AM, In re

¶ IN THE GRAND COURT OF THE CAYMAN ISLANDS FAMILY DIVISION CAUSE NO. FAM 36 OF 2013 IN THE MATTER OF AM Appearances: Ms. Sonia Bush of Sonia Bush & Associates for the father, AEM. Before: Hon. Justice Richard Williams Heard: 19 January 20 16 _.------- Transcript of Ex Tempore -$ Ruling provided: 19 January 20 16 /- EX-TEMPORE RULING The Background

¶ [1] This matter comes before me this afternoon in my capacity as the Judge responsible for the Family Division of the Grand Court and also due to my being The Hague Convention Network Judge for the Cayman Islands.

¶ [2] Due to the requirement for a prompt decision to be made, I give this in the form of an Ex-Tempore Ruling. A copy of this oral ruling will be transcribed and copies provided later on this afternoon to the parties. Additionally, I permit copies of the judgment to be provided to the parties' attorneys and the Court in any related 1601 19 In re AM - Ex Tempore Ruling Page 1 of 12 1 proceedings that may be brought in Jamaica. Most regrettably, Jamaica is still not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention). I am not aware of any bilateral agreements in force between Jamaica and the United Kingdom and her Territories concerning international parental child abduction. I believe that custody/residence orders and judgments of foreign courts are not automatically enforced in Jamaica, but may be formally recognised by a Jamaican Court. The father will need to obtain legal advice from an attorney in Jamaica. This matter concerns AM (female), born on 8 September 2005 and who is, therefore, 10 years old. AM is a Caymanian national and has resided in the Islands until the mother removed her on or around 24 December 2015. Her parents were married on 24 July 2004. There are ongoing divorce proceedings commenced by the mother in the Cayman Islands which have not concluded as there remains to be resolved a jurisdictional issue as the father contends that a decree absolute was properly obtained by him in Jamaica on 26 November 201 0. AEM, the child's father, is a Caymanian national and MM, the mother, is a Jamaican national, but she holds Permanent Residency status here. At paragraph 3 of her Divorce Petition filed on 27 February 2013, MM pleads that she is domiciled in the Cayman Islands and in paragraph 5 of her verifying affidavit-she 160 I 19 In re AM - Ex Tempore Ruling Page 2 swore on 27 February 201 3 she states that she has been living here for more than 9 years, in other words throughout the relevant child's life. On 16 September 2014 a Court Welfare Officer's Report was requested from the Department of Children and Family Services into the issue of shared residence and contact, applications to be determined within the ongoing divorce proceedings. On the same date, by consent, a prohibited steps order was made prohibiting either party from removing the child from the jurisdiction without the written consent of the other party or order of the Court. That order did not have an expiry date and remains in force. As the mother has removed the child from the jurisdiction without the father's consent or an order of the Court she is fundamentally in breach of this order of the Grand Court. On 17 December 2014 the parties signed an Agreement witnessed by Lucille Bodden, the social worker tasked with preparing the Court Welfare Report. This Agreement is important, as it clearly illustrates that the parties recognised the importance of both parents to AM and the need for both of them to be involved in making decisions about the child's future. The Agreement highlights that there was a clear understanding and recognition that neither parent could act unilaterally when making important decisions concerning the child. The parties stated in the Agreement: 1601 19 In re AM - Ex Tempore Ruling PagF3 of 12 " I . We realise that our child loves both of us and that it is important for us to be involved in her lik; consequently, we agree that both o f us have parental res-ponsibility and will be involved in making decisions about the care of our dauphter' as she is at an impressionable age.

¶ [2] We agree that our daughter will reside with (the mother), while (the father) has liberal access, more speciJically every day ajler school until approximately 6 PM and every other weekend from Friday until Sunday afrer church. In addition, there will be room forflexibility by both ofzis should there be a need.

¶ [3] We agree that the other parent will care for the child fully in the event the other parent has to travel.

¶ [4] We agree that our daughter will not be subjected to the adult matters and any animosity between w.

¶ [5] We agree to return to the Department of Children and Family Services for mediation ifproven necessary." In the spirit of the Agreement, when the matter came back before the Court on 18 December 2014, by consent, a Residence Order was made in relation to AM in 20 favour of her mother. By consent, liberal and flexible contact was ordered 2 1 between AM and her father. It was agreed in the same order that the husband 22 would pay $450 per month child maintenance, and this was increased to $525 per 23 month in the order of McMillan J. made on 28 May 2015. Under the Children 24 Law (2012 Revision) ("the Law") married birth parents always have and share 2 5 parental responsibility for their child. ,,--=---- , ' My emphasis by underlining. 1601 19 In re AM - Ex Tempore Ruling ' \'Pige80f 12 1 The Application 2

¶ [8] The father seeks orders as a consequence of the alleged wrongful removal and 3 retention of AM in Jamaica since 24 December 2015. The particulars of and the 4 factual basis for the application are set out in the father's affidavit sworn and filed 5 today. The father's evidence is that the mother removed AM without his 6 permission and that he had no idea she was leaving with AM. The father states 7 that the mother has no intention of returning AM to the Cayman Islands, where 8 the child has lived throughout her life. 9 10

