WQN v XEV

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL ANTIGUA AND BARBUDA ANUHCVAP2023/0007 BETWEEN: WQN Appellant and XEV Respondent Before: The Hon. Mde. Vicki Ann Ellis Justice of Appeal The Hon. Mr. Eddy D. Ventose Justice of Appeal The Hon. Mde. Esco L. Henry Justice of Appeal Appearances: Mr. Dexter Theodore KC for the Appellant Ms. C. Debra Burnette and Mr. Kyle Nicholson for the Respondent ______________________________ 2024: May 3; 2025: June 4. _______________________________ Civil Appeal – Family law – Custody of minor child – Welfare of the child first and paramount consideration – Whether judge erred in awarding sole custody of the minor child to the mother – Relationship of the parties acrimonious - Whether appropriate to deprive father of custody - Whether the learned judge erred in refusing to grant joint custody on the basis of the Canadian case of Kruger v Kruger – Access and visitation - Whether the judge erred in not following the recommendations of the court appointed experts in relation to counselling between the parties and the amount of direct contact the appellant should have with the minor child – Whether the judge failed to take into account relevant considerations or took into account irrelevant considerations in determining access and visitation On or about 13th December 2021, the appellant (“the Father”) left Antigua and Barbuda with the minor child, who was born on 2nd November 2020, and travelled to the United Kingdom (“UK”) without the respondent’s (“the Mother”) knowledge. At the time, the Mother was in the process of travelling back to Antigua from a trip to the United States. Upon her return, the Mother immediately initiated legal proceedings in England seeking an order for the minor child’s return. Both parties have dual British and Antiguan citizenship, have lived together in Antigua since 2014 and were married on 5th October 2019. On 16th December 2021, a location order was made against the Father and on 21st December 2021, once his whereabouts were discovered by the UK police, an order was made in favour of the Mother mandating that the minor child be returned to her. On 23rd December 2023, the High Court of Justice in England granted an order for the Mother to return to Antigua with the minor child with an undertaking by the Mother that she would return the child to the jurisdiction if ordered to do so. The proceedings in England were adjourned to 21st January 2022 for the court to consider whether the High Court of England or the High Court in Antigua had jurisdiction and whether it should at that stage order the return of the Mother and the minor child to England. On 4th July 2022, the English court determined that it no longer had jurisdiction and that the proceedings in England were now at an end. All existing orders and undertakings were discharged. The English court however ordered costs against the Father for his unreasonable actions in the proceedings. Proceedings were also initiated in Antigua, where the parties filed cross applications, both seeking sole custody of the minor child with access arrangements for the non-custodial parent. In addition, the Mother requested a declaration that the minor child was unlawfully removed from her habitual place of residence by the Father without the knowledge of the Mother, while the Father requested an order to relocate with the minor to England. The matter came up for hearing before the learned judge who handed down judgment in January 2023. In her judgment, the judge granted sole custody of the minor child to the Mother with care and control of her and made orders, inter alia, for access and visitation for the Father and counselling for the parties. The Father filed his notice of appeal on 2nd March 2023 in which he advanced a number of grounds of appeal which challenged the learned judge’s findings in regard to: (1) custody of the minor child; (2) co-parenting counseling; (3) contact - access to the minor child. Held: Dismissing the appeal; affirming the decision and orders of the learned judge; and making no order as to costs in the court below and on appeal, that: 1. The scope of appellate review in family cases is narrow. An appellate court’s role is generally one of error correction; it is not to retry a case. An appeal is not a litigant’s opportunity to get a ‘second bite of the cherry’, especially in family cases where finality of litigation should be promoted. An appellate court therefore may only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law. Absent an error of law or a palpable and overriding error of fact, deference is vital. Appellate courts must therefore review a trial judge’s reasons cautiously and as a whole, bearing in mind the presumption that trial judges know the law. Piglowska v Piglowski [1999] 1 WLR 1360 applied; Re H-W (children) [2022] UKSC 17 applied. 2. In Antigua and Barbuda, in any dispute relating to a child, the court must have regard to the child’s welfare as the first and paramount consideration. This principle applies whether the dispute arises in the context of the guardianship, matrimonial causes, child maintenance, wardship or affiliation. However, while the welfare of the child is paramount, it is not exclusive as other considerations may be relevant in assisting in the determination of what is actually for the welfare of the child such as the wishes of the child (where appropriate), the wishes of the parents, the conduct of the parents towards each other and towards the child, maintenance of the family unit, and preserving the status quo. Over the years, this non-exhaustive list of factors has evolved into what is now commonly referred to as the welfare checklist. Section 3 of the Guardianship of Infants Act, Cap 197 of the Laws of Antigua and Barbuda applied; Durity v Benjamin No. 1596 of 1993 (unreported) 30 July 1993, HC,T&T applied. 3. An order for joint custody should not be made unless it is likely to promote the welfare of the child or children in question, and an important matter to be taken into consideration is whether the parents can be expected to co-operate if an order for joint custody is made. Ultimately, each case must be considered on its own set of circumstances. This is especially true in family law cases which are by their very nature, fact-based and discretionary. In the present case, the learned judge had to decide what was best for the minor child, taking into account a number of factors in the welfare checklist which had to be balanced against each other. She considered the evidence of the relationship between the parties and formed the view that an atmosphere of civility did not exist to allow the parties to co-operate in making the major decisions in respect of the minor child’s upbringing. In the final analysis the judge concluded that an order for joint custody was not appropriate and awarded sole custody to the Mother. The learned judge did not err when she found, based on the seriously strained relationship between the parties, that joint custody would not have been the appropriate order to have made. This was an exercise of her discretion and given the totality of the evidence, there was clearly a basis to support that finding. In the instant case, there is nothing to cause the Court to set aside the determination made by the learned judge. Caffell v Caffell [1984] FLR 169 applied; Jussa v Jussa [1972] 1 WLR 881; Re D Minors [1987] Lexis Citation 1668 applied; Re B (a Minor) [1986] Lexis Citation 539 applied. 4. As it relates to the Father’s contention that the learned judge erred in not following the court-appointed experts who recommended discussions between the parties with the help of a neutral third party, but instead, directed that the parties separately attend an online co-parenting course, the fact that this order prescribes online counseling would not preclude the bilateral meetings which would focus on communication and conflict resolution. The judge’s order was clearly informed by the fact the parties did not physically reside in the same jurisdiction and so some electronic online platform would have to be employed. In addition, the judge’s order was consistent with the recommendation of the expert Dr. Morgan Campbell who urged that co-parenting sessions should be held with the parties to assist with effective co-parenting strategies focusing on communication, conflict resolution and future planning, so that healthy communication and both parents’ involvement in child’s life can be possible. If the precise scope and conduct of the counseling was unclear, it was in any event certainly open to the parties (who are ad idem on the need for counselling) to approach the court below for clarification (or specific details) of the order. 5. An expert witness is a person who is qualified by his or her knowledge or experience to give an opinion on a particular issue(s) to a court. However, expert witnesses, however skilled or eminent, cannot usurp the functions of the adjudicator. Their duty is to furnish the judge with the necessary criteria for testing the accuracy of their conclusions, so as to enable the judge to form his or her own independent judgment by the application of these criteria to the facts proved in evidence. The opinion evidence, if sufficiently cogent, becomes a factor for consideration along with all of the other evidence in the case, but the decision is for the judge. However, where a judge departs on the opinions of the experts, reasons for the departure must be given. The error lies in failing to explain why the expert was wrong, not the fact of disagreement in itself. It is incumbent upon a judge to explain his departure, so that the basis of his decision is clear. Re N-B and others (Children) (Residence: expert evidence) [2002] EWCA Civ 1052 distinguished. 6. When considering a contact order, a court must have regard to the welfare of the child, the conduct of the parents and the wishes of the parents. The welfare of a child usually dictates that both parents should be able to preserve his natural links with his child. Applying the reasoning in Re N-B, it is clear that the learned judge would not be obliged to blindly accept the experts’ views as to how contact should be facilitated and arranged. This is especially so when one considers that the experts were not engaged to instruct the court on what contact order is appropriate but rather to provide a clinical assessment on the matters which should be considered in arriving at that determination. Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124 applied; Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521 applied. 7. In this case, the judge was sensitive to the peculiar factual context of the case which would impact the terms of such a contact order. This included: (1) the fact that the parties resided in different geographical locations; and (2) the lingering impact which the Father’s ill-advised unilateral removal of the minor child and the contentious litigation in the United Kingdom would have resulted. While it would be in the minor child’s best interest to have direct contact with her father, the factual and historical context of this case could not be ignored. Given the totality of the evidence before her, it is not startling that the judge would have ordered supervised access and would have mandated that the Father surrender his passport during the period of access. The judge clearly embraced the expert’s opinion that contact with the minor child would be an evolving process beginning first with supervised visits in Antigua, thereafter progressing to more flexible arrangements once trust was restored and the benefits of counseling became evident. There is no basis to disturb that finding. 8. Ultimately, having regard to the totality of the evidence, the judge was led to craft an order which maintained the interim contact/access arrangements (save the direct contact would now be with supervised access). This order would be maintained (without variation) for a period of 12 months during which period the parties would be expected to engage in appropriate co-parenting counseling aimed at restoring healthy communication, rebuilding the trust between the parties and arriving at common ground in regard to conflict resolution and parenting. Thereafter, it would be open to either or both parties to approach the court to vary the terms of the order. There was clearly a range of options available to the judge, all of which are defensible, but in the exercise of her discretion, she chose one that she considered best met her perception of what is needed to fulfill the requirements of this particular case. It cannot be said that the learned judge failed to take into account relevant matters, had regard to irrelevant factors or that she has exceeded the generous ambit of her discretion or that her decision was plainly wrong. At all times, the judge applied the relevant legal principles and remained focused on the child’s best interests. 9. It is unusual to order costs in children cases, however where for example, the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable costs may be ordered. These proceedings do not fall within the latter category. Therefore, there will be no order as to costs on the appeal. Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317 applied; Gojkovic v Gojkovic [1992] Fam 40 considered. JUDGMENT Introduction

[1]ELLIS JA: In this appeal, the Father appeals against the decision of the learned judge in the court below in which she ordered that: “1 Sole custody of the minor child be awarded to the Mother with care and control of the minor child to her. 2. Access to the minor child awarded to the Father as follows: (i) . Video access with the [minor child] for a minimum of 5 days a week, one of those days being either a Saturday or a Sunday, the times and days to be agreed between the parties. Such video access is not to be supervised save for the sole purpose of setting up the call and ensuring the attendance of the child on the appointed day and time. If possible, the schedule of such calls is to be prepared on a month-to-month basis and any changes by either party are to be notified within 48 hours of the scheduled day and time. (ii) .Permission is granted (upon him making all necessary inquiries of the Royal Antigua Police Force and the Office of Director of Public Prosecutions) to have supervised in-person visits with [the minor child] at a minimum of three times per year for one week within the jurisdiction of Antigua and Barbuda. These visits will be facilitated by the wife upon being given a minimum of 3 weeks’ notice and the same is to be conducted at an agreed public place in the presence of one of the godparents of the child or other selected individual for a period of not less than 3 hours per day for each day for the duration of the week- long visit. (iii) His [the Father’s] passport will be surrendered at the commencement of each daily visit to the person who is selected to bring the child to the visit and will be returned to him upon the end of the visit. 3. The parties are as a matter of urgency to engage in an online co-parenting course which is not to commence any later than 3 weeks after the delivery of this judgment. All costs associated with this course to be borne by the parties equally. 4. The parties have full liberty to apply for any variation of this order, but such variation is not to take place less than 12 months after the coming into effect of this order unless there are changes in circumstances which affect the ability of either party to fulfill their obligations under this order. 5. Each party is to bear his or her own costs.”

[2]The notice of appeal filed by the Father on 2nd March 2023 challenges paragraphs 1, 2(ii) and 3 of the judge’s order.

Background

[3]The appellant (“the Father”) is the father of the minor child born on 2nd November 2020. The respondent (“the Mother”) is the mother of the minor child. Both parties have dual British and Antiguan citizenship. They have lived together in Antigua since 2014 and were married on 5th October 2019.

[4]On or about 13th December 2021, the Father left Antigua with the minor child and travelled to the United Kingdom (“UK”) without the Mother’s knowledge. At the time, the Mother was in the process of travelling back to Antigua from a trip to the United States. Upon her return, the Mother immediately initiated legal proceedings in England seeking an order for the minor child’s return.

[5]On 16th December 2021, a location order was made against the Father and on 21st December 2021, once his whereabouts were discovered by the UK police, an order was made in favour of the Mother mandating that the minor child be returned to her. On 23rd December 2023, the High Court of Justice in England granted an order for the Mother to return to Antigua with the minor child with an undertaking by the Mother that she would return the child to the jurisdiction if ordered to do so. The proceedings in England were adjourned to 21st January 2022 for the court to consider whether the High Court of England or the High Court in Antigua had jurisdiction and whether it should at that stage order the return of the Mother and the minor child to England.

[6]On 4th July 2022, the English court determined that it no longer had jurisdiction and that the proceedings in England were now at an end. All existing orders and undertakings were discharged. The English court however ordered costs against the Father for his unreasonable actions in the proceedings. The relevant judgment is cited as Re S (A Child) (Jurisdiction).1 In that judgment, McFarlane P in the Family Division determined inter alia that the minor child was habitually resident in Antigua and that any issues relating to her future welfare had to be before the courts there. The learned judge was also unable to identify a clear or substantial basis upon which to found a decision that the English court continued to have some continuing ancillary jurisdiction with regards to the minor child’s welfare which could have justified requiring her to return to England or entitled the English courts to impose a contact order on the Mother.

[7]Proceedings were also initiated in Antigua, where the parties filed cross applications, both seeking sole custody of the minor child with access arrangements for the non- custodial parent. In addition, the Mother requested a declaration that the minor child was unlawfully removed from her habitual place of residence by the Father without the knowledge of the Mother, while the Father requested an order to relocate with the minor to England. At the material time, the Father was gainfully employed and resides in England with his family; the Mother resides in Antigua and Barbuda and is gainfully employed.

[8]The matter came up for hearing before the learned judge who handed down judgment in January 2023. At the time, the minor child resided in Antigua and Barbuda with the Mother while the Father had access to the child via Zoom four days a week for a minimum of 30 minutes for each session.

Judgment in the Court below

[9]The learned judge identified the following issues for determination: (i) Should a declaration be made finding that the removal of the minor child from the jurisdiction of Antigua and Barbuda by the Father without the knowledge and consent of the Mother was unlawful? (ii) To whom should custody of the minor child be granted? - and in so determining whether the custody should be sole or joint. (iii) What should the access orders be for the non-custodial parent?

[10]Very early in her analysis the learned judge identified that the starting point must be to consider and understand what the term in the ‘best interest of the child’ means in real terms. In carrying out this assessment the learned judge applied the dicta in Durity v Benjamin2 where Basdeo Persad- Maharaj J set out a formula to achieve an order that adheres to that principle. He cited the following list: (i) Behaviour and characteristics of the parties. (ii) Child's education. (iii) Whether the child is suffering from any serious illness. (iv) Accommodation and material advantages. (v) Satisfaction of the child's basic needs. (vi) Whether the custody application is bona fide or not. (vii) Wishes of the parent and if possible, wishes of the child. (viii) Sex and age of the child and ages of the parents. (ix) Religion of the child. (x) Happiness of the child. (xi) Future prospects of the child if granted to one parent. (xii) Question of access to the unsuccessful party.

[11]The learned judge determined that both the Father and the Mother care and love the minor child unconditionally and she took the view that the cross applications for custody brought by the parties reflected their bona fide respective opinions in the child’s best interest. The judge also found that the ability of the parties to care and provide for the minor child is almost equal. On a balance of probabilities, she found that the parties can provide the child with the requisite education (in Antigua or in the United Kingdom), meeting her basic needs, accommodation and material advantages including extended family settings.

[12]However, noting the minor child’s tender age, the learned judge determined that the advice of independent expert parties would be critical in order to determine the impact which each parent’s proposals would have on a child of such a young age. The judge considered the expert reports advanced by Dr. Morgan Campbell on behalf of the Mother and Dr. Ben Laskey on behalf of the Father.

Care and Control

[13]The learned judge noted that it was clear from the experts that (for slightly different reasons) they were both in favour of maintaining the status quo as it relates to minor child, while making it clear that any other ‘shuffling’ may not be beneficial to the minor child’s development in the present or in future. She further noted that save and except for the period when she was removed by her father in December 2021, the minor child has remained in the care of her mother and her father and that Antigua was where she had lived since her birth. She therefore concluded that since the child is very young and has never been separated from her mother for any significant length of time and it was not suggested that the Mother was unsuitable to care for her, she determined that care and control should be vested in the Mother. The judge further noted that the advantage of continued care with the Mother without disturbance of the status quo would be an important factor to be taken into account.

Custody

[14]Having made that conclusion as to the issue of care and control, the learned judge then turned to the question of legal custody. Although she noted that neither party sought an order for joint custody of the minor, she applied the judgment in Kruger v Kruger3 in which the Ontario Court of Appeal observed that: “An award of joint custody…requires maturity on the part of each parent in accepting the other on an equal basis as one with whom the responsibility for the child can be shared, in accepting that the child must physically reside with one or other of them, and in accepting that generous access by the other parent is an essential part of the arrangement. Above all, it requires a sincere and genuine willingness by both parents to work together to ensure the success of the arrangement and by its very nature, such willingness is not something that can be imposed by a Court.” The learned judge concluded that it was clear that an order of joint custody can only be made where there is a reasonable prospect that the parties co-operate.

[15]Having applied these principles and having considered the correspondence that has flowed between the parties (which disclosed inter alia that the parties cannot even agree on childhood vaccinations because they are incapable of even speaking to each other), the learned judge determined that the parties have not reached the level of maturity and communication necessary following the events of December 2021 and the breakdown of the marriage to handle an order for joint custody. She concluded that an order for joint custody would not be appropriate in any of the present circumstances. At paragraph 70 of the judgment she observed: “In all the circumstances and to maintain the present status quo and taking into consideration of (sic) the inability of the parties to communicate effectively, I order that sole custody is awarded to the wife.” Access and Visitation

[16]After considering the respective proposals of each party as well as the recommendations of the experts (who made it clear that before any attempt could be made to change the current access, it was imperative that the parties undertake a course on how to navigate co-parenting which by necessity would involve ways for conflict resolution as between the parties, effective communication, and respect for differing parenting styles), the learned judge was determined to “formulate an order that affords the husband as the non-custodial parent to have liberal access to [the minor child] within the parameters of the geographic separation and the fundamental breach of trust as between both parties”. She ordered inter alia that: “ii. Permission is granted (upon him making all necessary inquiries of the Royal Antigua Police Force and the Office of Director of Public Prosecutions) to have supervised in-person visits with [the minor child] at a minimum of three times per year for one week within the jurisdiction of Antigua and Barbuda. These visits will be facilitated by the wife upon being given a minimum of 3 weeks’ notice and the same is to be conducted at an agreed public place in the presence of one of the godparents of the child or other selected individual for a period of not less than 3 hours per day for each day for the duration of the week- long visit.”

[17]However, the judge was at pains to point out that in order to acknowledge that there would be a progression in the relationship of the parties as the minor child grows older, the access arrangements would need to be reviewed periodically by the court on the application of either party in order to reflect changes that will by the evolution of time occur.

Counseling

[18]Applying the recommendation of the experts who suggested a course of co-parenting counseling, the learned judge also directed that the parties engage in an online parenting course to commence no later than 3 weeks after delivery of the judgment.

Grounds of Appeal

[19]The Father advanced a number of grounds of appeal which challenged the learned judge’s findings in regard to: (1) custody of the minor child; (2) co-parenting counseling; (3) contact - access to the minor child.

Grounds 2B (i) and (ii) - Custody

[20]In regard to custody, the Father contends that the learned judge erred in granting sole custody to the Mother. He further contends that the judge erred by relying on the Canadian judgment in Kruger v Kruger to ground her refusal to grant joint custody to the parties. As a result of these errors, the Father contends that the Mother has no incentive or obligation to co-parent with him and therefore no need or incentive to improve their communication and conflict resolution abilities effectively nullifying the judge’s intentions and orders made.

