Peremptory Return Order, A

• Jurisdiction: Jamaica
• Judge: DOWNER, J.A. , HARRISON. J.A. , WALKER, J.A. , DOWNER, JA.
• Judgment Date: 29 July 2005
• Neutral Citation: JM 2005 CA 48
• Judgment citation (vLex): [2005] 7 JJC 2915
• Date: 29 July 2005
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE WALKER, J.A

Re:

A Peremptory Return Order

Georgia Gibson-Henlin and Kerry Ann Rowe instructed by Nunes Scholefield DeLeon and Co. for the Appellant mother

ansford Braham and Susan Risden-Foster instructed by Livingston Alexander and Levy for the Respondent father.

FAMILY LAW - Custody

DOWNER, J.A.

1 Introduction

2 This is an appeal by the mother, D. from a Peremptory Return Order made by Mangatal J. (Ag.) which ordered the return of the child A, to K, her father, in Barbados. It is useful to set out the Order which appears at pages 172-173 of the Record:

"IT IS HEREBY ORDERED that:

• 1. A is to be forthwith returned to Barbados in the care and control of her father. Counsel for both parties are to agree on a suitable place for the handing over of A right after these proceedings.

• 2. A's passport is to be handed over to the Registrar of the Supreme Court by 9.30 a.m. on Wednesday, October 8, 2003, for collection by K's Attorneys, if not sooner handed over to the Attorneys for K.

• 3. Liberty to apply.

• 4. Permission to appeal granted.

• 5. Defendant's application for stay of order refused."

3 Then there follows the conditions which are stated thus:

"This Order is made subject to K giving this Court through his Attorneys-at-law the following undertakings:

• a) Custody proceedings in relation to A will be filed in Barbados by 4:00 p.m. on Thursday, October 16, 2003.

• b) To use his best endeavours to have the case set down for hearing during periods when D will be on mid-term or holiday break from Norman Manley Law School.

• c) K undertakes through his Attorneys-at-Law that he will return A to this jurisdiction if called on by this Honourable Court so to do."

4 K invoked the jurisdiction of the Supreme Court in an Amended Fixed Date Claim Form which reads at page 37 of the Record:

• "l. That the Claimant K be granted sole custody, care and control of A, a girl born on the 2 ^nd day of January 1994 with reasonable access to the Defendant on such terms as this Honourable Court considers in the best interest of the child.

• 2. That the Claimant, K be given permission to take the child, A out of the return home to reside with the Claimant at 23 Lower Estate Heights, St. Michael, Barbados subject to the usual undertaking that the Claimant will return the said child to this jurisdiction if called on by this Honourable Court so to do.

• 3. Further and/or in the alternative 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 .

• 4. Any other interim or other orders necessary or expedient in the best interests of the child."

5 The facts

6 The Record of this case is over two hundred and seventy three pages long. The judgment covers one hundred pages and the remaining pages consist of the lengthy affidavits and submissions filed by Counsel on both sides. There is a partial duplication of D's affidavit at page 213 of the Record. Included also in the Record are two expert opinions.

7 The learned judge rightly refused to grant the adjournments sought by the appellant to produce further affidavits in these summary proceedings. The issue of adjournment was raised in Re M (Abduction: Peremptory Return Order), [1996] 1 FLR 478 a decision of the Court of Appeal. Here is how Waite L.J. treated it at page 479:

"The father was extremely distressed by this development. He obtained compassionate leave from his work and came to this country to seek a reconciliation, which the mother was not prepared to grant. He Issued an application within the family proceedings for what has come to be called a peremptory return order; that is to say an order made without investigating in depth the general merits of the parents' dispute over the future care of the child, but after making sufficient inquiries to establish that they have been wrongfully removed from the jurisdiction of the country of their habitual residence and should be returned there so that the dispute can be determined in the courts of that country.

