THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

ANTIGUA AND BARBUDA

CLAIM NO. ANUHCV 201210124

IN THE MATTER of the Inherent Jurisdiction of the Eastern Caribbean Supreme Court

And

IN THE MATTER of the Inter-American Convention of the International Return of the Children ratified

by the House of Representatives pursuant to the Ratification of Treaties Act 1987 (No.1 of 1987) on

the 10th
January 1994.

And

IN THE MATTER of Guardianship of Infants Act Cap. 197 of the laws of Antigua and Barbuda

Revised Edition 1992

And

IN THE MATIER of the Juvenile Act, Cap 229 of the Laws of Antigua and Barbuda Revised edition

1992

BETWEEN:
THE ATTORNEY GENERAL OF ANTIGUA AND BARBUDA
Applicant
AND
MICHAEL GERARD MOORE
Respondent
Appearances:
Dr. David Dorsett, Ms. Alicia Aska and Ms. Sherrie-Ann Bradshaw for the Applicant
Ms. Nelisa Spencer for the Respondent
2012: April 11
JUDGMENT
FACTUAL BACKGROUND
[1] The Applicant in this matter is the Attorney General of Antigua and Barbuda acting in the
capacity of the designated “Central Authority” under the Inter American Convention on the
International Return of Children (lithe Inter-American Convention”).
1
..
[2] The Central Authority has in this matter acted based on arequest which it received on behalf of the
mother of the two minor children involved, Ms. Beatriz Nunez (the mother).
[3] The Respondent Michael Gerard Moore is the father of the children namely Michael Galo Moore
Nunez Delarco born on the 17th December 2004 and Deborah Taylor Moore Nunez Delarco born
on the 13th February 2008. He is an American Citizen and is the husband of Ms. Beatriz Nunez,
an Ecuadorian citizen. Mr. Moore and Ms. Nunez were married in Ecuador in 2000. The children
were born in the United States of America (USA). They have dual citizenship, namely American
and Ecuadorian citizenship.
[4] Since 2000 until around early 2008, the couple lived in New York, United States of America where
both children were born. In 2008 the family moved to Ecuador.
[5] On 8th July, 2011 the father, with the express written permission of the mother, travelled with the
children from Ecuador to the United States. According to adocument exhibited with the Affidavit of
the mother, the children left Ecuador with the father “due to vacation purposes”. According to the
Affidavit of the mother filed on the 22nd
February 2012 in support of the Fixed Date Claim filed on
the same date, the mother, on the 1st
July 2011, authorized the Respondent to travel with the
children from Ecuador to New York on American Airlines on July 8th 2011 for one week during their
school’s vacation. The school vacation started on July 10th
2011 and the children were required to
be back at school on July 18th
2011.
[6] The children were not returned to Ecuador for the start of the new school term beginning 18th July
2011 and have not been back to Ecuador since their departure of 8th
July 2011.
[7] On or about 23rd
August 2011, while in the USA, the father petitioned the Supreme Court of the
State of New York seeking custody of the children. On 24th August 2011 the Honourable John C.
Bivona (“Judge Bivona”) issued an “Order to Show Cause” which among other things stipulated
that ·Pending the Hearing and Determination of this Petition, the Respondent [the wife], nor her
2
agents or employees, shall remove the infant issue from jurisdiction of the State of New York,
U.S.A”.
[8] On 9th September 2011 the mother made a request to the Central Authority of Ecuador seeking its
assistance with respect to the return of the children from the United States provided for by the
Hague Convention on the Civil Aspects of International Child Abduction (“The Hague Convention”).
The Ecuadorian Central Authority made the request to the American Central Authority, the United
States Department of State (“Department of State”).
[9] By letter dated 29th September 2011, the Department of State wrote to the father encouraging him
“to voluntarily return … [the children] to Ecuador for a custody determination there”. By a second
letter dated 29th September 2011 the Department of State wrote to Judge Bivona so that he
“should therefore be aware that an application for the return of … [the children1 to Ecuador under
the 1980 Hague Convention”.
[10] In November of 2011, the Respondent left New York, USA with the children and travelled to
Antigua and Barbuda.
[11] By letter dated 4th January 2012, the Ecuador Central Authority wrote to the Applicant, the Central
Authority under the Inter American Convention on the International Return of Children (lithe Inter­
American Convention), requesting that he “promote an urgency procedure to obtain the return of
the children to their habitual residence that is in Ecuador”,
[12] By letter dated 20th February 2012, the Solicitor General on behalf of the Applicant wrote to the
father to inform him of the Applicants “intention to proceed in accordance with the Inter-American
Convention on the International Return of Children” and inviting him to a meeting on 21 st
February
2012. That meeting never took place.
[13] On 220d
February 2012 the Applicant by Fixed Date Claim Form (supported by evidence on
Affidavit) initiated the instant proceedings seeking an order that the father present and return the
3
children to the Applicant (or alternatively to the Court) and an injunction restraining the father from
removing the children from the jurisdiction pending the final determination of this matter.
[14] On 22nd
February 2012 this Court, among other things, ordered that the father do present and
return forthwith the children to the Applicant and further ordered that the father be restrained from
removing the children from the jurisdiction of Antigua and Barbuda pending the final determination
of the matter.
[15] Several applications have been made in the matter and a number of affidavits have been filed as
shown in the following table.
Table of Affidavits filed in the matter
No. Date Deponent Title
1 22 February, 2012 The Mother Affidavit in Support of Fixed Claim Form
2 22 February, 2012 The Mother Affidavit of Urgency in Support of
Application without Notice
3 05 March, 2012 The Father Affidavit of Objection to Application
4 06 March, 2012 The Father Affidavit of Urgency in Support of
Application
5 08 March, 2012 The Mother Affidavit of Beatrice Nunez Del Arco
Garcia
6 12 March, 2012 Lebretch Hesse Affidavit in reply to the Respondent’s
Objection
7 16 March, 2012 The Father Affidavit in reply to Affidavits of Lebretch
Hesse and Beatrice Nunez Del Arco
Garcia
8 22 March, 2012 Lebretch Hesse Supplemental Affidavit
9 28 March, 2012 Lebretch Hesse Supplemental Affidavit
10 28 March, 2012 The Father Affidavit pursuant to order
11 28 March, 2012 The Mother Affidavit of Beatrice Nunez Del Arco
Garcia
Affidavit of Beatrice Nunez Del Arco
Garcia
12 28 March, 2012 The Mother in Response to Defendant’s affidavit of
28th
/March/2012
4
THE APPLICABLE LAW
[16] The application before the Court was brought primarily under the Inter-American Convention on
the International Return of the Children (the Inter-American Convention) which was ratified by the
House of Representatives of this Country pursuant to the Ratification of Treaties Act 1987 (No 1of
1987) by way of Statutory Instrument NO.4 of 1994. The purpose of the Convention is as stated
in Article 1thereof.
ARTICLE 1
“The purpose of this Convention is to secure the prompt return of children habitually resident in one
State Party who have been wrongfully removed from any State to a State Party or who, having
been lawfully removed, have been wrongfully retained. This Convention further seeks to secure
enforcement of visitation and custody rights of parties entitled to them.”
[17] Article 2states that “for the purposes of this Convention, child shall be any person below the age of
sixteen years.” In the instant case, the children are aged 7years and 4 years respectively.
PRELIMINARY ISSUEflSSUE # 1.
[18] In her closing submissions, Ms. Nellisa Spencer, Counsel for the father, the Respondent Michael
Moore contends that: ­
“Although ratified it (the Inter-American Convention) is not part of domestic law as made clear by
section 3(3) of the Ratification of Treaties Act, Cap 362 of the Laws of Antigua and Barbuda
Revised Edition:
The sub- section states:
“No provision of a treaty shall become, or be enforceable as part of the law of Antigua and
Barbuda except by or under an Act of Parliament.”
[19] Counsel submits that a mere resolution ratifying the Convention is not equivalent to an Act of
Parliament and as such it does not have status as domestic law. She adds further that, Mr. Hesse,
Solicitor General, of Antigua and Barbuda for the past seventeen years, under cross-examination
accepted this position as being accurate. She further states that, the effect of the Convention not
being part of domestic law is that in the exercise of any discretion a court may not rely on
International law where same conflicts with domestic law. In such instances domestic law still
5
”
prevails. She states that it is very well established that an international legal act must be
transformed in domestic law before it can give rise to binding rights or obligations for subjects in
the legal system. The Ratification of Treaties Act of Antigua is clear as to how this transformation
must take place. This point has been repeatedly highlighted by the courts also. (J. Astaphan and
Co (1970) ltd v Attorney General of the Commonwealth of Dominica1
; Higgs v Minister of
National Security and Others2
; Attorney General et al v Boyce and Joseph (2006)3.
[20] Counsel for the Respondent further submits that:­
a) The Court is apparently being asked to order the return of the children to Ecuador and the
Convention contains various principles which the court should consider in coming to its
decision as to whether or not to return the children to Ecuador.
b} Since the primary provision under which the proceedings were initiated is the Convention,
her submissions focus primarily on the various factors as set out in the Convention. The
Court is reminded from the outset that “the principles of domestic law trump the principles
set out in the Convention.”
c} The Court is seized with jurisdiction under various pieces of domestic legislation and the
court is also seized with its inherent jurisdiction. This matter involves the welfare of the
children and the court is well aware of the fundamental principle which runs through
domestic law that the welfare of the children is paramount in determining matters which will
directly affect children.
d} Notwithstanding any factors or tests set out in the Convention, the applicable and
governing principle under which this matter ought to be determined is the welfare/best
interests of the two minor children.
I Civil Appeal No.5 of 1997
2 [2000]2 AC 228
3 CCJ Appeal No. CV 2of 2005.
6
”
[211 Counsel for the Applicant have addressed the issue of the ratification of the Inter-American
Convention as follows:­
(a) Section 3(1 )-(3) of the Ratification ofTreaties Act provides as follows:
“3. (1) Where atreaty to which Antigua and Barbuda becomes party after the coming into force of
this Act is one which affects or concernsa) the status of Antigua and Barbuda under international law or the maintenance or support
of such status, or
b) the security of Antigua and Barbuda, its sovereignty, independence, unity or territorial
integrity, or
c) the relationship of Antigua and Barbuda with any international organization, agency,
association or similar body,
such treaty shall not enter into force with respect to Antigua and Barbuda unless it has
been ratified or its ratification has been authorized or approved in accordance with the
provisions of this Act.
(2) Atreaty to which subsection (1) applies shall be ratified or shall have its ratification authorized
or approved as followsa) where such treaty concerns a matter referred to in paragraph (a) or (b) of subsection (1)
or contains any provisions which is to become, or to be enforceable as part of the law of