Grounds 2B (iii) - Counseling

[21]The Father contends that the learned judge erred in not following the recommendation of the court-appointed experts who recommended discussions between the parties with the help of a neutral third party. Instead, she directed that the parties separately attend an online co-parenting course.

Grounds 2A (a)-(c) Contact/Access

[22]The Father contends that the learned judge erred in ordering direct contact only on the basis of, and in the belief that he could obtain the envisaged immunity from criminal prosecution or rely upon any such assurance or statement from the local police or the Director of Public Prosecutions. As a result, the Father contends that he is unable to have any direct contact with the minor child whatsoever.

[23]The Father also takes issue with the fact that the learned judge elected not to follow the recommendations of the court-appointed experts in specifying exactly how much direct contact he should have but rather left it to the parties to agree, subject to a minimum of three times per year for one week. He argued that the learned judge erred in not following the recommendations of the court-appointed experts who recommended that the Father have direct contact for half of the holidays.

Parties’ Submissions

The Father’s submissions

[24]The Father submitted that by relying on the Canadian case of Kruger v Kruger, the learned judge applied the wrong test in assessing the issue of custody. Counsel for the Father succinctly summarized the Kruger test in the following terms - a joint custody order could only be made where there was a reasonable prospect that the parents would cooperate. The Father argued that Kruger v Kruger is out of date and misconceived in its approach that parents must be cooperating, communicating and co-parenting effectively for such an order for joint custody to be made. According to him, this used to be the case in English law until the judges realised that if this were the case, parents would, in all likelihood, not be seeking the assistance of the court in any event.

[25]Accordingly, as a matter of UK law, not only is the non-resident parent's parental responsibility able to be protected by a joint custody order (more recently referred to as a joint residence order and presently as a joint Child (living) Arrangements order), even if the parents are in conflict or unable to communicate or resolve disputes effectively, but in any event any such parent has the separate protection of parental responsibility.

[26]Counsel for the Father asserted that rather than applying that test, the judge ought to have applied the correct test for making a joint custody order which was made clear in Re R (Residence: Shared Care: Children’s Views)4 by Thorpe LJ, who stated at paragraph 11: “For the sake of clarity, I reiterate my opinion that the judge’s approach to the issue of a shared residence order is unsupportable. The judge seemingly refers to the significant shift in case-law over the course of the last 10 years, but does not seem to have understood the pace or direction of that movement. This court has recently confirmed the wisdom of the approach taken by Wall J (as he then was) in A v A (Shared Residence) [2004] EWHC 142 (Fam), [2004] 1 FLR 1195. As is plain from paras [121] – [126] of that judgment, a harmonious relationship between the parents is not a prerequisite of a shared care order.”

[27]Counsel for the Father then considered the reasoning in A v A (Shared Residence),5 in which the English Court (Family Division) held that because the parents were incapable of working in harmony a court order which reflected both the reality of the children’s lives and the fact that the parents were equal in the eyes of the law and had equal duties and responsibilities towards their children was needed. Counsel cited paragraph 124 of that judgment which reads: “If these parents were capable of working in harmony, and there were no difficulties about the exercise of shared parental responsibility, I would have followed Mrs P’s advice and made no order as to residence. Section 1(5) of the Children Act 1989 requires the court to make no order unless making an order is better for the children concerned than making no order at all. Here, the parents are not, alas, capable of working in harmony. There must, accordingly, be an order. That order, in my judgment, requires the court not only to reflect the reality that the children are dividing their lives equally between their parents, but also to reflect the fact that the parents are equal in the eyes of the law, and have equal duties and responsibilities towards their children.”

[28]Counsel argued that the fact of disharmony made a shared residence order more of an imperative. A principle which is the diametrical opposite of the view canvassed in Kruger v Kruger and espoused by the learned trial judge. According to counsel, what is required is to demonstrate that the order is in the interest of the child and he cited the judgment in D v D (SHARED RESIDENCE ORDER)6 in support.

[29]The Father submitted that the judge failed to explain why she chose to rely on the Canadian case Kruger v Kruger, where other jurisdictions approach the issue of parental decision-making in a way that is more consistent with her expressed desired outcome regarding co-parenting. Rather than assisting in achieving that end, the effect of granting the wife sole custody is, effectively, to remove his parental responsibility and, therefore, any motivator for the wife to co-parent, something which he reported was a continuing problem to the extent that he was not updated about important parenting and developmental matters relating to the minor child.

[30]Counsel further submitted that the fact of a geographical divide between the parents is not an insurmountable barrier and he relied on the following extract from Halsbury’s Laws of England, in which the learned authors state that: “…the relocation of the children to a different jurisdiction is no bar to the court making an order providing for a shared living arrangement to embody the division of the children's time between their parents in different jurisdictions.”7

[31]Counsel concluded that had the learned judge applied the correct test of paramountcy of the child’s interest, the circumstances of the case coupled with the applicable law would have dictated an order of joint custody.

[32]In regard to the judge’s findings in relation to access and visitation, the Father contended that in making the order that the Father be granted a minimum of 3 in-person visits with the minor child per year, upon making all ‘necessary inquiries of the Royal [2001] 1 FLR 495. 7 Halsbury's Laws of England Children and Young Persons (Volume 9 (2017), Antigua Police Force’, the judge failed to take into account a number of relevant considerations including the fact that: (1) the Director of Public Prosecutions and not the Royal Antigua Police Force is the body with ultimate responsibility for the prosecution of criminal offences in Antigua and Barbuda; (2) the Constitution of Antigua and Barbuda does not, in the absence of a prosecution, support the reassurance contemplated by the learned judge; (3) the judiciary cannot direct the executive whether or not to undertake criminal proceedings; (4) the Director of Public Prosecutions has no power to waive prosecution or provide reassurances of immunity from prosecution and; (5) the Mother’s persistence with her prayer for a declaration that the Father had unlawfully removed the minor child from Antigua increased the likelihood that the Father would be arrested if he set foot on Antigua.

[33]The Father further submitted that the learned judge took into account the written statement by the Mother to the Police dated 6th February 2022 withdrawing her support for any prosecution against the Father which is ultimately irrelevant.

[34]The Father further submitted that this Court is also duty bound to intervene because the judge declined to follow the recommendations of the court appointed experts in regard to direct contact and counseling. Counsel for the Father submitted that while a judicial officer is not obliged to act in accordance with the coherent and reasoned opinion of experts, in a childcare case a judge is not entitled to depart from the experts in relation to issues of management, placement and welfare without fully explaining his departure. He cited in support the judgment in Re N-B and others (children) (residence: expert evidence)8 which was summarised in Halsbury’s Laws of England in the following extract: “…in a child care case, a judge is entitled to depart from the experts in relation to issues of management, placement and welfare, but he must explain fully his departure.”9

[35]Counsel further cited the judgment of Moore-Bick LJ in K v K (Children: Permanent Removal from Jurisdiction)10 in which he observed that the report of the CAFCASS officer stood and fell by the quality of the investigation and the strength of its reasoning and that the judge did not attach sufficient weight to the same and should not have rejected it. Counsel pointed out that in the case on appeal both experts favoured direct contact between the Father and the minor child. He pointed to Dr. Morgan Campbell’s recommendation that “Parents, or carers approved by parents, should take turns travelling between the two countries so that the minor child can interact with not only both parents but her extended families as well.” He also noted that Dr. Ben Laskey endorsed Dr. Morgan Campbell’s recommendations, adding his own observation that: “indirect contact [through Zoom and Teams etc] was not a substitute for direct contact.” Rather, Dr. Laskey advocated for regular in-person contact for the minor child with the non-resident parent which would help the minor child’s adjustment.

[36]Counsel for the Father submitted that while both experts gave very carefully reasoned arguments in favour of in-person contact, not only of the parents but also of the extended families on either side of the Atlantic, the judge chose to reject the recommendations of the experts and limit contact between the Father and the minor child to Antigua, which, in the circumstances, amounts to no in-person contact at all.

[37]Counsel for the Father submitted that the learned judge erred in that at no point did she address the fact that the experts had recommended in person contact and she 9 Halsbury's Laws of England > Civil Procedure (Volume 11 (2020), paras 1–496; Volume 12 (2020), paras 497– 1206; Volume 12A (2020), paras 1207–1740) > 18. Evidence > (12) Expert Evidence > (i) Use of Experts, gave no reasons why she disregarded their recommendations in regard to direct contact.

[38]The Father also took issue with the fact that the judge ignored the reasoned recommendations for communications between the parties with the help of a neutral third party without giving any sufficient reasons.

The Mother’s submissions

[39]In responding to the issue of custody, counsel for the Mother stressed the importance of first understanding the nature of the actual application which was before the court below. She submitted that in fact, neither the Father nor the Mother applied for joint custody of the minor child. So that, insofar as the Father was concerned, joint custody was not an order which was desired or sought by him. It therefore could not be argued that the learned judge refused to order joint custody, as no application was made for joint custody. Counsel went further to say that it was disingenuous of the Father to suggest that the learned judge erred in the circumstances.

[40]Counsel for the Mother however, conceded that although there was no express application advanced by either party, they both raised the issue in submissions. On behalf of the Mother, it was argued that it would not be appropriate because there was no actual pending application and in any event the lack of communication and cooperation between the parties made such an order impractical. On the other hand, the Father adopted it as a fallback position to his own claim for sole custody when it became clear to him that the evidence did not support a sole custody order in his favour.

[41]Moreover, the Mother submitted that the evidence plainly does not support such an order being made. Counsel submitted that the learned trial judge properly considered the evidence which was before her and correctly applied the relevant common law principles in considering custody of a minor child. Counsel noted that the learned judge’s only guiding principle and starting point was the ‘best interest of the child’ or ‘welfare of the child’. She further noted her reliance on the judgment of Ramdhani J (Ag.) in GC v LC11 quoting the following extract from J v C:12 “I think they [the term welfare of the child and best interest of the child] connote a process whereby when all relevant facts, relationships, claims and wishes of the parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is the most in the interest of the child’s welfare as that term has now to be understood.”

[42]Counsel further submitted that this demonstrates no error of law or principle. Being guided by the said principle and having heard the evidence presented in the case at bar and observed the witnesses, the judge would have considered “which parent can meet the needs of the child at this particular point in time and who is able to foster the relationship with the non-custodial parent to ensure the child has contact with both parents”. Counsel then listed the evidence which when taken in its totality would have influenced the judge’s determination that there is more uncertainty and less stability and willingness to co-parent on the Father’s side. The evidence cited by counsel included the following: (i) the Father took the minor child to England without the Mother’s knowledge and consent with the intention of the child living permanently with the Father, in the absence of the Mother. (ii) The Father took active steps to hide his whereabouts in England in the period immediately after the abduction. (iii) The Father accepted that this was wrong, cruel and reprehensible. (iv) The Father did not make contact with the Mother for over a week after he took the minor child. (v) The Mother did not know the whereabouts of the minor child and the Father. (vi) The Mother had to report the matter to the police in Antigua and in England. (vii) The Mother had to engage the court in England to be reunited with the minor child. (viii) The minor child’s habitual place of residence is Antigua. (ix) The Father claims to be afraid that if he returns to Antigua, criminal proceedings may be brought against him by the police. (x) The Mother informed the Father that she withdrew her complaint approximately two months after the abduction, but consistently stated that she has no control over what the police would do. (xi) The Father’s counsel undertook to make inquiries of the police/DPP on likely criminal charges. (xii) The Father only wants to speak to the Mother by email and has said he cannot speak with her on telephone or text. (xiii) The Father admittedly communicates with the Mother via email through his lawyer/ “communication expert”. (xiv) The Father has moved in England three times since his return and the hearing of the case in the court below. (xv) The Father had no documents to support his financial means.

[43]Counsel for the Mother further argued that the English case law cited by the Father in support of his contention that the correct test for joint custody is that applied in ‘child arrangements orders’ are clearly based on substantive English legislation – the Children’s Act 1989 – a statute which has not been received into law in Antigua and Barbuda. Counsel argued that while the UK Children’s Act provides a checklist which should guide a court considering custodial orders, the judge was quite correct to consider the common law principles as to what is in the best interest of the minor child. Counsel noted that the judge considered the judgment in Foster v Foster,13 which is of persuasive authority, and which has been applied in the Eastern Caribbean Supreme Court in Crum-Ewing v Crum-Ewing.14

[44]In response to the challenge levied in respect of the judge’s counseling order, the Mother submitted very tersely that the learned trial judge did not in fact order the parties to attend separate co-parenting sessions online. Counsel for the Mother pointed out that in any event, the Mother’s evidence before the court was that she welcomed Dr. Morgan Campbell’s recommendation about co-parenting sessions and hoped that the Father would be able to attend both individual and co-parenting sessions.

[45]Turning to the issues of access and visitation, counsel for the Mother argued that a court is not duty bound to slavishly follow recommendations of experts in coming to a decision in the case. In this case, the learned trial judge was the ultimate arbiter of the facts and having made findings, she would then be entitled to consider how to apply to the recommendations advanced by the experts. Counsel argued that in this case, the instructions to the experts were limited. They were not engaged to tell the court what custodial or access orders to make, but to provide an opinion on the matters which should be considered where the court must decide custody and access. Moreover, counsel noted that the experts would not have been privy to the entire history of the abduction and would not have the benefit of the testing of the evidence at trial.

[46]The judge was therefore not duty bound to slavishly follow the experts’ recommendations in making her decision in the case. She was the ultimate arbiter of the facts and having made findings would then be entitled to consider how to apply to the experts’ recommendations. Contrary to what has been asserted by the Father, counsel argued that when one looks at the recommendations made by Dr. Morgan Campbell, the learned judge followed the recommendation for the minor child to remain with the Mother; for the Father to be assured (but through his own independent query) that criminal proceedings would not be pursued against him; that the Father should visit Antigua once he gets this document and aim to re-establish a connection with the minor child; and that the parties attend co-parenting sessions.15 These recommendations were made not only by Dr. Morgan Campbell , but also by Dr. Laskey (the expert engaged by the Father).

[47]Learned counsel for the Mother further contended that Dr. Morgan Campbell’s recommendation for the Father to have supervised access during the holiday periods for half of the holidays is an opinion and not a clinical finding which the court was bound to follow. That finding was not supported by any clinical findings made by her and is in fact inconsistent with her oral evidence in court. When she was tasked on this issue, Dr. Morgan Campbell’s evidence was as follows: “… let me add…I should have added that I think it has to be a gradual process. And so … and so you may, if he is, let’s say in Antigua, where I think is safest 15 Record of Appeal Volume 3, page 681. at this moment, you know, that at this moment it … it would… I think it’s important to develop trust… but I think we are moving towards it not being that rigid, once the trust is beginning to develop.”16

[48]In light of the evidence, counsel argued, the judge was not duty bound to accept the recommendation regarding holidays. The learned trial judge embraced Dr. Morgan Campbell’s opinion that there should be a gradual process beginning first with supervised visits in Antigua, being the safest at this time, and then possibly progressing depending on trust developing and the parties’ ability to co-parent having undergone initial supervised visits in Antigua and co-parenting sessions.

[49]Critically, counsel noted that there is no appeal by the Father against the Father’s visitation being supervised.

[50]The possibility of the Father being able to see the minor child in England in the future is not thwarted by the order of the court. In such circumstances, the learned trial judge committed no error in coming to her decision and this ground of appeal must fail.

[51]Moreover, counsel for the Mother submitted that the access and visitation order is not conditional upon the Father obtaining immunity from criminal prosecution. Rather, the judge was simply attempting to recognise that the Father needed to have some peace of mind on this issue and so directed that he makes his own inquiries to either the Royal Police Force of Antigua & Barbuda or the Office of the DPP. Whether or not criminal charges will be laid against the Father is not within the direct control of either the court or the Mother. However, given that the Mother produced the statement confirming her lack of interest in the criminal prosecution of the Father, he cannot properly complain.

[52]The Mother does not accept that the Father is unable to travel to Antigua or has been limited by the court’s order to indirect contact via Zoom. Rather, she contends that the Father has freely chosen to refuse to return to Antigua. She further submitted that the Father is free to choose to exercise his right to access and visitation or not in much the same way in which it was his choice to relocate to England. She noted that the English court displayed little sympathy for the Father who on the one hand voluntarily moved to England and then was heard to complain that he would prefer not to travel to Antigua for reasons which ultimately, were orchestrated by him.

[53]Counsel submitted that when the court examines the totality of the evidence and the court’s findings and the experts’ reports, it should not set aside or vary the learned trial judge’s order for supervised visitation to be in Antigua due to the risk of abduction.

[54]Finally, counsel for the Mother submitted that in any event, the learned judge clearly contemplated that her order would not be inflexible. The judge expressly allowed the parties to apply for any variation of the order, and particularly within twelve months if there was a change in circumstances which affect the ability of either party to fulfill their obligations under this order. Therefore, if the Father truly believed that communication from the DPP was a condition to his direct access to the minor child in Antigua then he could have made the necessary application to vary that condition. There is therefore no error of law in the court’s decision under this ground.

The Father’s reply

[55]In reply submissions, counsel for the Father addressed the Mother’s submissions in regard to custody. Although he agreed that the Father did not expressly seek an order for joint custody, counsel submitted that the judge correctly addressed the issue of joint custody because the issue arose on submissions. Moreover, he submitted that a court may indeed grant joint custody whenever there is an order which the court considers to be in the best interest of the child and he cited in support the judgment in Re NY (A Child)17 where the court held: “…that the father had not applied for an order under the inherent jurisdiction did not, of itself, inhibit the Court of Appeal from making the order…”

[56]The Father does not take issue with the learned judge’s self-direction in regard to the best interest of the child. However, he submitted that the learned judge’s error was in misdirecting herself that the authorities precluded her from granting joint custody because the parties did not appear capable of co-operating. This is because it is no longer the law that a joint custody order will not be made if the mother and father cannot co-operate. According to counsel this was an organic change in the common law which pre-dated the Children Act 1989. It is therefore of no moment whether the Children Act 1989 does, or does not, form part of the law of Antigua and Barbuda because the common law jettisoned the Jussa v Jussa18 doctrine prior to the passage in England of that Act.

[57]After referencing the authorities cited by the learned judge in support of her conclusions, counsel submitted that the notion that joint custody orders should only be made where there is a reasonable prospect that the parties will co-operate was short- lived. By 1987 the English Court of Appeal in Re D (Minors)19 (pre-dating the UK Children’s Act 1989) had stated: “It is suggested that this was not a case in which it was appropriate to order joint custody because of the established inability of these two parents to agree about matters connected with the upbringing of their children, or indeed about anything else, and in accordance with the old doctrine exemplified by such cases as Jussa v Jussa [1972] 2 All ER 600, [1972] 1 WLR 600, that was a good reason for not making an order for joint custody. But I do not think that is any longer the law…” [Emphasis added] [2020] 1 All ER 923 at paragraph 54.

[58]Counsel submitted that it is clear that in relation to joint custody orders, the law had moved on prior to the passage of the Children Act 1989. The rejection of the Jussa v Jussa doctrine had nothing, per se, to do with the Children Act 1989 but was a natural development of the common law in so far as it pertained to the invocation of the inherent jurisdiction in matters involving children. Yet, oblivious to the fact that by 1987 the law had moved on, the first instance decisions in Crum-Ewing (decided in 2008); Merchant v Williams20 (decided in 2010); and the case at bar continued to apply the long discredited Jussa v Jussa doctrine. Those decisions were made without the judgment in Re D (Minors) being brought to the attention of the court.

[59]The Father seeks involvement in issues of joint parental responsibility and decision making. He wholly disagreed with the contention that sole custody was the only appropriate order to be made. He submitted that his entire case was based on the need for improvement in communication and conflict resolution as a fundamental precondition to improving co-parenting. The money invested in the experts appointed for that sole reason speaks to his commitment to that end.

[60]Counsel for the Father further submitted that contrary to what was represented by the Mother, he did not abandon his challenge to the judge’s counseling order. Rather, the Father’s position is that there needs to be more bilateral meetings in which the focus would be on communication and conflict resolution. He submitted that a simple online course taken separately does not suffice because the parental interaction is not just about their education about the paramount best interests of the child being made the focal point but also the interactional difficulties they have in communication and conflict resolution. Many parenting courses would not even address that issue particularly deeply and for this to be done would require the presence of both the Mother and the Father in the same room where the unresolved emotions/negative systems which are driving the parental discord can be addressed in a dynamic and therapeutic way.

