[2022] JMSC Civ 43
CLAIM NO. SU2022FD00147
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Habitual Residence - Grave risk — Discretion after one year
Mr Charles Young, Assistant Legal Officer For The Jamaican Central Authority Appearing For The Claimant.
Ms. Bianca Samuels instructed by Knight Junor Samuels for the Defendant
The Claimant is a nurse who presently resides in Texas in the United States of America. She is originally from Tanzania. The Defendant is a businessman who resides in Jamaica. The Claimant and the Defendant have a child, PW, born on the 18 th of February 2012. After the birth of PW, the parties resided in Florida, United States of America for a number of years. The parties resided together between 2012 and 2014 and later, between 2015 and 2016. The Claimant had primary care of PW with the Defendant taking care of PW whilst the Claimant was at work or when the Claimant attended school.
The Claimant moved out of the shared accommodation with the Defendant and later successfully filed for maintenance of PW in Florida in March 2017. The Defendant, by his own admission, refused to honour the terms of the maintenance order and as such has never made any payments pursuant to the order. The Defendant left Florida in 2017 and eventually moved back to Jamaica. The Claimant has sole custody PW and solely cared for PW up to August 2019.
The Claimant indicated in her affidavit that PW had disciplinary problems in school and had been suspended on a number of occasions. The Claimant had PW assessed by a psychologist who opined that the issues that PW was experiencing may have been as a result of the absence of a male figure.
The Claimant, in her affidavit indicated that she entertained two options to establish a male figure in PW's life. The first option was to have PW reside in Jamaica with the Defendant to see whether this may lead to the improvement in behaviour. The second option was to send PW to her relatives in Tanzania, for a year.
The Claimant and the Defendant agreed in August 2019 for PW to reside with the Defendant. The Claimant and the Defendant entered into what the Claimant described as an oral agreement. The Defendant defines it as an understanding, for PW to reside in Jamaica. In April 2020, the parties had a disagreement and the Claimant requested the return of PW to her in The United States of America. The Defendant refused. The Claimant then filed an application under The Hague Convention in the United States of America in August 2021. That application was then referred to Jamaica's Central Authority on the 16 th of September 2021. The Central Authority then filed a Fixed Date Claim on the 14 th of January 2022. This Fixed Date Claim Form was supported by affidavits, from the Claimant and Ms Maxine Bagalue. The Defendant filed an affidavit in response on the 28 th of February 2022 and the Claimant filed a reply on the 7 th of March 2022. There was an attempt at mediation which failed.
The Claimant in the Fixed Date Claim Form is seeking the following orders:-
The reasons proferred by the Claimant in her Fixed Date Claim Form for the requested orders are:-
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1. An Order for the return of PW, born on February 18, 2012, in the Jackson North Medical Centre in North Miami Beach, Florida 33169, United States of America to the place of habitual residence in the United States of America.
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2. An Order that the Defendant, within twenty-four (24) hours of being notified of the confirmed date of return to the United States of America, hand over PW to the Claimant or her personal representative;
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3. An Order directing that the Defendant surrenders to the Central Authority all travel documents in his possession belonging to PW;
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4. An Order requiring the Defendant take PW to the Central Authority, located at 48 Duke Street in the parish of Kingston, every Monday and Friday on or before 3:00p.m., from the date of this Order until the date of return to the country of PW's habitual residence;
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5. An Order for travel expenses to be borne by the Defendant;
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6. Such further and other relief as this Honourable Court deems fit.
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1. Wrongful retention of PW by the Defendant as per section 7C (1) of the Children (Guardianship and Custody) Amendment Act;
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2. Application for the return of PW being made pursuant to section 7E (1) of the Children (Guardianship and Custody) Amendment Act;
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3. An Order for the return of PW as per section 7M of the Children (Guardianship and Custody) Amendment Act;
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4. The Central Authority regards the surrender of travel documents and bi-weekly reporting by the defendant as necessary measures within the meaning of section 7D (2) (a) of the Children (Guardianship and Custody) Amendment Act; and
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5. The Court may make an order for the Defendant to pay expenses associated with travel and the return of the child as per section 7S (3) of the Children (Guardianship and Custody) Amendment Act.
