MINISTER OF HOME AFFAIRS AND ANOTHER APPELLANTS AND COLLINS

MACDONALD FISHER AND ANOTHER RESPONDENTS [APPEAL FROM THE

COURT OF APPEAL FOR BERMUDA]
1979 Feb. 26, 27; May 14Lord Wilberforce, Lord Hailsham of St. Marylebone, Lord Salmon, Lord Fraser of Tullybelton and Sir
William Douglas

 Bermuda - Constitution - Person deemed to belong to Bermuda - "Child" - Whether term includes
illegitimate child - Bermuda Constitution Order 1968 (S.I. 1968 No. 182), Sch. 2, s. 11 (5)

 Statute - Construction - Constitutional instrument - Whether rules of construction of statutes

applicable
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.

[1980] A.C. 319 Page 320

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. 328A-D, 329B-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. 329D-F, 330E-G, 331A).

Decision of the Court of Appeal for Bermuda affirmed.

The following cases are referred to in the judgment of their Lordships:

Brule v. Plummer (unreported), January 23, 1979, Supreme Court of Canada.

Dickinson v. North-Eastern Railway Co. (1863) 33 L.J.Ex. 91; 2 H. & C. 735.
Galloway v. Galloway [1956] A.C. 299; [1955] 3 W.L.R. 723; [1955] 3 All E.R. 429, H.L.(E.).
Reg. v. Inhabitants of Totley (1845) 7 Q.B. 596.
Sydall v. Castings Ltd. [1967] 1 Q.B. 302; [1966] 3 W.L.R. 1126; [1966] 3 All E.R. 770, C.A.
Woolwich Union v. Fulham Union [1906] 2 K.B. 240; 22 T.L.R. 579 C.A.
The following additional cases were cited in argument:

M. (An Infant), In re [1955] 2 Q.B. 479; [1955] 3 W.L.R. 320; [1955] 2 All E.R. 911, C.A.
Reg. v. Chief Immigration Officer, Heathrow Airport, Ex parte Salamat Bibi [1976] 1 W.L.R. 979; [1976] 3 All E.R. 843, C.A.
White v. Barrett [1973] 3 W.W.R. 293.
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))

[1980] A.C. 319 Page 321

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 Bermuda Immigration and Protection Act
1956 and were to be deemed to belong to Bermuda by virtue of section 11 (5) of the Constitution of
Bermuda. The Court of Appeal declared that the children were to be deemed to belong to Bermuda by
virtue of section 11 (5) (d) of the Constitution.
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. The word
"child" used in section 11 (5) (d) of the Constitution of Bermuda does not include an illegitimate child and therefore an
illegitimate child is not entitled by section 11 (1) to reside in Bermuda as a person who is "deemed to belong to Bermuda."
The Constitution should be construed in the same way as an English statute. It is scheduled to an English statutory instrument
which was itself made under an Act of the United Kingdom Parliament; there is no authority to support a different interpretation;
and see section 102 (4) of the Constitution. The correct approach to the construction of the word "child" is that enunciated by
Lord Tucker in Galloway v. Galloway [1956] A.C. 299, 323 that prima facie "child" means legitimate child and an illegitimate
child can only be included by express words or necessary implication from the context. But see Viscount Simonds at pp. 310-311
to the contrary and Lord Radcliffe's criticism at p. 318. Lord Tucker's approach has not been criticised in any subsequent decision
although before Galloway v. Galloway there was a number of decisions which favoured the approach of Vaughan Williams L.J.
in Woolwich Union v. Fulham Union [1906] 2 K.B. 240, 246- 247 that the court is to approach with an open mind and see what
the context demands. Although it is conceded that the court cannot automatically apply the reasoning of judges when considering
one statute in construing another when the statutes are of a different class, nevertheless, the approach or starting point ought to be
the same in each case. The fact that social circumstances in Bermuda are different from 19th century England and that there is a
high proportion of illegitimate births on the island should not make any difference to the starting point for construction.
By section 100 (c) of the Immigration and Protection Act 1956 (as renumbered) the illegitimate child of a woman is protected
from deportation but the section does not extend a similar protection to the illegitimate child of a man: that omission could lead to
cases of hardship.
Assuming that Lord Tucker's approach is right there are no express words in section 11 (5) (d) and "child" means legitimate child
unless there is a necessary implication from the context that it must include an illegitimate child. It is clear from the terms of
section 1 of the
[1980] A.C. 319 Page 322
account in assessing the content of the fundamental rights and freedoms. Adopting Lord Tucker's approach and bearing in mind
that immigration is one of the factors which has to be dealt with in the public interest there is no necessary implication that
"child" must include an illegitimate child. It may be in the public interest that illegitimate children should not be allowed to enter
Bermuda.

