S v S (Access to Child Abroad: Jurisdiction)

• Jurisdiction: Jamaica
• Judgment Date: 22 July 2011
• Date: 22 July 2011
• Docket Number: Appellate Jurisdiction 2011 No. 28
• Court: Supreme Court (Jamaica)

In The Supreme Court of Bermuda

Appellate Jurisdiction 2011 No. 28

BETWEEN:

S

Appellant

and

S

Respondent

Mr A Richards for the Appellant

Respondent in person

The following case was referred to in the judgment:

S v S [2008] JLR Note 26

Abstract:

Jurisdiction to regulate parent's access rights to child residing abroad - Meaning of "habitually resident"

JUDGMENT of Kawaley, J

Introductory

1. The present case raises for the first time the question of when the Family Court has jurisdiction to regulate a parent's access rights in respect of a child lawfully residing with the custodial parent abroad. The Appellant mother, who resides in the United Kingdom with the 10 year old child, appeals against the decision of the Family Court (Wor. Tyrone Chin, Mrs. Joan Burgess JP and Mr. Winston Rawlins JP) dated May 2, 2011 holding that the lower Court continued to enjoy jurisdiction over access based on the original order made when the child resided in Bermuda where he was born.

2. The background facts are as follows. The parents were not married and were separated by the time the child (C) was born in Bermuda on August 8, 2000. The first order made in relation to C was dated April 6, 2001 and gave the Father liberal and general access and required him to pay maintenance. On September 2, 2004, a defined access order was made. Although the Mother apparently left Bermuda for Atlanta with the child in or about late 2007 without the Father's consent, at the hearing below (on May 2, 2011) he confirmed that he consented to her remaining in the US for educational purposes and understood that she initially left Bermuda because she heard gunshots.

3. Although the Father took out a warrant of arrest when she returned to Bermuda briefly in 2008, on April 23, 2008 this Order was discharged and the Family Court imposed no restrictions on the Mother removing the child from the jurisdiction. Paragraph 3 of the Order stated: "The Respondent is to continue to have liberal access during school holidays and to continue major insurances [sic] cover for [C]." The Father had three visits with C pursuant to this Order.

4. In August 2010, the Mother moved with C to the UK. There is no suggestion that this in breach of any Court order or that access is being refused although certain difficulties have arisen.

The Family Court's decision

5. On December 13, 2010, the Father issued a Summons in the Family Court seeking a defined access order and a variation of the April 6, 2001 maintenance order. At the May 2, 2011 hearing of this Summons, the Father sought an order requiring the Mother to pay 50% of the access travel costs in relation to C and complained that his access rights were being infringed by the Mother. In response, Mr. Richards for the Mother submitted that the Court lacked jurisdiction having regard to section 36L of the

Children Act 1998. This submission was rejected by the Court below. According the appeal record and the Learned Chairman's notes of the hearing:

"When asked by Mr. Richards why the Court rules that it had jurisdiction the Court replied that Mr. Swan was the very original applicant in this matter in 2000 regarding access and that access is still the core and primary issue even today."

6. In essence, the Court below appears to have responded instinctively to the submission that it lacked jurisdiction by concluding that it ought not to be possible for the Family Court's jurisdiction to lapse while it had a matter before it. Accordingly, the relevant time for determining jurisdiction had to be when the very first application was...