Re J (A Minor) 1996 Civil Jur No. 444
| Jurisdiction | Bermuda |
| Judgment Date | 01 October 1997 |
| Docket Number | Civil Jurisdiction 1996 No. 444 |
| Date | 01 October 1997 |
| Court | Supreme Court (Bermuda) |
In the Supreme Court of Bermuda
Meerabux, J
Civil Jurisdiction 1996 No. 444
Mrs. G. Marshall for the father
Mrs. K. Williams-Smith for the mother
J v. C (H.L.(E))ELR [1970] AC 668
Re L (Minors)UNK [1974] 1 All ER 913
Re J (A Minor)(Abduction: Custody Rights) (H.L.(E))ELR [1990] 2 AC 562
Re P (GE)(An Infant)ELR [1965] 1 Ch.568
Re E (D) (An Infant)ELR [1967] 1 Ch.287
Re H (Infants)WLR [1966] 1 WLR 381
Re J (A Minor)(Abduction)(H.L.(E))ELR [1990] 2 AC 562
McKee v. McKee (P.C.)ELR [1951] AC 352
DS v. VW 134 DLR (4th) 481 (SCC)
Goertz v. Gordon 134 DLR (4th) 481 (SCC)
Woodhouse v. Woodhouse (1996) 20 RFL 337, 136 DLR (4th) 577
S v. H (Abduction: Access Rights) (1997) The Times March 10, FD
Re C (Minors)(Wardship Jurisdiction)ELR [1978] Fam. 105
Re L (Minors)(Wardship Jurisdiction)WLR [1974] 1 WLR 250
Re R (Minors)(Wardship Jurisdiction)FLR (1981) 2 FLR 416
Re P (A Minor)WLR [1997] 2 WLR 223
G. v. G. (Minors)(Abduction)FLR [1991] 2 FLR 506
Re TA (Infants) (1972) 116 SJ 78
Re T (Infants)ELR [1968] Ch.704
Re Kernot (An Infant)UNK [1964] 3 All ER 339
S & M Motor Repairs Pty. Ltd. and Anor v. Caltex Oil (Australia) Pty. Ltd. and Anor (1988) 12 NSWLR 358
Minors Act 1950 s.6; 12; 22
Guardianship of Infants Act 1925 s.1 (UK Act)
Hague Convention on the Civil Aspects of International Child Abduction 1980, Cmnd 8281, Articles 3,4,5,12
Custody — Forum — Allegations of sexual abuse — Jurisdiction — Independence of the judiciary
There are two applications before the Court. An Ex Parte summons by the father dated 31 October 1996 which was brought under sections 12 and 22 of the Minors Act 1950 (hereafter referred to as ‘the 1950 Act’) for granting the Applicant, the father, custody of the minor child. An Ex Parte Summons by the mother dated 18 February 1997, seeking the following: the dismissal of the Order of this Court dated 31 October 1996, an Order that the forum of convenience for the matter is Ontario, Canada, an Order that was made on 31 January 1997 in the Ontario Court of Justice by Madame Justice Wilson be upheld and an Order restraining the removal of the child from Bermuda by the father.
This Court heard submissions of Counsel in camera on 26, 27, and 30 June 1997. When the matter was adjourned on 30 June 1997 Mrs. Marshall had completed her submissions and Mrs. Williams-Smith had commenced hers. The matter was scheduled to be continued on 10 and 11 July 1997 but the mother on 8 July 1997 requested that it be delisted, which request was granted.
After correspondence between the Registrar of the Supreme Court and Counsel for the parties, the Registrar on 5 August 1997 set down the matter for hearing on 17, 18 and 19 September 1997. The mother by facsimile transmitted on 25 August 1997 informed the Registrar that ‘effectively immediately with effect from 20 August 1997’ she was discontinuing Mrs. Williams-Smith's retainer and henceforth she would be representing herself and that she had informed Mrs. Williams-Smith of that fact.
The mother by facsimile transmitted on 27 August 1997 copied to Mr. George Haynal, Canadian Consul General, informed the Court that she would be arriving in Bermuda on 16 September 1997, that she would represent herself in the matter, that she would like to arrange several access visits with her daughter during the period 16 to 19 September 1997 and that she was surprised by the suggestion of the father's lawyer concerning supervised access to the child.
The mother by facsimile transmitted on 16 September 1997 informed the Court that the repayment of a personal loan made it financially impossible for her ‘to take any more time off work or to return at any time for these court proceedings’. She asked that her submissions which were set out in her facsimile be accepted.