Antigua and Barbuda, by Act of Parliament;
b) where such treaty concerns a matter referred in paragraph (c), by Resolution of the House
of Representatives.
(3) No provision of atreaty shall become, or be enforceable as, part of the law of Antigua and
Barbuda except by or under an Act of Parliament. [emphasis supplied]
[22] Counsel submit further that as far as is relevant, section 55 (1) of the Interpretation Act provides as
follows:­
55. (1) In an enactment­
“Act” means an Act of Parliament and when used in relation to legislation shall include
private Act and any statutory instrument or other subsidiary legislation made under
the authority of any Act [emphasis supplied]
[23] Counsel for the Applicant further contend that on 10th
January 1994 the House of Representatives
by Resolution ratified the Inter-American Convention as a Treaty under section 3(1) (c) of the
Ratification of Treaties Act. By statutory Instrument NO.4 of 1994 the Inter-American Convention
became “enforceable as, part of the law of Antigua and Barbuda” as provided by the conjoined
effects of section 3 of the Ratification of Treaties Act and section 55(1) in the Interpretation Act.
According to Counsel for the Applicant, any suggestion that the Inter-American Convention is not
7
part of the Law of Antigua and Barbuda “must be rejected as disingenuous and heretical to the
orthodoxy of giving statute a plain and purposive interpretation”.
[24] It is the further contention of Counsel for the Applicant that the legal status of the Inter-American
Convention” is not to be determined by semantic analysis of oral evidence”. Rather, the status of
the Inter-American Convention as a matter of law is to be determined by a proper and principled
construction of the relevant texts, namely, the Ratification of Treaties Act and Statutory Instrument
NO.4 of 1994.
[25] The case of Attorney General et al vs Jeffrey Joseph and Lenox Ricardo Boyce, a decision of the
Caribbean Court of Justice, Appellate Jurisdiction, on appeal from the Court of Appeal of
Barbados, (a case cited by Counsel for the Respondents), is instructive on this issue. Paragraph
55 of the judgment states: ­
Paragraph 55 – “In states that International lawyers refer to as ‘dualist’, and these include the
United Kingdom, Barbados and other Commonwealth Caribbean states, the common law has
over the centuries developed rules about the relationship between domestic and international law.
The classic view is that, even if ratified by the Executive, international treaties form no part of
domestic law unless they have been specifically incorporated by the legislature. In order to be
binding in municipal law, the terms of a treaty must be enacted by the local Parliament.
Ratification of a treaty cannot ipso facto add to or amend the Constitution and laws of a State
because that is a function reserved strictly for the domestic Parliament. Treaty-making on the
other hand is a power that lies in the hands of the Executive. See: J H Rayner {Mincing Lane}
Ltd. v Dept of Trade &Industry. Municipal courts, therefore, will not interpret or enforce the terms
of an unincorporated treaty, If domestic legislation conflicts with a treaty, the courts will ignore the
treaty and apply the local law. See: The Parliament Beige.”
[26] Paragraph 56 of the judgment goes on to state: ­
“It does not at all follow that observance of these rules means that domestic courts are to have
absolutely no regard for ratified but unincorporated treaties. The classic view is that the court will
presume that the local Parliament intended to legislate in conformity with such a treaty where there
is ambiguity or uncertainty in a subsequent Act of Parliament….: There seems to be a lacuna
and uncertainty in the domestic law resulting in questions: – whether Antigua is a Non-Inter
American Convention country and whether in a case where Antigua is regarded as a non­
convention country, the Court can take into account the principles set out in the Convention.
8
”
[27] Paragraph 107 of the above judgment goes on to state:­
“The Australian decision in Minister of State for Immigration and Ethnic Affairs v T eoh appears to
have been received and approved throughout the common law world as an appropriate response
to the evolving situation. The view seems to have emerged that, unless municipal law rules this
out, a ratified but unincorporated treaty can give rise to a legitimate expectation of a procedural
benefit. When a treaty evidences internationally accepted standards to be applied by
administrative authorities in dealing with basic human rights, courts will be hesitant to regard the
relevant terms of the treaty as mere “window-dressing” capable of being entirely ignored on the
domestic plane.”
[28] The Court, after considering the submissions of Counsel on the above issue, is of the view that it
has jurisdiction to determine the instant case based on the Inter-American Convention as the said
Convention can be considered part of the domestic law of Antigua and Barbuda. The Court is of
the further view that most importantly, there is nothing in the domestic law that conflicts with the
treaty. namely the Inter-American Convention. Further, Counsel for the Respondent. in her
submissions. did not pinpoint any such conflict. Even if the Inter-American Convention is not part
of the domestic law of Antigua, in my view this does not preclude the Court in the exercise of its
inherent jurisdiction and its available statutory powers from taking into account the relevant
principles and defences set out in the Inter -American Convention. despite the procedural
differences which arise where the application is not made under the Inter-American Convention.
The Court is of the further view that. in the event that it is wrong in its conclusion. at the very least,
and on the authority of the Ethnic Affairs v Teoh case cited above, the instant case gives rise to
a legitimate expectation in the mother that the domestic court will give effect to the procedural
benefit of an application under the Inter-American Convention. It is the view of the Court that the
“procedural benefit” in this case would be that of a summary procedure. The intention of the Inter­
American Convention (like the Hague Convention) is to provide a “simple and summary
procedure”, in which proceedings are not “held up by protracted hearings and investigation.”
Further. since. as stated above, the children are under the age of 16 years, the Court has
jurisdiction to entertain the proceedings in the instant case.
[29] The Court has also taken into account the Affidavit of the Respondent filed on the 5th March 2012.
In paragraph 56 of the said Affidavit, the Respondent states as follows:­
9
“I am advised and believe that the paramount consideration of the children’s welfare nJns
throughout various laws of Antigua and Barbuda and also that it is covered in other treaties to
which Antigua and Barbuda is a signatory, including Article 3 (1) of the United Nations Convention
on the Rights of the Child which states that:­
“In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests
of the child shall be a primary consideration.”
[30] At paragraph 57 of the same Affidavit (5th March, 2012), the Respondent deposes:­
“I am advised and believe that the above Convention on the Rights of the Child (the United Nations
Convention) has been ratified by Antigua and that as such the provisions form part of domestic law
of Antigua and that the court will consider this.”
(31] The Respondent, in asking the Court to grant him the relief that he seeks, namely, not to return the
children to Ecuador, urges the Court to give effect to the Convention on the Rights of the Child on
the basis that the said Convention has been ratified by Antigua and that as such the provisions
form part of domestic law of Antigua. In the view of the Court, the Respondent is contending
that the mere ratification of the United Nations Convention is sufficient to clothe it with the status
of domestic law. The Respondent, however, asks the Court to apply a different yardstick when
dealing with the Inter-American Convention. The Respondent cannot approbate and reprobate. He
cannot on the one hand contend that the United Nations Convention should be considered part of
the domestic law of Antigua on the basis that it has been ratified, and on the other hand submit that
the Inter-American Convention should not be considered part of the domestic law although it
has been ratified, but, in his view, does not comply with the Ratification of Treaties Act of Antigua.
He cannot ask the Court to exercise its discretion in an inconsistent or arbitrary manner, and
the Court will refrain from doing so.
ISSUE 2 • HABITUAL RESIDENCE
[32] Article 1of the Convention reads as follows:
The purpose of this Convention is to secure the prompt return of children habitually resident in
one State Party or who, having been wrongfully removed from any State to a State Party or who,
having been lawfully removed. have been wrongfully retained. [emphasis supplied]. This
10
Convention further seeks to secure enforcement of visitation and custody rights of parties entitled
to them.
[33] As a threshold issue, the duty to return a child arises only if the removal or retention was
“wrongful.” In the instant case, the retention can only be wrongful if the children were habitually
resident in Ecuador immediately before they were wrongfully retained in the USA. So the
Applicant must first show that the Respondent removed the children from their habitual
residence.
[34] Article 4of the convention states that:
“The removal or retention of a child shall be considered wrongful whenever it is in breach of
custody rights that parents, institutions or others having such rights individually or jointly
exercise over the child under the law of the child’s habitual residence immediately prior to
the removal or retention (emphasis supplied].
[35] The Inter~American Convention is in many ways pari materia with the Hague Convention. Yet in
neither the Inter-American Convention nor the Hague Convention is the term “habitual residence”
defined. This has caused considerable confusion as to how courts should interpret “habitual
residence”. According to Halsbury’s Laws of England4
, the term “habitual residence” … is not
to be treated as a term of art with some special meaning, but should be understood according to
the ordinary and natural meaning of the words; it is a question of fact to be decided by reference
to all the circumstances of a particular case. An appreciable period of time and a settled intention
are necessary for a person to become habitually resident in a country. Concurrent habitual
residence in more than one place at the same time is incompatible with the Hague Convention;
however, where a sufficient degree of continuity is established, it is possible for a person to be
habitually resident in one country for part of the year and in another for the remainder of the year.. ,
the habitual residence of the child falls to be considered immediately in relation to the period before
the wrongful removal or retention,”
4 4th edition, 2008 re-issue, page 80, paragraph 806
11
.” ,.
[36] To compound the difficulty and confusion, habitual residence for the purposes of the court’s family
law jurisdiction has a different meaning from that of the Hague Convention. As stated by the
Learned Judge in the Court of Appeal decision of Ikimi v Ikimi, at paragraph 31 of the judgment:­
“I am further of the opinion that it is essential that the same meaning be given to “habitually”
wherever it appears in family law statutes. I would not however necessarily make the same
extension to the Hague Convention which is an international instrument, the construction of which
is settled and developed within the wider field of international jurisprudence.”
[371 Counsel for the Applicant submit that the habitual residence of the children is Ecuador. They rely
on the following authorities: ­
a) Re J. (A Minor) (Abduction: Custody Rights)5