The fact that there may be an unjustified attempt to deport a child does not assist in construing the Constitution. Lord Tucker's
approach does not go so far as to make it necessary to defy a country's international obligations as to the child's rights. The
Constitution provides by section 11 (2) that a person is only entitled to the right of freedom of movement guaranteed by section
11 if he "belongs to Bermuda." There may be other legislation which gives some protection to other classes but the use of "child"
in the Constitution is neutral and notwithstanding that there is a presumption in favour of rights there is no necessary implication
that the word must include an illegitimate child. Even if Vaughan Williams L.J.'s test were the right one, where a Constitution
does not give rights to everyone but only to a defined class, an illegitimate child would not be included when, as here, the objects
are neutral. There was a series of Constitutions in the 1960s. Some (e.g. Antigua) used the expression "belonging to" and others
(e.g., Jamaica) used "citizens." The term used picked up terms in existing legislation but in the case of Bermuda the draftsman
had to invent a list of persons "belonging to Bermuda" because they were not defined anywhere else. He had in mind
constitutions of other states where the age of majority was 18 and overlooked the fact that in Bermuda it was still 21. He could
have included illegitimate children but he did not. Where it has been necessary to include illegitimate children statutes have done
so expressly: see the Immigration Act 1938 and sections 18 (3) and 100 (c) of the Immigration and Protection Act 1956. If the
Court of Appeal is right that "child" includes an illegitimate child the Government is concerned at the implications: non-
Bermudian women who do not "belong" who have illegitimate children will be able to give the children "belonger" status by
finding a Bermudian husband.
The United Nations Declaration of the Rights of the Child 1959 is not a treaty and has no effect one way or the other on the
construction of the Constitution. The European Convention on Human Rights is not an aid to the construction or interpretation of
a United Kingdom statute (including the Constitution of Bermuda) unless there is ambiguity in the statute or uncertainty in the
law. If "child" is ambiguous then a court may look at the Convention for help: Reg. v. Chief Immigration Officer, Heathrow
Airport, Ex parte Salamat Bibi [1976] 1 W.L.R. 979, 984. It is conceded that this country is presumed to legislate in harmony
with its international obligations but if the statute is clear there is no need to look further.
Georges J.A. in the Court of Appeal was wrong to prefer Vaughan Williams L.J.'s formulation of the correct approach to
statutory construction (Woolwich Union v. Fulham Union [1906] 2 K.B. 240, 246- 247) to that of Lord Tucker in Galloway v.
Galloway [1956] A.C. 299,
[1980] A.C. 319 Page 323
323. He read too much into the expression "technical rule of law" used by Vaughan Williams L.J. at p. 246 and was wrong to
draw a distinction between status and belonging and in saying that the protection extended by the Constitution was not limited to
those persons having Bermudian status. He was also too impressed by the dissenting judgment of Lord Denning M.R. in Sydall v.
Castings Ltd. [1967] 1 Q.B. 302: the majority judgments of Diplock and Russell L.JJ. are to be preferred. Duffus J.A. was wrong
in drawing a distinction between the Constitution and an ordinary Act of Parliament and in taking the view that it was
inconceivable that the Constitution should have failed to provide for all children. The view that it would be inhumane to separate
a young child from its mother is irrelevant in construing the Constitution.
Christopher French Q.C., Julian E. S. P. Hall (of the Bermuda Bar) and Narinder Hargun for the mother and her husband.
There is no ambiguity in section 11 (5) (d) of the Constitution and the word "child" includes an illegitimate child. But if, contrary
to that submission, it is necessary to consider the context of the Constitution then the legislative and cultural context as well as
the purpose of section 11 (5) (d) displaces the prima facie meaning.
It is not an absolute rule of construction of a statute that prima facie "child" means a legitimate child. The technical rule does not
apply to statutes whose purpose is to promote the safety and upbringing of persons of tender years: see, e.g., sections 1 and 2 of
the Domestic Violence and Matrimonial Proceedings Act 1976 and 3 & 4 Wm. 4, c. 103 (Labour of Children, etc., in factories).
In White v. Barratt [1973] 3 W.W.R. 293 the approach of the Supreme Court of Alberta was the reverse of that contended for by
the Ministers. In the social context of Bermuda it is unlikely that there is a universal rule that "child" means only a legitimate
child. In Sydall v. Castings Ltd. [1967] 1 Q.B. 302, 316 Diplock L.J. was very careful in defining the class of document to which
the prima facie rule of construction applies.
The purpose of section 11 (5) (d) of the Constitution is to promote and protect the upbringing of persons of tender years (i.e.,
those under 18 who are owed a duty of parental care by someone who is entitled to reside in Bermuda). Section 11 is as wide as
section 1 of the Constitution. The use of express words in section 100 (c) of the Immigration and Protection Act 1956 is not
inconsistent with "child" in section 11 of the Constitution including an illegitimate child. If illegitimate children had been
included in section 16 of the Act of 1956 an express provision in section 100 would not have been necessary. The draftsman of
the Constitution had the Act of 1956 in mind and the omission of express words excluding illegitimate children as used in section
16 (4) (b) of the Act of 1956 was deliberate.
If section 11 (5) (d) of the Constitution is ambiguous a court may use the European Convention on Human Rights as an aid to
construction: see Reg. v. Chief Immigration Officer, Heathrow Airport, Ex parte Salamat Bibi [1976] 1 W.L.R. 979. Reliance is
placed on articles 8 and 14 of the Convention and on the United Nations Declaration of the Rights of the Child 1959: see Jacobs,
The European Convention on Human Rights (1975), pp. 125, 126, 134, 188, 226. The United Kingdom has made a declaration
under article 63 (1) of the Convention covering Bermuda. If under the
[1980] A.C. 319 Page 324
Constitution properly construed the children are not entitled to reside in Bermuda the fundamental human rights of both the
mother and her husband are infringed because although belonging to Bermuda they are inhibited in their choice of residence
through the state's interference with the children of their family.

