Weeks v Williams

• Jurisdiction: Cayman Islands
• Judge: (Kellock, Ag. J.)
• Judgment Date: 17 March 2003
• Date: 17 March 2003
• Court: Grand Court (Cayman Islands)

Grand Court

(Kellock, Ag. J.)

WEEKS

and

J.C. WILLIAMS and P.B. WILLIAMS

S.T. McCann and L.A. Freeman for the plaintiff;

I.D. Connell and Ms. Z.M. Merren-Chin for the defendants;

Ms. S.M. Look Loy, Crown Counsel, for the Attorney General.

Cases cited:

(1) H (Child Abduction: Child of Sixteen), Re, [2000] 2 FLR 51; [2000] 3 F.C.R. 404, referred to.

(2) K (Abduction: Child”s Objections), Re, [1995] 1 FLR 977; [1995] 3 F.C.R. 473, dicta of Wall J. applied.

(3) M (Minors) (Child Abduction), Re, [1994] 1 FLR 390; [1994] 2 F.C.R. 750, dicta of Butler-Sloss, L.J. applied.

(4) N (Minors) (Abduction), Re, [1991] 1 FLR 413; [1991] F.C.R. 765, dicta of Bracewell J. applied.

(5) N v. N (Abduction: Article 13 Defence), [1995] 1 FLR 107; [1995] 1 F.C.R. 595, dicta of Thorpe J. applied.

(6) S (A Minor) (Abduction), Re, [1993] 2 All E.R. 683; sub nom. S. v. S (Child Abduction) (Child”s Views), [1992] 2 FLR 492, referred to.

(7) S (A Minor) (Abduction) (Joint Custody), Re, [1991] 2 FLR 1; [1991] 1 F.C.R. 656, dicta of Purchas, L.J. referred to.

Legislation construed:

Child Abduction and Custody (Cayman Islands) Order 1997 (S.I. 1997/2547), Schedule 1, Appendix A (Convention on Civil Aspects of International Child Abduction), preamble: The relevant terms of the preamble are set out at para. 22.

art. 3: This article is set out at para. 25.

art. 11: The relevant terms of this article are set out at para. 25.

art. 12: The relevant terms of this article are set out at para. 25.

art. 13: The relevant terms of this article are set out at para. 25.

art. 18: The relevant terms of this article are set out at para. 25.

art. 19: The relevant terms of this article are set out at para. 23.

Family Law-children-abduction by parent-court may refuse order under Hague Convention on Civil Aspects of International Child Abduction, art. 12 if child ‘settled’-‘settled’ to be given ordinary and natural meaning, involving physical establishment in community and emotional security-artificial to consider child under 10 to be ‘settled’-insecure immigration status of abducting parent overrides ‘settlement’ of child

Family Law-children-abduction by parent-court has overriding discretion under Hague Convention on Civil Aspects of International Child Abduction, art. 18 to ignore all circumstances (e.g. delay in bringing proceedings and ‘settlement’) stemming directly from wrongful abduction and actions of abductors

Family Law-children-abduction by parent-burden of establishing conditions on which court may refuse to return child under Hague Convention on Civil Aspects of International Child Abduction, art. 13 heavy and rests on abductor

The plaintiff applied for an order directing the return of his two minor children to the United States.

The plaintiff and his ex-wife (the first defendant) divorced in 1997 whilst they were living in Georgia. The US court granted them joint custody of their two minor children and made an access order setting out visitation rights for the plaintiff, but he found it difficult to exercise those rights after the first defendant married the second defendant. The plaintiff brought proceedings against the first defendant in the United States for contempt of court in not allowing access and in October 2000 applied for sole custody of the children, who were both aged under 10. The defendants removed the children to Grand Cayman and severed all links with the United States, intending to end contact with the plaintiff permanently. The defendants concealed the children and it was only by chance that the plaintiff discovered their whereabouts in 2003. Meanwhile, the defendants had obtained work permits in the Islands, although these were close to expiry, and it had come to light that the second defendant had falsified evidence on his permit application and therefore faced possible deportation. The first defendant”s immigration

status, as a dependant of the second defendant, was therefore uncertain. The first defendant had made unfounded allegations of violence against the plaintiff and it appeared that she and the second defendant were encouraging the children to form a negative view of their father.

