Attorney General (Central Authority) v Young (nee New) 2001 Civil Jur. No. 90
| Jurisdiction | Bermuda |
| Judgment Date | 05 September 2001 |
| Docket Number | Civil Jurisdiction 2001 No. 90 |
| Date | 05 September 2001 |
| Court | Supreme Court (Bermuda) |
In the Supreme Court of Bermuda
W. Meerabux, J
Civil Jurisdiction 2001 No. 90
and
Mrs. Debra-Lynn Goins and Mr. L. Rochester for the Plaintiff
Mr. E. Tamine for the Defendant
Re F (Minor: Abduction: rights of custody abroad)UNK [1995] 3 All ER 641
Re V - B (minors) (abduction: rights of custody)FLR [1999] 2 FLR 192
Re H (minors) (abduction : acquiescence)UNK [1997] 2 FCR 257
Re H (a minor) (Abduction: Rights of custody)ELR [2000] AC 291
Re J (a Minor) 1996 Civil Jur. No. 444
Re O (abduction: consent and acquiescence)FLR [1997] 1 FLR 924
W v W (child abduction: acquiescence)FLR [1993] 2 FLR 211
Re A (Minors) (abduction: acquiesence)FLR [1993] 1 FLR 396
Child abduction — Rights of custody — Previous consent of father to removal — Access rights of father — Choice of forum
The Attorney General discharging the functions of a Central Authority under the Convention on the Civil Aspects of International Child Abduction by Originating Summons dated 16 March 2001 inter alia applies under the International Child Abduction Act 1998 (‘the Act’) for an order that the minors, Roxanna (who was born on 19 December 1991 and is now aged about nine and a half), and Jessica-Lynn (who was born on 28 April 1994 and is now aged nearly seven and a half), be returned to the jurisdiction of the Netherlands.
From the affidavit evidence I find the following facts. The two minors (‘the children’) were born to Hendrik De Vreede, the father, and Esther Young, the mother, who were married in the Netherlands on 20 March 1993. The father was born on 14 May 1965 in the Netherlands and is now aged about thirty-six. The mother was born on 23 January 1967 in Sutton, United Kingdom, and is now aged about thirty-four and a half. When the mother was 10 months old her parents moved to Bermuda where her father worked in captive insurance business. While in Bermuda her parents were actively involved in the social community until 1986 when they left.
The mother received her early schooling in Bermuda and after completing her secondary education she graduated in 1983 at the Bermuda High School. She afterwards furthered her education at a boarding school in the United States. In Bermuda she actively participated in gymnastics, horseback riding and music and also competed at an international level for Bermuda in gymnastics. After her parents left Bermuda she continued her schooling in the United States. She has a brother who was born in Bermuda in March 1968 and has since moved back to Bermuda after their parents' departure. He has a home in Bermuda.
In 1987 the mother moved to the Netherlands where she lived and worked. At that time she intended to spend a short time there but in early 1991 she met the father. They were together for a few years and eventually were married in 1993. After marriage the parties lived and worked in the Netherlands.
In 1992 the parties established a company in the catering business. The mother daily ran the business up and until her second pregnancy in 1993 when she became too ill to continue running it. The father took over the running of the business which went into liquidation. The marriage then was going through a difficult period and the parties discussed the idea of separation as well as the idea of the mother moving to Bermuda with the children. The parties also talked about the four of them travelling to Bermuda where the father would help them to settle in before his returning to the Netherlands. At that time the mother's brother had obtained Bermuda status and the mother was hoping that her brother would be prepared to start up a business in which the mother could be involved.
However, the parties decided to work on their marriage though the mother intended to leave the Netherlands and if matters worked out in respect of the marriage the father would come with them to Bermuda. About 1994 the father agreed that the mother should move to Bermuda or the United States with the children. The mother also looked to Bermuda as an alternative just in case she could not work in the United States.
