Re Ayf
| Jurisdiction | Cayman Islands |
| Judge | (Graham, J.) |
| Judgment Date | 06 November 2001 |
| Date | 06 November 2001 |
| Court | Grand Court (Cayman Islands) |
(Graham, J.)
H.G. Robinson for the plaintiff;
Ms. A.M. Wild for the defendant;
Ms. S.M. Look Loy, Crown Counsel, for the Cayman Central Authority.
(1) H (Minors) (Sexual abuse: Standard of proof), In re, [1996] A.C. 563; [1996] 1 All E.R. 1; [1996] 1 FLR 80.
(2) J (A Minor) (Abduction: Custody Rights), In reELRUNK, [1990] 2 A.C. 562; [1991] F.C.R. 129; sub nom. C v. S (Minor: Abduction: Illegitimate Child), [1990] 2 All E.R. 961, dicta of Lord Brandon of Oakbrook applied.
(3) M (Minors) (Residence Order: Jurisdiction), Re, [1993] 1 FLR 495; [1993] 1 F.C.R. 718, dicta of Hoffmann, L.J. applied.
Child Abduction and Custody (Cayman Islands) Order 1997 (S.I. 1997/2547), Schedule 1, Appendix A (Convention on Civil Aspects of International Child Abduction), art. 1: The relevant terms of this article are set out at para. 9.
art. 3: The relevant terms of this article are set out at para. 11.
art. 4: The relevant terms of this article are set out at para. 14.
art. 13(b): The relevant terms of this paragraph are set out at para. 15.
Family Law-children-abduction by parent-jurisdiction-for purposes of Convention on Civil Aspects of International Child Abduction, art. 4, habitual residence prior to abduction requires residence in relevant country together with fixed intention to reside there-shorter period of residence suffices as habitual if native country and family home
Family Law-children-abduction by parent-risk of harm to child-no presumption of risk of physical or psychological harm to child, within meaning of Convention on Civil Aspects of International Child Abduction, art. 13(b), through being returned to country whose courts traditionally favour own nationals in custody and access matters
The plaintiff applied for an order for the return of his daughter to Germany by his Cuban wife.
The parties, a German and a Cuban national respectively, were married in Havana in 1999 and moved to Hamburg to live. The wife spoke only Spanish. Their daughter, A, was born there and thus obtained German nationality. The marriage broke down and in January 2001 the mother left Germany with A, then aged 6 months. She went to live in Cuba where her son from a former marriage lived with her parents. The father wrote to her shortly after her departure accepting that A should live with her in Cuba and that a divorce was inevitable.
In July, the mother obtained a divorce in Cuba without notifying the father or informing the court of A”s existence. Despite the father”s efforts through the German Embassy in Cuba to ensure that his daughter remained there, the mother came to the Cayman Islands in August with A to marry a British national working here.
The father requested the return of A under the Hague Convention on Civil Aspects of International Child Abduction, and an ex parte application was made to the court by the Cayman Central Authority to that effect. A was made a ward of court, with care and control given to the mother and access for the father on his arrival in the Islands.
The father submitted that (a) the court had jurisdiction to order the return of A under the Convention, on the basis that she had still been habitually resident in Germany when her mother brought her to the Cayman Islands; (b) the mother and A had not become habitually resident in Cuba (which was not a party to the Convention), since (i)
they had left Germany on a return ticket, (ii) they had spent only seven months in Cuba, (iii) the mother had applied for permission from the Cuban state to travel abroad, (iv) A had not been made a Cuban citizen, and (v) the mother had discussed a reconciliation with him; (c) since A had been in the parties” joint custody and the father had not consented to her being removed from Cuba, the mother had brought A here in breach of his parental rights; and (d) there was no risk that A would suffer physical or psychological harm or be placed in an intolerable situation, within the meaning of art. 13(b) of the Convention, by being returned to Germany.
The mother submitted in reply that (a) the court had no jurisdiction to order A”s return to Germany, since A had been habitually resident in Cuba immediately before her allegedly wrongful removal to the Cayman Islands; (b) the evidence adduced by the father did not disprove her intention to establish habitual residence in Cuba, since (i) she had travelled on a return ticket for reasons of economy and against her own wishes, (ii) the duration of their stay was not crucial given that Cuba was her native country, (iii) she had applied for a travel permit only to allow A to visit her father in Germany, (iv) she had been advised that an application for Cuban citizenship for A might jeopardize A”s chances of being granted a travel permit, and (v) discussions with the father about reconciliation had quickly broken down; and (c) since the German courts were well-known for refusing custody or even unsupervised access to non-German parents, returning A to Germany would probably deprive her of contact with her mother, thus subjecting her to psychological harm and placing her in an intolerable situation.
Held, dismissing the application:
(1) The court was satisfied that the parties had joint custody of A under Cayman law. This issue did not have to be proved as a matter of German law, since in a case involving the Convention on Civil Aspects of International Child Abduction, if the law of the relevant country was not proved, English law (i.e. Cayman law) applied. Furthermore, the father had shown that the mother had removed A from Cuba without his expressed or implied consent and therefore in breach of his custody rights (para. 8; paras...
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