Minister of Home Affairs v Fisher
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1979 |
| Date | 1979 |
| Year | 1979 |
| Court | Privy Council |
Bermuda - Constitution - Person deemed to belong to Bermuda - “Child” - Whether term includes illegitimate child -
Section 11 of the Constitution of Bermuda provides:
“(5) For the purposes of this section, a person shall be deemed to belong to Bermuda if that person — (a) possesses Bermudian status — … (c) is the wife of a person to whom either of the foregoing paragraphs of this subsection applies not living apart from such person …; or (d) is under the age of 18 years and is the child, stepchild or child adopted in a manner recognised by law of a person to whom any of the foregoing paragraphs of this subsection applies.”
The Jamaican mother of four illegitimate children all born in Jamaica married a Bermudian in 1972. The mother and the children took up residence with the husband in Bermuda in 1975. At all material times the children were under 18. In 1976 the Minister of Labour and Immigration ordered the children to leave Bermuda. The mother and her husband applied to the Supreme Court to quash the order and for a declaration that the children were to be deemed to belong to Bermuda The Supreme Court refused a declaration on the ground that the children were illegitimate. On appeal by the mother and her husband the Court of Appeal held by a majority that the children were to be deemed to belong to Bermuda by virtue of section 11 (5) (d) of the Constitution.
On appeal by the Minister of Home Affairs (formerly the Minister of Labour and Immigration) and the Minister of Education: —
Held, (1) that a constitutional instrument should not necessarily be construed in the manner and according to the rules which applied to Acts of Parliament and, therefore the presumption applicable to statutes concerning property, succession and citizenship that “child” meant “legitimate child” did not apply (post, pp. 894B–E, 895B–E).
(2) That, although the manner of interpretation of a constitutional instrument should give effect to the language used, recognition should also be given to the character and origins of the instrument; that, since section 11 of the Constitution was one of the sections dealing with the fundamental rights and freedoms of an individual and subsection (5) (d) in its context was a clear recognition of the unity of the family as a group and acceptance that children should not be separated from a group which belonged to Bermuda, “child” in the subsection was not to be restricted in its meaning and the mother and her husband were entitled to a declaration that the children were deemed to belong to Bermuda (post, pp. 895E, 896B, D–E, H).
The following cases are referred to in the judgment of their Lordships:
Brule v. Plummer (unreported), January 23, 1979,
Dickinson v. North-Eastern Railway Co.(
Galloway v. Galloway[
Reg. v. Inhabitants of Totley(
Sydall v. Castings Ltd.[
Woolwich Union v. Fulham Union[
The following additional cases were cited in argument:
M. (An Infant), In re[
Reg. v. Chief Immigration Officer, Heathrow Airport, Ex parte Salamat Bibi[
White v. Barrett[
APPEAL (No. 4 of 1978) by the Minister of Home Affairs (formerly the Minister of Labour and Immigration) and the Minister of Education from a judgment (July 15, 1977) of the Court of Appeal for Bermuda (Duffus and Georges JJ.A.; Hogan P. dissenting) allowing the appeal of Collins MacDonald Fisher (the husband) and Eunice Carmeta Fisher (as mother and next friend of Cheryl Angela Morgan, Valentine Denver Morgan, Fitzroy O'Neil Stuart and Samuel Isaiah Tait (the children)) from a judgment of Seaton J. (January 6, 1977) in the Supreme Court of Bermuda whereby he refused to quash the order made by the Minister of Labour and Immigration on October 22, 1976, that the children should leave Bermuda and the order of the Minister of Education that the children be removed from suitable education at recognised schools or to grant a declaration that the children were to be deemed to possess Bermudian status by virtue of the
The facts are stated in the judgment of their Lordships.
Colin Ross-Munro Q.C. and Christopher Carling for the Minister of Home Affairs and the Minister of Education.
Christopher French Q.C., Julian E. S. P. Hall (of the Bermuda Bar) and Narinder Hargun for the mother and her husband.
May 14. The judgment of their Lordships was delivered by LORD WILBERFORCE.
This is an appeal from a judgment of the Court of Appeal for Bermuda, which by a majority (Duffus and Georges JJ.A.; Hogan P. dissenting) allowed the appeal of the respondents from a judgment of the Supreme Court of Bermuda (Seaton J.) dated January 6, 1977.
The proceedings relate to the status in Bermuda of four illegitimate children of Mrs. Eunice Carmeta Fisher (the mother), all under the age of 18. They were born in Jamaica, as was the mother herself. In May 1972 the mother married Mr. Collins MacDonald Fisher (the husband) who possessed Bermudian status. As from the date of the marriage the husband has accepted all four children as children of his family. On July 31, 1975, the mother came with the four children to take up residence with the husband in Bermuda; they were admitted by the immigration authorities, and soon afterwards were placed in state schools. Following a routine check carried out in the school year 1976–77 the husband was informed that the Ministry of Labour and Immigration had refused permission for two of the children to remain at school, and on October 22, 1976, the ministry informed the mother that she and the four children must leave Bermuda by October 30, 1976.
Separate legal proceedings (later consolidated) were then started by both the mother and the husband seeking to...
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