b) Re P-J (Children) (Abduction: Consent)6

c) Mark v Mark?

d) R v Barnet London Borough Council, Ex p Nilish Shah8
.

e) AI Habtoor v Fotheringham9
.

n Hazbon Escaf v Rodriquez
io.

g) ZH (Tanzania) v Secretary of State for the Home Department1i

[38] The rival submission of Counsel for the Respondent is that the habitual residence of the children is
the United States of America (U.S.A.) She relies on and cites the following authorities: ­
a) M·T v Ti2;

b) Ikimi v Ikimi13;

c) Nessa v The Chief Adjudication Officer and Another14
.

d) Holder v Holder15
.

5 [1990] 2AC 562 at 578F-579A
6 [2009] EWCA Civ 588, [2010]1 WLR 1237 at [26]
7 [2006]1 AC 98
8 [1983] 2AC 309
9 [2001] 1FLR 951
10
200 F. Supp. 2d 603; 2002 U.S. Dist. LEXIS 8330
11 [2011] UKSC 4, [2011]; 2AC 166 at [32]
12 [2005] EWHC 79 (Fam) at paragraphs 68-75
I3 [2001]2 FLR 1288 [2001]3 WLR 672
14 [1999]1 WLR 1937
12 [39] The issue to be determined is whether the children’s habitual residence was Ecuador immediately
prior to the alleged wrongful removal or wrongful retention. If, as alleged by Mr. Moore, the
children’s habitual residence was the United States, then the Convention would not compel the
children’s return to Ecuador because they would have been neither “removed” from the State of
habitual residence nor “retained” in another state. In order to determine the meaning of “habitual
residence” in the present context, I must look at all the circumstances of this particular case, as
the question of habitual residence is one of fact to be decided by reference to all the circumstances
of any particular case. I will then determine whether these facts add up to a finding of habitual
residence. I will also consider the approach which the court has adopted in other cases,
including some of those cited by Counsel above.
[40] According to Balcombe LJ in Re M (Minors) (Residence Order: Jurisdiction) [1993] 1 FLR 495 at
499-500, four basic propositions may be deduced from the authorities:
1) “Habitual” or ·ordinary residence” refers to a person’s abode in a particular place or country which
he has adopted voluntarily and for settled purposes as part of the regular order of his life for the
time being whether of short or of long duration…
2) Habitual residence is primarily a question of fact to be decided by reference to all the
circumstances of any particular case…
3) There is a Significant difference between a person ceasing to be habitually resident in country A,
and his subsequently becoming habitually resident in country B. A person may cease to be
habitually resident in country A in a single day if he or she leaves it with a settled intention not to
return to it but to take up long-term residence in country B instead. Such a person cannot,
however, become habitually resident in Country B in a single day. An appreciable period of time
and a settled intention will be necessary to enable him or her to become so. During that
appreciable period of time the person will have ceased to be habitually resident in country Abut not
yet have become habitually resident in country B…
4) Where the habitual residence of a young child is in question, the element of volition will usually be
that of the person or persons who has or have the parental responsibility for that child:
[411 A mere stay for a holiday is not habitual residence. In the case of Re V ( a Minor) ( Abduction:
habitual residence) [1996] 3 FeR 173, the Court held that residence in a country for an intended
15
392, F. 3d 1009 (9th Circuit 2004)
13
.~ .­
period of no more than six weeks for the purpose of holiday contact cannot amount to habitual
residence. The cases illustrate that habitual residence requires that a person is in a place
voluntarily and for a settled purpose and with a settled intention. In considering what factors
may make “the factum of residence ‘habitual”‘, Waite J in the case of Re B {Minors} {Abduction}
(No 2) [1993] 1FLR 993 at 995 had this to say:­
“Habitual residence is a term referring, when it is applied in the context of married parents living
together, to their abode in a particular place or country which they have adopted voluntarily and for
settled purposes as part of the regular order of their life for the time being, whether of short or of
long duration.
All that the law requires for a ‘settled purpose’ is that the parents’ shared intentions in living where
they do should have a sufficient degree of continuity about them to be properly described as
settled.”
[42] The learned Judge goes on to say that “a settled purpose is not something to be searched for
under amicroscope. If it is there at all it will stand out clearly as amatter of general impression.”
[43] I have taken into consideration the following factors:­
a. It is undisputed that the Respondent and Ms. Nunez were married in 2000 and that the
children were born in the USA. The parties resided in the USA from 2000 until on or
about early 2008.
b. The evidence of the Respondent as contained in his Affidavit filed on March 5th
2012, is
that the family moved to Ecuador in order for them to be with Ms. Nunez’s ailing parents.
In paragraph 23 of the Affidavit, the Respondent deposes as follows:­
“My wife and I were married in December, 2000. The family resided in New York, United States
and this is our domicile and habitual residence. It was only when my wife’s parents became ill
in 2008 that the family temporarily moved to Ecuador to allow my wife to be with them in what
was likely to be their final moments. They passed away on the 21
st
of August, 2011 and
November, 28
th
2010 and but for the fact that my wife became involved in certain other activities
… the famify had no further reason to remain in Ecuador.”
14
[44] In paragraph 24 of the same Affidavit, the Respondent states:­
” …… It was never the intention of the family to reside permanently or on any long term
basis in Ecuador and my wife was aware of this. Additionally since 2008 when the family
temporarily moved to Ecuador, we have made at least nine trips to the United States.
[45] Ms. Nunez, on the other hand, states that the move to Ecuador had nothing to do with the illness of
her parents. At paragraph 22 of her Affidavit filed on the 8th March 2012, Ms. Nunez deposes:­
“……In relation to his (the Respondent’s) paragraph 23, I state that we moved to Ecuador
in July 2007 and this had nothing to do with my parents becoming ill. My father was never
ill. He died of asudden heart attack. My mother was diagnosed with cancer in December
2009. Our children were enrolled in schools for at least three academic years, another
proof that Ecuador is their habitual residence. They visited the doctors for relevant
medical check-ups and the like. My mother did pass away on November 28th
2010.”
[46] The Respondent further states in paragraph 36 of his Affidavit (March 5th
2012) as follows:­
“…..Additionally, in March 2011 I took the family on a two week trip to Florida and then
we retumed to Ecuador to be with my wife’s ailing mother…… •
[47] The Court is of the view that the evidence of the Respondent as stated above lends credence to
the evidence of Ms. Nunez that the move to Ecuador in 2007 was not for the purpose of taking care
of her ailing parents as alleged by the Respondent. Ms. Nunez’s father died in November 2010;
this is not disputed by the Respondent and is in fact confirmed in his evidence. If, as alleged by
the Respondent, the family moved to Ecuador in 2008 to take care of Ms. Nunez’s “ailing parents in
what was likely to be their final moments”, the Court has great difficulty in accepting that during the
period 2008 to March 2011, the family, including Ms. Nunez would have made nine trips to the
USA, presumably for vacation. In particular, that the family would have gone on a two week
vacation to Florida in March 2011, leaving behind the mother who was presumably close to her
“final moments.”
[48] There is no evidence that the parties were divorced during the period in which they resided in
Ecuador with their children as a family. The conduct of the parties during that period is consistent
with a shared intention to make Ecuador their home. The Court finds that the family moved
15
voluntarily to Ecuador in early 2008, after the birth of the second child. Although the children were
both bom in the USA, they have dual citizenship. While in Ecuador, arrangements were made with
respect to the Respondent and the children regarding their residence there. The children are both
registered in the Ecuadoran Civil Registry. They are Ecuadoran citizens and are the valid holders
of Ecuadoran passports. This evidence was never disputed by the Respondent. The children
attended school in Ecuador. The Respondent obtained Ecuadoran documents in order to
regularize his stay in Ecuador as a non-citizen for long periods of time. While in Ecuador, the
family travelled to the USA for short intervals since 2008. The mother deposes in her Affidavit filed
on 8111 March 2012 that the purpose of these trips were “for vacation only and to maintain the US
resident status that my older daughter and I have.” The ‘older daughter’ referred to is a daughter
from the mother’s previous relationship. It cannot be said that the family was in Ecuador on
vacation. If they were, they would be not be travelling to the USA “on vacation” during their stay in
Ecuador.
[49] In his Petition verified on the 23rd
day of August 2011 and filed with the Supreme Court of the State
of New York, County of Suffolk, the Respondent stated, in paragraph 50 thereof, ” I am a trader by
profession and can do it from anywhere in the world, because all I need is a computer.” The
Court can infer that the Respondent worked during the almost four year period that the family
resided in Ecuador. It is the view of the Court that a reasonable inference of that fact can also be
made from paragraph 35 of the Affidavit of the Respondent filed on the 15111
March 2012, in which
the Respondent deposes:­
“Where my wife refers to me shipping acontainer of items, this is misleading. I did ship acontainer
of items but I deny that it contained ‘most of the family’s belongings’ as she has alleged. The items
which were shipped totaled approximately Fifteen Hundred Dollars United States currency (US
$1500) AND INCLUDED MANY ITEMS FOR MY OFFICE AND WORK BUT DID NOT INCLUDE
ANY COMPUTERS or magic jack from the rental apartment as alleged by my wife….. .”( my
emphasis)
[50] In the view of the Court, the above paragraph 35 is evidence that when the family moved to
Ecuador, they either brought possessions with them or else acquired these possessions while in
Ecuador; afurther indication of habitual residence.
16
·.

