Ramsay-Hale J
```markdown # IN CHAMBERS THE GRAND COURT OF THE CAYMAN ISLANDS **CAUSE NO: 190 OF 2005** **BETWEEN:** **IRENE COX** (Plaintiff/Respondent) **AND:** **ALFRED COX** (Defendant/Applicant) **CORAM:** RAMSAY-HALE J. **Appearances:** - Ms. Della Campbell of Della Campbell & Associates for the Respondent - Mrs. Sheridan Brooks of Brooks & Brooks for the Applicant **Dates of hearing:** 21st February, 2006 ## RULING This is a matter concerning the custody of a minor child, resident in the Cayman Islands, who is the subject of orders for custody and residence made by a competent court in Harris County, Texas in the United States, which exercised original jurisdiction in the context of ancillaries to divorce proceedings. The Applicant father in these proceedings asks this Court to recognise the orders of that Court and to enforce them. In their submissions, Counsel identify the issue for resolution before me to be whether the Texas court is the proper court to vary orders relating to the child and which Court has jurisdiction over the said minor child. The Court is parens patriae of all children who are ordinarily resident within its jurisdiction. The child has been resident here since November, 2004
when his mother and step-father set up a household in Grand Cayman and enrolled the child in school. He has remained here ever since, apart from visits to his father in the United States.
The real question is not whether this Court has jurisdiction, but whether it should exercise its jurisdiction or disclaim it, given that issues pertaining to custody of the child have already been heard and determined by a competent court.
I briefly set out the chronology of custody proceedings taken in this and in the Texas Court:
In 2002, a divorce decree was made in which the custody of the child subject of these proceedings was granted to both parents with the care and control to the mother who, importantly, had the right to establish the child’s primary residence. The father had certain rights of access, which were stipulated therein.
In October, 2004, the mother came to live in the Cayman Islands and the child was brought to the jurisdiction in or around November of that year.
Once notified that she had removed the child from Harris County, the father took immediate steps to seek relief from the Texas Court and applied through his attorney for a “Motion to Restrict Residence.”
The matter was faring in Texas in May 2005.
On April 22nd, 2005, the mother filed her Texas decree with the Court and asked that the Order be "mirrored" in the Grand Court, save that the reference to the child's primary residence reflect that he now lived in the Cayman Islands. On June 6th, the father's Motion to Restrict Residence was heard and granted. That Court ordered that the child's residence be restricted to Harris County and that the child be returned to the United States on the 1st August. All other particulars of the custody order remained as before. The mother's applications to that Court to decline jurisdiction was dismissed. On the July 27th, the mother filed an ex parte summons for custody in the Grand Court and was awarded interim custody. The father subsequently obtained an injunction and temporary custody in an order that required the mother to immediately deliver the child into his care. A Summons was filed in this Court by the mother seeking final orders for custody. The matter was adjourned to the 23rd day of February for the issue of jurisdiction to be determined. Conv the return ld, I mu iy made: I their Aby the fat just ostens ui Counsel Althoplication ther is 2ention for of the chiibl; t as bot inIague submissions used terms that evoke, if not invoke, it. Ms. Brooks used the term
'kidnapping' in her skeleton argument and raises for the Court's consideration the issue
of whether the mother had taken the child out of the United States wrongfully, in breach
of an implied restriction against her doing so. 4.
The Convention is designed to restore children to their habitual place of residence and to
the care of those who have the 'rights of custody'. Where a child is wrongfully removed
from the State of habitual residence or wrongfully retained in another State, the Courts of
that State have continuing jurisdiction over matters concerning the custody of the child.
The Convention therefore provides for local Courts to order the peremptory return of
children to their State of habitual residence without any inquiry into the merits of any
custody issue. In other words, without exercising jurisdiction. This is the only departure
from the common law which provides for the recognition of the decisions of foreign
Courts as a matter of comity. At common law, the Court may order the peremptory return
of a child but only if satisfied that it is in the best interests of the child to do so. 15.
The first issue, to my mind, is whether the child was wrongfully removed or retained in
Convention terms.
