ther.

[34]I Counsel emphasize that there is ro corroborative evidence of loose and/or immoral behavior on the part of Ms Cochrane. According to him, the evidence reveals that though not clothed in w~alth, the children are in a secure and stable I environment. He submits that the strtus quo ought to be preserved.

[35]The court accepts that both parents ~re desirous of ensuring that their children do well. They have both demonstratJd interest in the children's performance at school. However, having consider~d all the circumstances, there are several factors that stand out and are pivotal to the court's determination. [35.1] I The physical and emotional needs lof the children: Adequate food is a basic requirement for growing children. Th~ evidence clearly demonstrates that there is a problem with the provision of fOOdfO the children while at Ms Cochrane's home. The current meal arrangement for th children is an unusual one. The children are denied the opportunity to sit at a tabl. and enjoy the comfort and society during a I meal, like a normal family. .

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[36]The court accepts the evidence thatl in the past, when money was given by Mr. Smith to Ms Cochrane for maintenance, the money was spent on providing food for the household. Ms. Cochrane ~xplained that if any of the fathers were delinquent in meeting their obligation~, that she would use whatever she received from the others fathers to benefit ev~ryone. From a mother's perspective this is totally understandable. However, itl has left the Smith children inadequately provided for and in astate of neglect. \ I

[37]Furthermore, Ms. Cochrane finds he~elf in a precarious financial position. She is currently unemployed. She was dis~issed from her position from the National School Meals Programme in Febru~ry 2013. She is therefore not in a position ·financially to help herself.

[38]Ms Cochrane's response to these allegations of neglect is simply not adequate. Her statement that she cooks and feeds the children well is not borne out by the evidence and therefore not accepted by the court. She has alleged that in the '. past Mr. Smith has not supported th~ children financially and that at one point she was forced to institute proceedings against him for maintenance. These I proceedings were abandoned and never re-instituted. [39J The court finds that the current arra~'gement for providing meals to the children is unacceptable. Ms Cochrane's pro osed solution that the meals be delivered by Mr. Smith to an aunt's house is also. nacceptable.

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[40]It is accepted that when the chillren are at their father's home, meals are adequately provided and consumed n the "normal" way. The children themselves express that this need is better provi ed for at their father's home. Emotional needs: In her assessment in the third report, Ms Ruddy, the Welfare [411 Officer stated: t' "The children are painfully ware of their situation, and for them, being able to eat regularly, and . n time are of utmost importance. Also of importance is to be in a laying non-threatening environment. Indecent language, slaps and punc· s are not ideal forms of correction as the wrong message is being tra smitted. Violence and disrespect only begets more of the same." r [421 In addition, the opinion of the Teachiers is that the boys appear to be "too quiet". They are of the view that they were 'jCared' or 'afraid' of saying the wrong thing. It was also expressed that the chiidren especially the boys appear 'stifled'.

[43]J The court is also concerned about! the behavior of Alston Clarke towards the children. To her credit, Ms Coch~ane has stopped him from disciplining the children. However, the issue of his [.se of indecent language to the children has not been addressed.

[44]I The physical environment: Adequae shelter is another basic requirement for a child. The report of the Welfare Officer concludes that the Cochrane's residence is overcrowded. The description and! sleeping arrangements have been set out above. While the Childcare and Prdtection Act, 2003 identifies shelter as one of the basic needs of a child, the denia, of which is one of the indicators of neglect, the Act does not speak to overcrowding. Nor could the court find a definition of overcrowding in any other legislation.! \ • Sections 324 - 326 of the UK Housing Act 1985 contain such a definition3. By that standard, the Cochrane home is ov~rcrowded. In the Caribbean setting however, I sharing a bedroom with siblings is considered 'normal'. I dare say that the sharing of a bedroom by itself would not raist' any red flags. However, this home does not function on other levels. The lack 0 indoor bathroom facilities and running water presents major issues for a househ Id containing 7 minor children. Although the second report made mention of the construction of a bathroom, nothing further was mentioned in the final report or~'n the submissions. At the time of the second report the outdoor facilities were still in use. The father's allegations are that the 3 children bathe in the same bucket i the same bath water. He is of the view that this has contributed to a higher rate of skin fungus and other infections, as noted in the clinic records. The situationl certainly highlights the inadequacies of the present state of the home.