[51] For the purposes of the Inter-American Convention, it is the habitual residence of the children
immediately prior to the removal or retention that counts. In Re B (Minors) (Abduction) (No.2)
[1993] 1FLR 993,995, Waite J. said:­
“1. The habitual residence of the young children of parents who are living together is the same as
the habitual residence of the parents themselves and neither parent can change it without the
express or tacit consent of the other or an order of the court”
2. Habitual residence is aterm referring, when it is applied in the context of married parents living
together, to their abode in a particular place or country which they have adopted voluntarily and for
settled purposes as part of the regular order of their life for the time being, whether of short or of
long duration. All that the law requires for a “settled purpose” is that the parents’ shared intentions
living where they do should have a degree of continuity about them to be properly described as
settled.”
[52] The Respondent states that “it was never the intention of the family to reside permanently or on
any long term basis in Ecuador”. This is not an argument that can defeat the issue of habitual
residence. Habitual residence is not the same as permanent residence.
[53} In the instant case, in light of the facts and circumstances of the case and taking a “general
panoramic view of the evidence”, as well as taking into account the relevant authorities, it is my
considered view that the habitual residence of the children immediately prior to the said children
leaving Ecuador for the United States of America was Ecuador. The Respondent cannot
change the habitual residence of the children by taking them to the USA and neither the
Respondent nor Ms. Nunez can change it without the express or tacit consent of the other or an
order of the court.
ISSUE # 3 ••• WRONGFUL RETENTION
[54] The Court now moves to address the issue of wrongful removal or retention.
[55] Article 14 of the Convention states: ­
“Proceedings under this Convention shall be commenced within one calendar year of the wrongful
removal or retention [emphasis supplied.]
As to children whose location is unknown, the period shall run from the time they are located.
17 ,”
Nevertheless, expiration of the one-year period shall not bar the child’s return if, in the opinion of
the requested authority, the circumstances so warrant, unless it is demonstrated that the child is
settled in its new environment.”
[56] As submitted by Counsel for the Applicant, “the Inter-American Convention is comparable to Article
12 of the Hague Convention, and is in almost virtually identical language.” With respect to Article
12 of the Hague Convention (equivalent to Article 14 of the Inter-American Convention), Lord
Brandon of Oakbrook in re H. (Minors) (Abduction: Custody Rights) [1991] 2AC 476 stated:
“The period of one year referred to in this article is a period measured from the date of the wrongful
removal or retention. That appears to me to show clearly that, for the purposes of the Convention,
both removal and retention are events occurring on a specific occasion [emphasis supplied],
for otherwise it would be impossible to measure a period of one year from their occurrence (at 499
F-G).
With regard to the second point, whether removal and retention are mutually exclusive concepts it
appears to me that, once it is accepted that retention is not a continuing state of affairs but an
event occurring on a specific occasion, it necessarily follows that removal and retention are
mutually exclusive concepts. For the purposes of the convention, removal occurs when a child,
which has previously been in the state of habitual residence, is taken away across the frontier of
that state; whereas retention occurs where a child, which has previously been for a limited
period of time outside the state of its habitual residence, is not returned to that state on the
expiry of such limited period. That being so, it seems to me that removal and retention are
basically different concepts, so that it is impossible either for them to overlap each other or
for either to follow upon the other [emphasis supplied]. This interpretation of the Convention is
strongly supported by the fact that, throughout the Convention, removal and retention are linked by
the word “or” rather than by the word “and,” which indicates that each is intended to be a real
alternative to the other (at SOOA-D).”
[57] Article 4 of the Inter-American Convention states:­
“The removal or retention of a child shall be considered wrongful whenever it is in breach of the
custody rights that parents, institutions or others having such rights individually or jointly exercise
over the child under the law of the child’s habitual residence immediately prior to the removal or
retention.n
[58] Counsel for the Respondent submits that “it should be noted at the outset that Counsel for the
Applicant rightfully conceded at the hearing of the matter that the removal from Ecuador was not
wrongful or unlawful.” There is no dispute from the mother with respect to that issue.
18 •

[59] In his Affidavit filed on the 5th March 2012, the Respondent, in the penultimate paragraph,
deposes inter alia:­
(a) ” ………. ..