[61]In relation to the grounds challenging access and visitation, the Father finds it unfortunate that the Mother would submit that nothing turns on the court’s directive, when in truth it has had the result that the Father has been unable to have a person- to-person visit with his daughter in over two years. Counsel submitted that the court’s primary duty was to further the best interest of the child and extended beyond the mere obligation to recognise ‘that the Father needed to have some peace of mind’. The child ought always to have been the focus. Counsel further submitted that as the learned judge was seized of the facts, including the Father’s insecurities, it was incumbent on her to devise an order which furthered the best interests of the child, including her interest in enjoying in-person contact with her father. That interest was not best served by an order which left the Father to his own devices to navigate the criminal system of Antigua and Barbuda and which failed adequately or at all to take into account the effect that his possible arrest and incarceration might have on his daughter.

[62]Counsel argued that the learned judge did not adequately consider the extent to which the in-person contact in England, for which the Father contended, would have better served his child’s need for his companionship, in all the circumstances. She was not entitled to make assumptions regarding immunity from prosecution. The Father contends that as a matter of fact and law (under the Constitution) it is impossible for him to return to Antigua. It follows that the learned judge was mistaken in believing that he could do so, if he could obtain immunity and that the order of the learned judge is, in effect, a no-contact order.

[63]The Father found little comfort in that part of the judge’s order which permitted applications to vary where there was a change in circumstances. Counsel for the Father argued that there is no change in circumstance sufficient to found an application to vary because there could never have been any expectation of the DPP providing immunity. The Father’s point is that the learned judge should have known that there is no obligation on the DPP to provide this immunity and in fact cannot do so because he has no power to waive prosecution or provide reassurances of immunity from prosecution.

Analysis and Conclusion

Appellate Deference in Cases Affecting the Best Interests of the Child

[64]The scope of appellate review in family cases is narrow. I am obliged to cite the case law which sets out the proper approach of an appellate court hearing private law family appeals and I remind myself that the task of this Court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski21 where at page 1372, His Lordship observed that: “…the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge’s evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] R.P.C 1, 45: ‘The need for appellate caution in reversing the trial judge’s evaluation of the facts is based on much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.’ The second point follows from the first. The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as was given by the district judge. These reasons should be read on the assumption that, [1999] 1 WLR 1360 at page 1372 and see: re B (A Child) (Care Proceedings: Threshold Criteria) [2013] unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

[65]I am also guided by the following dicta of Dame Siobhan Keegan in Re H-W (children):22 "48. The very clear decision in In re B, albeit by majority, is that the existence of the requirement of necessity and proportionality does not alter the near- universal rule that appeals in England and Wales proceed by way of review rather than by way of re-hearing. It follows that it is not incumbent upon an appellate court to undertake a fresh evaluation for itself of the question of necessity and proportionality. For the reasons clearly stated by, in particular, Lord Neuberger at paras 83-90, such is contrary to principle, as well as undesirable in practice. In particular, if each appellate court were to undertake such a fresh evaluation, it would expose the parties, and the children, to the risk of successive investigations of the same issue, certainly two, and in some cases three or even four times. It would also mean that the appellate court was expected to undertake a task for which it is unsuited, having not heard the evidence or seen the parties for itself. A decision on paper is no substitute for the decision of a judge who has, as Lord Wilson felicitously put it at para 42, had the advantage of a face-to-face, bench-to-witness-box acquaintanceship with those who are under consideration as carers of the child(ren). 49. In a case where the judge has adopted the correct approach to the issue of necessity and proportionality, the appellate court's function is accordingly, as explained in In re B, to review his findings, and to intervene only if it takes the view that he was wrong. In conducting that review, an appellate court will have clearly in mind the advantages that the judge has over any subsequent court - see Lord Wilson in In re B at para 41 and the earlier decision of the House of Lords in Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360”. [2022] UKSC 17.

[66]The trial judge is the fact finder and has the benefit of hearing from the parties directly, weighing the evidence, and making factual determinations. The trial judge is therefore best positioned to determine the best parenting arrangement. Determining a child’s best interests is always a fact-specific and highly discretionary determination and as has repeatedly been observed, appellate courts should be reluctant to interfere with the exercise of a trial judge’s discretion.

[67]An appellate court’s role is instead generally one of error correction; it is not to retry a case. An appeal is not a litigant’s opportunity to get a ‘second bite of the cherry’, especially in family cases where finality of litigation should be promoted. An appellate court therefore may only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law. Absent an error of law or a palpable and overriding error of fact, deference is vital. Appellate courts must therefore review a trial judge’s reasons cautiously and as a whole, bearing in mind the presumption that trial judges know the law.

[68]It follows that the appellant in this appeal faces formidable obstacles in his quest to reverse the judge’s findings and conclusions and it is with this caution that I now turn to consider the grounds of appeal.

Grounds 2B (i), (ii) and (iii) – Custody and Counseling

[69]The custody of infants being a discretionary matter, this Court could only interfere with the exercise of the judge's discretion if satisfied that she had, in exercising her discretion, applied some wrong principle or had failed to apply the correct principles. It is clear that the issue of custody of children may arise in any number of situations and may result in various forms of orders. At the outset of her reasoning, the learned judge made clear that the matter before her did not call upon her to apply the provisions of the Antigua Divorce Act.23 I note that the parties have not taken any issue with this conclusion.

[70]Instead, the learned judge observed that: “…the starting point for this court on these applications, as in all matters involving children, must be to consider and understand what the term in the ‘best interest of the child’ means in real terms.”

[71]In exploring this meaning, the judge applied a number of judgments24 as well as the learning in the International Journal of Law and the Policy of 201525 where the authors defined the best interest of the child as – “acts that provide the child with stability, protecting them from parental conflicts and preserving the primary relationships they have developed”. This assessment at the end of the day cannot be undertaken from the perspective of the parent but rather from the perspective of the child.

[72]Although it is not clearly stated in her judgment, in adopting this course, the judge applied the legal principle which originated in equity26 and crystalized in the Antigua and Barbuda Guardianship of Infants Act27 which prescribes that in any dispute relating to a child, the court must have regard to the child’s welfare as the first and paramount consideration. Section 3 of that Act provides as follows: “Where in any proceeding before any Court the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the Court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at 23 Act No. 10 of 1997 of the Laws of Antigua and Barbuda. 24 Massicotte v Massicotte DOMHMT 2012/0081(delivered 14th January 2016, unreported) at paragraph 34; GC v LC BVIHMT 2015/0023 (delivered 15th March 2017, unreported) at paragraph 20; J v C [1970] A.C. 686; Durity v Benjamin No. 1596 of 1993 (unreported) 30 July 1993, HC,T&T. 25 Vol. 29 Issue 3 Dec at page 272. common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.” [Emphasis added]

[73]This principle applies whether the dispute arises in the context of the guardianship, matrimonial causes, child maintenance, wardship or affiliation. Lord MacDermott in J v C expounded on this principle in the following terms: “The second question of construction is as to the scope and meaning of the words ‘… shall regard the welfare of the infant as the first and paramount consideration.’ Reading these words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules on or determines the course to be followed.”28 [Emphasis added]

[74]In Hodge v Hodge,29 d’ Auvergne J drew a comparison to section 3 of the UK Children Act in considering the factors relevant to the welfare of the child and concluded that appropriate weight must be given to the child’s sex, age, his/her physical, emotional and educational needs, the likely effect on the child with regard to any change in his circumstances and any harm he or she may be at risk of suffering as a result of the change.

[75]It is equally clear that while the welfare of the child is paramount, it is not exclusive as other considerations may be relevant in assisting in the determination of what is actually for the welfare of the child. Other considerations include the wishes of the child (where appropriate), the wishes of the parents, the conduct of the parents towards each other and towards the child, maintenance of the family unit, preserving the status quo. Over the years, this non-exhaustive list of factors has evolved into what is now commonly referred to as the welfare checklist.

[76]As alluded to earlier, Basdeo Persad-Maharaj J in Durity v Benjamin provided an amalgamated list which has consistently been applied by courts within this region: (i) Behaviour and characteristics of the parties. (ii) Child’s education. (iii) Whether the child is suffering from any serious illness. (iv) Accommodation and material advantages. (v) Satisfaction of the child’s basic needs. (vi) Whether the custody application is bona fide or not. (vii) Wishes of the parent and if possible, wishes of the child. (viii) Sex and age of the child and ages of the parents. (ix) Religion of the child. (x) Happiness of the child. (xi) Future prospects of the child if custody granted to one parent. (xii) Question of access to the unsuccessful party, co-operation between the parents to facilitate access. (xiii) Whether the new partners of the parents will be amenable to looking after the child.

[77]The checklist can ensure that all relevant matters in a case are considered and balanced. However, it is also clear that a judge does not need to expressly highlight each matter in the checklist when giving reasons. In H v H (residence order: leave to remove from jurisdiction)30 the English Court of Appeal explained the position: “It is then said that the judge did not go right through the checklist before reaching a conclusion, but only halfway. …Perhaps one should remember, that when one calls it a checklist, that it is not like the list of checks which an airline pilot has to make with his co-pilot, aloud one to the other before he takes off. The statute does not say that the judge has to read out the seven items in s 1(3) and pronounce his conclusion on each. Sometimes judges will do that, maybe more often than not; but it is not mandatory.”

[78]Of course, judges should be cautious because depending on the peculiar facts of the case, their decision may be overturned on appeal if the appellate court determines that he or she failed to consider important factors on the welfare checklist.31

[79]The judge in this appeal was clearly seised of the welfare checklist. At paragraph 50 of her judgment she referenced the judgment in Durity v Benjamin and from paragraph 51 onwards she assessed the factors as against the specific evidence before her.

[80]It is equally clear that the judge appreciated the broad reach of the term ‘custody’.32 In what has become a seminal text in this region, Elements of Child law in the Commonwealth Caribbean,33 Zanifa McDowell explained the two different senses in which this term is used. She observed: “The word may be used and understood in two difference senses. The broader sense refers to the rights and duties of the parent or guardian in relation to the child, or the whole bundle of rights and powers over children vested in these persons and terminating at the age of majority; the narrower sense refers to the actual possession of the child’s person or the power of the parent or guardian to exercise physical care and control of the child…sometimes referred to by the courts as “care and control” or “possession”.”

[81]Sachs L.J. in Hewer v Bryant34 expressed his view of what is meant by custody in the 31 Re H (a child) (contact: welfare checklist) [2010] EWCA Civ 448. 32 See paragraphs 58 - 63 of the Judgment. broader sense in this fashion: “In its wider meaning the word “custody” is used as if it were almost the equivalent of “guardianship” in the fullest sense-whether the guardianship is by nature, by testamentary disposition, or by order of a court...Adapting the convenient phraseology of counsel, such guardianship embraces a “bundle of rights”, or to be more exact, a “bundle of powers”, which continues until [age of majority]...These include power to control education, the choice of religion and the administration of the infant’s property. They include entitlement to veto the issuance of a passport and withhold consent to marriage. They include, also, both the physical control of the infant’s personal property until the infant attains years of discretion...”

[82]In this appeal, notwithstanding his reliance on legal authorities which concern ‘shared residence orders’35 the Father does not take issue with the judge’s findings on care and control of the minor child. Instead, he takes issue with the judge’s reasoning and disposition on the issue of custody in the broader sense.

[83]The resolution of this case required a balancing exercise. The judge had to decide what was best for the minor child, taking into account a number of factors in the welfare checklist which had to be balanced against each other. Ultimately, she concluded that an order for joint custody was not appropriate and awarded sole custody to the Mother. The learned judge concluded at paragraphs 68 – 70 of her judgment: “[68] Having said this and examined what is required for the court to even consider an order of joint custody, this court is of the firm belief that an order for joint custody would not be appropriate in any of the present circumstances. [69] It is clear from the correspondence that has flowed between these parties in the emails disclosed to the court that the parties cannot even agree on childhood vaccinations for L as they are incapable of even speaking to each other. The parties have not in this court's mind reached the level of maturity and communication subsequent to the event of December 2021 and the 35 A shared residence order, also known as a child arrangements order, determines the periods a child lives with different people. ultimate unexpected breakdown of the marriage to handle the intricacies of the necessities attached to an order for joint custody. [70] In all the circumstances and to maintain the present status quo and taking into consideration of (sic) the inability of the parties to communicate effectively, I order that sole custody is awarded to the wife.”

[84]In arriving at this conclusion she was guided by the dicta in Kruger v Kruger a Canadian appellate decision in which the court had to consider whether the Mr. Kruger’s application for joint custody should be granted in circumstances where Mrs. Kruger did not foresee that they would be able to co-operate. In a majority decision, the Canadian Court of Appeal declined to make an order for joint custody holding that: “…Such an arrangement requires …a sincere and genuine willingness by both parents to work together to ensure success of the arrangement, and by its very nature, such willingness is not something that can be imposed by a Court. Accordingly, in the present case, although the parties were equally fit as parents, and both agreed that the other was a fit parent, and they co-operated commendably under the interim custody arrangements before trial, there would be an unwarranted risk in imposing a joint custody arrangement. Where the trial judge has awarded custody to one of the parents, and the matter comes before the Court of Appeal at the instance of the other seeking joint custody, the Court of Appeal cannot hope to form other than a speculative conclusion as to the ability of the parents to co-operate. While it is entirely desirable that the Courts should give serious consideration to joint custody as one of the available options in performing their role as mediator before trial, to make such an order on appeal in the hope that the parties may be persuaded to make it work would involve undue risk to the child.”

[85]The learned judge was also guided by the dicta in Jussa v Jussa, a 1972 decision of the English Court of Appeal in which the court granted sole custody to the mother with reasonable access to the father. However, the father appealed against the custody order, although he conceded that the mother should have care and control. The Court of Appeal overturned the previous decision and granted a joint custody order, with care and control to the mother. Wrangham J, in his judgment stated, that in cases where the father and the mother are both well qualified to give affection and wise guidance to the children for whom they are responsible and where they appear to be of such calibre that they are likely to co-operate sensibly over the child for whom both of them feel such affection, then there can be no real objection to an order for joint custody.

[86]There can be no doubt that there has been considerable judicial reliance placed on the ratio in Jussa v Jussa in the Eastern Caribbean. However, over the years there has also been negative treatment (which has raised some doubt as to the correctness of the decision) commencing with Caffell v Caffell.36 In that case, the judge at first instance made an order granting custody of the children to their father, with their mother having the day to day care and control of the children. The mother appealed against the order, and the Court of Appeal allowed the appeal on the basis that the proper order should have been one for joint custody. Ormrod LJ, in his judgment, at page 171, opined that the proposition for which Jussa v Jussa had come to be cited, that joint custody orders ought not to be granted unless there was a reasonable prospect that the parties will co-operate, was in many cases ‘a perfectly sensible proposition’. He, however, noted that there were other cases where the party, who did not have the day to day control, would be anxious to preserve his or her contact with the relevant child. In those cases, the court ought to be cognisant of that parent’s anxiety to take an active role in the child’s upbringing.

[87]Despite the fact that the parties in that case had had an acrimonious relationship, the court in Caffell v Caffell granted joint custody in recognition of the father’s deep interest in his children. Ormrod LJ at page 171 of the judgment when commenting on the leading case of Jussa v Jussa said: “The third point is that the judge, as many judges I think are, was influenced by the case of Jussa v Jussa [1972] 1 WLR 881 which is cited in Rayden for the proposition that joint orders for custody ought not to be made unless there is a reasonable prospect that the parties will cooperate together. No doubt in many cases that is a perfectly sensible proposition; but there are cases in which the party who has not got the day-to-day control of the children is anxious to preserve as much of his or her contact with them as is possible in the new circumstances where the parties have separated, and there is a good deal to be said for recognizing the responsibility and the concern of the father in this case by making some order which shows that the court recognises that he is anxious to take an active part in their upbringing. Therefore, a joint custody order meets his problem as far as it can be met in the physical circumstances and should at least help him to get over the bitterness which he is bound to feel.”

[88]It has been suggested that this represented a departure from the ratio in Jussa which led to two separate schools of thought on the issue of joint custody. Since then, there is a line of authorities37 (which have suggested that the presence of acrimony between the child’s parents did not automatically prevent such orders), culminating in Re D Minors38 where Sir John Arnold (P) writing for the English Court of Appeal observed: “It is suggested that this was not a case in which it was appropriate to order joint custody because of the established inability of these two parents to agree about matters connected with the upbringing of their children, or indeed about anything else, and in accordance with the old doctrine exemplified by such cases as Jussa v Jussa [1972] 2 All ER 600, [1972] 1 WLR 600, that was a good reason for not making an order for joint custody. But I do not think that is any longer the law, and what is even more important is that at the stage which things had reached in September 1985, at which time the parents were no more likely than they are now or have ever since been to agree about anything at all, the parties were prepared to agree to an order for joint custody and I can see no reason for disturbing that state of thing. It seems to me that if it was a suitable conclusion in September 1985 that the future of these children should rest on a regime of joint custody with care and control to one of the parents that is a state of things which still operates.

[89]Having reviewed the several authorities on this issue, I am not satisfied that the position is not as antithetical as has been represented. I say this because of the following quote from the judgment of Sir George Baker P, in the case of Jussa v Jussa which was cited again by Lord Justice Ormrod in Hurst v Hurst39 at page 870: "I think the question to be asked is not whether there is anything unusual or exceptional to merit a joint custody order or to merit a split order, but what order would best promote the welfare of the infants".

[90]This dictum indicates that an order for joint custody should not be made unless it is likely to promote the welfare of the child or children in question. Further, one of the important factors to be taken into consideration in arriving at that conclusion is whether the parents can be expected to co-operate if an order for joint custody is made. I am inclined to the view expressed by Purchas LJ in Re B (a Minor)40 in the following terms: “Like most of these decisions, the joint custody order has its positive and negative aspects. It works best when there is parental co-operation, but there may be occasions when it is necessary to ensure parental co-operation. There may be other occasions upon which it will act purely as an irritant and thereby destroy such a relationship as there is between the parents. In my judgment it would be quite wrong for this court to lay down any specific rules about joint custody or its desirability or otherwise in any particular circumstances, such as was the invitation extended to us by Mr. Hunt; as was said by Sir George Baker, it is a matter of the interest of the child.”

[91]In my judgment, that is the correct statement of the law.

[92]It is also clear to me that at paragraph 18, Ormrod LJ in Caffell v Caffell did not suggest that Jussa v Jussa was wrongly decided, neither did it overrule or render obsolete the proposition advanced. In fact the judge accepted that the ratio in Jussa v Jussa made perfect sense in many cases while acknowledging that in appropriate circumstances a judge may make a joint custody so as to recognise that a party is anxious to take part in the upbringing of the relevant child.

[93]Ultimately, each case must be considered on its own set of circumstances. This is especially true in family law cases which are by their very nature, fact-based and discretionary.41 In the present case, the learned judge considered the evidence of the relationship between the parties. She formed the view that an atmosphere of civility did not exist to allow the parties to co-operate in making the major decisions in respect of the minor child’s upbringing. Despite the assertions of counsel for the Father, I am not satisfied that the learned judge erred when she found, based on the seriously strained relationship between the parties, that joint custody would not have been the appropriate order to have made. This was an exercise of her discretion and given the totality of the evidence, there was clearly a basis to support that finding.

[94]There were also expert opinions which acknowledged that this is a case where escalating disagreements, personality differences and incompatible communication styles have resulted ultimately in a relationship breakdown and serious loss of trust between the parents and which spoke directly to the critical need for healthy communication practices between parties for the benefit of the minor child. This was to be addressed through appropriate counseling. The judge clearly made that ruling in the context of what constituted the best interest of the child. The following exchange between the judge and Dr. Morgan Campbell clearly bears this out: “THE COURT: But my -- I think that what Mrs. Burnette [sic] has just raised with you, that was the question that I had. In the end of the day, for the best interest of [the minor child], is it your -- and I've seen that you recommended in terms of co-parenting sessions – THE WITNESS: Mm-hmm. THE COURT: -- how strongly in the whole scheme of things is that your recommendation? THE WITNESS: That is my No. 1, 1,000 percent. I don't know whatever other words, that is the most important thing in [the minor child’s] best interest that they are able to communicate as she grows, as she develops now and when she's 18 and when she's 19. It all -- it matters at every stage of her development. THE COURT: And quite frankly, it is you -- from everything that you've said this morning, without that ability to co-parent [the minor child] the -- it's going to be extremely strained in terms of raising this child as parents. THE WITNESS: As absolutely it will be strained. THE COURT: Thank you very much.”42

[95]The Father has submitted that the learned judge overemphasized the importance of the parties speaking to one another and he posited that he would consider speaking to the Mother on Zoom “but not right now” and suggested that he will only be prepared to communicate directly with the Mother “at the appropriate time, having gained the appropriate knowledge and practice with the wife to communicate with her frequently and informally if that is what the wife wants”.43 Presumably the Father appears to be of the view that co-parenting of the minor child can effectively be discharged in the context of a joint custody order and no doubt through some third party facilitator.