[45]Medical/Health Needs: Even though he records at the clinic indicate that as young children they all received their shots~ the court finds that currently this area is not given the attention it should by Ms. Cochrane. There is some neglect. Ms. Cochrane, on occasion, has allowef her negative feelings toward Mr. Smith to cloud her judgment in this critical are .

[46]The animosity and lack of communication between the parents: At least two of the three reports have highlighted the ahimosity and lack of communication between the parents as a major factor negati~elY impacting the children. On page 3 of the third report, Ms Ruddy opines the I ck of communication between the parents is one of the biggest obstacles to movi g forward. ,

[47]The wishes of the Children: In the firtt report, only one of the 3 children expressed a preference to reside with the fathel1t· By the time of the third report, all 3 children expressed a desire to live with their f ther. Their reasons were that he was kinder and provided better for their physical needs. At ages 10 and 9 years old they are capable of forming opinions and expr ssing their feelings on the matter. The court finds that the reasons given by theml have been substantiated by the evidence in 3 324 Definition of overcrowding: A dwelling liS overcrowded for the purposes of this Part when the number of persons sleeping i1 the dwelling is such as to contravene sections 325 and 326. ' The room standard is contravened wherj the number of persons sleeping dwelling and the number of rooms available as Sleep~.,g accommodation is such that two persons of opposite sexes who are not living toget er as husband and wife must sleep in the same 1/ the matter and the reports of the Welfare Officer. The court has therefore given some consideration to their expressed dissatisfaction with the status quo.

Conclusion

[48]The court finds that the conditions U'der which the children live at the Cochrane's residence amounts to neglect. Th re is a failure to adequately provide for the t children's physical and emotional ne ds. There is also alack of sufficient attention to their health and wellbeing. The ¢ourt also finds that the method of discipline, including the use of indecent lan'uage to the children, borders on abusive conduct In light of the above, the ourt cannot agree with Ms Cochrane that, at her home, the children are happy an. in asecure and stable environment.

[49]The court understands a mother's desire to have all her children with her under one roof. However, Ms. Cochrane's present circumstances, including her financial situation, have resulted in neglect of the 3children.

[50]The court is convinced that the bestl interest of the children requires that they be placed with their father at this tim~" Mr. Smith has demonstrated that he is capable of taking care of the 3 childr n. With such placement the children are not being sent to a strange or unknown .nvironment. They lived with their father from 2005 to 2007 and have expressed arwish to resume living with him. Furthermore, the issue of separation from the other siblings can be addressed by the imposition of generous visitation provisions.

[51]However, the court is impressed to make a temporary order for approximately 6 months in the first instance. During this time Ms Cochrane has an opportunity to address the inadequate condition~· in the home and the areas of neglect highlighted above. The court als suggests that she seeks to obtain a maintenance order against the delin uent fathers, so that the household will have the necessary funding. Counseling is also required during this time.

[52]Accordingly, the court orders as fOIlO+S: 1. The claimant, Mr. Smith, is gran~d temporary custody of the minor children: Jahvonte Shemarie Smith, Onia Avon Smith and Osarion Jamalie Smith until further order of the court. 2. Ms Cochrane is granted visitation each weekend. Holidays and school vacations are to be divided between the parties. The parties are to submit a schedule for the court's approval. . I 3. Both parties are to attend coUnJeling with the Welfare Officer to address the . animosity and lack of communicationlssues. In addition Ms Cochrane is to I i I receive counseling on parenting skills, including the use of proper disciplinary measures 4. The matter is set down for revi~w on the 14th day of March 2014 at 9:00 am. f I 5. No Order for cost.

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High Co

Judge

Antigua & Barbuda

Avondale Smith v Tisha Cochrane THE EASTERN CARIBBEAN SUPREME C URT ANTIGUA AND BARBUDA IN THE HIGH CqURT OF JUSTICE CLAIM NO. ANUHCV2011/319 BETWEEN: I n the MaUer of the Guardianshlip of Infants Act, Cap 197 of the Laws of Antigua and Bartiuda Revised Edition 1992 I And in the Matter of the Status lof Children Act, Cap 414 of the Laws of Antigua and Barquda Revised Edition 1992 , And in the Matter of the A~plication for Custody of the Minor Children, JAHVONTE SHEMARIE ASI SMITH, ONIA AVON CERENA SMITH AND OSARION JAMALIE NATHAN SMITH i AVONDALE SMITH Claimant I I a~d TISHA CQCHRANE Defendant Appearances: I Mr. Peyton J.V. Knight for the Claimapt Mr. Steadroy Benjamin for the Defen1ant I 2013: Sewtember 13 I JUDG~MENT I

[1]2.

