AF, In re - Ex Tempore Judgment

¶ 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 FAMILY DMSION CAUSE NO. FAM 163 of 2013 5 IN THE MATTER OF AF 7 Appearances: Mr Connor Fee of Sampson and McGrath for ADF 8 . 9 Before: Hon. Justice Richard Williams 10 11 Heard: 29 July 2014 12 13 14 15 EX- TEMPORE JUDGMENT 17 The parties and the applications 18

¶ [1] This matter comes before me in my capacity as the judge responsible for the 19 Family Division of the Grand Court and also due to my being the Hague 20 Convention Network Judge for the Cayman Islands. 22 2. Due to the requirement for a prompt decision to be made, I give this in the form of 23 an ex tempore judgment. A copy of this oral ruling will be transcribed and copies 24 provided to the parties. Additionally, I permit copies of the judgment to be 25 provided to the parties' attorneys and the Court in any related proceedings that 26 may be brought in the United Kingdom and to the Central Authorities of the 140729 In the matter of AF - Ex Tempore Judgment Cayman Islands and the United Kingdom involved in any Hague Convention procedure concerning the relevant child. This matter concerns AF (female), born on 22 February 2013 and who is, therefore, aged 17 months. AF is a Caymanian national and has resided in the Islands until the mother removed her on or around 8 July 2014. Her parents are unmarried. ADF, her father, is a Caymanian national and SM: the mother, is also a Caymanian national, but she may also hold a United Kingdom passport. The father states that the mother had lived in England for five years prior to AF's birth and that she has a 5 or 6 year old child who was born in England and whose father is English. Under the Children Law (2012 Revision) ("The Law") the birth mother always has parental responsibility for the child. Pursuant to section 4 (2) (b) (i) of the Law the father has parental responsibility for AF as he, along with the mother, registered her birth. The father seeks orders as a consequence of the alleged wrongful removal and retention of AF in the United Kingdom since 8 July 2014. The application is brought in the existing Children Law proceedings. The particulars of and the factual basis for the application are set out in the father's C3 Form and his affidavit sworn on 29 July 2014, both of which been filed today. The father seeks orders for (i) the immed~ate return of AF to the steps order to Page 2 of 14 140729 In the matter of AF - Ex Tempore Judgment thereafter prevent the removal of the AF from the jurisdiction, (iii) an interim residence order in his favour and (iv) the suspension of the consent child maintenance order made by this Court on 21 January 2014. The father also seeks a declaration that AF is habitually resident in the Cayman Islands and that she has been wrongfully removed by the mother, without his knowledge or consent. Ex-parte orders of this nature are Draconian and are ordinarily made only in exceptional circumstances, based on sufficient evidence filed by the Applicant. A determination is made by the Judge based on the evidence placed before him by 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 AF to the Cayman Islands. 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 120131 EWHC 1735 (Fam) sets out his concerns about the overuse of ex-parte applications and the duty placed on the applying Page 3 of 14 140729 In the matter of AF - Ex Tempore Judgment 1 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. Background

¶ [8] On 13 August 2013 the father filed his C1 Form seeking a contact order and "joint custo&" in relation to AF. In the application form he noted that it had been agreed between the parents that AF would spend one day a week with him. In the form he stated that the mother stopped allowing these visits because she did not want his girlfriend around AF. In the application he expressed a willingness to attend mediation.