[96]In my view, leaving parents to decide between themselves the best direction in which the child’s life should proceed requires a level of effective communication and co- operation between the parties. The evidence in this case suggests the absence of that level of civility, communication and co-operation. No matter how detailed a joint custody order may be drafted, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication between the parents is even more important.

[97]It has consistently been stated that this Court will not disturb the first instance judge’s exercise of a discretion given to him or her, unless it is clearly satisfied that the judge has wrongly exercised that discretion due to the misapplication or the non-application of the proper principles. In the instant case, there is nothing to cause this Court to set aside the determination made by the learned judge. She saw and heard the parties and their respective witnesses and was best suited to determine where the truth lay. She applied the correct legal principles and welfare checklist as against the evidence and expert testimony before her and she ultimately arrived at a decision which prioritized the welfare of the minor child.

[98]I would therefore dismiss this ground of appeal.

[99]Before leaving this ground of appeal, it is I think also appropriate to address the concerns expressed by the Father in his submissions before the court below. At paragraph 35 of the judgment the learned judge recounts the concern that the “making of an order for sole custody in favour of the mother would mean…that he would effectively be ousted from the life of [the minor child] and would have no say in the important decisions in her life”. It is important, for the guidance of these parties going forward, to note that the grant of sole custody to one party does not entirely deprive the other party of any right to an input in respect of the major decisions to be made concerning the child and the child’s welfare. The modern approach was articulated by Ormrod LJ in Dipper v Dipper44 in the following terms: “It used to be considered that the parent having custody had the right to control the children's education - and in the past their religion. This is a misunderstanding. Neither parent has any pre-emptive right over the other. If there is no agreement as to the education of the children, or their religious upbringing or any other major matter in their lives, that disagreement has to be decided by the court. In day-to-day matters the parent with custody is naturally in control. To suggest that a parent with custody dominates the situation so far as education or any other serious matter is concerned is quite wrong....” [Emphasis added]

[100]Cumming-Bruce LJ concurred with the view that a parent is always entitled, despite his or her custodial status, to be consulted on major matters concerning the child. At [1981] Fam 31 at page 45. page 48 of the judgment he observed: “As Ormrod L.J. has explained ... it being a fallacy which continues to raise its ugly head that, on making a custody order, the custodial parent has a right to take all the decisions about the education of the children in spite of the disagreements of the other parent. That is quite wrong. The parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters. If he disagrees with the course proposed by the custodial parent he has the right to come to the court in order that the difference may be determined by the court.” [Emphasis added]

[101]The parties herein should be guided accordingly.

Counseling

[102]Having considered the totality of the learned judge’s judgment and the submissions advanced by the parties, I am satisfied that this ground lacks merit. The judge’s order was not unclear. At paragraph 3 she mandated that: “The Parties are as a matter of urgency to engage in an online co-parenting course which is not to commence any later than 3 weeks after delivery of this judgment. All costs associated with this course are to be bourne by the parties equally.”

[103]The fact that this order prescribes an online counseling would not preclude the bilateral meetings which would focus on communication and conflict resolution. The judge’s order was clearly informed by the fact the parties did not physically reside in the same jurisdiction and so some electronic online platform would have to be employed. It is also apparent that although she would have left details of the form, duration and content to be determined by the proposed counselor, no doubt in consultation with the parties, the learned judge was mindful that both experts had determined that it was imperative “that the parties undertake a course on how to navigate co-parenting which by necessity would involve ways for conflict resolution as between the parties, effective communication, and respect for differing parenting styles.”

[104]This was consistent with the recommendation of the expert Dr. Morgan Campbell who urged that co-parenting sessions should be held with the parties to assist with effective co-parenting strategies focusing on communication, conflict resolution and future planning, so that healthy communication and both parents’ involvement in child’s life can be possible.

[105]I am not satisfied that there is any basis for interfering with the judge's order. The views of a skilled facilitator would certainly advance matters and given that both parties had expressed the desire to repair and improve their communication and conflict resolution skills, it is not surprising that the order was drafted in such flexible terms. It was clearly open to the parties to approach the court below for clarification (or details) of the order. This Court simply does not have the material to make any alteration relative to the issue of counseling and I would equally express no view as to what may be the appropriate order if and when the matter comes back to the court below.

Grounds 2A – Contact: Access and Visitation

[106]The learned judge granted the Father access in two forms. The first form of order was to be unsupervised: “Video access with [the minor child] for a minimum of 5 days a week, one of those days being either a Saturday or a Sunday, the times and days to be agreed between the parties. Such video access is not to be supervised save for the sole purpose of setting up the call and ensuring the attendance of the child on the appointed day and time. If possible, the schedule of such calls is to be prepared on a month-to-month basis and any changes by either party are to be notified within 48 hours of the scheduled day and time.” [Emphasis added]

[107]The second form of order was to be supervised. It provided that: “Permission is granted (upon him making all necessary inquiries of the Royal Antigua Police Force and the Office of Director of Public Prosecutions) to have supervised in-person visits with [the minor child] at a minimum of three times per year for one week within the jurisdiction of Antigua and Barbuda. These visits will be facilitated by the wife upon being given a minimum of 3 weeks’ notice and the same is to be conducted at an agreed public place in the presence of one of the godparents of the child or other selected individual for a period of not less than 3 hours per day for each day for the duration of the week- long visit.” [Emphasis added]

[108]The second form of order also carried the condition that the Father’s passport be surrendered at the commencement of each daily visit to the person who is selected to bring the child to the visit, and returned to him at the end of the visit.

[109]The Father takes issue with these orders on two main bases. First, he contends that the judge was wrong in not following the recommendations of the experts in regard to contact with the minor child. Secondly, he submitted that it was incumbent on the judge to craft a contact order which furthered the best interest of the child. He contends that in ordering direct contact in Antigua and Barbuda only when the question of criminal prosecution remains unresolved effectively means that he is unable to have direct contact with the minor child.

Application of Expert Evidence

[110]The first limb of the Father’s challenge requires some consideration of the approach which a court must adopt when considering expert evidence. In that regard, I note that an expert witness is a person who is qualified by his or her knowledge or experience to give an opinion on a particular issue(s) to a court. However, courts have repeatedly made it clear that expert witnesses, however skilled or eminent, cannot usurp the functions of the adjudicator. Their duty is to furnish the judge with the necessary criteria for testing the accuracy of their conclusions, so as to enable the judge to form his or her own independent judgment by the application of these criteria to the facts proved in evidence. The opinion evidence, if sufficiently cogent, becomes a factor for consideration along with all of the other evidence in the case, but the decision is for the judge.

[111]In support of his arguments on this ground, counsel for the Father cited the judgment in Re N-B and others (Children) (Residence: expert evidence). It appears however that counsel did not appreciate that in that case, the court of appeal drew an important distinction between the expert medical evidence and the recommendations relative to placement, management and welfare of the child.

[112]In Re N-B and others (Children) (Residence: expert evidence)45 the judge had rejected expert psychiatric evidence that the father suffered from a personality disorder that made him unable to relate properly as a parent. The court held that he was not entitled to reject unanimous expert evidence relating to the psychological assessment of a party simply on the basis of impressions he has formed of the party in the witness box. The court also held that a judge is at liberty to depart from the opinion of the experts, even if unanimous on issues of future placement and management of a case involving children, where he is evaluating the opinion of the experts as to placement, management and welfare issues. However, reasons had to be given.

[113]The constraint therefore is a procedural one - reasons for departure from the experts’ opinion had to be given. The error was in failing to explain why the expert was wrong, not the fact of disagreement in itself. It is incumbent upon a judge to explain his departure, so that the basis of his decision is clear.\

[114]In this case, the first expert, Dr. Morgan Campbell, recommended that the Father be allowed to have supervised visits during the holiday periods for half the holiday with parents, or carers approved by parents, taking turns traveling between the two countries so that the minor child can interact with not only both parents but her extended families as well. The other expert, Dr. Laskey appeared to support the 45 See also: K v K (Children: Permanent removal from Jurisdiction) [2012] Fam 134. conclusions of Dr. Morgan Campbell in respect of contact and support to parents. He concluded that it would be very much in the child’s interests for her parents to improve their relationship and to establish mutually satisfactory arrangements for direct contact between the minor child and her father. The two experts in this case were therefore clear that the direct contact need not be limited to the state of Antigua.

[115]Dr. Laskey was however very frank about the weaknesses of his report. At paragraph 1.16 – 1.17 he observed: “I have not assessed [the minor child] as part of this piece of work. I have not assessed [the Mother], or had the opportunity to observe her with [the minor child]. [The Mother] declined to meet with me. This leaves substantial gaps in my understanding of [the Mother’s] position and is an acknowledged weakness of the current report.”

[116]Applying the reasoning in Re N-B, it is clear that the learned judge would not be obliged to blindly accept the experts’ views as to how contact should be facilitated and arranged. This is especially so when one considers that the experts were not engaged to instruct the court on what contact order is appropriate but rather to provide a clinical assessment on the matters which should be considered in arriving at that determination.46 Having considered the experts’ assessments the judge as the ultimate arbiter was entitled to come to a decision which in her opinion represented the best interests of the minor child.

[117]The judge’s reasoning on this issue is critical. At paragraphs 72 and 73 she sets out her understanding of the parties’ respective positions. At paragraph 74 she applies the recommendations of the experts noting that they made clear that before any change to the current access can be contemplated that co-parenting counseling must be engaged by the parties. At paragraphs 77,78 and 79 she frames the issue in the following terms: “[77] …. this court must formulate an order that affords the husband as the non- custodial parent to have liberal access to [the minor child] within the parameters of the geographic separation and the fundamental breach of trust as between both parties. [78] Thus in order to acknowledge that there would be a progression in the relationship of the parties as [the minor child] gets older, this court is of the view that the access arrangements will need to be reviewed periodically by the court on the application of either party to reflect changes that will by the evolution of time occur. [79] This court hopes that the parties understand that the judgment of the court is really only the starting point for the building of new relationships between the child and each of [her] parents in their new roles and between the separated parents themselves.”

[118]A number of critical matters arise from this reasoning. First, it is clear that when considering a contact order, a court must have regard to the welfare of the child, the conduct of the parents and the wishes of the parents. The welfare of a child usually dictates that both parents should be able to preserve his natural links with his child. The rationale for this should be obvious. Sir Thomas Bingham’s judgment in Re O (Contact: Imposition of Conditions)47 is instructive. At page 128 he observed: “…where parents of a child are separated and the child is in the day-to-day care of one of them, it is almost always in the interests of the child that he or she should have contact with the other parent. The reason for this scarcely needs spelling out. It is, of course, that the separation of parents involves a loss to the child, and it is desirable that that loss should so far as possible be made good by contact with the non-custodial parent, that is the parent in whose day-to-day care the child is not. This has been said on a very great number of occasions and I cite only two of them. In Re H (Minors) (Access) [1992] 1 FLR 148 at p 151A Balcombe, LJ quoted, endorsing as fully as he could, an earlier passage in a judgment of Latey J in which that Judge had said: ‘... where the parents have separated and one has the care of the child, access by the other often results in some upset in the child. Those upsets are usually minor and superficial. They are heavily outweighed by the long-term advantages to the child of keeping in touch with the parent concerned so that they do not become strangers, so that the child later in life does not resent the deprivation and turn against the parent who the child thinks, rightly or wrongly, has deprived him, and so that the deprived parent loses interest in the child and therefore does not make the material and emotional contribution to the child's development which that parent, by its companionship and otherwise would make.’"

[119]Further useful guidance can also be gleaned from the judgment of Munby LJ in Re C (A Child) (Suspension of Contact):48 “a) Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child. b) Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child's welfare. c) There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt. d) The court should take a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems. e) The key question, which requires 'stricter scrutiny', is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case. f) All that said, at the end of the day the welfare of the child is paramount; the child's interest must have precedence over any other consideration.” [Emphasis added]

[120]In this case, the parents had conflicting wishes. It is apparent from the expert report of Dr. Laskey, that the Mother would have represented that she would continue to support indirect contact and that she would support the Father having direct contact on a supervised basis (initially) with the minor child in Antigua. The Father’s position was in essence the reverse of the Mother. He requested that the minor child be placed in his care in the United Kingdom and he says that he would support indirect contact with the Mother and direct contact between the minor child and her mother in the UK.

[121]However, consistent with the expert’s recommendations, the judge was clearly determined to arrive at an order which would facilitate direct contact between the Father and the minor child.

[122]Secondly, the judge was sensitive to the peculiar factual context of this case which would impact the terms of such a contact order. This included: (1) the fact that the parties resided in different geographical locations; and (2) the lingering impact which the Father’s ill-advised unilateral removal of the minor child and the subsequent litigation in the United Kingdom would have caused. Courts do not generally look favorably on parents who act in this way. This is because keeping a child away is typically considered evidence that the parent is not going to support the child's relationship with their other parent. Judges take this very seriously and may limit the offending parent's custodial rights often by restricting that parent's physical custody to supervised visitation. The learned judge in this case was clearly concerned and this is not surprising given the following expert assessment of Dr. Morgan Campbell: “[The Father] explained that he is open to [the Mother] visiting with [the minor child] as much as she pleases and can even stay close by to have ease of access. He would also include her in the decision-making and schooling of [the minor child] as he has no interest in keeping [the minor child] from her mother… However, based on his attitude of secrecy when he moved with [the minor child] and his lack of communication, it is possible that there was a lack of desire to include [the Mother] in his plans for [the minor child]. [The Father] now posits that he is open to communicating with [the Mother], but it appears he would prefer it on his terms as he views her concerns, preferences and even style of parenting as problematic.”49 [Emphasis added]

[123]Given the totality of the evidence before her, it is not startling that the judge would have ordered supervised access and would have mandated that the Father surrender his passport during the period of access.

[124]The learned judge would have also restricted access to Antigua. The Father takes issue with this because he lives in the United Kingdom and he has no immediate plans to return to live in this jurisdiction. Indeed, he posits that he feels unable to return to Antigua for fear that he will be compelled to face the consequences of his unfortunate actions. This, notwithstanding that the Mother has done everything within her power to make plain her lack of interest in his prosecution in accordance with her duty to do what she can to meet the child’s needs in terms of achieving contact with the Father. In the face of his unlawful conduct the Father argues that the court should facilitate his access to the minor child in a country where he feels personally secure. In restricting access to Antigua only, the Father contends that he has effectively been deprived of access to the minor child.

[125]The Father further contends that the learned judge was not entitled to make assumptions regarding his ability to secure immunity from prosecution and should not have included (in the order granting direct contact), the proviso that he make all necessary inquiries of the Antigua Police Force and the Director of Public Prosecutions.

[126]I am inclined to agree that there was no basis to include the so called “proviso” as part of the order. During the proceedings in the court below, the parties were examined at some length about the possible criminal prosecution of the Father. Having reviewed the evidence I am satisfied that other than mere conjecture and surmise, the Father has advanced no cogent evidence to support his position.

[127]It seems to me that in refusing to travel to Antigua, the Father is voluntarily surrendering access to the minor child.

[128]While I agree that it would be in the minor child’s best interest to have direct contact with the Father, the factual and historical context of this case could not be ignored. The unilateral removal of the minor child to the United Kingdom and the subsequent litigation there make it difficult to view access in the United Kingdom in a positive light for the time being. Indeed, while in her written report, Dr. Morgan Campbell would have advocated for supervised visits during the holiday periods for half the holiday with parents, or carers approved by parents, taking turns traveling between the two countries, her oral testimony was striking. When cross-examined under oath, about the meaning of the term ‘supervision’ Dr. Morgan Campbell had this interesting exchange: “Q. So you are saying that is not the context in which you had made the recommendation in your report, that somebody should be present? A. Let me -- let me add -- I -- I should have added that I think it has to be a gradual process. And so -- and so you may, if he is, let's say in Antigua, where I think is safest at this moment, you know, that at this moment it -- it would -- I think it's important to develop the trust. And so I think if -- if initially, there may be that the -- the legal meaning of supervised access, but I think that we are moving, and moving towards -- moving towards it not being that rigid, once the trust is beginning to develop. So -- so it's -- it's -- it's varied for me. It is gradual -- it's in the supervision pace. Q. But at this stage, where you have said – A. Yes. Q. -- consistently that she is at a particular age, is it that you're recommending that someone should be present even in Antigua? A. Mm-hmm. Q. I understand your earlier responses correctly. A. Right. In the initial stages, I think that it should be so, and so -- but that needs to be very regularly reviewed. So that there it does lead towards less and less of that kind of in-person access -- in-person supervision.”50

[129]It seems to me therefore that the learned judge should and did take significant guidance from the expert in arriving at her determination. The judge clearly embraced Dr. Morgan Campbell’s opinion that it would be an evolving process beginning first with supervised visits in Antigua, thereafter progressing to more flexible arrangements once trust was restored and the benefits of counseling became evident. I can find no basis to disturb that finding.

[130]Thirdly, the judge recognized that decisions of this type are never final. They are always subject to changes in circumstances especially where they impact young children. The change of circumstances may be due to the current position of the parent or parents or of the growing child and the changes caused by the passage of time. This is particularly true in this case.

[131]Ultimately, this led the judge to craft an order which maintained the interim contact/access arrangements (save the direct contact would now be with supervised access). This order would be maintained (without variation) for a period of 12 months during which period the parties would be expected to engage in appropriate co- parenting counseling aimed at restoring healthy communication, rebuilding the trust between the parties and arriving at common ground in regard to conflict resolution and parenting. Thereafter, it would be open to either of both parties to approach the court to vary the terms of the order.

[132]The following recorded observations of the judge demonstrate that this order was intended to be embryonic and evolving: “THE COURT: I know that it is a very unusual order, but I want it to be given an opportunity to work. [The minor child] is getting older. It means that there is going to be -- things are going to change in this next year. But let us see if this can work for this year. Today -- this is January, so you literally have a calendar year until she becomes three again in November, and then you can see where you're going from that.”51

[133]In this case the proposed appeal is against the learned judge’s exercise of her discretion. The task of an appellate court is to review a decision in accordance with the principles established in the case law set out above. When I do so, I find that the trial judge’s analysis was free from a material error, serious misapprehension of evidence, or error of law.

[134]There was clearly a range of options available to the judge, all of which are defensible, but in the exercise of her discretion, she chose one that she considered best met her perception of what is needed to fulfill the requirements of this particular case. I cannot say that the learned judge failed to take into account relevant matters, had regard to irrelevant factors or that she has exceeded the generous ambit of her discretion or that her decision was plainly wrong. At all times, the trial judge applied the relevant legal principles and remained focused on the child’s best interests. She clearly weighed and applied the expert evidence and in my view the judge was entitled to make the orders she made.

[135]Accordingly, I would dismiss this ground of appeal.

Costs

[136]In Sutton London Borough Council v Davis (No 2),52 Wilson J, having recognised the principle enunciated by Butler-Sloss LJ in Gojkovic v Gojkovic53 that ‘it is unusual to order costs in children cases’, opined thus at page 1319: "Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order 51 Record of Appeal Volume 5, page 1081 at lines 9 – 16. for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co- operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations; ... But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable."

[137]I am not satisfied that the proceedings herein fall within that factual matrix and would make no order as to costs on this appeal.

Conclusion and Disposition

[138]Based on all the above, I would dismiss the appeal and affirm the learned judge’s decision and orders. I would also make no order as to costs in the court below and on the appeal.

