Pierides v Cole
| Jurisdiction | Barbados |
| Judge | Reifer, J. |
| Judgment Date | 31 January 2017 |
| Neutral Citation | BB 2017 HC 2 |
| Docket Number | 37 of 2017 |
| Court | High Court (Barbados) |
| Date | 31 January 2017 |
High Court
Reifer, J.
37 of 2017
Mrs. Marguerite Woodstock-Riley Q.C. and Ms. Amanda Riley Attorneys-at-Law for the applicant/husband.
Ms. Margot Greene Q.C., Mrs. Peta-Gay Lee-Brace and Ms. Janeille Thompson Attorneys-at-Law for the respondent/wife.
Family law - Custody of children — Wardship proceedings — Right to remove children from the jurisdiction — Whether the children should return to Cyprus — Welfare of the children — Whether Cyprus would be the better forum for the matter to be heard — Whether the Barbadian Courts should issue a Peremptory Order — Whether returning the children to Cyprus is in their best interest — Factors which must be taking into account in making determination — Section 8 of the Minors Act.
This matter began with an oral Ex Parte Application subsequently filed under a Certificate of Urgency.
This first Application was heard on the 11th January 2017 by the Chief Justice who made the following Orders:
“1. The minor children, Michael Petros Pierides and Alexander Pierides, be made wards of the Court, until further Order.
2. The respondent, her servants, relatives and/or agents be restrained from removing Michael Petros Pierides and Alexander Ryan Pierides, the minor sons of the parties, from the jurisdiction of the Court, or causing or permitting Michael Petros Sperides and Alexander Ryan Pierides to go out of the jurisdiction.
3. The applicant be permitted to serve the relevant immigration authorities and all airline companies operative in the island of Barbados with a copy of this Order restricting the removal of Michael Petros Pierides and Alexander Ryan Pierides from the jurisdiction until further order.
4. That the passports of Michael Petros Pierides, Cypriot passport No. CYPK00294610 and Alexander Ryan Pierides, Cypriot passport No. CYPK00294607 held by the respondent be delivered up to the Registrar of the Supreme Court within 24 hours of service of this Order.
5. Liberty to apply.”
This action involved the alleged abduction of twin boys by their mother, the respondent, from their home in Limassol Cyprus.
The parties, a Cyprus National and British National respectively, met in the UK in 2007, were married in 2010 in Cyprus, became the parents of twin boys in 2011, the marriage broke down in 2012 and the parties divorced in 2013. Initially, an Interim Order was issued by the Court of Cyprus prohibiting the wifefrom taking the children out of the jurisdiction. This Interim Order was later finalized and an Order was made prohibiting both parties from taking the children out of the jurisdiction of the Republic of Cyprus.
As recently as November 18th 2016 a Consent Order was recorded in the Court in Cyprus preceded by several court hearings, welfare involvement and reporting.
There appears to be some lack of clarity on the interpretation of this Order as counsel for the respondent suggests that a reading of the translated Order suggests that both parties have full rights of custody in respect of the minor children. However, that determination is not determinative of this proceeding.
It is evident from the subsequently filed Affidavits in this Court (the above issue notwithstanding), that in contravention of the above Order of the Court in Cyprus, and without the knowledge and consent the applicant, the respondent left the Republic of Cyprus on the 20th December 2016 from an informal point of exit, flying firstly to Turkey. By dint of quick and accurate investigative work the applicant established that the respondent took a flight to Colombia therefrom, and thereafter another flight to Barbados, arriving in Barbados on the 21st December 2016.
Further investigative work, by the engaging of Barbadian counsel and investigators, established the residential address of the respondent at a house in St. Peter as well as details of the school where they had already been enrolled as pupils, all before January 12th 2017 (the date of the applicant's arrival in Barbados), less than three (3) weeks after her departure from Cyprus.
Pursuant to the Order of this Court made on the 13th January 2017, the Ex parte Application of January 12th 2017 was made ‘inter panes’ by this Court summoning the respondent to appear before it, on the excellent and precise information provided by the applicant.
Under this Application, the applicant Stephanos Pierides applies for the following Orders:
“1. That Michael Petros Pierides Cypriot and Alexander Ryan Pierides Cypriot be forthwith returned to Cyprus in the custody care and control of their father Stephanos Pierides.