The Constitution of Bermuda is not strictly entrenched. It may be altered by an Act of the United Kingdom Parliament.

Hall following. The mother and her husband do not concede that the Court of Appeal was correct in deciding that the children
were not deemed to possess Bermudian status by reason of their illegitimacy.
Ross-Munro Q.C. in reply. The prima facie meaning applies in statutes relating to the safety and upbringing of a child of tender
years: see Galloway v. Galloway [1956] A.C. 299, 310, per Viscount Simonds. Although in White v. Barrett [1973] 3 W.W.R.
293 the court appears to adopt the opposite approach to that contended for, in relation to wills the prima facie rule is to be applied
(see p. 296) and compare In re M. (An Infant) [1955] 2 Q.B. 479 where Denning L.J.'s approach is not far removed from that of
Lord Tucker in Galloway v. Galloway. There is a line of English authorities on which White v. Barrett does not impinge. A
comparison of section 16 (4) of the Immigration and Protection Act 1956 with section 11 (5) of the Constitution merely shows
that it would have been easy to include illegitimate children expressly. It is conceded that the European Convention on Human
Rights applies to Bermuda but since there is no ambiguity in section 11 (5) (d) of the Constitution it is not necessary to have
recourse to it. Even if there were an ambiguity the Convention would not be helpful.
Cur. adv. vult.
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 establish (i)
under the