(b) My wife consented to the removal of the children from Ecuador and that I have lawfully
retained them with me since to her full knowledge, consent or acquiescence.”
[60] In paragraph 33 of the same Affidavit, the Respondent deposed as follows:­
“I informed my wife of the threat on my life and my concems for my safety and the safety of our
children who may well have been with me when the threat was realized. My wife was nonchalant
about it. However I eventually discussed it more with her and I told her that I wanted to take the
children out of that environment and she agreed. As such my wife expressly consented to my
removing the children from Ecuador and also to my retaining them outside of the jurisdiction given
the safety concems in respect of them being in Ecuador.”
[61J The Respondent continues, in paragraph 34 as follows:­
“My wife has attached the letter of authority for travel which she signed but as she rightly
indicated I do not speak or read Spanish and so I was not aware of the actual contents of the
letter but I do know that my wife agreed that I would take the children out of Ecuador to have
them and myself in asafer environment.”
[62] According to the Respondent, therefore, the removal of the children from Ecuador was for the
purpose of getting the children out of harm’s way, and that he did so, with the mother’s consent
and approval. The Court is of the view, however, that this explanation by the Respondent is not
supported by the evidence. Looking at the evidence, what emerges is that:­
i). Prior to their removal on 8th
July 2011, they children were enrolled in school in Ecuador.
The Respondent did not challenge that the children attended a “safe, private, Catholic
school” in Ecuador.
ii). The letter of authorization exhibited to the Affidavit of the mother (BG4) clearly states that
the children were leaving for the U.S.A. for “vacation purposes” with the consent and
agreement of both parents. That authorization does not state that the Respondent and the
children were returning permanently to the U.S.A.
19 [63] The Court does not accept the Respondent’s assertion that he did not know, or understand or
appreciate the contents of that letter of authorization because he does not read or speak Spanish.
The Court accepts without hesitation the mother’s evidence that she gave her consent to the
children travelling to the U.S.A with their father for the school vacation, and not for the purpose of
moving there permanently. The Court is of the further view that no cogent evidence has been
presented to the Court to substantiate the Respondent’s allegations of threats against him, or even
more importantly, that he took steps either in Ecuador or in the U.S.A. to report these threats to
the authorities.
[64] Implicit in my finding that the removal from Ecuador was for the (lawful) purpose of a vacation,
the retention thereafter falls to be examined and a determination made as to whether the said
retention was unlawful. As stated by David Hodson in the text The INTERNATIONAL FAMILY
LAW Practice, Second Edition, at page 424:­
“Removal is at the date of departure. Retention is the date when permission to take abroad ended,
either by the terms of the original agreement or conduct including words inconsistent with an
intention to return the child……….although the original removal and retention may not have been
wrongful because, for example, the unmarried father had no rights of custody capable of being
breached, once he had acquired such rights by virtue of a subsequent order giving him care and
control, any retention of the child thereafter contrary to that order becomes wrongful. The fact that
the abductor had obtained an order from the foreign court permitting the child to stay in the foreign
country is irrelevant.»
[651 It is the submission of Counsel for the Respondent that the letter of authority (“8G4” of the mother’s
Affidavit filed on the 22nd
February 2012) “did not on its face make any reference to the duration
being for aweek or any specified period for that matter.” Counsel further submits that “in order for
the court to make a determination on this point, the court would have had to have before it a return
date for the children. The court would then have been able to determine that the children’s stay
abroad having exceeded the permitted duration then became unlawful. No such date or period
having been supported by any evidence, it is submitted that the retention of the children cannot be
deemed unlawful.”
[661 With the greatest of respect, I have to disagree with Counsel’s submission. It cannot be that
“vacation purposes” in the USA for the children meant an indefinite vacation and any submission to
20
that effect is, with respect, disingenuous, As stated above, retention can be ascertained by
“conduct inconsistent with an intention to return the child,” Hodson (supra) further states that “an
apparent lawful removal for a holiday can become a wrongful retention (or even an unlawful
removal if the original intention to retain was concealed) before the end of the agreed period if the
parent with the child makes clear an intention not to return, This might be shown by making court
applications in the country in which they are on holiday with the child to seek to return the child.”
In the instant case, the Respondent’s conduct certainly evinced an intention not to return the
children to Ecuador. His application in the U.S,A, for custody for the children is such conduct. This
application was made on the 23rd
August 2011, The Court is of the view that, even if the Court
were to accept the submission of Counsel for the Respondent that the letter of permission does
not specify a return date, the Court will infer, based on the above, that the unlawful retention
commenced, in any event on the 23rd
August 2011,
[67] Counsel for the Respondent further submits that “if the Applicant seeks to rely on the removal of
the children from America to Antigua as evidence of the unlawful retention ……the applicable law is
the law of the United States of America that State having been the habitual residence of the
children at the relevant time,” The Court has already found that the habitual residence of the
children prior to their removal is Ecuador. Counsel’s argument seems to be suggestive of the
fact that in this case, there were two acts of “removaL” It cannot be so. Removal is not a
continuing state of affairs; neither is retention. Removal is at the date of departure, In the instant
case, departure from Ecuador on the 8th
July, 2011. It is undisputed that this removal was lawful.
There is no question of a second removal. Once the Respondent retained the children by failing to
return them to Ecuador and keeping them instead in the U.S.A., the retention is referable to the
18th day of July 2011, which is the date on which the mother deposes they should have been
returned, or in the absence of a specific date as contended by Counsel for the Respondent, on the
23rd
August 2011, as stated in paragraph 66 above, The Respondent’s taking the children from
the U,S.A. to Antigua does not constitute a second act of removal, but is further evidence of
retention of the children by the Respondent. There is no evidence that the Respondent
consulted or contacted the mother prior to leaving the USA with the children for Antigua, There
is no evidence before the Court that the mother consented to the children being taken to
21
.•