2. That Susan Cole forthwith deliver the children Michael Petros Pierides Cypriot and Alexander Ryan Pierides to their father Stephanos Pierides.
3. That the said children cease to be wards of the court.”
Seven (7) Grounds are set out in the said Application. Substantial Affidavits have been filed by the parties as follows:
- Affidavit of Amanda Riley of January 12th 2017 2. Affidavit of Lalita Vaswani of January 12th 2017 3. Affidavit of Stephanos Pierides of January 13th 2017 4. Affidavit of Stephanos Pierides dated January 17th 2017 5. Affidavit of Stephanos Pierides dated January 20th 2017 6. Affidavit of Susan Mary Cole of January 18th 201.7
Written Submissions with supporting authorities were filed by both parties on January 19th 2017, but further oral submissions were made.
Counsel for the respondent emphasizes the fact that the minor children are Wards of the Court of Barbados as a result of the husband having invoked the Wardship jurisdiction of the Court. Counsel also emphasizes that the wife is NOT in breach of any of the laws of Barbados. This is a significant submission by the respondent, and perhaps explains her decision not to travel to the United Kingdom (and also Canada where she is a Citizen) where this would have been treated as a Hague Convention case, and characterized, at best, as a wrongful retention of the children, at worst, a kidnapping or even abduction.
The children have remained in Barbados, and are in the care and control of the husband, who is staying at the Hilton Hotel. All travel documents have been secured and are in the possession of counsel for the respondent. The wife has liberal telephone contact with the children, and in the face of the Court the parties interacted co-operatively and positively in making arrangements for the children. The children were observed to be overjoyed to be re-united with their father and his companion, who clearly has a warm relationship with them. The parties were observed to be cooperatively making arrangements for the wife to have physical contact with the children, without the need for intervention by the Court.
There is no reason to question the love and devotion of these parents to these two boys who appear to be healthy, well-cared for and rambunctious four year olds.
It is to the Wife's credit, that (while attempting to mask her location) she allowed the children daily telephone access to their father, as well as access by video conferencing and by Skype before he verified their location and arrived in Barbados.
It is not in dispute that Barbados is not a signatory to the Hague Convention for the Civil Aspects of International Child Abduction, and that Barbados has no reciprocal agreement with Cyprus with respect to the enforcement of orders made in either jurisdiction.
Simply put, it is the submission of counsel for the applicant that this Court should on the strength of the evidence before it make a Peremptory Order for the return of the children to Cyprus, and that such an order will take into account the best interests of the children by permitting the return of normalcy to their lives. Of importance, is her submission that this Court should not conduct a full investigation or an extensive investigation as the matter has been fully ventilated by the Courts in Cyprus, there having been extensive involvement and investigation by the Courts there, and it cannot be said that the respondent has been unfairly treated (see fully translated Welfare Report produced to Court by counsel for the applicant). Counsel emphasized the fact that the last order of the Courts of Cyprus was a Consent Order giving the respondent greater access to the children.
Counsel's view was that the Court should place great weight on the circumstances of the ‘kidnapping’ in this case: the respondent had permission to take the children to England and could have done so; instead she left Cyprus through the northern exit to go to Istanbul, then to Colombia and on to Barbados. Her actions, counsel submitted, showed deception and disregard for the safety of herself and that of the minor children. This shows a history given her November 2013 actions, (the event resulting in her removal by the Cyprus courts as the primary caregiver) and reveals an immaturity and self-centeredness addressed by the welfare report.
Counsel relied heavily on the principles advocated by Baroness Hale in the case of Re J (a Child) (return to foreign jurisdiction: Convention rights) [2005] U.K.H.L. 40 discussed below.
In fairness to counsel for the applicant, she espoused adherence to the importance of the welfare or best interests of the children principle, but her strongest arguments appeared to favour the application of “forum non conveniens”: the connection to Cyprus (and by contrast the lack of connection to Barbados), the nationality of the children, the history of the matter with the courts of Cyprus, the welfare reporting and investigation carried out by the authorities in Cyprus, all indicate that Cyprus would be the better forum for this matter to be heard.
Counsel stressed the fact that the respondent has...
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