The Claimant's case was that she has custody of PW and has never relinquished her custody. She has submitted that it was due to the fact that PW was constantly being suspended from school that she sought to address the issue as identified by the psychologist in the United States of America. The issue identified by the psychologist being that PW required a male role model. The Claimant submitted that she entered into an oral agreement with the Defendant for PW to reside in Jamaica under certain conditions. These conditions were:
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a. That PW was to reside in Jamaica for one year.
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b. That the Defendant was to be responsible for all of PW's expenses.
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c. That she would terminate the maintenance order in Florida.
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d. That she would have access to PW.
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e. That she would be able to visit PW.
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f. That PW would be enrolled in a school.
The Claimant indicated in her affidavit that she made attempts to have the Defendant sign an agreement to reflect these condition but he failed to do so.
In carrying out the terms of the agreement the Claimant averred that she:-
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i) Filed an application in the court and terminated the maintenance order.
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ii) Applied for and had the school records of PW forwarded to the Defendant so that he could have PW enrolled in school.
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iii) Visited PW in Jamaica on one occasion in November 2019 and later made arrangements for a second visit in February 2020. The plan to visit Jamaica in February 2020 did not materialise.
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iv) Voluntarily paid for PW dental visits and hair appointments. She also, on occasions, ordered and paid for food for PW on line.
The Claimant stated in her affidavits that part of the agreement between herself and the Defendant was for the Defendant to be financially responsible for PW whilst in Jamaica. The Defendant, however, started to demand money from her. In her second affidavit, she admits that some of the funds she sent to Jamaica were voluntary but that a number of the payments were requested by the Defendant. She indicated that she forwarded three sums of money to the Defendant for the enrolment of PW in school. This money had been demanded from her by the Defendant.
The Claimant indicated that she visited Jamaica in November 2019 and whilst here she and the Defendant visited Hillel School. After her visit to the school, she agreed with the Defendant that it would be a suitable school for PW. The Claimant then arranged for PW's school records to be forwarded to the Defendant so that he could be enrolled in school. In April 2020, after a disagreement with the Defendant, The Claimant decided that PW should be returned to her in the United States of America as the agreement between herself and the Defendant was not being honoured. The Defendant refused to return PW. In September 2020, she demanded to know which school PW was attending and the Defendant then sent her a receipt from The America International School in Kingston (“ASIK”) School purporting to show that PW was enrolled there. The Claimant then contacted (“ASIK”) to make enquiries about the progress of PW and was told by the school personnel that PW was not enrolled there. In support of this claim the Claimant exhibited to the court a copy of the receipt that she purports the Defendant had sent to her.
On realising that PW was not enrolled in school, the Claimant averred that she sought to enrol PW in a school in Texas whilst the case was progressing through the court system. She averred that her son would have been provided with a computer to access his classes on line, but that the Defendant refused to allow PW to participate in the classes.
The Claimant stated in her affidavit that she had enrolled and paid for PW to attend classes through an online program with Khan Academy whilst PW was in the United States of America. The Claimant stated that she continued to pay for this course whilst PW was in Jamaica as she realised that he had not been enrolled in any local school. On a perusal of PW's attendance record for this course whilst he was in Jamaica with the Defendant, the Claimant realised that his attendance was quite poor.
The Claimant submitted that she requested the return of PW in April 2020 as the Defendant had breached the agreement, and in particular, that PW had not been attending school in Jamaica. The Defendant refused to return PW to the Claimant. The Claimant then filed the Fixed Date Claim Form before the court seeking an order from the court for the return of PW, on the basis that the United States of America is PW's habitual place of residence. In support of this assertion, she gave a list of the schools PW had attended prior to arriving in Jamaica. In addition, she...