Antigua. The Court will deal with the issue of the alleged consent or acquiescence of the mother
later in the judgment.
[68] The Court’s finding therefore on the above issue – Issue # 3, is that the children were wrongfully
retained by the Respondent.
ISSUE # 4 . HAS THE RESPONDENT SUCCEEDED IN ESTABLISHING THE CRITERIA
SET OUT IN ARTICLE 11 OF THE INTER·AMERICAN CONVENTION?
If the answer is in the affirmative, then the Court will not be required to order the children’s
return to their habitual residence.
[69] At paragraph 3 of his Affidavit filed on 5th March 2012, the Respondent deposes that his objection
to the retum of the children is based on Articles 11(a) and (b) of the Inter-American Convention.
[70] Article 11 of the Convention provides: ­
“A judicial or administrative authority of the requested State is not required to order the child’s
return if the party raising objections to the return establishes that:
a) The party seeking the child’s return was not actually exercising its rights at the time of
the removal or retention, or had consented to or subsequently acquiesced in such
removal or retention; or
b) There is a grave risk that the child’s return would expose the child to physical or
psychological danger.
The requested authority may also refuse to order the child’s return if it finds that the child is
opposed to it and if, in the judgment of the requested authority, the child’s age and maturity warrant
taking its views into account.”
[71] With respect to Article 11 (a), the Court has to look at two issues namely, (1) was the party
seeking the return of the children, namely their mother Ms. Nunez, “exercising her rights at the
time of the removal or retention”, (2) had the mother consented to or subsequently acquiesced in
such removal or retention?
22 !
Was Ms. Nunez exercising her rights of custody at the time of the removal or retention of the
children?
[72] Counsel for the Applicant submit that the Respondent’s “immediate confession upon cross­
examination that prior to the departure of the children from Ecuador in July 2011 that he and the
mother exercised joint custody with respect to the children jettisons any objection with respect to
the return of the children based on Article 11 (a) of the Convention.”
[73] The first limb of Article 11 (a) deals with the issue of custody rights. Achild abduction only occurs
where it is in breach of rights of custody.
[74] In his Affidavit filed on the 5th March 2012, the Respondent stated that he was advised by his
Attorney in Ecuador that “the request sent to the Antiguan authorities did not bear the signature of
a judge in Ecuador and that this will render the request a nullity.” The Court, on the 16th day of
March 2012 made an Interim Order that, inter alia, the Attorney General as the Central Authority in
Antigua under the Inter-American Convention, request information from the Central Authority of
Ecuador, in order to ascertain the applicable law as it related to the issues before it, as provided by
Article 12 of the Inter-American Convention.
[75] In his Affidavit filed on the 22nd March 2012, Mr. Lebretch Hesse, Solicitor General of Antigua and
Barbuda, deposed that he was advised by the Central Authority of Ecuador that the Order of the
Court of Ecuador granting parental rights of the children to the mother which was previously sent to
the Office of the Attorney General of Antigua and Barbuda by the Central Authority of Ecuador, “is
a valid Order of the Court of Ecuador.” Mr. Hesse stated that a judicial resolution was granted to
the Respondent on March 13th
2012, which in effect had nullified the Order in favour of Ms. Nunez.
He stated that an Appeal was filed on the 16th March 2012 in the Court of Ecuador by the Attorneys
on behalf of Ms. Nunez, seeking to revoke the judicial resolution issued on the 13th March 2012 to
the Respondent. An Order revoking the said judicial resolution issued to the Respondent was
granted by an Ecuadorian Court Order, dated the 19th March, 2012. Both documents were
exhibited to the Affidavit of Mr. Hesse (“LHT’).
23
!
[76] Mr. Hesse deposed that the Court Order dated 19th March, 2012 revoking the resolution dated the
16th March 2012, issued to the Respondent was confirmed to him by the Central Authority of
Ecuador and was forwarded to the Applicant by the Central Authority of Ecuador through the
Diplomatic Channels from the Central Authority of Ecuador or directly from the Central Authority of
Ecuador. Mr. Hesse correctly stated that, by virtue of Article 9 (4) of the Inter-American
Convention, these documents do not require certification.
[77] On March 28th
2012, the Respondent filed an Affidavit in which he deposed that on the 20th March
2012, his Attorney had filed another objection to the Order of Ms. Nunez. On 29th March 2012, Ms.
Nunez filed another Affidavit. Ms. Nunez has exhibited to this Affidavit a copy of the entry of the
judicial resolution made in her favour in her matter (“BN2”) She deposes that this exhibit states
that the judicial resolution made on the 22nd March 2012 was “finalized, registered and entered on
the records of the Ecuadoran courts on 28th March 2012.”
[78] The Court re-iterates that matters concerning the custody of the children are not issues to be
determined by this Court and it has no jurisdiction to determine this issue. It is the issue of the
“rights of custody” which falls to be determined under Article 11 (a) of the Inter-American
Convention. According to Bromley’s Family Law at (page 639), “the general approach in
determining this issue has been well summarized by Dyson LJ in Hunter v Murrow (Abduction:
Rights of Custody). The first task, the so-called ‘domestic law question’, is to establish what rights,
if any, the Applicant ( the mother) had under the law of the state in which the child was habitually
resident immediately before his or her removal or retention. This question is determined in
accordance with the domestic law of that State and involves deciding what rights are
recognized by that law and how these rights are characterized.”
[79] In the instant case it is undisputed that custody rights with respect to the children vested jointly in
the mother and the Respondent. The Respondent, under cross-examination, conceded that this
was so. In the Affidavit of Mr. Hesse filed on the 22nd March 2012, he exhibits a document
(“LNS”). This is a letter/opinion from the Central Authority of Ecuador forwarded to the Central
Authority of Antigua and Barbuda (as per the latter’s request). This letter, together with its
attachments, is conclusive on the issue of the custody rights, namely that Ms. Nunez had rights of
24
,
.

custody under the laws of Ecuador immediately prior to the children leaving Ecuador and was
exercising her custody rights when she gave permission to the Respondent to travel to the USA ,
as required by law. The Respondent therefore cannot rely on Article 11 (a) of the Inter­
American Convention in order to establish an objection to the return of the children.
[80] With respect to the second limb of Article 11 (a), it is a defence to a return order that the parent left
behind consented or subsequently acquiesced to the removal or retention of the child. As with all
defences, the burden of proof lies on the person seeking to invoke it; in this case, the burden of
proving the consent or acquiescence lies on the Respondent. He must prove that Ms. Nunez
consented or acquiesced in the retention of the children. The leading case on the meaning of
‘acquiescence’ under Article 13 of the Hague Convention (which is pari materia with Article 11 of
the Inter-American Convention) is Re H (Minors) (Abduction: Acquiescence) [1988] AC 72, HL, in
which the House of Lords held that a common approach was to be applied in all cases. That
approach was summarised by Lord Browne-Wilkinson as follows:­
“(1) For the purposes of Article 13 of the convention (the Hague Convention), the question whether
the wronged parent has “acquiesced” in the removal or retention of the child depends upon his
actual state of mind. As NeillLJ said in Re S (Minors) (Abduction: Acquiescence) [1994] 1 FLR 819
at 838: …….the court is primarily concerned, not with the question of the other parent’s perception
of the applicant’s conduct, but with the question whether the applicant acquiesced in fact.”
(2) The subjective intention of the wronged parent is a question of fact for the trial judge to
determine in all the circumstances of the case, the burden of proof being on the abducting parent.
I
I (3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to
attach more weight to the contemporaneous words and actions of the wronged parent than to the
bare assertions in evidence of his intention. But that is a question of the weight to be attached to
evidence and is not aquestion of law.
I
I
(4) There is only one exception. Where the words or actions of the wronged parent clearly and
unequivocally show and have led the other parent to believe that the wronged parent is not
asserting or going to assert his right to the summary return of the child and are inconsistent with
such return, justice requires that the wronged parent be held to have acquiesced.”
I
[81) The burden of proving acquiescence is on the Respondent. The evidence to establish
acquiescence, as well as consent, must be “clear, cogent, compelling and unequivocal”. In the
view of the Court, the Respondent has not discharged the burden of proof.
25 ,•
[821 Under Article 11 (b) of the Inter-American Convention, the Court may refuse to order the child’s
return if it is shown that “there is a grave risk that the child’s return would expose the child to
physical or psychological danger.”
[831 The wording of Article 13(b) of the Hague Convention is somewhat different from that of Article
11 (b) of the Inter-American Convention. Under the Hague Convention, the court may refuse to
order the child’s return if it is shown that ‘there is a grave risk that his or her return would expose
the child to physical or psychological harm or otherwise place the child in an intolerable
situation.’ (my emphasis). The Inter-American Convention speaks of physical or psychological
danger (as opposed to harm) and omits the words ‘or otherwise place the child in an
intolerable situation.’
[841 Notwithstanding the disparity in language, the Court is of the view that the principles are not
incompatible and that the case law under the Hague Convention is helpful and useful in
determining Article 11 (b) of the Inter-American Convention. According to Bromley (supra), page
654, “while the epithet ‘grave’ is and was intended to be an ‘intensive qualifier’, it is important to
appreciate, however, that ‘grave’ qualifies the risk and not the ensuing harm.” So it is the gravity
of the risk with which the Court is concerned. The Court also notes that in Article 13(b) of the
Hague Convention, the words ‘Or otherwise place the child in an intolerable situation’ are
disjunctive and not conjunctive.
[85] The burden of proving grave risk lies with the party raising objections to the return of the children,
in this case, on the Respondent and is difficult to discharge. As stated by Ward L in Re C
(Abduction; Grave Risk of Psychological Harm), so far as the English Courts are concerned there
is:
“…..an established line of authority that the court should require clear and compelling evidence of
the grave risk of harm or other intolerability which must be measured as substantial, not trivial, and
of a severity which is much more than is inherent in the inevitable disruption, uncertainty and
anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence:
26
I ,•
[86] Counsel for the Applicant has correctly submitted that the grave risk posed has to be specific to the
children. Further, that the Courts must apply a “stringent” test in ascertaining grave risk. As
stated by Sir Christopher Slade in re F (A Minor) (Abduction: Custody Rights Abroad) Fam 224 at
238 F-G:­
“…..• 1 understand that the courts of this country are only in rare cases willing to hold that the
conditions of fact which give rise to the court’s discretion under article 13 (b) are satisfied. They
are in my view quite right to be cautious and to apply a stringent test. The invocation of article
13(b), with scant justification, is all too likely to be the last resort for parents who have wrongfully
removed their child to another jurisdiction.II
[87] The Court is mindful of the principles outlined by Baroness Hale and Lord Wilson in Re E
(Children) (Abduction: Custody Appeal) as being appropriate to the proper interpretation and
application of Article 13 (b) of the Hague Convention. As submitted by Counsel for the Applicant,
these principles apply with equal appropriateness to Article 11 (b) of the Inter-American Convention.
(a) “First, it is clear that the burden of proof les with the “person, institution or other body” which
opposes the child’s return. It is for them to produce the evidence to substantiate one of the
exceptions. There is nothing to indicate that the standard of proof is other than the ordinary
balance of probabilities. But in evaluating the evidence the court will of course be mindful of
the limitations involved in the summary nature of the Hague Convention process. It will rarely
be appropriate to hear oral evidence of the allegations made under article 13(b) and so neither
those allegations nor their rebuttal are usually tested in cross-examination.
(b) Second, the risk of the child must be “grave”. It is not enough, as it is in other contexts such
as asylum, that the risk be “real”. It must have reached such a level of seriousness as to be
characterized as “grave”. Although “grave” characterizes the risk rather than the harm, there
is in ordinary language a link between the two. Thus a relatively low risk of death or really
serious injury might properly be qualified as “grave” while a higher level of risk might be
required for other less serious forms of harm.
(c) Third, the words “physical or psychological harm” are not qualified….
(d) Fourth, article 13(b) is looking to the future: the situation as it would be if the child were to be
returned forthwith to her home country. As has often been pointed out, this in not necessarily
the same as being returned to the person, institution or other body who has requested her
return, although of course it may be so if that person has the right so to demand. More
importantly, the situation which the child will face on return depends crucially on the protective
measures which can be put in place to secure that the child will not be called upon to face an
intolerable situation when she gets home.”
27
!

