ANTIGUA and BARBUDA
The Attorney General of Antigua and Barbuda v. Michael Moore
The Eastern Caribbean Supreme Court
11 April 2012
Article 3: Best interests of the child
Other International Provisions:
Inter-American Convention on the International Return of the Children
Hague Convention on the Civil Aspects of International Child Abduction
The Applicant in this matter is the Attorney General of Antigua and Barbuda, acting in his capacity as the designated ‘Central Authority’ under the Inter-American Convention on the International Return of Children. The Attorney-General acted on behalf of a mother, Ms. Nunez, seeking the return of her two children by their father, Mr Moore, to Ecuador. Mr Moore is a United States citizen and is married to Ms. Nunez, an Ecuadorian citizen. Their children are dual citizens of the U.S. and Ecuador.
Issue and resolution:
International parental child abduction. The Court implemented the Inter-American Convention on the International Return of Children (the "Inter-American Convention") and found that the children had been wrongfully removed from Ecuador by their father.
The Court found that the Inter-American Convention was part of national law and that national courts had jurisdiction to hear cases related to it. The Court held that even if the Inter-American Convention was not a part of national law, its principles could still be considered. One of the facts considered by the Court was the father’s affidavit, where he made arguments based on Article 3(1) of the CRC, noting that it had been ratified by Antigua and Barbuda and, as such, its provisions form part of domestic law. Consequently, the Inter-American Court criticised the Respondent for asking it to exercise its discretion in an inconsistent or arbitrary manner, arguing before the Court that the CRC formed part of domestic law whilst the Inter-American Convention did not.
Under the Inter-American Convention, the duty to return a child arises only if the removal or retention was 'wrongful'. In this case, the retention could only have been wrongful if the children had been “habitually resident” in Ecuador immediately before they were moved to the U.S. Neither the Inter-American Convention nor the Hague Convention on the Civil Aspects of International Child Abduction (the ‘Hague Convention’) define the term 'habitual residence', causing considerable confusion regarding its interpretation. The question of habitual residence is one of fact, and the Court held that the children’s habitual residence had been in Ecuador prior to their removal. Furthermore, the Court stated that the father could not change the habitual residence of the children by taking them to the U.S., and that neither Respondent nor Applicant could change it without the express or tacit consent of the other, or a court order.
According to the father, the removal of the children from Ecuador was for the purpose of getting them out of harm's way, and that this was done with the mother's consent and approval. However, the Court was of the view that the mother gave her consent to the children traveling to the U.S. with their father for a school vacation, not for the purpose of permanent residence. The Court further stated that no cogent evidence had been presented to substantiate the father's allegations of threats against him, or that steps had been taken, either in Ecuador or in the U.S., to report these threats to the authorities. The Court held that the father’s actions indicated an intention not to return the children to Ecuador, confirmed by his application for custody of the children made in the U.S. The Court concluded that the children were wrongfully retained by the father.
The court did not dispute that custody rights are vested jointly in both parents. The Court concluded that the mother had custody rights under the laws of Ecuador and was exercising them when she gave permission to the Respondent to travel to the U.S. with their children. As such, the father cannot rely on Article 11(a) of the Inter-American Convention to establish an objection to the return of the children. Regarding the second limb of Article 11(a), the burden of proof rests on the father to show that the mother had consented or acquiesced to the retention of the children, and the Court concluded that the father had not discharged this burden.
Finally, the Court was of the view that the return of the children under the Inter-American Convention in this case was not in violation of the fundamental rights and freedoms enshrined in the Constitution of Antigua.
Excerpts citing CRC and other relevant human rights instruments:
 The Court has also taken into account the Affidavit of the Respondent filed on the 5th March 2012. In paragraph 56 of the said Affidavit, the Respondent states as follows:
"I am advised and believe that the paramount consideration of the children's welfare runs throughout various laws of Antigua and Barbuda and also that it is covered in other treaties to which Antigua and Barbuda is a signatory, including Article 3(1) of the United Nations Convention on the Rights of the Child which states that:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
 At paragraph 57 of the same Affidavit (5 March 2012), the Respondent deposes:
"I am advised and believe that the above Convention on the Rights of the Child (the United Nations Convention) has been ratified by Antigua and that as such the provisions form part of domestic law of Antigua and that the court will consider this."
 The Respondent, in asking the Court to grant him the relief that he seeks, namely, not to return the children to Ecuador, urges the Court to give effect to the Convention on the Rights of the Child on the basis that the said Convention has been ratified by Antigua and that as such the provisions form part of domestic law of Antigua. In the view of the Court, the Respondent is contending that the mere ratification of the United Nations Convention is sufficient to clothe it with the status of domestic law. The Respondent, however, asks the Court to apply a different yardstick when dealing with the Inter-American Convention. The Respondent cannot approbate and reprobate. He cannot on the one hand contend that the United Nations Convention should be considered part of the domestic law of Antigua on the basis that it has been ratified, and on the other hand submit that the Inter-American Convention should not be considered part of the domestic law although it has been ratified, but, in his view, does not comply with the Ratification of Treaties Act of Antigua. He cannot ask the Court to exercise its discretion in an inconsistent or arbitrary manner, and the Court will refrain from doing so.
 With respect to that submission, the Court is of the view that while Article 25 addresses human rights in general, its main focus is with respect to the rights of the child. The Court is of the further view that the return of the children under the Inter-American Convention in the instant case, is not in violation of the fundamental rights and freedoms of the individual enshrined in the Constitution of Antigua and Barbuda including in particular the right of every individual to the protection for his family life, as well as the right to the protection of the law. The Inter-American Convention (like the Hague Convention), the Convention on the Rights of the Child, among others, respects and protects the rights of all its inhabitants and especially the rights of children and adolescents (all children under sixteen years of age). It seeks to provide what is in the best interest of children wrongfully removed or retained in another State party by securing their prompt return to the State of their habitual residence.
CRIN believes that this decision is only partially compatible with the CRC in that it did not allow for relevant Convention provisions to be cited before the court. Article 4 of the Convention requires States to undertake all appropriate legislative, administrative and other measures for the implementation of [Convention] rights”. In its General Comment No. 5, the Committee on the Rights of the Child has clarified this provision, stating that “ensuring that all domestic legislation is fully compatible with the Convention and that the Convention’s principles and provisions can be directly applied and appropriately enforce is fundamental.”
Claim No. ANUHCV 2012/0124
Link to Full Judgment:
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