[139]It is sincerely hoped that this judgment will bring an end to the adversarial and litigious history between these parties. Both parents claim to have the best interests of the minor child at heart. This should motivate them to robustly engage in counseling, both individual and otherwise. In T v T (shared residence),54 Black LJ of the English Court of Appeal provided the following invaluable encouragement and guidance to parents which I am unable to improve upon: "[The parents] must put aside their differences ... if the adults do not manage to resolve things by communicating with each other, the children inevitably suffer and the adults may also pay the price when the children are old enough to be aware of what has been going on. ... It is a tremendous privilege to be involved in bringing up a child. Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in that way is likely to remain with the children into their own adult lives."

[140]Again, I would urge the parties to be guided accordingly.

[141]It is only left for me to express the Court’s appreciation for the helpful submissions by counsel for the parties, and to express my regret for the delay in delivery of this reserved judgment. I concur. Mr. Eddy Ventose Justice of Appeal I concur.

Mde. Esco Henry

Justice of Appeal

By the Court

Chief Registrar

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL ANTIGUA AND BARBUDA ANUHCVAP2023/0007 BETWEEN: WQN Appellant and XEV Respondent Before: The Hon. Mde. Vicki Ann Ellis Justice of Appeal The Hon. Mr. Eddy D. Ventose Justice of Appeal The Hon. Mde. Esco L. Henry Justice of Appeal Appearances: Mr. Dexter Theodore KC for the Appellant Ms. C. Debra Burnette and Mr. Kyle Nicholson for the Respondent ______________________________ 2024: May 3; 2025: June 4. _______________________________ Civil Appeal – Family law – Custody of minor child – Welfare of the child first and paramount consideration – Whether judge erred in awarding sole custody of the minor child to the mother – Relationship of the parties acrimonious – Whether appropriate to deprive father of custody – Whether the learned judge erred in refusing to grant joint custody on the basis of the Canadian case of Kruger v Kruger – Access and visitation – Whether the judge erred in not following the recommendations of the court appointed experts in relation to counselling between the parties and the amount of direct contact the appellant should have with the minor child – Whether the judge failed to take into account relevant considerations or took into account irrelevant considerations in determining access and visitation On or about 13th December 2021, the appellant (“the Father”) left Antigua and Barbuda with the minor child, who was born on 2nd November 2020, and travelled to the United Kingdom (“UK”) without the respondent’s (“the Mother”) knowledge. At the time, the Mother was in the process of travelling back to Antigua from a trip to the United States. Upon her return, the Mother immediately initiated legal proceedings in England seeking an order for the minor child’s return. Both parties have dual British and Antiguan citizenship, have lived together in Antigua since 2014 and were married on 5th October 2019. On 16th December 2021, a location order was made against the Father and on 21st December 2021, once his whereabouts were discovered by the UK police, an order was made in favour of the Mother mandating that the minor child be returned to her. On 23rd December 2023, the High Court of Justice in England granted an order for the Mother to return to Antigua with the minor child with an undertaking by the Mother that she would return the child to the jurisdiction if ordered to do so. The proceedings in England were adjourned to 21st January 2022 for the court to consider whether the High Court of England or the High Court in Antigua had jurisdiction and whether it should at that stage order the return of the Mother and the minor child to England. On 4th July 2022, the English court determined that it no longer had jurisdiction and that the proceedings in England were now at an end. All existing orders and undertakings were discharged. The English court however ordered costs against the Father for his unreasonable actions in the proceedings. Proceedings were also initiated in Antigua, where the parties filed cross applications, both seeking sole custody of the minor child with access arrangements for the non-custodial parent. In addition, the Mother requested a declaration that the minor child was unlawfully removed from her habitual place of residence by the Father without the knowledge of the Mother, while the Father requested an order to relocate with the minor to England. The matter came up for hearing before the learned judge who handed down judgment in January 2023. In her judgment, the judge granted sole custody of the minor child to the Mother with care and control of her and made orders, inter alia, for access and visitation for the Father and counselling for the parties. The Father filed his notice of appeal on 2nd March 2023 in which he advanced a number of grounds of appeal which challenged the learned judge’s findings in regard to: (1) custody of the minor child; (2) co-parenting counseling; (3) contact – access to the minor child. Held: Dismissing the appeal; affirming the decision and orders of the learned judge; and making no order as to costs in the court below and on appeal, that:

[1]ELLIS JA: In this appeal, the Father appeals against the decision of the learned judge in the court below in which she ordered that: “1 Sole custody of the minor child be awarded to the Mother with care and control of the minor child to her.

[2]The notice of appeal filed by the Father on 2nd March 2023 challenges paragraphs 1, 2(ii) and 3 of the judge’s order. Background

3.An order for joint custody should not be made unless it is likely to promote the welfare of the child or children in question, and an important matter to be taken into consideration is whether the parents can be expected to co-operate if an order for joint custody is made. Ultimately, each case must be considered on its own set of circumstances. This is especially true in family law cases which are by their very nature, fact-based and discretionary. In the present case, the learned judge had to decide what was best for the minor child, taking into account a number of factors in the welfare checklist which had to be balanced against each other. She considered the evidence of the relationship between the parties and formed the view that an atmosphere of civility did not exist to allow the parties to co-operate in making the major decisions in respect of the minor child’s upbringing. In the final analysis the judge concluded that an order for joint custody was not appropriate and awarded sole custody to the Mother. The learned judge did not err when she found, based on the seriously strained relationship between the parties, that joint custody would not have been the appropriate order to have made. This was an exercise of her discretion and given the totality of the evidence, there was clearly a basis to support that finding. In the instant case, there is nothing to cause the Court to set aside the determination made by the learned judge. Caffell v Caffell [1984] FLR 169 applied; Jussa v Jussa [1972] 1 WLR 881; Re D Minors [1987] Lexis Citation 1668 applied; Re B (a Minor) [1986] Lexis Citation 539 applied.

[3]The appellant (“the Father”) is the father of the minor child born on 2nd November 2020. The respondent (“the Mother”) is the mother of the minor child. Both parties have dual British and Antiguan citizenship. They have lived together in Antigua since 2014 and were married on 5th October 2019.

[4]On or about 13th December 2021, the Father left Antigua with the minor child and travelled to the United Kingdom (“UK”) without the Mother’s knowledge. At the time, the Mother was in the process of travelling back to Antigua from a trip to the United States. Upon her return, the Mother immediately initiated legal proceedings in England seeking an order for the minor child’s return.

[5]On 16th December 2021, a location order was made against the Father and on 21st December 2021, once his whereabouts were discovered by the UK police, an order was made in favour of the Mother mandating that the minor child be returned to her. On 23rd December 2023, the High Court of Justice in England granted an order for the Mother to return to Antigua with the minor child with an undertaking by the Mother that she would return the child to the jurisdiction if ordered to do so. The proceedings in England were adjourned to 21st January 2022 for the court to consider whether the High Court of England or the High Court in Antigua had jurisdiction and whether it should at that stage order the return of the Mother and the minor child to England.

[6]On 4th July 2022, the English court determined that it no longer had jurisdiction and that the proceedings in England were now at an end. All existing orders and undertakings were discharged. The English court however ordered costs against the Father for his unreasonable actions in the proceedings. The relevant judgment is cited as Re S (A Child) (Jurisdiction). In that judgment, McFarlane P in the Family Division determined inter alia that the minor child was habitually resident in Antigua and that any issues relating to her future welfare had to be before the courts there. The learned judge was also unable to identify a clear or substantial basis upon which to found a decision that the English court continued to have some continuing ancillary jurisdiction with regards to the minor child’s welfare which could have justified requiring her to return to England or entitled the English courts to impose a contact order on the Mother.

[7]Proceedings were also initiated in Antigua, where the parties filed cross applications, both seeking sole custody of the minor child with access arrangements for the non-custodial parent. In addition, the Mother requested a declaration that the minor child was unlawfully removed from her habitual place of residence by the Father without the knowledge of the Mother, while the Father requested an order to relocate with the minor to England. At the material time, the Father was gainfully employed and resides in England with his family; the Mother resides in Antigua and Barbuda and is gainfully employed.

[8]The matter came up for hearing before the learned judge who handed down judgment in January 2023. At the time, the minor child resided in Antigua and Barbuda with the Mother while the Father had access to the child via Zoom four days a week for a minimum of 30 minutes for each session. Judgment in the Court below

[9]The learned judge identified the following issues for determination: (i) Should a declaration be made finding that the removal of the minor child from the jurisdiction of Antigua and Barbuda by the Father without the knowledge and consent of the Mother was unlawful? (ii) To whom should custody of the minor child be granted? – and in so determining whether the custody should be sole or joint. (iii) What should the access orders be for the non-custodial parent?

[10]Very early in her analysis the learned judge identified that the starting point must be to consider and understand what the term in the ‘best interest of the child’ means in real terms. In carrying out this assessment the learned judge applied the dicta in Durity v Benjamin where Basdeo Persad- Maharaj J set out a formula to achieve an order that adheres to that principle. He cited the following list: (i) Behaviour and characteristics of the parties. (ii) Child’s education. (iii) Whether the child is suffering from any serious illness. (iv) Accommodation and material advantages. (v) Satisfaction of the child’s basic needs. (vi) Whether the custody application is bona fide or not. (vii) Wishes of the parent and if possible, wishes of the child. (viii) Sex and age of the child and ages of the parents. (ix) Religion of the child. (x) Happiness of the child. (xi) Future prospects of the child if granted to one parent. (xii) Question of access to the unsuccessful party.

[11]The learned judge determined that both the Father and the Mother care and love the minor child unconditionally and she took the view that the cross applications for custody brought by the parties reflected their bona fide respective opinions in the child’s best interest. The judge also found that the ability of the parties to care and provide for the minor child is almost equal. On a balance of probabilities, she found that the parties can provide the child with the requisite education (in Antigua or in the United Kingdom), meeting her basic needs, accommodation and material advantages including extended family settings.

[12]However, noting the minor child’s tender age, the learned judge determined that the advice of independent expert parties would be critical in order to determine the impact which each parent’s proposals would have on a child of such a young age. The judge considered the expert reports advanced by Dr. Morgan Campbell on behalf of the Mother and Dr. Ben Laskey on behalf of the Father. Care and Control

[13]The learned judge noted that it was clear from the experts that (for slightly different reasons) they were both in favour of maintaining the status quo as it relates to minor child, while making it clear that any other ‘shuffling’ may not be beneficial to the minor child’s development in the present or in future. She further noted that save and except for the period when she was removed by her father in December 2021, the minor child has remained in the care of her mother and her father and that Antigua was where she had lived since her birth. She therefore concluded that since the child is very young and has never been separated from her mother for any significant length of time and it was not suggested that the Mother was unsuitable to care for her, she determined that care and control should be vested in the Mother. The judge further noted that the advantage of continued care with the Mother without disturbance of the status quo would be an important factor to be taken into account. Custody

[14]Having made that conclusion as to the issue of care and control, the learned judge then turned to the question of legal custody. Although she noted that neither party sought an order for joint custody of the minor, she applied the judgment in Kruger v Kruger in which the Ontario Court of Appeal observed that: “An award of joint custody…requires maturity on the part of each parent in accepting the other on an equal basis as one with whom the responsibility for the child can be shared, in accepting that the child must physically reside with one or other of them, and in accepting that generous access by the other parent is an essential part of the arrangement. Above all, it requires a sincere and genuine willingness by both parents to work together to ensure the success of the arrangement and by its very nature, such willingness is not something that can be imposed by a Court.” The learned judge concluded that it was clear that an order of joint custody can only be made where there is a reasonable prospect that the parties co-operate.

[15]Having applied these principles and having considered the correspondence that has flowed between the parties (which disclosed inter alia that the parties cannot even agree on childhood vaccinations because they are incapable of even speaking to each other), the learned judge determined that the parties have not reached the level of maturity and communication necessary following the events of December 2021 and the breakdown of the marriage to handle an order for joint custody. She concluded that an order for joint custody would not be appropriate in any of the present circumstances. At paragraph 70 of the judgment she observed: “In all the circumstances and to maintain the present status quo and taking into consideration of (sic) the inability of the parties to communicate effectively, I order that sole custody is awarded to the wife.” Access and Visitation

[16]After considering the respective proposals of each party as well as the recommendations of the experts (who made it clear that before any attempt could be made to change the current access, it was imperative that the parties undertake a course on how to navigate co-parenting which by necessity would involve ways for conflict resolution as between the parties, effective communication, and respect for differing parenting styles), the learned judge was determined to “formulate an order that affords the husband as the non-custodial parent to have liberal access to [the minor child] within the parameters of the geographic separation and the fundamental breach of trust as between both parties”. She ordered inter alia that: “ii. Permission is granted (upon him making all necessary inquiries of the Royal Antigua Police Force and the Office of Director of Public Prosecutions) to have supervised in-person visits with [the minor child] at a minimum of three times per year for one week within the jurisdiction of Antigua and Barbuda. These visits will be facilitated by the wife upon being given a minimum of 3 weeks’ notice and the same is to be conducted at an agreed public place in the presence of one of the godparents of the child or other selected individual for a period of not less than 3 hours per day for each day for the duration of the week- long visit.”

[17]However, the judge was at pains to point out that in order to acknowledge that there would be a progression in the relationship of the parties as the minor child grows older, the access arrangements would need to be reviewed periodically by the court on the application of either party in order to reflect changes that will by the evolution of time occur. Counseling

[18]Applying the recommendation of the experts who suggested a course of co-parenting counseling, the learned judge also directed that the parties engage in an online parenting course to commence no later than 3 weeks after delivery of the judgment. Grounds of Appeal

[19]The Father advanced a number of grounds of appeal which challenged the learned judge’s findings in regard to: (1) custody of the minor child; (2) co-parenting counseling; (3) contact – access to the minor child. Grounds 2B (i) and (ii) – Custody

[20]In regard to custody, the Father contends that the learned judge erred in granting sole custody to the Mother. He further contends that the judge erred by relying on the Canadian judgment in Kruger v Kruger to ground her refusal to grant joint custody to the parties. As a result of these errors, the Father contends that the Mother has no incentive or obligation to co-parent with him and therefore no need or incentive to improve their communication and conflict resolution abilities effectively nullifying the judge’s intentions and orders made. Grounds 2B (iii) – Counseling

[21]The Father contends that the learned judge erred in not following the recommendation of the court-appointed experts who recommended discussions between the parties with the help of a neutral third party. Instead, she directed that the parties separately attend an online co-parenting course. Grounds 2A (a)-(c) Contact/Access

[22]The Father contends that the learned judge erred in ordering direct contact only on the basis of, and in the belief that he could obtain the envisaged immunity from criminal prosecution or rely upon any such assurance or statement from the local police or the Director of Public Prosecutions. As a result, the Father contends that he is unable to have any direct contact with the minor child whatsoever.

[23]The Father also takes issue with the fact that the learned judge elected not to follow the recommendations of the court-appointed experts in specifying exactly how much direct contact he should have but rather left it to the parties to agree, subject to a minimum of three times per year for one week. He argued that the learned judge erred in not following the recommendations of the court-appointed experts who recommended that the Father have direct contact for half of the holidays. Parties’ Submissions The Father’s submissions

[24]The Father submitted that by relying on the Canadian case of Kruger v Kruger, the learned judge applied the wrong test in assessing the issue of custody. Counsel for the Father succinctly summarized the Kruger test in the following terms – a joint custody order could only be made where there was a reasonable prospect that the parents would cooperate. The Father argued that Kruger v Kruger is out of date and misconceived in its approach that parents must be cooperating, communicating and co-parenting effectively for such an order for joint custody to be made. According to him, this used to be the case in English law until the judges realised that if this were the case, parents would, in all likelihood, not be seeking the assistance of the court in any event.

[25]Accordingly, as a matter of UK law, not only is the non-resident parent’s parental responsibility able to be protected by a joint custody order (more recently referred to as a joint residence order and presently as a joint Child (living) Arrangements order), even if the parents are in conflict or unable to communicate or resolve disputes effectively, but in any event any such parent has the separate protection of parental responsibility.

[26]Counsel for the Father asserted that rather than applying that test, the judge ought to have applied the correct test for making a joint custody order which was made clear in Re R (Residence: Shared Care: Children’s Views) by Thorpe LJ, who stated at paragraph 11: “For the sake of clarity, I reiterate my opinion that the judge’s approach to the issue of a shared residence order is unsupportable. The judge seemingly refers to the significant shift in case-law over the course of the last 10 years, but does not seem to have understood the pace or direction of that movement. This court has recently confirmed the wisdom of the approach taken by Wall J (as he then was) in A v A (Shared Residence) [2004] EWHC 142 (Fam), [2004] 1 FLR 1195. As is plain from paras

[27]Counsel for the Father then considered the reasoning in A v A (Shared Residence), in which the English Court (Family Division) held that because the parents were incapable of working in harmony a court order which reflected both the reality of the children’s lives and the fact that the parents were equal in the eyes of the law and had equal duties and responsibilities towards their children was needed. Counsel cited paragraph 124 of that judgment which reads: “If these parents were capable of working in harmony, and there were no difficulties about the exercise of shared parental responsibility, I would have followed Mrs P’s advice and made no order as to residence. Section 1(5) of the Children Act 1989 requires the court to make no order unless making an order is better for the children concerned than making no order at all. Here, the parents are not, alas, capable of working in harmony. There must, accordingly, be an order. That order, in my judgment, requires the court not only to reflect the reality that the children are dividing their lives equally between their parents, but also to reflect the fact that the parents are equal in the eyes of the law, and have equal duties and responsibilities towards their children.”

[28]Counsel argued that the fact of disharmony made a shared residence order more of an imperative. A principle which is the diametrical opposite of the view canvassed in Kruger v Kruger and espoused by the learned trial judge. According to counsel, what is required is to demonstrate that the order is in the interest of the child and he cited the judgment in D v D (SHARED RESIDENCE ORDER) in support.

[29]The Father submitted that the judge failed to explain why she chose to rely on the Canadian case Kruger v Kruger, where other jurisdictions approach the issue of parental decision-making in a way that is more consistent with her expressed desired outcome regarding co-parenting. Rather than assisting in achieving that end, the effect of granting the wife sole custody is, effectively, to remove his parental responsibility and, therefore, any motivator for the wife to co-parent, something which he reported was a continuing problem to the extent that he was not updated about important parenting and developmental matters relating to the minor child.

[30]Counsel further submitted that the fact of a geographical divide between the parents is not an insurmountable barrier and he relied on the following extract from Halsbury’s Laws of England, in which the learned authors state that: “…the relocation of the children to a different jurisdiction is no bar to the court making an order providing for a shared living arrangement to embody the division of the children’s time between their parents in different jurisdictions.”

[31]Counsel concluded that had the learned judge applied the correct test of paramountcy of the child’s interest, the circumstances of the case coupled with the applicable law would have dictated an order of joint custody.

[32]In regard to the judge’s findings in relation to access and visitation, the Father contended that in making the order that the Father be granted a minimum of 3 in-person visits with the minor child per year, upon making all ‘necessary inquiries of the Royal Antigua Police Force’, the judge failed to take into account a number of relevant considerations including the fact that: (1) the Director of Public Prosecutions and not the Royal Antigua Police Force is the body with ultimate responsibility for the prosecution of criminal offences in Antigua and Barbuda; (2) the Constitution of Antigua and Barbuda does not, in the absence of a prosecution, support the reassurance contemplated by the learned judge; (3) the judiciary cannot direct the executive whether or not to undertake criminal proceedings; (4) the Director of Public Prosecutions has no power to waive prosecution or provide reassurances of immunity from prosecution and; (5) the Mother’s persistence with her prayer for a declaration that the Father had unlawfully removed the minor child from Antigua increased the likelihood that the Father would be arrested if he set foot on Antigua.

[33]The Father further submitted that the learned judge took into account the written statement by the Mother to the Police dated 6th February 2022 withdrawing her support for any prosecution against the Father which is ultimately irrelevant.

[34]The Father further submitted that this Court is also duty bound to intervene because the judge declined to follow the recommendations of the court appointed experts in regard to direct contact and counseling. Counsel for the Father submitted that while a judicial officer is not obliged to act in accordance with the coherent and reasoned opinion of experts, in a childcare case a judge is not entitled to depart from the experts in relation to issues of management, placement and welfare without fully explaining his departure. He cited in support the judgment in Re N-B and others (children) (residence: expert evidence) which was summarised in Halsbury’s Laws of England in the following extract: “…in a child care case, a judge is entitled to depart from the experts in relation to issues of management, placement and welfare, but he must explain fully his departure.”

