B v Y

• Jurisdiction: Bermuda
• Judge: Hargun CJ
• Judgment Date: 27 August 2020
• Court: Supreme Court (Bermuda)
• Docket Number: CIVIL JURISDICTION
• Date: 27 August 2020

[2020] SC (Bda) 36 Civ

In The Supreme Court of Bermuda

Before:

Hon. Chief Justice Narinder Hargun

CIVIL JURISDICTION

2020: No. 258

In the Matter of Section 36O of the Children Act 1998

And in the Matter of R.A.E.B. Born on the 15th November 2017, a Minor

Between:

B

Petitioner

and

Y

Respondent

Appearances:

Mr Paul Wilson, DV Bermuda Law, for the Petitioner

Mr Adam Richards, Marshall Diel & Myers Limited, for the Respondent

Application for the return of the child to Bermuda under section 36O of the Children Act 1998; whether the Supreme Court has the power to make orders under section 36O; whether the Court has the power to make orders under section 36O in respect of a child who is not in Bermuda; whether the ex parte Order should be set aside on the ground that the Petitioner failed to make full and fair disclosure of all relevant facts

Reasons for Decision

Hargun CJ

Introduction

1 These proceedings are commenced by Originating Summons filed on behalf of B, the Petitioner/Applicant, seeking an order from the Supreme Court requiring Y, the Respondent, to return C, a child born on 15 November 2017 (the “ Child”), to the Islands of Bermuda and prohibiting the Respondent from sending the said Child out of the Islands of Bermuda without the consent of the Applicant or the leave of the Supreme Court. The Applicant is the father and the Respondent is the mother of the Child, now aged 2 years and 9 months. The relief is sought under section 36O of the Children Act 1998 (the “ Act”).

2 On 7 August 2020, the Court made an ex parte Order requiring the Respondent to return the Child to Bermuda and thereafter prohibited the Respondent from removing the Child from Bermuda without the consent of the Applicant or the leave of the Court. The Court also ordered that the matter be listed for an inter partes hearing, to allow the Respondent an opportunity to be heard and contest the ex parte Order, if she so desired.

3 Following an inter partes hearing seeking to set aside the ex parte Order, the Court set aside the ex parte Order on 20 August 2020 with reasons to follow. I now set out the reasons for the decision to set aside the ex parte Order dated 7 August 2020.

Factual background

4 The Applicant, aged 31 years, possesses Bermudian status and is employed by the Bermudian government. The Respondent, aged 29 years, is a newly qualified teacher from Bridgend, South Wales. The Respondent has parental responsibility for the Child by virtue of registration as mother on the Child's birth certificate.

5 In his First Affidavit dated 6 August 2020, the Applicant states that he met the Respondent in 2015 and a romantic relationship ensued and as a result of the relationship the Respondent gave birth to the Child on 15 November 2017. However, by summer of 2019 the Applicant and the Respondent mutually decided to end their romantic relationship, and agreed to co-parent their Child.

6 The Applicant further states that following the birth of the Child, the Applicant, the Respondent and the Child visited the Respondent's mother, who had just recovered from a stroke, in South Wales, during Christmas 2017. Following that visit, the Applicant states, “we returned to and were living in Bermuda”. In between Christmas 2017 and September 2018, the Respondent and the Applicant flew back and forth between the United Kingdom and Bermuda. The Applicant says that in September 2018, he relocated to the United Kingdom so that he could continue his studies in Bristol at the University of the West of England. However, during this time, the Respondent continued to reside where she currently lives in South Wales.

7 The Applicant says that he returned from the United Kingdom to Bermuda on July 1 2020 with the Child with the expectation that the Respondent would join them in Bermuda two weeks later on 17 July 2020. The Applicant says that around this time he began having suspicions that the Respondent might abscond with the Child and due to these “ strange feelings” he instituted proceedings, in the Magistrates' Court in Bermuda, on 16 July 2020; one day before the Respondent was expected to be in Bermuda. The Applicant contends that he wanted to involve the Bermuda Courts so that the Respondent could not just leave with the Child without formally agreeing arrangements that would allow him to have access. The Respondent was formally served with the Court summons, returnable on 25 August 2020, after she arrived in Bermuda.

