Dear Mrs Macaulay,
I am seeking some advice for my partner. He had a relationship with a young lady, a British national, which produced a child. UK local authorities became involved with the pregnancy as the young lady has severe mental health issues and was incapable of raising the child. The mother did not tell father of the local authorities' involvement, and as soon as she realised that she would not be allowed to raise the child, she told lies and made severe allegations about the father to the local authorities to ensure that he would never have custody.
Court hearings and fact-findings occurred, and the father cleared his name. At the time he was not in a position to raise the child on his own, and reluctantly agreed to let the maternal grandmother, a British-Jamaican national, raise the child. He saw this as a temporary measure until he was in a better position to raise his child. The grandmother also had permission to relocate with the child to Jamaica.
The father has tried very hard recently to discharge this guardianship in the British courts, but they determined that the child is no longer habitually resident in the UK and he has to take this to the Jamaican courts.
Since the father's attempts to gain custody of his child, the maternal grandmother has been gradually severing all contact with the paternal side. Prior to the father's court applications, his contact with his child was limited to two hours once a week, heavily controlled, monitored and supervised by the grandmother, with no good reasons for doing so.
The father is now unable to contact the grandmother to see his child. He does not know where his child resides in Jamaica, and despite having parental responsibility, the maternal grandmother does not involve him in major decisions surrounding the child.
The father is currently based in the UK and wants to apply to the courts in Jamaica to gain full custody of his child, and wants to know the steps he should take in doing so.
I have read your letter, which gives a great deal of information, but not enough about the court proceedings which resulted in your partner agreeing for the maternal grandmother to be appointed the guardian of the child and to have care and control (or was it custody?); and that she was also granted permission to relocate with the child to Jamaica. The father, I deduce, must have also consented for her to be the one to take care of the child, and he must have also consented that they could relocate to Jamaica. Courts generally prefer to keep children whose parents are not in a position to care for them under their supervision, unless the parents agree otherwise.
You have not said whether the father's access was part of the order of the court, which is generally a very important matter which courts insist upon. You have also not stated the actual details of his access as ordered by the court. And, since the maternal grandmother and the child were permitted to travel to Jamaica, you have not stated what, if anything, the court ordered about his exercise of his access while they are in Jamaica.
You say that your partner “saw” the court's order as a temporary measure. He consented to the orders being made, but did he make clear to the court that his consent was only for the maternal grandmother to only temporarily be the caregiver of his child? It seems that he clearly did not, but only saw it as temporary, having given his consent to the orders made. It seems clear to me that the orders were final ones, though for orders relating to children there is always “liberty to apply” for variations or reversals to be made to the order.
It is unfortunate that he consented to them relocating to Jamaica, as this removed them from the jurisdiction of the court in the UK.
He should have insisted, because of their relocation, that orders were made to ensure his being able to get his child when he became able to take care of the child, and specific orders for his access. He should also have insisted that he and the grandmother have joint custody of the child. This would have entitled him to be consulted about developmental decisions about the child's life and welfare, which would include where the child should live.
Then the father, after they relocated to Jamaica, should have applied for the order of the UK court to be re-sealed here in Jamaica and so ensure its validity here. You only, almost in an aside, say that the maternal grandmother was appointed the child's guardian, without any details. Was she the sole guardian, or was the guardianship joint with the father?
Your legal options
Regarding the steps he should take about trying for custody through the courts here, I trust that he did have an address for the maternal grandmother and other family members. If so, he can contact the clerk of the Family Court of that parish and explain his situation and his wish to apply for orders of custody and care and control of his child. There must be full disclosure, with no gaps in his account, of what happened, and he should (if he does not have one), have obtained a certified copy of the order of the UK court and a certified copy of his child's birth certificate. I also advise that he obtains two certified copies of the transcript of the court proceedings upon which he can rely to prove his paternity, and fully inform the court what had transpired then.
You see, he can make his application, and at the same time apply for orders to be relieved from making personal service on the grandmother, and for substituted service to be done instead by way of advertisements in one or more of our popular daily newspapers, and for a family member to also be served a set of his applications with the summons for the grandmother's attendance in court for the hearing.
I am not sure whether your partner has grounds to enable him to make a criminal complaint against the maternal grandmother for child stealing, as you did not give me specifics about the court order pursuant to which she acted in relocating and what access he was granted therein. I cannot therefore suggest this course to your partner.
Your partner can, of course, engage the services of an investigator to find the grandmother and his child without any disclosures being made to her, and with such information, he could have the Family Court of that parish assist him and prepare his application for custody and care and control of his child. If he obtains this information, then his application can be directly served personally on the grandmother, without any need for the application for substituted service of it.
I hope and trust that I have given you and your partner enough to assist him to move to be able to apply and obtain custody and care and control of his child. He should try to move as soon as possible. Though he has the right to apply for this, if he leaves it too long, a court can decide that it has been too long and the child is well settled and it is not in the best interests of the child to be moved to another country. But even in such a circumstance, he can obtain specific orders for access — and residential access, wherein his child can go and spend school holidays with him in the UK.
I wish him the very best and that he acts and finds his child and tries through the courts here to get his child.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to a email@example.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.