¶ [9] The father seeks orders (i) determining the habitual residence of the child; (ii) for 11 the immediate return of AM to the jurisdiction; (iii) residence in his favour and (iv) supervised contact for mother with AM. I will also consider making an order 13 1 (i) confirming the prohibited steps order to prevent the removal of AM from the 14 * /jurisdiction, especially as under newly adopted procedures any such order has to be registered with the Immigration Department. Having regard to the mother's 16 flagrant breach of the Consent Prohibited Steps Order, I will also consider 17 whether to order the suspension of the existing child maintenance order made by 18 this Court. 19 20

¶ [10] Ex-Parte Orders of this nature are Draconian and are ordinarily made only in 2 1 exceptional circumstances, based on sufficient evidence filed by the Applicant. A 22 determination is made by the Judge based on the evidence placed before him by 1601 19 In re AM - Ex Tempore Ruling Page 5 of 12 1 an applicant in the absence of any representations from the other party. Therefore, an applicant has a clear duty to assist the Judge and provide the Court with full and frank disclosure of the evidence, in other words, he has a high duty of candour. A failure to do so would ordinarily be grounds for a discharge of the order. An applicant at an ex parte hearing should, if aware of it, outline to the Judge any defence the respondent would likely argue if they had been in attendance. For example, if the father had knowledge that the mother intended to return AM to the Cayman Islands. I note that, in a "WhatsApp" message exhibited to the father's affidavit and sent on 5 January 201 6 to him by the mother after he had requested details about when AM would be returning to the jurisdiction, she made it clear that she was not coming back to Cayman and had relocated to Jamaica, primarily for education reasons. She said that he was free to visit, but ended the message by saying "...wherever I go my daughter will go to. " When I today consider the father's Ex Parte Application before me I am acutely aware of the obligation placed upon the applying party and the Court at such hearings. Mostyn J. in UL v BK [2013] EWHC 1735 (Fam) sets out his concerns about the overuse of ex-parte applications and the duty placed on the applying party. Although that is a case dealing with freezing injunctions made within divorce proceedings, the general principles arising out of his review of the case law are insightful when considering Children Law applications. 1601 19 In re AM - Ex Tempore Ruling i -* I \ ' " Page 6 of 12 1 Habitual Residence I am aware of the following case law. Due to the urgency of the situation, I herein set out my review of the case law in my decision in CMS v RGS Fam 177 of

¶ [2013] Therein I stated that it is the habitual residence immediately before a wrongful removal or retention that is the determining factor when considering habitual residence: RE S (A Minor) (Abduction) [I9911 2 FLR 1 & Re F (Minors) (Abduction: Habitual Residence) [ 1 9921 2 FCR 5 95. The legal principles in relation to habitual residence are helpfiilly set out by Mrs. Justice Pauffley in FT and NT (Children), Re [2013] EWHC 850 (Fam) when she states that: "2. Habitual residence is a question offact to be determined by the trial judge. He or she should normally stand back from the evidence and take a general view, rather than conducting a dj- - c- -. /t - t\'- microscopic search. An appreciable period of time and a settled , intention will be necessary to enable a person to become habitually ' ' resident in country B as opposed to country A. ,. r- 1,-

¶ [3] The requested period of time is not fixed and will depend upon the facts of each case. Bringing possessions, doing everything to establish residence before coming, having a right of abode, seeking to bring family, durable ties with country of residence or intended residence and many other factors have to be taken into account. Habitual residence may be acquired despite the fact that a move may only have been temporary or on a trial basis. A month has been held to be 'an appreciable period of time ' though that has been described as 'the high watermark' in a case where the Court 1601 19 In re AM - Ex Tempore Ruling Page 7 of 12 of Appeal upheld the trial judge's finding that six weeks was sufficient to result in the acquisition of a new habitual residence.

¶ [4] In relation to 'settled intention' it has been said that there must be a degree of settled purpose. The purpose may be one or there may be several. It may be speciJic or general.

¶ [5] The habitual residence o f young children of married parents all living together as a family is the same as the habitual residence of the parents themselves and neither parent can change it without express and tacit consent of the other or order o f the court. " 2 Millett L.J. stated in Re M (Abduction: Habitual Residence) ( 1 996)l FLR 887: "Where both parents have parental responsibility, neither ofthem can unilaterally change the habitual residence of the child wrongfidly and in breach of the other party S rights: Re J. at 572 and 449 respectively per Lord Donaldson, MR. " In the Court of Appeal decision of ZA & Anor v NA [2012] EWCA Civ 13 Patten L.J. said at paragraph 52: ".... Whether one treats both parents or only the mother as having the care and control of the children, it is well established that the habitual residence of the children cannot be changed by the unilateral action o f one parent, which is not consented to, or acquiesced in by the other. This would be a charter for abduction. The forced retention of the children in Pakistan cannot therefore found the basis of a claim that by passage of time and their inevitable involvement in family I@ and education in Pakistan the ,---". , f i r , ; older children have ceased to be habitually resident in Englan-' " ' - My emphasis. 1601 19 In re AM - Ex Tempore Ruling % . ' <'., .-.,A' Page 8 of 12- 1