Article 3 states:
The removal or retention of a child is to be considered wrongful where:
(a) it is in breach of the rights of custody attributed to a person ... either jointly or
alone, unw of the S the child
immediathe removal was habit
under the latate in whually reside
ely before t or retenicent
These protected 'rights of custody' are not defined in the Convention, but they include the rights relating to the care of the person of the child and the right to determine the child's place of residence.1 In determining the issue of whether the father had Convention custody rights which were breached when the mother removed the child from the United States, I turn to a consideration of the original Orders dealing with the care and custody of the child which were made in proceedings ancillary to the parties' divorce in 2002. That Order granted the parties joint custody but gave to the mother the care and control of the child and the right to establish the child's residence, while the father enjoyed what we would call rights of access. There was only one restriction on the mother's right to determine the child's residence expressed in the Agreed Final Decree of divorce and I reproduce the relevant section below: The residence of the minor children is and their domicile is restricted to the school district in which each child is enrolled on the date of entry of this decree, and remains so restricted so long as child support is due and payable in relation to Adam Cox, thereafter all such geographic restrictions are removed. At the time of her coming to Cayman, that geographic restriction was no longer in place. Counsel for the father has invited me to say that there was an implied restriction on her removing the child from the United States. No expert evidence has been led to show that the law of a restriction implied and the us words I decline to 2ce of any vision. Rely unambiguously clear amou under Texas succession is to be do so in the absence of express providing on the basis, I find that her right to establish the child's residence was unrestricted. Further, the
The agreement did not give the father the right to refuse or consent to the removal of the child by the mother, a provision which has been held in many Convention cases to confer enforceable custody rights on a father\footnote{Re P(A minor) cf Thompson v Thompson: “A bare right of veto would not be a ‘custody right’ in Convention terms as it merely protects a person’s rights of access.}. In the circumstances, I am satisfied that under the Convention the removal was not wrongful. Nor has the mother’s keeping the child here been rendered a wrongful retention in Convention terms by the later orders of the Texas Court restricting the child’s residence and awarding the father temporary custody. Dicey, in his text \textbf{Conflict of Laws}\footnote{Fourth Cumulative Supplement to the 11th Edition, 1991} examining the ambit of the Convention says, “Where a child is removed by the only parent with custody rights, the removal cannot be wrongful. A later order of the foreign Court giving custody rights to the other parent cannot render the continued keeping of the child “wrongful retention.” As Butler-Sloss LJ, observed, in \textbf{Re G (A Minor) (Enforcement of Access Abroad)},\footnote{[1993] Fam 216} the Convention did not envisage that Orders from a state, which was not the state of habitual residence, would continue to govern the affairs of a child living permanently elsewhere. I conclude then that the child’s removal was not wrongful and the Convention does not apply.
```html 1 Counsel for the father, in fact, grounded her application, not on the Convention, but on 2 the provisions of the Matrimonial Causes Law. 3 Section 7(1) of that Law states, inter alia, that 4 “The Court will recognise the decree or order of a foreign court with 5 reference to the marital status of the parties... 6 7 And at 7(3), 8 “Nothing in this section shall be construed as requiring the recognition of 9 any finding of fact made in the proceedings of the foreign court other than 10 the findings of fact upon which the jurisdiction was assumed, which latter 11 findings shall be binding upon the Court. 12 13 Counsel submitted that, under that law, the Court is obliged to recognise the jurisdiction 14 of the Texas Court, as the finding by that Court that it had the jurisdiction to make the 15 order is binding on this Court, per section 7(3), and that this Court should disclaim 16 jurisdiction and hold that the Texas Court is the proper forum to vary orders concerning 17 the custody of the child. 18 19 In my view, the section does not speak to custody orders but only to orders concerning 20 the marital status of the parties and is not relevant to the question in front of me. 21 22 The application is really under the inherent jurisdiction of the Court. As I noted before as 23 a matter of comity, Courts will recognise and enforce the orders of a competent foreign 24 Courtrt has alreased (‘min 25 the apy mother. 26 ```
