Attorney General of Antigua and Barbuda Applicant v Michael Gerard Moore Respondent [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judgment Date | 11 April 2012 |
| Judgment citation (vLex) | [2012] ECSC J0411-2 |
| Date | 11 April 2012 |
| Docket Number | CLAIM NO. ANUHCV 2012/0124 |
| Court | High Court (Antigua) |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. ANUHCV 2012/0124
IN THE MATTER of the Inherent Jurisdiction of the Eastern Caribbean Supreme Court
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.
IN THE MATTER of Guardianship of Infants Act Cap. 197 of the laws of Antigua and Barbuda Revised Edition 1992
IN THE MATTER of the Juvenile Act, Cap 229 of the Laws of Antigua and Barbuda Revised edition 1992
Dr. David Dorsett, Ms. Alicia Aska and Ms. Sherrie-Ann Bradshaw for the Applicant
Ms. Nelisa Spencer for the Respondent
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 ("the Inter-American Convention").
The Central Authority has in this matter acted based on a request which it received on behalf of the mother of the two minor children involved, Ms. Beatriz Nunez (the mother).
The Respondent Michael Gerard Moore is the father of the children namely Michael Galo Moore Nunez Delarco born on the 17 th December 2004 and Deborah Taylor Moore Nunez Delarco born on the 13 th 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.
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.
On 8 th July, 2011 the father, with the express written permission of the mother, travelled with the children from Ecuador to the United States. According to a document 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 22 nd February 2012 in support of the Fixed Date Claim filed on the same date, the mother, on the 1 st July 2011, authorized the Respondent to travel with the children from Ecuador to New York on American Airlines on July 8 th 2011 for one week during their school's vacation. The school vacation started on July 10 th 2011 and the children were required to be back at school on July 18 th 2011.
The children were not returned to Ecuador for the start of the new school term beginning 18 th July 2011 and have not been back to Ecuador since their departure of 8 th July 2011.
On or about 23 rd August 2011, while in the USA, the father petitioned the Supreme Court of the State of New York seeking custody of the children. On 24 th 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 agents or employees, shall remove the infant issue from jurisdiction of the State of New York, U.S.A".
On 9 th 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").
By letter dated 29 th 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 29 th 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 children] to Ecuador under the 1980 Hague Convention".
In November of 2011, the Respondent left New York, USA with the children and travelled to Antigua and Barbuda.
By letter dated 4 th January 2012, the Ecuador Central Authority wrote to the Applicant, the Central Authority under the Inter American Convention on the International Return of Children ("the 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".
By letter dated 20 th 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.
On 22 nd 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 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.
On 22 nd 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.
Several applications have been made in the matter and a number of affidavits have been filed as shown in the following table.
| 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 28 th/March/2012 |
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 1 of 1987) by way of Statutory Instrument No. 4 of 1994. The purpose of the Convention is as stated in Article 1 thereof.
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."
Article 2 states 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 7 years and 4 years respectively.
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."
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 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.
Counsel for the Respondent further submits that:-
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a) The Court is apparently being asked to order the return of the children to Ecuador and the Convention contains various principles which...
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