¶ [9] His application came before me on 16 September 2013 for a first appointment hearing. To their credit, the parties were able to reach a consent order, whereby AF was to have contact with the father every Sunday between loam to 5pm. It was agreed that the father would pay on the first day of each month $300 child maintenance until AF reached the age of 18 or ceased full-time education (up to the age of 21) whichever is the later. It was also agreed that the parties would equally share any medical, optical and dental expenses not covered by the mother's family health insurance policy. Page 4 of 14 140729 In the matter of AF - Ex Tempore Judgment My notes from the hearing reflect that there was an evident communication problem between the parties. The mother expressed some issues that she had in relation to the father's girlfriend, with whom he cohabited. The notes reflect that it was agreed that the father would afford the mother an opportunity to visit his new premises and to meet with his cohabitee. On 23 December 2013 the father filed a Form C3 in which he contended that the mother was breaching the contact order by preventing contact taking place. He was seeking the Court's assistance to ensure compliance with the court contact order. That application came before me on 21 January 2014. My notes from that hearing reflect that the mother was contending that the father had moved to a new property without notifying her where he was living and that he had failed to introduce her to his cohabitee. The father contended that the mother had unilaterally ceased contact and had failed to take up the opportunity to meet his cohabitee, who he said had now become his wife. Thankfully, the parties were able to agree that the previous contact order should continue and that there should be such further contact as may be agreed between the parties. My notes from the hearing record that the mother raised concerns about the father not complying with the maintenance part of the order. The Court explained to the parties that they must fully comply with each part of the order and that non- compliance by one party in relation to one part of the order was not an excuse for non-compliance by the other party in of the order. The Page 5 of 14 140729 In the matter of AF - Ex Tempore Judgment Court also explained the importance of contact for AF. Without a review of the parties' means, the parties agreed that the maintenance order would be increased to $450 per month with the mother preserving her position in relation this amount. On 14 July 2014 the father and his wife contacted the Court, as he was concerned that the mother may have removed AF from the jurisdiction. He was informed by the Family Proceedings Unit that he could make an application, but it would be preferable if he urgently applied for legal aid which would enable him to make the appropriate application. The father has today his Form C3. In his supporting affidavit he states that the mother, on or around 8 July 2014, removed AF from the Cayman Islands to the United Kingdom without his knowledge or agreement. He believes that the mother has no intention to return AF to the jurisdiction. He says that the mother had made threats in the past that she would remove AF to the United Kingdom. He says that he has no idea where AF is now located or who she is staying with. He states that he has no way of contacting the mother. In his affidavit of the father relays that on 13 July 2014 he attended at the mother's property to collect the child for the court ordered contact. He said when he arrived he telephoned the mother and that his call went straight to her voicemail. He said that he then made an answered call to the maternal grandmother, who also resides in the property. He looked through the window of Page 6 of 14 140729 In the matter of AF - Ex Tempore Judgment the property and noted that the mother's room appeared to be completely empty, giving him the impression that she had moved out. Contact was then successfully made with the maternal grandmother. The matemal grandmother told the father's wife that the mother "went away" with AF. When asked where she had gone the maternal grandmother stated "I'm not allowed to tell you" and added that she did not know if and when they were coming back to the Cayman Islands. The father then contacted the police and he gave a statement to Officer Ricardo Lewis. The officer contacted the maternal grandmother. Most regrettably. the maternal grandmother refused to provide any information about where AF have been taken or whether she would be coming back to the Cayman Islands. If the police have reasonable grounds for believing that the child has been abducted, may wish to carefully consider whether there are reasonable grounds for believing that the maternal grandmother is an accomplice. The father has since found out that the mother has left her job with one of the 'high street' banks in the Cayman Islands. He has received some limited information from the mother's sister that the mother is living at an undisclosed address in south London. Page 7 of 14 140729 In the matter of AF - Ex Tempore Judgment 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 recent 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) [I 99 11 2 FLR 1 & Re F (Minors) (Abduction: Habitual Residence) [I9921 2 FCR 595. The legal principles in relation to habitual residence are helpfully set out by Mrs. Justice Pauffley in FTand NT (Children), Re [2013] EWHC 850 (Fam) when she states that: "2. fIabitual residence is a question offact to be determined by the trial judge. He or she should normally stand hack from the evidence and take a general view, rather than conducting a microscopic search. An appreciable period of time and a settled intention will be necessary to enable aperson to become habitually resident in country B as opposed to country A.

¶ [3] The requested period of time is not jxed and will depend upon the facts of each case. Bringing possessions, doing everything to eslablish 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 appreciableperiod of time' though that has been de~cribed as 'the high Page 8 of 14 of Appeal upheld the trial judge's finding that six weeh was sufjicient to result in the acquisition ofa 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 specific or general.

¶ [5] The habitual residence ofyoung children of married parents all living together as afamily is the same as the habitual residence of the parents themselves and neither parent can change it without express and tacit consent o f the other or order of the court. "'

¶ [22] Millett L.J. stated in Re M (Abduction: Habitual Residence) (1996)l FLR 887: "Where both parents have parental responsibility, neither of them can unilaterally change the habitual residence of the child wrongfully and in breach ofthe other party's rights: Re J. at 572 and 449 respectivelyper Lord Donaldson, MR. "