But Counsel's application seeks the recognition and enforcement of the later Orders of the Texas Court. In making the orders in June of 2005, restricting the child to Harris County the Texas Court expressly found that it had continuing - and exclusive- jurisdiction on the ground that the child was still habitually resident there, some 8 months after the child had taken up residence in Cayman. The grant of temporary custody to father was made some 11 months after his removal from the United States, In our law, the child falls to be regarded as habitually resident here. In **Re J (A Minor) (Abduction)**, it was held that a person who leaves a country with a settled intention not to return to it loses his habitual residence there immediately. It was also held that the habitual residence of a child in the lawful custody of one parent (and who on the facts of the case was in the actual care of that parent) was necessarily the same as that parent's. This is the case here. Ms. Brooks' submission, citing the decision of the Court in **Re P(G.E.) (An infant)**, that one parent cannot change the habitual residence of a child by his or her own wrongful act, does not assist as the original removal of the child was not, on the available evidence, wrongful. In my view, the effect of an order for custody that permits the mother of a child to change the child’s habitual residence must be to transfer jurisdiction to the court in the new place of residence. I t that, und
```html 1 appeal. However, I refuse to recognise the later orders as in our law the Court acted in 2 excess of its jurisdiction. 3 4 Even if I am wrong, recognising the orders of a foreign Court would not oblige me in any 5 event to enforce them. The principle to be applied to foreign custody orders was stated by 6 Simonds LJ in McKee v McKee: 7 8 “The order of a foreign Court...has not the force of a foreign judgment: 9 comity demands, not its enforcement, but its grave consideration. This 10 distinction, which has long been recognised in the Courts... rests on the 11 peculiar character of the jurisdiction and on the fact that an order 12 providing for the custody of an infant cannot in its nature be final.” 13 14 In the instant case, even if I were obliged to recognise the later orders of the foreign 15 Court, I would refuse to exercise my discretion to order that the child be produced and 16 delivered into the custody of his father without hearing evidence that went to show that 17 this was in the child’s best interests. I would, given the length of time that the child has 18 been here, consider that it was not in his best interests to be returned without such an 19 inquiry. He is well-settled and is currently enrolled in school He has potentially very 20 strong ties to the community and there is evidence that he is very attached to his mother 21 who has been the custodial parent since the parents divorced. 22 23 In resissues befo satisfied thion and is t 24 prope vary order pect to y c 25 habituall resident here. The evidence of how well the child’s needs have been met by the 7 [1951] A.C. 352 at p. 364.
health, leisure and educational opportunities here, the availability of resources to provide
for his special needs, the value, if any, of the extended family relationships enjoyed in
these Islands, the economic opportunities of his mother and step-father and other
evidence relevant to such an inquiry is available here, as is the evidence of the child, if it
is desired by the Court. Evidence concerning his care, his education and his personal
relationships is no longer available in Texas.
Justice Ramsay-Hale
Acting Judge of the Grand Court
16th March 2006 ```html 1 health, leisure and educational opportunities here, the availability of resources to provide 2 for his special needs, the value, if any, of the extended family relationships enjoyed in 3 these Islands, the economic opportunities of his mother and step-father and other 4 evidence relevant to such an inquiry is available here, as is the evidence of the child, if it 5 is desired by the Court. Evidence concerning his care, his education and his personal 6 relationships is no longer available in Texas. ``` ```latex \begin{table} \begin{tabular}{|c|c|} \hline 1 & health, leisure and educational opportunities here, the availability of resources to provide \\ \hline 2 & for his special needs, the value, if any, of the extended family relationships enjoyed in \\ \hline 3 & these Islands, the economic opportunities of his mother and step-father and other \\ \hline 4 & evidence relevant to such an inquiry is available here, as is the evidence of the child, if it \\ \hline 5 & is desired by the Court. Evidence concerning his care, his education and his personal \\ \hline 6 & relationships is no longer available in Texas. \\ \hline \end{tabular} \end{table}