[3][4] HENRY, J.: the claimant (hereinafter iMr. Smith is the father of the minor children. Jahvonte Onia, and Osarion Smith. Th~ respondent Tisha Cochrane (hereinafter Ms Cochrane is the mother of 7 children including the 3 fathered by Mr. Smith. By Fixed Date Claim Form Mr. Smith seeks an prder that he be granted sole custody of the minor children born to him of Ms Co~hrane. Also filed with the claim form is an Application of Urgency seeking the sa1e relief. It is supported by an affidavit. The grounds of the application are that

2.Ms Cochrane has been neglectful, cruel and abusive to the minor children

[5][6]

4.The interest of the minors is bestl served by them being in the custody of the applicant. In the affidavit, Mr. Smith deposes ~at He is the father of the minor children Jahvonte and Onia, twins, were born on 1st February 2003 and Osarion was born on 5th December 2003. he asserts tha~ Ms Cochrane has been a neglectful and abusive mother. He dates the start of. he abusive behavior to shortly after the birth of the twins. He states that he wbuld hear the babies crying in the nights uncontrollably. At the time the parties did not share a residence, but he lived in another house about 20 ft from Ms Cochrane’s. He would go to Ms Cochrane’S house to inquire what was happening,lbut she would be nowhere to be found. He alleges that she would regularly Ieare the babies alone in the house without informing anyone that she was leaving pr of her whereabouts. I According to Mr. Smith’s account, since the children’s infancy, it has been he who has done everything for them. As a result, the children began spending more and more time with him and he would take ~hem to spend weekends with Ms Cochrane. On those occasion when he took the to visit their mother, He would still have to take food, or when he collected them, \they would complain that they were hungry, because their mother had given them npthing to eat. He complains that there were times When he would give Ms Cochrane money to I purchase items of food for the children, but she would instead spend the money on herself. as a result, whenever they h~ to go to see their mother He would pack a lunch kit for them as if they were going to school. However, when he collected them, they would tell him that their mother ?te their lunch and all they had to eat was bread. This, He says, caused much arbuments and altercations between them. As a result she took the children, from him and he would not see them for months.

[7][8]

[9]i I Mr. Smith makes further allegations df neglect when he states that whenever the children were eventually returned to hih they would need medical treatment for skin rashes. On occasions, visits to th~ doctor would result in medication being prescribed by the doctor. If, he states~ Ms Cochrane was the one who took them to the doctor at his request, if they supsequently had a disagreement, she would withhold the children’s medication until ithe issue between them was resolved. He asserts that on 20th April 2011, M$ Cochrane took the children from him and a week and a half passed before he C011d see them. When he finally saw them, he noticed their teeth had not been take care of. Upon inquiry, he was told by the children that their teeth had not been .rushed during that period. One child had to be taken to the dentist, who indicated that the child’s teeth, although developing had many cavities i I Mr. Smith’s allegations include asse~ions that the environment provided by Ms Cochrane is unhealthy for the childrJn. Mr. Smith’s evidence is that when the children are with him he ensures that they go to the doctor and eat balanced meals. He is also mindful of their school w9rk and completes school assignments. He asserts that he also pays for all the Ichildren to receive food at school from the School’s Meal Programme. On the otfuer hand, he describes Ms Cochrane’s home as lacking indoor plumbing and therefJre has inadequate toilet facilities. He states that almost on every occasion that the1children arrive to stay with him they are sick and requires a doctor’s visit. He c,·ncludes that the poor environment at Ms Cochrane’s home is having a negativ effect on the children, including for at least one child, poor performance at school. There are further allegations that Msl Cochrane beats the children for no good reason. I I Mr. Simon, in his affidavits, also make~ allegations of Ms Cochrane’s neglect of the children’S health. One example he gi~es is in regard to Jahvonte who at the time suffered from fainting spells. Mr. Silllon had secured an appointment at Mt. S1. Johns Medical Center for tests to be carried out to determine the cause. On the I morning of the appointment when hel arrived at Ms Cochrane’s home to collect Jahvonte, Ms Cochrane indicated t~at she did not want him to attend the appointment. In the end Mr. Simon had to enter the yard and take the child. On the way to the hospital, he was called and < !luestioned by the police. It was only after he had explained the situation to the offic~r that he was allowed by police to take the child to the Doctor. At the end of tHe procedure, he took the child home. Ms Cochrane however, did not allow him i ! to see the other children or allow them to receive their dinner or breakfast from hiln. He eventually sought assistance from the police who got her to release the children to him so they could eat.