¶ [23] 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 ofthe children, it is well established that the habitual residence of the children cannot be changed by the unilateral action of 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 1 My emphasis 140729 In the matter of AF - Ex Tempore Judgment inevitable involvement in family life and education in Pakistan the older children have ceased to be habitually resident in England." Even though the mother has parental responsibility, she is not able to take unilateral action to remove AF from the Cayman Islands. AF has resided in the Cayman Islands throughout her life. It is clear, from an objective view of the facts of this case, that before the mother's unilateral actions in relation to AF that she was and is habitually resident in the Cayman Islands. AF's habitual residence cannot change unless all of those with parental responsibility create a change, for instance that they arranged for the child to live in settled circumstances in the United Kingdom, or for example themselves moving to the United Kingdom for a settled purpose. What is important is that they changed the habitual residence voluntarily. It is important not to elevate the test into a domicile or quasi-domicile test because habitual residence is a question of fact. Consent, agreement, acquiescence, acceptance of each of those with parental responsibility is crucial because of the requirement that residence must be "voluntary" to be habitual. If it is not voluntary, it cannot be said to have been settled. Accordingly, admittedly only on the evidence currently before me and without having the benefit of hearing from the mother, I find that AF remains habitually resident in the Cayman Islands. 140729 In the matter of AF - Ex Tempore Judgment I am satisfied that the mother has wrongfully removed AF from the Cayman Islands in breach of the custody rights attributed to the father who has parental responsibility. I am also satisfied that there is reason to believe that the maternal grandmother may be able to provide information which may Lead to the location of AF. Although no written application has been made I have brought the decision of HM (an Aduli) PM v KH & HM (by her litigation friend the Official Solicitor) & the States of Guernsey [2010] EWHC 870 (Fam) to counsel's attention this afternoon. At paragraph 36 Munby LJ states that: "It has long been recognised that, apart ,from any statutory jurisdiction. .... the Family Division has an inherent jurisdiction to make orders directed to third parties who there is reason to believe may be able to provide information which may lead to the location of a missing child." Munby LJ went on to say that: "In appropriate cases, though this is usually conJined to relatives, friends and associates, the court can require the attendance at court to give oral evidence of anyone who there is reason to believe may be able to provide relevant information. Compliance with such orders can, where appropriate, be enforced by endorsing the order with a penal notice and then, in the event of non - compliance, issuing a ,, bench warrant for the arrest and compulsoryproduction in court of the defaulter. 140729 In the matter of AF - Ex Tempore Judgment

¶ [28] Being aware of this case and recognising the Court's powers under the inherent jurisdiction, the father invited the Court to make an order for the maternal grandmother to attend before the Court and to provide any relevant information that she is aware of that will assist in locating the whereabouts of AF.

¶ [29] I am satisfied that it would be appropriate to make that order. I direct that the maternal grandmother, whose name should be placed in the order (but whose name is left out of this anonymised ruling), must attend at Court at 9 AM on Tuesday, 5 August 2014. I attach a penal notice to that direction. If in the interim the maternal grandmother provides sufficient disclosure concerning AF's whereabouts to the attorneys representing the father andlor the Central Authority for the Cayman Islands, the father can apply for the hearing to be vacated administratively. If it is vacated administratively they must provide a draft order which must be served on the maternal grandmother informing her that her attendance is no longer required Orders

¶ [30] Accordingly, I make a specific issue order requiring the mother to return AF immediately to the jurisdiction. A penal notice is attached to this order. 140729 In the matter of AF - Ex Tempore Judgment

¶ [31] I make a prohibited steps order, which upon AF'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.

¶ [32] I suspend the order requiring the father to make child maintenance payments of $450 into the Court Funds Office until further order.

¶ [33] I have carefully considered the father's application for an ex parte residence order. When doing so I have regard to the paramountcy of AF's welfare and I have considered the welfare checklist. For the purpose of this ex tempore ruling, I do not intend to set out the welfare checklist, but I do not feel it appropriate in the circumstances to make an ex parte residence order in relation to AF paying particular regard to her very young age and the fact that she has always resided with the mother. I think it is fair to say that the father understands the Court's concerns about making such an order and has not forcefully pursued that part of his application today. Dated this 29%iuly

¶ [2014] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 140729 In the matter of AF - Ex Tempore Judgment 1 The judgement in this matter is being distributed on a strict understanding that in any 2 report no person other than the attorneys (and any other person identified by name in the 3 judgement itself) may be identified by name or location and in particular the anonymity 4 of the child and the adult members of their family must be strictly preserved. 140729 In the matter of AF - Ex Tempore Judgment