K v D

JurisdictionJamaica
Judge Mangatal, J (Ag.)
Judgment Date07 October 2003
Judgment citation (vLex)[2003] 10 JJC 0701
Docket NumberSUIT NO. HCV 1616/03
CourtSupreme Court (Jamaica)
Date07 October 2003

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

SUIT NO. HCV 1616/03
BETWEEN
"K'
CLAIMANT
AND
"D"
DEFENDANT

FAMILY LAW - Custody - Order for return of child to Barbados in care and control of father - Welfare of child - Custody proceedings to be filed in Barbados

Mangatal, J (Ag.)
1

This application concerns a father, a mother and a daughter. The overriding objective of the Civil Procedure Rules 2002, which apply to these proceedings, is to deal with cases justly. I have, in an attempt to achieve that objective styled the Claimant "K", the Defendant "D", and the child "A" for the purposes of this Judgment. This is in an effort to protect their privacy.

2

This is an application by ("K") for the following relief in respect of his 9 year old daughter, ("A").

"That the Court in the exercise of its summary and/or interlocutory jurisdiction do order and direct that the child ("A") be forthwith returned to Barbados in the care and control of her father, and for any other interim or other orders necessary or expedient in the best interests of the child."

3

To adopt the description used in one of the many cases cited to me, this is "a most delicate jurisdiction" that I am being asked to exercise, and to exercise with expedition. It is a complex case, the resolution of which will involve concepts of private international law, status of children, and family law. I wish to pay tribute to the Attorneys-at-law who represented both sides for the clarity and thoroughness of their presentations.

4

In the course of the hearing, I have been referred to the law of Montserrat, Barbados and Jamaica. Some of the Affidavits are over twenty pages long. There have been both oral and written submissions, with the latter consisting of over 50 pages, with reference being made to many authorities. As a consequence of the foregoing, the Judgment is lengthy and I apologise to anyone who has the burden of reading it. The nature of the application does not permit the luxury of much refinement. In an effort to lighten the burden, I have provided a summary and index at the end of this judgment.

5

"K", "D" and "A" are all nationals who hail from the volcanic island of Montserrat. "D" is the mother of "A", and "K" is the father of "A". "A" was born out of wedlock on January 2 nd , 1994 in Montserrat.

6

"K" is an Attorney-at-law employed as Legal Counsel to a Bank in Barbados and "D" is a law student completing her legal studies. "K" is registered as the father of "A" on "A's" birth certificate. "K" is now married to "F" and they have a daughter, "KA", who is approximately ten month's old.

7

"A" resided in Montserrat between 1994 – 1997. On "D's" evidence, "A" resided with her from 1994 to 1997 in Montserrat in various places.

8

On "K's" evidence, "A" resided with both himself and "D" at various places in Montserrat between 1994 and 1997. In 1996 "D" went on a 6-month police training course in Barbados. During "D's" absence, "A" continued to live in Montserrat with "K".

9

On "D's" evidence, she had her best friend assist "K" with the care of "A". On "K's" case, he had sole care of "A" during that 6-month period.

10

In 1998 due to health problems, the chief medical officer advised that "A" be removed from the ashy environment in Montserrat. She was required to change schools and homes more than once before the eventual recommendation that "A" be removed from Montserrat entirely.

11

Residents of Montserrat were being offered a relocation package. "D" who was at the time considering relocation to the United Kingdom (because of the recommendation to move "A"), told "K" of this consideration, whereupon "K" invited "D" and "A" to live with him in Barbados. After some discussion,, "D" and "A" came to live with "K" in Barbados in 1998. Sometime later in 1998 relations between "K" and "D" broke down and "D" and "A" left Barbados and went to Montserrat. During this time "A" lived with "D" in Montserrat, and "K" would visit whenever he came to Montserrat from Barbados.

12

Somewhere between 1998 and 2000, "D" applied for admission to the Faculty of Law. At first, her application was not successful. In July 2000, "A" accompanied "K" to Barbados. According to "D", "A" was to have gone to Barbados for just for a few weeks in the holidays. "D" subsequently went to Barbados in September 2000 to study law at the Faculty of Law in Barbados. According to "K", "A" did not in July 2000 come to Barbados for a holiday; she came to live with him indefinitely, bringing with her all her possessions.