[9][10] [11 ]

[12][13} In her affidavit of response, Ms. Co rane denies that she has beaten the children for no good reason or that she be n neglectful of or abusive to the children in other ways. She admits that sh has had occasion to correct her daughter whenever she misbehaves, but henever she did so, by spanking her or otherwise, it was never in a mann r that can be considered to be abuse. She admits that there are times when sh . does speak loudly, but never with expletives. Ms Cochrane insists that the one thing she has done and continues to do is take care of the children: she washes, co~ks, cleans and feeds them well. I Ms Cochrane admits that the childr~n were living with Mr. Smith at one point and explains why. She states that two·months after the birth of their third child, Mr. Smith moved out of the house thJy shared and took up residence in another house in the same yard. ShortIY~’thereafter, he moved to Freeman’s Village leaving Ms Cochrane and the chi dren in the house in Parham. Sometime thereafter, he returned to tell her t at his aunt was returning from Canada and wanted the house. She was forced to find alternative accommodation. Her evidence is that she and her eldestl· daughter (from a previous relationship) then took up residence with her sister. But the premises were not large enough to accommodate the three children, sol they went to live with Mr. Smith. The three children lived with him from early 2Q05 to 2007. The arrangement, according to Ms Cochrane is that the children stayed with Mr. Smith during the week and spent weekends with Ms Cochrane. I i In 2007, a new boyfriend built Ms Ck>chrane a new house and they all moved in together, including the three children ,fathered by Mr. Smith. She states that all the children, her new boyfriend and he~self have a loving, caring and warm family relationship. The environment aroun them is healthy and clean. The children are healthy and have settled into a sta Ie background with a stable life and secure relationship and the children have bl6ssomed in every meaningful way. According to her the children perform very well at school and are comfortable, happy and enjoy each other’s company. She~’requests that they not be separated. She characterizes Mr. Smith’s applicatio as unwarranted, unjustified, malicious and without merit. , i In reply, Mr. Smith terms Ms Cochrane’s affidavit as replete with lies, falsehood I and innuendoes. Lastly, he stat~s that he is the one solely responsible for feeding the children. According to him he has to travel from Freeman’s Village to Parham to give the children breakfast every morning. He returns in the afternoon during the holidays and gives them lilinch and later in the evening he also returns and provides them with supper. Duriog the school term, the children receive lunch from the school lunch program paidl for by Mr. Smith. Their mother, he states

[14][15]

[18][19]

[20][21] Smith attendance at PTMs, they 1d show that he contributed to the financial support of the children at school. • i the Division’s assessment at that ti~·e was that the children were adaptive, that is, self sufficient. They got on well wit their peers and their language skills were in keeping with their age group. Th. Division further found that each parent was capable of being a good influenc~ in the children’s lives, with each parent possessing strong as well as weak Iattributes. The greatest problem, the report concluded, was the parents’ relation~hip. The lines of communication, the report stated, had totally broken down. ~he division recommended that both parents attend counseling sessions. • The secood report was prepared bJ order of Lanns, J. on 21″ November 2012. She requested an update and mor~ detailed report on living conditions of the I parties, state of health and educatiynal wellbeing of the children Visits to the homes of the parties were carried ou, between the 9th -18th January 2013. I The updated reported indicated that tv1s Cochrane’s household now consisted of 7 children She had given birth to at·aby boy who was, at the time of the visit, 3 months old. Ms Cochrane’s househ Id was still housed in the 2 bedroom wooden structure in Parham. However,. n indoor bathroom was currently under construction. but at the time of the visit bathroom activities were still being carried out in an outdoor facility. Sleeping arrangements had changed somewhat. In the bedroom, utilized by Ms Cochrane a~d her boyfriend, instead of a king size bed there now were two beds. Ms Cochrane, her partner and the 3 month old baby occupied one bed, while the other w~s occupied by Kezia, age 4 years and Alton age 6 years The other children shatd the second bedroom as before. Information had been culled from the, Parham Community Clinic records in regard to the health of the children. They, showed that the children had received all immunization shots to age 5. Therelhad been occasional visits to the Doctor for respiratory tract infections, but none ~f the children were asthmatic. The records of their visits to the clinic show the following: Jahvonte: 20th April 2010-Skinl fungus 4th January 2011 -~Ungal infection in head (school had a major breakout) I Onia: 25th October 2011 -~ar ache I 7th February 2012 -acute gastroenteritis I Osarion: 4th January 2011 -e~r ache, fungus on skin I ..