[1980] A.C. 319 Page 325

Bermuda Immigration and Protection Act 1956, section 16 (4) that the four children are "deemed to possess and enjoy Bermudian
status" and (ii) under section 11 (5) (d) of the Constitution of Bermuda that they "belong to Bermuda" - the procedural details of
these proceedings are no longer material. At the hearing the Minister of Education gave an undertaking to reinstate the children in
recognised schools in Bermuda, and this undertaking has been honoured.
It was decided by Seaton J. in the Supreme Court that (i) the children were not entitled to Bermudian status because, although
section 16 (4) of the Act of 1956 applied to stepchildren of persons enjoying Bermudian status, and Mr. Fisher, whose
stepchildren they were, enjoyed that status, the word "stepchild" did not include an illegitimate child; (ii) that they did not
"belong to Bermuda" because the words "child" and "stepchild" in section 11 (5) of the Constitution did not include persons who
were illegitimate. On appeal, the Court of Appeal unanimously upheld the decision of Seaton J. on point (i) - namely that the
children were not deemed to enjoy Bermudian status. On point (ii) the majority held, reversing Seaton J., that the children
belonged to Bermuda. There is no appeal against the decision on point (i), and the only question left is whether the four children
"belong to Bermuda" within the meaning of section 11 of the Constitution. The appellants, the Minister for Home Affairs and the
Minister for Education, have undertaken in any event to treat the children as if, under section 100 (c) (as renumbered in 1971) of
the Act of 1956, they enjoyed immunity from deportation. The question therefore for decision is whether the word "child" in
section 11 (5) (d) of the Constitution includes an illegitimate child. The clause must first be placed in its context.
The Bermuda Constitution was brought into existence by the Bermuda Constitution Order 1968 (S.I. 1968 No. 182) made under
the Bermuda Constitution Act 1967 of the United Kingdom. It opens with Chapter I headed "Protection of Fundamental Rights
and Freedoms of the Individual." Section 1 reads as follows:
"1. Whereas every person in Bermuda is entitled to fundamental rights and freedoms of the individual, that is to say, has the right,
whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of
others and for the public interest, to each and all of the following, namely: - (a) life, liberty, security of the person and the
protection of the law: (b) freedom of conscience, of expression and of assembly and association; and (c) protection for the
privacy of his home and other property and from deprivation of property without compensation, the subsequent provisions of this
Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms subject to such limitations
of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights
and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest."
[1980] A.C. 319 Page 326
Section 11 deals with freedom of movement; the following subsections are relevant:

"(1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of movement, that is to say, the right to
move freely throughout Bermuda, the right to reside in any part thereof, the right to enter Bermuda and immunity from expulsion
therefrom. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in
contravention of this section to the extent that the law in question makes provision - … (d) for the imposition of restrictions on
the movement or residence within Bermuda of any person who does not belong to Bermuda or the exclusion or expulsion
therefrom of any such person;… (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 under a decree of a court or a deed of separation; 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."
Thus fundamental rights and freedoms are stated as the right of every individual, and section 11 is a provision intended to afford
protection to these rights and freedoms, subject to proper limitations. Section 11 states the general rule of freedom of movement,
which is to include the right to enter and to reside in any part of Bermuda, but it allows, as a permissible derogation from this
right, restrictions in the case of any person who does not "belong to Bermuda." Section 11 (5) then defines the classes of persons
who "belong to Bermuda." Among these is "the child… of a person to whom any of the foregoing paragraphs of this subsection
applies." One such person is the wife of a person who possesses Bermudian status. What is meant, in this context, by the word
"child"?

The meaning to be given to the word "child" in Acts of Parliament has been the subject of consideration in many reported cases.
One finds in them a number of general statements:

"The law does not contemplate illegitimacy. The proper description of a legitimate child is 'child.'" Reg. v. Inhabitants of
Totley (1845) 7 Q.B. 596. 600 per Lord Denman C.J.
"… the word 'child' in the Act means legitimate child." Dickinson v. North-Eastern Railway Co. (1863) 33 L.J.Ex. 91 per Pollock
C.B. similarly in 2 H. & C. 735).
Then, as society and social legislation become more varied, qualifications come to be made:

"It is of course true that that is only prima facie the meaning to be given to the word, and that a wider meaning may, in the case of

[1980] A.C. 319 Page 327

some statutes, be given to it, so as to include an illegitimate child or illegitimate children, where that meaning is more consonant
with the object of the statute." Woolwich Union v. Fulham Union [1906] 2 K.B. 240, 246-247, per Vaughan Williams L.J.
"… I do not think it necessary to refer to the authorities which establish beyond question that prima facie the words 'child' or
'children' in an Act of Parliament mean a legitimate child or legitimate children. and that illegitimate children can only be
included by express words or necessary implication from the context." Galloway v. Galloway [1956] A.C. 299, 323 per Lord
Tucker.
Founding on these statements, counsel for the appellants took as his starting point the compound proposition: (a) that we are here
concerned with the interpretation of an Act of Parliament; (b) that in all Acts of Parliament the word "child" prima facie means
"legitimate child"; (c) that departure from this meaning is only possible upon the basis indicated in the words used by Vaughan
Williams L.J. or upon that indicated in other words by Lord Tucker. Thus they invited their Lordships to consider the merits of
the two formulae, to prefer that of Lord Tucker, and in any event to say that the preferred test, or, in the last resort, either
alternative test, was not satisfied as regards the Constitution of Bermuda.