13

"K" claims in paragraph 14 of his 1 st affidavit that Montserrat was then at the height of the volcanic crisis and education for children was a critical issue. Additionally, he and "D" accepted medical advice to remove "A" from the ashy conditions in Montserrat. "D" and "K" discussed and agreed that "A" should live with "K" in Barbados where she would have access to good educational opportunities and be able to continue her education for the foreseeable future. "K" however thought that it would be beneficial to "A" if "D" was admitted to a program of study in Barbados and would therefore be present in Barbados, at least for the three years of the LLB course of study.

14

"K" claims that he collected application forms for admission to the Faculty of Law for "D" and himself applied for admission on behalf of "D", notwithstanding that "D" he claimed had refused to again apply for admission. "K" says that up to May 2000, there was no response from the University. He claims that he made certain enquiries and asked that consideration be given to granting "D" a place. In June 2000, "D" was notified that she had gained a place. "A" accompanied "K" to Barbados, "K" says with the intention that "D" would take up separate rented accommodation which "K" says he was asked to procure on her behalf.

15

"D" does not say when she received notification that she had been offered a place in the faculty of Law. She simply says in paragraph 34 of her 1 st Affidavit that in September of 2000 when she went to Barbados after being informed that she had secured a place at UWI, Cave Hill, she was informed by "K" that when he took "A" to Barbados in July 2000 he had made the conscious decision that "A" was not coming back to Montserrat with "D".

16

Then, says "D", this upset her and she asked "K" how he could have been so deceptive. She told "K" that he took "A" to Barbados through deceit and had she known that was his intention, she would not have agreed to him taking "A" to Barbados. "D" did not deny that she received notification in June 2000 that she was admitted to the faculty.

17

At paragraph 16 of "K's" 1 st affidavit, he states that he and "D" agreed that during "D's" period of study in Barbados, "A" would continue to reside with him and would visit "D" on weekends. He states that he procured a place for "A" at the West Terrace Primary School which is situated approximately four hundred metres from the University of the West Indies, Cave Hill campus in Barbados, and secured rented accommodation for "D" immediately outside the perimeter of the school.

18

"D" on the other hand says at paragraph 36 of 1 st affidavit that from September 2000 to May 2003, "K" and herself shared care and control of "A".

19

While in Barbados between 2000 and 2003, "A" attended one (1) school, West Terrace Primary School, and has been there for three (3) years. She has been doing quite well at school, and is in the A-stream, although there are areas which her teachers have recommended should be worked upon and which "K", who has some teaching experience, says, he was assisting "A" with improving. Whilst the changes which occurred in her earlier years, in schools in Montserrat, and from Barbados back to Montserrat, occurred in her Kindergarten years, she was in September 2003 about to go into Class 3 at West Terrace Primary School in Barbados where she would begin a two-year preparation for her common entrance examination. In Barbados, children take the common entrance examination after reaching age 11 and not before. In his Affidavit of 19 th September 2003, "K" states that West Terrace Primary School is one of the most highly ranked schools in Barbados based on common entrance results over the last few years.

20

While in Barbados, "A" developed an avid interest in athletics and swimming. She was a leading track and field athlete in her age group at her school in Barbados and she swam competitively in Barbados and is a member of the Alpha Swim Club in Barbados. "A" has represented her Club in national and international competitions over the past two (2) years. She is the anchor swimmer for the Club's relay team in her age group. "A" enjoys swimming and enjoys a close relationship with members of her swim team. She has swam competitively in the presence of cameras and the media and this has helped to develop "A's" self-confidence.

21

In May 2003 "D" went to Montserrat. At paragraph 5 of her 1 st Affidavit, she says that she and "A" arrived in Jamaica on 25 th August 2003 because she was enrolled at the Norman Manley Law School to pursue a 2-year course in Legal Education. At paragraph 6 she states that her trip to Jamaica with "A" was no surprise to "K" since she had indicated to him from as early as mid 2002 that she intended for "A" to be with her in Jamaica while attending the Norman Manley Law School. "K" says that in or about May 2003, "D" indicated that she intended to take "A" with her to Jamaica for the two-year period of her study.

22

Says he, that he thought in the circumstances she must be making a joke (paragraph 33 of "K's" 1 st Affidavit). He says that he received calls from "A's" relatives expressing concern that "D" was planning to take "A" to Jamaica and also received a call from the Principal of "A's" school seeking his approval for a transfer request that the school had received from "D" in respect of "A". "K" says he tried to...

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