Laws of Eve | Developments in child-abduction cases

Now that Jamaica is a signatory to The Hague Convention on the Civil Aspects of International Child Abduction ("the Abduction Convention") and amended the Children (Guardianship and Custody) Act to include the appropriate provisions, it is important for us to increase our awareness of how the convention is interpreted and applied.

On February 14, 2018, the United Kingdom Supreme Court delivered a judgment in the matter of C (Children) [2018] UKSC 8. The case concerned two children who had lived together with their parents in Australia. Their mother, a British citizen, initially took them to England for holidays, with their father's consent, and then extended the stay to one year until June 2016, also with the agreement of the father.

During the course of the year, the mother enrolled one child in school and later applied for both children to become British citizens. When pressed by the father as to the planned date for their return to Australia, the mother then indicated that she had plans to remain in England.

The father filed an application under the Abduction Convention for the children to be summarily returned to Australia. The important issues surrounded the questions of whether the children were habitually resident in England or Australia at the time the application was made, and when the retention of the children in England became wrongful, since they were originally there by agreement.

Habitual Residence

On the question of habitual residence, the Supreme Court held that, "The convention cannot be invoked if by the time of the alleged wrongful act, whether removal or retention, the child is habitually resident in the State where the request for return is lodged." Effectively, the children would not be returned to Australia for the issues surrounding their custody to be heard. Those issues would have to be heard in England.

On the question of wrongful retention, the court held that, "So long as the travelling parent honours the temporary nature of the stay abroad, he is not infringing the left-behind parent's rights of custody. But once he repudiates the agreement, and keeps the child without the intention to return, and denying the temporary nature of the stay, his retention is no longer on the terms agreed. It amounts to a claim to unilateral decision where the child shall live. It repudiates the rights of custody of the left-behind parent, and becomes wrongful."

The father won the battle but lost the war. The court accepted that the mother wrongfully retained the children in England, even before June 2016, because she had formed the intention not to return to Australia and acted on it during the period the father had given consent for the children to remain in England. However, the summary return order was not made because the children had already become habitually resident in England by the time the father made his application to the court.

There are at least two lessons to be learnt from the experience of the father in this case:

- Even if one parent agrees to have the children travel with the other parent overseas temporarily, and clearly opposes a permanent move, the children may become habitually resident in the country that they are visiting.

- The parent who gives consent for the children to travel overseas temporarily must be vigilant and make an application under the Abduction Convention to secure summary return of the children when there are signs that the other parent is making plans to make the move a permanent one.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.