2022 Family Law – Cases of Note
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PMC and VNL [2022] SC (Bda) 45 Civ
This case involved an application by a father (“F”) for the return of his daughter (“C”) from Texas, USA to Bermuda. The case was heard by Mussenden J in the Supreme Court on 7 June 2022 with judgment being handed down on 22nd June 2022.
Background
C was born in 2006 in Canada whilst F and the mother (“M”) were in a relationship. In May 2011, when C was 5 years old, it was agreed that the family would move to Bermuda. F relocated and secured accommodation, with M and C intending to join him soon after. Unfortunately, the relationship ended and thereafter M and F discussed C moving to Bermuda to live with F, which she did. In 2013, M and F made an agreement that C would remain in Bermuda and F would have full custody, care and control. The agreement was signed, witnessed and dated 3 July 2013. M remained in Canada and C visited her annually.
In 2017, M relocated to Texas to marry her new husband and reside there with him. C visited M in Texas in 2018 and 2019. Covid-19 prevented a visit in 2020, however C returned to Texas in the summer of 2021 with the intention of staying from July until September that year. During the visit, M proposed that C would remain living with her in Texas, but F disagreed. In August, M stated that C would not be returning to Bermuda, which prompted F to make an application to the Court soon after.
Court Applications
In October 2021, an ex-parte application was made for return of C to Bermuda (the “Bermuda Order”). F attempted to enforce the Bermuda Order however, found that this could not be achieved as M did not have notice of the hearing, which was required by the Texas Family Code.
F was required to issue a further summons on 7th March 2022 for a declaration that C was ordinarily resident in Bermuda and should be returned.
In evidence, M submitted a letter from C stating that her desire was to remain in Texas. C was 15 years old at the time of the hearing and the child’s wishes had to be taken into account. It should be noted that in court proceedings if the child has the capacity to understand the implications of decisions being made by them and on their behalf then the child’s wishes and feelings should be taken into account. There is no defined age to apply in terms of capacity and each case should consider the child’s maturity and level of understanding, balanced against their wishes and the responsibility to keep them safe. If there is any doubt as to a child’s competency, a professional may be required to provide an assessment.
M was asked repeatedly during the hearing as to her proposals for access between F and C assuming C were to remain in the USA. She did not provide any solution to her fear that F would remove C from her care during access, and was opposed to F visiting C at her home, or indeed taking C away from M’s home for access [FR2] The Judge was unable to glean her position and considered that M was not prepared to grant F access assuming that C remained living in Texas with M. The Judge had to take into account the fact that C would not benefit from a total ban on access with F, having already concluded that M had sought to alienate F from C, which was not in her best interests either.
In determination of the case, Mussenden J considered the “Welfare Checklist”, which is contained within the UK Children Act 1989. Whilst not part of Bermuda law, it proves a useful resource to bear when the Courts consider the welfare and best interests of a child.
The Judge concluded that, in his view, it was in the best interests of C to be returned to F in Bermuda as that had been her home for over 10 years, without any issues of welfare arising. Mussenden J went on to highlight his concern at M’s apparent lack of access proposals should C remain living in Texas. The Judge made an order in the terms of F’s application to the Court, which included sole care and control and sole custody to F with reasonable access to M. It was also ordered that M should not remove C from Bermuda without F’s permission or Court Order and that F’s costs should be paid by M[FR3] [NC4] .
Whilst M had stated in evidence that she had filed a petition in Texas seeking court orders in respect of C, at the time of trial in Bermuda, no further progress had been made in that regard. It therefore remains to be seen if M will attempt to seek further orders in respect of C in future.
In normal circumstances, the position remains that if a parent wishes a child to relocate, in the absence of the other parent’s consent they would need to make an application to court, prior to removal. The court would then take steps to determine if the relocation was in the child’s best interests, based on the individual circumstances of the case.
It is generally otherwise noted that there has been a notable uptick in the number of international child abduction and wrongful removal cases over the last three years, due to pandemic restrictions preventing children from returning home or complicating travel arrangements. Whilst Covid-19 has caused significant obstacles to international travel and disruption to child access as a result, it appears that the courts have taken a robust view on using these reasons to alter the status quo, or to prevent one parent gaining a perceived advantage as a result of inability to return a child home after access.
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