¶ [16] Even though the mother has parental responsibility, she is not able to take 2 unilateral action to remove AM from the Cayman Islands. AM has resided in the 3 Cayman Islands throughout her life. It is clear, from an objective view of the facts 4 of this case, that before the mother's unilateral actions in relation to AM that she 5 was and is habitually resident in the Cayman Islands. It is also important to note 6 that the mother clearly accepts that the Cayman Islands is the appropriate 7 jurisdiction to determine any issues concerning AM, because it is she who has 8 brought the still ongoing divorce proceedings in which she plead that she was 9 domiciled in the Cayman Islands and in which she has sought and agreed to the 10 making of Children Law orders in relation to AM. 11 12

¶ [17] AM'S habitual residence cannot change unless all of those with parental 13 responsibility create a change, for instance.that they arranged for the child to live 14 in settled circumstances in Jamaica, or for example themselves moving to the 15 Jamaica for a settled purpose. What is important is that they changed the habitual 16 residence voluntarily. It is important not to elevate the test into a domicile or 17 quasi-domicile test because habitual residence is a question of fact. Consent, 18 agreement, acquiescence, acceptance of each of those with parental responsibility 19 is crucial because of the requirement that residence must be "voluntary" to be 20 habitual. If it is not voluntary, it cannot be said to have been settled. Accordingly, 2 1 admittedly only on the evidence currently before me and without havinehe "4 ,/ -- P 1601 19 In re AM - Ex Tempore Ruling 1 benefit of hearing from the mother, I find that AM remains habitually resident in 2 the Cayman Islands. 4

¶ [18] I am satisfied that the mother has wrongfully removed AM from the Cayman 5 Islands in breach of the custody rights attributed to the father who has parental - 6 responsibility. j pr=- Orders

¶ [19] Accordingly, I make a specific issue order requiring the mother to return AM immediately to the jurisdiction. A penal notice is attached to this order.

¶ [20] I suspend the Order of 28 May 2015 requiring the father to make child maintenance payments of $525 per month into the Court Funds Office until further order.

¶ [21] I make a new prohibited steps order, which upon AM'S return to the jurisdiction, prohibits anybody from removing her from the jurisdiction without an order of the Court. A penal notice addressed to both parties is attached to this part of the order.

¶ [22] I have carefully considered the father's application for an ex parte residence order. I am satisfied that due to the circumstances surrounding the removal of AM, on the evidence before me, that this case falls into one of those exceptional 1601 19 In re AM - Ex Tempore Ruling Page 10 of 12 circumstances for the making of an ex parte interim residence order mentioned by Butler - Sloss L.J. in Re G (Minors) (Expcrrte interim residence order) (1993) 1 FLR 9 10 at 91 2D when she stated: "In my judgment, it is very rare indeed that it is necessary to have --e* - <P,\ AP -%\ an ex parte interim residence order. The only situation I can think (6 - ?. JI4 of is where there is a "snatch" situation - child abduction. There - b obviously will ji-om time to time be other exceptional ?" circumstances in which it is necessary for the protection of the children that there should be an exparte order. " When considering whether to make the prohibited steps order and the interim residence order, I have considered the contents of the welfare checklist set out in s.3(3) Children Law (2012 Revision). In particular, I am satisfied that, in the interim, this 10 year old female child's physical and emotional needs can be met by AEM. Having regard to all of the circumstances of this case, including the fact that it is an abduction case, I am satisfied that an interim residence order and the aforementioned prohibited steps order are required to give certainty which would be in the best interests of AM, which are paramount. I have considered the no order principle contained in s.3(5) Children Law (2012 Revision). I60 I19 In re AM - Ex Tempore Ruling Page 1 1 of 12 1

¶ [25] Upon the mother's return to the jurisdiction I order that she will have regular and 2 flexible contact with the AM. It would not be in the child's best interest to have restricted supervised contact with the mother. With the orders I have put in place and the newly established procedures with the Immigration Department when a prohibited steps order has been made preventing removal from the jurisdiction, there is no need for supervision.

¶ [26] I give leave to the mother to apply to vary or discharge these orders on 48 hours' notice (excluding weekends and public holidays) to the father. The mother must personally attend the hearing of any application she makes. Dated this 1 9th da of January 20 16. A ..................................................................................... 4 The Honourable Mr Justice Richard Williams JUDGE OF THE GRAND COURT The judgment was delivered in private, but the Judge hereby gives leave for it to be published. The judgment in this matter is being distributed on a strict understanding that in any report no person other than the attorneys (and any other person identified by name in the judgment itself) may be identified by name or location and in particular the anonymity of the child and the adult members of their family must be strictly preserved. 1601 19 In re AM - Ex Tempore Ruling Page 12 of 12