Hanna Panton (Lisa) v Panton (David)
| Jurisdiction | Jamaica |
| Judge | HARRISON, P. , SMITH, J.A.: , McCALLA, J.A.: , HARRISON, P: |
| Judgment Date | 29 November 2006 |
| Neutral Citation | JM 2006 CA 68 |
| Judgment citation (vLex) | [2006] 11 JJC 2901 |
| Court | Court of Appeal (Jamaica) |
| Date | 29 November 2006 |
FAMILY LAW - Custody - Child returned to other jurisdiction
This is an appeal from the order of Miss Justice Gloria Smith on 20 th March 2006 that the child "A" be returned to Georgia, United States of America ("USA") in the custody, care and control of the respondent ("the father").
The appellant ("the mother") and the father, both Jamaican nationals, were married in New York, USA and returned to Jamaica. "A" was born in Jamaica to the parties in March 2001.
The parties, along with "A", resided in Atlanta, Georgia, USA, from February 2004. They separated in May 2004 and divorced in June 2004.
On 10 th June 2004, pursuant to an agreement signed by the parties on 9 th June 2004, a final judgment and decree was pronounced in the Superior Court of Fulton County, Atlanta in the state of Georgia, USA. Primary physical custody of the child "A" was granted to the father with visiting parental rights to the mother.
On 25 th August 2004, the said court denied a motion filed on 10 th August 2004 by the mother to set aside the said final judgment, decree and settlement on the ground of duress. Judge Melvin K. Westmoreland found that the mother had consented to and acquiesced in the said agreement.
Having moved out of the matrimonial home, the mother lived next door interacting with the child. She returned to Jamaica in June 2005.
In December 2005, the father brought "A" to Jamaica to visit the mother, with the understanding that he would return for "A" in January 2006. On 11 th January 2006, the father having come to Jamaica to take "A" to Aanta, left without "A" who was retained by his mother.
On 17 th January 2006 the mother obtained an interim injunction granting to her custody, care and control of "A" and an injunction restraining the removal of "A" from Jamaica. The father applied for an order discharging the injunction and seeking permission to take "A" out of the jurisdiction, a summary return to Atlanta, Georgia.
In Atlanta, "A" had been attending school and church, was training to be an acolyte and interacted well with his cousins.
The statutory provisions governing proceedings concerned with the custody of a child is contained in the Children (Guardianship and Custody) Act, section 18 of which stipulates that the welfare of the child is "... the first and paramount consideration". This principle pre-dominates all other considerations.
A court considering the summary return of a child to another jurisdiction must be guided at all stages by the principles of what would be in the best interests of the child. A balance must exist between the summary return and a hearing on its merits on the question of custody.
The Supreme Court has jurisdiction in respect of the custody of children (section 2) and accordingly such a court will not decline jurisdiction when the parties and the child are within its jurisdiction. In addition, the power of the Court of Chancery as parens patriae to all children, which is now exercisable by the Supreme Court, compels such a court to be slow to decline to exercise such power whenever the occasion arises, because of its all-encompassing interest in the welfare of the child. This power is exercisable by the Court, despite the wishes of the respective parents.
The true welfare of the child which is paramount, has been described as:
"... the child's happiness, its moral and religious upbringing, the social and educational influences, its psychological and physical well-being and its physical and material surroundings,..."
( Forsythe v Jones SCCA No. 49/99 delivered 6 th April 2001 at page 8 )
The Act which governs these proceedings does not in any way assist in the procedure governing the request for the summary return order.
The cases which are based on the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980, which Convention is applicable to countries which are parties thereto, are not applicable to the instant case. The Convention, which discourages kidnapping or wrongful detention of children between states, mandates a court seized of such matters to make peremptory returns of such children without a prior hearing on its merits. Jamaica is not a party to the Convention. In Re P (A minor)(Child Abduction: Non Convention Country) [1997] Fam. LR 45 the Court of Appeal held that the Hague Convention concepts are not to be applied in a non-Convention case.
Non-Convention cases which concern the determination whether a child who has been removed from one state in breach of a custody order, should be speedily returned thereto or the question of his custody heard on its merits in the state to which it has been taken, is governed by the welfare of the child principle. Because the parties generally, are of conflicting views on the choice of jurisdiction, the ultimate decision, inevitably, determines the appropriate forum. In that regard, the concept of forum non conveniens derived from Spiliada Maritime Corporation v. Cansulex Ltd [1987] A.C. 460, is applicable to custody cases in that a court may stay the proceedings before it in certain circumstances. However, that concept is not the means by which the determination is made. In particular cases it may be a factor in determining the appropriate forum, for example, in circumstances where the evidence in support of events relevant to the custody application is available in the foreign jurisdiction. However, the welfare of the child is the prime test to be applied by a court in deciding whether or not it will consider anew the application for custody. ( Thompson v. Thompson 30 JLR 414 )
The summary return order may only be made after considering several factors. The fact that one of the parents is in breach of a custody order by preventing a child from returning to his former residence, is undesirable, but it is not a disqualifying feature. In McKee v McKee [1951] 1 All ER 942, the father of an infant child took him from the United States of America into Ontario, Canada in breach of an order granting custody to its mother from whom the father was divorced. They were all American citizens. In habeas corpus proceedings in Canada custody was granted to the father, but ultimately reversed by the Supreme Court of Canada and granted to the mother. On further appeal to the Judicial Committee of the Privy Council, their Lordships held that despite the fact that the father had taken away the child to avoid obedience to the American court, he was entitled to have the question of custody re-tried in Canada. Their Lordships (per Lord Simonds) at page 946 said:
"The fact that the father had broken an agreement solemnly entered into was, therefore, a circumstance which the learned judge had to take into account and weigh in determining what was for the welfare of the child. This he expressly did, and their Lordships see no ground for saying that he gave too little weight to what was only one of many elements in the case."
Although the conduct of the parents is a relevant factor in determining the grant of custody of a child in its best interests (Section 7 of the Act) it was held that despite the prima facie unlawful behaviour of a parent who kidnapped its child, that will not disentitle such parent to custody. (See In the marriage of (1981) 7 Fam. LR 170 ).
In addition, the fact that a valid enforceable custody order exists in the state from which the child was taken is not a reason for a court in a different jurisdiction to decline to consider anew the matter of custody. The existence of a valid foreign order is one of the factors to which some weight must be given, but that will not preclude a court in another jurisdiction in some circumstances from adjudicating on the issue of what was best for the welfare of the child. Again, their Lordships in McKee v. McKee (supra) at page 947 said:
"...the judgment of a foreign court as to the custody of an infant need not, as a matter of binding obligation, be followed in the courts of Ontario although great weight must be given to it."
There are other factors which a court, from which the summary return order is sought, is obliged to consider in determining the manner in which the interests of the child could best be served. For example, a sudden flight from a jurisdiction immediately after a custody order is made, in bold defiance of the foreign court's order may attract a summary return order. On the other hand, where parties have, for some time accepted and regarded themselves to be bound by the order, but new circumstances of disputes have arisen, and a child taken from one jurisdiction to another, that latter court if properly seized of it, may be inclined to hear the matter on its merits. Their Lordships in the McKee case said, at page 948:
"Once it is conceded that the Court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow an order made by a foreign court, the consequence cannot be escaped that it must form an independent judgment on the question, although in doing so it will give proper weight to the foreign judgment. It may be that, if the matter comes before the court of Ontario within a very short time of the foreign judgment and there is no new circumstance to be considered, the weight may be so great that such an order as the Supreme...
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