Appeal Court says judge wrong for ordering child back to Ja

THE COURT of Appeal has issued a stern reminder for Family Court judges to bear in mind that they and the courts over which they reside are creatures of statute.

“Making orders in excess of the powers conferred on them by relevant laws and rules (however well-intentioned and motivated by a desire to see justice in a particular case, those orders might be), will invariably result in a reversal of their decisions,” the court outlined this month in its reasons for allowing an appeal and setting aside orders by a Family Court judge.

The reminder was sparked by orders a Family Court judge made that an eight-year-old child, who is the subject of a joint-custody battle, should be returned to Jamaica to her mother, who was the respondent in the case.

On February 3, 2020, the child’s father, who lives in the United States, filed a petition in Jamaica against the respondent for joint custody, care, and control of his daughter. He stated that since October 2019, the child, who had travelled to the country on an immigrant visa, was living with him, his wife, and their two other children. He said the respondent had initially consented to the child living with him but later changed her mind.

The father said his daughter was enrolled in school and was placed under the care of a medical practitioner, and if she was returned to Jamaica, she would lose those benefits.

He said he received a letter dated January 28, 2020, from the United States Department of State informing him that the respondent had applied to the Jamaica Central Authority pursuant to the Hague Convention in the Civil Aspects of International Child Abduction to have the child returned to Jamaica. He was invited to make voluntary arrangements for the return of the child, failing which judicial proceedings would be instituted to determine the child’s country of habitual residence, where the issue of custody should be decided.

The Family Court judge made an order on March 11, 2020, that the child be brought back to Jamaica and returned to her mother, who is the respondent, on April 13, 2020, until the matter was determined. A further order was made that the child should be returned to the US on April 20, 2020, for surgery to be performed on April 28, 2020, and after recovery, the child was to return to live with her mother.

Attorney-at-law Lemar Neale, instructed by Nea/Lex and who represented the father, who was the appellant, argued that the judge lacked jurisdiction to make the orders she did. He submitted that the judge had erroneously considered the issue of forum conveniens (which is the proper forum to determine the case), which did not properly arise since the appellant had submitted to this j urisdiction by filing the custody petition in Jamaica. Neale submitted that the judge made the order on her own volition and not on the application of either party.

Attorney-at-law Vivienne Washington, who represented the respondent, submitted that the judge had considered all the relevant factors in ordering the return of the child to this jurisdiction.

The Court of Appeal, comprising Justice Frank Williams, Justice Nicole Foster-Pusey, and Justice Georgiana Fraser (acting ), ruled that the judge lacked the jurisdiction to order that the child be brought back to Jamaica.

“We were accordingly satisfied that the learned judge was plainly wrong in the exercise of her discretion,” the court ruled.

The court said that with regard to Section 12 of the Children (Guardianship and Custody) Act, the court can, in certain circumstances (such as where a parent has abandoned or deserted the child or acted in such a manner for the court to refuse that parent’s right to custody), make or refuse an order for production of a child.

“However, such an order would be made on the application of a parent, and there is nothing demonstrated in the record of proceedings, taking this case outside the norm. Again, regrettably, the learned judge erred in proceeding in the manner she did.”

The court, after emphasising that the judge was palpably wrong, allowed the appeal, set aside the orders she made on March 11, 2020, and remitted the case for trial at the earliest possible time before a different parish judge.

The case is set for trial on Tuesday.