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Case Name
DW v MB - [2020] JMSC Civ 230
INCADAT reference
HC/E/JM 1497
Court
JAMAICA
The Supreme Court of Jamaica
Superior Appellate Court
L. SHELLY WILLIAMS, J
States involved
UNITED STATES OF AMERICA
JAMAICA
Decision
19 November 2020
Final
Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2) | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)
Return ordered subject to undertakings
The Children (Guardianship and Custody) Amendment Act
A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60; Re B (a minor) (habitual residence) 2016 (EWHC) 2174; Re C (Children) 2018 3All ER 1; Cunningham v Cunningham 237 F. Supp. 3d 1246 (M.D. Fla. 2017); Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; Rubio v. Castro, No. 19-3740, 2020 U.S. App. LEXIS 14905 (2d Cir. May 11, 2020); Ahmed v Ahmed 867, F. 3d 682 (6th Cir. 2017)
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SUMMARY
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Facts
The parents had a child, born in 2017 in Maryland, USA. They married in 2018 and lived in Florida, USA, until June 2019 when the mother and the child travelled to Jamaica.
In October 2019 the father filed an application under the 1980 Hague Convention for the return of the child to the USA.
The mother argued, inter alia, that the father had acquiesced to her move to Jamaica with the child, that the child had been in Jamaica for over a year and was now settled, and that the father had been abuser to her and his older children and that there was a grave risk of harm to the child if were to return to the USA.
Ruling
The court ordered the return of the child to the USA.
Grounds
Habitual Residence - Art. 3
The court found the child to be habitually resident in the USA. Adopting a test focused on the integration of the child, the court based its finding on the length of time the child had lived in the USA, the fact that they were part of a family unit there and their social interactions with the family prior to moving to Jamaica.
Settlement of the Child - Art. 12(2)
The court did not find that the child had become settled in Jamaica based on the fact that there was no evidence that the child was attending school, had interactions with family members or had made close friends or become part of a social group. The court also took into account the young age of the child.
Acquiescence - Art. 13(1)(a)
The court found that the father had not acquiesced to the child moving to Jamaica but just to a holiday with a clear intention to return to the USA. The court cited Re C (Children) 2018 3All ER 1, in which Lord Hughes opined that in consenting to the child’s travel a parent is exercising, not abandoning his right to custody.
Grave Risk - Art. 13(1)(b)
The court considered the allegations of domestic violence and found that the child could be returned to the USA with the following safeguards: that there would be regular visits by a social worker; that the defendant was granted daily contact with the child; that the defendant could arrange for visits by either friends or family members to ensure the safety of the child; and that the complaint about the firearm being left unsecured by the claimant be investigated by the relevant authorities.