[22][23]

[16][17] I plays no role in their maintenance n~ds. He complains that when he takes meals for the children they are required t9 meet him at the curb, they then enter his vehicle where they eat what he has prepared for them. If he sends the meal into the house, then it would be Sharedf·mongst all the occupants in the household. The children would then complain lat rthat they are hungry. He reiterates that the children are not being cared for and e neglect and abuse by the mother is having a serious effect on the children’s heath, education and well being. The Social Inquiry Reports A total of 3 Reports have been f:’ed with the court by the Citizens’ Welfare Division. The first report indicates th t Mr. Smith had visited that department back in September 2010 and requested ustody of his 3 children because the mother was not adequately caring for them. ! The details of the report indicate that similar allegations as those set out above were made to the welfare officer. The report I indicates that Mr. Smith is a self employed contractor who earns a salary of $4000.00 monthly. He resided alan,’ in a 3 bedroom 2-storey house. At the time, the house was under construction, ut the report noted that there was adequate yard space for the children. I The report noted that at the time,’ Ms Cochrane resided with her 6 children (including the 3 children the subje~t of this matter) and her boyfriend in a 2 bedroom house. There was no indoor bathroom or running water. The house was described as clean, but disheveled. r·ne bedroom had 2 beds. Four children slept in this room -each bed accommod ted 2 children. In the second bedroom, Ms Cochrane shared a king size bed wit her boyfriend and their 2children, then ages 4 and 2 years old. I According to the report, the 3 Smith children Jahvonte, Onia and Osarion revealed that they liked living with oth parents. However, they explained that they were fed better when they were ith their father. Onia, in addition, expressed that she preferred to reside with er father because he was kinder. She complained that whenever she tal her mother she was hungry, her mother responded by telling her to drink her spit. She also indicated that there were times when Ms Cochrane spoke indecent language in front of her and that she did not like this. i The welfare officer also interviewed Sf’hool representatives who indicated that both parents were attentive to the chil ren’s educational needs. However, their conclusion was that Ms Cochrane as more attentive. She had a record of attending all the Parent-Teachers’ . eetings (PTM) and had even attended a workshop hosted by the school. While the school’s records did not show Mr. l ·.

[26]i 7th June 2011 -ringworm I The Principal and Teachers of the P~rham Primary School were also interviewed Jahvonte was deemed a good stud~nt, although considered reserved. Onia was said to be an excellent student, very outgoing and expressive Osarion, however, was said to be agood student, but very quiet and slow to respond to questions. All the children were described as rvell behaved, However, it was suggested that the boys appeared to be “too quiet)’. It was believed that they were scared or afraid of saying the wrong thing. It Was also revealed that Osarion spends a lot of time flying an invisible plane. the Welfare Officer made afew criti4al observations at the end of the report:

2.Mr. Smith not only has adequate’ space to accommodate the children, but also I the capacity to care for them. .

