Cox v Cox

JurisdictionCayman Islands
Judge(Ramsay-Hale, Ag. J.)
Judgment Date16 March 2006
Date16 March 2006
CourtGrand Court (Cayman Islands)
Grand Court

(Ramsay-Hale, Ag. J.)

COX
and
COX

Ms. S.A. Brooks for the applicant;

Ms. D.J. Campbell for the respondent.

Cases cited:

(1) G (A minor) (Enforcement of access abroad), Re, [1993] Fam. 216; [1993] 1 FLR 669, dicta of Butler-Sloss, L.J. applied.

(2) J (A minor) (Abduction), In re, [1990] 2 A.C. 562; [1990] 2 All E.R. 961, applied.

(3) McKee v. McKee, [1951] A.C. 352; [1951] 1 All E.R. 942, dicta of Lord Simonds applied.

(4) P (A Child) (Abduction: Custody rights), In re, [2005] Fam. 293; [2004] 2 FLR 1057; [2004] 2 F.C.R. 481; [2004] EWCA (Civ.) 971, considered.

(5) P (G.E.) (An infant), Re, [1965] Ch. 568; [1964] 3 All E.R. 977, applied.

(6) Thompson v. Thompson, [1994] 3 S.C.R. 551, considered.

Legislation construed:

Matrimonial Causes Law (2005 Revision), s.7(3): The relevant terms of this sub-section are set out at para. 12.

Convention on the Civil Aspects of International Child Abduction (The Hague, October 25th, 1980) as incorporated by the Child Abduction and Custody (Cayman Islands) Order (S.I. 1997/2574), art. 3: The relevant terms of this article are set out at para. 8.

Family Law-children-custody-Grand Court has inherent jurisdiction as parens patriae over custody of children habitually resident in Islands-not bound by order of court of jurisdiction in which previously resided made after lawful relocation to islands

Conflict of Laws-recognition of foreign proceedings-foreign custody order-not obliged to recognize child custody order of court of child”s former habitual residence if made after lawful relocation to Cayman Islands-Matrimonial Causes Law, s.7(1) inapplicable to custody orders made in matrimonial proceedings-comity only requires ‘grave consideration’ of foreign order, not automatic enforcement, particularly where welfare of child affected

The applicant father sought the recognition and enforcement of custody orders made by a Texas court.

The parties had been married and resided together with their son in Texas. In 2002 they were divorced in a Texas court, the decree awarding joint custody of the child, with care and control to the mother. The decree restricted the residence of the child to the school district in which he was enrolled for as long as child support was due and payable.

In October 2004, the geographic restriction was no longer in place, and the mother relocated to the Cayman Islands bringing the child with her. In April 2005 the mother filed her Texas decree with the Grand Court and asked that the order be ‘mirrored’ here, save that the reference to the child”s primary residence be changed to reflect that the child was now resident in the Cayman Islands. In June 2005 the Texas court granted the father”s motion to restrict residence and ordered that the child”s residence be restricted to his county of residence in Texas, and the child be returned to the United States by August 1st, 2005. In July 2005 the mother was awarded interim custody by the Grand Court. The father subsequently obtained an injunction and temporary custody in an order from the Texas court which required the mother to deliver the child to the United States immediately.

The mother sought a final order for custody from the Grand Court, which agreed to decide as a preliminary point whether it had jurisdiction to vary orders relating to the child. The mother submitted that (a) the court had inherent jurisdiction as parens patriae to make such an order

since the child was now ordinarily resident in the Cayman Islands; (b) this jurisdiction was not affected by the orders of the Texas court as he had not been wrongfully removed from his previous habitual residence in Texas-his mother had care and control of him, there were no express geographical limitations remaining on his residence and no evidence to suggest that Texas law implied a restriction on removing him from the country into the first order; (c) although the Texas court plainly had jurisdiction to make the original orders, it had been wrong to treat the child as remaining habitually resident in Texas once he had moved to the Cayman Islands and its subsequent orders were therefore made in excess of its jurisdiction, and comity did not require that the Cayman court recognize and enforce them; (d) if comity did apply, it required only the ‘grave consideration’ of the Texas orders, not their automatic enforcement and as the welfare of a child was affected, they should not be enforced without first hearing further evidence; (e) the Hague Convention on the Civil Aspects of International Child Abduction was not applicable to this case because the father did not have sufficient rights to restrict the movement of the child for the initial removal to have been wrongful; and (f) the court was not required to recognize orders of a foreign court relating to children of a marriage, as the Matrimonial Causes Law...

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