[88] Notwithstanding the norm against cross-examination, as stated in (a) above, in the instant case,
the Court permitted it in the interests of afull exposure of the circumstances surrounding this case.
[89] It is the submission of Counsel for the Respondent that there is indeed a grave risk that the
children, if returned to Ecuador, will be exposed to physical or psychological danger. Counsel
grounds her submission on several factors including the following:­
a) The Respondent has produced to the Court bundles of documents indicating the political
climate in Ecuador and the number of safety concerns not the Respondent’s sole concerns
but the concerns as expressed by “global and reputable news agencies (e.g. SSC News)
as well as international bodies including the Inter American Commission on Human Rights,
the Foreign and Commonwealth Office as well as observations and reports of the US State
Department.”
b) From the documents referred to in (a) above, it is clear that there is “political unrest” and
that persons are unable to speak freely out against the government and that there is little
respect for universal fundamental rights.
c) Under cross examination, Ms. Nunez accepted that two articles from the SSC news and
from RefWorld made reference to the same report of hired killers in Ecuador being paid
very small sums of money ($20) to commit murder.
d} The information provided by the Respondent is extensive and speaks to reports of
government censorship of the press and physical reprisals of persons who oppose the
current regime in Ecuador, as well as reports about persons having to flee the country to
seek refuge elsewhere
e) Ms. Nunez’s older daughter was herself the victim of a violent crime on the doorstep of her
grandparent’s home and was robbed at gunpoint.
[90] I will now address the submission of Counsel for the Respondent that the “political climate” in
Ecuador and the “number of safety concerns· are factors which the Court must take into account in
exercising its discretion not to return the children to Ecuador. The unfortunate but stark reality is
28
·
,
, *
that political unrest is widespread throughout the globe; it has become a fact of life in several
countries. The scale and intensity may vary from country to country, but the fact of political unrest
is not novel. It is also an unfortunate reality that violent crimes have become almost commonplace
the world over. Counsel for the Respondent has stated that Ms. Nunez’s older daughter was
herself the victim of a violent crime on the doorstep of her grandparents’ home and was robbed at
gunpoint. This incident is certainly and most definitely not unique to Ecuador. On any given day,
CNN, the BBC and other international as well as national television networks report incidents of
violence, murder, mayhem and acts of atrocity in all manner and form perpetrated all over the
world; in the U.S.A., the U.K, Europe, Africa. There have been incidents of mass killings of
students by students in schools and colleges in the USA. Judges have been murdered even in
the hallowed halls of their courtrooms. Not even the Caribbean is immune to these acts of wanton
violence. The tragedy of modern life is that with all our scientific inventions and discoveries, and all
our technological advances, we seem powerless to prevent the incidence or intensity of man’s
inhumanity to man.
[91] The Court therefore cannot refuse to return the children to Ecuador on the basis of an allegation of
political unrest and violence there. This does not meet the threshold of “grave risk” contemplated
by Article 11 of the Inter-American Convention. Counsel for the Respondent also contends that the
mother has “clear political opposition to President Correa and is open about her political stance.”
Counsel further contends that the mother is an “open political activist in Ecuador” and that the
danger to the children is compounded as a result. The Court is of the view that, notwithstanding
the allegations in this regard, no cogent evidence has been presented to the Court to substantiate
these allegations. In fact, under cross examination, the Respondent admitted that “No Mas
Correa” was not a political movement. The evidence of Ms. Nunez is that “No Mas Correa” is “a
website started about two years ago.” There is no evidence that there have been any reprisals
against the children while they resided in Ecuador as a result of any real or alleged political
involvement of Ms. Nunez. The Court cannot engage in an exercise with respect to the
activities of Ms. Nunez. It has no jurisdiction to do so.
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[92] As stated above, the Courts have adopted a strict interpretation to Article 13 (b) of the Hague
Convention (equivalent in many respects to Article 11(b) of the Inter-American Convention). As
was pointed out in aunanimous House of Lords decision in In re D[2007] 1AC 619, para 51 :
“It is obvious, as Professor Perez-Vera points out, that these limitations on the duty to return must
be restrictively applied if the object of the Convention is not to be defeated: para 34. The
authorities of the requested state are not to conduct their own investigation and evaluation of what
will be best for the child. There is a particular risk that an expansive application of article 13(b),
which focuses on the situation of the child, could lead to this result.”
[93] The following cases illustrate the restrictive application of the Courts in dealing with the “grave risk”
objection:­
a) In Re S (a child) (abduction: custody rights) [200212 FLR 815, the Court held that where
there is a state of war in the country to which the child is to be returned, the issue is not
whether there is a war, but whether it poses a grave risk to the child; violence and
terrorism in Israel were insufficient to satisfy the stringent test of grave risk of harm to a
child so as to permit an exception to her return.
b) In Re L (abduction: pending criminal proceedings) [1999] 1 FLR 433, the Court held that
neither criminal proceedings instituted against the abducting mother, nor threat of her
arrest and removal at the airport was sufficient.
[94] The Respondent in paragraph 42 of his Affidavit of 5th March 2012, deposes as follows:­
“On the other hand however, I fear that if the children are returned to Ecuador, my wife will subject
them to the same treatment to which she has subjected her older daughter from a prior
relationship. My wife has persistently refused to respond to her daughter’s requests for information
about her biological father and my wife has been extremely hostile in denying her daughter the
opportunity to ever meet with her biological father. Ifear that my wife may take this same course of
action against me and I believe that this will subject my children to psychological harm to be cut off
from me:
[95] The Court makes no comment or adjudication with respect to the merits or otherwise of the above
paragraph, save and except that it does not meet the threshold for the exception stated in Article
11 (b) of the Inter-American Convention. In the view of the Court, the issue deals with custody
and has no bearing on Article 11 (b) of the Inter-American Convention.
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•
•
[96] It is the finding of the Court, as stated above, that the children have been wrongfully retained by the
Respondent. The Court is of the considered view that the Respondent has failed to discharge the
burden of establishing the exceptions stated in Article 11 of the Inter-American Convention. He has
failed to satisfy the Court that it should exercise its discretion in favour of not returning the children
to their habitual residence, namely Ecuador.
[97] It is important to re-iterate that the purpose of the Inter-American Convention, like the Hague
Convention, is to secure the prompt return of children under the age of sixteen, habitually resident
in a contracting state who have been lawfully removed from that state or who, having been lawfully
removed, have been wrongfully retained. The further purpose is to secure enforcement of
visitation and custody rights of parties entitled to them. As stated in Halsbury’s Laws of England,
Fourth Edition, 2008 re-issue, Vol .5 (4) , page 69, paragraph 799:­
“The underlying principle of the Hague Convention,-(and by extension the Inter-American
Convention) – is that it is in the interests of children that parents and others should not abduct
them from one jurisdiction to another, and that any decision relating to the custody of children is
best decided in the jurisdiction of their habitual residence:
[98] The headnote to the Court of Appeal decision in
Abroad) 1995 reads in part as follows:­
re F: (A Minor) (Abduction: Custody Rights
“Held ……that it was repugnant to the philosophy of the Convention ( the Hague Convention) for
one parent unilaterally, secretly and with full knowledge that it would be against the wishes of the
other parent who possessed rights of custody over achild, to remove that child from the jurisdiction
of his habitual residence…… .
[99] Because the welfare of the child is at issue, the above Conventions impose a duty on the Court to
act expeditiously. According to Bromley’s Family Law, (supra) at page 613:­
“No matter how the abduction is perpetrated, its effects on the children can be devastating. It is
likely to be traumatic in the short term and potentially permanently damaging in the long term. As
the International Forum on Parental Child Abduction put it:
‘Children who are abducted will have already suffered from their parents’ separation but, in
addition, they will experience the trauma of being suddenly cut off from their familiar environment ­
a parent, grandparents, school and friends. This experience is devastating enough, but many
children do not understand what is happening or why the abducting parent is hiding from the police
31 or taking precautions against re-abduction. Such a “state of war” between parents catches the
children in ahorrible cross-fire.”
The effects on the parents are also traumatic. Again as the Forum put it: ‘victim parents are
suddenly plunged into a bewildering world were helplessness, despair and disorientation compete.
The emotional trauma is compounded by the daunting practical obstacles to retrieving children or
even to gaining access to them. Simply finding out where to get help can be difficult. Parents often
face unfamiliar legal, cultural, and linguistic barriers. Their emotional and financial resources can
be stretched to the limit. In the meantime, the abducted children are often led to believe that the
victim parent has abandoned them. Then the children, in anger and hurt, assert that they do not
want contact with the victim parent. As the years pass, the chances of recovering the children
diminish. Many victim parents feel it would be easier to come to terms with the shock of
bereavement than with asituation marked by prolonged uncertainty and anxiety.”
[100] Judge Mc Keown in the case of Holder v Holder, a decision of the United States Court of Appeals
for the Ninth Circuit, and cited by Counsel for the Respondent. very succinctly but poignantly
states:­
“The cases which deal with petitions under the Convention (the Hague Convention) are always
heart-wrenching, and there is inevitably one party who is crushed by the outcome. We cannot
alleviate the parents’ emotional trauma, but at a minimum we can hope to provide them and their
children with a prompt resolution so that they can escape legal limbo.”
[101] To secure the prompt return of children and to achieve the other obligations under the Convention,
the Inter-American Convention (as well as the Hague Convention), the Central authorities are
expected to co-operate with each other. The relevant part of Article 7 of the Inter-American
Convention states:­
“The Central Authorities of the States Parties shall cooperate with one another and exchange
information on the operation of the Convention in order to secure the prompt retum and to achieve
the other purposes of this Convention.”
[102] Article 16 of the Inter-American Convention (like Article 16 of the Hague Convention) expressly
forbids the Court of the requested State from deciding on the merits of the rights of custody until it
has been determined that the child is not to be retumed under the Convention. This is because, as
stated in Bromley (supra) “the Convention (the Hague Convention) is predicated upon the premise
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•