4.Ms Cochrane has found herself in an economic situation which does not enable her to provide adequate qare for the children. At a preliminary hearing on 7th FeQruary 2013, the Welfare Officer was crossexamined. She admitted that in completing the last report she had not spoken to Ms Cochrane, nor had she spoken ~th the children individually. The court, at the request of Counsel for Ms. Cochr~ne, requested that the Officer conduct the necessary interviews and file afinal r~port. I The third and final report is dated 14th April 2013. At the time of this report, the twins, Jahvonte and Onia: were 10 ye~rs old and Osarion: was 9years. Ms. Cochrane describes her relatio~ship with the children as sometimes good. She admits that at other times the ~hildren get on her nerves. Punishment for misbehaving, she revealed is normajly by beating with a belt, and sometimes by I shouting at them, but she denied u~ing indecent language. With regard to the children’s meals, Ms Cochrane says Ithat she has asked Mr. Smith to deliver the meals (breakfast and dinner) to an a~nt’s home in Parham. With regard to their health, she admitted that Jahvonte s~ffers from fainting spell, froths at the mouth and shakes. During this period he lis unaware of his surroundings. She also admitted that Mr. Smith took Jahvonte to the Doctor but complains that he did not give her an explanation of what had produced the seizure. ·.

[27][28]

[29]Interview with children In the interview conducted by the ~Ifare Officer, the children all expressed love for both parents. However, now they stated a preference for living with their father. The reason stated is becau~e he takes better care of them. If they do something wrong, they stated, theif father would first talk to them, but if they repeat the action then abeating is u~ually the end result. On the other hand, their mother beats first. “Beatings” were Idescribed to include slaps and punches. In addition, the mother is said to use bad words (indecent language) when angry. The issue of adequate food was alsp addressed by the children. They indicated that when they are with their father, there is enough food and they eat on time. If hungry there is access to food in the tridge without restriction. They also expressed their feelings about Alton Edwards, Ms Cochrane’s boyfriend. They stated candidly that they do I not like his attitude towards them. They complained that he smokes and e~en though the smoking takes place on the verandah or in the yard, at times it a~ects Jahvonte. Mr. Edwards too shouts and speaks bad words to them and on .occasion would pinch. However, the court notes that Ms Cochrane has instruct~d him not to punish the children, an act she undertakes herself. . I Among the issues raised in the Welfare Officer’s assessment is that of the inability of both parents to communicate with leach other, especially during times of illness which according to her could prove ~etrimental to the children. The children are painfully aware of their situation andlfor them being able to eat regularly, and on time are of utmost importance, The Law Section 3of the Guardianship oJ Infa~ts Cap 197 provides: “3. Where in any proceedin~·before any Court the custody or upbringing of an infant, or the administr tion of any property belonging to or held on trust for an infant, or the app ication of the income thereof, is in question, the Court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from ary other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mqther is superior to that of the father.” ·.

[30]Lord MacDermott J v C1 has provided some guidance in applying the words of the statue. He states: “Reading these words in their ordinary significance … it seems to me that they must mean more than that the child’s welfare is to be treated as the top item in a list of items r~’levant to the matter in question. I think they connote a process whereb , when all the relevant facts, relationships, claims and wishes of paren , risks, choices, and other circumstances are taken into account and weighed, the course to be followed will be that which is the most in the inter.est of the child’s welfare as that term as now to be understood. That is ‘the first consideration because it is of most importance and paramount consideration because it rules on or determines the course to be followed.” , Mr. Smith’s claim for sale custody i~ based on abuse and neglect by the mother. Section 2 of the Childcare and Protection Act, 2003, No 29 of 2003 defines neglect. Even though the Act deals Iwith the Child Care and Protections Agency and its functions, the definition is instructive and provides and follows l “Neglectfl means the failureor refusal, without reasonable cause, of a person having care of achild to provide the child with basic needs such as food, clothing, shelter, adeq~ate supervision or medical attention.

[32]Counsel for Ms Cochrane submits that the factors the court ought to take into consideration in determining the bestlinterest of the children in this matter are: a Religion (b) Conduct of The parents ( c) Security and Stability; I I (d) Financial and material standing of parents I (e) Mental and physical fitness of pa~ents I (f) Single parents (g) Parents wishes and future plans; ! 1 [19701 AC 686 2 Milne v Milne (1974) No 2162 of 1973 High cou~t Trinidad & Tobago C (unreported) ·.