[35]Counsel further cited the judgment of Moore-Bick LJ in K v K (Children: Permanent Removal from Jurisdiction) in which he observed that the report of the CAFCASS officer stood and fell by the quality of the investigation and the strength of its reasoning and that the judge did not attach sufficient weight to the same and should not have rejected it. Counsel pointed out that in the case on appeal both experts favoured direct contact between the Father and the minor child. He pointed to Dr. Morgan Campbell’s recommendation that “Parents, or carers approved by parents, should take turns travelling between the two countries so that the minor child can interact with not only both parents but her extended families as well.” He also noted that Dr. Ben Laskey endorsed Dr. Morgan Campbell’s recommendations, adding his own observation that: “indirect contact [through Zoom and Teams etc] was not a substitute for direct contact.” Rather, Dr. Laskey advocated for regular in-person contact for the minor child with the non-resident parent which would help the minor child’s adjustment.

[36]Counsel for the Father submitted that while both experts gave very carefully reasoned arguments in favour of in-person contact, not only of the parents but also of the extended families on either side of the Atlantic, the judge chose to reject the recommendations of the experts and limit contact between the Father and the minor child to Antigua, which, in the circumstances, amounts to no in-person contact at all.

[37]Counsel for the Father submitted that the learned judge erred in that at no point did she address the fact that the experts had recommended in person contact and she gave no reasons why she disregarded their recommendations in regard to direct contact.

[38]The Father also took issue with the fact that the judge ignored the reasoned recommendations for communications between the parties with the help of a neutral third party without giving any sufficient reasons. The Mother’s submissions

[39]In responding to the issue of custody, counsel for the Mother stressed the importance of first understanding the nature of the actual application which was before the court below. She submitted that in fact, neither the Father nor the Mother applied for joint custody of the minor child. So that, insofar as the Father was concerned, joint custody was not an order which was desired or sought by him. It therefore could not be argued that the learned judge refused to order joint custody, as no application was made for joint custody. Counsel went further to say that it was disingenuous of the Father to suggest that the learned judge erred in the circumstances.

[40]Counsel for the Mother however, conceded that although there was no express application advanced by either party, they both raised the issue in submissions. On behalf of the Mother, it was argued that it would not be appropriate because there was no actual pending application and in any event the lack of communication and cooperation between the parties made such an order impractical. On the other hand, the Father adopted it as a fallback position to his own claim for sole custody when it became clear to him that the evidence did not support a sole custody order in his favour.

[41]Moreover, the Mother submitted that the evidence plainly does not support such an order being made. Counsel submitted that the learned trial judge properly considered the evidence which was before her and correctly applied the relevant common law principles in considering custody of a minor child. Counsel noted that the learned judge’s only guiding principle and starting point was the ‘best interest of the child’ or ‘welfare of the child’. She further noted her reliance on the judgment of Ramdhani J (Ag.) in GC v LC quoting the following extract from J v C: “I think they [the term welfare of the child and best interest of the child] connote a process whereby when all relevant facts, relationships, claims and wishes of the parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is the most in the interest of the child’s welfare as that term has now to be understood.”

[42]Counsel further submitted that this demonstrates no error of law or principle. Being guided by the said principle and having heard the evidence presented in the case at bar and observed the witnesses, the judge would have considered “which parent can meet the needs of the child at this particular point in time and who is able to foster the relationship with the non-custodial parent to ensure the child has contact with both parents”. Counsel then listed the evidence which when taken in its totality would have influenced the judge’s determination that there is more uncertainty and less stability and willingness to co-parent on the Father’s side. The evidence cited by counsel included the following: (i) the Father took the minor child to England without the Mother’s knowledge and consent with the intention of the child living permanently with the Father, in the absence of the Mother. (ii) The Father took active steps to hide his whereabouts in England in the period immediately after the abduction. (iii) The Father accepted that this was wrong, cruel and reprehensible. (iv) The Father did not make contact with the Mother for over a week after he took the minor child. (v) The Mother did not know the whereabouts of the minor child and the Father. (vi) The Mother had to report the matter to the police in Antigua and in England. (vii) The Mother had to engage the court in England to be reunited with the minor child. (viii) The minor child’s habitual place of residence is Antigua. (ix) The Father claims to be afraid that if he returns to Antigua, criminal proceedings may be brought against him by the police. (x) The Mother informed the Father that she withdrew her complaint approximately two months after the abduction, but consistently stated that she has no control over what the police would do. (xi) The Father’s counsel undertook to make inquiries of the police/DPP on likely criminal charges. (xii) The Father only wants to speak to the Mother by email and has said he cannot speak with her on telephone or text. (xiii) The Father admittedly communicates with the Mother via email through his lawyer/ “communication expert”. (xiv) The Father has moved in England three times since his return and the hearing of the case in the court below. (xv) The Father had no documents to support his financial means.

[43]Counsel for the Mother further argued that the English case law cited by the Father in support of his contention that the correct test for joint custody is that applied in ‘child arrangements orders’ are clearly based on substantive English legislation – the Children’s Act 1989 – a statute which has not been received into law in Antigua and Barbuda. Counsel argued that while the UK Children’s Act provides a checklist which should guide a court considering custodial orders, the judge was quite correct to consider the common law principles as to what is in the best interest of the minor child. Counsel noted that the judge considered the judgment in Foster v Foster, which is of persuasive authority, and which has been applied in the Eastern Caribbean Supreme Court in Crum-Ewing v Crum-Ewing.

[44]In response to the challenge levied in respect of the judge’s counseling order, the Mother submitted very tersely that the learned trial judge did not in fact order the parties to attend separate co-parenting sessions online. Counsel for the Mother pointed out that in any event, the Mother’s evidence before the court was that she welcomed Dr. Morgan Campbell’s recommendation about co-parenting sessions and hoped that the Father would be able to attend both individual and co-parenting sessions.

[45]Turning to the issues of access and visitation, counsel for the Mother argued that a court is not duty bound to slavishly follow recommendations of experts in coming to a decision in the case. In this case, the learned trial judge was the ultimate arbiter of the facts and having made findings, she would then be entitled to consider how to apply to the recommendations advanced by the experts. Counsel argued that in this case, the instructions to the experts were limited. They were not engaged to tell the court what custodial or access orders to make, but to provide an opinion on the matters which should be considered where the court must decide custody and access. Moreover, counsel noted that the experts would not have been privy to the entire history of the abduction and would not have the benefit of the testing of the evidence at trial.

[46]The judge was therefore not duty bound to slavishly follow the experts’ recommendations in making her decision in the case. She was the ultimate arbiter of the facts and having made findings would then be entitled to consider how to apply to the experts’ recommendations. Contrary to what has been asserted by the Father, counsel argued that when one looks at the recommendations made by Dr. Morgan Campbell, the learned judge followed the recommendation for the minor child to remain with the Mother; for the Father to be assured (but through his own independent query) that criminal proceedings would not be pursued against him; that the Father should visit Antigua once he gets this document and aim to re-establish a connection with the minor child; and that the parties attend co-parenting sessions. These recommendations were made not only by Dr. Morgan Campbell , but also by Dr. Laskey (the expert engaged by the Father).

[47]Learned counsel for the Mother further contended that Dr. Morgan Campbell’s recommendation for the Father to have supervised access during the holiday periods for half of the holidays is an opinion and not a clinical finding which the court was bound to follow. That finding was not supported by any clinical findings made by her and is in fact inconsistent with her oral evidence in court. When she was tasked on this issue, Dr. Morgan Campbell’s evidence was as follows: “… let me add…I should have added that I think it has to be a gradual process. And so … and so you may, if he is, let’s say in Antigua, where I think is safest at this moment, you know, that at this moment it … it would… I think it’s important to develop trust… but I think we are moving towards it not being that rigid, once the trust is beginning to develop.”

[48]In light of the evidence, counsel argued, the judge was not duty bound to accept the recommendation regarding holidays. The learned trial judge embraced Dr. Morgan Campbell’s opinion that there should be a gradual process beginning first with supervised visits in Antigua, being the safest at this time, and then possibly progressing depending on trust developing and the parties’ ability to co-parent having undergone initial supervised visits in Antigua and co-parenting sessions.

[49]Critically, counsel noted that there is no appeal by the Father against the Father’s visitation being supervised.

[50]The possibility of the Father being able to see the minor child in England in the future is not thwarted by the order of the court. In such circumstances, the learned trial judge committed no error in coming to her decision and this ground of appeal must fail.

[51]Moreover, counsel for the Mother submitted that the access and visitation order is not conditional upon the Father obtaining immunity from criminal prosecution. Rather, the judge was simply attempting to recognise that the Father needed to have some peace of mind on this issue and so directed that he makes his own inquiries to either the Royal Police Force of Antigua & Barbuda or the Office of the DPP. Whether or not criminal charges will be laid against the Father is not within the direct control of either the court or the Mother. However, given that the Mother produced the statement confirming her lack of interest in the criminal prosecution of the Father, he cannot properly complain.

[52]The Mother does not accept that the Father is unable to travel to Antigua or has been limited by the court’s order to indirect contact via Zoom. Rather, she contends that the Father has freely chosen to refuse to return to Antigua. She further submitted that the Father is free to choose to exercise his right to access and visitation or not in much the same way in which it was his choice to relocate to England. She noted that the English court displayed little sympathy for the Father who on the one hand voluntarily moved to England and then was heard to complain that he would prefer not to travel to Antigua for reasons which ultimately, were orchestrated by him.

[53]Counsel submitted that when the court examines the totality of the evidence and the court’s findings and the experts’ reports, it should not set aside or vary the learned trial judge’s order for supervised visitation to be in Antigua due to the risk of abduction.

[54]Finally, counsel for the Mother submitted that in any event, the learned judge clearly contemplated that her order would not be inflexible. The judge expressly allowed the parties to apply for any variation of the order, and particularly within twelve months if there was a change in circumstances which affect the ability of either party to fulfill their obligations under this order. Therefore, if the Father truly believed that communication from the DPP was a condition to his direct access to the minor child in Antigua then he could have made the necessary application to vary that condition. There is therefore no error of law in the court’s decision under this ground. The Father’s reply

[55]In reply submissions, counsel for the Father addressed the Mother’s submissions in regard to custody. Although he agreed that the Father did not expressly seek an order for joint custody, counsel submitted that the judge correctly addressed the issue of joint custody because the issue arose on submissions. Moreover, he submitted that a court may indeed grant joint custody whenever there is an order which the court considers to be in the best interest of the child and he cited in support the judgment in Re NY (A Child) where the court held: “…that the father had not applied for an order under the inherent jurisdiction did not, of itself, inhibit the Court of Appeal from making the order…”

[56]The Father does not take issue with the learned judge’s self-direction in regard to the best interest of the child. However, he submitted that the learned judge’s error was in misdirecting herself that the authorities precluded her from granting joint custody because the parties did not appear capable of co-operating. This is because it is no longer the law that a joint custody order will not be made if the mother and father cannot co-operate. According to counsel this was an organic change in the common law which pre-dated the Children Act 1989. It is therefore of no moment whether the Children Act 1989 does, or does not, form part of the law of Antigua and Barbuda because the common law jettisoned the Jussa v Jussa doctrine prior to the passage in England of that Act.

[57]After referencing the authorities cited by the learned judge in support of her conclusions, counsel submitted that the notion that joint custody orders should only be made where there is a reasonable prospect that the parties will co-operate was short-lived. By 1987 the English Court of Appeal in Re D (Minors) (pre-dating the UK Children’s Act 1989) had stated: “It is suggested that this was not a case in which it was appropriate to order joint custody because of the established inability of these two parents to agree about matters connected with the upbringing of their children, or indeed about anything else, and in accordance with the old doctrine exemplified by such cases as Jussa v Jussa [1972] 2 All ER 600, [1972] 1 WLR 600, that was a good reason for not making an order for joint custody. But I do not think that is any longer the law…” [Emphasis added]

[58]Counsel submitted that it is clear that in relation to joint custody orders, the law had moved on prior to the passage of the Children Act 1989. The rejection of the Jussa v Jussa doctrine had nothing, per se, to do with the Children Act 1989 but was a natural development of the common law in so far as it pertained to the invocation of the inherent jurisdiction in matters involving children. Yet, oblivious to the fact that by 1987 the law had moved on, the first instance decisions in Crum-Ewing (decided in 2008); Merchant v Williams (decided in 2010); and the case at bar continued to apply the long discredited Jussa v Jussa doctrine. Those decisions were made without the judgment in Re D (Minors) being brought to the attention of the court.

[59]The Father seeks involvement in issues of joint parental responsibility and decision making. He wholly disagreed with the contention that sole custody was the only appropriate order to be made. He submitted that his entire case was based on the need for improvement in communication and conflict resolution as a fundamental precondition to improving co-parenting. The money invested in the experts appointed for that sole reason speaks to his commitment to that end.

[60]Counsel for the Father further submitted that contrary to what was represented by the Mother, he did not abandon his challenge to the judge’s counseling order. Rather, the Father’s position is that there needs to be more bilateral meetings in which the focus would be on communication and conflict resolution. He submitted that a simple online course taken separately does not suffice because the parental interaction is not just about their education about the paramount best interests of the child being made the focal point but also the interactional difficulties they have in communication and conflict resolution. Many parenting courses would not even address that issue particularly deeply and for this to be done would require the presence of both the Mother and the Father in the same room where the unresolved emotions/negative systems which are driving the parental discord can be addressed in a dynamic and therapeutic way.

[61]In relation to the grounds challenging access and visitation, the Father finds it unfortunate that the Mother would submit that nothing turns on the court’s directive, when in truth it has had the result that the Father has been unable to have a person-to-person visit with his daughter in over two years. Counsel submitted that the court’s primary duty was to further the best interest of the child and extended beyond the mere obligation to recognise ‘that the Father needed to have some peace of mind’. The child ought always to have been the focus. Counsel further submitted that as the learned judge was seized of the facts, including the Father’s insecurities, it was incumbent on her to devise an order which furthered the best interests of the child, including her interest in enjoying in-person contact with her father. That interest was not best served by an order which left the Father to his own devices to navigate the criminal system of Antigua and Barbuda and which failed adequately or at all to take into account the effect that his possible arrest and incarceration might have on his daughter.

[62]Counsel argued that the learned judge did not adequately consider the extent to which the in-person contact in England, for which the Father contended, would have better served his child’s need for his companionship, in all the circumstances. She was not entitled to make assumptions regarding immunity from prosecution. The Father contends that as a matter of fact and law (under the Constitution) it is impossible for him to return to Antigua. It follows that the learned judge was mistaken in believing that he could do so, if he could obtain immunity and that the order of the learned judge is, in effect, a no-contact order.

[63]The Father found little comfort in that part of the judge’s order which permitted applications to vary where there was a change in circumstances. Counsel for the Father argued that there is no change in circumstance sufficient to found an application to vary because there could never have been any expectation of the DPP providing immunity. The Father’s point is that the learned judge should have known that there is no obligation on the DPP to provide this immunity and in fact cannot do so because he has no power to waive prosecution or provide reassurances of immunity from prosecution. Analysis and Conclusion Appellate Deference in Cases Affecting the Best Interests of the Child

[64]The scope of appellate review in family cases is narrow. I am obliged to cite the case law which sets out the proper approach of an appellate court hearing private law family appeals and I remind myself that the task of this Court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski where at page 1372, His Lordship observed that: “…the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge’s evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] R.P.C 1, 45: ‘The need for appellate caution in reversing the trial judge’s evaluation of the facts is based on much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.’ The second point follows from the first. The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as was given by the district judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

[65]I am also guided by the following dicta of Dame Siobhan Keegan in Re H-W (children): "48. The very clear decision in In re B, albeit by majority, is that the existence of the requirement of necessity and proportionality does not alter the near-universal rule that appeals in England and Wales proceed by way of review rather than by way of re-hearing. It follows that it is not incumbent upon an appellate court to undertake a fresh evaluation for itself of the question of necessity and proportionality. For the reasons clearly stated by, in particular, Lord Neuberger at paras 83-90, such is contrary to principle, as well as undesirable in practice. In particular, if each appellate court were to undertake such a fresh evaluation, it would expose the parties, and the children, to the risk of successive investigations of the same issue, certainly two, and in some cases three or even four times. It would also mean that the appellate court was expected to undertake a task for which it is unsuited, having not heard the evidence or seen the parties for itself. A decision on paper is no substitute for the decision of a judge who has, as Lord Wilson felicitously put it at para 42, had the advantage of a face-to-face, bench-to-witness-box acquaintanceship with those who are under consideration as carers of the child(ren).

[66]The trial judge is the fact finder and has the benefit of hearing from the parties directly, weighing the evidence, and making factual determinations. The trial judge is therefore best positioned to determine the best parenting arrangement. Determining a child’s best interests is always a fact-specific and highly discretionary determination and as has repeatedly been observed, appellate courts should be reluctant to interfere with the exercise of a trial judge’s discretion.

[67]An appellate court’s role is instead generally one of error correction; it is not to retry a case. An appeal is not a litigant’s opportunity to get a ‘second bite of the cherry’, especially in family cases where finality of litigation should be promoted. An appellate court therefore may only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law. Absent an error of law or a palpable and overriding error of fact, deference is vital. Appellate courts must therefore review a trial judge’s reasons cautiously and as a whole, bearing in mind the presumption that trial judges know the law.

[68]It follows that the appellant in this appeal faces formidable obstacles in his quest to reverse the judge’s findings and conclusions and it is with this caution that I now turn to consider the grounds of appeal. Grounds 2B (i), (ii) and (iii) – Custody and Counseling

[69]The custody of infants being a discretionary matter, this Court could only interfere with the exercise of the judge’s discretion if satisfied that she had, in exercising her discretion, applied some wrong principle or had failed to apply the correct principles. It is clear that the issue of custody of children may arise in any number of situations and may result in various forms of orders. At the outset of her reasoning, the learned judge made clear that the matter before her did not call upon her to apply the provisions of the Antigua Divorce Act. I note that the parties have not taken any issue with this conclusion.

[70]Instead, the learned judge observed that: “…the starting point for this court on these applications, as in all matters involving children, must be to consider and understand what the term in the ‘best interest of the child’ means in real terms.”

[71]In exploring this meaning, the judge applied a number of judgments as well as the learning in the International Journal of Law and the Policy of 2015 where the authors defined the best interest of the child as – “acts that provide the child with stability, protecting them from parental conflicts and preserving the primary relationships they have developed”. This assessment at the end of the day cannot be undertaken from the perspective of the parent but rather from the perspective of the child.

[72]Although it is not clearly stated in her judgment, in adopting this course, the judge applied the legal principle which originated in equity and crystalized in the Antigua and Barbuda Guardianship of Infants Act which prescribes that in any dispute relating to a child, the court must have regard to the child’s welfare as the first and paramount consideration. Section 3 of that Act provides as follows: “Where in any proceeding before any Court the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the Court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.” [Emphasis added]

[73]This principle applies whether the dispute arises in the context of the guardianship, matrimonial causes, child maintenance, wardship or affiliation. Lord MacDermott in J v C expounded on this principle in the following terms: “The second question of construction is as to the scope and meaning of the words ‘… shall regard the welfare of the infant as the first and paramount consideration.’ Reading these words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules on or determines the course to be followed.” [Emphasis added]

[74]In Hodge v Hodge, d’ Auvergne J drew a comparison to section 3 of the UK Children Act in considering the factors relevant to the welfare of the child and concluded that appropriate weight must be given to the child’s sex, age, his/her physical, emotional and educational needs, the likely effect on the child with regard to any change in his circumstances and any harm he or she may be at risk of suffering as a result of the change.

[75]It is equally clear that while the welfare of the child is paramount, it is not exclusive as other considerations may be relevant in assisting in the determination of what is actually for the welfare of the child. Other considerations include the wishes of the child (where appropriate), the wishes of the parents, the conduct of the parents towards each other and towards the child, maintenance of the family unit, preserving the status quo. Over the years, this non-exhaustive list of factors has evolved into what is now commonly referred to as the welfare checklist.