When the matter resumed on 17 September 1997 the mother did not appear. A copy of the facsimile was given to Mrs. Marshall who after a short adjournment, submitted that the mother's written submissions, other than the portions which contained unsworn evidence which was incapable of being examined, be regarded as a speech before the Court and that she be allowed to respond to them.
I ruled that the mother's written submissions other than the portions relating to inadmissible evidence contained in the facsimile be regarded as submissions before the Court. Proceedings concluded on 18 September 1997 and judgment was reserved.
From the evidence I find the following facts. The parties were married on 29 August 1987 and the child of the family was born on 19 January 1990. Prior to 27 October 1996 the parties resided in Toronto, Ontario, Canada.
As a result of the breakdown of the marriage, the mother on 11 August 1993 vacated the matrimonial home together with the child of the family without any prior warning to the father. On 13 August 1993 the mother obtained an Ex Parte Order in the Ontario Court for custody of the child of the family, which Order was set aside on 19 August 1993. At that time the Court ordered an assessment to be performed. An assessment was prepared and recommendations were made to the Court. When the matter returned to Court on 3 September 1993 the parties reached an agreement incorporating the recommendations of the report. Under the agreement, custody of the child was vested jointly in the parties with care and control to the mother and generous access to the father.
Following the joint custody order and after the very first access weekend, the mother made allegations of sexual abuse by the father against the child. In consequence the child was examined by doctors including Dr. Mian from the Scan Team of the Hospital for Sick Children of Toronto (‘the SCAN Team’), thereafter was interviewed by The Catholic Children's Aid Society (‘the Catholic Society’) and other professionals with a view to determining the veracity of the allegations. In consequence of the allegations, the father's access was curtailed and on 13 October 1993 the Court made an Order for supervised access. The investigation by the ‘experts’ continued and on 15 December 1993 the mother made an application to terminate the supervised access altogether. Pursuant to that application, the Court ordered that supervised access was to continue unless criminal charges were laid by the Catholic Society or the police. On 22 December 1993 relying upon the Catholic Society, the police laid criminal charges. The mother made further allegations of other acts of sexual abuse which had to that point never been made. On 4 July 1994 the criminal charges were withdrawn for lack of evidence.
Thereupon the father applied to the Court for unsupervised access which was awarded to him on 18 July 1994. The father then hired a private investigator to video tape and to audio record all access visits. On 4 October 1994 following an access visit to the public library, the mother made further allegations of sexual abuse which on the strength of the video and audio recordings and the observations of the Court appointed assessor could not possibly have occurred. Eventually, the Catholic Society revoked the ‘validation of abuse’ that they had arrived at initially.
On 18 July 1994 the parties agreed that there should be prepared by independent assessors a further assessment which was completed in November 1994. Recommendations were made in respect of interim access and access rules and those recommendations were adopted by further orders of the Ontario Court but the allegations of sexual abuse continued and on 16 June 1995 and by agreement between the parties, the SCAN Team was jointly retained to conduct an in depth assessment. The assessment continued between 16 June 1995 to 15 April 1996. At the commencement of the assessment, the child was residing with the mother and the father was exercising access to her. However, on 13 June 1995 after an access visit the mother made further allegations of abuses which resulted in a recommendation on behalf of the SCAN Team that the child be removed from the mother's home and be placed in a neutral setting. The child was placed in foster care on 16 June 1995 whilst the SCAN Team conducted its investigations. The SCAN Team in its report which was prepared on 15 April 1996 recommended that the custody, care and control of the child be vested in the father and that strict supervised access be permitted to the mother and to her parents. The mother rejected the SCAN Team recommendations and the matter proceeded to trial which occupied ten days of Court time. At the trial the Catholic Society appeared and advised the Court that should custody be vested in the mother the Society would place the child in foster care for her protection.
The mother produced independent expert evidence at the hearing of the matter which sought to challenge the recommendations of the SCAN Team. At the hearing, the mother's expert recommended that the child should remain in the custody of the Child Welfare System in another treatment foster home and that a further assessment be conducted. These recommendations were based on the continuing and strongly held belief of the mother that sexual abuse had taken place. After hearing the evidence, the Court on 26 August 1996 concluded that there was no evidence of sexual abuse and that the child's best interests would be served by the father having custody of her with supervised access to the mother. The child was returned to the custody of the father on 1 September 1996.
On 26 October 1996 the father married a Bermudian and on 27 October 1996 landed in Bermuda with his wife and the child with a fixed intention to live in Bermuda. Since that date the child has resided with the father in Bermuda and the mother has been exercising telephone access to her on a bi-weekly basis as well as supervised access to her in February and June of 1997. On 31 October 1996, the father applied...
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