[24][25]

[35][35.1]

[38](h) The Children’s qges (i) The sex of the children CD Separation of siblings; and (k) The wishes of the children I Counsel also submits that this is not a case of balancing the wealth of the father qgainst the relative poverty of the m~ther. I Counsel emphasize that there is ro corroborative evidence of loose and/or immoral behavior on the part of Ms Cochrane. According to him, the evidence reveals that though not clothed in w~alth, the children are in a secure and stable I environment. He submits that the strtus quo ought to be preserved. The court accepts that both parents ~re desirous of ensuring that their children do well. They have both demonstratJd interest in the children’s performance at school. However, having consider~d all the circumstances, there are several factors that stand out and are pivotal to the court’s determination. I The physical and emotional needs lof the children: Adequate food is a basic requirement for growing children. Th~ evidence clearly demonstrates that there is a problem with the provision of fOOdfO the children while at Ms Cochrane’s home. The current meal arrangement for th children is an unusual one. The children are denied the opportunity to sit at a tabl. and enjoy the comfort and society during a I meal, like a normal family. . I The court accepts the evidence thatl in the past, when money was given by Mr. Smith to Ms Cochrane for maintenance, the money was spent on providing food for the household. Ms. Cochrane ~xplained that if any of the fathers were delinquent in meeting their obligation~, that she would use whatever she received from the others fathers to benefit ev~ryone. From a mother’s perspective this is totally understandable. However, itl has left the Smith children inadequately provided for and in astate of neglect. \ I Furthermore, Ms. Cochrane finds he~elf in a precarious financial position. She is currently unemployed. She was dis~issed from her position from the National School Meals Programme in Febru~ry 2013. She is therefore not in a position ·financially to help herself. I Ms Cochrane’s response to these allegations of neglect is simply not adequate. Her statement that she cooks and feeds the children well is not borne out by the evidence and therefore not accepted by the court. She has alleged that in the ‘. [39J

[43][44] past Mr. Smith has not supported th~ children financially and that at one point she was forced to institute proceedings against him for maintenance. These I proceedings were abandoned and never re-instituted. The court finds that the current arra~’gement for providing meals to the children is unacceptable. Ms Cochrane’s pro osed solution that the meals be delivered by Mr. Smith to an aunt’s house is also. nacceptable. I It is accepted that when the chillren are at their father’s home, meals are adequately provided and consumed n the “normal” way. the children themselves express that this need is better provi ed for at their father’s home. Emotional needs: in her assessment in the third report, Ms Ruddy, the Welfare Officer stated: t’ “The children are painfully ware of their situation, and for them being able to eat regularly, and . n time are of utmost importance. Also of importance is to be in a laying non-threatening environment. Indecent language, slaps and punc·s are not ideal forms of correction as the wrong message is being tra smitted. Violence and disrespect only begets more of the same.” r In addition, the opinion of the Teachiers is that the boys appear to be “too quiet”. They are of the view that they were ‘jCared’ or ‘afraid’ of saying the wrong thing. It was also expressed that the chiidren especially the boys appear ‘stifled’. J The court is also concerned about! the behavior of Alston Clarke towards the children. To her credit, Ms Coch~ane has stopped him from disciplining the children. However, the issue of his [.se of indecent language to the children, has not been addressed. The physical environment: Adequae shelter is another basic requirement for a child. The report of the Welfare Officer concludes that the Cochrane’s residence is overcrowded. The description and! sleeping arrangements have been set out above. While the Childcare and Prdtection act 2003 identifies shelter as one of the basic needs of a child, the denia, of which is one of the indicators of neglect, the Act does not speak to overcrowding. Nor could the court find a definition of overcrowding in any other legislation.! I \ •

[31]It is therefore the duty of the court ~o assess all the relevant circumstances and arrive at adecision2 .

[33][34]

[51]However, the court is impressed to make a temporary order for approximately 6 months in the first instance. During this time Ms Cochrane. has an opportunity to address the inadequate condition~· in the home and the areas of neglect highlighted above. The court als suggests that she seeks to obtain a maintenance order against the delin uent fathers, so that the household will have the necessary funding. Counseling is also required during this time.

1.The claimant, Mr. Smith, is gran~d temporary custody of the minor children: Jahvonte Shemarie Smith, Onia Avon Smith and Osarion Jamalie Smith until further order of the court.