Their Lordships approach this line of argument in two stages. In the first place they consider that it involves too great a degree of
rigidity to place all Acts of Parliament in one single class or upon the same level. Acts of Parliament, particularly those involving
the use of the word "child" or "children," differ greatly in their nature and subject matter. Leaving aside those Acts which use the
word "child" apart from any relationship to anyone (in which cases "child" means simply a young person) there is a great
difference between Acts concerned with succession to property, with settlement for the purposes of the Poor Law, with
nationality, or with family matters, such as custody of children.

In cases concerned with the administration of the Poor Law, recognition is given to the existence of illegitimate children and to
their dependence upon their mother. To this extent their Lordships respectfully think that Viscount Simonds may have gone too
far when he described the common law of England as not contemplating illegitimacy and shutting its eyes to the facts of
life: Galloway v. Galloway [1956] A.C. 299, 310-311. Matrimonial law in England has increasingly diminished the separation of
illegitimate from legitimate children by adoption of the concept "child of the family." Indeed the Matrimonial Causes Act 1974,
as well as recognising the "child of the family," contains a definition of "child," in relation to one or both of the parties to a
marriage, as including "an illegitimate or adopted child of that party or, as the case may be, of both parties": section 1 (1). This is,
it is true, by way of express statutory enactment, but the fact that the separation is, for many purposes, less sharp than it was in
the last
[1980] A.C. 319 Page 328
century enables and requires the courts to consider, in each context in which the distinction between legitimate and illegitimate is
sought to be made, whether, in that context, policy requires its recognition.

In matters of succession, and the same applies to the interpretation of wills and trust instruments (see Sydall v. Castings
Ltd. [1967] 1 Q.B. 302 per Diplock L.J.), the rule that "child" means legitimate child is firmly rooted in the common law and in
the sources of the laws of property, so it has always been insisted that clear words are needed if illegitimate, or adopted, children
are to be treated in the same way as legitimate children. Instances of such clear words are becoming more frequent in modern
legislation. But even without such clear words in a statute, a movement towards a biological interpretation of the word "child,"
even in this context, is appearing: see Brule v. Plummer (unreported), January 23, 1979, Supreme Court of Canada.
In nationality Acts, which provide for acquisition of nationality by descent, the assumption is a strong one that "child" means
legitimate child: the fact that such Acts often contain a definition to this effect, and provide expressly for exceptions, for example
in favouring legitimated, or illegitimate, children, does not detract from the strength of this rule. In Bermuda, the Bermuda
Immigration and Protection Act 1956 proceeds on this basis, referring in certain places section 16 (4), 100 (c) to legitimated or
illegitimate children; and it was the existence of these express exceptions, coupled with the general rule, that led both courts
below to conclude that "stepchild," in section 16 (4) (b), did not include the illegitimate child of a Bermudian man's wife.
So far the discussion has been related to Acts of Parliament concerned with specific subjects. Here, however, we are concerned
with a Constitution, brought into force certainly by Act of Parliament, the Bermuda Constitution Act 1967 United Kingdom, but
established by a self-contained document set out in Schedule 2 to the Bermuda Constitution Order 1968 (United Kingdom S.I.
1968 No. 182). It can be seen that this instrument has certain special characteristics. 1. It is, particularly in Chapter I, drafted in a
broad and ample style which lays down principles of width and generality. 2. Chapter I is headed "Protection of Fundamental
Rights and Freedoms of the Individual." It is known that this chapter. as similar portions of other constitutional instruments
drafted in the post-colonial period, starting with the Constitution of Nigeria, and including the Constitutions of most Caribbean
territories, was greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms
(1953) (Cmd. 8969). That Convention was signed and ratified by the United Kingdom and applied to dependent territories
including Bermuda. It was in turn influenced by the United Nations' Universal Declaration of Human Rights of 1948. These
antecedents, and the form of Chapter I itself, call for a generous interpretation avoiding what has been called "the austerity of
tabulated legalism," suitable to give to individuals the full measure of the fundamental rights and freedoms referred to. 3. Section
11 of the Constitution forms part of Chapter I. It is thus to "have effect for the purpose of affording protection to the aforesaid
[1980] A.C. 319 Page 329
rights and freedoms" subject only to such limitations contained in it "being limitations designed to ensure that the enjoyment of
the said rights and freedoms by any individual does not prejudice… the public interest."

