Strong-Forrester (Michelle Ann) v Kevin Leighton Forrester

JurisdictionJamaica
CourtSupreme Court
Judge Mangatal J:
Judgment Date14 September 2007
Judgment citation (vLex)[2007] 9 JJC 1401
Docket NumberCLAIM NO. HCV 2230 of 2007
Date14 September 2007

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV 2230 of 2007
BETWEEN
MICHELE ANN STRONG-FORRESTER
CLAIMANT
AND
KEVIN LEIGHTON FORRESTER
DEFENDANT

FAMILY LAW - Custody application - Removal of children from jurisdiction

Mangatal J
1

These proceedings are concerned with two little boys who I shall refer to as Q and K. Q was born on the 18th October 2002 and K was born on the 3 rd of March 2005. Q is therefore 4, almost 5 years old at this time. K is almost 2 1/2 years old. Both children were born in the United States of America "the U.S.".

2

These children Q and K are not only citizens of the U.S. They are also naturalized Jamaican citizens and possess Jamaican passports. Both the Claimant/Respondent "the wife" and the Defendant/ Applicant "the husband" are Jamaican nationals by virtue of being born in Jamaica. The husband migrated to the United States in the late 1970's and has lived in California since then. The husband is a citizen of the U.S. The wife holds permanent resident status in the U.S. The wife met the husband in 1996 in Jamaica and the parties were married in Jamaica in June 2001. In September 2001 the wife migrated and joined the husband living in California. The husband is a clinical pharmacist and a Professor of Pharmacy at the University of Southern California. The wife is a management consultant and enjoyed professional positions and an active social and civic life in Jamaica before migrating to the United States. She states that she was dissatisfied living in Pomona, California and that the circumstances there represented a fundamental lifestyle change for her. The wife spent her time in Pomona principally as a housewife before and after the birth of Q and K. The boys were both born in California. On a number of different occasions the wife came to Jamaica for extended periods accompanied by the children with the husband's consent. The wife came to Jamaica with the children in January 2007 with the husband's consent, for the stated purpose of vacation. She enrolled Q at a preparatory school in Jamaica and K at a nursery school. Initially it had been agreed that the wife and the boys would have returned to California in April 2007. The wife states that she raised with the husband the question of herself and the boys remaining in Jamaica until July 2007. This she states was because she was very happy with the progress of the children at these 2 schools in Jamaica and she wanted them to stay there until the summer instead of returning to California in April. The wife states that they had nothing to do from April until summer and Q would not be starting school until September in California. There is some dispute between the parties as to whether the husband agreed that the children should remain in Jamaica until July 19 2007. There is also an issue raised as to whether the wife was the primary caregiver or whether both the wife and the husband were the primary caregivers. The husband came to spend 3 weeks with the family in Jamaica in March - April 2007. The children were left with the husband's parents in Jamaica for one week while the wife and the husband went back to California, the wife for one week before returning to Jamaica. One of the reasons for this according to the wife was in order to effect a school enrollment for Q at Pantera Elementary School in California. During the week when the wife had gone back to California with the husband the husband increased the tempo of suspicions which he voiced and acted out, suspicions he harboured in relation to the wife having an affair and in relation to the wife having a hidden agenda in going to Jamaica in January. Consequent on these marital problems the wife says that since her return to Jamaica she realized that the marriage had broken down and that she wished to remain in Jamaica, the country of her birth, with the children.

3

On the 29 th of May 2007 the wife filed an application to this Court by way of Fixed Date Claim Form claiming against the husband amongst other relief, that she should have custody of the relevant children of their marriage Q and K.

4

On the 29 th of May 2007 when the matter came up for hearing before him ex parte, my brother Mr. Justice Campbell granted amongst other orders, interim custody care and control of Q and K to the wife. On the 30 th of July when the matter came up inter partes before him, Justice Campbell extended the previously extended interim order for custody care and control. He also ordered that both the wife and the husband be restrained from removing Q and K from the jurisdiction of this Court without a court order. It was further ordered that the children's travel documents be deposited with the Registrar of the Supreme Court. Counsel for both sides have advised that the travel documents have been delivered to the Registrar.

5

On the 27 th of July 2007 the husband filed an application principally seeking an order that the children Q and K be returned to the jurisdiction of their citizenship and habitual residence, namely the U.S. further or alternatively, that this Court make a ruling as to the appropriate forum for the determination of the issue of custody in respect of the children and asking that the Court rule that California, U.S. is the appropriate forum. It is this application which came before me as a matter of urgency during the Legal Vacation of Jamaica's Supreme Court and in respect of which I now make my decision. The matter was originally scheduled to be heard on the 20 th August 2007. However, due to the passage of Hurricane Dean close to the shores of Jamaica on the 19 th August and the attendant damage, problems and dislocation caused on the Island, the hearing did not get underway until the 21 st August. On the 21 st I extended the orders made by my learned brother in respect of the interim custody and restraint against removal of the children from the jurisdiction until the determination of this application by the husband. 6. Subsequent to the date of filing of applications by both the wife and then the husband here in Jamaica as described above, the husband filed on or about 30 th July 2007 court documents in the Superior Court of California, County of Los Angeles. In these court documents the husband is seeking sole custody, professionally supervised access, child maintenance and spousal maintenance and legal fees. There was no Court order for custody or anything eLse in relation to Q and K in existence in California before the proceedings were filed here in Jamaica, or before the children were brought here. The wife says that she was served with those documents on the 9th August 2007. Ex parte the California Court appears to have formed its views on the respective jurisdiction of California and Jamaica.

6

A. The stated grounds of the application by the husband, amongst others, are that the children are both citizens of the U.S. and have been habitually resident in California up until January 2007 when they came to Jamaica on vacation. Based on their habitual residence the children have closer connections to California in the U.S. The wife has wrongfully and unilaterally kept the children away from the jurisdiction of their habitual residence. The husband submits that it is in the best interest of the children that they be returned to California and that the appropriate forum for the ventilation and determination of the issues relating to the custody care and control of the children is the U.S.

7

The application has been vigorously contested and both parties filed affidavits in respect of their claims. The first question I must resolve is what approach should the Court adopt in dealing with applications of this sort.

8

Section 18 of the Children (Guardianship and Custody) Act commands that in any proceedings before the Court where the custody or upbringing of a child is in question, the Court in deciding that question shall regard the welfare of the child as the first and paramount consideration. The Court is expressly instructed to disregard whether from any point of view the claim of the father is superior to that of the mother or vice versa.

9

In our Court of Appeal's decision in Lisa Panton v. David Panton , S.C.C.A. No. 21 of 2006 , unreported judgment delivered 29 th November 2006, the Court made clear that in relation to summary return or peremptory return applications or in questions relating to children and the jurisdiction of this Court in the context of private international law, (both of which issues arise in the present case), the welfare principle is the applicable principle. The President of the Court Harrison P. at page 3 of the judgment stated: 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 .

10

The welfare of the child concept encompasses such matters 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 S.C.C.A No. 49/99 delivered 6 th April 2001, at page 8, cited with approval in Panton v. Panton (supra) at page 3.

11

A useful starting point in an analysis of the relevant principles is the House of Lord's decision in Re J (A Child)( Return to Foreign Jurisdiction: Convention Rights) [ 2005] 3 All E.R. 291, notably the lucid and discerning judgment of Baroness Hale of Richmond. That decision, which was referred to in Panton v. Panton, establishes the guidelines/principles which follow in paragraphs 12-21 below.

12

The Court has power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conducting a full hearing on the merits. In doing so the court is not punishing the parent who has acted without the other parent's consent or authority or the...

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