An application under the 1980 Hague Convention v Re P (A Child)
| Jurisdiction | Cayman Islands |
| Judge | Walters J. (Acting) |
| Judgment Date | 10 October 2022 |
| Docket Number | FAM 319 of 2022 L/A No. LACV0165/2022 |
| Court | Grand Court (Cayman Islands) |
Coram: Walters J. (Acting)
FAM 319 of 2022
(Formerly G 193 of 2022)
L/A No. LACV0165/2022
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FINANCIAL SERVICES DIVISION
Application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for return of child from Cayman Islands to USA, question of child's habitual residence, application of Article 13 consent and grave risks defences to order for return, extent to which protective measures are relevant to order for return .
Ms Nikue Assarpour of Priestleys for the Applicant
Ms Hayley Allister of Cayman Family Law for the Respondent
CONSIDERED ON THE PAPERS
This an application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the “Convention”). The application was made by the Applicant by way of Form C53 dated 28 August 2022 which was filed on 30 August 2022 seeking an order for the return of the parties' son 1 to the United States and, in particular, the State of New Jersey.
The matter first came before me for directions on 1 September 2022. In accordance with those directions, the parties have filed statements/affidavits and position papers. I also ordered that the parties
attend concurrent mediation. I have considered the material filed and have dealt with this matter on the papers. Due to the relative urgency of providing the parties with a decision I have made considerable use of their helpful written submissions in preparing my judgmentThe Respondent has sworn an affidavit dated 12 September 2022 which sets out in some detail the background to the parties' relationship.
The Respondent has joint Caymanian and US citizenship and the Applicant is a US citizen. The parties met in New York in 2004. The Applicant moved to Grand Cayman to live with the Respondent in March 2005 and the parties got married in Grand Cayman on 11 June 2005.
In May 2016 the parties left Grand Cayman to move to live in New Jersey. At this point, the Respondent was pregnant with their son who was born in January 2017.
On 15 March 2022 the Respondent travelled to Grand Cayman with their son with the intention of moving here permanently. She commenced divorce proceedings in the Grand Court on 30 March 2022. In her Petition, the Respondent set out the Particulars of Unreasonable Behaviour as follows:
“4(a) The [Husband] has anger issues which permeated the marriage and made life difficult for the [Wife].
(b) The parties' sense of being husband and wife has gone from the relationship.”
The Respondent unenrolled her son from school in New Jersey in April 2022.
The Applicant works in information technology and has been the main breadwinner for the family. Although the Respondent is qualified as a paralegal she has not been in regular employment recently, partly as a result of caring for their son after he was born and partly because of disruption caused by Covid. The parties have been living with their son in a rented apartment in New Jersey. A number of the Applicant's family members including his mother, aunt and cousin are also resident in the State.
It is not disputed that the parties had lived with their son in New Jersey since he was born. What is disputed is the question of whether the Applicant consented to the Respondent re-locating with their son to the Cayman Islands and whether it was agreed that, having done so, the Respondent would then file for divorce in the Grand Court.
There are also numerous allegations made by the Respondent in her affidavit dated 12 September 2022 that the Applicant was frequently drunk, took drugs, has anger issues, verbally abused her (on occasion in front of their son), sexually abused her, verbally abused their son, was financially controlling and was disinterested in their son. These allegations are specifically denied by the Applicant in his affidavit dated 16 September 2022. The parties have each produced further affidavits from family members, friends and, in the case of the Applicant, his work place manager. These support the respective positions of the party on whose behalf they were prepared.
The relevant provisions of the Convention are as follows:
“Article 1
The objects of the present Convention are -
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
Article 2
Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.
Article 3
The removal or the retention of a child is to be considered wrongful where -
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Article 4
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.
Article 5
For the purposes of this Convention -
a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
Article 14
In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
Article 16
After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.
Article 17
The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.
Article 19
A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”
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