that children’s interests are generally best served in cases of wrongful removal or retention by
promptly returning them to the State of their habitual residence.”
[103] As is evident from the above, the task of the Court in deciding whether to order the prompt return
of a child under the Inter -American Convention (as well as the Hague Convention) has serious
consequences for the parents as well as the children involved. The Court has to give effect to
the general policy considerations of the Convention. With respect to the Hague Convention, these
include “the swift return of abducted children, comity between contracting states and the
deterrence of abduction.” – see re M and another (Children) (Abduction: Rights of Custody) HL
[2007] UKHL 55. At the same time, the Court must ensure that the welfare of the child is not
sacrificed on the altar of the Convention. The facts and circumstances of each case are as varied
as the reasons for the child abduction. The one constant factor is that, no matter what country or
state they are abducted from or to what country or state it is sought to return them, children
everywhere have physical, emotional and psychological needs, and that, to borrow the words of
Baroness Hale of Richmond in In re D [2007], 1 AC 619, paragraph 51, referred to in
paragraph 92 above “there must be circumstances in which a summary return would be so inimical
to the interests of the particular child that it would also be contrary to the objects of the
Convention (the Hague Convention) to require it.”
[104] Applying the law to the particular facts and circumstances of the instant case, I am of the view that
the instant case is not one in which it would be inimical to the interests of the children that they
should be returned to their habitual residence in Ecuador. I am of the view that the Applicant has
succeeded in making out its case for the return of the children to their habitual residence in
Ecuador. In arriving at my decision, I have taken into account the several factors mentioned
above. I have also had regard to the fact that the children are citizens of Ecuador and will be
returning to a country which is familiar and not strange to them.
[105] I am reminded that Article 15 of the Inter-American Convention states that “the fact of a child’s
return shall not prejudge the ultimate custody decision.” I am making it abundantly clear that this
Court does not seek to “prejudge the ultimate custody decision” of this case. That issue is outside
the jurisdiction of t~lis Court. As stated previously, this issue is to be decided in the jurisdiction of
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• • •
the habitual residence of the children. For this reason, I have refrained from making any
comment or adjudication with respect to any issue which touches and concerns the issue of
CUSTODY (my emphasis) of the children.
[106] Counsel for the Respondent has urged the Court to have regard to Article 25 of the Inter-American
Convention. Article 25 states that:­
“A child’s return under this Convention may be refused where it would be manifestly in violation of
the fundamental principles of the requested State recognized by universal and regional instruments
on human rights or on the rights of children.”
[1071 It is the submission of Counsel for the Respondent that “to return the children to Ecuador would
… be manifestly in violation of the fundamental principles of the requested State”, which
fundamental principles “are enshrined in the Antigua and Barbuda Constitution Order 1981.”
Counsel contends that areturn to Ecuador would manifestly be in violation of the following rights I
freedoms:
i). Protection of right to personal liberty;
ii). Protection of freedom of expression including freedom of the press;
[1081 With respect to that submission, the Court is of the view that while Article 25 addresses human
rights in general, its main focus is with respect to the rights of the child. The Court is of
the further view that the return of the children under the Inter-American Convention in the instant
case, is not in violation of the fundamental rights and freedoms of the individual enshrined in the
Constitution of Antigua and Barbuda including in particular the right of every individual to the
protection for his family life, as well as the right to the protection of the law. The Inter-American
Convention (like the Hague Convention), the Convention on the Rights of the Child, among others,
respects and protects the rights of all its inhabitants and especially the rights of children and
adolescents (all children under sixteen years of age). It seeks to provide what is in the best
interest of children wrongfully removed or retained in another State party by securing their prompt
return to the State of their habitual residence.
34
• •
, ,
[109] The Court is also of the view that, in conclusion, it is important to re-iterate the purpose of the Inter­
American Convention. As stated by David Hodson (supra) at page 415-416: ­
“… Instead the requested state will merely secure the child’s early and safe return. It (the
Convention) is designed to encourage prompt return through administrative and judicial procedures
so parents do not resort to self-help and secondary abduction. This is not departing from the
principle that the welfare of the child is paramount but applying it, including the belief that it is not in
the best interests of achild to be abducted but instead the decisions about the child should be left
to the country where the child is or was habitually resident.”
[110] In her closing submissions Counsel for the Respondent correctly states: “it is noteworthy that
whether by inadvertence or not the court has not been actually been moved to make an order that
the children be returned to Ecuador, neither in the Fixed Date Claim nor in the Application.”
[111] In the Fixed Date Claim filed by the Applicant, notwithstanding the omission in the said claim,
the Applicant asks the Court to make “such other Order as the Court deems just.” On the basis
thereof and on the finding of the Court that the Applicant has proved its case, the Court makes the
Order as hereunder stated:­
ORDER
[112] My Order is as follows:­
1. The Applicant is to arrange with appropriate dispatch the return of the children to their
habitual residence in Ecuador.
2. The Applicant is to do all things and execute all documents necessary or convenient on its
part to effect that return.
3. For the purpose of giving effect to this Order, temporary custody is immediately granted to
the mother – who is presently in Antigua and Barbuda – so as to facilitate her travelling
with, and accompanying the children to their habitual residence. For the avoidance of
doubt, the responsibility of the Central Authority as well as the other administrative
authorities charged with safeguarding the children and protecting their welfare remains
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, ~’ t
until the said children are safely placed in the aircraft and their passports handed over to
the mother.
4. The Respondent is hereby ordered to refrain from contacting the children or from visiting
them on their departure, at the airport, in order to avoid any friction.
5. The Respondent is directed to pay the necessary expenses incurred by the mother
including her travel costs. Such costs are to be assessed if not agreed, within 7 days. The
Respondent is to make provision for such costs to be satisfied prior to his departure from
the jurisdiction.
6. The Respondent shall pay to the Applicant costs in the sum of $10,000. E.C.
Jenne High Court Judge
Post Script: Shortly before the delivery of the judgment, the Court was informed that the
mother Ms. Nunez had left the jurisdiction on the previous evening, taking the children with her.
In light of this, the Court is of the view that number 5of the above order ought not to be enforced.
36