Forester (Kevin Leighton) v Michele Ann Strong-Forester
| Jurisdiction | Jamaica |
| Judge | SMITH, J.A. , HARRIS, J.A.: , SMITH, J.A. (Ag.): |
| Judgment Date | 02 May 2008 |
| Judgment citation (vLex) | [2008] 5 JJC 0201 |
| Date | 02 May 2008 |
| Court | Court of Appeal (Jamaica) |
FAMILY LAW - Custody - Whether defendant ought to be restrained from removing children out of jurisdiction - Whether case properly brought in local jurisdiction - Forum conveniens
ORDER:
The appeal is dismissed. No order as to costs.
The subjects of this appeal are two (2) children, Q F and K F, born on the 18 th of October, 2002 and 3 rd of March, 2005 respectively. Their parents were born in Jamaica. In 1970 the appellant, their father, migrated to the United States of America and has lived in California since then. Their parents met in Jamaica and were married in Jamaica in June 2001. In September 2001 the respondent, their mother, migrated to the United States of America to join their father who is a Clinical Pharmacist and Lecturer at the University of Southern California. Q F and K F were born in California.
The respondent, who is a Management Consultant, spent most of her time in California as a housewife. She was unhappy with that situation. She periodically visited Jamaica with her children to spend time with their extended family and friends. These visits were made with her husband's consent and assistance.
In January 2007 the respondent mother and her children came to Jamaica on one such visit. The respondent suggested to the appellant husband that the children remain in Jamaica until July 2007. It is in issue as to whether the parties had agreed on this. By this time the children were enrolled in a preparatory and a nursery school respectively, in Jamaica.
The appellant came to Jamaica and stayed for three (3) weeks, March – April, 2007. The children were left in Jamaica for one (1) week while their parents returned to California. During the week when the respondent was in California, Q F was enrolled at Pantera Elementary School in California.
According to the respondent while she was in California for the week, her husband accused her of infidelity and claimed that she had a hidden agenda in going to Jamaica in January. The marriage was beset with "irreconcilable and fundamental differences" between the parties. She took the decision, on her return to Jamaica, not to go back to her husband.
On the 29 th of May, 2007 the respondent filed a Fixed Date Claim Form by which she sought the following orders under Section 7 of the Children (Guardianship and Custody) Act:
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(a) An Order that she may have sole custody of the relevant children Q F and K F.
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(b) An Order that the Defendant be restrained from removing the relevant children from the jurisdiction of this Honourable Court without a Court Order or without the claimant's consent.
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(c) An Order that the relevant immigration authorities be served with this Order.
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(d) That the defendant be given access to the relevant children on such terms and for such periods as this Honourable Court deems fit.
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(e) Liberty to apply.
On the same day Campbell, J. granted an interim order until the 10 th of July, 2007 in terms of paras. (a), (b), (c) & (e). The 10 th of July, 2007 was set for the Case Management Conference.
On the 6 th of July, 2007 the appellant filed a Notice of Application for Court Orders in the Supreme Court. By this application the appellant sought:
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(1) The discharge of the Order made by Campbell, J. on the 29 th of May, 2007.
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(2) The return of the children Q F and K F to California, U.S.A., their habitual residence.
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(3) That the travel documents of the children be delivered to him, the appellant.
This application was served on the respondent's attorneys-at-law on the 9 th of July, 2007.
On the 27 th of July, 2007 the appellant's attorneys-at-law filed another application which repeated the request for the above orders and added a fourth for a ruling as to the appropriate forum for the determination of the issue of custody of the relevant children.
It might be helpful to state the grounds on which the appellant based his application.
Grounds (a), (b) (c) and (d) concern the status and residence of the parties and the place and date of birth and status of the relevant children. The other grounds are:
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(e) The said children Q F and K F have lived continuously and habitually in California in the United States of America.
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(f) Pursuant to their habitual residency in California in the United States of America, the said children Q F and K F have closer connections to California in the United States of America.
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(g) The claimant/respondent has wrongfully and unilaterally kept the said children Q F and K F away from California in the United States of America, the jurisdiction of their habitual residence.
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(h) It is in the best interest of the said children Q F and K F that they be returned to California ... the jurisdiction of their habitual residence.
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(i) The best interest of the child is the paramount consideration in issues of child custody in the State of California.
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(j) The appropriate forum for the ventilation and determination of the issues relating to the custody, care and control of the said children... is the United States of America, the state of their habitual residence.
I should mention that on or about the 30 th of July, 2007 the appellant instituted custody proceedings in the Supreme Court of California, United States of America. In those proceedings the appellant sought sole custody of the children, professionally supervised access, child and spousal maintenance and legal fees. Those proceedings were stayed because of the earlier proceedings in this jurisdiction.
The appellant's application of the 27 th July was heard by Mangatal, J. who, on the 14 th of September, 2007 dismissed it and granted leave to appeal.
In dismissing the application the learned trial judge held (para 81):
"In my judgment, it is not in the children's best interest for me to make a summary return order and my ruling is that the substantive custody application should be heard here in Jamaica. In so deciding I wish to make it clear that in allowing Q and K to remain here while their future is decided here does not mean that they will remain here in Jamaica forever.
Further, or alternatively my ruling is that Jamaica is the forum conveniens for the determination of the matters of custody and access of Q and K".
Grounds of Appeal
Some twelve grounds of appeal were filed. Ground 1, which concerns findings of fact, was not pursued. The other grounds were:
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(2) The learned judge failed to apply the welfare of the child test...
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(3) The learned judge erred in concluding that the case does not involve kidnapping since the children were not brought (to) or retained in Jamaica as a result of stealth, deceit or wrongdoing.
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(4) The learned judge fell into error by finding that this is not a kidnapping case while at the same time considering the respondent's potential liability for kidnapping under United States Federal Law and the California Penal Code.
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(5) The learned judge fell into error in holding that where there is no element of wrongful retention of the relevant children by the wife then the question of summary return does not arise and the court should proceed to a full hearing of the matter on its merits.
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(6) The learned judge erred in holding that even though the relevant children have a closer connection to the United States than Jamaica, the United States is not the more appropriate forum.
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(7) The learned judge fell into error in holding that the Superior Court of California is not clearly or distinctly the more appropriate forum for the determination of the issue of custody in respect of the relevant children.
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(8) The learned judge failed to consider that there was a pre-existing order made in the State of California on the issue of the jurisdiction of the Californian Court to hear the custody issues.
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(9) The learned judge, by indicating that her decision was influenced by the fact that there was no pre-existing order as to custody of the relevant children, paid insufficient regard to the comity of nations. The comity was shown by the Californian Court in declining to make a custody order before the Jamaican Court could hear the jurisdiction issue on its merits.
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(10) The learned judge failed to consider that it is in the best interest of the cause of justice and the welfare of the relevant children that the Superior Court of California investigates the circumstances surrounding the welfare of the relevant children.
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(11) The learned judge failed to appreciate that it is in the best interest of the cause of justice and the welfare of the relevant children that the issue of maintenance of the relevant children, that is directly related to and affected by custody, be determined by the Superior Court of California.
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(12) The learned judge did not consider that the respondent failed to prove the existence of any special circumstances that would require the custody hearing to take place in Jamaica instead of the prima facie more appropriate forum for the hearing.
Counsel on both sides agree that these grounds embrace three (3) broad issues, viz:
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1. Whether or not the learned judge was correct in her conclusion that the respondent mother's actions in bringing the children to Jamaica and her refusal to return them to the United States of America amount to kidnapping or wrongful retention.
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2. Whether or not there should be a summary return order in...
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