The rationale for such orders was explained by this court in L5L5 Re F (A Minor) (Abduction: Jurisdiction) [1991] Fam 25, [1991] 1 FLR 1 and L6L6 Re M (Abduction: Non-Convention Country) [1995] 1 FLR 89. It involves applying, by analogy, to non-Convention cases the underlying philosophy of the Hague Convention on the Civil Aspects of international Child Abduction 1980 that it is in general in the best interests of all children to have their lives subjected to the minimum of upset after parental breakdown, by ensuring that disputes as to their future should be disposed of in the courts of their country of habitual residence and also by dealing at the same time, peremptorily, with attempts by one parent to abduct the children to a country which may be supposed to offer a better chance of securing the outcome preferred by that parent. The judge regarded the present case as being within those principles and made the return order accordingly.

It should be noted that the order was not, however, made without safeguards. Undertakings were obtained from the father to pay the fares for the return of the mother and children; to provide a separate home for the mother and children in Dubai where he would agree to the children remaining in her care subject to his rights of frequent contact; to maintain her and them; to provide funds for her independent legal representation in proceedings in Dubai regarding the children's future; and to register all those undertakings at the Foreign Office in London and the British Embassy in the United Arab Emirates. The undertaking to maintain and provide a home for her was limited in duration until such time as the financial affairs of the parties should be agreed or adjudicated upon by the court in Dubai."

8 An adjournment was sought to adduce further affidavit evidence on behalf of the wife. The adjournment was refused on the ground that the issues sought to be raised, ought properly to have been adduced In Dubai and on the principles of international comity. Waite's L.J. definition in these circumstances will be stated later in this judgment.

9 In the present case the parties declined to give any oral evidence. They also refused the learned judge's invitation to undertake any cross-examination. The learned judge also examined the infant. All this demonstrated the commendable thoroughness with which the issues were inquired into in the Court below. There was no proper basis for granting an adjournment.

10 Despite the voluminous nature of the affidavit evidence, and the unresolved conflicts, the main facts are straightforward in relation to the issue of a summary return.

11 It is easier on review to be more economical than the learned judge below. K and D were born and lived in Montserrat. K is 42 years old while D is 37, A is 9 years old, K, who is a qualified lawyer, left Montserrat and took up a position as counsel with the Caribbean Development Bank in Barbados. Be it noted that when both parties lived in Montserrat K had a visiting relationship with D. A was nearly always with her mother during that period. As a result of the volcanic eruption in Montserrat, the Chief Medical Officer advised that A should reside outside the Island. Her mother was offered relocation in the 'home of the common law', Montserrat being a British dependent territory. D postponed taking up that option and went to Barbados in 1998 to live with K at his invitation. The relationship appears to have been stormy and eventually broke down in 1999. K then married another lady.

12 After the breakup of the relationship between K and D, D returned to Montserrat and subsequently enrolled at the Faculty of Law in Barbados. At the completion of her studies in May 2003 she decided to go home and thereafter she would go to England to visit a relative who was ill. During the period of D's studies, A lived with her father sometimes and with her mother at other times. Custody was therefore shared between mother and father. D lived in two homes and it seems dual residence will be the clue to solving the vital issue of whether the learned judge exercised her discretion correctly in ordering the return of A to Barbados.

13 While studying in Barbados D returned to Montserrat during her vacation from the Law Faculty at Cave Hill. She worked with the Government of Montserrat. When she successfully completed her studies for the Bachelor's degree in Law, in May of this year, she returned to her home. There was some reluctance on the part of K to send A to her mother D but eventually this was done.

14 What of A during her sojourn in Barbados? She did well in her studies at Primary school and excelled in sports, particularly swimming. Having regard to her father's position, she led a comfortable middle class existence when she was with him. K's wife was also studying for her LLB degree at Cave Hill, and she was a year ahead of D. There was some complaint by D with regard to how A was treated in terms of her lunch and the care of her hair. Nonetheless, the evidence suggests that on the whole A was well treated by both parents.

15 D went to England with A and thereafter came to Jamaica for D to enroll at the Norman Manley Law School. In this endeavour she is supported by the Montserrat Government and she plans to return there to be employed as a public servant. She has also made arrangements to purchase a two bedroom apartment which is now being built.

16 A now attends the Mona Primary School which has a good reputation. It Is near to the Norman Manley Law School and she is accompanied by her mother to and from school. She continues her swimming and from...