The Attorney General v Skerritt
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Carter J. |
| Judgment Date | 12 September 2014 |
| Neutral Citation | KN 2014 HC 18 |
| Docket Number | SKBHCV 106 of 2014 |
| Court | High Court (Saint Kitts and Nevis) |
| Date | 12 September 2014 |
High Court
Carter, J.
SKBHCV 106 of 2014
Mrs. Simone Bullen Thompson, Solicitor General, leading Ms. Alethea Gumbs for the Claimant.
Dr. Henry Browne, QC leading Ms. Marsha Henderson and Mr. John Cato for the Defendant.
Custody - Wrongful nature of removal — Hague Convention on the Civil Aspects of International Child Abduction — Children to be returned to the country of their habitual residence — Habitual residence — Question of fact to be decided by reference to all the circumstances of a particular case — Whether there was a wrongful retention of minor children under the convention — Finding that Florida had become the children's place of habitual residence immediately before the alleged wrongful retention — Court precluded from making order for custody under the Convention — Applications dismissed — Article 7(8) of the Schedule of the Child abduction (International Civil Aspects) Act.
Carter J. This matter involves an application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Convention”). The applicant is the Attorney General of Saint Christopher & Nevis, acting as the Central Authority for the Convention in St Kitts and Nevis, pursuant to the Child Abduction Convention (International Civil Aspects), Act No. 12 of 2012.
By fixed date claim form filed on the 4th day of June 2014 the applicant, pursuant to Article 7(f) of the Schedule to Act No. 12 of 2012 which authorizes the Central Authority to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of a child wrongfully removed from his or habitual place of residence, seeks the following relief:
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“1.
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(i) A Declaration that the minor Ethan Eric Rein-Skerritt, D.O.B June 25 th, 2002 and Emma Saba Rein-Skerritt, D.O.B May 25 th, 2004 (the Minors) were unlawfully removed from their habitual place of residence by the Defendant;
or in the alternative
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(ii) A Declaration that the minor children Ethan Eric Rein-Skerritt, D.O.B June 25 th, 2002 and Emma Saba Rein-Skerritt, D.O.B May 25 th, 2004 were unlawfully retained by the Defendant.
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2.
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(i) An order that the minor children Ethan Eric Rein – Skerritt, D.O.B June 25th, 2002 and Emma Saba Rein-Skerritt, D.O.B May 25 th, 2004 be returned to their place of habitual residence within 14 days of the order of the Court or such other date as specified by the order of the Court.
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3. An interim prohibitive injunction restraining the Defendant whether by herself o[r] by another acting on her behalf from removing the minor children Ethan Eric Rein –Skerritt, D.O.B May 25 th, 2004 from the jurisdiction of the Court until the final hearing of the matter.
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4. …”
During the course of the hearing, Counsel for the applicant indicated to this court that she would not be pursuing a declaration of an unlawful removal of the minor children, Ethan Eric Rein-Skerritt, D.O.B June 25 th, 2002 and Emma Saba Rein-Skerritt, D.O.B May 25 th, 2004 (hereinafter referred to as “the children”) by the defendant, but would seek the alternative declaration that the children had been unlawfully retained by the defendant. The Court granted leave to the applicant to amend its claim to reflect this.
In support of the application, the applicant filed an affidavit of the same date. The applicant has acted in this matter pursuant to a request made by the Central Authority for British Columbia, Canada who in turn acted on an application made in that state by Dr. Amy Rein. The basis of the application by, Dr. Amy Rein, is that she and the defendant were involved in a relationship in British Columbia and during the course of that relationship two children were born to the defendant. At their birth the parties were each endorsed as parents on the children's birth certificates.
Subsequent to the children's birth, the parties married under the laws of British Columbia. The children lived together with Dr. Rein and the defendant in British Columbia, from their birth until Dr. Rein and the defendant separated in 2009. After the separation, Dr. Rein and the defendant continued to be both actively involved in the children's lives. In 2013 they moved to Florida with the children.
There is some contention between Dr. Rein and the defendant as to who initiated the move to Florida and also as to whether the move was a conditional one, whether it was a “test case”. However that issue is determined later in this judgment, factually, Dr. Rein and the Defendant moved with the children to Florida in March 2013. They remained there until the children came to St. Kitts on vacation on the 5 th June 2013. The defendant has not returned the children to Florida despite a request from the Dr. Rein to do so. The parties agree that the alleged date of unlawful retention is mid-August 2013, when the children would have returned to Florida to resume their schooling. Dr. Rein now seeks to have the children returned to British Columbia; the place she alleges is the habitual residence of the children.
The defendant filed a defence and a counterclaim in the matter. In her defence she denies that Dr. Rein was residing temporarily inFlorida, United States of America, and instead insists that she was there for a settled purpose. She further denies that the children were unlawfully removed and/or retained from their habitual place of residence in British Columbia. She asserts instead that the children were lawfully removed from Florida, the place of habitual residence of the children, immediately before the alleged unlawful retention. The two children are now aged 10 and 12.
By counterclaim the defendant seeks a declaration pursuant to Article 16 of the Convention, that custody of the minor children be granted to her their natural mother.
In submissions to the court, the defendant went further to state that whatever custody rights over the children Dr. Rein may have asserted in Canada, and she does not admit these, that she cannot assert those rights for the purpose of the Convention as such rights as she might have acquired under the marriage in British Columbia are not recognized under the laws of St. Kitts and Nevis.
The applicant filed a Reply and Defence to the counterclaim dated the 25 th August 2014, reasserting that Dr. Rein and the Defendant are the parents of the minor children under the law of Canada. The applicant denied that the defendant was entitled to the Declaration sought under Article 16 of the Convention and further that the counterclaim had been brought in contravention of the Civil Procedure Rules 2000 (‘CPR’), it having been instituted without the permission of the court or the consent of the Attorney General.
The Court must determine whether there has been an unlawful, or to use the words of the Convention ‘wrongful’ retention under the Convention.
It is without a doubt unobjectionable to state that Hague Convention cases have always presented difficulties to the court because under the Convention it is not the court's function to determine where the children's best interests may lie. Their welfare is not the paramount consideration. The object of the Convention is to ensure that children are returned to the country of their habitual residence for their future to be decided by the appropriate authorities there.
The Convention seeks “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,” 1
Article 1 of the Convention sets out its objects:
“The objects of the present Convention are –
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
Article 3 of the Convention further states that:
“The removal or the retention of a child is to be considered wrongful where –
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
Article 4 sets out the definition of child to which the Convention applies:
“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”
In order to determine whether there has been a wrongful retention, the court must first determine whether the child is a child for the purposes of the Convention as set out in Article 4.
In the instant case both children are under the age of 16 years. The question of whether they were habitually resident in a Contracting State must be taken to mean the Contracting State to which this court is now being asked to order their return. In the instant case, that state is British Columbia, Canada.
Were the children habitually resident in British Columbia, Canada immediately before any breach of custody or access rights? That this is the first question to be determined by this court in order to found its jurisdiction to...
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