8 The Respondent chose not to attend the scheduled hearing before the Magistrates' Court on 25 August 2020, and instead left with the Child and returned to the United Kingdom on 5 August 2017. The Applicant contends that the Child was unlawfully removed from Bermuda by his mother, the Respondent.

9 The Respondent has filed a Statement dated 18 August 2020 in the High Court of Justice, Family Division, in London and a copy of that Statement has been provided to this Court. In that Statement, the Respondent states that she met the Applicant when she was working in Bermuda in 2015 and began a relationship in autumn 2015, and as a result of that relationship the Child was born on 15 November 2017 in Bermuda. She states that the Applicant agreed that both of them would move to South Wales after the Child's birth; partly because she did not want to return to work three months after giving birth which was the maternity leave available in Bermuda, and partly because the Applicant wanted to take a degree course at the University of the West of England in Bristol. The course was a three-year degree course starting in September 2018. The Respondent states that they did not have a fixed plan as to where they would live at the end of the Applicant's degree. The Respondent hoped that the Applicant would like life in the United Kingdom and would wish to remain in the United Kingdom.

10 The Respondent confirms that in autumn 2017 her mother was seriously ill, and the Applicant agreed with her that she should move with the Child to South Wales during Christmas 2017, when the Child was six weeks old, to live with her parents, and the Applicant would follow them to the UK the following September. The Respondent disputes the Applicant's assertion that both of them continued to live in Bermuda with the Child until September 2018 when the child would have been 10 months old. In support of her contention, the Respondent has produced copies of entries in the Child's health Red Book from the GP's surgery in Bridgend, South Wales, showing that the child received his 8 week, 12 week and 16 weeks immunisations in Bridgend and showing notes from the local health visitor's home visits on 4 and 5 of July 2018. The Respondent also claimed child benefit in the UK in March 2018 after a visit to Bermuda in February and has produced documentary evidence confirming this.

11 The Respondent says that she moved into her parents' home in Bridgend on Christmas Eve 2017 with the Child and has continued to live there with the Child since that day save for weekends when they lived with the Applicant in his flat in Newport, Gwent during the period September 2018 to May 2019.

12 During the period the Applicant was still living in Bermuda, the Respondent states that she visited the Applicant with the Child in Bermuda, on two occasions; the first time for three and half weeks in February 2018 and the second time for about three and a half weeks in the summer of 2018.

13 The Respondent confirms that in May 2018 she ended the relationship because the Applicant had been unfaithful. In the summer of 2019, after the end of the relationship, the Applicant took the Child to stay with his parents in Bermuda for two weeks and the Respondent then joined them for a period of about two and a half weeks; staying at the Applicant's parents' home with the Child and the Applicant. She returned to Bridgend with the Child, and the Applicant stayed in Bermuda for a few weeks before returning to Newport to begin the second year of his degree in September 2019.

14 The Child next visited Bermuda when the Applicant visited his parents over Christmas 2019. The Applicant travelled out with the Child five days before the Respondent joined them for the rest of the Christmas period. The Applicant and the Respondent travelled back to the UK separately and the Respondent collected the Child from the Applicant at the airport. The Respondent states that the usual contact arrangements continued as before.

15 Following the lifting of the COVID 19 lockdown restrictions, the Applicant and the Respondent agreed that the Applicant would fly to Bermuda with the Child to visit his parents' home and that the Respondent would follow on 17 July 2020 and stay until 1 September 2020.

16 The Respondent states that shortly after her arrival on 17 July 2020 in Bermuda, she was served with documents from the proceedings the Applicant had initiated in which he claimed joint custody, care and control, defined access and permission to leave the jurisdiction. The hearing of the summons was listed to take place on 25 August 2020 and the Respondent says that she was very concerned that the Applicant had begun such proceedings and decided to return with the Child to Wales which she did, on 5 August 2020.

Legal issues in relation to the application to set aside the ex parte Order

17 Mr Richards, on behalf of the Respondent, has raised three main issues in relation to his application to set aside the ex parte Order:

• (a) The Supreme Court has no jurisdiction to make any orders under section 36O as the “court” referred to in that section means the Family Court.

• (b) Even if the Supreme Court has the jurisdiction to make orders under section 36O, the section only allows the court to make orders in respect of a child who is in Bermuda.

• (c) The court should set aside the ex parte Order in any event as the Applicant failed in his duty of full and fair...