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Judges block girls’ return to US

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Decision overturned: Puisne Judge Nicole Stoneham

A Bermudian father locked in a transatlantic custody battle after allegations of sex abuse overseas has been told he can keep his two daughters until a hearing on their future is held.

The Court of Appeal heard the pre-teenage girls, who cannot be identified for legal reasons, told their father the younger daughter, referred to in court papers as T, was the victim of a sex assault after their US-based mother left them in the care of a man in the United States.

The father said in an affidavit to the court: “The children told me that their mother made a police report and that the man was arrested and spent two or three weeks in jail ... Their mother did not tell me anything at all about this incident and I was shocked to be hearing it for the first time from the children.

“I am extremely concerned to think about what happened and what might have happened and I am concerned that the children have not received any professional services following this incident.”

He added: “I am forced to wonder what else she has not told me if she has kept this terrifying incident from me.”

The father said: “It makes me also question the level of supervision being provided by their mother.

“What checks did she undertake before allowing the girls to go with this man?

“Although she is not directly responsible for the actions of this man, the events seem to form part of a general malaise towards the care of the children, where they are being left unsupervised to fend for themselves.”

The court heard that the girls’ mother, a US citizen, had custody of the girls, but that they travelled to Bermuda for their summer holiday last year.

Legal action was launched against the father after he refused to send the girls back to their mother at the end of the agreed time.

Sir Anthony Smellie of the Court of Appeal wrote in a judgment released last Friday that the father felt it was in the best interests of the children to keep them in Bermuda.

The judge said: “According to the appellant, he refused because both girls clearly and firmly expressed to him that they did not wish to be returned to live with their mother.

“Most serious among the concerns raised by the girls, was that T had been sexually molested by a mere acquaintance in whose charge both girls had been placed by their mother.”

The girls’ mother accepted that the girls had told her about the sexual abuse and that she had gone to the police. The court heard the case is scheduled for a Grand Jury investigation in New York.

The girls also told social workers in Bermuda that they had been physically abused by their mother and did not want to return to the US, but they said they were willing to stay in touch with her.

Sir Anthony said: “Both girls provided handwritten letters, seeking to explain why they did not want to be returned to live with their mother, but wished to remain with their father, in Bermuda.

“These letters express their concerns regarding the care they were receiving, and about the incidents of sexual and physical abuse described to their father and the social workers.”

The Supreme Court ruled in May that the girls should be returned to their mother.

The father launched an appeal based on the grounds that Puisne Judge Nicole Stoneham had failed to take the children’s objections to a return to the US into account.

The Court of Appeal found that the judge had an obligation to explain why she had rejected the concerns and objections of the girls.

Sir Anthony wrote: “This the learned judge simply did not do to the extent that this court might be satisfied, that she exercised her important discretion properly, giving adequate consideration to the concerns and objections of each of the girls.

“On the contrary, what appears, for instance, from the ruling is a basic misunderstanding of the concerns of the girls, with their willingness to visit their mother, being confused with a willingness to return to reside with her.”

The Court of Appeal ruled that the girls should stay in Bermuda until a custody hearing decided where they should live.

Sir Anthony said: “We note that there are, already, in this regard, such proceedings instituted both in the United States by the mother and in this jurisdiction, by the father.

“A result of our decision is that these custody issues will be determined in the proceedings in Bermuda.”

Sir Anthony added: “It will be in the best interests of the girls, that their mother be allowed to participate fully in the proceedings and so, to extent that she may not have the means to fund her own legal representation, we would regard it as imperative that she be allowed legal aid, for those purposes.”

Adam Richards of Marshall Diel and Myers represented the father at the hearing, while Brian Moodie represented the Attorney-General’s Chambers.

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Firm response: Court of Appeal judge Sir Anthony Smellie