[76]As alluded to earlier, Basdeo Persad-Maharaj J in Durity v Benjamin provided an amalgamated list which has consistently been applied by courts within this region: (i) Behaviour and characteristics of the parties. (ii) Child’s education. (iii) Whether the child is suffering from any serious illness. (iv) Accommodation and material advantages. (v) Satisfaction of the child’s basic needs. (vi) Whether the custody application is bona fide or not. (vii) Wishes of the parent and if possible, wishes of the child. (viii) Sex and age of the child and ages of the parents. (ix) Religion of the child. (x) Happiness of the child. (xi) Future prospects of the child if custody granted to one parent. (xii) Question of access to the unsuccessful party, co-operation between the parents to facilitate access. (xiii) Whether the new partners of the parents will be amenable to looking after the child.

[77]The checklist can ensure that all relevant matters in a case are considered and balanced. However, it is also clear that a judge does not need to expressly highlight each matter in the checklist when giving reasons. In H v H (residence order: leave to remove from jurisdiction) the English Court of Appeal explained the position: “It is then said that the judge did not go right through the checklist before reaching a conclusion, but only halfway. …Perhaps one should remember, that when one calls it a checklist, that it is not like the list of checks which an airline pilot has to make with his co-pilot, aloud one to the other before he takes off. The statute does not say that the judge has to read out the seven items in s 1(3) and pronounce his conclusion on each. Sometimes judges will do that, maybe more often than not; but it is not mandatory.”

[78]Of course, judges should be cautious because depending on the peculiar facts of the case, their decision may be overturned on appeal if the appellate court determines that he or she failed to consider important factors on the welfare checklist.

[79]The judge in this appeal was clearly seised of the welfare checklist. At paragraph 50 of her judgment she referenced the judgment in Durity v Benjamin and from paragraph 51 onwards she assessed the factors as against the specific evidence before her.

[80]It is equally clear that the judge appreciated the broad reach of the term ‘custody’. In what has become a seminal text in this region, Elements of Child law in the Commonwealth Caribbean, Zanifa McDowell explained the two different senses in which this term is used. She observed: “The word may be used and understood in two difference senses. The broader sense refers to the rights and duties of the parent or guardian in relation to the child, or the whole bundle of rights and powers over children vested in these persons and terminating at the age of majority; the narrower sense refers to the actual possession of the child’s person or the power of the parent or guardian to exercise physical care and control of the child…sometimes referred to by the courts as “care and control” or “possession”.”

[81]Sachs L.J. in Hewer v Bryant expressed his view of what is meant by custody in the broader sense in this fashion: “In its wider meaning the word “custody” is used as if it were almost the equivalent of “guardianship” in the fullest sense-whether the guardianship is by nature, by testamentary disposition, or by order of a court…Adapting the convenient phraseology of counsel, such guardianship embraces a “bundle of rights”, or to be more exact, a “bundle of powers”, which continues until [age of majority]…These include power to control education, the choice of religion and the administration of the infant’s property. They include entitlement to veto the issuance of a passport and withhold consent to marriage. They include, also, both the physical control of the infant’s personal property until the infant attains years of discretion...”

[82]In this appeal, notwithstanding his reliance on legal authorities which concern ‘shared residence orders’ the Father does not take issue with the judge’s findings on care and control of the minor child. Instead, he takes issue with the judge’s reasoning and disposition on the issue of custody in the broader sense.

[83]The resolution of this case required a balancing exercise. The judge had to decide what was best for the minor child, taking into account a number of factors in the welfare checklist which had to be balanced against each other. Ultimately, she concluded that an order for joint custody was not appropriate and awarded sole custody to the Mother. The learned judge concluded at paragraphs 68 – 70 of her judgment: “[68] Having said this and examined what is required for the court to even consider an order of joint custody, this court is of the firm belief that an order for joint custody would not be appropriate in any of the present circumstances.

[84]In arriving at this conclusion she was guided by the dicta in Kruger v Kruger a Canadian appellate decision in which the court had to consider whether the Mr. Kruger’s application for joint custody should be granted in circumstances where Mrs. Kruger did not foresee that they would be able to co-operate. In a majority decision, the Canadian Court of Appeal declined to make an order for joint custody holding that: “…Such an arrangement requires …a sincere and genuine willingness by both parents to work together to ensure success of the arrangement, and by its very nature, such willingness is not something that can be imposed by a Court. Accordingly, in the present case, although the parties were equally fit as parents, and both agreed that the other was a fit parent, and they co-operated commendably under the interim custody arrangements before trial, there would be an unwarranted risk in imposing a joint custody arrangement. Where the trial judge has awarded custody to one of the parents, and the matter comes before the Court of Appeal at the instance of the other seeking joint custody, the Court of Appeal cannot hope to form other than a speculative conclusion as to the ability of the parents to co-operate. While it is entirely desirable that the Courts should give serious consideration to joint custody as one of the available options in performing their role as mediator before trial, to make such an order on appeal in the hope that the parties may be persuaded to make it work would involve undue risk to the child.”

[85]The learned judge was also guided by the dicta in Jussa v Jussa, a 1972 decision of the English Court of Appeal in which the court granted sole custody to the mother with reasonable access to the father. However, the father appealed against the custody order, although he conceded that the mother should have care and control. The Court of Appeal overturned the previous decision and granted a joint custody order, with care and control to the mother. Wrangham J, in his judgment stated, that in cases where the father and the mother are both well qualified to give affection and wise guidance to the children for whom they are responsible and where they appear to be of such calibre that they are likely to co-operate sensibly over the child for whom both of them feel such affection, then there can be no real objection to an order for joint custody.

[86]There can be no doubt that there has been considerable judicial reliance placed on the ratio in Jussa v Jussa in the Eastern Caribbean. However, over the years there has also been negative treatment (which has raised some doubt as to the correctness of the decision) commencing with Caffell v Caffell. In that case, the judge at first instance made an order granting custody of the children to their father, with their mother having the day to day care and control of the children. The mother appealed against the order, and the Court of Appeal allowed the appeal on the basis that the proper order should have been one for joint custody. Ormrod LJ, in his judgment, at page 171, opined that the proposition for which Jussa v Jussa had come to be cited, that joint custody orders ought not to be granted unless there was a reasonable prospect that the parties will co-operate, was in many cases ‘a perfectly sensible proposition’. He, however, noted that there were other cases where the party, who did not have the day to day control, would be anxious to preserve his or her contact with the relevant child. In those cases, the court ought to be cognisant of that parent’s anxiety to take an active role in the child’s upbringing.

[87]Despite the fact that the parties in that case had had an acrimonious relationship, the court in Caffell v Caffell granted joint custody in recognition of the father’s deep interest in his children. Ormrod LJ at page 171 of the judgment when commenting on the leading case of Jussa v Jussa said: “The third point is that the judge, as many judges I think are, was influenced by the case of Jussa v Jussa [1972] 1 WLR 881 which is cited in Rayden for the proposition that joint orders for custody ought not to be made unless there is a reasonable prospect that the parties will cooperate together. No doubt in many cases that is a perfectly sensible proposition; but there are cases in which the party who has not got the day-to-day control of the children is anxious to preserve as much of his or her contact with them as is possible in the new circumstances where the parties have separated, and there is a good deal to be said for recognizing the responsibility and the concern of the father in this case by making some order which shows that the court recognises that he is anxious to take an active part in their upbringing. Therefore, a joint custody order meets his problem as far as it can be met in the physical circumstances and should at least help him to get over the bitterness which he is bound to feel.”

[88]It has been suggested that this represented a departure from the ratio in Jussa which led to two separate schools of thought on the issue of joint custody. Since then, there is a line of authorities (which have suggested that the presence of acrimony between the child’s parents did not automatically prevent such orders), culminating in Re D Minors where Sir John Arnold (P) writing for the English Court of Appeal observed: “It is suggested that this was not a case in which it was appropriate to order joint custody because of the established inability of these two parents to agree about matters connected with the upbringing of their children, or indeed about anything else, and in accordance with the old doctrine exemplified by such cases as Jussa v Jussa [1972] 2 All ER 600, [1972] 1 WLR 600, that was a good reason for not making an order for joint custody. But I do not think that is any longer the law, and what is even more important is that at the stage which things had reached in September 1985, at which time the parents were no more likely than they are now or have ever since been to agree about anything at all, the parties were prepared to agree to an order for joint custody and I can see no reason for disturbing that state of thing. It seems to me that if it was a suitable conclusion in September 1985 that the future of these children should rest on a regime of joint custody with care and control to one of the parents that is a state of things which still operates.

[89]Having reviewed the several authorities on this issue, I am not satisfied that the position is not as antithetical as has been represented. I say this because of the following quote from the judgment of Sir George Baker P, in the case of Jussa v Jussa which was cited again by Lord Justice Ormrod in Hurst v Hurst at page 870: "I think the question to be asked is not whether there is anything unusual or exceptional to merit a joint custody order or to merit a split order, but what order would best promote the welfare of the infants".

[90]This dictum indicates that an order for joint custody should not be made unless it is likely to promote the welfare of the child or children in question. Further, one of the important factors to be taken into consideration in arriving at that conclusion is whether the parents can be expected to co-operate if an order for joint custody is made. I am inclined to the view expressed by Purchas LJ in Re B (a Minor) in the following terms: “Like most of these decisions, the joint custody order has its positive and negative aspects. It works best when there is parental co-operation, but there may be occasions when it is necessary to ensure parental co-operation. There may be other occasions upon which it will act purely as an irritant and thereby destroy such a relationship as there is between the parents. In my judgment it would be quite wrong for this court to lay down any specific rules about joint custody or its desirability or otherwise in any particular circumstances, such as was the invitation extended to us by Mr. Hunt; as was said by Sir George Baker, it is a matter of the interest of the child.”

[91]In my judgment, that is the correct statement of the law.

[92]It is also clear to me that at paragraph 18, Ormrod LJ in Caffell v Caffell did not suggest that Jussa v Jussa was wrongly decided, neither did it overrule or render obsolete the proposition advanced. In fact the judge accepted that the ratio in Jussa v Jussa made perfect sense in many cases while acknowledging that in appropriate circumstances a judge may make a joint custody so as to recognise that a party is anxious to take part in the upbringing of the relevant child.

[93]Ultimately, each case must be considered on its own set of circumstances. This is especially true in family law cases which are by their very nature, fact-based and discretionary. In the present case, the learned judge considered the evidence of the relationship between the parties. She formed the view that an atmosphere of civility did not exist to allow the parties to co-operate in making the major decisions in respect of the minor child’s upbringing. Despite the assertions of counsel for the Father, I am not satisfied that the learned judge erred when she found, based on the seriously strained relationship between the parties, that joint custody would not have been the appropriate order to have made. This was an exercise of her discretion and given the totality of the evidence, there was clearly a basis to support that finding.

[94]There were also expert opinions which acknowledged that this is a case where escalating disagreements, personality differences and incompatible communication styles have resulted ultimately in a relationship breakdown and serious loss of trust between the parents and which spoke directly to the critical need for healthy communication practices between parties for the benefit of the minor child. This was to be addressed through appropriate counseling. The judge clearly made that ruling in the context of what constituted the best interest of the child. The following exchange between the judge and Dr. Morgan Campbell clearly bears this out: “THE COURT: But my — I think that what Mrs. Burnette [sic] has just raised with you, that was the question that I had. In the end of the day, for the best interest of [the minor child], is it your — and I’ve seen that you recommended in terms of co-parenting sessions – THE WITNESS: Mm-hmm. THE COURT: — how strongly in the whole scheme of things is that your recommendation? THE WITNESS: That is my No. 1, 1,000 percent. I don’t know whatever other words, that is the most important thing in [the minor child’s] best interest that they are able to communicate as she grows, as she develops now and when she’s 18 and when she’s 19. It all — it matters at every stage of her development. THE COURT: And quite frankly, it is you — from everything that you’ve said this morning, without that ability to co-parent [the minor child] the — it’s going to be extremely strained in terms of raising this child as parents. THE WITNESS: As absolutely it will be strained. THE COURT: Thank you very much.”

[95]The Father has submitted that the learned judge overemphasized the importance of the parties speaking to one another and he posited that he would consider speaking to the Mother on Zoom “but not right now” and suggested that he will only be prepared to communicate directly with the Mother “at the appropriate time, having gained the appropriate knowledge and practice with the wife to communicate with her frequently and informally if that is what the wife wants”. Presumably the Father appears to be of the view that co-parenting of the minor child can effectively be discharged in the context of a joint custody order and no doubt through some third party facilitator.

[96]In my view, leaving parents to decide between themselves the best direction in which the child’s life should proceed requires a level of effective communication and co-operation between the parties. The evidence in this case suggests the absence of that level of civility, communication and co-operation. No matter how detailed a joint custody order may be drafted, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication between the parents is even more important.

[97]It has consistently been stated that this Court will not disturb the first instance judge’s exercise of a discretion given to him or her, unless it is clearly satisfied that the judge has wrongly exercised that discretion due to the misapplication or the non-application of the proper principles. In the instant case, there is nothing to cause this Court to set aside the determination made by the learned judge. She saw and heard the parties and their respective witnesses and was best suited to determine where the truth lay. She applied the correct legal principles and welfare checklist as against the evidence and expert testimony before her and she ultimately arrived at a decision which prioritized the welfare of the minor child.

[98]I would therefore dismiss this ground of appeal.

[99]Before leaving this ground of appeal, it is I think also appropriate to address the concerns expressed by the Father in his submissions before the court below. At paragraph 35 of the judgment the learned judge recounts the concern that the “making of an order for sole custody in favour of the mother would mean…that he would effectively be ousted from the life of [the minor child] and would have no say in the important decisions in her life”. It is important, for the guidance of these parties going forward, to note that the grant of sole custody to one party does not entirely deprive the other party of any right to an input in respect of the major decisions to be made concerning the child and the child’s welfare. The modern approach was articulated by Ormrod LJ in Dipper v Dipper in the following terms: “It used to be considered that the parent having custody had the right to control the children’s education – and in the past their religion. This is a misunderstanding. Neither parent has any pre-emptive right over the other. If there is no agreement as to the education of the children, or their religious upbringing or any other major matter in their lives, that disagreement has to be decided by the court. In day-to-day matters the parent with custody is naturally in control. To suggest that a parent with custody dominates the situation so far as education or any other serious matter is concerned is quite wrong....” [Emphasis added]

[100]Cumming-Bruce LJ concurred with the view that a parent is always entitled, despite his or her custodial status, to be consulted on major matters concerning the child. At page 48 of the judgment he observed: “As Ormrod L.J. has explained … it being a fallacy which continues to raise its ugly head that, on making a custody order, the custodial parent has a right to take all the decisions about the education of the children in spite of the disagreements of the other parent. That is quite wrong. The parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters. If he disagrees with the course proposed by the custodial parent he has the right to come to the court in order that the difference may be determined by the court.” [Emphasis added]

[101]The parties herein should be guided accordingly. Counseling

[102]Having considered the totality of the learned judge’s judgment and the submissions advanced by the parties, I am satisfied that this ground lacks merit. The judge’s order was not unclear. At paragraph 3 she mandated that: “The Parties are as a matter of urgency to engage in an online co-parenting course which is not to commence any later than 3 weeks after delivery of this judgment. All costs associated with this course are to be bourne by the parties equally.”

[103]The fact that this order prescribes an online counseling would not preclude the bilateral meetings which would focus on communication and conflict resolution. The judge’s order was clearly informed by the fact the parties did not physically reside in the same jurisdiction and so some electronic online platform would have to be employed. It is also apparent that although she would have left details of the form, duration and content to be determined by the proposed counselor, no doubt in consultation with the parties, the learned judge was mindful that both experts had determined that it was imperative “that the parties undertake a course on how to navigate co-parenting which by necessity would involve ways for conflict resolution as between the parties, effective communication, and respect for differing parenting styles.”

[104]This was consistent with the recommendation of the expert Dr. Morgan Campbell who urged that co-parenting sessions should be held with the parties to assist with effective co-parenting strategies focusing on communication, conflict resolution and future planning, so that healthy communication and both parents’ involvement in child’s life can be possible.

[105]I am not satisfied that there is any basis for interfering with the judge’s order. The views of a skilled facilitator would certainly advance matters and given that both parties had expressed the desire to repair and improve their communication and conflict resolution skills, it is not surprising that the order was drafted in such flexible terms. It was clearly open to the parties to approach the court below for clarification (or details) of the order. This Court simply does not have the material to make any alteration relative to the issue of counseling and I would equally express no view as to what may be the appropriate order if and when the matter comes back to the court below. Grounds 2A – Contact: Access and Visitation

[106]The learned judge granted the Father access in two forms. The first form of order was to be unsupervised: “Video access with [the minor child] for a minimum of 5 days a week, one of those days being either a Saturday or a Sunday, the times and days to be agreed between the parties. Such video access is not to be supervised save for the sole purpose of setting up the call and ensuring the attendance of the child on the appointed day and time. If possible, the schedule of such calls is to be prepared on a month-to-month basis and any changes by either party are to be notified within 48 hours of the scheduled day and time.” [Emphasis added]

[107]The second form of order was to be supervised. It provided that: “Permission is granted (upon him making all necessary inquiries of the Royal Antigua Police Force and the Office of Director of Public Prosecutions) to have supervised in-person visits with [the minor child] at a minimum of three times per year for one week within the jurisdiction of Antigua and Barbuda. These visits will be facilitated by the wife upon being given a minimum of 3 weeks’ notice and the same is to be conducted at an agreed public place in the presence of one of the godparents of the child or other selected individual for a period of not less than 3 hours per day for each day for the duration of the week- long visit.” [Emphasis added]

[108]The second form of order also carried the condition that the Father’s passport be surrendered at the commencement of each daily visit to the person who is selected to bring the child to the visit, and returned to him at the end of the visit.

[109]The Father takes issue with these orders on two main bases. First, he contends that the judge was wrong in not following the recommendations of the experts in regard to contact with the minor child. Secondly, he submitted that it was incumbent on the judge to craft a contact order which furthered the best interest of the child. He contends that in ordering direct contact in Antigua and Barbuda only when the question of criminal prosecution remains unresolved effectively means that he is unable to have direct contact with the minor child. Application of Expert Evidence

[110]The first limb of the Father’s challenge requires some consideration of the approach which a court must adopt when considering Expert Evidence In that regard, I note that an expert witness is a person who is qualified by his or her knowledge or experience to give an opinion on a particular issue(s) to a court. However, courts have repeatedly made it clear that expert witnesses, however skilled or eminent, cannot usurp the functions of the adjudicator. Their duty is to furnish the judge with the necessary criteria for testing the accuracy of their conclusions, so as to enable the judge to form his or her own independent judgment by the application of these criteria to the facts proved in evidence. The opinion evidence, if sufficiently cogent, becomes a factor for consideration along with all of the other evidence in the case, but the decision is for the judge.

[111]In support of his arguments on this ground, counsel for the Father cited the judgment in Re N-B and others (Children) (Residence: expert evidence). It appears however that counsel did not appreciate that in that case, the court of appeal drew an important distinction between the expert medical evidence and the recommendations relative to placement, management and welfare of the child.

[112]In Re N-B and others (Children) (Residence: expert evidence) the judge had rejected expert psychiatric evidence that the father suffered from a personality disorder that made him unable to relate properly as a parent. The court held that he was not entitled to reject unanimous expert evidence relating to the psychological assessment of a party simply on the basis of impressions he has formed of the party in the witness box. The court also held that a judge is at liberty to depart from the opinion of the experts, even if unanimous on issues of future placement and management of a case involving children, where he is evaluating the opinion of the experts as to placement, management and welfare issues. However, reasons had to be given.

[113]The constraint therefore is a procedural one – reasons for departure from the experts’ opinion had to be given. The error was in failing to explain why the expert was wrong, not the fact of disagreement in itself. It is incumbent upon a judge to explain his departure, so that the basis of his decision is clear.\

[114]In this case, the first expert, Dr. Morgan Campbell, recommended that the Father be allowed to have supervised visits during the holiday periods for half the holiday with parents, or carers approved by parents, taking turns traveling between the two countries so that the minor child can interact with not only both parents but her extended families as well. The other expert, Dr. Laskey appeared to support the conclusions of Dr. Morgan Campbell in respect of contact and support to parents. He concluded that it would be very much in the child’s interests for her parents to improve their relationship and to establish mutually satisfactory arrangements for direct contact between the minor child and her father. The two experts in this case were therefore clear that the direct contact need not be limited to the state of Antigua.

