Wakilii

Strobino v Balletto (Civil Appeal No. 91 of 1955)

East African Court of Appeal · [1950] EACA 47 · 1950 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court of Tanganyika decision granting custody of child to husband in judicial separation proceedings
Decision
Custody of the child remained with the husband; wife's appeal dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that when determining child custody, the child's moral and material welfare is paramount. A foreign court's custody order is a factor to be considered and given due weight, but does not override the primary question of the child's welfare. Custody orders have no finality and may be reviewed as circumstances change. The appeal was dismissed and custody remained with the husband.

Outcome

Custody of the child remained with the husband; wife's appeal dismissed

Facts

The parties, Italian by birth, married in 1937 and had three children including Angela Maria, aged nearly eight. After 13 years of marriage, the wife left the husband and lived in adultery, leaving the children in the husband's care. The husband became a naturalized British subject in 1953. He took Angela Maria to Italy in 1952 and left her with his mother. The husband commenced judicial separation proceedings in Tanganyika in February 1954. In September 1954, while proceedings were pending, the wife obtained an ex parte custody order from a Turin court. The Italian Court of Appeal affirmed this order in March 1955. The High Court of Tanganyika granted judicial separation and custody to the husband in August 1955. By the time of the appeal, the wife had brought the child to Kenya.

Issues

  1. Whether the High Court of Tanganyika had jurisdiction to grant custody of a child to the husband when an adverse custody order from an Italian court was already in existence.
  2. Whether the child's welfare should override the existence of a foreign court's custody order.
  3. Whether the Court should modify the custody order to give the wife care and control while leaving legal custody with the husband.

Orders

  • Appeal dismissed.
  • Custody of Angela Maria to remain with the respondent husband as ordered by the High Court.
  • Wife may apply to High Court for care and control or access, but only after bringing the child within the jurisdiction.

Rules and key headnotes

Family Law — Child Custody — Paramount Consideration — Child's Welfare
When considering the question of custody of an infant, the moral and material welfare of the child is the paramount consideration.
Family Law — Child Custody — Foreign Court Orders — Weight to be Given
The existence of an adverse foreign court's order for custody is a matter to be taken into account and given due weight, but does not override the main question of the child's welfare.
Family Law — Child Custody — Variation of Orders — No Finality
There is no finality in connection with custody orders, which are liable to be reviewed and changed as time passes and circumstances change.
Family Law — Child Custody — Jurisdiction — Child Outside Jurisdiction
It is within the discretion of a court to make a custody order respecting a child who is outside the jurisdiction, though such orders should only rarely be made.

Legislation cited (4)

  • Tanganyika Divorce Ordinance (Cap. 110) s.31
  • Eastern African Court of Appeal Order in Council 1951 s.4
  • Eastern African Court of Appeal Order in Council 1951 s.16(1)
  • Eastern African Court of Appeal Order in Council 1951 s.16(2)

Cases cited (5)

  • McKee v McKee [1951] 1 All ER 942
  • Harris v Harris [1949] 2 All ER 322
  • Philips v Philips (1944) 60 TLR 395
  • Wakeham v Wakeham [1954] 1 All ER 434
  • Hadkinson v Hadkinson [1952] 2 All ER 567

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Strobino v Balletto (Civil Appeal No. 91 of 1955) [1950] EACA 47 (1 January 1950)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.