[36][37]

3.Both parties are to attend coUnJeling with the Welfare Officer to address the . animosity and lack of communicationlssues. in addition Ms Cochrane is to I 13 i I I I receive counseling on parenting skills, including the use of proper disciplinary measures

5.No Order for cost. I f High Co Judge Antigua & Barbuda

[40][411 [421

[45][46]

[47]3 324 Sections 324 -326 of The UK Housing Act 1985 contain such a definition3. By that standard, the Cochrane home is ov~rcrowded. In the Caribbean setting however, I sharing a bedroom with siblings is considered ‘normal’. I dare say that the sharing of a bedroom by itself would not raist’ any red flags. However, this home does not function on other levels. The lack 0 indoor bathroom facilities and running water presents major issues for a househ Id containing 7 minor children. Although the second report made mention of the construction of a bathroom, nothing further was mentioned in the final report or~’n the submissions. At the time of the second report the outdoor facilities were still in use. The father’s allegations are that the 3 children bathe in the same bucket i the same bath water. He is of the view that this has contributed to a higher rate of skin fungus and other infections, as noted in the clinic records. The situationl certainly highlights the inadequacies of the present state of the home. Medical/Health Needs: Even though he records at the clinic indicate that as young children they all received their shots~ the court finds that currently this area is not given the attention it should by Ms. Cochrane. There is some neglect. Ms. Cochrane, on occasion, has allowef her negative feelings toward Mr. Smith to cloud her judgment in this critical are . The animosity and lack of communication between the parents: At least two of the three reports have highlighted the ahimosity and lack of communication between the parents as a major factor negati~elY impacting the children. On page 3 of the third report, Ms Ruddy opines the I ck of communication between the parents is one of the biggest obstacles to movi g forward. , The wishes of the Children: In the firtt report, only one of the 3 children expressed a preference to reside with the fathel1t· By the time of the third report, all 3 children expressed a desire to live with their f ther. Their reasons were that he was kinder and provided better for their physical needs. At ages 10 and 9 years old they are capable of forming opinions and expr ssing their feelings on the matter. The court finds that the reasons given by theml have been substantiated by the evidence in Definition of overcrowding: A dwelling liS overcrowded for the purposes of this Part when the number of persons sleeping i1 the dwelling is such as to contravene sections 325 and 326. ‘ The room standard is contravened wherj the number of persons sleeping dwelling and the number of rooms available as Sleep~.,g accommodation is such that two persons of opposite sexes who are not living toget er as husband and wife must sleep in the same room. Children under the age of ten sh II be left out of account, and A room is available as sleeping accomm dation if it is a type normally used in the locality either as a bedroom or as a livin room. The space standard is contravened whe~ the number of persons sleeping in a dwelling is in excess of the permitted number, havj~g regard to the number and floor area of the dwelling available as sleeping accomm01ation. 1/ the matter and the reports of the Welfare Officer. The court has therefore given some consideration to their expressed dissatisfaction with the status quo. Conclusion

[48]The court finds that the conditions U’der which the children live at the Cochrane’s residence amounts to neglect. Th re is a failure to adequately provide for the t children’s physical and emotional ne ds. There is also alack of sufficient attention to their health and wellbeing. The ¢ourt also finds that the method of discipline, including the use of indecent lan’uage to the children, borders on abusive conduct In light of the above, the ourt cannot agree with Ms Cochrane that, at her home, the children are happy an. in asecure and stable environment.

[49]The court understands a mother’s desire to have all her children with her under one roof. However, Ms. Cochrane’s present circumstances, including her financial situation, have resulted in neglect of the 3children.

[50]The court is convinced that the bestl interest of the children requires that they be placed with their father at this tim~" Mr. Smith has demonstrated that he is capable of taking care of the 3 childr n. With such placement the children are not being sent to a strange or unknown .nvironment. They lived with their father from 2005 to 2007 and have expressed arwish to resume living with him. Furthermore, the issue of separation from the other siblings can be addressed by the imposition of generous visitation provisions.

[52]Accordingly, the court orders as fOIlO+S:

1.Ms Cochrane has continually neglected the health and well-being of the minor children;

3.Mr. Smith, the applicant, is in a po~ition to take care of the minor children; and

1.Ms Cochrane’s home is overcrQwded, given the fact that there are 7 growing I children.

3.Due to the lack of an indoor bathroom at the Cochrane’s residence, meeting basic needs such as taking abat~ presents challenges.

2.Ms Cochrane is granted visitation each weekend. Holidays and school vacations are to be divided between the parties. The parties are to submit a schedule for the court’s approval. . i

4.The matter is set down for revi~w on the 14th day of March 2014 at 9:00 am.