[115]Dr. Laskey was however very frank about the weaknesses of his report. At paragraph 1.16 – 1.17 he observed: “I have not assessed [the minor child] as part of this piece of work. I have not assessed [the Mother], or had the opportunity to observe her with [the minor child]. [The Mother] declined to meet with me. This leaves substantial gaps in my understanding of [the Mother’s] position and is an acknowledged weakness of the current report.”

[116]Applying the reasoning in Re N-B, it is clear that the learned judge would not be obliged to blindly accept the experts’ views as to how contact should be facilitated and arranged. This is especially so when one considers that the experts were not engaged to instruct the court on what contact order is appropriate but rather to provide a clinical assessment on the matters which should be considered in arriving at that determination. Having considered the experts’ assessments the judge as the ultimate arbiter was entitled to come to a decision which in her opinion represented the best interests of the minor child.

[117]The judge’s reasoning on this issue is critical. At paragraphs 72 and 73 she sets out her understanding of the parties’ respective positions. At paragraph 74 she applies the recommendations of the experts noting that they made clear that before any change to the current access can be contemplated that co-parenting counseling must be engaged by the parties. At paragraphs 77,78 and 79 she frames the issue in the following terms: “[77] …. this court must formulate an order that affords the husband as the non- custodial parent to have liberal access to [the minor child] within the parameters of the geographic separation and the fundamental breach of trust as between both parties.

[118]A number of critical matters arise from this reasoning. First, it is clear that when considering a contact order, a court must have regard to the welfare of the child, the conduct of the parents and the wishes of the parents. The welfare of a child usually dictates that both parents should be able to preserve his natural links with his child. The rationale for this should be obvious. Sir Thomas Bingham’s judgment in Re O (Contact: Imposition of Conditions) is instructive. At page 128 he observed: “…where parents of a child are separated and the child is in the day-to-day care of one of them, it is almost always in the interests of the child that he or she should have contact with the other parent. The reason for this scarcely needs spelling out. It is, of course, that the separation of parents involves a loss to the child, and it is desirable that that loss should so far as possible be made good by contact with the non-custodial parent, that is the parent in whose day-to-day care the child is not. This has been said on a very great number of occasions and I cite only two of them. In Re H (Minors) (Access) [1992] 1 FLR 148 at p 151A Balcombe, LJ quoted, endorsing as fully as he could, an earlier passage in a judgment of Latey J in which that Judge had said: ‘… where the parents have separated and one has the care of the child, access by the other often results in some upset in the child. Those upsets are usually minor and superficial. They are heavily outweighed by the long-term advantages to the child of keeping in touch with the parent concerned so that they do not become strangers, so that the child later in life does not resent the deprivation and turn against the parent who the child thinks, rightly or wrongly, has deprived him, and so that the deprived parent loses interest in the child and therefore does not make the material and emotional contribution to the child’s development which that parent, by its companionship and otherwise would make.’”

[119]Further useful guidance can also be gleaned from the judgment of Munby LJ in Re C (A Child) (Suspension of Contact): “a) Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child. b) Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child’s welfare. c) There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt. d) The court should take a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems. e) The key question, which requires 'stricter scrutiny', is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case. f) All that said, at the end of the day the welfare of the child is paramount; the child’s interest must have precedence over any other consideration.” [Emphasis added]

[120]In this case, the parents had conflicting wishes. It is apparent from the expert report of Dr. Laskey, that the Mother would have represented that she would continue to support indirect contact and that she would support the Father having direct contact on a supervised basis (initially) with the minor child in Antigua. The Father’s position was in essence the reverse of the Mother. He requested that the minor child be placed in his care in the United Kingdom and he says that he would support indirect contact with the Mother and direct contact between the minor child and her mother in the UK.

[121]–

[122]Secondly, the judge was sensitive to the peculiar factual context of this case which would impact the terms of such a contact order. This included: (1) the fact that the parties resided in different geographical locations; and (2) the lingering impact which the Father’s ill-advised unilateral removal of the minor child and the subsequent litigation in the United Kingdom would have caused. Courts do not generally look favorably on parents who act in this way. This is because keeping a child away is typically considered evidence that the parent is not going to support the child’s relationship with their other parent. Judges take this very seriously and may limit the offending parent’s custodial rights often by restricting that parent’s physical custody to supervised visitation. The learned judge in this case was clearly concerned and this is not surprising given the following expert assessment of Dr. Morgan Campbell: “[The Father] explained that he is open to [the Mother] visiting with [the minor child] as much as she pleases and can even stay close by to have ease of access. He would also include her in the decision-making and schooling of [the minor child] as he has no interest in keeping [the minor child] from her mother… However, based on his attitude of secrecy when he moved with [the minor child] and his lack of communication, it is possible that there was a lack of desire to include [the Mother] in his plans for [the minor child]. [The Father] now posits that he is open to communicating with [the Mother], but it appears he would prefer it on his terms as he views her concerns, preferences and even style of parenting as problematic.” [Emphasis added]

[123]Given the totality of the evidence before her, it is not startling that the judge would have ordered supervised access and would have mandated that the Father surrender his passport during the period of access.

[124]The learned judge would have also restricted access to Antigua. The Father takes issue with this because he lives in the United Kingdom and he has no immediate plans to return to live in this jurisdiction. Indeed, he posits that he feels unable to return to Antigua for fear that he will be compelled to face the consequences of his unfortunate actions. This, notwithstanding that the Mother has done everything within her power to make plain her lack of interest in his prosecution in accordance with her duty to do what she can to meet the child’s needs in terms of achieving contact with the Father. In the face of his unlawful conduct the Father argues that the court should facilitate his access to the minor child in a country where he feels personally secure. In restricting access to Antigua only, the Father contends that he has effectively been deprived of access to the minor child.

[125]The Father further contends that the learned judge was not entitled to make assumptions regarding his ability to secure immunity from prosecution and should not have included (in the order granting direct contact), the proviso that he make all necessary inquiries of the Antigua Police Force and the Director of Public Prosecutions.

[126]of that judgment, a harmonious relationship between the parents is not a prerequisite of a shared care order.

[127]It seems to me that in refusing to travel to Antigua, the Father is voluntarily surrendering access to the minor child.

[128]While I agree that it would be in the minor child’s best interest to have direct contact with the Father, the factual and historical context of this case could not be ignored. The unilateral removal of the minor child to the United Kingdom and the subsequent litigation there make it difficult to view access in the United Kingdom in a positive light for the time being. Indeed, while in her written report, Dr. Morgan Campbell would have advocated for supervised visits during the holiday periods for half the holiday with parents, or carers approved by parents, taking turns traveling between the two countries, her oral testimony was striking. When cross-examined under oath, about the meaning of the term ‘supervision’ Dr. Morgan Campbell had this interesting exchange: “Q. So you are saying that is not the context in which you had made the recommendation in your report, that somebody should be present? A. Let me — let me add — I — I should have added that I think it has to be a gradual process. And so — and so you may, if he is, let’s say in Antigua, where I think is safest at this moment, you know, that at this moment it — it would — I think it’s important to develop the trust. And so I think if — if initially, there may be that the — the legal meaning of supervised access, but I think that we are moving, and moving towards — moving towards it not being that rigid, once the trust is beginning to develop. So — so it’s — it’s — it’s varied for me. It is gradual — it’s in the supervision pace. Q. But at this stage, where you have said – A. Yes. Q. — consistently that she is at a particular age, is it that you’re recommending that someone should be present even in Antigua? A. Mm-hmm. Q. I understand your earlier responses correctly. A. Right. In the initial stages, I think that it should be so, and so — but that needs to be very regularly reviewed. So that there it does lead towards less and less of that kind of in-person access — in-person supervision.”

[129]It seems to me therefore that the learned judge should and did take significant guidance from the expert in arriving at her determination. The judge clearly embraced Dr. Morgan Campbell’s opinion that it would be an evolving process beginning first with supervised visits in Antigua, thereafter progressing to more flexible arrangements once trust was restored and the benefits of counseling became evident. I can find no basis to disturb that finding.

[130]Thirdly, the judge recognized that decisions of this type are never final. They are always subject to changes in circumstances especially where they impact young children. The change of circumstances may be due to the current position of the parent or parents or of the growing child and the changes caused by the passage of time. This is particularly true in this case.

[131]Ultimately, this led the judge to craft an order which maintained the interim contact/access arrangements (save the direct contact would now be with supervised access). This order would be maintained (without variation) for a period of 12 months during which period the parties would be expected to engage in appropriate co-parenting counseling aimed at restoring healthy communication, rebuilding the trust between the parties and arriving at common ground in regard to conflict resolution and parenting. Thereafter, it would be open to either of both parties to approach the court to vary the terms of the order.

[132]The following recorded observations of the judge demonstrate that this order was intended to be embryonic and evolving: “THE COURT: I know that it is a very unusual order, but I want it to be given an opportunity to work. [The minor child] is getting older. It means that there is going to be — things are going to change in this next year. But let us see if this can work for this year. Today — this is January, so you literally have a calendar year until she becomes three again in November, and then you can see where you’re going from that.”

[133]In this case the proposed appeal is against the learned judge’s exercise of her discretion. The task of an appellate court is to review a decision in accordance with the principles established in the case law set out above. When I do so, I find that the trial judge’s analysis was free from a material error, serious misapprehension of evidence, or error of law.

[134]There was clearly a range of options available to the judge, all of which are defensible, but in the exercise of her discretion, she chose one that she considered best met her perception of what is needed to fulfill the requirements of this particular case. I cannot say that the learned judge failed to take into account relevant matters, had regard to irrelevant factors or that she has exceeded the generous ambit of her discretion or that her decision was plainly wrong. At all times, the trial judge applied the relevant legal principles and remained focused on the child’s best interests. She clearly weighed and applied the expert evidence and in my view the judge was entitled to make the orders she made.

[135]Accordingly, I would dismiss this ground of appeal. Costs

[136]In Sutton London Borough Council v Davis (No 2), Wilson J, having recognised the principle enunciated by Butler-Sloss LJ in Gojkovic v Gojkovic that ‘it is unusual to order costs in children cases’, opined thus at page 1319: "Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations; … But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable."

[137]I am not satisfied that the proceedings herein fall within that factual matrix and would make no order as to costs on this appeal. Conclusion and Disposition

[138]Based on all the above, I would dismiss the appeal and affirm the learned judge’s decision and orders. I would also make no order as to costs in the court below and on the appeal.

[139]It is sincerely hoped that this judgment will bring an end to the adversarial and litigious history between these parties. Both parents claim to have the best interests of the minor child at heart. This should motivate them to robustly engage in counseling, both individual and otherwise. In T v T (shared residence), Black LJ of the English Court of Appeal provided the following invaluable encouragement and guidance to parents which I am unable to improve upon: "[The parents] must put aside their differences … if the adults do not manage to resolve things by communicating with each other, the children inevitably suffer and the adults may also pay the price when the children are old enough to be aware of what has been going on. … It is a tremendous privilege to be involved in bringing up a child. Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in that way is likely to remain with the children into their own adult lives."

[140]Again, I would urge the parties to be guided accordingly.

[141]It is only left for me to express the Court’s appreciation for the helpful submissions by counsel for the parties, and to express my regret for the delay in delivery of this reserved judgment. I concur. Mr. Eddy Ventose Justice of Appeal I concur. Mde. Esco Henry Justice of Appeal By the Court Chief Registrar

1.The scope of appellate review in family cases is narrow. An appellate court’s role is generally one of error correction; it is not to retry a case. An appeal is not a litigant’s opportunity to get a ‘second bite of the cherry’, especially in family cases where finality of litigation should be promoted. An appellate court therefore may only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law. Absent an error of law or a palpable and overriding error of fact, deference is vital. Appellate courts must therefore review a trial judge’s reasons cautiously and as a whole, bearing in mind the presumption that trial judges know the law. Piglowska v Piglowski [1999] 1 WLR 1360 applied; Re H-W (children) [2022] UKSC 17 applied.

2.In Antigua and Barbuda, in any dispute relating to a child, the court must have regard to the child’s welfare as the first and paramount consideration. This principle applies whether the dispute arises in the context of the guardianship, matrimonial causes, child maintenance, wardship or affiliation. However, while the welfare of the child is paramount, it is not exclusive as other considerations may be relevant in assisting in the determination of what is actually for the welfare of the child such as the wishes of the child (where appropriate), the wishes of the parents, the conduct of the parents towards each other and towards the child, maintenance of the family unit, and preserving the status quo. Over the years, this non-exhaustive list of factors has evolved into what is now commonly referred to as the welfare checklist. Section 3 of the Guardianship of Infants Act, Cap 197 of the Laws of Antigua and Barbuda applied; Durity v Benjamin No. 1596 of 1993 (unreported) 30 July 1993, HC,T&T applied.

4.As it relates to the Father’s contention that the learned judge erred in not following the court-appointed experts who recommended discussions between the parties with the help of a neutral third party, but instead, directed that the parties separately attend an online co-parenting course, the fact that this order prescribes online counseling would not preclude the bilateral meetings which would focus on communication and conflict resolution. The judge’s order was clearly informed by the fact the parties did not physically reside in the same jurisdiction and so some electronic online platform would have to be employed. In addition, the judge’s order was consistent with the recommendation of the expert Dr. Morgan Campbell who urged that co-parenting sessions should be held with the parties to assist with effective co-parenting strategies focusing on communication, conflict resolution and future planning, so that healthy communication and both parents’ involvement in child’s life can be possible. If the precise scope and conduct of the counseling was unclear, it was in any event certainly open to the parties (who are ad idem on the need for counselling) to approach the court below for clarification (or specific details) of the order.

5.An expert witness is a person who is qualified by his or her knowledge or experience to give an opinion on a particular issue(s) to a court. However, expert witnesses, however skilled or eminent, cannot usurp the functions of the adjudicator. Their duty is to furnish the judge with the necessary criteria for testing the accuracy of their conclusions, so as to enable the judge to form his or her own independent judgment by the application of these criteria to the facts proved in evidence. The opinion evidence, if sufficiently cogent, becomes a factor for consideration along with all of the other evidence in the case, but the decision is for the judge. However, where a judge departs on the opinions of the experts, reasons for the departure must be given. The error lies in failing to explain why the expert was wrong, not the fact of disagreement in itself. It is incumbent upon a judge to explain his departure, so that the basis of his decision is clear. Re N-B and others (Children) (Residence: expert evidence) [2002] EWCA Civ 1052 distinguished.

6.When considering a contact order, a court must have regard to the welfare of the child, the conduct of the parents and the wishes of the parents. The welfare of a child usually dictates that both parents should be able to preserve his natural links with his child. Applying the reasoning in Re N-B, it is clear that the learned judge would not be obliged to blindly accept the experts’ views as to how contact should be facilitated and arranged. This is especially so when one considers that the experts were not engaged to instruct the court on what contact order is appropriate but rather to provide a clinical assessment on the matters which should be considered in arriving at that determination. Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124 applied; Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521 applied.

7.In this case, the judge was sensitive to the peculiar factual context of the case which would impact the terms of such a contact order. This included: (1) the fact that the parties resided in different geographical locations; and (2) the lingering impact which the Father’s ill-advised unilateral removal of the minor child and the contentious litigation in the United Kingdom would have resulted. While it would be in the minor child’s best interest to have direct contact with her father, the factual and historical context of this case could not be ignored. Given the totality of the evidence before her, it is not startling that the judge would have ordered supervised access and would have mandated that the Father surrender his passport during the period of access. The judge clearly embraced the expert’s opinion that contact with the minor child would be an evolving process beginning first with supervised visits in Antigua, thereafter progressing to more flexible arrangements once trust was restored and the benefits of counseling became evident. There is no basis to disturb that finding.

8.Ultimately, having regard to the totality of the evidence, the judge was led to craft an order which maintained the interim contact/access arrangements (save the direct contact would now be with supervised access). This order would be maintained (without variation) for a period of 12 months during which period the parties would be expected to engage in appropriate co-parenting counseling aimed at restoring healthy communication, rebuilding the trust between the parties and arriving at common ground in regard to conflict resolution and parenting. Thereafter, it would be open to either or both parties to approach the court to vary the terms of the order. There was clearly a range of options available to the judge, all of which are defensible, but in the exercise of her discretion, she chose one that she considered best met her perception of what is needed to fulfill the requirements of this particular case. It cannot be said that the learned judge failed to take into account relevant matters, had regard to irrelevant factors or that she has exceeded the generous ambit of her discretion or that her decision was plainly wrong. At all times, the judge applied the relevant legal principles and remained focused on the child’s best interests.

9.It is unusual to order costs in children cases, however where for example, the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable costs may be ordered. These proceedings do not fall within the latter category. Therefore, there will be no order as to costs on the appeal. Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317 applied; Gojkovic v Gojkovic [1992] Fam 40 considered. JUDGMENT Introduction

2.Access to the minor child awarded to the Father as follows: (i) . Video access with the [minor child] for a minimum of 5 days a week, one of those days being either a Saturday or a Sunday, the times and days to be agreed between the parties. Such video access is not to be supervised save for the sole purpose of setting up the call and ensuring the attendance of the child on the appointed day and time. If possible, the schedule of such calls is to be prepared on a month-to-month basis and any changes by either party are to be notified within 48 hours of the scheduled day and time. (ii) .Permission is granted (upon him making all necessary inquiries of the Royal Antigua Police Force and the Office of Director of Public Prosecutions) to have supervised in-person visits with [the minor child] at a minimum of three times per year for one week within the jurisdiction of Antigua and Barbuda. These visits will be facilitated by the wife upon being given a minimum of 3 weeks’ notice and the same is to be conducted at an agreed public place in the presence of one of the godparents of the child or other selected individual for a period of not less than 3 hours per day for each day for the duration of the week­ long visit. (iii) His [the Father’s] passport will be surrendered at the commencement of each daily visit to the person who is selected to bring the child to the visit and will be returned to him upon the end of the visit.

3.The parties are as a matter of urgency to engage in an online co-parenting course which is not to commence any later than 3 weeks after the delivery of this judgment. All costs associated with this course to be borne by the parties equally.

4.The parties have full liberty to apply for any variation of this order, but such variation is not to take place less than 12 months after the coming into effect of this order unless there are changes in circumstances which affect the ability of either party to fulfill their obligations under this order.

5.Each party is to bear his or her own costs.”

49.In a case where the judge has adopted the correct approach to the issue of necessity and proportionality, the appellate court’s function is accordingly, as explained in In re B, to review his findings, and to intervene only if it takes the view that he was wrong. In conducting that review, an appellate court will have clearly in mind the advantages that the judge has over any subsequent court – see Lord Wilson in In re B at para 41 and the earlier decision of the House of Lords in Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360”.

[69]It is clear from the correspondence that has flowed between these parties in the emails disclosed to the court that the parties cannot even agree on childhood vaccinations for L as they are incapable of even speaking to each other. The parties have not in this court’s mind reached the level of maturity and communication subsequent to the event of December 2021 and the ultimate unexpected breakdown of the marriage to handle the intricacies of the necessities attached to an order for joint custody.

[70]In all the circumstances and to maintain the present status quo and taking into consideration of (sic) the inability of the parties to communicate effectively, I order that sole custody is awarded to the wife.”

[78]Thus in order to acknowledge that there would be a progression in the relationship of the parties as [the minor child] gets older, this court is of the view that the access arrangements will need to be reviewed periodically by the court on the application of either party to reflect changes that will by the evolution of time occur.

[79]This court hopes that the parties understand that the judgment of the court is really only the starting point for the building of new relationships between the child and each of [her] parents in their new roles and between the separated parents themselves.”

[121]However, consistent with the expert’s recommendations, the judge was clearly determined to arrive at an order which would facilitate direct contact between the Father and the minor child.

[126]I am inclined to agree that there was no basis to include the so called “proviso” as part of the order. During the proceedings in the court below, the parties were examined at some length about the possible criminal prosecution of the Father. Having reviewed the evidence I am satisfied that other than mere conjecture and surmise, the Father has advanced no cogent evidence to support his position.