When therefore it becomes necessary to interpret "the subsequent provisions of" Chapter I - in this case section 11 - the question
must inevitably be asked whether the appellants' premise, fundamental to their argument, that these provisions are to be construed
in the manner and according to the rules which apply to Acts of Parliament, is sound. In their Lordships' view there are two
possible answers to this. The first would be to say that, recognising the status of the Constitution as, in effect, an Act of
Parliament, there is room for interpreting it with less rigidity, and greater generosity, than other Acts, such as those which are
concerned with property, or succession. or citizenship. On the particular question this would require the court to accept as a
starting point the general presumption that "child" means "legitimate child" but to recognise that this presumption may be more
easily displaced. The second would be more radical: it would be to treat a constitutional instrument such as this as sui generis,
 calling for principles of interpretation of its own, suitable to its character as already described, without necessary acceptance of
all the presumptions that are relevant to legislation of private law.

It is possible that, as regards the question now for decision, either method would lead to the same result. But their Lordships
prefer the second. This is in no way to say that there are no rules of law which should apply to the interpretation of a
Constitution. A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in
a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given
meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as
a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided
by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the
Constitution commences. In their Lordships' opinion this must mean approaching the question what is meant by "child" with an
open mind. Prima facie, the stated rights and freedoms are those of "every person in Bermuda." This generality underlies the
whole of Chapter I which, by contrast with the Bermuda Immigration and Protection Act 1956, contains no reference to
legitimacy, or illegitimacy, anywhere in its provisions. When one is considering the permissible limitations upon those rights in
the public interest. the right question to ask is whether there is any reason to suppose that in this context, exceptionally, matters of
birth, in the particular society of which Bermuda consists, are regarded as relevant.

Section 11 opens with a general declaration of the right of freedom of movement, including that of residence, entry and immunity
from expulsion. These rights may be limited [section 11 (2) (d) ] in the case of persons "not [belonging] to Bermuda" - a test not
identical with that of citizenship,
[1980] A.C. 319 Page 330
but a social test. Then, among those deemed to belong to Bermuda are (section 11 (5)) a person who

"(a) possesses Bermudian status;… (c) is the wife of [such a 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."
In their Lordships' opinion, paragraph (d) in its context amounts to a clear recognition of the unity of the family as a group and
acceptance of the principle that young children should not be separated from a group which as a whole belongs to Bermuda. This
would be fully in line with article 8 of the European Convention on Human Rights and Fundamental Freedoms (respect for
family life), decisions on which have recognised the family unit and the right to protection of illegitimate children. Moreover the
draftsman of the Constitution must have had in mind (a) the United Nations' Declaration of the Rights of the Child adopted by
resolution (1386 (xiv)) on November 29, 1959, which contains the words in principle
"[the child] shall, wherever possible, grow up in the care and under the responsibility of his parents… a child of tender years shall
not, save in exceptional circumstances, be separated from his mother."

and (b) article 24 of the International Covenant on Civil and Political Rights 1966 which guarantees protection to every child
without any discrimination as to birth. Though these instruments at the date of the Constitution had no legal force, they can
certainly not be disregarded as influences upon legislative policy.

Their Lordships consider that the force of these arguments, based purely upon the Constitution itself, is such as to compel the
conclusion that "child" bears an unrestricted meaning. In theory, the Constitution might contain express words forcing a contrary
conclusion, though given the manner in which Constitutions of this style were enacted and adopted, the possibility seems remote.
But, in fact, their Lordships consider it most unlikely that the draftsman being aware, as he must have been, of the provisions of
the Bermuda Immigration and Protection Act 1956, could have intended a limitation of the word "child" to legitimate children. In
the first place, if he had intended this limitation, he must surely, following the example of the Act of 1956, have felt it necessary
to spell it out. In the second place the concept of "belonging" of itself suggests the inclusion of a wider class: yet if the appellants
are right, those described under section 11 (5) (d) of the Constitution would largely coincide with persons having, or deemed to
have, Bermudian status. Thirdly, under section 100 of the Act of 1956, these illegitimate children would enjoy immunity from
deportation until they were 21. It seems most unlikely that such children should not be treated as "belonging to Bermuda" or that
a stricter test - in respect of their right to freedom of movement - should be imposed on such children under section 11 of the
Constitution than is imposed under the earlier Act. Their Lordships fully agree with the majority of the Court of Appeal in
regarding these points as significant although they prefer to base their judgment on wider grounds.
[1980] A.C. 319 Page 331
Their Lordships are therefore of opinion that the judgments of the majority of the Court of Appeal are right and accordingly they
will humbly advise Her Majesty that the appeal be dismissed. The appellants must pay the respondents' costs of the appeal.

Solicitors: Charles Russell & Co.; Hewitt, Woollacott & Chown.

T. J. M.