Eventually the parties separated. The father was engaged in an affair with another woman and during the separation for a period of about three months the father rarely visited the children. During the parties' separation in 1995 the parties put up their house for sale and sold all of their electrical items. The father financially assisted the mother's trip to the United States to try to find employment and suitable accommodation for the family though the father preferred Bermuda as the best place where the mother and the children should go. But the parties resolved their differences and the father returned to the matrimonial home. The parties continued discussions about their moving away from the Netherlands. The mother obtained temporary employment, ran the home and nurtured the children. During the day the children attended school and were left with babysitters after school.
Towards the end of 1997 the marriage relationship deteriorated. The father encouraged the mother to move to Bermuda with the children. They even all travelled to Bermuda to explore the possibilities to make a permanent move there. The parties discussed matters in detail with the mother's brother and the father spoke to the mother's friends about business opportunities in Bermuda. They all returned to the Netherlands where the parties decided to make another attempt to save their marriage though the parties agreed that the mother would move to Bermuda as soon as the opportunity arose.
In September 1997 the parties decided to change the registered nick-names of their children to the present names for the reasons that they planned to emigrate to Bermuda in 1998 to build a new life with the children, that the children would be going to an Anglican school in Bermuda and that the children could be baptized in the Anglican Church. A lawyer in the Netherlands applied to the Court to give effect to the parties' wishes.
The mother discussed with the father her unhappiness in the Netherlands and then in 1998 she returned to Bermuda to attend a wedding. On returning to the Netherlands she discussed with the father her wish to return to Bermuda with the children to live there. The father acknowledged the fact of her moving to Bermuda and seriously suggested that they go to Bermuda together so that he could help her and the children to settle into their new lives and that if things did not work out between them then he would return to the Netherlands.
In October or November 1998 the parties considered themselves permanently separated from each other.
In May 1999 the mother with the father's knowledge came to Bermuda with the children to show them the place where they would live. The mother found that the move could be accomplished relatively simply and that there was a real prospect of work for her. She arranged for a place to live.
In June 2000 the mother visited Bermuda where she met her prospective husband, Colin Young, whom she had known many years before. They rekindled a relationship. Her prospective husband knew that she had children and knew that she was returning to Bermuda with the children to live there. On her return to the Netherlands the mother informed the father that she had formed a new relationship and that the move to Bermuda would be more imminent than it had been in the past.
During the twelve days whilst she was in Bermuda the parties agreed that the children would stay with the father. When in Bermuda she tried unsuccessfully by telephone to reach the children because they had spent the weekend with one of the father's girlfriends. After the weekend the children stayed at the home of the paternal grandmother for approximately five days while the father attended a party in Spain.
In July 2000 the mother with the father's knowledge travelled to New York to meet Colin Young. The father knew that the purpose of her trip was to discuss the future and her move to Bermuda.
In August 2000 the mother travelled with the children to Bermuda so that they could meet Colin Young and spend some time with him. Before her departure in August to Bermuda the mother informed the father of her intentions. In September the mother and the children returned to the Netherlands. Colin Young travelled with them. Colin Young before he left the Netherlands met members of the father's family and a few of the father's friends, however, the father refused to see him.
When she returned to the Netherlands the father asked her what were her immediate plans and thereupon she told him that she would be moving to Bermuda very shortly and that she and Colin Young planned to be together permanently and then they discussed how access to the children would work. The parties spoke again in September 2000 about the same subject and the mother stated that she would be moving with the children to be with Colin Young.
After Colin Young left the Netherlands the father threatened her, intimidated her both verbally and physically and she was afraid to be alone with him. She would always be sure to have somebody in the house if she knew that the father would be there. The father no longer wanted to discuss what her plans for the future were and would avoid any conversations about that subject. The father would hang up the telephone on her if she tried to inform him of new developments.
The parties changed lawyers and the father on occasions threatened the mother to have his company declared bankrupt so that the mother would have to pay all his debts as she was the guarantor of the debts. The parties eventually agreed to and signed a Divorce Covenant in the Netherlands—the father signed the Covenant on 8 September 2000 and the mother did so on 9 September 2000. The...
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