Priestleys Act for the Applicant in the First Case in the Cayman Islands where Article 13(b) defense was raised by the Respondent and successfully secure return of subject child to its habitual residence.

Nikue Assarpour, represented the father of a subject client in relation to an Application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for the return of the subject child from the Cayman Islands to the USA. Questions to be addressed by the Court included the issues of the child’s habitual residence, and for one of the first times before a Cayman Court, the application of Article 13(a) (consent) and Article 13(b) (grave risks) defenses, in relation to the proposed return. The Cayman court also explored the extent to which protective measures are relevant to order for return.

In response to the Application, the Respondent sought to rely on both Article 13(a) and 13(b) defenses, namely that the Applicant had consented to the removal and further that should the Court order the return of the subject child there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. These allegations were denied by the Applicant, nevertheless it was considered prudent to offer without prejudice interim (i.e. before first appearance in the US family court) protective measures to ameliorate any residual concerns the Court may have had in ordering the return of the child to its habitual residence.

The Judgment provides a detailed analysis of the workings of the convention and an assessment of the defenses raised. Ultimately the Court concluded that the respondent had failed to establish that the Applicant had consented to the relocation. While with respect to the Article 13(b) defense of grave risk, the Court considered carefully the serious allegations raised by the Respondent but found that the Court in the US was a specialist Court capable of adjudicating on the issues between the parties and further that the protective measures offered by the Applicant were reasonable in the circumstances and were able to mitigate any risks to the child. Accordingly, the Court ordered that the subject child be returned to the United States.

For any family law related matters, please contact Nikue Assarpour

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