The plaintiff made the present application in March 2003, for the return of his children to the United States, under the Hague Convention on Civil Aspects of International Child Abduction, which provided that if less than one year had elapsed since the removal of the children, the court had normally to order their immediate return. However, once a greater length of time had passed, arts. 12 and 13 established additional criteria for the return of the children including whether return might expose them to an intolerable risk of harm, and whether they were ‘settled’ in their new environment.

The plaintiff submitted that (a) the application had been brought more than one year after the removal of the children from the United States because of their successful concealment by the defendants, who should not be permitted to benefit from this deception; (b) art. 18 of the Convention provided an overriding discretion to order the return of the children to the United States despite the length of time since their removal, and therefore overrode arts. 12 and 13; (c) the children were not ‘settled’ in Grand Cayman within the meaning of art. 12 as they were too young and because of the precarious basis of the defendants” residence in Grand Cayman; (d) any issue of abuse could properly be left to the courts in Georgia to be resolved on the children”s return there; and (e) moreover, if the court were to consider the children”s wishes to return to the United States, it should also bear in mind the evidence that the children showed signs of indoctrination.

The defendants submitted in reply that (a) as the children had been living with them in Grand Cayman since 2000, the court should not automatically order their return, but should consider the additional factors listed in arts. 12 and 13; (b) the children were now ‘settled’ in Grand Cayman, within the meaning of art. 12, and the defendants provided a stable environment for them; (c) furthermore, in accordance with art. 13, the court should consider the children”s wishes not to return to the United States, and give due weight to those wishes; and (d) the court should refuse to grant the order sought by the plaintiff because the children would be at risk of harm if they were returned to him.

Held, granting the order:

(1) Article 12 of the Convention provided that a court could refuse to make an order returning the children to the United States if it considered the children to be settled in Grand Cayman. ‘Settled’ was to be interpreted in light of its ordinary and natural meaning, and denoted both a physical element of being established in a community and an emotional element of security and stability, which were more than merely transient. Given that the children in this case were both under 10 years old, it was somewhat artificial to consider them ‘settled,’ as they were too young

and children of that age did not establish roots in an adult way. The children were therefore not sufficiently settled in Grand Cayman to justify refusing the order. Moreover, given the insecure basis of the defendants” work and residence permits, and therefore of their continued residence in the Islands, the court would have granted the order sought regardless of the children”s ‘settlement’ (paras. 35–36; para. 39).

(2) The reasons for the plaintiff”s delay in bringing this application were relevant to the exercise of the court”s discretion to grant the order. As abductors, the defendants could not rely on their own success in concealing the children”s whereabouts in order to prevent their return to the United States. The duty of the court to return the children was almost absolute, and art. 18 of the Convention gave the court an overriding discretion to discount, or ignore altogether, circumstances (e.g. the ‘settlement’ of the children) which stemmed directly from the wrongful abduction and other actions of the abductors. Therefore, in granting the order sought, little emphasis would be placed on the fact that the children had been living in Grand Cayman since 2000, since this was the result of the defendants” severing all ties with the United States (para. 27; para. 39).

(3) The first defendant alleged that if the children were returned to their father they would be at risk of harm, and the order sought should therefore be refused, as stipulated in art. 13. The burden of establishing the conditions in which the court might refuse to return the children was a heavy one, and rested on the first defendant. In this case, the allegation of violence on the part of the plaintiff appeared to be unfounded. Comity required, however, that the Grand Court, having made the order returning the children to Georgia, should trust the courts in that jurisdiction to step in to protect the children if the mother could prove cause. The order would therefore not be refused on these grounds (paras. 30–31).

(4) Although the court had been asked by the defendants to take into account the wishes of the children, in accordance with art. 13 of the Convention, it had not in fact heard from them directly, either as witnesses or in an interview in chambers, and there was no mention of their wishes in the social inquiry report. The court had therefore not been able to assess their wishes, nor decide what weight, if any, should have been accorded to them (para. 45).

1 KELLOCK, Ag. J.:

The application

The application is made pursuant to the Child Abduction and Custody (Cayman Islands) Order 1997. This Order extends to the Cayman Islands the Child Abduction and Custody Act 1985 of the United Kingdom as modified in the Schedule to the instrument. As a result, the Convention on the Civil Aspects of International Child Abduction, which was signed at The Hague on October 25th, 1980...